Montgomery v. Orr

• Decision Date: 30 January 1986
• Citation: 130 Misc.2d 807,498 N.Y.S.2d 968
• Parties: Richard F. MONTGOMERY, as Administrator of the Estate of Mark R. Montgomery, Deceased, Plaintiff, v. Donn R. ORR, Stanwix Veteran's and Men's Club, Mark J. Bostwick, Sr. and William C. Castor, Defendants.
• Court: New York Supreme Court

Page 968

498 N.Y.S.2d 968

130 Misc.2d 807

Richard F. MONTGOMERY, as Administrator of the Estate of Mark R. Montgomery, Deceased, Plaintiff, v. Donn R. ORR, Stanwix Veteran's and Men's Club, Mark J Bostwick, Sr. and William C. Castor, Defendants.

Supreme Court, Oneida County.

Jan. 30, 1986.

George Farber Aney, Herkimer, for plaintiff.

Lockwood & Lockwood (Tod M. Lascurettes, of counsel), Utica, for defendant Orr.

Sugarman, Wallace, Manheim & Schoenwald (Paul M. Gonzalez, of counsel), Syracuse, for defendant Stanwix Veteran's and Men's Club.

Felt, Hubbard, Hopkins, Bach & Bogan (Keith G. Silliman, of counsel), Utica, for defendant Bostwick.

DECISION

JOHN F. LAWTON, Justice:

Defendants Stanwix Veteran's and Men's Club and Mark J. Bostwick, Sr. have moved for an Order of summary judgment to dismiss plaintiff's complaint and the cross-claims of the defendant Donn R. Orr. While some factual questions may remain unresolved, there does not appear to be too serious of a disagreement with respect to the relevant facts which lead up to the commencement of this action. The following is a brief summary of these facts, which regrettably have an all too familiarity about them.

Deceased plaintiff Mark R. Montgomery and defendant Donn R. Orr were schoolmates at the Oriskany Central School. Decedent had just completed his third year of high school and was 18 years of age on the date of the accident (d/o/b 5/27/65). Decedent suffered from a learning disability known as duplexia, but was otherwise in good physical and mental health. Defendant Donald R. Orr had just graduated from Oriskany High School at age 18 shortly before the accident. A number of graduation parties were scheduled on behalf of the graduates. So many, in fact, that the school thought it helpful to provide the students with a written list of the parties, setting forth the dates, times and places. We are concerned herein with just one of those held on Sunday, June 16, 1983.

Some weeks prior to the party, defendant Mark J. Bostwick, Sr., a parent of one of the graduates (Mark J. Bostwick, Jr.), met with defendant William C. Castor, who at the time was alleged to have been affiliated with the defendant Stanwix Veteran's and Men's Club ("Club") as "stewart," to arrange a party in honor of his son's graduation. No formal written contract was entered into, but there was an agreement reached with respect to the time, space, menu, cost and services to be provided at the party. The hours were to be from noon to 6 p.m. for adult friends and relatives of the family. After 6 p.m. the party was open to all of Mark, Jr.'s friends and classmates who were notified of the party by written cards and/or by the school notice. Under the terms of the agreement, defendant Club was to provide kegs of beer, glasses and tapping services, as well as assorted soft drinks and food. The beer was to be charged for by the number of kegs used, and the food was to be billed on a per plate basis.

On the date of the party, the party commenced as planned, with the adults arriving between the hours of noon and 6 p.m., and Mark, Jr.'s friends arriving after 6 p.m. The defendant Donn R. Orr, having earlier attended another party wherein he had one or two beers, arrived with two of his friends at about 6:30 p.m. Thereafter, he remained at the Bostwick's party until it ended at midnight, as scheduled. During this period, he did not have anything to eat, but testified that he availed himself of the beer, which was available on a self-serve basis. After lingering outside of the Club a short while after it closed, Donn R. Orr proceeded to drive his pickup with five passengers, including the decedent, along Route 69. At about 12:30 a.m., said vehicle left the road and turned over, killing the decedent who was seated with his girlfriend in the back of the open pickup with his back to the rear of the cab.

Following the accident, defendant Orr pled guilty to vehicular homicide and to driving while intoxicated. The defendant Bostwick entered a guilty plea to a charge of unlawfully dealing with a child in violation of Section 260.20(4) of the Penal Law. ¹

Defendant Bostwick has moved for an Order of dismissal pursuant to CPLR Rule 3212 upon the grounds that New York does not recognize a cause of action against a social host for the negligence of a guest occurring away from the site of the party (citing Edgar v. Kajet, 84 Misc.2d 100, 375 N.Y.S.2d 548 affd. 55 A.D.2d 597, 389 N.Y.S.2d 631 mot. for lv. to app. dsmd. 41 N.Y.2d 802, 393 N.Y.S.2d 1026, 362 N.E.2d 626 ). Defendant Club likewise seeks an Order of dismissal on the grounds that there can be no liability against it under the Dram Shop Act (General Obligations Law, § 11-101) as there was no sale, and there was no proof to show that the alcoholic beverages were dispensed by its employees. Further, said defendant argues that there can be no common law liability against it for the very same reasons.

Plaintiff maintains that valid common law causes of action do exist as against both defendants, primarily by reason of the fact that both decedent and defendant Orr were under 19 years of age at the time of the accident. In addition, plaintiff states that under the facts presented, the defendant Club is or may be liable under the Dram Shop Act.

The issue of a social host's liability for serving alcoholic drinks is not a new one, but it has achieved greater attention in recent years with the increase in public awareness and concern for the problems and tragedies associated with drinking and driving. Some states have broadened the liability of individuals who are found to be responsible for getting or permitting another to become intoxicated and who thereafter causes injury to another by reason of said intoxication (see e.g. Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 ). Such cases to date are, however, selective and no broad-sweeping rule of liability has been adopted such as that which has been enacted in a number of states against commercial sellers of intoxicants under Dram Shop Acts. To date, no New York case can be found upholding liability against a social host (see Schirmer v. Yost, 60 A.D.2d 789, 400 N.Y.S.2d 655 ). The closest to it so far is a court holding a social host liable for the acts of a guest at the site of the party itself (see Bartkowiak v. St. Adalbert's R.C. Church, 40 A.D.2d 306, 340 N.Y.S.2d 137 Paul v. Hogan, 56 A.D.2d 723, 392 N.Y.S.2d 766 Schirmer v. Yost, supra ).

The court in Edgar v. Kajet, 84 Misc.2d 100, 375 N.Y.S.2d 548 ² summed up the common law rule of nonliability of a social host and the reasons for it at page 101:

The general rule at common law was that it was not a tort either to sell or give intoxicating liquor to ordinary ablebodied people. The reason being that the drinking of the liquor, not the furnishing of it, was considered to be the proximate cause of the injury. (emphasis added)

(see also Berkeley v. Park, 47 Misc.2d 381, 382, 262 N.Y.S.2d 290 ) The Fourth Department in dismissing an action brought in common law negligence against a social host did so on the grounds that the host did not owe a duty to his or her guests (see Paul v. Hogan, supra, 56 A.D.2d at p. 723, 392 N.Y.S.2d 766).

The court in Edgar, supra, however, indicates in its opinion that the rule may well be otherwise in other states when an infant is involved (84 Misc.2d pp. 102, 103, 375 N.Y.S.2d 548). On July 25, 1983, or just one month after the accident herein, Governor Cuomo signed a Bill expressly stating that there is liability to third parties for injury caused by one furnishing intoxicants to persons under the legal drinking age.

Section 11-100 of the Obligations Law ³ expresses a policy of holding not only sellers but also providers of intoxicants to persons under the age of 19 liable for any damages related to conduct by said minor resulting from said drinking. Had this accident occurred but some 118 days later, plaintiff's cause of action would fall squarely within the provisions of said statute. There being no clear legislative intent to apply said statute retroactively, however, it must be assumed that said statute is not applicable to the present case. That is not to say, however, that other causes of action may not exist (see Berkeley v. Park, supra; Prosser, Torts § 36, 1984).

Plaintiff does not rely exclusively upon Section 11-100, General Obligations Law, but rather relies in part upon Section 260.20(4) of the Penal Law, which reads in part as follows:

A person is guilty of unlawfully dealing with a child when * * * 4. He gives or sells or causes to be given or sold any alcoholic beverage * * * to a child less than nineteen years old; except that this subdivision does not apply to the parent or guardian of such a child.

In that the facts herein establish that defendant breached said statute, a fact confirmed in part by defendant's plea of guilty, there remains only the question of whether such a breach is to be considered evidence of common law negligence or not. Further, there is the issue of whether an action predicated upon a breach of said statute is limited to the minor alone, or whether it may be brought by an injured third party.

A review of the cases to date show that a breach of said statute may be considered as evidence of negligence in cases where a minor is injured as a result of being provided intoxicants (see Dynarski v. U-Crest Fire Dist., 112 Misc.2d 344, 447 N.Y.S.2d 86 ). Defendants rely upon the case of Gabrielle v. Craft, 75 A.D.2d 939, 428 N.Y.S.2d 84 in support of their contentions that no liability exists for a social host, even in cases of injury to a minor. A reading of said case, however, discloses that no mention is made of Section 260.20(4).

There remains undecided, therefore, whether liability may exist in instances such as the present one, where the injured party is not the minor, but rather a third party. This court herein concludes that a third party may bring an...