Oursler v. Brennan

• Decision Date: 28 August 2009
• Docket Number: CA 08-01231.
• Citation: 2009 NY Slip Op 06357,884 N.Y.S.2d 534,67 A.D.3d 36
• Parties: CHRISTOPHER OURSLER, Individually and as Administrator of the Estate of JULIE OURSLER, Deceased, Appellant, v. ROBERT E. BRENNAN, Appellant, and MALBEAT, INC., Doing Business as MALLWITZ'S ISLAND LANES, Respondent.
• Court: New York Supreme Court — Appellate Division

67 A.D.3d 36

884 N.Y.S.2d 534

2009 NY Slip Op 06357

CHRISTOPHER OURSLER, Individually and as Administrator of the Estate of JULIE OURSLER, Deceased, Appellant, v. ROBERT E. BRENNAN, Appellant, and MALBEAT, INC., Doing Business as MALLWITZ'S ISLAND LANES, Respondent.

CA 08-01231.

Appellate Division of the Supreme Court of New York, Fourth Department.

Decided August 28, 2009.

Paul William Beltz, P.C., Buffalo (Debra A. Norton of counsel), for Christopher Oursler, appellant.

Damon & Morey LLP, Buffalo (Joseph W. Dunbar of counsel), for Robert E. Brennan, appellant.

Law Offices of Douglas Coppola, Buffalo (Patricia Stroman Walker of counsel), for respondent.

OPINION OF THE COURT

PERADOTTO, J.

The primary issue to be determined on this appeal is what actions constitute "guilty participation" on the part of a plaintiff so as to preclude recovery under General Obligations Law § 11-101 (Dram Shop Act). More specifically, we must determine whether plaintiff is unable to state a cause of action under that statute as a matter of law because he purchased two alcoholic beverages for his wife (decedent). We conclude that defendant Malbeat, Inc., doing business as Mallwitz's Island Lanes (Malbeat), did not meet its burden of establishing, as a matter of law, that plaintiff is precluded from recovering under the Dram Shop Act based on the fact that he bought decedent two drinks on the night that she was killed.

Factual Background

On October 26, 2002, plaintiff and decedent attended a Halloween costume party at Mallwitz's Island Lanes in Grand Island (Island Lanes), an establishment owned by Malbeat. Decedent was dressed as a witch and was clad entirely in black. The couple arrived at the party at approximately 10:30 P.M. Plaintiff purchased decedent's first drink of the night, a beer, shortly after the couple's arrival. For much of the party, decedent sang Karaoke in the bar area of the bowling alley while plaintiff played pool and shuffleboard in the back room. Plaintiff testified at his deposition that he purchased a second beer for decedent sometime prior to the costume contest, which occurred at approximately 12:30 A.M. Island Lanes also offered its patrons free "Jell-O shots" containing alcohol, and plaintiff testified that decedent consumed at least two of those shots. Throughout the evening, decedent purchased additional drinks for herself, and the couple's friends also took turns purchasing drinks for decedent. Plaintiff estimated that decedent consumed approximately six beers at the party.

After the winner of the costume contest was announced, decedent began to argue with another contestant. Plaintiff and decedent left Island Lanes, but the altercation continued in the parking lot and plaintiff was injured. The police arrived on the scene at approximately 1:45 A.M. and concluded that decedent was intoxicated. Plaintiff was taken to the hospital in an ambulance and an officer drove decedent to her mother's house.

Approximately an hour after the police left decedent with her mother, decedent departed on foot in search of her husband, whom she erroneously believed had been taken to the police station. As decedent was walking along the unlit shoulder of Whitehaven Road, still dressed entirely in black, defendant Robert E. Brennan struck decedent with the driver's side mirror of his vehicle as he was entering his driveway. Brennan continued into his driveway and called 911 from his home. Minutes later, an officer responding to calls concerning a suspicious person walking down Whitehaven Road ran over decedent in his patrol vehicle as she lay on the side of the road. Decedent's injuries were fatal.

Procedural History

Plaintiff commenced this action, individually and as the administrator of decedent's estate, seeking damages resulting from decedent's death. As administrator of decedent's estate, plaintiff asserted causes of action for negligence against Brennan and Malbeat. Both in his individual capacity and as administrator of decedent's estate, plaintiff asserted causes of action for violations of the Dram Shop Act against Malbeat. In his answer, Brennan interposed a cross claim for contribution.

Malbeat moved for summary judgment dismissing the complaint and all cross claims against it, and Supreme Court granted the motion. Although the court concluded that a jury could find that Malbeat violated the Dram Shop Act, it further concluded that an intoxicated person does not have a cause of action under the statute. With respect to Brennan's cross claim, the court concluded that, because "there cannot be a finding against Malbeat, there can be no right to contribution."

Plaintiff contends on appeal only that the court erred in dismissing his fourth cause of action, asserted in his individual capacity, for loss of support pursuant to the Dram Shop Act. Brennan contends that the court erred in dismissing his cross claim for contribution against Malbeat. We agree.

"Guilty Participation" Under the Dram Shop Act

Under the Alcoholic Beverage Control Law, it is unlawful to sell, deliver or give away alcoholic beverages to "[a]ny visibly intoxicated person" (§ 65 [2]). New York's Dram Shop Act affords a person injured "by reason of the intoxication" of another person a right of action against the party that unlawfully purveyed the alcohol (General Obligations Law § 11-101 [1]; see Mitchell v The Shoals, Inc., 19 NY2d 338, 340-341 [1967]). The Dram Shop Act is remedial in nature and serves the dual purposes of deterring bar owners and their employees from selling alcoholic beverages to intoxicated persons and of compensating individuals injured as a result of the unlawful sale of alcohol (see Bartlett v Grande, 103 AD2d 671, 672 [1984]).

It is well settled that an intoxicated person or his or her estate cannot maintain a cause of action under the Dram Shop Act for injuries sustained as a result of that person's own intoxication (see Mitchell, 19 NY2d at 340-341; Armstrong v Petsche, 172 AD2d 1079 [1991]; Powers v Niagara Mohawk Power Corp., 129 AD2d 37, 41 [1987]). Thus, as plaintiff correctly concedes on appeal, the court properly dismissed the Dram Shop Act cause of action against Malbeat on behalf of decedent's estate. Plaintiff, however, may maintain a cause of action in his individual capacity for loss of support as decedent's surviving spouse (see Coughlin v Barker Ave. Assoc., 202 AD2d 622, 623 [1994]). Indeed, "[o]ne of the salutary purposes of the Dram Shop Act is `to protect the [spouse] ... of an intoxicated person when [he or she was] deprived of [his or her] means of support as a result of [the] intoxication'" (Adamy v Ziriakus [appeal No. 1], 231 AD2d 80, 86 [1997], affd 92 NY2d 396 [1998]).

Malbeat contends that plaintiff does not have a valid cause of action under the Dram Shop Act as a matter of law because he procured alcohol for decedent. We reject that contention. Pursuant to the decision of the Court of Appeals in Mitchell (19 NY2d at 341), the relevant inquiry is not whether plaintiff procured one or more drinks for decedent during the course of the evening but, rather, whether plaintiff caused or procured decedent's intoxication. In our view, Malbeat's contention that the purchase of even a single drink for decedent forecloses plaintiff's recovery under the Dram Shop Act strays from the principles articulated by the Court in Mitchell and improperly restricts the remedial aims of the statute.

In Mitchell, the Court of Appeals concluded that, as long as the injured third party "does not himself [or herself] cause or procure the intoxication of the other, there is no basis, under the statute, for denying him [or her] a recovery from the party unlawfully purveying the liquor" (19 NY2d at 341 [emphasis added]). Thus, in determining whether a plaintiff may recover under the statute, the ultimate issue is whether his or her conduct constitutes "guilty participation in [the] intoxication" (id.). According to the Court of Appeals, a plaintiff "must play a much more affirmative role than that of drinking companion to the [intoxicated person] before [the plaintiff] may be denied recovery against the [establishment that] served" the intoxicated person (id.).

Malbeat cites several cases to support its contention that the purchase of even a single drink for the intoxicated person in question precludes a plaintiff's recovery under the Dram Shop Act as a matter of law (see e.g. Bregartner v Southland Corp., 257 AD2d 554, 555-556 [1999]; Dodge v Victory Mkts., 199 AD2d 917, 920 [1993]). Those cases, however, involve the provision of alcohol to minors or rely on precedent established in that context. In fact, many of those cases cite Vandenburg v Brosnan (129 AD2d 793 [1987], affd 70 NY2d 940 [1988]). In Vandenburg, the Second Department held that the plaintiff, who purchased the beer consumed by the minor driver of the vehicle in which he was a passenger at the time of the accident, had no cognizable cause of action under the Dram Shop Act because he "procured the alcoholic beverage for the person whose intoxication allegedly caused the accident" (id. at 794). In our view, the rule set forth in Vandenburg is appropriate in cases involving minors, for whom the purchase of even a single alcoholic beverage is unlawful (see Alcoholic Beverage Control Law § 65 [1]). Thus, purchasing a drink for a minor or contributing money toward the purchase of alcohol for a minor alone constitutes "guilty participation" in the minor's intoxication (see Schrader v Carney, 198 AD2d 779, 780 [1993], lv dismissed 83 NY2d 801 [1994]). The purchase of alcohol for minors, however, is wholly distinguishable from the facts of this case as well as the facts before the Court of Appeals in Mitchell inasmuch as the purchase of an alcoholic beverage for an adult is not, in and of itself, an illegal act.

In our view, the appropriate rule in cases that do not involve minors is one that balances the dual purposes of the Legislature in...