Powers v. Niagara Mohawk Power Corp.
| Decision Date | 30 May 1986 |
| Docket Number | No. 1,No. 2,No. 3,1,2,3 |
| Citation | 503 N.Y.S.2d 516,132 Misc.2d 123 |
| Parties | Barbara POWERS, as Administratrix of the Estate of Robert Merrill Kingsland, Deceased, Plaintiff, v. NIAGARA MOHAWK POWER CORPORATION, Glenville Beer Distributors, Ltd., and Donald J. Ritz, Defendants. ActionCheryl A. GAAR, an infant, by Donna J. GAAR, her Parent and Natural Guardian and Donna J. Gaar, Individually, Plaintiffs, v. Donald J. RITZ, Glenville Beer Distributors, Ltd., and Niagara Mohawk Power Corporation, Defendants. ActionVikki M. PEEK, an infant, by Alfred J. PEEK, her Parent and Natural Guardian and Alfred J. Peek, Individually, Plaintiffs, v. Donald J. RITZ, Glenville Beer Distributors, Ltd., and Niagara Mohawk Power Corporation, Defendants. Action |
| Court | New York Supreme Court |
Defendant Glenville Beer Distributors, Ltd. (hereafter Glenville) moves for summary judgment dismissing each of the causes of action pleaded against it in each of the complaints herein. In support of the motion, movant has come forward with uncontroverted evidence of the following. In the late afternoon of September 21, 1983, Robert Kingsland (plaintiff's decedent in action no. 1), Cheryl Gaar (plaintiff in action no. 2), Vikki Peek (plaintiff in action no. 3), and Robert Coon (a non-party) were passengers in a vehicle owned and operated by Donald J. Ritz (defendant in each of the actions). They drove to the store of defendant Glenville, and defendant Ritz and Robert Kingsland purchased beer. Neither were apparently or actually intoxicated or under the influence of alcohol at the time of the purchase. At the time, Ritz and Kingsland were both 18 years of age. With the exception of Ritz, each of the occupants of the van contributed to the cost of the beer. During the early morning hours of September 22, 1983, the vehicle was involved in a collision which at least indirectly caused the death of Kingsland and personal injury to Gaar and Peek. Of the foregoing, the only factual findings essential to determination of the motion are those relating to the actual purchase of the beer, the ages of Kingsland and Ritz and that they were sober at the time of the purchase of the beer from Glenville. Any other facts stated above are for informational purposes only and are not binding upon the parties to the actions.
The complaints each allege common-law negligence and statutory (General Obligations Law, sec 11-101, commonly known as the "Dram Shop Act") causes of action against Glenville. These causes of action shall be considered separately.
The threshold issue, apparently never directly addressed in a reported decision in this state, is whether the furnishing of alcoholic beverages to an individual of less than legal age (19 at the time of the occurrences forming the basis for the causes of action herein; see, Alcoholic Beverage Control Law, sec. 65, subd. 1), who was not actually or apparently under the influence of alcohol at the time of the sale forms a basis for civil liability under the provisions of section 11-101 of the General Obligations Law (subd. 1), which reads as follows:
Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages (emphasis supplied).
It is movant's contention that the proper interpretation of the emphasized statutory language is to restrict the application of the section to situations where the "intoxicated person" was intoxicated at the time he was unlawfully sold or unlawfully assisted in procuring the intoxicating beverage. It is true that the language states: " * * * by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person * * * " It is less than clear from a reading of the statutory language itself whether the words "such intoxicated person" are intended to inject an element into the statutory cause of action and require that the person be intoxicated at the time of the sale or, alternatively, whether the modifier "intoxicated" is simply intended to assist in identifying the person to whom the language refers. It might be noted in this connection that the word "person" is used a total of seven times, to represent three separate classes of individuals (i.e., the intoxicated person, the person who supplied or assisted in procurement of the intoxicant and the person injured or killed) and a type of injury (i.e., injury to the person).
To further complicate matters, the fact that it is unlawful to provide intoxicants to any intoxicated person or to any person, actually or apparently, under the influence of liquor (Alcoholic Beverage Control Law, sec. 65, subd. 2) renders...
To continue reading
Request your trial
-
McIsaac v. Monte Carlo Club, Inc.
...see also, Sanders v. Officers Club of Connecticut, 196 Conn. 341, 493 A.2d 184 (1985); contra, Powers v. Niagara Mohawk Power Corp., 132 Misc.2d 123, 503 N.Y.S.2d 516 (N.Y.Sup.Ct.1986); Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982); Martin v. Heddinger, 373 N.W.2d 486 (Iowa In determini......
-
Powers v. Niagara Mohawk Power Corp., 1
...the common-law negligence causes of action since the accident occurred at a location beyond the control of Glenville Beer. 132 Misc.2d 123, 503 N.Y.S.2d 516. Plaintiffs have The principal issue presented on this appeal is whether the Dram Shop Act provides a cause of action against a vendor......