Rutledge v. Rockwells of Bedford, Inc.

• Decision Date: 16 May 1994
• Citation: 613 N.Y.S.2d 179,200 A.D.2d 36
• Parties: Denise B. RUTLEDGE, etc., Respondent, v. ROCKWELLS OF BEDFORD, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 179

613 N.Y.S.2d 179

200 A.D.2d 36

Denise B. RUTLEDGE, etc., Respondent, v. ROCKWELLS OF BEDFORD, INC., Appellant.

Supreme Court, Appellate Division,

Second Department.

May 16, 1994.

Segan, Culhane, Nemerov & Singer, P.C., New York City (Fred J. Hirsh, of counsel), for appellant.

Sullivan & Liapakis, P.C., New York City (Pamela Anagnos Liapakis, Frank V. Floriani, and Stephen C. Glasser of counsel), for respondent.

Before BRACKEN, J.P., and O'BRIEN, COPERTINO and HART, JJ.

HART, Justice.

The plaintiff's decedent, a resident of Connecticut, was a patron at the defendant's bar/restaurant located in Bedford, New York. It is alleged that the defendant's employees served the decedent alcohol, even though they knew he was intoxicated. On his way home, the decedent was involved in a one-car accident in Connecticut, in which he suffered fatal injuries. His widow commenced this action pursuant to General Obligations Law § 11-101 (the Dram Shop Act) to recover damages for loss of support. The widow sued on behalf of herself, the decedent's child, and the decedent's stepson, whom it was alleged the decedent was supporting. In response to the plaintiff's motion to compel discovery, the defendant cross-moved pursuant to CPLR 3211(a)(7), to dismiss the complaint for failure to state a cause of action under General Obligations Law § 11-101. The defendant argued that General Obligations Law § 11-101 did not have extraterritorial effect, and further argued that a stepchild was not entitled to commence an action pursuant to General Obligations Law § 11-101.

General Obligations Law § 11-101 (1) provides, inter alia:

"Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person * * * shall have a right of action against any person who shall, by unlawful[ly] selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication".

STATUTORY BACKGROUND OF GENERAL OBLIGATIONS LAW § 11-101

In 1873, during the Temperance Movement, the Legislature passed the Civil Damage Act, a predecessor "Dram Shop Act", indicating that its purpose was to "suppress intemperance, pauperism, and crime" (L.1873, ch. 646). Inasmuch as the statute provided for the recovery of "actual" and "exemplary" damages by injured third parties, the Legislature's intent in enacting the statute was clearly to inhibit the sale of intoxicating liquor in circumstances which could lead to injuries to third parties. In this context, "exemplary" or "punitive" were used interchangeably.

The Act was amended in 1921 under Civil Rights Law § 16. As amended, it read, in part:

"any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person * * * whether resulting in his death or not, shall have a right of action * * * to recover actual and exemplary damages".

The statute has now been subsumed into General Obligations Law § 11-101 and reads essentially the same as did the Civil Rights Law.

THE EXTRATERRITORIAL EFFECT OF GENERAL OBLIGATIONS LAW § 11-101

The societal interest promoted by General Obligations Law § 11-101 is to prevent or discourage the sale of intoxicating beverages to intoxicated persons. The potential for a dram shop keeper to be held liable for actual and punitive damages based on a violation of General Obligations Law § 11-101 is intended to have a deterrent effect. "The Legislature believed that by imposing civil liability upon the seller he would be more careful in his sales * * * (Mead v. Stratton, 87 N.Y. 493). This statute, which is remedial in nature (see, Wilcox v. Conti, 174 Misc. 230, 20 N.Y.S.2d 106), thus creates an expansive cause of action [completely] unknown at common law (see, Volans v. Owen, 74 N.Y. 526; Mead v. Stratton, supra )" (Matalavage v. Sadler, 77 A.D.2d 39, 43, 432 N.Y.S.2d 103).

The basis of the underlying cross motion to dismiss in this case was the holding in Goodwin v. Young, 34 Hun. 252 [3d Dept., General Term, 1884]. That decision concerned the interpretation of the Civil Damage Act of 1873. That Act mirrored General Obligations Law § 11-101, except that it did not provide for damages based on death. Damages for wrongful death were not recoverable in New York State until 1896 as a result of a constitutional amendment originating in the 1894 New York State constitutional convention (see, NY Const. art. I, former § 18, now § 16).

Goodwin involved a suit for damages against an innkeeper by a plaintiff, who lived in Vermont, whose servant took a team of his horses into New York State, and drank a glass of liquor at the defendant's store. He also purchased bottled whiskey, presumably for consumption at a later time. The servant then returned to Vermont in an intoxicated condition. The servant put one of the horses, a mare, in a barn, and left the barn door open, allowing the wind to blow in upon the mare, causing her sickness and death.

The Goodwin court, in non-suiting the plaintiff, held:

"The sale of liquor was not a wrongful act, either at common law or by the statute * * * The wrongful act which caused the injury to the plaintiff was the act of * * * his servant, and was done in Vermont * * * our statute gives a cause of action for the injury * * * as it is a special statutory provision, must refer to an injury done in this State. It cannot be intended to have an extra-territorial effect. The statute is peculiar, in that it makes an innocent man liable for the wrongful act of another" (Goodwin v. Young, supra, at 253-254).

The defendant's reliance on Goodwin in support of its cross motion to dismiss the complaint is unavailing, since the case is clearly distinguishable on its facts. In the case at bar, the complaint alleges that the deceased became intoxicated at the defendant's establishment in Bedford, New York, and that, due to his intoxication, had an accident in Connecticut, causing his death. Unlike the case at bar, in Goodwin, the customer who caused the damage complained of did not become intoxicated at the innkeeper's premises. The decision indicated that the servant had only one drink at the establishment, and carried away two bottles of liquor, without indicating where, or if, he drank the same. There was no indication in the record that the servant became intoxicated at the defendant's premises. Accordingly, there was no evidence of an illegal sale: hence, the court's use of the term "innocent man" when describing the defendant innkeeper was appropriate.

Further, the Goodwin court pointed out that the record was devoid of proof that a similar law existed in Vermont. However, in the instant case, it has been established that there is an analogous Dram Shop Act in Connecticut (see, Conn.Gen.Stat.Ann. § 30-102).

Moreover, we agree with the Supreme Court that Goodwin v. Young, 34 Hun. 252 no longer reflects the proper choice of law analysis employed by New York courts (see, Farber v. Smolack, 20 N.Y.2d 198, 282 N.Y.S.2d 248, 229 N.E.2d 36; Manfredonia v. American Airlines, 68 A.D.2d 131, 416 N.Y.S.2d 286; Patton v. Carnrike, 510 F.Supp. 625). In Farber v. Smolack, supra, the Court of Appeals gave extraterritorial effect to Vehicle and Traffic Law § 388(1) and EPTL 5-4.1 because New York was the jurisdiction having " 'the most significant relationship' with the issue presented" (Farber v. Smolack, supra, 20 N.Y.2d at 204, 282 N.Y.S.2d 248, 229 N.E.2d 36; see also, Manfredonia v. American Airlines, supra, 68 A.D.2d at 137, 416 N.Y.S.2d 286). That choice of law analysis should be applied here.

The defendant's argument that the statute does not have extraterritorial effect does not pass dialectical muster. The location of the accident site is of no moment, as the determinative factor is the place where the innkeeper's impermissible act occurred. The...