Santoro v. Di Marco

Decision Date26 March 1971
Citation320 N.Y.S.2d 132,65 Misc.2d 817
PartiesPeter SANTORO, an infant over the age of 14 years by his mother and guardian, Mary Santoro and Domenick Santoro, Plaintiffs, v. John DI MARCO and Mary Di Marco, d/b/a Di Marco's, Defendants.
CourtNew York District Court


There has seldom, if ever, been a cause more suited to the timeless truism that 'young men embrace more than they can hold, stir more than they can quiet, and fly to ends without consideration of means.'

This is an action which poses a question never before directly determined in a reported case in this State. It is a suit by an infant against the defendants who own, operate and control a bar and grill in Atlantic Beach, New York, to recover for personal injuries, and it arises out of certain incidents which took place June 21st, 1967, on the defendants' premises when the plaintiff engaged in what he characterized as a drinking contest. At the time the plaintiff was 17 years of age, making it Malum prohibitum to serve alcohol to him. See People v. Gar Bob Corp., 49 Misc.2d 88, 266 N.Y.S.2d 771; People v. Danchak, 24 A.D.2d 685, 261 N.Y.S.2d 722; Ross's Dairies, Ltd. v. Rohan, 10 A.D.2d 987, 202 N.Y.S.2d 807, reargument denied 11 A.D.2d 714, 205 N.Y.S.2d 883; Sheibar v. N.Y. State Liquor Authority, 4 A.D.2d 442, 166 N.Y.S.2d 394.

The uncontroverted testimony establishes that the defendants incredibly served the infant plaintiff thirteen drinks of a kind known as 'Seven & Seven' within a period of one hour. Each serving contained an intoxicating beverage bearing a brand name of established repute. After nine or ten such drinks the plaintiff, not surprisingly, fell from his bar stool. However, with a tenacity characteristic of the young, he managed to clamber back and consume four more of same, all within the aforementioned hour. At approximately 9:30 p.m. he left his increasingly precarious perch and proceeded to the door, where, to the surprise of no one in particular, he understandably fell, as though poleaxed straight out the front door, landing, but literally, flat on his face, incurring substantial injuries to his face and teeth and, to a lesser extent, to his shoulder. The testimony of his dentist established that the plaintiff fractured three teeth, requiring considerable root canal work and crowns, all of which was completed, the fair and reasonable value thereof being $485.00, paid by his father.

In addition, the plaintiff testified that he was taken to St. Joseph's Hospital, where seven stitches were placed in his chin and that he had pain in his chin and right shoulder for approximately two or three weeks after the incident.

The defendants rested without calling a witness or offer of proof, and seek to defeat the plaintiff's cause of action, in effect, solely upon the ground of contributory negligence, their premise being, that voluntary intoxication constitutes contributory negligence barring recovery and that there is no special duty resting upon a defendant to protect a plaintiff from his own intoxication. See Kinnie v. Town of Morris-town, 184 App.Div. 408, 172 N.Y.S. 21; Kinney v. Rhinelander, 28 App.Div. 246, 50 N.Y.S. 1088, aff'd 163 N.Y. 576, 57 N.E. 1114; Fardette v. N.Y. & Stamford Ry. Co., 190 App.Div. 543, 180 N.Y.S. 179; Moyer v. Lo Jim Cafe, Inc., 19 A.D.2d 523, 240 N.Y.S.2d 277, aff'd, 14 N.Y.2d 792, 251 N.Y.S.2d 30, 200 N.E.2d 212; Rodak v. Fury, 31 A.D.2d 816, 298 N.Y.S.2d 50.

The plaintiff, on the other hand, relies in part upon Section 11--101 of the General Obligations Law, generally known as the Dram Shop Act or Civil Damage Act, which provides that:

'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. * * *'

This section created a statutory right of action against one who sells liquor to an intoxicated person. Such a cause of action was unknown at common law and is not based upon negligence. See Moyer v. Lo Jim Cafe, Inc., supra, and Bator v. Barry, 282 App.Div. 324, 122 N.Y.S.2d 604.

Most germane to this case, however, is the fact that such statutory cause of action is limited to a third party who is injured or killed by the intoxicated person by reason of his intoxication and no cause of action exists in favor of the party whose intoxication resulted from the illegal sale. See Playford v. Perich, 2 Misc.2d 170, 152 N.Y.S.2d 201; Mitchell v. Shoals, Inc., 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21; Bizzell v. N.E.F.S. Rest, Inc., 27 A.D.2d 554, 275 N.Y.S.2d 858; Moyer v. Lo Jim Cafe, Inc., supra; cf. McNally v. Addis, 317 N.Y.S.2d 157, opinion of Justice Gagliardi, Supreme Court, Westchester County. It is of interest to note in passing that Bizzell v. N.E.F.S. Rest, Inc., supra, involved a quite similar fact pattern to the cause at bar; namely, that defendant fell leaving the defendants' premises. However, it is readily distinguishable in that the plaintiff therein was not a minor and the Court held that the statute did not create a cause of action in favor of a person whose intoxication has resulted from the illegal sale (sale to an obviously intoxicated person) and limited the plaintiff's action to one in negligence which could readily be defeated by virtue of his contributory negligence. See also, Soronen v. Olde Milford Inn, 84 N.J.Super. 372, 202 A.2d 208, wherein New Jersey holds to the contrary; namely, that contributory negligence is not available as a defense to a tavern keeper who negligently sells alcoholic beverages to a visibly intoxicated person.

To summarize, it is manifest that this infant plaintiff's cause of action cannot survive upon a common law theory of negligence, nor can it succeed pursuant to Section 11--101 of the General Obligations Law.

Despite the foregoing, however, it comes to mind that Justice Holmes once wrote, in his incandescently imperishable style, 'That to doubt one's own first thoughts is the mark of a civilized man.' From that philosophical premise, to which this court has oft payed heed, it continued its voyage of discovery herein to the harbor where it appeared that there is yet another theory of law pursuant to which this infant plaintiff may recover.

It seems that the law is replete with statutes of a kind which effectively place the entire responsibility for harm which occurs upon a defendant. In order to effectuate their purpose, however, it must appear...

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5 cases
  • Sampson v. W. F. Enterprises, Inc.
    • United States
    • Missouri Court of Appeals
    • December 30, 1980
    ...jurisdictions refuse to permit the defense: Soronen v. Olde Milford Inn, Inc., 46 N.J. 582, 218 A.2d 630 (1966); Santoro v. Di Marco, 65 Misc.2d 817, 320 N.Y.S.2d 132 (1971); Schelin v. Goldberg, 188 Pa.Super. 341, 146 A.2d 648 (1958); Aliulis v. Tunnel Hill Corp., 114 N.J.Super. 205, 275 A......
  • Dynarski v. U-Crest Fire Dist.
    • United States
    • New York Supreme Court
    • March 12, 1981
    ...injured himself as a result of his own voluntary intoxication (see Santoro v. DiMarco, 80 Misc.2d 296, 363 N.Y.S.2d 694, rev'ing 65 Misc.2d 817, 320 N.Y.S.2d 132; Vadasy v. Bill Feigel's Tavern, 88 Misc.2d 614, 391 N.Y.S.2d 32, affd. 55 A.D.2d 1011, 391 N.Y.S.2d 999; but see Wilkins v. Were......
  • Vadasy v. Bill Feigel's Tavern, Inc.
    • United States
    • New York Supreme Court
    • October 10, 1973
    ...constitutes a cause of action for the Plaintiff and contributory negligence is not a defense to the cause of action. Santoro v. DiMarco, 65 Misc.2d 817, 320 N.Y.S.2d 132. Section 65 of the Alcoholic Beverage Control Law does not create an independent statutory cause of action, but must be r......
  • Garlinghouse v. Nelson
    • United States
    • New York Supreme Court
    • January 2, 1973
    ...the General Obligations Law, for either an intoxicated person nor his estate can recover under that statute. See Santora (Santoro) v. DiMarco, 65 Misc.2d 817, 320 N.Y.S.2d 132; McNally v. Addis, 65 Misc.2d 204, 317 N.Y.S.2d However, the Court granted leave to renew the motion on proper pape......
  • Request a trial to view additional results

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