Scheu v. High-Forest Corp., HIGH-FORREST

• Court: New York Supreme Court Appellate Division
• Writing for the Court: CASEY
• Citation: 517 N.Y.S.2d 798,129 A.D.2d 366
• Docket Number: HIGH-FOREST,No. 1,No. 2,HIGH-FORREST
• Decision Date: 09 July 1987
• Parties: Susan K. SCHEU, Appellant, v.CORPORATION, Doing Business as Glenwood Pines, et al., Respondents. (Action) James W. SCHEU et al., as Administrators of the Estate of Sara Anne Scheu, Deceased, Appellants, v.CORPORATION, Doing Business as Glenwood Pines, et al., Respondents. (Action)

Page 798

517 N.Y.S.2d 798 129 A.D.2d 366 Susan K. SCHEU, Appellant,
v.
HIGH-FORREST CORPORATION, Doing Business as Glenwood Pines,
et al., Respondents. (Action No. 1.)
James W. SCHEU et al., as Administrators of the Estate of
Sara Anne Scheu, Deceased, Appellants,
v.
HIGH-FOREST CORPORATION, Doing Business as Glenwood Pines,
et al., Respondents. (Action No. 2.) Supreme Court, Appellate Division,
Third Department. July 9, 1987.

Page 800

Thaler & Thaler (Nathaniel F. Knappen, of counsel), Ithaca, for appellants in both actions.

Williamson & Clune (Robert J. Clune, of counsel), Ithaca, for respondents.

Before MAHONEY, P.J., and CASEY, YESAWICH, LEVINE and HARVEY, JJ.

CASEY, Justice.

On July 26, 1981 at about 2:00 A.M., in the Town of Ithaca, Tompkins County, an automobile being operated in a northerly direction on Route 89 by plaintiff Susan K. Scheu (hereinafter plaintiff), in which her sister Sara Anne Scheu (hereinafter decedent) and a third person were passengers, was struck head-on by a vehicle being operated in a southerly direction by Daniel Mahaney, which crossed the double yellow lines into plaintiff's lane of travel. Both passengers in plaintiff's vehicle were killed instantly and plaintiff was seriously injured. Daniel Mahaney was also killed. An autopsy revealed his blood alcohol content to be .20%. Mahaney had spent the evening of July 25, 1981 and the early morning hours of July 26, at least up until 1:00 A.M., at defendant Glenwood Pines, a restaurant and grill. He had his dinner there with which he had a beer, and then proceeded to drink an undetermined number of gin and tonics. Between 1:00 A.M. and 1:30 A.M., Mahaney left with one of the waitresses whom he took home before the accident.

These two consolidated actions resulted from the accident. Both are brought under the Dram Shop Act (General Obligations Law § 11-101 et seq.), which provides in relevant part that:

1. 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 * * * 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.

2. In case of the death of either party, the action or right of action given by this section shall survive to or against his or her executor or administrator, and the amount so recovered by either a husband, wife or child shall be his or her sole and separate property.

The purpose of this act is to compensate victims for their injuries due to the illegal sale of liquor (see, Smith v. Guli, 106 A.D.2d 120, 123, 484 N.Y.S.2d 740).

In the first of the two actions plaintiff seeks actual, compensatory and exemplary damages against Glenwood Pines for the personal injuries she sustained. In the second, decedent's parents, as the administrators of her estate and her sole heirs and

Page 801

next of kin, seek damages for funeral expenses, loss of society, consortium, nurture and guidance, loss of support and maintenance and other pecuniary losses, together with exemplary and punitive damages as the result of decedent's death in the accident. Prior to trial all plaintiffs settled with the estate of Mahaney. The actions were, therefore, limited to the liability of Glenwood Pines under the Dram Shop Act. The jury awarded plaintiff $225,000 for her injuries and damages, denied her exemplary damages, and apportioned liability 85% against Mahaney and 15% against Glenwood Pines. By virtue of the rulings of Supreme Court, which are challenged on this appeal, the jury was not permitted to award damages to decedent's parents or to her estate, with the exception of the agreed amount ($1,426.38) of the funeral expenses, which the court awarded to the parents.

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