Senn v. Scudieri

• Decision Date: 26 March 1991
• Citation: 567 N.Y.S.2d 665,165 A.D.2d 346
• Parties: Joan SENN, Plaintiff-Respondent, v. Louis SCUDIERI, Defendant-Respondent, D.L. Restaurant, Inc., d/b/a P.J. Clarkes, Defendant-Appellant, and Jose Muriel and Kow Cab Corp., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 665

567 N.Y.S.2d 665

165 A.D.2d 346

Joan SENN, Plaintiff-Respondent, v. Louis SCUDIERI, Defendant-Respondent D.L. Restaurant, Inc., d/b/a P.J. Clarkes, Defendant-Appellant and Jose Muriel and Kow Cab Corp., Defendants.

Supreme Court, Appellate Division First Department.

March 26, 1991.

Steve S. Efron, of counsel (Cyperstein & Gerstner, Attorneys), for defendant-appellant,

Richard T. Farrell, of counsel (Ilene J. Miller, with him on the brief; Dansker and Aspromonte Associates, Attorneys), for plaintiff-respondent.

Before MURPHY, P.J., and MILONAS, ROSS, ASCH and RUBIN, JJ.

ROSS, Justice.

Defendant, D.L. Restaurant, Inc., d/b/a P.J. Clarke's, appeals from an amended judgment, entered after a jury found the defendant liable, for violation of the General Obligations Law (GOL) § 11-101, commonly referred to as the Dram Shop Act.

Our examination of the Dram Shop Act indicates that the Legislative intent is "twofold: (1) to deter tavern owners and those in their employ from selling alcoholic beverages to intoxicated persons; [and] (2) to provide a remedy to persons injured as a result of the sale of liquor under the circumstances prohibited by the statute ... [citations omitted] ..." (Bartlett v. Grande, 103 A.D.2d 671, 672, 481 N.Y.S.2d 566 (1984)) [material in brackets added].

Specifically, subdivision 1 of the Dram Shop Act, states: "[a]ny 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."

Since the Dram Shop Act created a cause of action unknown at common law, the provisions of that act must be strictly construed ( D'Amico v. Christie, 71 N.Y.2d 76, 83, 524 N.Y.S.2d 1, 518 N.E.2d 896 (1987)). In this connection, the Courts of this State have consistently interpreted G.O.L. § 11-101 as being "directed against commercial vendors and distributors of intoxicants rather than private hosts or employers ..." ( Greer v. Ferrizz, 118 A.D.2d 536, 539, 499 N.Y.S.2d 758 (1986); and D'Amico v. Christie, supra, 71 N.Y.2d at 83, 524 N.Y.S.2d 1, 518 N.E.2d 896).

During the evening of June 22, 1985, at the intersection of 60th Street and Park Avenue, Manhattan, a taxi, operated by Mr. Jose Muriel (Mr. Muriel) and owned by Kow Cab Corp. (Kow Cab), collided with an automobile, operated by Mr. Louis Scudieri (Mr. Scudieri), and, in which Ms. Joan Senn (Ms. Senn) was a passenger. Thereafter, Ms. Senn (plaintiff) commenced a personal injury action against Messrs. Scudieri and Muriel, Kow Cab, and D.L. Restaurant, Inc., d/b/a P.J. Clarke's (Restaurant) to recover damages. Plaintiff alleges, in substance, in the amended verified complaint, that, while the negligence of both drivers caused the accident, the liability of the Restaurant rests on a violation of the Dram Shop Act, since, until shortly before the incident, Mr. Scudieri and the plaintiff had spent many hours drinking together, and defendant Scudieri was served alcoholic drinks, although he was obviously intoxicated.

Following the joinder of issue, a trial was held, resulting in a jury verdict, awarding plaintiff total damages in the amount of $1,750,000.00 consisting of $1,000,000.00 for conscious pain and suffering and $750,000.00 for impairment of future earning capacity. In the verdict, the jury apportioned liability as follows: 55% against Mr. Scudieri, 15% against the Restaurant, 10% against Mr. Muriel and Kow Cab, and 20% against plaintiff. After the entry of the amended judgment, defendant Restaurant appealed.

More than a quarter of a century ago, we held that, in order for a Court to determine whether there has been an illegal sale of liquor within the meaning of the Dram Shop Act, that act must be read and considered in conjunction with the Alcoholic Beverage Control Law (ABC) § 65, entitled "Prohibited Sales" (Moyer v. Lo Jim Cafe, Inc., 19 A.D.2d 523, 240 N.Y.S.2d 277 (1st Dept.1963), aff'd 14 N.Y.2d 792, 251 N.Y.S.2d 30, 200 N.E.2d 212 (1964)).

In 1985, at the time of the plaintiff's accident, the pertinent part of the ABC Law read (see, Historical Note to the ABC Law § 65, subdivision 2, 3 McKinney's Consolidated Laws of New York Annotated, at 106):

"No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to ...

2. Any intoxicated person or to any person, actually or apparently, under the influence of liquor."

Plaintiff, in order to establish a prima facie case of the defendant Restaurant's liability, has the burden of presenting sufficient proof to lead to the reasonable conclusion that, when the Restaurant served intoxicating liquor to Mr. Scudieri, they were on notice that he was already "actually or apparently, under the influence of liquor" (ABC § 65, former subdivision 2, Gonyea, Jr. v. Folger, 133 A.D.2d 964, 965, 520 N.Y.S.2d 670 (1987), and Allan v. Keystone Nineties, Inc., 74 A.D.2d 992, 993, 427 N.Y.S.2d 107 (1980)).

The duty, under the Dram Shop Act, imposed on the owner of an establishment selling intoxicating liquor, has been set forth as follows: "[o]ne in control or possession of the premises has the duty to control the conduct of those permitted or invited to enter upon the premises and such person in control is required to exercise it for the protection of others. This duty arises when the one in possession knows that he can and has the opportunity to control the third party's conduct and is reasonably aware of the necessity of such control (De Ryss v. New York Centr. R.R. Co., 275 N.Y. 85 ..." (Bartkowiak v. St. Adalbert's R.C. Church, 40 A.D.2d 306, 309-310, 340 N.Y.S.2d 137 (1973)) [emphasis supplied].

Evidence that a person has consumed alcohol, and has the odor of alcohol on his or her breath, is not conclusive proof of intoxication (Coleman v. NYC Tr. Auth., 37 N.Y.2d 137, 144-145, 371 N.Y.S.2d 663, 332 N.E.2d 850 (1975), since the effect of alcohol "may differ greatly from person to person ..." (Burnell v. La Fountain, 6 A.D.2d 586, 590, 180 N.Y.S.2d 52 (1958). In other words, a factual determination of intoxication cannot be made solely on the basis of how much alcohol a person has consumed (Baginski v. New York Telephone Company, 130 A.D.2d 362, 365, 515 N.Y.S.2d 23 (1st Dept.1987)).

Sometime between 4:30 p.m. and 5:00 p.m., on June 22, 1985, plaintiff and a friend, Ms. Ann Segrest (Ms. Segrest), entered the defendant Restaurant, and within a few minutes, Mr. Scudieri joined the two women at the bar, and began purchasing drinks for them.

At about 6:45 p.m., while plaintiff and Mr. Scudieri remained at the bar, Ms. Segrest left those premises. Ms. Segrest, testified, as a plaintiff's witness, and stated (see Trial Transcript (TT), at 138-142) that, in her opinion, Mr. Scudieri was intoxicated, since he was hunched over at the bar, his conversation was "erratic", and his speech was slurred. Ms. Segrest also concluded that the plaintiff was intoxicated.

Other than Ms. Segrest, the plaintiff was the only trial witness to testify that Mr. Scudieri was intoxicated, while in the Restaurant. Plaintiff testified that, after Ms. Segrest departed, she and Mr. Scudieri continued drinking at the bar for several hours. Further, as a result of that drinking, plaintiff testified she "felt pretty tipsy" (see, TT, at 873), and that Mr. Scudieri was intoxicated, since "he had been drinking for a long time with me [plaintiff] ... [and he] was talking a lot, and he wasn't loud" (see, TT, at 880) [material in brackets added]. Moreover, as far as plaintiff could remember that evening, Mr. Scudieri did not annoy any of the other patrons (see, TT, at 1082), he did not stagger (see, TT, at 1082-1083), he did not smell of alcohol (see TT, at 1086), and his speech was not slurred (see, TT, at 1086). In fact, plaintiff testified that at all times she was together with Mr. Scudieri, including the time that they spent in the Restaurant, he "seemed like a nice guy" (see, TT, at 912-913), and behaved at all times "like a gentleman" in "the truest sense" of the word (see, TT, at 913).

The only other trial witnesses, who testified that Mr. Scudieri was intoxicated, did not observe him while he was in the Restaurant. Two of those witnesses, Ms. Gail Freeman (Ms. Freeman) and Mr. Hani Assabqui (Mr. Assabqui), were taxi drivers, who alleged they witnessed the accident between Mr. Scudieri's automobile and Mr. Muriel's taxi.

In substance, Ms. Freeman testified that she believed that Mr. Scudieri was intoxicated, since he was hostile to her after the accident, in which he injured, inter alia, his scalp, and that, although he was coherent, he slurred his words, waved his arms, and smelled of alcohol. Further, Mr. Assabqui testified, in substance, that he believed that Mr. Scudieri was intoxicated, since he smelled alcohol on Mr. Scudieri's breath.

Dr. Morris Zedek, plaintiff's expert witness, testified that, when a person's blood alcohol level reaches .10, he or she is considered to be intoxicated (see, TT at 593). In answer to hypothetical questions, he gave his professional opinion that Mr. Scudieri's blood count was "almost .09" (see, TT, at 597-599).

Ms. Segrest's opinion of defendant's intoxication was based solely on the fact that Mr. Scudieri slurred his speech and she did not understand what he said, and the plaintiff's opinion of his intoxication was based on the fact that Mr. Scudieri and the plaintiff had been drinking together for a long time. We have held that the slurring of one's speech, in of itself, when that person is at the same time coherent, is insufficient to conclude that person is intoxicated (...