Sheehy v. Big Flats Community Day, Inc.

Decision Date12 May 1988
Citation137 A.D.2d 160,528 N.Y.S.2d 213
PartiesMargaret A. SHEEHY, et al., Appellants, v. BIG FLATS COMMUNITY DAY, INC., et al., Defendants, and American Legion Ernest Skinner Memorial Post 1612, Respondent.
CourtNew York Supreme Court — Appellate Division

Ziff, Weiermiller & Hayden (James B. Reed, of counsel), Elmira, for appellants.

Levene, Gouldin & Thompson (John J. Pollock and William S. Yaus, of counsel), Binghamton, for respondent.


KANE, Justice Presiding.

On the evening of June 24, 1983, plaintiff Margaret A. Sheehy (hereinafter Sheehy), then age 17, was struck by an automobile while crossing the public highway at the intersection of State Route 352 and River Street in the Town of Big Flats, Chemung County. She was proceeding from the premises of defendant Driscoll's Tavern, Inc. to the "Big Flats Community Days" celebration which was taking place across the road and was sponsored by defendant Big Flats Community Day, Inc. At the time of the accident Sheehy was intoxicated, and plaintiffs contend that earlier in the evening she had been served beer at a beer tent operated by defendant American Legion Ernest Skinner Memorial Post 1612 (hereinafter the Legion) at a time when she was intoxicated and under the then-legal drinking age of 19 (Alcoholic Beverage Control Law former § 65[1], as amended by L.1982, ch. 159, § 1).

The complaint in this action seeks recovery for personal injuries sustained by Sheehy and for expenses and loss of services sustained by her mother. Plaintiffs allege causes of action in common-law negligence, statutory negligence and a violation of General Obligations Law § 11-101(1) and (4) (hereinafter the Dram Shop Act). A motion for summary judgment resulted in dismissal of each cause of action in the complaint against the Legion, except for the mother's cause of action predicated on the Dram Shop Act, wherein a conditional dismissal was granted with the right to replead. Neither party appeals from the dismissal of the Dram Shop Act cause of action. Plaintiffs do, however, argue that Supreme Court improperly dismissed the causes of action alleging common-law negligence and purporting to allege a violation of Penal Law former § 260.20(4). 1

Turning first to plaintiffs' common-law negligence claim, it appears that when the accident occurred, Sheehy was on the highway about 200 yards away from the Legion's beer tent. Under common law, a landowner is responsible for injuries caused to a third person by an intoxicated guest only if the injuries occurred on the landowner's property or in an area under his control where he had an opportunity to supervise the intoxicated guest ( D'Amico v. Christie, 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 518 N.E.2d 896). This court has previously dismissed common-law claims involving injuries to others caused by intoxicated persons where the injuries have not occurred on the landowner's premises ( see, e.g., Joly v. Northway Motor Car Corp., 132 A.D.2d 790, 791, 517 N.Y.S.2d 595; Delamater v. Kimmerle, 104 A.D.2d 242, 244, 484 N.Y.S.2d 213; Wright v. Sunset Recreation, 91 A.D.2d 701, 457 N.Y.S.2d 606). Plaintiffs attempt to distinguish these cases by arguing that, unlike the instant situation, they involved accidents occurring far from the site where the alcoholic beverages were served and/or occurred a significant period of time after the drinking took place. Plaintiffs also claim that the highway here encompassed an area within the Legion's control.

This argument must be rejected. Plaintiffs did not allege in the complaint that the Legion is the landowner and the Legion has denied owning the land on which its tent was located. In addition, plaintiffs failed to offer any proof to support their claim that the Legion exercised control over that part of the highway where the accident occurred. Therefor Supreme Court properly dismissed plaintiffs' claim of common-law negligence.

We turn next to plaintiffs' assertion that they should be permitted to sue under Penal Law former § 260.20(4) (as amended by L.1982, ch. 159, § 4). At the time of the accident, this statute provided that a person was "guilty of unlawfully dealing with a child when * * * [h]e gives or sells * * * any alcoholic beverage * * * to a child less than nineteen years old". 2

Whether a statute gives a private right of action to the one injured by its violation is based on two factors: first, whether the plaintiff is one of the class for whose benefit the statute was specifically enacted, and, second, whether such a private right of action would clearly further the legislative purpose of the statute ( CPC Intl. v. McKesson Corp., 70 N.Y.2d 268, 276, 519 N.Y.S.2d 804, 514 N.E.2d 116). In our view, although the first requirement, concededly, is satisfied, the statute and its history indicate that a private cause of action based upon it was not intended ( but see, Montgomery v. Orr, 130 Misc.2d 807, 498 N.Y.S.2d 968; Dynarski v. U-Crest Fire Dist., 112 Misc.2d 344, 447 N.Y.S.2d 86 [intoxicated minors permitted to maintain negligence suits based on an alleged violation of Penal Law § 260.20(4) ] ). In reaching this conclusion, we note that General Obligations Law former § 11-100(1) (as added by L.1983, ch. 641, § 1, eff. Oct. 23, 1983) 3 created a statutory cause of action for compensation for injuries or damages caused by an intoxicated person by imposing liability on those who unlawfully furnish or assist in procuring alcoholic beverages for persons under the age of 19. Thus, in contrast to the Dram Shop Act, General Obligations Law § 11-100(1) does not require that...

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4 cases
  • Sheehy v. Big Flats Community Day, Inc.
    • United States
    • New York Court of Appeals Court of Appeals
    • June 6, 1989 inference that the Legislature intended a judicially created right of recovery based upon the Penal Law provision (137 A.D.2d 160, 163-164, 528 N.Y.S.2d 213). The court then granted Sheehy leave to appeal to this court, certifying the following question of law: "Did this court err as a m......
  • Strassner v. Saleem
    • United States
    • New York Supreme Court
    • February 8, 1993 herein granted. (see CPLR Sec. 3211(c); Hosmer v. Distler, 150 A.D.2d 974, 541 N.Y.S.2d 650; see also Sheehy v. Big Flats Community Day, 137 A.D.2d 160, 528 N.Y.S.2d 213, aff'd. 73 N.Y.2d 629, 543 N.Y.S.2d 18, 541 N.E.2d 18; Armstrong v. Petsche, 172 A.D.2d 1079, 569 N.Y.S.2d 257; Martin......
  • Hosmer v. Distler
    • United States
    • New York Supreme Court — Appellate Division
    • May 25, 1989
    ...the premises of the inn (see, Etu v. Cumberland Farms, 148 A.D.2d 821, 822-823, 538 N.Y.S.2d 657, 659; Sheehy v. Big Flats Community Day, 137 A.D.2d 160, 162, 528 N.Y.S.2d 213). Lastly, no appeal lies from an order denying a motion for judgment notwithstanding the verdict (see, Kozlowski v.......
  • MacGilvray v. Denino
    • United States
    • New York Supreme Court — Appellate Division
    • April 17, 1989
    ...action under either Penal Law § 260.20(4) or Alcoholic Beverage Control Law § 65 is also without merit (see, Sheehy v. Big Flats Community Day, 137 A.D.2d 160, 528 N.Y.S.2d 213; Greer v. Ferrizz, 118 A.D.2d 536, 499 N.Y.S.2d 758; but see, Stambach v. Pierce, 136 A.D.2d 329, 527 N.Y.S.2d Acc......

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