Smith v. Guli
| Decision Date | 29 January 1985 |
| Citation | 484 N.Y.S.2d 740,106 A.D.2d 120 |
| Parties | Todd SMITH, Plaintiff, v. Lawrence J. GULI, et al., Defendants. JACK RYAN'S PLACE, INC., Jack Ryan, Jr. and Ada Ryan, Third-Party Plaintiffs-Respondents, v. Richard J. HORAN, et al., Third-Party Defendants, and Wambach Farms, Inc., Third-Party Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Greisberger, Zicari, McConville, Cooman & Morin, P.C., Rochester, for third-party defendant-appellant Wambach Farms (Richard A. Dollinger, Rochester, of counsel).
Culley, Marks, Corbett, Tanenbaum, Reifsteck & Potter, Rochester, for third-party plaintiffs-respondents Jack Ryan's Place, Jack Ryan and Ada Ryan (Cheryl Heller Siragusa, Rochester, of counsel).
Before CALLAHAN, J.P., and DENMAN, BOOMER, O'DONNELL and SCHNEPP, JJ.
CALLAHAN, Justice Presiding.
This appeal concerns a third-party action commenced by defendants third-party plaintiffs Jack Ryan's Place, Inc., Jack Ryan, Jr., and Ada Ryan (Jack Ryan's) against Wambach Farms, Inc. (Wambach's), third-party defendant. The original action was instituted by plaintiff Todd Smith against several defendants, including Jack Ryan's, seeking damages for personal injuries suffered as a passenger in an automobile accident. Plaintiff's complaint alleges that Jack Ryan's Place, a tavern in the City of Rochester, violated New York's Dram Shop Act (General Obligations Law § 11-101 ) when it sold, served, or gave away alcoholic beverages to co-defendant Lawrence J. Guli, knowing that he was then under the influence of alcohol or intoxicated. Plaintiff Smith did not assert a direct action against Wambach's.
At an examination before trial, Guli disclosed that he was 17 years old and did not possess a driver's license on the date of the accident. He detailed the amount, manner and location of alcoholic beverages consumed on the evening prior to the accident in which the plaintiff was injured. He stated that he and two friends drove his mother's automobile to Wambach's, a retail grocery store operated by third-party defendant, where they purchased a six-pack of beer. After drinking one or two of those beers, he went to a liquor store and purchased a pint of whiskey. He drank six or seven shots of whiskey and then went to a church festival where he had two to four beers. After leaving the festival, he returned home where he found a quart of Jim Beam liquor. He and a friend each had about six shots of Jim Beam as they drove around in the friend's car. After this, they picked up plaintiff Todd Smith. They then went to another grocery store where they purchased an eight-pack of beer. While he and his friend split seven beers, plaintiff drank the other one. They went back to the church festival where they consumed some more beer and then proceeded to drive around during which time he and his friend split ten additional shots of Jim Beam. Next they traveled to the Main Place Bar where they consumed a "Kamikaze". They then went to Jack Ryan's where they had a "Boilermaker". Not surprisingly, Guli admitted that he was intoxicated at the time of the accident.
Following Guli's examination before trial, defendant Jack Ryan's commenced a third-party action seeking contribution from Wambach's and all other vendors who sold or served Guli alcoholic beverages. Wambach's brought a motion to dismiss the third-party complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action. In its motion papers, Wambach's asserted that public policy prohibits one tortfeasor from obtaining contribution or apportionment of damages in the circumstances of this case. On this appeal from Special Term's summary denial of the motion to dismiss, Wambach's maintains that Jack Ryan's is precluded from maintaining the third-party action since its own wrongful and illegal conduct was in direct violation of fundamental New York public policy.
Wambach's relies heavily on the rationale in Barker v. Kallash (63 N.Y.2d 19, 479 N.Y.S.2d 201, 468 N.E.2d 39 affg. 91 A.D.2d 372, 459 N.Y.S.2d 296), which prohibits a party from establishing a claim for damages based on his own wrongful conduct. In Barker, an infant plaintiff, who was injured while constructing a pipe bomb, an illegal activity, attempted to maintain a tort action against the 9 year old defendant who allegedly sold him the firecrackers from which the gunpowder used to construct the bomb was obtained. The Court of Appeals, in precluding the action, stated that "when the plaintiff's injury is a direct result of his knowing and intentional participation in a criminal act he cannot seek compensation for the loss, if the criminal act is judged to be so serious an offense as to warrant denial of recovery.... rule is grounded in public policy and holds that a claimant whose injuries are the direct result of his commission of what is judged to be a serious criminal or illegal conduct is not entitled to recover." (Barker v. Kallash, supra, pp. 25-26, 479 N.Y.S.2d 201, 468 N.E.2d 39). Third-party defendant Wambach's seeks to apply that rationale to this third-party action for contribution in a Dram Shop action.
In our view, Wambach's misconstrues the impact of Barker and fails to appreciate the distinction between an action to recover damages and an action to apportion liability among tortfeasors. Public policy considerations, that one may not profit from his own wrong (Riggs v. Palmer, 115 N.Y. 506, 511, 22 N.E. 188), do not apply to third-party actions involving contribution between joint, concurrent, or successive tortfeasors. Here, it is not a plaintiff seeking to recover damages despite his own illegal conduct, but rather a defendant, who allegedly violated New York's Dram Shop Act, seeking to recover contribution from other co-vendors, who may also have violated the statute. Hence Wambach's argument that contribution claims in Dram Shop Act actions violate the fundamental public policy of New York prohibiting recovery by one who suffers an injury while engaged in illegal conduct, is unpersuasive.
In a Dram Shop Act action, the vendor of alcohol and the intoxicated tortfeasor are "subject to...
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