Valicenti v. Valenze

• Decision Date: 09 May 1985
• Citation: 488 N.Y.S.2d 834,108 A.D.2d 300
• Parties: Vincent R. VALICENTI, Individually and as Parent and Guardian of Margaret Valicenti et al., Infants, Respondent, v. Albert M. VALENZE et al., a Partnership Doing Business as the Brass Ring, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 834

488 N.Y.S.2d 834

108 A.D.2d 300

Vincent R. VALICENTI, Individually and as Parent and Guardian of Margaret Valicenti et al., Infants, Respondent, v. Albert M. VALENZE et al., a Partnership Doing Business as

the Brass Ring, Appellants.

Supreme Court, Appellate Division,

Third Department.

May 9, 1985.

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

Denton, Keyser, LaBrecque & Moore, Elmira (Peter C. Buckley, Elmira, of counsel), for respondent.

Before MAHONEY, P.J., and CASEY, WEISS, KANE and LEVINE, JJ.

LEVINE, Justice.

This action was brought by plaintiff against defendants as partners operating a bar in the City of Elmira and arises out of the death of Judy H. Valicenti, plaintiff's wife and the mother of his children. The complaint alleges that defendants unlawfully and negligently sold the deceased alcoholic beverages while she was intoxicated and, as a result, she was killed in an accident while driving her automobile from the bar. The single cause of action claims damages in negligence and under the Dram Shop Act (General Obligations Law § 11-101) for plaintiff's and the children's loss of "support, maintenance, care, nurture, love, guidance, training and education". Pretrial discovery disclosed that the deceased had left her family some 10 months before the accident, was contemplating divorce, and was not contributing toward the family support but, in fact, was being partially supported by her husband. Defendants moved for summary judgment on the grounds that plaintiff and his children suffered no loss of support for which they can recover under the Dram Shop Act and that their remaining claims for damages are invalid as a matter of law. They appeal from the denial of that motion.

In contending that plaintiff's evidence was legally insufficient to establish that he and the children were "injured in * * * means of support" (General Obligations Law § 11-101[1] ), defendants principally rely on Volans v. Owen, 74 N.Y. 526, followed in McNally v. Addis, 65 Misc.2d 204, 223, 317 N.Y.S.2d 157, for the proposition that a Dram Shop Act cause of action based on lost support is only maintainable by one who was actually accustomed to receiving support from the intoxicated person and was reduced to a state of dependency by the loss incurred. Defendants argue that this necessary element of plaintiff's cause of action was conclusively negated in pretrial discovery, and that plaintiff's proof, that his wife was working and receiving educational training to increase her earning potential for future contributions to the family's resources, was too speculative and remote as a basis of showing loss.

For the reasons that follow, we decline to apply such a restrictive interpretation of the statute. First, the original Dram Shop Act statute (L 1873, ch 646) was entitled "An Act to Suppress Intemperance, Pauperism and Crime", and a reading of Volans v. Owen (supra) and other early cases discloses that the courts drew heavily on that statement of legislative purpose in construing the scope of the new civil remedy thereby created. The quoted purpose was not, however, carried forward in various later revisions and reenactments of the Dram Shop Act, through its incorporation in its present form in Civil Rights Law § 16 (L 1921, ch 157). Therefore, it cannot be assumed that the original, narrow statutory purpose was the sole motivation for the subsequent Dram Shop Act legislation. Indeed, more recent cases focus broadly on the deterrent and remedial purposes of the act through its imposition of strict liability (see Wright v. Sunset Recreation, 91 A.D.2d 701, 457 N.Y.S.2d 606; Matalavage v. Sadler, 77 A.D.2d 39, 43, 432 N.Y.S.2d 103; Mitchell v. The Shoals, Inc., 26 A.D.2d 78, 79, 271 N.Y.S.2d 137, affd. 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21). Accordingly, the early legal history of the Dram Shop Act and its correspondingly rigorous interpretation in the case law is not controlling.

Second, both Volans v. Owen (supra) and McNally v. Addis (supra) involved loss of support claims by parents for the death or disablement of their minor children who were sold alcoholic beverages. Such children owed no duty of support to the plaintiffs in those cases. Here, however, the deceased was directly chargeable by statute for both spousal support and child support until each child's 21st birthday (Family Ct Act §§ 412, 413, as amended by L 1980, ch 281, §§ 27, 28). Although there is a dearth of modern New York decisional law construing the means of support provisions of the Dram Shop Act in cases brought on behalf of a spouse or a dependent child, contemporary cases in other jurisdictions applying similar statutes find the distinction critical, relaxing the requirements of proof of actual loss or dependency when the claimed lost support was from a parent or spouse (see Paine v. Water Works Supply Co., 269 N.W.2d 725, 731 [Minn.]; Hollerud v. Malamis, 20 Mich.App. 748, 761-762, 174 N.W.2d 626, 634; Grant v. Paluch, 61 Ill.App.2d 247, 256-257, 210 N.E.2d 35, 41; Annot., 4 A.L.R.3d 1332, 1338-1339). Lastly, on this issue, it was early recognized that, while the Legislature created a new cause of action in the Dram Shop Act, it "made no change in the rules of ascertaining and determining the damages, or the limits of liability * * * but left them subject to the existing rules of damages, and to the facts established upon the trial" (Reid v. Terwilliger, 116 N.Y. 530, 533-534, 22 N.E. 1091). This thus suggests that we may give effect in Dram Shop Act cases to more current developments in the rules regarding damages, which generally do not require proof of certain losses once a wrong has been established, but permit the jury to consider all of the facts and circumstances having any tendency to show damages or their probable amount (Duane Jones Co. v. Burke, 306 N.Y. 172, 192, 117 N.E.2d 237). Applying this standard in wrongful death actions, the courts have permitted some recovery on facts analogous to those of the instant case (Didocha v. State of New York, 54 A.D.2d 786, 387 N.Y.S.2d 752; Freeman v. Corbin Ave. Bus Co., 46 A.D.2d 747, 360 N.Y.S.2d 747). Given the loss by plaintiff and the children of the deceased as a legal source of support, together with her contributions before death and her earning potential, we likewise find that a question of fact on damages for injury to the means of support was presented.

Next to be considered is defendants' claim that the Valicenti children's loss of their mother's "care, nurture, love, guidance, training and education" is not compensable under the Dram Shop Act and that, therefore, partial summary judgment should have been granted at least to the extent of dismissing that portion of their cause of action. In addition to the remedy afforded in the original act for losses to person, property or means of support, since 1921 (L 1921, ch 157), the Act has provided for recovery to a person "injured * * *otherwise * * * by reason of the intoxication of any person" (General Obligations Law § 11-101[1] [emphasis supplied] ). We have not been cited to any legislative history regarding this change, but obviously the "otherwise" was intended to broaden the statutory remedy to include additional harms caused by the unlawful sale of alcoholic beverages. In some jurisdictions, this provision has been held to cover the full range of relief sought here, including recovery for loss of love, comfort and companionship occasioned by the death of a parent or spouse (see Podbielski v. Argyle Bowl, 392 Mich. 380, 220 N.W.2d 397; Annot., 78 A.L.R.3d 1199, 1210-1212). We are not persuaded that the remedy under our statute should be applied to that full extent. New York law has refused to entertain loss of consortium actions beyond the types of derivative claims generally recognized at common law (see De Angelis v. Lutheran Med. Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406), and has expressly rejected recovery for all forms of noneconomic loss in actions based on the death of a loved one (Liff v. Schildkrout, 49 N.Y.2d 622, 634, 427 N.Y.S.2d 746, 404 N.E.2d 1288). Without a sound basis to indicate that the additional statutory language was intended to effect such a drastic departure from long-standing State policy and practice, it would be inappropriate judicially to permit recovery under the Dram Shop Act for the children's noneconomic consortium injuries such as grief, love and loss of society (cf. id. at 633, 427 N.Y.S.2d 746, 404 N.E.2d 1288). ^*

We reach a different conclusion with respect to the claims on behalf of the Valicenti children regarding the loss of their...