Weinheimer v. Hoffman

• Decision Date: 08 December 1983
• Citation: 470 N.Y.S.2d 804,97 A.D.2d 314
• Parties: Donna G. WEINHEIMER, Plaintiff, v. Frederick W. HOFFMAN, Defendant and Third-Party Plaintiff-Respondent; Yvonne Luskin, Third-Party Defendant, and Donna J. Gall, as Administratrix of the Estate of Gerhard K. Gall, Jr., Deceased, Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 804

470 N.Y.S.2d 804

97 A.D.2d 314

Donna G. WEINHEIMER, Plaintiff, v. Frederick W. HOFFMAN, Defendant and Third-Party Plaintiff-Respondent Yvonne Luskin, Third-Party Defendant and Donna J. Gall, as Administratrix of the Estate of Gerhard K Gall, Jr., Deceased, Third-Party Defendant-Appellant.

Supreme Court, Appellate Division Third Department.

Dec. 8, 1983.

Hesson, Ford, Sherwood & Whalen, Albany (Matthew J. Kelly, Albany, of counsel), for third-party defendant-appellant.

Roemer & Featherstonhaugh, Albany (Richard E. Doling, Albany, of counsel), for defendant and third-party plaintiff-respondent.

Before SWEENEY, J.P., and CASEY, MIKOLL, YESAWICH and LEVINE, JJ.

OPINION FOR MODIFICATION

LEVINE, Justice.

Plaintiff, the widow of Roy B. Weinheimer, commenced the instant action against defendant and third-party plaintiff Frederick W. Hoffman (Hoffman) as owner of the Log Cabin Inn, a tavern in the Town of Colonie, Albany County. Her complaint sets forth two causes of action for damages arising out of the death of her husband in a collision between his automobile and a truck owned and operated by Gerhard K. Gall, Jr., who was also killed in the accident. The first cause of action asserts liability against Hoffman under the Dram Shop Act (General Obligations Law, § 11-101) for selling alcoholic beverages to Weinheimer when he was intoxicated. The second cause of action is pleaded in common law negligence. Hoffman answered the complaint and then started a third-party action against Yvonne Luskin, his employee who allegedly served the deceased and loaned him her car, and against the estate of Gall, based upon a claim that his negligent operation of his truck contributed to the happening of the fatal accident. Gall's administratrix moved for summary judgment dismissing the third-party complaint, and now appeals from the denial of her motion.

The principal question on appeal is, when a tavern owner is sued under the Dram Shop Act by the widow of his deceased vendee, may he seek contribution from another possible tort-feasor for negligently contributing to the death of that vendee? The third-party defendant advances a series of substantive, policy and procedural arguments against permitting contribution. First, it is asserted that the underlying basis for contribution requires that there be common liability to the plaintiff in the main action on the part of both the primary defendant and the person against whom he claims over. Put another way, Gall's administratrix argues that since her decedent owed no possible duty directly to plaintiff widow and is only subject to suit by the representative of Weinheimer's estate in a wrongful death action (citing EPTL 5-4.1), there can be no indirect liability imposed by way of contribution to any recovery of the widow against the tavern owner under the Dram Shop Act. We think that this argument too restrictively applies New York's tort-feasor contribution statute (CPLR art. 14). The widow's Dram Shop Act claim is for the loss of her means of support arising out of the death of Hoffman's vendee (General Obligations Law, § 11-101, subd. 1). If Gall's negligence is established, his estate is liable in a wrongful death action to the deceased vendee's distributees, including the widow, for their pecuniary loss because of his death (EPTL 5-4.4). The contribution statute does not narrowly focus on the identity of a single potential plaintiff, but points instead to the identities of potential defendants, who may claim contribution from one another if each is "subject to liability for damages for the same personal injury, injury to property or wrongful death" (CPLR 1401). The statutory right of contribution is broadly phrased, and literally applies, since both Hoffman and Gall's estate may be subject to liability for the wrongful death of Weinheimer. As distinguished commentators on the CPLR have noted, contribution lies not only as to joint tort-feasors, but also as to concurrent, successive, independent, alternative, and even intentional tort-feasors; it applies regardless of the theory or consistency of theory upon which liability may be imposed either as to the claims between them or the main claim (Siegel, New York Practice, § 172, p. 213; McLaughlin, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 7B, CPLR 1401:4, p. 363).

Clearly, the disability of the plaintiff to sue the third-party defendant directly is no impediment to a claim over for contribution. Otherwise, there could be no third-party action against a plaintiff's employer made immune from direct suit by the Workers' Compensation Law--probably the most common of all contribution cases (cf. Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288). Modern precedent also specifically supports apportionment of liability by way of contribution in Dram Shop Act cases. Thus, in Wood v. City of New York, 39 A.D.2d 534, 330 N.Y.S.2d 923 and Anderson v. Comardo, 107 Misc.2d 821, 436 N.Y.S.2d 669, tavern owners sued under the Dram Shop Act by the injured victim of their intoxicated customers were permitted to claim over against the vendees. And in Mitchell v. The Shoals, 48 Misc.2d 381, 264 N.Y.S.2d 865, affd. on other grounds, 26 A.D.2d 78, 271 N.Y.S.2d 137, affd. 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21, apportionment was also impliedly sanctioned when the plaintiff's prior recovery against the intoxicated vendee was set off against the plaintiff's recovery from the Dram Shop Act defendant.

Moreover, article 14 of the CPLR was enacted on the recommendation of the Judicial Conference, in response to the landmark contribution decision in Dole v. Dow Chem. Co. (supra). In its supporting memorandum to the Legislature, the Judicial Conference explicitly pointed out the possible application of proposed section 1401 of the CPLR to permit contribution in Dram Shop Act cases (see Twentieth Ann. Report of N.Y. Judicial Conference, 1975, p. 216).

We are equally unpersuaded by third-party defendant's dual policy arguments against permitting a claim for contribution here. She contends, first, that contribution weakens the deterrent purpose of the Dram Shop Act's imposition of strict liability against the tavern owner for serving an intoxicated customer. This argument, however, has already been undercut by the previously discussed decisions permitting a Dram Shop Act defendant to set off a plaintiff's recovery from other sources and authorizing a claim over against the vendee when the plaintiff is the victim of the vendee's...