Winje v. Cavalry Veterans of Syracuse, Inc.

• Citation: 497 N.Y.S.2d 291,130 Misc.2d 580
• Parties: Michelle WINJE, Plaintiff, v. CAVALRY VETERANS OF SYRACUSE, INC., Defendant.
• Decision Date: 30 December 1985
• Court: United States State Supreme Court (New York)

Page 291

497 N.Y.S.2d 291

130 Misc.2d 580

Michelle WINJE, Plaintiff, v. CAVALRY VETERANS OF SYRACUSE, INC., Defendant.

Supreme Court, Onondaga County.

Dec. 30, 1985.

Manes, Rifken, Frankel & Greenman, Syracuse, for plaintiff-respondent.

Sugarman, Wallace, Manheim & Schoenwald, Syracuse, for defendant-petitioner.

MEMORANDUM

J. ROBERT LYNCH, Justice.

Defendant's motion for summary judgment raises for the first time in New York the question whether damages for mental anguish, unaccompanied by any physical injury, are recoverable under the present Dram Shop Act (General Obligations Law, § 11-101).

Between eleven thirty and midnight on a dark night in January, 1985, the plaintiff was driving her car on an unlighted road winding around a development and a golf course. She suddenly saw, immediately ahead of her, an object lying in the road which she thought at first was a black plastic bag of garbage. She swerved to miss it but could not avoid striking it. Curious as to what she had struck, she pulled to the side of the road, stopped the car, and got out. It was a shocking sight: a decapitated and mutilated man's body was lying on the highway. The body was later identified and found to have had a tissue alcohol content of .03 percent. It was that of a man who had been drinking at the defendant's club and had left there to walk home. Since the accident, the plaintiff has been suffering from post-traumatic stress disorder which has manifested itself in nightmares, weeping spells, depression, insomnia, anxiety, distress, and a fear of driving and of the area of the accident.

For our purposes, section 11-101 provides:

"1. Any 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 ... shall have a right of action against any person who shall ... have caused or contributed to such intoxication; and in such action such person shall have a right to recover actual and exemplary damages." ^*

The defendant argues that there is no compensable cause of action for mental anguish in New York but its citations are all referable to common law negligence. The Dram Shop Act, however, creates "a right of action and imposes a liability not known to the common law" (Bertholf v. O'Reilly, 74 N.Y. 509, 524). It has already been held that the statute created a "new type of damages permitted to be recovered by one injured in 'means of support' " (McNally v. Addis, 65 Misc.2d 204, 209, 317 N.Y.S.2d 157, citing Volans v. Owens, 74 N.Y. 526 and Quinlan v. Welch, 141 N.Y. 158, 36 N.E. 12). We now hold that it allows another new type of damages, for mental anguish.

At a time, 1875, when the Dram Shop Act in New York permitted recovery only for those "injured in person, property or means of support" (see Laws of 1873, ch. 646), it was held that there was no ground for action for a wife for loss of the companionship of her husband whose death resulted from intoxicants sold him by the defendant (Hayes v. Phelan, 4 Hun. 733). This holding conforms to a pattern generally applicable throughout the country--where the statute limits recovery to injury in person, property, or means of support, no recovery for mental anguish is allowed; where the statute expands recovery beyond injury in person, property or means of support, recovery for mental anguish is allowed (see 78 ALR3d 1193, Annotation: Recovery under Civil Damage [Dram Shop] Act for Intangibles such as Mental Anguish, Embarrassment, Loss of Affection or Companionship, or the Like, § 2[a], p. 1203).

In his scholarly analysis of the Dram Shop Act in 1970, Justice Joseph F. Gagliardi, Jr., in acknowledged obiter dicta, noted, "The phrase 'or otherwise', was added in 1921, and may permit recovery for mental distress" (McNally v. Addis, 65 Misc.2d 204, 223, 317 N.Y.S.2d 157).

The Michigan Dram Shop Act for...