Woodbeck v. M. Caputo and Associates, Inc.

Decision Date27 February 1986
Citation500 N.Y.S.2d 481,131 Misc.2d 321
PartiesWyatt J. WOODBECK, Plaintiff(s), v. M. CAPUTO AND ASSOCIATES, INC. and Steven J. Funk, Defendants. M. CAPUTO AND ASSOCIATES, INC. and Steven J. Funk, Defendants and Third Party Plaintiffs, v. Joseph M. COLLINS d/b/a the Park Lounge, Third Party Defendants.
CourtNew York Supreme Court
MEMORANDUM

JAN H. PLUMADORE, Assigned Acting Supreme Court Justice.

This action results from an accident occurring while the Plaintiff, Wyatt J. Woodbeck, was riding his bicycle home from his place of employment, The Park Lounge (a/k/a Joe Collins Restaurant). Mr. Woodbeck's bicycle came in apparent contact with a truck owned by M. Caputo and Associates, Inc. and operated by their employee, Steven J. Funk.

As a result of the accident, Mr. Woodbeck has severe and substantial injuries, including the loss of an arm. In October, 1984, he initiated an action against M. Caputo and Associates and Steven J. Funk, alleging negligence in the operation of a motor vehicle. This complaint was answered in November of 1984.

After the completion of his work shift on the date of the accident, Mr. Woodbeck allegedly remained at the bar associated with The Park Lounge and began drinking. Claiming that Mr. Woodbeck was intoxicated at the time of the accident, the defendants in the above action filed a third party complaint in May, 1985 against Joseph M. Collins, d/b/a The Park Lounge. This third party action seeks indemnification and/or contribution from the third party defendant for any damages that the defendants, third party plaintiffs may be liable for in the original suit and asserts two causes of action. The third party defendant moves to dismiss the third party complaint.

The first cause of action is grounded in common law negligence based upon the actions of the restaurant in allegedly serving alcoholic beverages to Wyatt Woodbeck to the point of intoxication. Before addressing the question of whether there was a breach of duty, it must first be established that a duty on the part of the restaurant existed at common law to those third parties contacted by its patrons. Such a duty is, of course, necessary for a cause of action to exist at common law.

In Delamater v. Kimmerle, 104 A.D.2d 242, 484 N.Y.S.2d 213, the Court states clearly that in situations such as this, common law negligence cannot be found where the contact occurs off the defendant's premises and out of the defendant's control. Additional cases support this principle, (Wright v. Sunset Recreation, 91 A.D.2d 701, 457 N.Y.S.2d 606; Schirmer v. Yost, 60 A.D.2d 789, 400 N.Y.S.2d 655; Paul v. Hogan, 56 A.D.2d 723, 392 N.Y.S.2d 766.) The duty of the restauranteur extends only as far as the area under his control.

Our facts show that the accident between the plaintiff, Mr. Woodbeck, and the defendant, third party plaintiff occurred reasonably far enough away from the premises of the third party defendant to deem it out of his control. Accordingly, no common law duty was owed to the defendant, third party plaintiff by the third party defendant.

In opposition to the motion to dismiss, the third party plaintiff cites Section 11-101 of the General Obligations Law and Section 65 of the Alcoholic Beverage Control Act as proof of the existence of a duty, and therefore a cause of action. However the first cause of action, for which the above is offered as proof claims a basis in common law negligence. The statutes relied upon create statutory duties where none exist at common law, i.e., they are inapplicable to the 1st cause of action. It is the decision of this Court that the third party complaint must be dismissed as to the first cause of action.

The second and potentially more meritorious cause of action is based upon an alleged violation of Section 11-101 of the General Obligations Law, the Dram Shop Act. It is the contention of the defendants, third party plaintiffs that, because any injury was caused by an intoxicated person or by reason of an individual's intoxicated state, they are entitled to indemnification and/or contribution from the restaurant which served the alcohol to the individual. The statute states in relevant part that:

"Any person who shall be injured in person, property, means of support, or otherwise by an intoxicated person, or by reason of the intoxication of any person, whether resulting in death or not, shall have a right of action against any person who shall, by unlawfully selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication."

In this case, the injury being claimed is the third party plaintiff's potential liability to Mr. Woodbeck in the original action. Our courts have provided for indemnification and/or contribution for injuries resulting from being cast in damages due to the wrongdoing of a third party. Cox v. Cordice, 90 A.D.2d 297, 457 N.Y.S.2d 2. And, under the law of this state, it is conceivable (though never recently so-held) that being cast in damages is indeed an "injury" within the meaning of the Dram Shop Act upon which Defendant, third party Plaintiff may sue (Streever v. Birch, 1891, 62 Hun 298, 17 N.Y.S. 195; see also 6 A.L.R.2d 798).

Nor does the statute itself foreclose the possibility of contribution by the third party Defendant. The cause of action created by General Obligations Law 11-101 is two-fold:

"(a)ny person who shall be injured ... by any intoxicated person, or by reason of the intoxication of any person ... shall have a right of action ..."

Thus, Defendants, third party Plaintiffs argue that a) the mere fact that Plaintiff was intoxicated due to the third party Defendant's fault creates ("strict") liability on the part of the restaurant without said intoxication being a proximate cause of their "injuries", or b) that the restaurant is liable because Plaintiff's alleged intoxication is the reason they will be cast in damages (see generally 65 A.L.R.2d 923).

Of course, if they are successful in persuading this Court to sustain the third party complaint, the third party Defendant would be within its rights to in turn claim over against Plaintiff for the "injuries" sustained by the Defendants (Wood v. City of New York, 39 A.D.2d 534, 330 N.Y.S.2d 923; Anderson v. Comardo, 107 Misc.2d 821, 436 N.Y.S.2d 669) at least on the negligence theory ((b) above).

It is well established that Plaintiff, or any other (allegedly intoxicated person, has neither a common law nor statutory (11-101, supra and Alcoholic Beverage Control Act § 65) cause of action against the provider of intoxicants (Moyer v. LoJim Cafe, Inc., 19 A.D.2d 523, 240 N.Y.S.2d 277, aff'd 14 N.Y.2d 792, 251 N.Y.S.2d 30, 200 N.E.2d 212). By so-stating, the potential liabilities of the parties are thus complete. If...

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5 cases
  • Strassner v. Saleem
    • United States
    • New York Supreme Court
    • February 8, 1993
    ...injured by the driver of such vehicle. (see Fowler v. Taffe, 152 Misc.2d 343, 576 N.Y.S.2d 743; Woodbeck v. M. Caputo and Associates, 131 Misc.2d 321, 500 N.Y.S.2d 481). Despite finding, however, that being "cast in damages" was conceivably within the meaning of "injury" for "Dram Shop Act"......
  • O'Gara v. Alacci
    • United States
    • New York Supreme Court — Appellate Division
    • September 22, 2009
    ...the third-party defendants failed to recognize this possibility (see Fowler v Taffe, 152 Misc 2d 343, 344 [1990]; Woodbeck v Caputo & Assoc., 131 Misc 2d 321, 322-326 [1986]), we find those cases to be unpersuasive. We hold, as other courts have, that where, as is allegedly the case here, a......
  • Ploskikh v. Vcherashansky
    • United States
    • New York Supreme Court
    • October 6, 2017
    ...failed to recognize this possibility (see Fowler v Taffe, 152 Misc 2d 343, 344, 576 NYS2d 743 [1990]; Woodbeck v Caputo & Assoc., 131 Misc 2d 321, 322-326, 500 NYS2d 481 [1986]), we find those cases to be unpersuasive. The court finds that, in order to determine whether movant has made a pr......
  • Tratt v. Washington Bldg. Mgt. Co., 2007 NY Slip Op 51006(U) (N.Y. Sup. Ct. 5/16/2007)
    • United States
    • New York Supreme Court
    • May 16, 2007
    ...in damages is indeed an 'injury' within the meaning of the Dram Shop Act upon which defendant/3rd party plaintiff may sue" (Woodbeck v. Caputo, 131 Misc 2d 321 [Saratoga County, 1986]). Finally, the court notes that the Fourth Department has stated that "[p]ublic policy considerations, that......
  • Request a trial to view additional results

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