Court Rejects Action Under “Dram Shop Act” Against Vineyard

In Parker v. Dunn, the Supreme Court, Wayne County recently granted summary judgment for defendant Hazlitt’s 1852 Vineyards dismissing plaintiffs’ claims arising from a fatal motorcycle accident.

The facts:

The action arises from a motor vehicle accident which occurred on May 31, 2009, on State Route 414 in the Town of Hector, New York at approximately 5:50 P.M. The Defendant Dunn, who was operating a vehicle owned by Defendant Woughter, was leaving Hazlitt’s Vineyard and Winery where he worked as a tasting room employee, having completed his shift for the day. Dunn proceeded to strike the motorcycles operated by Plaintiffs Gary Parker and Timothy Herkimer with his vehicle in a head-on crash. Parker was killed, and Herkimer was seriously injured. Subsequently, the Defendant Dunn was convicted in Schuyler County after his guilty plea to counts charging him with Manslaughter in the Second Degree, Vehicular Assault in the Second Degree and Driving While Intoxicated as a misdemeanor. A breathalyzer test administered almost two hours after the accident indicated that Dunn’s BAC count was .17%.

The court rejected each of plaintiffs’ four theories of recovery.

First, the court rejected plaintiff’s theory based on § 65.2 of the Alcoholic Beverages Law, which states that “[n]o person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to … any visibly intoxicated person.” It held:

The credible evidence set forth in the moving papers as supplied by the depositions of the employees on duty at Hazlitt’s on the day in question, indicate that Dunn, despite his breathalyzer results, was not visibly intoxicated on the day in question. Of more significance, case law has established that §65 of the Alcoholic Beverages Law does not give rise to a private right of action.

Second, the court rejected plaintiff’s claim based on the so-called “Social Host Law”, codified in General Obligations Law § 11-100:  “Both case law and the language of the statute itself make it clear that the law is designed to provide a right of action against a person who provides alcohol to an underage minor, who later suffers injuries due to intoxication. Underage drinking is not an issue here.”

Third, the court rejected plaintiff’s reliance on a theory of common law negligence.  Generally:

At common law, one who provided intoxicating liquor was not liable for injuries caused by the drinker, who was held solely responsible. Excessive alcohol consumption was deemed to be the proximate cause of injuries produced by the inebriate; selling or furnishing alcohol to an adult who elected to become intoxicated was not viewed as the root of the resulting harm. This analysis of common law liability for injuries based on intoxication remains controlling today, with limited statutory exceptions.

Here:  “Vicarious liability may be imposed upon Hazlitt’s only if the accident occurred on the Defendant’s property, or if Dunn was acting in the scope of his employment at the time of the collision. However, the accident occurred on a public highway approximately one mile from the winery.”

Furthermore, the court cited the Court of Appeals’ decision in Martino v. Stolzman, which held:

It has long been the rule in New York that landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property.’ In particular, they have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons. Here, (the Olivers) were no longer in a position to control (Stolzman) when he entered his vehicle and drove away. Furthermore, we agree with the dissenting Justice of the Appellate Division that requiring social hosts to prevent intoxication guests from leaving their property would inappropriately expand the concept of duty.

Plaintiff also could not establish Hazlitt’s vicarious liability under the doctrine of respondeat superior.  Under that doctrine,

an employer will be liable for the negligence of an employee committed while the employee is acting in the scope of his employment. An employee acts in the scope of his employment when he is doing something in furtherance of the duties he owes to his employer and where the employer is, or could be, exercising some control, directly or indirectly, over the employee’s activities.


There is no evidence that Dunn was acting within the scope of his employment at the time he left the Winery. He was returning home; he was not operating a company vehicle; and his actions were neither controlled by his employer, nor performed in furtherance of his employer’s business. There is no basis on which to impose liability on Hazlitt’s under the doctrine of Respondeat Superior.

Fourth, the court rejected plaintiff’s reliance on the Dram Shop Act, codified at General Obligations Law § 11-101, which provides:

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, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.

The parties conceded that whatever alcohol Dunn consumed on the fateful day he received free of charge from defendant.  Hazlitt therefore argued that there was no “sale” any any alcohol to Dunn, and therefore it cannot be liable. Furthermore, the deposition testimony of other employees suggested that Dunn did not appear to be drunk.

Plaintiffs argued that Hazlitt’s provision of free alcohol to its employees was sufficient to trigger the statute:

Counsel for the Plaintiffs argue that it was the custom of Hazlitt’s to provide a “shift change drink”, to an employee at the end of the day, which was regarded as a free job benefit. The Plaintiffs strongly contend that this gesture constituted an “economic event”, a sort of “quid pro quo” which benefitted both parties and should therefore be covered by the Dram Shop Act. The Plaintiffs also maintain that Hazlitt’s encouraged their employees to drink in the tasting room, to taste the wine when a bottle was opened, to demonstrate that they enjoyed drinking the wine themselves, even to join in a toast with the customers when a particular wine was sampled, all in order to encourage sales. The Plaintiffs maintain that the Court’s review of the activities in the tasting room should lead to the conclusion that there was a economic benefit to the Winery resulting from the employees’ actions, which would render the statute applicable.

The court, however, was not persuaded.  Specifically,

Hazlitt’s argues that a copy of the employee manual, which was given to every new employee to review, states that an employee must only consume the amount of alcohol required by their job duties, and that intoxication will subject an employee to disciplinary action, which may include termination. The testimony presented indicates that no one on the staff had ever had any reason to believe that Dunn had ever consumed impermissible amounts of alcohol. Finally, the deposition testimony of the staff is generally consistent in indicating that the Hazlitt’s management staff did not encourage their employees in the tasting room to drink.

While plaintiffs argued that “there is an economic element inherent in the conduct of Hazlitt’s tasting room practices, which should preclude the Court from dismissing the Complaint”, they were unable to produce any law to support their position.

Though the dissent in Stevens v. Spec, Inc. “stated that it was reasonable to infer that supplying free drinks in certain circumstances was often done with the hope that increased business and hence pecuniary gain, would result, thus bringing the claim within the Dram Shop Act”, the court noted that “in the 17 years since the decision was issued, no court appears to have adopted this rationale as a majority opinion.”

It also could not be said that Hazlitt’s “unlawfully procured” alcoholic beverages for Dunn.

Finally, while plaintiffs’ counsel made “a strong plea that business should take responsibility for the actions of their employees if they subject the public to dangerous situations as a result of their actions at work”, the court noted that – a “moral imperative” notwithstanding – “a defendant has no legal duty to third parties in these circumstances.”

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