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UNLIKE THE GENERAL OBLIGATIONS LAW (DRAM SHOP ACT) CAUSES OF ACTION AGAINST A BAR WHICH SERVES A VISIBLY INTOXICATED PERSON WHO IS LATER INVOLVED IN A TRAFFIC ACCIDENT, A COMMON LAW NEGLIGENCE CAUSE OF ACTION APPLIES ONLY TO INJURIES CAUSED BY AN INTOXICATED PERSON ON DEFENDANT’S PROPERTY OR IN AN AREA UNDER DEFENDANT’S CONTROL AND SUPERVISION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the common law negligence cause of action against the bar (Catch 22) which allegedly served alcohol to the minor driver should have been dismissed. The driver was involved in an accident and plaintiff’s decedent, a passenger, was killed. The General Obligations Law causes of action premised on defendant’s allegedly serving alcohol to a visibly intoxicated person properly survived summary judgment. But the common law negligence cause of action would only apply to injuries which occurred on defendant’s property (not in a traffic accident which occurred after leaving defendant’s property):

Under a theory of common-law negligence, a landowner may be responsible for injuries caused by an intoxicated guest … . However, liability may be imposed only for injuries that occurred on a defendant’s property, or in an area under the defendant’s control, where the defendant had the opportunity to supervise the intoxicated guest and was reasonably aware of the need for such control … . There is no dispute that the motor vehicle accident at issue occurred on a public roadway hours after the decedent and [the driver] had left the area that was under the supervision and control of Catch 22, and thus, Catch 22 established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging common-law negligence insofar as asserted against it … . Filc v 221 Someplace Else, Ltd., 2023 NY Slip Op 04751, Second Dept 9-27-23

Practice Point: A bar which serves a visibly intoxicated person may be liable in negligence (as opposed to pursuant to the Dram Shop Act) when the intoxicated person causes injury on the bar’s property or in an area under the bar’s supervision and control. The negligence theory does not apply to traffic accidents which occur off premises.

 

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