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THE DRAM SHOP ACT DOES NOT CREATE A CAUSE OF ACTION IN FAVOR OF THE INTOXICATED PERSON (SECOND DEPT).

The Second Department, in this wrongful death case, determined the Dram Shop Act cause of action was properly dismissed because the act does not create a cause of action in favor of the intoxicated person. Here the complaint alleged defendant Bombace Wine & Spirits, Inc. was liable for selling alcohol to plaintiff’s decedent, who died of alcohol poisoning and was referred to as a habitual drunkard. Although plaintiff’s decedent’s family members could sue under the Dram Shop Act for “means of support” damages, there no were allegations of “means of support” damages in the complaint:

The Dram Shop Act “creates a cause of action in favor of a third party injured or killed by an intoxicated person, but it does not create a cause of action in favor of the intoxicated person” … or his or her estate … . Thus, the first cause of action to recover damages under the Dram Shop Act fails to state a cause of action insofar as it is asserted on behalf of the decedent’s estate, notwithstanding the addition in the amended complaint of the allegation that the decedent’s intoxication at the time of the alleged illegal alcohol sale was “involuntary” … . Further, because the decedent, were she alive, would not possess a viable cause of action against the Bombace defendants to recover damages for injuries sustained as a result of her own intoxication, her estate possesses no viable cause of action to recover damages for wrongful death (see EPTL 5-4.1 …). Estate of Tammy Colleen Feenin v Bombace Wine & Spirits, Inc., 2020 NY Slip Op 06755, Second Dept 11-18-20

 

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