Holiday Hazards When the Cup Runneth Over
In their Trial Practice column, Robert S. Kelner and Gail S. Kelner discuss potential causes of action which may lead to recovery against a negligent innkeeper.
November 26, 2018 at 02:45 PM
12 minute read
Thanksgiving ushers in what should be a joyous holiday season filled with parties and good cheer—and sometimes too much good cheer. It is timely, if perhaps a bit Scrooge-like, to examine the dangers lurking in excessive alcohol consumption which is certainly heightened at this time of year. Festivities taking place in pubs and bars may result in inebriated patrons becoming rambunctious or combative and causing injury. In this column, we will discuss potential causes of action which may lead to recovery against a negligent innkeeper.
Many of us may think first of the Dram Shop Act as the predicate for imposing liability on establishments where alcoholic beverages are served to an already visibly intoxicated patron, who may be slurring his words and subsequently throws punches. However, any claim against a commercial purveyor of alcohol, such as a bar, pub, restaurant, liquor store, or other seller, for the on-premises violent acts of an unruly patron, should likely also include a cause of action for common law negligence. Recent case law has shown the importance of considering both of these causes of action. The legal criteria to establish liability under each of these theories are different, but one or both may be supported by the facts in a particular case.
General Obligations Law §11-101
At common law, one who provided intoxicating liquor was not legally responsible for the tortious acts of an intoxicated person, who alone could be held responsible for his or her conduct arising out of excessive alcohol consumption. The Dram Shop Act (General Obligation Law §11-101) was enacted to remedy this situation, by providing for the imposition of liability against a commercial establishment, for “unlawfully selling or unlawfully assisting in procuring” the sale of liquor to or for an already intoxicated person. General Obligations Law §11-101 provides in pertinent part:
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, 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 such action such person shall have a right to recover actual and exemplary damages.
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