Similar local laws have been enacted in Suffolk and Westchester counties and elsewhere.1 It is not a defense that the host did not actively furnish or participate in providing the alcoholic beverages. Rather, the operative act is to “knowingly allow consumption.” Thus, mere acquiescence in the consumption on site even if the beverages were obtained elsewhere is probably sufficient under the social host laws. For example, it was reported in Newsday on Sunday May 10, 2009, that the police were called when a fight erupted while underage drinkers were partying at an end-of-semester house party near Hofstra University. Newsday reported that the occupants of the house could be charged under the Nassau County law even though the hosts claimed that the minors provided their own alcohol.2
Compensatory civil recourse for victims of underage drinking may be sought under General Obligations Law §11-100. This statute imposes tort liability for unlawfully furnishing alcoholic beverages to legally underage persons whose intoxication causes injuries. It is a legislatively created exception to the common law which habitually has been construed narrowly by the courts.
G.O.L. §11-100 provides in pertinent part:
This statute is distinguishable from General Obligations Law §11-101 (the Dram Shop Act), which is applicable to commercial liquor purveyors such as bars and restaurants and requires a commercial sale of alcohol to an intoxicated person.3 To sustain a claim under G.O.L. §11-100, it must be demonstrated that the defendant knowingly furnished or unlawfully assisted the underage person in procuring alcoholic beverages.
Court of Appeals’ Analysis
In Rust v. Reyer, 91 N.Y.2d 355, 670 N.Y.S.2d 822 (1998), the Court of Appeals, expressing concern that underage drinking is a significant societal problem, expansively construed the meaning of “unlawfully furnishing,” or “unlawfully assisting in procuring alcoholic beverages” under the statute. In Rust, the 17-year-old defendant, Heidi Reyer, planned a party in her parents’ absence. She permitted a local fraternity to bring beer to the party and charge guests a fee for unlimited access to this liquor. She agreed to store and serve the beer at her party in exchange for a portion of the proceeds. At the party, plaintiff was struck and injured by an intoxicated guest.
In evaluating defendant’s culpability in Rust, the Court of Appeals held that liability under G.O.L. §11-100 could be imposed upon a party who played an “indispensable role” in “a scheme to make alcohol available” to under-aged persons. Although defendant herself never served alcohol to any of the guests, she gave permission to serve alcohol at the party, provided storage for the kegs and profited from the sale of the beer. The court held that these facts, if proven at trial, would show that her role could be viewed as part of a deliberate plan to provide, supply or give alcohol to underage persons. She was clearly more than an unknowing bystander or “innocent dupe” whose premises were used by other minors seeking to drink. The court further observed that “she was more than a passive participant who merely knew of the underage drinking and did nothing else to encourage it.”
Thus, to sustain a claim under General Obligations Law §11-100, a plaintiff must demonstrate that defendant knowingly furnished or unlawfully assisted the intoxicated underage person in procuring alcoholic beverages. A defendant may be held liable if it is determined that he or she played an indispensable role in a deliberate scheme to make the alcohol available to underage persons. However, a defendant who was only an unknowing bystander or passive participant who merely knew that there was underage drinking and did nothing to encourage it, will not be held liable.4
Moreover, General Obligations Law §11-100 requires a showing that the very minor to whom the intoxicant was sold or furnished actually became intoxicated and in his or her intoxicated state injured a third party. Clearly, a bar or commercial establishment may be held liable under this statute where there is a sale of an alcoholic beverage to an underage patron who subsequently causes injury while in an inebriated state.
Even if the criteria for liability under G.O.L. §11-100 or §11-101 are not ultimately proven, there may be a viable claim under principles of common law negligence and it is important to plead this cause of action. A “landowner” may be liable for injuries sustained by persons on his property where there is a proven violation of a landowner’s duty to act in a reasonable manner to prevent harm to those on their property. This includes the duty to control the conduct of third persons where it is reasonably foreseeable that harm may ensue.
In D’Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1 (1987), the Court of Appeals recognized that a landowner’s duty to act in a reasonable manner to prevent harm to those on their property may extend to responsibility for injuries caused by an intoxicated guest. However, such liability is premised upon the opportunity to control and supervise the intoxicated person. In D’Amico, defendant was held not to be liable for the off premises accident caused by a motorist who became intoxicated on defendant’s premises.
There is no shortage of actions arising out of injuries sustained after the free flow of alcohol to minors during parties hosted by a child in the household, either with or without the knowledge of his or her parents. Generally, under these circumstances, claims are interposed against both the child and the parents. For example, in Lane v. Barker, 241 A.D.2d 739 (3rd Dept. 1997), plaintiff was injured in an altercation with an intoxicated guest at a party hosted by defendants.
The evidence showed that the parents neither furnished the alcoholic beverages consumed at the party nor provided funds to purchase the drinks. Thus, they could not be held liable under G.O.L. §11-100. However, such was not the case for their son as the evidence showed that he did actually furnish alcoholic beverages. The question with respect to the imposition of liability under §11-100 was whether the assailant was inebriated. The court refused to dismiss the action for common law negligence against any of the defendants. The record revealed that the parents were home when the altercation took place. There was sufficient evidence from which it could be inferred that they knew or should have known that many of the alcohol-imbibing guests were minors. Under the circumstances, a question of fact existed as to whether it was foreseeable someone would get drunk, engage in a fight, and cause injury to a third party.
Lower Court Decisions
A review of recent lower court decisions illustrates the importance of alleging both statutory and common law claims. For example, in Doherty v. Fisher, 2008 WL 627599 (Sup. Ct. Nassau Cty. 2008), plaintiff was injured in an altercation at a gathering at defendants’ home. Alcoholic beverages were available to underage guests. The parents were away and had forbidden the serving of alcohol at the party. As such, the claim under GOL §11-100 was dismissed as to them. However, there was evidence that their son had not only offered beer to his guests, but also made other liquor available at the party. As such, his motion to dismiss the claims asserted against him under GOL §11-100 was denied. However, the common law action against the son, as well as the absent parents, was dismissed because neither he nor his parents were present at the time of the altercation and there was no evidence that it was foreseeable.
In Torsiello v. Green, 2008 WL 583824 (Sup. Ct. Suffolk Cty. 2008), plaintiff was struck in the eye with a piece of wood at a party while two guests were swinging at beer bottle caps. The underage guests were consuming beer which had been brought to the party. The court found that the defendant parents were merely passive participants who, at most, knew of the underage drinking but did nothing to encourage it. Further there was no evidence that the guests who were playing “beer cap bottle baseball” were intoxicated at the time of the alleged assault. As such, the cause of action under G.O.L. §11-100 was dismissed. However, the court denied defendants’ motion to dismiss the cause of action for common law negligence.
The evidence indicated that the parents knew or should have known that their son had planned a party for that evening at which most guests were minors. Plaintiff raised an issue of fact as to whether defendants knew or should have known that underage drinking was taking place in their home. There was a question of fact as to whether defendants acted reasonably in permitting the minors to gather on the premises under the circumstances.
In Steinhaus v. Duvernoy, 2008 WL 169749 (Sup. Ct. Suffolk Cty. 2008), the infant plaintiff was visiting his father, a defendant in the action, who was hosting a party for adults. The daughter of his father’s girlfriend was also hosting a party for her teenage friends at the same premises. Plaintiff testified that everyone at the daughter’s party was drinking. Plaintiff was injured in an altercation with a teenage guest who had been drinking at defendants’ premises. There was no evidence that defendant father was aware of, or had given permission for the consumption of alcoholic beverages by the under-age guests or that he furnished or procured the beverages for them.
The court held that the father was solely a passive participant who, at most, knew about the drinking but did nothing to encourage it. Moreover, there is no evidence that the two male assailants were intoxicated at the time of the alleged assault. Thus the court dismissed the complaint insofar as it was based on General Obligations Law §11-100.
However, the court did not dismiss the action for common law negligence. Defendant testified that he observed his girlfriend’s daughter yelling at the assailants prior to the incident. The defendant did not take action. Thus, there was a question of fact as to whether the defendant acted reasonably in permitting the alleged assailants to remain on his premises under the circumstances. The court held that homeowners have a duty to act in a reasonable manner to prevent harm to those on their property. This includes the duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control.
The procedural circumstances were more unusual in O’Neill v. Ithaca College, 56 A.D.3d 869, 866 N.Y.S.2d 809 (3d Dept. 2008). Plaintiff, an intoxicated 19-year-old college student, was severely injured in a fall from a third-floor balcony appurtenant to a student apartment on the school campus. Plaintiff and her parents commenced an action against the college, alleging that the balcony’s inadequate railings constituted a dangerous condition that caused her fall. She was unable to bring suit against her hosts, the tenants, because GOL §11-100 does not permit a plaintiff to maintain this cause of action in her own favor by reason of her own intoxication.5 However, her defendant commenced a third-party action seeking contribution from the roommates who shared the apartment.
The gravamen of the third-party action was that the roommates violated G.O.L. §11-100 in procuring or assisting in the procurement of alcoholic drinks for the plaintiff. The court noted that neither of the roommates who moved to dismiss the action actually purchased or contributed any money for the alcohol at the party. However, one of them admitted that he drove another third-party defendant to the store so that he could do so. He also admittedly drank a “shot” of liquor with plaintiff at the party.
The court held that the evidence raised a question of fact as to whether this third-party defendant participated in a scheme to furnish alcohol to underage individuals by assisting in furnishing alcohol to plaintiff. The court found that there was no proof that the other moving third-party defendant was anything other than a “passive participant who merely knew of the underage drinking and did nothing else to encourage it.” In a subsequent decision, the court dismissed the action against the roommate for whom the surprise birthday party was held.6 The court noted that simply knowing about underage drinking does not by itself trigger potential statutory liability.
We conclude our cautionary exposition by wishing our readers and their families a safe, sunny, and happy summer season.
Robert S. Kelner is the senior partner at Kelner and Kelner. He is cochairman of the New York County Lawyers Civil Trial Practice Course. Gail S. Kelner is an attorney with the firm.
Endnotes:
1. It is interesting to note that an 18-year-old minor can be held liable in Nassau and Suffolk as a social host for serving alcohol to minors under the age of 21. The Westchester legislation corrected this anomaly by setting the age of liability at age 21.
2. Matthew Chayes and Sophia Chang, Newsday, 5/10/09, p. A20, 3 “Snared in Social Host Violation.”
3. The Dram Shop Act, G.O.L. §11-101, is predicated upon “unlawfully selling or unlawfully assisting in procuring” the sale of liquor to or for an already intoxicated person (not limited to minors) and must be read in conjunction with the Alcoholic Beverage Control Law §65 which prohibits the sale of alcoholic beverages to “any visibly intoxicated persons.”
4. See also, Sherman by Sherman v. Robinson, 80 N.Y.2d 483, 591 N.Y.S.2d 974 (1992).
5. Searley v. Wegman’s Food Markets, 24 AD3d 1202 (4th Dept. 2005); Sheehy v. Big Flats Community Day, 73 N.Y.2d 629 (1989).
6. O’Neill v. Ithaca College, 876 N.Y.S.2d 784 (3d Dept. 2009).
