This was originally posted on the SGR Blog.
Was Decedent “Visibly Intoxicated ”At Time He Was Served Drinks So As To Implicate Dram Act Liability?
The New York Alcoholic Beverage Law prohibits the sale of liquor to an intoxicated person. The Dram Shop Act creates a private civil cause of action against those who overserve drinks in favor of third-parties who suffer personal injuries as a result of a violation of the ABC Law. But to trigger Dram Shop liability a claimant must establish that the miscreant was “visibly intoxicated”—a fact and case specific burden.
Michael Stanley, Thomas Kelly, and five other men met at the home of Thomas and Jillian Kelly on March 17, 2017; the group left the Kelly’s home, with Stanley driving a snowmobile owned by the Kelly’s; the group stopped at the Boonville Hotel, Inc. and consumed alcohol there; and after leaving the Hotel the group got gas and began the return trip to the Kelly’s home. At that point, Stanley drove the snowmobile into a concrete overpass, resulting in his death. The autopsy report indicated the cause of death was multiple traumatic injuries due to snowmobile accident with a fixed object. The toxicology report showed Stanley had a blood alcohol concentration (BAC) of .16%. The Oneida County Sheriff’s Department concluded that speed and alcohol were the two biggest contributing factors to the single snowmobile accident.
Stanley’s heirs sued the Kelly’s and the Hotel. The Hotel cross-claimed against the Kelly’s. Motion practice to dismiss followed.
The Court was presented with the deposition testimony of various members of the group that were snowmobiling together that night, including Thomas Kelly and the five other men, together with testimony of people working at the Hotel that night, and testimony of a Sheriff’s Deputy.
Stanley was at the Kelly’s home when Thomas and the others arrived there on snowmobiles from Old Forge between 6:00 and 7:00 p.m. Stanley went inside to suit up while Thomas Kelly got his snowmobile out of the garage and warmed it up for Stanley. No one observed Stanley to have a drink in his hand at the Kelly’s home and he did not appear intoxicated. Within an hour the group left to ride to the Hotel, which was an hour trip, during which no one observed Stanley to be driving erratically or in any manner of concern. They all traveled at about 25-30 mph.
The group arrived at the Hotel around 7:00 or 8:00 p.m. and stayed for one or two hours. They ordered various appetizers, a couple of beers, and maybe a mixed drink. No one observed Stanley to appear intoxicated. He was not slurring his speech, he did not have redness in his face, and was not stumbling. The people working at the Hotel did not observe any member of the group, or any patrons in the establishment that evening, to have signs of intoxication—that group included the waitress that served the group and who observed Stanley.
Neither Thomas Kelly nor any other members of their group observed Stanley to have any difficulty conversing or to have slurring of speech, to be stumbling, or to exhibit any other signs of intoxication at all on that day. After the group left the Hotel, they stopped to get gas but did not go into the gas station, and then they began the return trip to the Kelly’s home, driving in single file at about 30-40 mph.
When Thomas Kelly noticed Stanley was not with the group at an intersection, he went across the road and found him, then called for help. Kelly and another member of the group performed CPR on Stanley until emergency personnel arrived. State, County and Village police all responded to the scene, with the Sheriff’s office taking the lead in the investigation. A Deputy spoke to the members of the group and did not observe anyone, including Thomas Kelly, to be intoxicated, but he did administer a preliminary breath test to each one of them to make sure no one was under the influence of alcohol. Everyone was allowed to leave on their snowmobiles. The Sheriff’s report concluded Stanley failed to negotiate a slight left-hand curve, his snowmobile veered off to the right of the trail and impacted the concrete overpass, ejecting him.
The Kelly’s moved to dismiss the complaint and argued that Stanley’s estate lacked standing to bring the lawsuit under a theory of negligent entrustment because Stanley’s intoxication acted as a bar to the derivative claims. The Kelly’s also argued that, if the estate had standing, there was no evidence that either of the Kelly’s knew or should have known that Stanley was intoxicated because there were no signs of his intoxication prior to the accident. As to the portion of the motion to dismiss the cross-claims of the Hotel, the Kelly’s argued that the Hotel could not be indemnified for any of their own negligence and they could not be indemnified if the Kelly’s were not negligent.
In her affidavit, Stanley’s widow claimed that her husband and Thomas Kelly had a history of drinking to the point of intoxication while together, and that their social interactions involved alcohol on prior occasions. Marshalling the deposition testimony of Kelly and the widow, the estate alleged that Kelly and Stanley were friends for most of their lives (about 40 years). During their marriage, Kelly urged Stanley to socialize and drink alcohol, and there were occasions of drunkenness while the two friends were together, including as recent to the accident as the July 4th weekend of 2016. Kelly and Stanley had gone snowmobiling together on numerous occasions that involved Kelly loaning a snowmobile to Stanley. On the day of the accident Kelly sent a text that included the image of a glass of alcohol next to it and told Stanley to bring a case of bottled water. Photos taken at the Hotel from the night of the accident showed Stanley holding a bottle of alcohol, smiling broadly, and in one image he had a reddish flush to his face, one of the other men appeared to be falling over, and both Kelly and Stanley appeared to have pupils smaller than normal.
The heirs offered the findings of the medical examiner, who concluded Stanley died from multiple traumatic injuries; the finding of four hundred cc’s of thin, tan, brown liquid that was not digested; the toxicology report finding Stanley had a BAC of .16 at the time of his death, which was twice the legal limit for operating a vehicle; and the police report findings that speed and alcohol were the biggest contributing factors to the accident.
Finally, the heirs offered the opinion of a board-certified toxicologist who reviewed the evidence in the case, including the various records from the Sheriff and the Medical Examiner, the toxicology report, medical records from the emergency room, and deposition testimony of the parties and non-parties. The expert indicated Stanley was 44 years old at the time of the accident, was 71 inches tall, and weighed 263 pounds. Relying upon that information, Stanley’s zero rate of respiration, pulse and blood pressure starting at 10:54 p.m., and the toxicology results, he opined to a reasonable degree of medical certainty on four issues, as follows:
- The amount of alcohol Stanley consumed to have a 0.16% BAC: at least 8.2+/-5 standard drinks prior to his death to achieve his BAC of 0.160% and 9.9 ±1.1 standard drinks if he started drinking alcohol at 8:30 p.m.
- The BAC Stanley would have had if he only consumed 2-3 beers prior to the accident between 8:30-9:45 p.m.: his BAC at the time of the crash incident (if all alcohol consumed was absorbed into his blood) would have been 0.005-0.025% (range 0-0.036%). If Stanley only consumed 2-3 beers, then his maximum theoretical blood alcohol concentration (if he consumed all alcohol simultaneously with immediate absorption and distribution) would have been 0.039-0.059%. So, Stanley consumed more than 2-3 beers prior to his death.
- Stanley’s stage of alcohol influence and the clinical signs and symptoms associated with his BAC at the time of the accident: based on the 0.16% BAC, Stanley would have been in the excitement stage of alcohol influence with clinical signs of loss of judgment, impairment of perception, memory and comprehension, increased reaction time, reduced visual acuity, and sensory-motor incoordination.
- Stanley’s alcohol consumption and subsequent impairment was a cause of the snowmobile crash incident.
The heirs argued that that they had the requisite standing to bring the lawsuit and that there were substantial questions of fact as to whether Thomas Kelly knew or should have known Stanley was intoxicated when he let him use his snowmobile. On the issue of standing, the heirs argued that they were “innocents,” with no negligence contributing to Stanley’s death, while Thomas Kelly had the ability to prevent the accident, and that, in any event, the heirs had standing to sue for Stanley’s injuries.
The heirs also argued the evidence was undisputed that Stanley was drunk at the time of the accident and that they contradicted the deposition testimony with unrebutted scientific evidence that Stanley would have had to consume about ten drinks prior to his death and he would have been showing signs of intoxication at the time the group left the Hotel. That, according to the heirs, together with the proof that Stanley and Thomas Kelly were planning to drink on the outing, raised a question of fact to prevent summary judgment to the Kelly’s.
The Hotel argued that the Kelly’s’ motion to dismiss its cross- claims against the Kelly’s must be denied as premature because if any of estates’ claims survived summary judgment, there would continue to be a question of fact whether Thomas Kelly should have loaned the snowmobile to Stanley. The Hotel maintained, however, that Stanley was never visibly intoxicated.
The Kelly’s’ replied that the uncontradicted testimony of the entire group of friends and the bartenders was that no one observed Stanley to be visibly intoxicated at any point prior to the accident. And, since visible intoxication was the standard, the estate could not establish a question of fact on that issue. They argued that the toxicologist’s findings were irrelevant because the standard was not decedent’s BAC, but whether he was visibly intoxicated and whether Thomas Kelly knew or should have known about that intoxication.
They further argued that the toxicologist’s opinions were pure speculation and had no support in the record, pointing to a bill of $109 for appetizers and drinks for six people to be inapposite to a claim that decedent had at least 10 drinks. The Kelly’s further argued that the claims of Stanley’s past intoxication could not establish a question of fact on his visible signs of intoxication on the night of the accident. They faulted the widow’s testimony as consisting of self-serving hearsay that contradicted her deposition testimony. The Kelly’s urged that there was no record evidence that Stanley was visibly intoxicated to anyone, including the group of six friends and the two Hotel employees that were deposed.
The Kelly’s continued to argue in reply that neither Stanley nor his estate had standing. They agreed that the case law correctly reflected the premise that estate can recover in other types of wrongful death cases of negligent entrustment, but propounded that was an important distinction where the voluntary intoxication of the decedent was involved, based on the premise that if Stanley could not have maintained the action for his own benefit, his estate could not do so.
The cause of action of negligent entrustmen states: The owner or possessor of a dangerous instrument is under a duty to entrust it to a responsible person whose use does not create an unreasonable risk of harm to others. The duty may extend through successive, reasonably anticipated entrustees. The tort of negligent entrustment is based on the degree of knowledge the supplier of a chattel has or should have concerning the entrustee’s propensity to use the chattel in an improper or dangerous fashion. To establish a negligent entrustment cause of action, a plaintiff must show that the defendant had some special knowledge concerning a characteristic or condition peculiar to the person to whom a particular chattel was given which rendered that person’s use of the chattel unreasonably dangerous. With respect to motor vehicles, an owner may be liable if he had control over the vehicle and if he was negligent in entrusting the vehicle to one who he knew, or in the exercise of ordinary care should have known, was incompetent to operate the vehicle.
The Kelly’s argued that the estate had not directed the Court’s attention to any cases in which the intoxicated driver of a car, or one suing on his behalf, was allowed to recover on the theory of negligent entrustment. Further, an intoxicated person should not generally be permitted to benefit from his or her own intoxication. Hence, the estate had no viable common-law cause of action for negligent entrustment. Since the estate’s alleged cause of action was a derivative of decedent’s claim, their claim based on the common-law theory of negligent entrustment must also fail.
The heirs urged the Court to view the case as if Thomas Kelly was driving while intoxicated, and Stanley was killed as a result of Kelly’s operation of the vehicle. Under such circumstances, both Stanley and his family would be allowed to recover for Stanley’s injuries and their loss of support. They framed the issue as the Kelly’s allowing Stanley to drive the snowmobile drunk, and argued that it was not the same as allowing a drunk person to benefit from his voluntary intoxication.
The Court found that controlling precedent clearly stated that Stanley, as an undisputedly intoxicated driver, could not recover on a theory of negligent entrustment, and neither could his heirs. Therefore, the Court was compelled to find that heirs were barred from prosecuting a negligent entrustment cause of action against the Kelly’s.
The parties agreed that Stanley was intoxicated at the time of his accident. Ironically, the Kelly’s sought to use Stanley’s intoxication as a shield to prevent them from being liable for his accident under the heirs’ theory of negligent entrustment, while at the same time arguing that Stanley did not show any visible signs of intoxication.
If the heirs were found to have standing, the Court would have had to decide if the Kelly’s met their initial burden on the motion to show that Thomas Kelly did not know and could not reasonably have known that Stanley was intoxicated when he allowed him to drive the Kelly’s’ snowmobile. The Court found that the Kelly’s met their initial burden.
But the heirs offered the opinion of a toxicologist who opined Stanley must have drank significantly more alcohol than the witnesses testified about, and would have exhibited clinical signs of intoxication based on the factors of his age, height, weight, and BAC. The heirs urged the Court to consider the long-time friendship between Stanley and Thomas Kelly and their alleged social history, as raising a question of fact on the cause of action against the Kelly’s. The Court found that, if the heirs had standing, their toxicologist and the testimony of the widow would not have been sufficient to raise a question of fact on whether the Kelly’s knew or should have known Stanley was not competent to drive their snowmobile on March 17, 2017.
The Hotel alleged that its proprietor had owned the Hotel for more than 30 years with a liquor license that had never been the object of negative action. The business, more of a family restaurant than a bar, was primarily a food business. The employees who were working on the night of Stanley’s accident had worked there for 10-12 years and about 6 years, respectively. All employees were trained not to serve anyone who was under the influence or appeared intoxicated. The Hotel’s policy was not to serve alcohol to a person who was intoxicated. While at the Hotel, Stanley’s group ordered appetizers, a couple of beers and possibly a round of shots, with credit card receipts for $109.33 for food and some of the drinks at 9:10 p.m., and $21.00 for three shots of Jameson at around 9:31 p.m. Stanley consumed one of the shots of Jameson. Neither of the Hotel employees observed Stanley to be visibly intoxicated in any manner at any time.
The Hotel argued that the heirs could not prove Stanley ever exhibited visible signs of intoxication when he was served beverages at the Hotel, which was the sole relevant question of law. The statements of everyone in Stanley’s group and the Hotel employees were consistent in that Stanley did not appear to be intoxicated at any point while the group was at the Hotel.
The heirs argued that they had established questions of fact over whether Stanley was visibly intoxicated at the Hotel through the toxicologist’s opinion and through various circumstantial evidence and testimony of various witnesses. Employees of the Hotel were only trained for signs of intoxication at the time of hire, with no subsequent training, and the employees working on the night of Stanley’s accident had been working there for 12 and 6 years. The Hotel proprietor indicated it was hard to tell if a snowmobiler was intoxicated because their faces were flushed from the cold. The Hotel employees almost never refused service to a patron for reason of intoxication. The Hotel’s food and drink orders were done manually, the credit card receipts do not reflect anything paid for by cash, there were no records of other orders.
The text messages exchanged by Thomas Kelly and Stanley leading up to the evening of the accident showed an intent to go drinking and needing water for a hangover remedy. There was a history of Stanley and Thomas Kelly getting drunk together and Stanley exhibiting poor behavior as a result. A photo of Stanley on the night of the accident showed his face was flushed and his pupils were contracted, which was a sign of his intoxication. The Hotel admitted that Stanley’s group was only there for 1-2 hours and there was no evidence Stanley drank any alcohol before arriving or after he left.
The heirs argued that any alcohol Stanley consumed must have been at the Hotel, the police concluded the accident was caused by speed and intoxication, and the BAC results proved Stanley must have had about 10 drinks during his time at the Hotel, in direct contravention of the testimony that he had only two or three drinks and did not appear intoxicated.
In reply, the Hotel argued that the heirs’ memorandum of law contained unsupported statements as to the amount of alcohol Stanley drank at the Hotel and whether he was visibly intoxicated that night. The toxicologist’s report did not conclude that Stanley was visibly intoxicated while at the Hotel, much less when he was served. The Hotel argued that the heirs had not raised any question of fact whether Stanley was visibly intoxicated at the time he was served. All the evidence indicated he was not, none of Stanley’s history had any bearing, and the only relevant inquiry was whether the Hotel illegally served Stanley alcohol on the night of the accident.
The Dram Shop Act, states, in part:
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.
The ABC Law states, in part:
No 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.
The Court found that the Hotel met its initial burden on summary judgment to show that Stanley was not served alcohol while showing visible signs of intoxication.
There was no question that the standard by which an establishment serving alcohol was to be governed in an action based on the Drain Shop Act was “visible intoxication.” When a defendant, such as the Hotel, meets its burden on summary judgment to show that there was no evidence that any witnesses observed the person served to be visibly intoxicated at the time alcohol was sold to him, a plaintiff must produce at least circumstantial evidence of the customer’s visible intoxication.
The Court of Appeals has held that the Legislature’s use of the term ‘visible,’ however, does not create a rigid requirement that that essential element of the claim be established by direct proof in the form of testimonial evidence from someone who actually observed the allegedly intoxicated person’s demeanor at the time and place that the alcohol was served.
To the contrary, the statutory language [does] not preclude the introduction of circumstantial evidence to establish the visible intoxication of the customer. The foregoing leads to the second question: the nature and quality of the circumstantial proof that will suffice to establish the ‘visibly intoxicated’ element of the claim. In cases involving substance abuse, blood and urine tests are the most common source of circumstantial proof. Blood alcohol tests are often administered when alcohol-induced intoxication is suspected, and, indeed, our statutory scheme for penalizing drunk driving utilizes a blood alcohol count of .10% or higher as a benchmark for per se intoxication. Proof of a high blood alcohol count alone, however, generally does not establish the ‘visible’ intoxication that [ABC] § 65(2) requires.
First, permitting blood and urine alcohol content to serve as an automatic substitute for perceptible intoxication would run counter to the legislative goal of requiring an innkeeper’s actual knowledge or notice of the customer’s condition as a predicate for an ‘unlawful’ sale. Second, it is well known that the effects of alcohol consumption may differ greatly from person to person and that tolerance for alcohol is subject to wide individual variation. Thus, even where it can be established, a high blood alcohol count in the person served may not provide a sound basis for drawing inferences about the individual’s appearance or demeanor.
Here, the heirs’ toxicologist reviewed the factual claims in the deposition testimony of the various party and non-party witnesses, the medical records from the emergency responders and the emergency room, the autopsy report and toxicology report, as well as the Sheriff’s Report. He considered decedent’s age, height, weight, and BAC, together with the foregoing, to reach his conclusion that decedent would have had to consume about 10 drinks to obtain the 0.16% BAC at autopsy if he started drinking at about 8:30 p.m.
None of that analysis, however, spoke to visible signs of intoxication Stanley would have been exhibiting at the time he was served at the Hotel. The expert stated that decedent “Stanley would have been in the excitement stage of alcohol influence with clinical signs of loss of judgment, impairment of perception, memory and comprehension, increased reaction time, reduced visual acuity and sensory-motor incoordination. A BAC Table level labeled as “0.09-0.25” stated a state of alcohol influence as “Excitement” and stated prominent clinical signs would be “Emotional instability; loss of judgment. Impairment of perception, memory and comprehension. Increased reaction time. Reduced visual acuity, peripheral vision & slow glare recovery. Sensory-motor incoordination; impaired balance; slurred speech. Vomiting; drowsiness.” And the Table stated that for a BAC level labeled as “0.15 or 0.20” was a stage of alcohol influence as “Excitement (Visible Intoxication)” and stated prominent clinical signs would be “>50% of social drinkers are visibly intoxicated at 0.15% and 84% of all drinkers (including heavy drinkers who develop tolerance) are visibly intoxicated at 0.20%.”
The toxicologist had no knowledge and stated no opinion as to what signs Stanley actually would have been exhibiting at the Hotel. The Sheriffs’ report and medical examiner’s opinions that intoxication played a role in the accident also were based on the toxicology report, and the emergency responders had no way to observe whether Stanley was showing signs of intoxication at the scene given his unconscious state. So the Court could not find the expert’s report sufficient, standing alone, to raise a question of fact as to whether Stanley was visibly intoxicated at the time he was sold alcohol by the Hotel.
The testimony of decedent’s widow as to the history of Stanley and Thomas’ drinking, or their intentions for that evening, had no bearing on what the Hotel employees or others observed on the night of the accident. The only additional circumstantial evidence proffered by the heirs was the widow’s interpretation of photos taken at the Hotel in which she stated a belief her husband had the appearance of intoxication due to a flushed face and the appearance of his eyes. The Court found that the heirs had not met the shifted burden with the expert report and proffered circumstantial evidence.
The Kelly’s motion for summary judgment was granted. The Hotel’s motion for summary judgment was granted. And the Hotel’s cross-claims against the Kelly’s was dismissed.