By Christopher T. McGrath, Esq. – In New York, many people assume that when they are injured by a drunk driver, their only recourse is to bring an action against that individual. This is not always the case. If prior to the collision, the intoxicated individual was sold drinks by another individual or establishment while he or she was visibly intoxicated, the injured person can bring a claim against the seller of alcohol under New York’s “Dram Shop Act.”
Under General Obligations Law §11-101: “Any person…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 unlawfully selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.”
This statute imposes an absolute liability against the seller of alcoholic beverages, such as a liquor store or even supermarket.
Among other things, unlawful selling occurs when a person sells, delivers, or even gives away an alcoholic beverage to any visibly intoxicated person. Alcoholic Beverage Control Law § 65. A person is visibly intoxicated when a reasonable person would conclude, based on observation of a person’s appearance and conduct, that the person is intoxicated.
Direct evidence that the seller knew that the customer was intoxicated satisfies the “visibly intoxicated standard.” Circumstantial evidence to establish that a person was visibly intoxicated is also sufficient to establish liability under the Dram Shop Act. At the trial of cases alleging violations of the Dram Shop Act, attorneys for the injured parties have introduced testimony from other patrons of the bar who observed the person’s appearance and demeanor, as well as an expert affidavit from a forensic toxicologist to establish that a seller continued to sell alcohol to a visibly intoxicated person. Marconi v. Reilly 254 AD 2d 463 (2nd Dept 1998); Roy v. Volonino 262 AD 2d 546 (2nd Dept 1999).
When consulting with a New York lawyer about a car accident case, an injured victim should make sure that the lawyer is experienced in conducting exhaustive factual investigations before a lawsuit is even filed. This investigation should extend to determining whether or not the driver was intoxicated, and, if so, whether there is a potential Dram Shop claim against another party.
New York lawyer Christopher T. McGrath, Esq. New York City Lawyer experienced in car accident cases
