The Dram Shop Law and its restrictions against "guilty participation."

Today's New York Law Journal has a tragic case that analyzed Dram Shop's bar to plaintiffs who are drunk themselves, and to derivative plaintiff's who "procured the plaintiff's intoxication." The case is Oursler v. Brennan, NYLJ, September 3, 2009, at 41, col 3 4th Dept, Peradotto, J.

The facts are sad. And sadly enough, I read cases like this everyday.

In 2002, a husband and wife attended a Halloween party at a bowling alley upstate. Throughout the course of the night, the wife consumed approximately 6 drinks, 2 of which her husband bought approximately two hours apart. At approximately 1:30 a.m., the couple was involved in an altercation that spilled into the parking lot.

The husband got injured and an ambulance transported him to a hospital. A police officer who arrived in response to the altercation, escorted the wife to her mother's house. The wife, erroneously thinking that the officer drove her husband to the precinct, decided to walk to the precinct to find him. She was dressed in an all-black witch costume and walking down a dark road. While she was walking, a driver clipped her with his side-view mirror. The driver went home and called 911. In response, another police officer rushed en route to the driver's house. While driving, the officer ran over the wife, who was laying in the road. She died instantly.

Undisputed is the fact that the wife-decedent was intoxicated when she was killed. Her estate, naming her husband as a derivative plaintiff, sued the bowling alley for the Dram Shop violation of serving her while she was visibly intoxicated. (General Obligations Law §11-101). Her estate also sued the driver who first clipped her with his side-view mirror. The decedent's Dram Shop claim against the bowling alley failed because a person cannot maintain a cause of action under the Dram Shop Act for injuries as a result of that person's own intoxication. This exception is a common law development to the statute.
Issue: Does the husband's loss-of-support claim also fail since he bought her drinks that night?

The answer to this depends on whether or not he "procured his wife's intoxication." If yes, he is a "guilty participant" and his claim fails.

Judge Peradotto ruled that this cannot be answered either way as a matter of law. Summary judgment was denied and this issue must be decided by a jury. The court found that the husband's act of buying his wife two drinks spaced two hours apart was not "affirmative" enough to conclude that he "caused" or "procured" her intoxication.
A note on causation. Proving causation in a Dram Shop violation is a lesser standard than that required in a negligence action. Dram Shop requires a "reasonable or practical connection." As such, the presence of intervening acts or independent wrongdoing does not sever causation. As you can imagine, the bowling alley is claiming that the manner in which the wife was killed was unforeseeable thus lacking causation.
Since the husband's loss-of-support claim was reinstated, this case will either settle or go to trial. I will follow this case to its outcome.
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