The Dram-Shop Laws and its Confrontation with an Invitation to Kill

A 26 year old, together with his 26 year old girlfriend spent hours drinking at a popular bar in Southwest Florida. At around midnight they left the bar as he staggered to the parking valet outside, and produced his valet ticket. Despite his appearing visibly intoxicated (Staggering, slurred speech, blood shot eyes, lack of coordination), the valet brought his car to him. Getting behind the wheel with his girlfriend in the passenger seat, the car sped off.

About 20 minutes later the car he was driving, a Corvette, was speeding along the interstate at about 100 mph when he, the driver, lost control of his vehicle and hit the divider causing the car to flip over and in an instant became engulfed in flames. Not wearing a seat belt, the driver was thrown out of the car and struck the pavement violently. The female passenger was wearing a seat belt at the time. Both however, were killed instantly, the female being burned beyond recognition.

Several weeks after the tragedy, a lawsuit was brought by the estate of the female passenger against the bar that served the intoxicating alcohol to the driver. The bar owner had no Dram- shop insurance, and soon went out of business. The estate then brought an action against the valet company asserting that the valet, having observed the “visible intoxication” of the driver should not have delivered the Corvette to one so visibly drunk.

In what appears to be a case of first impression, the lower court dismissed the action against the valet company, holding that no duty was owed other than to deliver the vehicle in the same condition in which it was received.

The case was then appealed to an appellate court, and in a decision rendered in November of 2012, affirmed the dismissal below.

The next and probably final stop will be the Florida Supreme Court, all of which raises some extremely interesting issues involving Dram-shop laws.

While the law differs in each of the 50 states, this article will address only the New York statute which is found in Section 11-101 of the New York general obligation law.

But first, some pertinent history; Alcohol consumption dates as far back as 4200 B.C. and has followed a troubled path to this day that is at the root of many tragic accidents, not only in New York, but in the other states as well. In essence, New York’s Dram-shop laws (the word “dram” was a spoonful of gin English taverns served two patrons in the 1700s), which provide that a bar or a tavern will be held responsible in whole or in part to a third person who was injured by one who was served alcohol although “visibly intoxicated” at the time (The law also mandates that minors are not to be served intoxicating alcohol as well).

The rationale for the Dram-shop rule is that the bar employee (an agent of the owner), should reasonably foresee that an intoxicated person, made so by the bar’s action, would be so impaired as to injure a third person, thereby imposing liability upon the bar. This rule, found in the common law and based upon common sense, does not permit the intoxicated person to recover from the bar since the law does not reward an irresponsible act (drinking alcohol, getting drunk and driving).

Returning to the Florida tragedy and the liability of the parking valet who delivers a car to a visibly drunk driver, one could argue that under those circumstances, the valet should have alerted the bar owner who could have intervened by the calling for a taxi, arranging for another driver, or summoning the police. Delivering a car to a “visibly intoxicated” driver, can be an invitation to kill, and the risk of such a mishap far outweighs any liability to be suffered by the valet owner who had the opportunity, if not the duty, to intervene.

Florida’s ultimate decision therefore, should prove to be most informative, and could provide an important step toward establishing a precedent to be followed by other states, including New York.