Expert Report On Blood Alcohol Content (BAC) Does Not Prove Intoxication In Dram Shop Case (NY)
In Stanley v. Kelly, 2022 NY Slip Op 04847 (4th Dept. 2022), the decedent, Michael Stanley, died while operating a snowmobile lent to him by defendant Thomas Kelly, after they were all drinking at the Boonville Hotel. The autopsy concluded Stanley had a blood alcohol level (BAC) of .16% and his intoxication led to his accidental death. The decedent’s next of kin sued Thomas Kelly for negligent entrustment of the snowmobile to the decedent, and sued the hotel under the Dram Shop Act. On a negligent entrustment cause of action, “[t]he 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”. Further, “[t]he tort of negligent entrustment is based on the degree of knowledge the supplier of [the vehicle] has or should have concerning the entrustee’s propensity to use the chattel in an improper or dangerous fashion.” Under a Dram Shop claim, a business can be found negligent if it is proven they sold, served or provided alcohol to a person who is knowingly and/or visibly intoxicated at the time of service. At the depositions, witnesses, including Kelly, unanimously testified they did not observe Stanley to be intoxicated or unable to operate the snowmobile. Defendants moved for summary judgment arguing that they could not be held liable under the Negligent Entrustment claim and Dram Shop claim. Plaintiff’s opposition included an expert affidavit testifying that the decedent’s .16% BAC proves he would be visibly intoxicated. The trial court granted both motions and dismissed all claims.
The Appellate Court denied plaintiff’s appeal to overturn the trial court’s decision, concluding Kelly did not have any special knowledge that Stanley was intoxicated. Moreover, it is firmly established case law that “an intoxicated person should not generally be permitted to benefit from his or her own intoxication” (Shultes v. Carr, 127 A.D.2d 916, 917 [3d Dept 1987]; see also Parslow v. Leake, 117 AD3d 55, 66 [4th Dept 2014]; Dodge v Victory Mkts., 199 AD2d 917, 919 [3d Dept 1993]), courts have held that the intoxicated driver of a car, or one suing on his or her behalf, may not recover on a theory of negligent entrustment (see Shultes, 127 AD2d at 917; see also Luczak v. Town of Colonie, 233 AD2d 691, 692 [3d Dept 1996]; 1A NY PJI3d 2:28 at 351 ). The Appellate Court also determined the Dram Shop claim against the Hotel was properly dismissed because of the unanimous testimony that Stanley was not observably intoxicated. “[P]roof of a high [BAC] alone . . . generally does not establish” that a person actually appeared visibly intoxicated and, therefore, “a high [BAC] in the person served may not provide a sound basis for drawing inferences about the individual’s appearance or demeanor” (Romano v. Stanley, 90 N.Y.2d 444, 450-451 ; see McGilveary v. Baron, 4 A.D.3d 844, 845 [4th Dept 2004]).
This case follows precedent that a person cannot pursue damages for injuries sustained while he/she was intoxicated and operating a vehicle that was provided to him/her by a third-party. It also shows that an expert’s scientific conclusion on intoxication does not outweigh the testimony of witnesses who did not observe the person to be visibly intoxicated at the time of service.
Thanks to Raymond Gonzalez for his assistance on this post. Should you have any questions, please do not hesitate to contact Tom Bracken.