Wade Clark Mulcahy LLP

<p style="text-align: justify;">Decedent and defendant were friends for 25 years, celebrating defendant’s new home, when after a night of (prescription) drugs and alcohol, the decedent drowned in defendant’s hot tub.  Prior to the accident, decedent ingested a Xanax before going out to dinner with defendant. At dinner, the decedent had four beers, followed by a glass of wine and Ambien, upon returning. Approximately 30 minutes later, while in the hot tub, the decedent asked for another glass of wine. As the defendant returned inside, leaving decedent alone in the hot tub, the decedent drowned. The decedent reportedly had a blood alcohol level of .25 at the time it was analyzed. The decedent was suffering from cancer prior to her death and was taking certain medications as a result.</p>
<p style="text-align: justify;">In the case at bar, the defendant moved for an order granting summary judgment in her favor. The court established that a finding of negligence must be based on a breach of duty, a standard of conduct that a reasonable person would exercise under similar circumstances. Therefore, the issue before the Hon. Antonio I. Brandveen of the Nassau County Supreme Court was whether the defendant owed a duty of care to the decedent.</p>
<p style="text-align: justify;">Courts in New York “have never imposed a common law duty to protect a person from her own voluntary intoxication." Furthermore, New York has “refused to recognize a common law cause of action for injuries against those who provide alcoholic beverages.” As a friend, the defendant owed a moral duty to protect the decedent from her own voluntary intoxication, not a legal duty.</p>
<p style="text-align: justify;">However, the court recognized that “a landowner must act as a reasonable person in maintaining her property in a reasonably safe condition.” This duty is based on the landowner’s control over her property and, as such, being in the best position to identify and prevent harm to others. Because the decedent was a guest in the defendant’s home, the defendant was in a position to reasonably exercise supervision and control over the use of her property. Moreover, the defendant was aware that the decedent was under the influence of drugs and alcohol. Therefore, the defendant owed a duty of care to the decedent as a landowner according to the decision in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/07/Estate-of-De-Leo-v.-Bauman-1.pdf">Estate of De Leo v. Bauman</a></em>.</p>
<p style="text-align: justify;">The defendant successfully established her prima facie case to dismiss the complaint. As a provider of alcohol, the defendant had no duty to protect the decedent from injuries resulting from her own voluntary conduct. As the burden shifted to the plaintiff, the plaintiff successfully established that an issue of fact remained as to “whether the defendant breached her duty as a landowner.” The hot tub owner’s manual stated that “the use of alcohol, drugs, or medication before or during the use of the hot tub, may lead to unconsciousness with the possibility of drowning.” The owner’s manual also stated that those “under the influence of drugs, alcohol, or medication, should not be allowed into the hot tub.” Thus, by permitting the decedent to use the hot tub, knowing she was under the influence of alcohol and drugs, an issue of fact remained as to whether the defendant breached her duty as a landowner.</p>
<p style="text-align: justify;">Because a triable issue of fact remained as to whether the defendant breached her duty as a landowner, to take reasonable steps to prevent harm to the decedent while she she was a guest on defendant’s property, the defendant’s motion for summary judgment was denied.  We would expect an appeal of this decision.  Check back for any further treatment of the case in the future.</p>