Dram Shop Act: Boats, Motorcycles, ATVs, and Snowmobiles

Dram Shop Act: Boats, Motorcycles, ATVs, and Snowmobiles

New York’s Dram Shop Act makes it illegal for commercial vendors to serve alcohol to persons, who are “visibly intoxicated” or under the age of 21. The majority of cases arise when an intoxicated patron leaves the establishment in a car and causes an accident. Liability is not limited, however, to accidents involving cars but has been extended to include boats, motorcycles, ATVs, and snowmobiles.

Kenneth E. Pitcoff and Andrea M. Alonso. New York Law Journal

February 03, 2021

New York’s Dram Shop Act GOL §11-101 makes it illegal for commercial vendors to serve alcohol to persons, who are “visibly intoxicated” or under the age of 21. The bar/liquor seller would be responsible if an intoxicated patron leaves the bar and injures another person. The vast majority of cases arise when an intoxicated patron leaves the establishment in a motor vehicle and causes an accident. Cases, however, are not limited to situations where motor vehicle accidents result in damages but may involve boats, motorcycles, ATVs, or snowmobiles.

Boats

In 2019 alcohol use accounted for 282 boating accidents, 113 death and 221 injuries up from 254, 101 and 204 respectively in 2018. (2020 statistics are not available). United States, Department of Homeland Security, U.S. Coast Guard, Office of Auxiliary and Boating Safety. “2019 Recreational Boating Statistics (//www.uscgboating.org/library/accident-statistics/Recreational-Boating-Statistics-2019.pdf)” Commandant Publication P16754.33; United States, Department of Homeland Security, U.S. Coast Guard, Office of Auxiliary and Boating Safety. “2018 Recreational Boating Statistics (//uscgboating.org/library/accident-statistics/Recreational-Boating-Statistics-2018.pdf)” Commandant Publication P16754.32.

These accidents often result in Dram Shop based claims. It is illegal to operate a vessel while under the influence of alcohol. See NY NAVIG §49-1(a). The definition of a vessel includes boats and jet skis. “The term ‘vessel’ shall be every description of watercraft or other artificial contrivance propelled in whole or in part by mechanical power and, which is used or capable of being used as a means of transportation over water, and which is underway and not at anchor or made fast to the shore or ground.” Supra.

 In Kohane v. Lakefront Pier Restaurant, 252 A.D.2d 962 (4th Dept. 1998), summary judgment was denied a restaurant where drivers of two boats had a boating accident after consuming alcohol. The defendant restaurant was unable to negate the possibility that alcohol was served to the “visibly intoxicated” patrons, later the boat drivers.

Visible intoxication was the issue in Lauinger v. Surf’s Out at Kismet, 134 A.D.3d 681 (2d Dept. 2015), where a boat driver had consumed alcohol at a restaurant. The driver then ran his boat aground on Nickerson Beach in Nassau County. The passengers including the plaintiff, the driver’s girlfriend, disembarked and remained near the boat. A large wave caused the boat to tip over and pin the plaintiff to the beach. Summary judgment was denied to the defendant restaurant since triable issues of fact as to whether driver was visibly intoxicated, and that intoxication was the proximate cause of plaintiff’s injuries remained.

Motorcycles

Driving a motorcycle, minibike or tri-sport while intoxicated is illegal. VTL §1192. See also, VTL §125. A Dram Shop Act claim by a third-party injured by an intoxicated motorcyclist is sustainable in New York. In Csizmadia v. Town of Webb, 289 A.D.2d 854 (3d Dept. 2001), a motorcyclist left a bar after drinking and collided with the plaintiff’s vehicle when he attempted to avoid a police roadblock while being chased by the police. The Appellate Division found the bar owner did not have Dram Shop Act liability. A bartender’s affidavit and owner’s testimony stating that the motorcyclist consumed four drinks in an hour did not prove “visible intoxication.” Plaintiffs failed to sustain their burden of proof submitting direct evidence that the motorcyclist demonstrated signs of intoxication. “It is well known that the effects of alcohol consumption: ‘may differ greatly from person to person’ *** and that tolerance for alcohol is subject to wide individual variation.” Id.

Additionally, there was evidence that the driver’s motorcycle fell over as he attempted to mount it. Plaintiff attempted to prove circumstantially that he was visibly intoxicated when served. In the absence of expert testimony on this subject the court was unpersuaded and dismissed the Dram Shop claim against the restaurant.

ATVs

As previously discussed in this article, it is illegal to drive a tri-sport while intoxicated. A Dram Shop Act cause of action was sustained in a case involving all-terrain vehicle (ATV). Lodge v. Victory Markets, 199 A.D.2d 917 (3d Dept. 1993) involved four minors who pooled their money and one of the minors bought a case of beer at a supermarket. After all, four became intoxicated at the home of one of the minors the purchaser of the beer allowed the intoxicated plaintiff to drive his ATV. The plaintiff lost control of the ATV and sustained severe injuries which left him in a persistent vegetative state.

Under the New York Dram Shop Act, it must be demonstrated that the minor to whom the liquor was sold, became intoxicated and in his intoxicated state injured a third party. In this case, plaintiff argued that the minor who purchased the beer became intoxicated and in his intoxicated state negligently entrusted the ATV to the plaintiff who, in turn, injured himself. The injured plaintiff’s father, as a parent, was permitted to state a claim under the Dram Shop Act against the defendant supermarket. Snowmobiles

NY PK REC §25.03 provides that it is unlawful to drive or operate any snowmobile while in an intoxicated condition. See also NY PK REC §25.24. The case of Guest v. Hansen, WL 456 1104 (N.D. N.Y. 2007) involved a deadly snowmobile accident with students visiting Paul Smith’s College in Franklin County, New York.

While in a student’s dorm room plaintiff’s decedent engaged in drinking games and thereafter walked to a frozen lake and continued to drink at a bonfire. Plaintiff’s decedent and a student, both helmetless, took a snowmobile onto the lake. When they failed to return, their fellow students went to look for them and found the snowmobile overturned. The sled had struck a rocky promontory. The bodies of plaintiff’s decedent and the driver of the snowmobile were found in the snow.

In dicta, the federal court (footnote 13) recognized that a Dram Shop Act would be applicable to a snowmobile case. “Of course, in appropriate circumstances, liability may be imposed under the New York Dram Shop Act. See, N.Y. Gen Oblig. Law §11-101. In this case, however, there is no allegation that the College supplied alcohol to the students.”

Thus, snowmobile caused injuries can be the basis of liability under the Dram Shop Act as are cars or other recreational vehicles.

Conclusion

Plaintiff’s and defendant’s counsel must look to commercial vendors of liquor in cases that involve personal injury. Dram Shop liability is not limited to accidents involving cars but has been extended to include boats, motorcycles, ATVs, and snowmobiles.

Any instrumentality operated by an intoxicated person can lead to liability for the vendor who illegally provided liquor to an intoxicated individual or a minor. With the increased use of Citi-Bikes, Revel scooters, electric scooters, mopeds and Segways we can anticipate an expansion of liability under the Dram Shop Act to include situations involving these novel motorized vehicles. This is especially true since many of the new instrumentalities have statutory immunity from liability or limited policies of insurance.

Kenneth E. Pitcoff and Andrea M. Alonso are partners in the firm of Morris Duffy Alonso & Faley.
Jeremy Gerstenhaber, an associate at the firm, assisted in the preparation of this article.

Reprinted with permission from the February 3. 2021 edition of the New York Law Journal © 2021
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