Tort Law for Paralegals Chapter 14, Fraud, Misrepresentation, and Business Tort

Gutierrez v Divine, 103 A.D. 3d 1185, 958 N.Y. 2d 566 (2013)

Supreme Court, Appellate Division, Fourth Department, New York. Gutierrez v. Devine 958 N.Y.S.2d 566 (N.Y. App. Div. 2013) . 103 A.D.3d 1185 . 2013 N.Y. Slip Op. 650 Decided Feb 1, 2013 2013-02-1 the time, purchased beer from the store using false 568 identification. The four minors then drove *568 to a Samia GUTIERREZ, Plaintiff-Appellant, v. beach on Lake Erie, where they drank beer for Pierce A. DEVINE, Kyle Tatum, Defendants, and approximately two hours. When it started to rain, Lutz Brothers, Inc., Defendant-Respondent. hey dropped Tatum's car off at Devine's house, Campbell & Shelton LLP, Eden (R. Colin and drove in Devine's car to the home of Tatum's Campbell Of Counsel), for Plaintiff-Appellant. girlfriend to pick up a movie. The accident Lippman O'Connor, Buffalo (Robert H. Flynn Of occurred when the group was driving back to Counsel), for Defendant-Respondent. Devine's house. Plaintiff appeals from an order that, inter alia, granted defendant's motion for summary judgment dismissing the second 567 *567 amended complaint against it. We affirm. Campbell & Shelton LLP, Eden (R. Colin Campbell Of Counsel), for Plaintiff-Appellant. We note at the outset that, although the second Lippman O'Connor, Buffalo (Robert H. Flynn Of amended complaint asserts a violation of General Counsel), for Defendant-Respondent. Obligations Law $ 11-101, there is no claim or PRESENT: SMITH, J.P., PERADOTTO, evidence that defendant sold alcohol to anyone LINDLEY, SCONIERS, AND VALENTINO, who was visibly intoxicated at the time of the sale JJ. in violation of that statute ( see Williams v. TeDave Enters., 242 A.D.2d 861, 861, 662 N.Y.S.2d 913). MEMORANDUM: The analysis is therefore limited to whether plaintiff has a viable claim under General Plaintiff commenced this negligence and Dram Obligations Law $ 11-100. That statute provides Shop action seeking to recover damages for in relevant part that "[any person who shall be injuries she sustained when the vehicle in which injured in person ... by reason of the intoxication she was a passenger struck a tree. The vehicle was operated by defendant Pierce A. Devine. Devine, a or impairment of ability of any person under the minor, tested positive for alcohol after the age of [21] years ... shall have a right of action to recover actual damages against any person who accident, and was charged with operating a motor knowingly causes such intoxication or impairment vehicle while under the influence of alcohol of ability by unlawfully furnishing to or (Vehicle and Traffic Law $ 1192[3] ) and unlawfully assisting in procuring alcoholic vehicular assault in the second degree (Penal Law beverages for such person with knowledge or $ 120.03[1] ). Before the accident, defendant Kyle reasonable cause to believe that such person was Tatum, Tatum's girlfriend, and plaintiff drove to a under the age of [21] years" ( id. [emphasis added] gas station/convenience store owned and operated by Lutz Brothers, Inc. (defendant), and Devine . Thus, the General Obligations Law "explicit [ly] met them there. Tatum, who was 17 years old at .. limit[s] liability for injuries caused by an intoxicated minor to the unlawful supply of casetext Gutierrez v. Devine 103 A.D.3d 1185 (N.Y. App. Div. 2013) alcoholic beverages to that person " ( Sherman v. 569 window, and *569 the driver waved to the store Robinson, 80 N. Y.2d 483, 487, 591 N.Y.S.2d 974, clerk ( id.). There is no such evidence in this case. 606 N.E.2d 1365). "The plain language of the Here, the record establishes that none of [Dram Shop Act] specifies that the individual who defendant's employees knew Tatum, Devine, or by reason of intoxication causes injury must be the any of their companions, and the minors likewise very person to whom defendant furnished the did not know any of defendant's employees. alcoholic beverages, or for whom they were Further, unlike in Krampen, plaintiff submitted no procured" ( id.; see Jacobs v. Amodeo, 208 A.D.2d evidence that any of defendant's employees saw 1171, 1172, 618 N.Y.S.2d 120;Dodge v. Victory the people or activities in the parking lot. Thus, Mkts., 199 A.D.2d 917, 919, 606 N.Y.S.2d 345). because plaintiff's injuries were not caused by the Further, "liability under General Obligations Law minor who purchased the alcohol, there can be no $ 11-100 may be imposed only on a person who liability under the Dram Shop Act ( see Sherman, knowingly causes intoxication by furnishing 30 N. Y.2d at 487, 591 N.Y.S.2d 974, 606 N.E.2d alcohol to (or assisting in the procurement of 1365;Krampen, 242 A.D.2d at 914, 664 N.Y.S.2d alcohol for) persons known or reasonably believed 900), and the court therefore properly granted that to be underage" ( Sherman, 80 N. Y.2d at 487-488, part of defendant's motion for summary judgment 591 N.Y.S.2d 974, 606 N.E.2d 1365). dismissing the Dram Shop cause of action against it. Here, it is undisputed that defendant sold the alcohol at issue to Tatum and that Devine was the Finally, it is well settled that there is no common- intoxicated person who caused plaintiff's injuries. law cause of action for the negligent provision of There is no evidence that defendant knowingly alcohol ( see Murphy v. Cominsky, 100 A.D.3d sold or furnished alcoholic beverages to Devine, 1493, 1495, 954 N.Y.S.2d 343;O'Neill v. Ithaca the underage tortfeasor, nor is there evidence that Coll., 56 A.D.3d 869, 872, 866 N.Y.S.2d defendant assisted in procuring alcoholic 809;McGlynn v. St. Andrew Apostle Church, 304 beverages for Devine. Rather, the unlawful A.D.2d 372, 373, 761 N.Y.S.2d 151,/v. denied100 transaction was with Tatum ( see Bregartner v. N.Y.2d 508, 764 N.Y.S.2d 385, 796 N.E.2d Southland Corp., 257 A.D.2d 554, 555, 683 477;see generally D'Amico v. Christie, 71 N.Y.2d N.Y.S.2d 286;Dalrymple v. Southland Corp., 202 76, 84-85, 524 N.Y.S.2d 1, 518 N.E.2d 896), and A.D.2d 548, 549, 609 N.Y.S.2d 284). the court therefore also properly granted that part Contrary to plaintiff's contention, "[njothing in the of defendant's motion for summary judgment General Obligations Law imposed upon defendant dismissing the common-law negligence cause of action against defendant. convenience store owner] a duty ... to investigate possible ultimate consumers in the parking lot It is hereby ORDERED that the order so appealed beyond its doors" ( Sherman, 80 N.Y.2d at 488, from is unanimously affirmed without costs. 591 N.Y.S.2d 974, 606 N.E.2d 1365). Plaintiff's reliance on our decision in Krampen v. Foster, 242 A.D.2d 913, 664 N.Y.S.2d 900 is misplaced. In Krampen, although the alcohol was not sold directly to the driver, the plaintiffs presented evidence that the store clerk knew both the purchaser and the driver ( id. at 914, 664 N.Y.S.2d 900). While the purchase took place, the store clerk looked out the window at the driver's car, which was parked directly in front of the store casetext 2