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Parker v. Dunn

Supreme Court, Wayne County

January 13, 2014

Larry J. Parker, as Administrator of the ESTATE OF GARY W. PARKER, and TIMOTHY J. HERKIMER AND AMY HERKIMER, Plaintiffs,
v.
Jamie P. Dunn, SHIRLEY A. WOUGHTER, HAZLITT'S 1852 VINEYARDS, INC., D/B/A HAZLITT 1852 VINEYARDS & WINERY, Defendants

DeValk, Power, Lair & Warner, P.C. Richard L. DeValk, Esq., of Counsel Attorneys for Plaintiffs

Wood Oviatt Gilman, LLP Donald W. O'Brien, Jr., Esq., of Counsel Attorneys for Defendant

Burke Albright Harter & Reddy, LLP Michael A. Reddy, Esq., of Counsel Attorneys for Defendants Jamie P. Dunn and Shirley A. Woughter

Dennis M. Kehoe, J.

The Defendant Hazlitt's 1852 Vineyards, Inc. d/b/a 1852 Vineyards & Winery ("Hazlitt's") has moved for an Order granting summary judgment against both Plaintiffs and dismissing their respective Complaints, as well as an Order dismissing the cross-claims of both co-Defendants (Dunn & Woughter). The Plaintiffs have opposed the motion, maintaining that there are factual issues which must await determination at trial. The co-Defendants have joined in the Plaintiffs' opposition to Hazlitt's motion for summary judgment.

The action arises from a motor vehicle accident which occurred on May 31, 2009, on State Route 414 in the Town of Hector, New York at approximately 5:50 P.M. The Defendant Dunn, who was operating a vehicle owned by Defendant Woughter, was leaving Hazlitt's Vineyard and Winery where he worked as a tasting room employee, having completed his shift for the day. Dunn proceeded to strike the motorcycles operated by Plaintiffs Gary Parker and Timothy Herkimer with his vehicle in a head-on crash. Parker was killed, and Herkimer was seriously injured. Subsequently, the Defendant Dunn was convicted in Schuyler County after his guilty plea to counts charging him with Manslaughter in the Second Degree, Vehicular Assault in the Second Degree and Driving While Intoxicated as a misdemeanor. A breathalyzer test administered almost two hours after the accident indicated that Dunn's BAC count was.17%.

Timothy Herkimer and his wife, and Larry J. Parker, as Administrator of the Estate of Gary W. Parker, subsequently commenced separate actions against the above-named Defendants. These actions have now been consolidated for purposes of discovery, motions and trial.

The Plaintiffs have essentially based their claims against Hazlitt's on four theories of law: 1) violation of General Obligations Law §11-101 (known as "The Dram Shop Law"; 2) violation of General Obligations Law §11-100 (the so-called "Social Host Law"); 3) violation of Alcoholic Beverages Law §65.2 (as set forth in the Plaintiffs' Bill of Particulars); and, 4) common law negligence, including the theory of Respondeat Superior. Hazlitt's maintains that each of these theories of liability must be dismissed as a matter of law.

Turning first to the alleged violation of §65.2 of the Alcoholic Beverages Law, the Court must agree with Hazlitt's position that the section is inapplicable to the current circumstances. §65.2 provides in part as follows:

No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to...

2. any visibly intoxicated person.

The credible evidence set forth in the moving papers as supplied by the depositions of the employees on duty at Hazlitt's on the day in question, indicate that Dunn, despite his breathalyzer results, was not visibly intoxicated on the day in question. Of more significance, case law has established that §65 of the Alcoholic Beverages Law does not give rise to a private right of action (see, e.g. Sherman v Robinson, 80 N.Y.2d 483, 487 (1992), Dodge v Victory Markets, Inc. 199 A.D.2d 917, 919 (3rd Dept, 1993).

Next, the Court has considered the Plaintiffs' reliance on the so-called "Social Host Law". Both case law and the language of the statute itself make it clear that the law is designed to provide a right of action against a person who provides alcohol to an underage minor, who later suffers injuries due to intoxication. Underage drinking is not an issue here.

The Court has carefully considered whether there is any theory of common law negligence which would provide an arguable basis for liability on the part of the Winery. In D'Amico v Christie, 71 ...


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