100 A.D.2d 959 | N.Y. App. Div. | 1984
Lead Opinion
In an action to recover damages for personal injuries and wrongful death, plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Robbins, J.), dated December 23, 1982, which granted defendant’s motion to dismiss the action after the opening statement of plaintiff’s counsel at trial, and which granted judgment to defendant. 11 Order and judgment reversed, on the law, motion to dismiss the action denied, and matter remitted to the Supreme Court, Nassau County, for a new trial, with costs to abide the event, f Plaintiff’s decedent allegedly died as the result of injuries sustained while traveling as a passenger aboard defendant American Airlines’ flight 573 from La Guardia Airport in New York City to Detroit, Michigan. According to the amended complaint and bill of particulars, the decedent’s death resulted from asphyxiation when he choked on a piece of food while in an intoxicated state. It was alleged that defendant’s negligence was the proximate cause of decedent’s death, in that defendant, inter alia, permitted him to board the airplane while intoxicated, continued to serve him alcoholic beverages and food, failed to provide adequate emergency medical treatment and failed to comply with existing Federal Aviation Administration regulations pertaining to service of alcoholic beverages in flight, fin its demand for a bill of particulars, defendant requested that plaintiff set forth the specific regulations allegedly giving rise to defendant’s liability. In response, plaintiff stated that she would, at the time of trial, ask the court to take judicial notice of all statutes and regulations, including 14 CFR 121.575. Defendant thereafter moved, inter alia, for an order striking any reference to that regulation and precluding introduction of any evidence with respect thereto on the ground that it neither established a separate cause of action nor a standard for defendant’s conduct. Special Term (Oppido, J.), denied that branch of that motion with leave to renew at the time of trial, f Defendant renewed its motion on the eve of trial, and, on November 22,1982, Trial Term (Robbins, J.) granted it in all respects, f Immediately thereafter, counsel for plaintiff delivered his opening statement to the jury, in which he alleged that defendant was negligent in permitting the decedent to board the plane while intoxicated and in serving food and alcoholic beverages to him on board while he remained in an intoxicated state. At the conclusion of the opening statement, counsel for defendant moved to dismiss the action upon the ground that plaintiff could not, as a matter of law, prove a cause of action for negligence, because defendant owed no duty to refrain from furnishing alcoholic beverages to plaintiff’s decedent. Trial Term granted the motion and thereafter granted judgment to defendant. Plaintiff appeals from that judgment. U At the outset, we agree with Trial Term that a breach of the Federal Aviation Administration’s regulation did not give rise to an independent private cause of action in this case. The regulation (14 CFR 121.575) provides in pertinent part: f “(a) No person may drink any alcoholic beverage aboard an aircraft unless the certificate holder operating the aircraft has served that beverage to him. H “(b) No certificate holder may serve an alcoholic beverage to any person aboard any of its aircraft who — H“(1) Appears to be intoxicated *** H“(c) No certificate holder may allow any person to board any of its aircraft if that person appears to be intoxicated”. U In order for the violation of a statute to create a cause of action for damages plaintiff must be one of the particular of class of persons which the statute was intended to protect (Cort v Ash, 422 US 66, 78). In Manfredonia v American Airlines (68 AD2d 131), we held that the instant regulation did give rise to a private cause of action against an airline on behalf of a third party who was assaulted by an intoxicated passenger. However, we do not read the statute (US Code, tit 49, § 1421), or the regulations promulgated thereunder, as creating a private cause of action on behalf of an
Dissenting Opinion
dissents and votes to affirm the order and judgment appealed from, in accordance with the following memorandum, in which O’Connor, J., concurs: I do not subscribe to the conclusion of my learned colleagues of the majority that airline carriers owe to their passengers suffering from a disability such as intoxication a special duty of protection from the consequences thereof, to the extent of refusing to provide such passengers with food and beverage service which is commonly made available by the airline to its patrons, f As per my interpretation of the law, defendant owed no such duty to plaintiff’s decedent either pursuant to 14 CFR 121.575 or principles of common-law negligence. H With respect to the statutory claim, my views are consonant with those of the majority. Although this court previously found the existence of a cause of action under 14 CFR 121.575 on behalf of a third-party who had been assaulted by an intoxicated fellow passenger to whom the airline had served the alcoholic beverages (Manfredonia v American Airlines, 68 AD2d 131), the instant case is clearly distinguishable. Here, decedent’s injuries were the result of his own voluntary intoxication. Where the underlying purpose of the subject regulation was to ensure the safe operation of the aircraft by minimizing the disorderliness caused by intoxicated passengers (see FR Doc 59-5580, filed July 2, 1959), it is extremely doubtful that a passenger whose death resulted from his own intoxication comprised “ ‘one of the class for whose especial benefit the statute was enacted’ ” (Cort v Ash, 422 US 66, 78, quoting from Texas v Pacific Ry. Co. v Rigsby, 241 US 33, 39). Accordingly, the holding in Manfredonia v American Airlines (supra) should not be extended to the facts of this case. Nor does plaintiff have a cause of action under New York’s Dram Shop Act (General Obligations Law, § 11-101) inasmuch as that act does not have extraterritorial application (Manfredonia v American Airlines, supra, pp 135-137). H Notwithstanding the common-law rule that a common carrier owes the highest duty of care to a passenger (see Croce v Bromley Corp., 623 F2d 1084, cert den 450 US 981; Fleming v Delta Airlines, 359 F Supp 339), plaintiff has failed to present in her opening statement any cause of action for common-law negligence. The mere act of allowing plaintiff’s decedent on the airplane could not possibly be construed as the proximate cause of his death by choking. More fundamentally, no special duty exists at common law on the part of an owner of a premises to protect a person from the consequences of his voluntary intoxication (Gabrielle v Craft, 75 AD2d 939, 940; Paul v Hogan, 56 AD2d 723; Moyer v Lo Jim Cafe, 19 AD2d 523, 523-524, affd 14 NY2d 792). Since defendant owed the intoxicated decedent no special duty to protect him from the results of his voluntary intoxication, it could not be held liable for negligence based upon the service of alcoholic beverages irrespective of what facts were presented at trial relevant to breach of duty, proximate cause or damage (see Palsgraf v Long Is. R. R. Co., 248 NY 339). Hit is well settled that “[f]he risk reasonably to be perceived defines the duty to be obeyed” (Palsgraf v Long Is. R. R. Co., supra, p 344). It is thus inconceivable that defendant could be held liable for negligence based upon its service of food to a passenger. The mere act of serving food and beverages to a person could not reasonably be foreseen as causing that person