78 Misc. 2d 522 | N.Y. Sup. Ct. | 1974
These two interrelated motions for decision arise in separate lawsuits stemming from an automobile accident on June 9, 1973. In the first action plaintiff Yale seeks to recover for injuries suffered when struck by a car driven by the defendant Helmer. It is claimed that Helmer prior to the accident had left Mac’s Restaurant or Tavern (owned and operated by the defendant, Marjorie Jay) in a condition which made him unfit to operate a motor vehicle. The second action is by the restaurant owner Jay against the Aetna Casualty and Surety Company to determine the question of coverage and other rights under the Aetna liability policy insuring the restaurant. The Aetna has disclaimed responsibility for the accident under a
In its first-pleaded cause of action, however, the Vale complaint pointedly omits any reference to a sale of liquor or other activity by Jay which would come within the policy exclusion. Instead, liability is based solely on Jay’s failure to fulfill her alleged responsibility as a restaurant operator to ‘ ‘ prohibit or attempt to prohibit ’ ’ Helmer from driving when she ‘ ‘ knew or should have known ” that he was not in a condition to do so safely. A motion to dismiss this cause of action has been made on behalf of defendant Jay pursuant to CPLR 3211 (subd. [a], par. 7) for failure to state a cause of action.
The dismissal motion presents the novel question of whether an operator or owner of a restaurant or bar, aside from common law or statutory liability arising from illegal or improper sale or serving of liquor, can be held responsible to members of the public for failure to keep patrons from driving on the highway when they are apparently not in condition to do so safely. Clearly, the answer to this question will also influence, if not conclusively determine, the resolution of the coverage question and other issues in-the-declaratery judgment action-against the insurance carrier, since the personal injury complaint, absent the first cause of action, would lie entirely within the policy exclusion clause.
We turn then to the question of whether the first cause of action states a valid claim for relief. The courts of New York impose upon hotels, innkeepers, and others in control of premises open to the public, a common-law duty to exercise reasonable care for the protection of guests and patrons on the premises.
The instant complaint, however, does not fall under these well-recognized rules. Instead, it is claimed plaintiff was injured on the public highway beyond the premises because of defendant’s failure to fulfill her duty of restraining or prohibiting Helmer, an apparently intoxicated patron, from driving away from the premises. In none of the decisions reviewed has such a duty been recognized either in New York or other jurisdictions.
The plaintiff relies on Berkeley v. Park (47 Misc 2d 381) which held that a person killed or injured on the highway by an intoxicated driver who was served liquor in a tavern has a valid common-law action for negligence against the tavern keeper, in addition to a statutory claim under the Dram ¡Shop Act. The court, in sustaining the independent negligence cause of action,
The plaintiff is granted 20 days to serve an amended complaint if desired. Decision on the questions of coverage and defendant Jay’s right to separate counsel, raised in the declaratory judgment action, must await the ultimate determination as to whether plaintiff can state a valid claim for relief which successfully avoids the exclusion clause in the Aetna policy. Therefore, decision is reserved on these questions until plaintiff has had an opportunity to replead or to appeal this decision, if so minded.
“EXCLUSIONS
This insurance does not apply:
* * *
(£) to bodily injury or property damage for which the insured or his indemnities may be held liable, as a person or organization engaged in the business of manufacturing, distributing, selling or serving alcoholic beverages or as an owner or lessor of premises used for such purposes, by reason of the selling, serving or giving of any alcoholic beverage
(1) in violation of any statute, ordinance or regulation,
(2) to a minor,
(3) to a person under the influence of alcohol, or
(4) which causes or contributes to the intoxication of any person; ”
In Moyer v. Lo Jim Cafe (19 A D 2d 523, affd. 14 N Y 2d 792) the Appellate Division held that a tavern owner owes no special duty to a patron to protect him from the results of his own voluntary intoxication. In view of the contributory negligence factor present the decision does not seem helpful. Furthermore, in affirming the Court of Appeals did so solely because of insufficient proof of causation and stated that it was passing on no other question.
The Vale complaint, it is noted, contains only a general allegation of the defendant’s duty and omits any statement of exactly what, under the circumstances, defendant could or should have done to “ prohibit ” or “ attempt to prohibit ” Helmer from leaving.