In James v. Terrace Tavern, LLC, an upstate trial court dismissed plaintiff’s Dram Shop Act and negligence claims against defendant bar.
In November 2011, Defendant Robert McKenzie shot plaintiff Donovan James. Prior to the shooting, McKenzie was sitting in defendant’s bar. Plaintiff sued under, inter alia, the Dram Shop Act, codified at General Obligations Law § 11-101.
That statute provides, in part:
Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication. (Emphasis added.)
In dismissing plaintiff’s Dram Shop Act case, the court held that plaintiff “made no evidentiary showing that McKenzie was intoxicated at the time of the shooting or that he had been served any alcohol by the Tavern – conditions precedent for the imposition of Dram Shop Act liability”.
As to plaintiff’s remaining causes of action sounding in general negligence/premises liability, the court held:
Whether Plaintiff briefly stepped into the Tavern or not, his own statements establish that he was shot not there, but on the public street. Such admissions effectively take him out of court. Even assuming arguendo that the common law imposes some broad, general duty upon a bar owner to control or maintain the behavior of its patrons within its facility – – a proposition for which Plaintiff cites no authority – – such duty would clearly stop at the barroom door. In addition, the mere fact that McKenzie, apparently unbeknownst to Defendants, brought a gun into the Tavern is of no moment. Neither the common law nor, for that matter, the State Liquor Authority imposes any obligation upon a bar owner, much less the bar’s landlord, to have potential patrons run the gauntlet of a metal detector, frisk, and/or body search as a condition of entry.
In other words, the attempt by Plaintiff – – not a customer, but at best a momentary visitor to the Tavern – – to hold the Tavern and its Landlord responsible for regulating a bar customer’s behavior, as well as to impress upon such parties a more general responsibility toward a virtual stranger to the establishment, is meritless; there is no such duty as a matter of law. Indeed, the law is clear that in order to impose such dual responsibilities upon them, the landlord and business owner must have some special relationship with each such party: with the bar patron, a relationship that would require each of them to regulate such patron’s behavior, inside the bar and out; and with a member of the public, a unique connection that would compel such parties to take affirmative steps to protect him or her.