In Tansey v. Coscia, 2015 NY Slip Op 31778(U) (Sup. Ct. Suffolk Cty., Sept. 21, 2015), the court denied the defendant bar’s motion for summary judgment on plaintiff’s Dram Shop Act and negligent supervision claims.
In this personal injury case, the plaintiff alleged that he was assaulted by another patron, defendant Nicholas Coscia, while inside defendant’s bar (Molly Bloom’s) in June 2010. Specifically, he alleges that he was struck in the face and knocked to the ground, and as a result sustained serious personal injuries. Plaintiff obtained a default judgment against Coscia, and proceeded to hold the bar accountable.
Dram Shop Act Claim
According to the court:
The Dram Shop Act creates a cause of action against one who unlawfully sells alcoholic beverages to an intoxicated person, on behalf of a person who has sustained loss or injuries by reason of that person’s intoxication (General Obligations Law § 11-101 ). An “unlawful” sale or delivery of alcohol is defined in Alcoholic Beverage Control Law § 65 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 (1) Any person, actually or apparently, under the age of twenty-one years; (2) Any visibly intoxicated person …. ” To satisfy its prima facie burden on a motion for summary judgment dismissing a Dram Shop cause of action, a defendant must submit evidentiary proof in admissible form that it did not unlawfully serve alcohol (i.e., to a person known or reasonably known to be underage or to whom was visibly intoxicated) or that no reasonable or practical connection existed between the sale of alcohol and the resulting injuries.
The court held that the defendant bar failed to meet its summary judgment burden. Here is its analysis:
The Court finds the defendant’s evidentiary showing insufficient to meet its burden. Indeed, the evidence presented by the defendant is equivocal at best as to whether the defendant and its employees or agents served alcoholic beverages to Coscia either while he was visibly intoxicated or when they knew or had reasonable cause to know that he was underage. The defendant relies on the plaintiff’s testimony that he never saw Coscia prior to the incident and did not see him drinking inside of Molly Blooms, as well as the testimony of Mr. Middleton, who provided security at Molly Blooms on the day of the incident, that he had not seen Coscia in the bar or drinking at the bar prior to the incident. The mere fact that these two individuals may not have seen Coscia drinking at Molly Blooms carries little evidentiary weight as to whether Coscia was served alcoholic beverages at Molly Blooms, especially in light of Coscia’s testimony that he spent time in the “VIP Lounge.” Moreover, Mr. Middleton also testified that when he grabbed Coscia to break up the fight, Coscia was slurring his words and stumbling a bit, and that he could smell alcohol on his breath. Coscia testified that he was under 21 years of age at the time of the incident and that he knew the bartenders and had full access to alcoholic beverages while at Molly Blooms. He went up to the bar between 10 to 15 times and also received drinks while in the VIP section. According to Coscia, while he was coherent upon arriving at Molly Blooms, his ”tab would have been a million bucks that night,” and after approximately an hour or two, he described his intoxicated state as follows: “Did you ever see the movie ‘Twilight’ when they were running through the meadow and everything was all beautiful? …. It was nice. Butterflies everywhere. It was great, fantastic.”
The fact that Coscia was underage at the time in question is undisputed. Mr. Damiani, the manager of Molly Blooms at the time of the incident, indicated that at events in which 18 year olds could attend, the bar had a system in place to provide bracelets to patrons over 21, and a mark on the hand of the underage patrons to indicate that they could not drink. Coscia testified that he did not receive a wristband or a mark and stated that they did not mean anything anyway because he knew the bartenders who served him regardless of the markings. Mr. Middleton did not notice a mark or bracelet on Coscia’s hand. Mr. Middleton also testified that it was common for security to have to confiscate drinks from underage patrons, and that it happened once or twice on the night of the incident.
Insofar as the defendant argues that it is entitled to summary judgment because there is no evidence that it unlawfully provided alcoholic beverages to Coscia, the Court finds the defendant’s argument devoid of merit; a defendant seeking summary judgment has the burden of establishing its prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of its defense, not merely pointing to gaps in the plaintiff’s proof. Consequently, the Court finds the defendant’s evidence inadequate to negate the possibility that the defendant served Coscia alcohol when it knew or had reasonable cause to know that he was underage or while he was visibly intoxicated.
Furthermore, contrary to the defendant’s assertions, it cannot be said as a matter of law that there was no reasonable or practical connection between the defendant’s alleged unlawful sale of alcohol to Coscia and the subsequent injuries Coscia inflicted on the plaintiff. Coscia testified that he “abused the privilege” of free drinks towards the end of the night, had a tendency to fight or “rampage” when mad, and was repeatedly annoyed by the plaintiff. As to the defendant’s claims that the assault was the result of the plaintiffs own actions, it is well established that the presence of intervening acts or independent wrongdoing does not eliminate liability under the Dram Shop Act. In addition, proximate cause, as must be established in a conventional negligence case, is not required.
Negligent Supervision Claim
As to plaintiff’s negligent supervision claim, the court initially determined that there were “insufficient details within the record to determine whether the security at Molly Blooms at the time of the incident was provided through an independent contractor.” Notably, no copy of the contractual agreement between Molly Bloom’s and the security company was provided.
Here, “defendant established its prima facie entitlement to judgment dismissing the claim of negligent supervision against it as a matter of law by demonstrating, through the deposition testimony of the plaintiff and Mr. Middleton, that the fight happened suddenly and without warning.”
In opposition, the plaintiff raised triable issues of fact regarding whether the defendant should have been aware of the need to control Coscia’s conduct. Coscia testified that there were verbal confrontations between himself and the plaintiff in the bar leading up to the incident. Mr. Damiani testified that prior to this incident, there had been no fights at the bar, although bouncers had to escort people out once in a while. In addition, issues of fact exist as to whether there was adequate properly trained security provided on the day in question. The security was charged with checking identification and marking who was able to drink, and there are questions as to whether the underage Coscia was properly marked. The defendant’s manager, Mr. Damiani, testified that he had left the bar around 1:30 a.m. on the day of the incident. Coscia also testified that the bouncer just watched him hit the plaintiff many times. The Court concludes that questions of fact raised by the parties’ opposing motion papers are sufficient to defeat summary judgment.