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Fiandach & Fiandach (Rochester NY)

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Dram Shop and Civil Litigation A Primer

February 13, 2008

Asimple fact is that, by the very nature of what each of us due on a day to day basis, we are more familiar with alcohol, its psychomotor effects and the manner in which one deals with alcohol related issues within the courtroom. While by and large this expertise is normally expended within the criminal realm, there is a flip side to all this, civil litigation. In the normal course of events, this aspect emerges as a result of a lawsuit commenced against an allegedly intoxicated motorist and is generally found in conjunction with a suit which is commenced against a bar or tavern for so called dram shop liability. As civil actions, they are victim oriented and can be quite lucrative to counsel handling such a case. As the issues tend to vary somewhat from those encountered in routine DWI defense, I thought it might be helpful to briefly review the civil analogue of our daily practice.

 

Statutory Provisions

In 1857, the legislature passed An Act to Suppress Intemperance and to Regulate the Sale of Intoxicating Liquors. Pursuant to section 28 of this excise law, any person who made an unlawful sale of any strong or spirituous liquors was held liable for all damages which may be sustained in consequence of such sale. Under this civil recovery act, an unlawful sale was one made to an individual whom the seller impliedly knew to be intoxicated. Further, the law declared that the offending parties could be sued by any individual sustaining the injuries or by the overseers of the poor for his benefit.

In the one hundred-forty years which have since transpired, New York's answer to the economic problems brought on by intoxication has changed many times. Even so, the present act bears striking resemblance to the 1857 excise law. General Obligations Law ' 11‑101 provides


1. 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; and in any such action such person shall have a right to recover actual and exemplary damages.

 

Reference to unlawful selling to or unlawfully assisting sends us to Alcoholic

Beverage Control Law ' 65. This section, in pertinent part, sets forth that:

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;

 

3. Any habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages.

 

Thus, for the most commonly encountered situation, where the inebriant is over the age of 21, it will be incumbent upon the plaintiff to prove that such individual was visibly intoxicated at the time the alcoholic beverage was sold, delivered or given or that the individual was a habitual drunkard. When, however, the intoxicated person is under the age of 21, plaintiff's burden becomes significantly easier. General Obligations Law ' 11-100, in relevant portion provides:

Any person who shall be injured in person, property, means of support or otherwise, by reason of the intoxication or impairment of ability of any person under the age of twenty‑one years, whether resulting in his death or not, shall have a right of action to recover actual damages against any person who knowingly causes such intoxication or impairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for such person with knowledge or reasonable cause to believe that such person was under the age of twenty‑one years.

Emphasis supplied herein.

 


Missing from this under 21 analogue is all reference to the visible condition of the individual so served. Plaintiff need only prove that the individual was intoxicated or impaired and that the purveyor had reason to know that such person was under 21.

Proof of Intoxication COpinion Evidence

The heart of an action sounding in Dram Shop or common law negligence is establishing visible intoxication. There exist, as we shall see, two basic methodologies, scientific and common-law, that can be employed.

Turning immediately to the latter, the opinion of intoxication is generally considered to be within the realm of ordinary knowledge, (see, e.g., People v. Cruz, 48 N.Y.2d 419, 423 N.Y.S.2d 625, 399 N.E.2d 513 [1979]), and as such may be expressed by a lay witness. The rule, as often stated in New York, is that lay witnesses who have sufficiently observed the actions of a person may testify categorically that the latter was sober or intoxicated. Burke v. Tower East Restaurant, 37 A.D.2d 836, 326 N.Y.S.2d 32 (1971, 2d Dep't). Richardson opts for a somewhat different formulation emphasizing that the witness may testify as to whether or not an individual appeared to be intoxicated. Richardson on Evidence, 10th [Prince] ed., ' 364, 1973. In any event, the difference is probably academic inasmuch as a lay witness's testimony will be based upon observation in any event.


Getting the trier of fact to draw the desired inference requires that a foundation be established. In the usual sense, this requires the proponent of the opinion to apprise the trier of fact that the witness has in fact seen intoxicated individuals on earlier occasions. While following such testimony, an opinion should be received, sound practice dictates that the party offering the opinion do more. Ideally, a witness should be asked what criteria he or she uses in drawing such a conclusion. He or she should be prepared to testify that gait, balance, the quality of speech, the odor of an alcoholic beverage on the breath and the ability to follow simple instructions all play a role. In the event that the proponent does not adduce such testimony, the cross-examiner may wish to explore these areas, chipping away at each category with observations which have been drawn from pre-trial depositions. If the witness, for instance, has previously testified that he or she had a conversation with the intoxicated person, the cross-examiner may wish to have the witness elaborate on the nature of that conversation. When the witness has concluded the response, the cross-examiner should seek an admission from the witness that he or she heard and fully understood the motorist and, if applicable, that the witness never heard the motorist speak on a prior occasion.

The Common - Law Standard CPeople v. Cruz

In the situation where the plaintiff intends to rely upon an opinion of intoxication, he or she is inevitably drawn to the provisions of Vehicle and Traffic Law ' 1192(3). Conviction under this section requires proof that the motorist was intoxicated and an unexcused violation of this statutory standard of care has been found to constitute negligence so as to create liability if found to be a proximate cause of the accident. Cordero v. New York, 112 A.D.2d 914, 492 N.Y.S.2d 430 (1985, 2nd Dep't). While at first it may seem that this term is vague beyond all possible definition, in People v. Cruz, 48 N.Y.2d 419, 423 N.Y.S.2d 625, 399 N.E.2d 513 (1979), the Court of Appeals pronounced what has become an all encompassing touchstone. In Cruz, the Court defined intoxication in terms of its effect upon an individual's mental and physical abilities:

[T]he standard for determining intoxication is constant; . . . whether the individual's consumption of alcohol has rendered him incapable of employing the physical or mental abilities needed to, for instance, form a specific intent or testify truthfully and accurately.

* * *


In sum, intoxication is a greater degree of impairment which is reached when the driver has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver. Id at 428.

What should be immediately apparent to counsel on both sides of the v. is that despite its initial simplicity, in the absence of a chemical test, Cruz is capable of erecting an exceedingly difficult burden to surmount. Take the situation where the accident is alleged to have occurred as a result of the defendant failing to stop for a red light. Assume that at trial a motorist, who was positioned directly behind the defendant, testifies that he or she followed the defendant for approximately two miles. Further assume that during this period, the witness observed nothing out of the ordinary in the operation of the vehicle. Given these facts and these facts alone, it is relatively easy for defense counsel to argue that the Cruz standard has not been met. Why? Because the evidence at trial is capable of establishing that the defendant did have the necessary mental and physical abilities to operate a motor vehicle as a reasonable and prudent driver.

It should be noted, however, that after relative silence for sixteen years, in People v. Ardila, 85 N.Y.2d 846, 623 N.Y.S.2d 847, 647 N.E.2d 1355 (1995), the Court of Appeals chose to tamper somewhat with the Cruz formulation. Far more plaintiff friendly, we are yet to see whether this adjustment will be incorporated into the PJI. In Ardila, the jury was instructed, over defense counsel's objection, that voluntary intoxication as that term is used in Vehicle and Traffic Law '1192(3) means the voluntary consumption of alcohol to the point where the individual's ability to drive safely is impaired to a substantial extent.

Upholding the use of this language, the Court explained that:


[T]here is no meaningful semantic difference between being so inebriated that one's ability to drive safely is impaired to a substantial extent C the formula used by the trial court here C and being so inebriated that one is incapable of employing the physical and mental abilities which [one] is expected to possess in order to operate a vehicle as a reasonable and prudent driver C the formula used by this Court in People v Cruz.

Is Cruz still the standard? Despite the obvious difference which substantial impairment entails, we believe it is. In the criminal context in which Ardila was presented, the memorandum opinion drew no distinction inasmuch as the seemingly higher Cruz test was simultaneously charged:

While the term incapable may connote absolute inability in the abstract, it loses that unconditional quality when it is used in conjunction with a relative concept like operating a vehicle in a reasonable and prudent manner. Thus, in this context, the trial court's description of intoxication as having one's ability to drive safely impaired to a substantial extent did not in any way diminish the People's burden of proof. It was, in fact, useful in clarifying the distinction between driving while intoxicated and driving while impaired, which requires a lesser showing that the accused's driving faculties were impaired to any extent.

Even so, given the diminimous burden of proof in a civil case, one may not seriously question that impaired to a substantial extent, is capable of producing juror confusion.

Working With Cruz


From the foregoing, it should be apparent that successful representation will depend, to a large degree, upon non-party depositions. Witnesses and passengers, should be meticulously deposed as to the manner in which the defendant was operating his or her vehicle. In dealing with Cruz, counsel should be creative. Video tapes, for example, can play a dispositive role in either establishing or refuting Cruz compliance. Consider the red light example given above. While at first glance, plaintiff's burden may seem insurmountable, the character of the roadway which was traveled during this period of observation should not be ignored. Upon presentation of a video tape which discloses a roadway that was essentially straight, plaintiff's counsel will be able to argue that the flawless operation which was described by the witness's testimony is of little value in determining the defendant's ability to operate a motor vehicle as a reasonable and prudent driver. Of course, given the opposite, a roadway which is difficult and winding, defense counsel will be free to emphasize the appropriate nature of the defendant's operation.

Direct Examination Under Cruz

Plaintiff's counsel should be continuously aware that Cruz runs to the mental and physical abilities of the defendant motorist. While some fact patterns will easily lend themselves to application of Cruz; i.e: the motorist who is falling, incoherent or utterly disoriented; most are not this simple. Proper presentation of this side of Cruz requires counsel to look beyond the results of the standard field sobriety tests as reported and develop every avenue which is capable of showing that the motorist was physically hampered and mentally diminished. Each and every misstep in word and deed should be emphasized as a consequence of intoxication. Counsel must be certain to elicit from each witness his or her opportunities to see individuals consuming alcoholic beverages. Such witnesses should be queried as to the differences they have observed between mere consumption and intoxication. Given the undeniable subjectivity of intoxication, good direct examination will seek to exclude as many equivocal causes for the opinion as possible. Gait is a classic example. Frequently an intoxicated person will be described as swaying, staggering or stumbling. In the face of these claims, the astute examiner will anticipate that the defense will turn to a physical disability or injury as the cause. Therefore, to the extent possible, counsel should elicit that the motorist did not report any physical problems which could otherwise account for the observations.


While we by no means suggest that the results of police administered field sobriety tests should be ignored; such are a necessary component and should be covered; as we will see in the following section, exclusive reliance upon the conclusions without sufficiently tying the results of these tests to the mental and physical condition of the motorist can have disastrous consequences.

Cross-examination Under Cruz

Despite the foregoing, the bulwark of many direct examinations will be conclusions reached after administration of the field sobriety tests. In the event that this has occurred, plaintiff has unwittingly played into the hand of the experienced cross-examiner. Take the finger to nose test for example. As we know, a police officer will generally testify that the defendant failed the test. Good cross-examination will thereafter break the test into as many component parts as possible. Defense counsel will demonstrate that the motorist was asked to put the feet together, place the arms at the side, tilt the head back, close the eyes, outstretch the arms, and only then move the index finger toward the nose. The point here is that the defense should argue that the overwhelming components of the test were successfully accomplished, thereby enabling counsel to argue to the jury that his or her client's physical response was reasonable and that the operator's powers of understanding were undiminished. When coupled with the declaration in Cruz that intoxication means that one must be incapable of employing the physical and mental abilities needed to operate a motor vehicle as a reasonable and prudent driver, the fact that he or she is able to carry out extensive strings of commands with near perfect precision goes far to defuse an inference of intoxication.


Gait can similarly be attacked by having the witness acknowledge that his or her conclusions would be different if the driver was injured or suffers from some disability of the legs or lower body. Upon establishing such during the defense case, counsel will be free to argue that by the witness's own agreement, the conclusion reached is suspect.

 

Admissibility of Police Administered Chemical TestsCGenerally

Plaintiffs in negligence and so-called Dram-Shop actions are generally assisted by law enforcement authorities. Such occurs when the operator has been arrested for any subdivision of Vehicle and Traffic Law ' 1192 and administered a chemical test pursuant to Vehicle and Traffic Law ' 1194. While these provisions are intimately familiar to most of us, the civil side requires examination of a subsection that many of us have never stopped to read. In Dram Shop and other civil matters, the plaintiff receives a significant gift in the form of Vehicle and Traffic Law ' 1195(1). This section sets forth that:

Upon the trial of any action or proceeding arising out of actions alleged to have been committed by any person arrested for a violation of any subdivision of section eleven hundred ninety‑two of this article, the court shall admit evidence of the amount of alcohol or drugs in the defendant's blood as shown by a test administered pursuant to the provisions of section eleven hundred ninety‑four of this article.

 


The any action or proceeding language is certainly not to be ignored. This section has been broadly interpreted to permit a party in a civil action to admit the results of the motorist's chemical test in an action sounding in negligence as well as Dram Shop Liability. Van Valkenburgh v. Koehler, 164 A.D.2d 972, 559 N.Y.S.2d 852 (1990, 4th Dep't). Even so, plaintiff must recognize that vital limitations exist as to the precise nature and effect of this statute. First and foremost, the defendant must be charged with a ' 1192 violation. This section will be of no import where the test did not occur as a result of a ' 1192 arrest. McCarthy v. Fernandez, 156 A.D.2d 544, 549 N.Y.S.2d 51 (1989, 2nd Dep't). Secondly, the scope of the section's grasp is limited strictly to tests administered under Vehicle and Traffic Law ' 1194. This means, for instance, that if the motorist is charged with a ' 1192 offense, subsequently refuses a police requested test and a hospital test is run for diagnostic purposes, such will not, subject to a waiver of the physician patient privilege, be properly admitted. Thirdly, there exists a twilight zone which has not yet been clearly defined. Assume that the motorist is given a compulsory chemical test (see, Vehicle and Traffic Law ' 1194[3]) which discloses a statutorily prohibited blood alcohol content. Further assume that at the time the oral application is made, the authorities fail to provide the requisite basis for the test. Strong argument exists to support the proposition that the failure to comply with the mandate of Vehicle and Traffic Law ' 1194 precludes admission of the test under this provision. Fourthly, and to some extent included in the foregoing, admission of such a test will require that the substance tested fall within the purview of those substances specifically denominated in Vehicle and Traffic Law ' 1194, that is to say, blood, breath, urine or saliva. (See, Vehicle and Traffic Law ' 1194(2)[a]).

 

Physician Patient Privilege


The foregoing has assumed that the chemical test was administered by a police agency. In the event that the motorist is not so tested, it may be necessary to look to a hospital administered chemical test. This is generally unfortunate inasmuch as it places the proponent squarely within the purview of the physician patient privilege, CPLR ' 4504. In the usual situation, absent a waiver of the physician patient privilege, the results of such a test will be inadmissible. In People v. Petro, 122 A.D.2d 309, 504 N.Y.S.2d 67 (1986, 3rd Dep't), the State's case, by and large, turned upon a serumosmology blood test which was performed for diagnostic purposes. At trial, the Court found the physician‑patient privilege created in CPLR ' 4504 to bar admission of the results. Affirming, the Third Department noted that there was no evidence that the defendant at any time waived the privilege.


When a party affirmatively places his or her mental or physical condition in issue, (see, e.g., Dillenbeck v. Hess, 73 N.Y.2d 278, 539 N.Y.S.2d 707, 536 N.E.2d 1126 [1989]) waiver of the privilege has been found. Affirmatively, however, does not merely mean to defend. In People v. Osburn,155 A.D.2d 926, 547 N.Y.S.2d 749 (1989, 4th Dep't), the Fourth Department held that the trial court erred by finding a waiver in defendant's cross‑examination of certain medical witnesses which was conducted to show that submission to a chemical test had been involuntary. In drawing the crucial distinction between one who affirmatively raises the condition and one who interposes it as a defense, the line is not always clear. In Koump v. Smith, 25 N.Y.2d 287, 303 N.Y.S.2d 858, 250 N.E.2d 857 (1969), the Court of Appeals explained that waiver on the part of a litigant will be had only when the party opposing admission has placed his or her physical condition at issue. Observing that a party does not waive the privilege whenever forced to defend an action in which his or her mental or physical condition is in controversy, it eschewed disclosure of the defendant's hospital report where the gravamen of the complaint was that the defendant was intoxicated at the time of the collision. In Dillenbeck v. Hess, 73 N.Y.2d 278, 539 N.Y.S.2d 707, 536 N.E.2d 1126 (1989), at issue was held to require some affirmative action, such as a counterclaim on the part of the party resisting disclosure. In McMahon v. Estate of Marianacci, 198 A.D.2d 870, 604 N.Y.S.2d 656 (1993, 4th Dep't), the Fourth Department refused to find a waiver by a decedent's representative who asserted a cross‑claim for apportionment of damages. Given the fact that waiver will be found when the proponent of the privilege affirmatively places his or her condition at issue, care must be taken lest waiver be found. In People v. Kral, 198 A.D.2d 670, 603 N.Y.S.2d 1004 (1993, 3rd Dep't), the defendant testified on his own behalf concerning his consumption of food and alcohol prior to the accident. Foundational in character, he thereafter called as a witness a pharmacologist who testified as to the absorption rate of alcohol and opined that at the time the accident occurred, it was likely that none of the alcohol which the defendant had consumed an hour earlier had entered his bloodstream. Observing that he affirmatively put his blood alcohol content in issue, the Third Department held his actions brought about a waiver of the statutory protection.

The lesson here should be clear; when a party seeks to forge a sword from this historical shield, a waiver will rightfully be found.

Before leaving the physician patient privilege, one point should be made. Mere observations, generally fall outside the ambit of the privilege in the event that they are of a kind that could be made by any individual similarly situated. In People v. Hedges, 98 A.D.2d 950, 470 N.Y.S.2d 61 (1983, 4th Dep't), the Fourth Department remarked that an emergency room physician's testimony as to a strong odor of alcohol on defendant's breath, that the defendant's speech was slurred and disjointed and that the defendant was extremely intoxicated could have been made by a lay person and did not depend upon any confidential communication by the defendant.

The Criminal Plea

Pleas to an alcohol related operating offense require special consideration. As most know, a defendant who pleads guilty is generally required to admit the factual elements of the crime. When properly taken, such will require the defendant to admit, on the record, what he or she had to drink prior to operation. The downside to this requirement is that the form of this admission is frequently dependant upon the practice of the assistant district attorney who presides at the plea. Oftentimes it may contain the all too common admission of two or three beers.


Fortunately for plaintiffs, the current climate in criminal matters is extremely victim oriented. In some counties the District Attorney's office will refuse to take a plea with an agreed upon sentence unless the victim has been contacted and agrees. Even so, counsel representing the victim should not rely upon what may or may not be the practice of a particular assistant district attorney. At the onset of the criminal action, counsel should draft a letter for the victim to sign setting forth that any plea must be to at least a violation of Vehicle and Traffic Law ' 1192(3) and that a plea to Vehicle and Traffic Law ' 1192(2) is unacceptable. Further, this letter should request compliance with People v. Cruz, supra., in that the defendant should be required to admit, at the time of the colloquy, that he or she did not possess the necessary mental and physical abilities to operate a motor vehicle as a reasonable and prudent driver.

 

Investigation


As we have seen, although several different means are available for proving intoxication, neither side should lose sight of the fact that it will be the condition of the individual at the time of the sale which is key. Information which is gleaned from police officers, reports, and chemical tests, will only be directly demonstrative of the individual's physical condition at some later point in time. This irrefutable fact emphasizes the need for a thorough investigation. While, the effects of alcohol over time are well documented and to some extent predictable, the process of relating back, or reverse extrapolation can be highly variable. See 1 NY DWI Bulletin, 12. Meeting the burden of proving or disproving visible intoxication therefore requires immediate action. In People v. Holt, 109 A.D.2d 174, 491 N.Y.S.2d 526 (1985, 4th Dep't), a thorough investigation centering upon the road conditions, speed of the defendant's vehicle, and the point on the vehicle at which the pedestrian impacted, proved essential in breaking the causal link necessary to sustain a conviction. Likewise, in People v. Beiter, 77 A.D.2d 214, 432 N.Y.S.2d 947 (1980, 4th Dep't), a thorough presentation of the facts unquestionably made possible by an exhaustive investigation, enabled the Fourth Department to find that the fatality was the result of an unavoidable emergency.

From the plaintiff's perspective, People v. Sands,159 A.D.2d 984, 552 N.Y.S.2d 756 (1990, 4th Dep't), displays the dividends paid by a meticulous investigation. The ability to prove the defendant's knowledge of the poor condition of his automobile proved dispositive in affirming a conviction for Manslaughter in the Second Degree and undoubtedly at the trial as well.

When investigating an alcohol related accident, be certain not to violate my four cardinal rules:

(1) DO review the investigation with your client. Oftentimes a photograph or a statement will jog his or her memory as to what he or she saw or did and open entirely new avenues of examination.

(2) DO be creative in an inquisitory sense. I have heard it told of how counsel, baffled by his client's account that the brake pedal would not depress, happened one evening to spy a tennis ball can in the corner of a police photo. Enlargements clearly showed the presence of a tennis ball beneath the brake peddle which was either removed or dislodged prior to the investigatory brake test.

(3) DO NOT assume that simply because a fact is not contained within your investigation that it does not exist. Go back, and to the best of your investigative skills, disprove the negative.


(4) DO NOT do your own investigations. Nothing; zero; zilch; not even a single statement. Witnesses do recant. Being armed with a statement taken by counsel can prove a very disarming experience as counsel suddenly finds his or her credibility thrown into the fray and the frightening ramifications of the advocate witness rule confronting what is clearly an attempt to develop the truth. Do not even think of chatting with the witness first and then, if it is good, plan on sending back an investigator. Such a delusion, while perhaps penny wise, is dollar dreadful. What are you to do if following your little chat the witness calls his or her attorney and/or thereafter decides not to get involved? Your dynamite statement will have to fizzle out of your mouth at which point it is safe to say you should be off the case.

 


When undertaking an investigation, begin with accident reports. All named passengers in the potential defendant's vehicle should be initially interviewed as to where, what and how much the motorist was drinking. Following up on where, your investigator should immediately undertake to interview tavern personnel. While such individuals will usually be less then candid at best and horrendously uncooperative at the worst, they should nonetheless be interviewed in detail concerning not only what the defendant may have consumed, but any courses or seminars they may have attended in the area of alcohol education. Such are becoming increasingly popular although surprisingly, such attendance is frequently of greater assistance to the plaintiff. Given a higher BAC, such educational endeavors open the server to cross-examination and argument that given this skill, recognition of the effects of alcohol should have been easily perceived. If possible, investigators should be provided with a photograph of the motorist and more than one trip should be made to the establishment with an eye toward interviewing so-called regulars. Once an action has been commenced, credit card records should be explored. Oftentimes such will demonstrate the existence of an additional establishment, such as a restaurant where the motorist ate prior to the tavern at issue. Should the receipt disclose an amount well in excess of what could reasonably be expended for food, the inference begins to arise that the motorist consumed a significant amount of alcohol at that earlier meeting. Likewise, don't overlook the value of an ATM card. In the situation involving a serious accident, the motorist will often be taken into custody. This means that there will exist an inventory of all property that the motorist had at the time of his or her arrest. In this regard, an experienced police officer will inventory all cash contained in a wallet or purse. Should the ATM card disclose a large cash withdrawal, which cash the motorist no longer had at the time of his or her arrest, it may be possible to impeach the operator with an eye toward showing that he or she has been less than candid regarding his or her activities on the evening in question. Similarly, don't overlook the mini-mart. Experience dictates that inebriated motorists may frequently stop for cigarettes or items of food as they head towards home. In the past I have found an interview with such persons to be most informative.



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