The Dram Shop Act: A Useful but Often Forgotten Tool by Estate Litigators
By. Kyle G. Durante, Esq.*

When thinking of estate tort litigation, the causes of action that come to mind for most practitioners and legal professionals are wrongful death,[1] survival/conscious pain and suffering claims,[2] and, for some, the violation of the right of sepulcher,[3] all the while, failing to realize the advantages and practical application of the Dram Shop Act. The Dram Shop Act, and its outgrowth of related statutes, allows practitioners to potentially seize additional recovery on behalf of their client when a decedent has died under certain circumstances; to wit: as a consequence of a person’s unlawful assistance and/or contribution towards a tortfeasor’s intoxication, which caused and/or contributed towards the decedent’s death.

Section 11-101 of New York General Obligations Law (hereinafter “GOL”) provides in pertinent part:

[a]ny 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.[4]

Moreover, section 11-103 of GOL provides in pertinent part:

[a]ny person who is injured in person, property, means of support or otherwise by a person whose abilities are impaired by the use of a controlled substance,[5] or by reason of such person’s impairment, shall have a right of action against any person who caused or contributed to such impairment by unlawfully selling to or unlawfully assisting in procuring a controlled substance for such person.[6]

A Dram Shop claim premised on the above-referenced statutes permits the recovery of damages in addition to any claim for wrongful death, sepulcher and/or survival claim; these and other common claims are premised upon a tortfeasor’s tortious conduct, while a Dram Shop claim is premised upon a statutory violation.[7] Moreover, in agreement with the stated purpose in the enactment of the Dram Shop Act, a Dram Shop claim permits the injured and/or his or her personal representative on behalf of his or her estate,[8] in the instance of death, to assert a claim against the person and/or entity that provided the intoxicated individual with the intoxicating substance.[9] As stated by the New York Assembly in enacting the Dram Shop statutes:

[u]nfortunately, recovery against the impaired individual is often not available for various reasons. The most common being that the individual is without significant assets or insurance to cover damages.

This bill recognizes that fault is not only on the person under the influence of drugs, but should be shared by the seller or procurer of illegal controlled substances. But for these illegal dealings in drugs, many accidents or intentional injuries would not occur.[10]

These statutes permit the injured and/or his estate to recover damages that otherwise would not be recoverable—a claim that would otherwise not be permitted at common law.[11]

In order to successfully pursue a claim pursuant to GOL § 11-101 and/or GOL § 11-103, the plaintiff must only prove that the person to be held liable must have “caused or contributed” to the tortfeasor’s condition, which ultimately led to the plaintiff’s injury and/or death, as opposed to GOL § 11-100,[12] which requires the plaintiff to prove that the defendant knowingly provided alcohol to a person under the age of 21. Thus, pursuant to GOL § 11-101 and/or GOL § 11-103, an injured and/or his estate will be able to recover damages against the person who provided the tortfeasor with alcohol and/or an intoxicating substance, so long as the plaintiff is able to prove that the act of providing the alcohol and/or controlled substance “caused or contributed” to the plaintiff’s injury and/or death.[13]

One of the significant differences between GOL § 11-101 and GOL § 11-103 is the category of defendants the statutes are applicable against. GOL § 11-101 only applies to the commercial sale of alcohol, and “one who merely provides alcoholic beverages, without remuneration or profit, [can] not be held liable under the Dram Shop Act.”[14] Nevertheless, GOL § 11-103 is applicable to commercial and/or individual providers of controlled substances.[15] The application of either of these Dram Shop statutes could produce a significant recovery for an injured person and/or his or her or her estate.

Based upon the number of published decisions citing these provisions, especially GOL § 11-103, it does not appear that practitioners are utilizing all means of recovery on behalf of their clients when asserting claims for wrongful death, sepulcher and/or a survival claim. Any time a decedent dies under circumstances where the tortfeasor may have possibly been under the influence of alcohol and/or a controlled substance at the time of their tortious act, practitioners must contemplate a possible Dram Shop claim, which could permit their clients to recover damages above and beyond common law torts.

* Associate Attorney, Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP.; Juris Doctor, Summa Cum Laude, Touro College Jacob D. Fuchsberg Law Center; Bachelor of Arts in Political Science, The University at Buffalo, The State University of New York; Associate of Science in Criminal Justice, Erie Community College.

[1] A wrongful death cause of action permits the decedent’s intestate distributees to recover compensatory damages, which they sustained as a result of the decedent’s death and, in certain situations, special damages, punitive damages and attorney’s fees and costs. See N.Y. Est. Powers & Trusts Law [hereinafter “EPTL”] § 5-4.4 (McKinney 2018). The essential prima facie elements of a wrongful death claim are: “(1) the death of a human being, (2) the wrongful act, neglect or default of the defendant by which the decedent’s death was caused, (3) the survival of distributees who suffered pecuniary loss by reason of the death of the decedent and (4) the appointment of a personal representative of the decedent.” Chong v. N.Y.C. Transit Auth., 441 N.Y.S.2d 24 (App. Div. 2d Dep’t 1981) (internal citations omitted). See also Cruz v. City of New Rochelle, No. 13CV7432 (LMS), 2017 WL 1402122 (S.D.N.Y. Apr. 3, 2017) (applying New York substantive law and holding similarly).

[2] When a tort causes the decedent’s death, a wrongful death cause of action may lie but, in addition to such claim, the underlying tort that caused the decedent’s death does not abate merely because of death. EPTL § 11-3.2. A survivor claim permits the decedent’s estate, by virtue of a personal representative, to commence an action against the tortfeasor for the underlying tort and/or a tort that was committed against the decedent prior to his death, even if never filed by the decedent (so long as the claim is filed within the statute of limitations). Id. § 11-3.2(b); Stolarski v. Family Servs. of Westchester, Inc., 973 N.Y.S.2d 725 (App. Div. 2d Dep’t 2013). See also N.Y. C.P.L.R. § 215 (McKinney 2018) (discussing the statute of limitations for intentional torts); id. § 214 (discussing the statute of limitations for a negligence claim); id. § 210 (discussing the tolling and extending provisions in connection with the death of a claimant).

[3] A sepulcher cause of action is a common law right of the “surviving next of kin . . .  to the immediate possession of a decedent’s body for preservation and burial and that damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body.” Lott v. State, 225 N.Y.S.2d 434 (Ct. Cl. 1962). See also Estate of Scheuer v. City of New York, 780 N.Y.S.2d 597 (App. Div. 1st Dep’t 2004); Henderson v. Kingsbrook Jewish Med. Ctr., 936 N.Y.S.2d 318 (App. Div. 2d Dep’t 2012); Melfi v. Mount Sinai Hosp., 877 N.Y.S.2d 300 (App. Div. 1st Dep’t 2009) (holding “the common-law right . . . gives the next of kin the absolute right to immediate possession of a decedent’s body for preservation and burial, and that damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body.”). The essential prima facie elements of a sepulcher cause of action are: 1) that the defendant interfered with the plaintiff’s right to possess the decedent’s body; 2) the plaintiff had a right to possession of the remains; 3) the interference was unauthorized; 4) plaintiff was aware of the interference; 5) the interference caused the plaintiff mental suffering, or emotional/psychological injury, which is generally presumed; and 6) that the defendant proximately caused the plaintiff’s injury. Mack v. Brown, 919 N.Y.S.2d 166 (App. Div. 2d Dep’t 2011); Shepard v. Whitestar Dev. Corp., 977 N.Y.S.2d 844 (App. Div. 4th Dep’t 2014).

[4] N.Y. GOL § 11-101(1) (McKinney 2018).

[5] The term “controlled substance” includes substances as defined by sections 3302 and 3306 of the New York Public Health Law.

[6] GOL § 11-103(1)(a) (McKinney 2018) (footnote not in original). For a discussion of additional Dram Shop Claims, see GOL § 11-100 (McKinney 2018) (discussing liability when a person provides alcohol to a tortfeasor who is under the age of 21).

[7] See supra note 3; GOL § 11-101; § 11-103.

[8] Hereinafter, any reference to an action taken by a decedent’s estate is to be construed to mean a personal representative, as defined by EPTL § 1-2.13, on behalf of the estate.

[9] Assemb. 6145, 1983 Leg., Reg. Sess. (N.Y. 1983) (statement of Assemb. McCabe); S. 4185, 1983 Leg., Reg. Sess. (N.Y. 1983) (Sen. Barclay).

[10] Id.

[11] Terrigino v. Zaleski, 544 N.Y.S.2d 283, 285 (Sup. Ct. Monroe Cnty. 1989).

[12] Section 11-101 of the GOL is another portion of the Dram Shop Act, which permits the recovery of damages against a defendant who knowingly provides alcohol to a person under the age of 21, where that underage person caused the plaintiff’s injury and/or death. See supra note 6.

[13] Terrigino, 544 N.Y.S.2d at 285.

[14] Id. (citing Huyler v. Rose, 451 N.Y.S.2d 478 (App. Div. 4th Dep’t 1982); Gabrielle v. Craft, 428 N.Y.S.2d 84 (App. Div. 3d Dep’t 1980)). See also D’Amico v. Christie, 518 N.E.2d 896 (N.Y. 1987).

[15] Terrigino, 544 N.Y.S.2d at 286 (quoting People v. Lam Lek Chong, 379 N.E.2d 200 (N.Y. 1978) (“‘. . . any passing of drugs from one person to another would constitute a sale,’ and it is not necessary that the supplier receive something in return in order to constitute a sale.”) (alteration in original).