Unfortunately, the words "drunk driving" need no introduction; they immediately call to mind horrific images of car accidents, and, for most people, arouse feelings of disdain and digust.

But what happens to the victims of a drunk driver? What if that driver inflicted serious personal injuries on someone else, and didn't carry enough insurance to fairly compensate his victim for the injuries she sustained? Considering how irresponsible it was for this driver to get behind the wheel when he was intoxicated, it is certainly no stretch of the imagination for that same person to carry inadequate liability insurance, is it?

Other than assuring that you yourself carry adequate Supplementary Uninsured/Underinsured Motorist coverage, there is one other possible avenue of recovery under New York law: the Dram Shop Act.

New York's Dram Shop Act, as codified at General Obligations Law §11-101, entitled "Compensation for Injury Caused by the Illegal Sale of Intoxicating Liquor," states in pertinent part, as follows:

"(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. "

Applying this statute, New York's courts have held that a plaintiff can prevail on a Dram Shop Act claim if the plaintiff proves the following: (1) that the defendant unlawfully sold an alcoholic beverage to the intoxicated person that caused the accident, in violation of the statute; (2) that the defendant furnished this alcohol when this person was already "visibly intoxicated";  (3) that the furnishing of this particular alcohol contributed to the person's intoxication in some significant manner; and, (4) that there is a reasonable connection between this person's intoxication and injuries sustained by the plaintiff.

Importantly, and as a final note, while these cases are generally difficult to prove, in Romano v. Stanley, 90 NY2d 444, New York's highest court held that a Dram Shop claim need not be proven by direct evidence; to the contrary, circumstantial evidence can be used to establish the visible intoxication of the customer, including, for example, the testimony of eyewitnesses. See, e.g., Kirsh v. Farley, 24 AD3d 1198.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer