Police arrested me for driving intoxicated after I crashed my car. Can I make a Dram Shop claim for my injuries against the bar that had served me?
The short answer is no.
Although you asked specifically about the Dram Shop claim, you have no claim under common law. There is no common law claim against the bar for persons who are injured as a result of their own voluntary intoxication. Sheehy v Big Flats Community Day, 73 NY2d 629, 543 NYS2d 18 (1989).
The Dram Shop law is also no more helpful. The Dram Shop law protects people injured by an intoxicated person, not the intoxicated person served alcohol. In other words, if you had a passenger in the car that was injured, that passenger has a Dram Shop claim against the bar. Or suppose your car struck another car causing injuries, then those occupants of the other car would have a Dram Shop claim. Sherman v Robinson, 80 NY2d 483, 591 NYS2d 974 (1992). When you procure alcohol for your own intoxication, you cannot sue the entity that provided the alcohol. Mitchel v Shoals, 19 NY2d 338, 280 NYS2d 113 (1967). The Dram Shop law is only for those others injured due to your intoxication.
Negligent Entrustment
Lawyers have tried to work around this Dram Shop law limitation. One intoxicated plaintiff brought a claim for negligent entrustment against the owner of the car that the intoxicated person was driving. The allegation was that the owner should not have let the intoxicated driver use the owner’s car. The plaintiff’s case was dismissed against the owner. Shultes v Carr, 127 AD2d 916 (3d Dept. 1987).
In another attempt, a driver sued the police for allowing him to drive intoxicated after the police car stopped the driver for passing a red light. The police ticketed the driver for passing a red light and confiscated opened and unopened beer cans. The police sent the driver on his way. The intoxicated driver then proceeded to get into an accident. The driver sued the police for negligent entrustment for failing to prevent the driver from operating a vehicle while intoxicated. The court dismissed the case. Luczak v Town of Colonie, 234 AD2d 691, 650 NYS2d 455 (3d Dept. 1996).
By James Santner, Esq.
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