For information on New Jersey dram shop and social host liability, please click here. Please also visit our Guide to Recovery of PIP in New York and Guide to Recovery of PIP in New Jersey which also feature other selected laws related to subrogation.
Besides the liability provided for in these statutes, as discussed further below, under New York common law, owners of property may be liable for injuries occurring on premises related to alcohol consumption and one may be liable for failure to supervise minors under one's care and control.
This web page discusses some of the basics of liquor liability in New York. Additional resources available on the internet in this regard include a Touro Law Review article, "Are New York's Social Host Liability Laws Too Strict, Too Lenient, or Just Right," available here and a New York State Bar Association Torts, Insurance and Compensation Law Section Journal article, "A Refresher on New York Dram Shop Liability" available here.
General Obligations Law 11-101: Liability for unlawful sale of alcohol.
There must be a sale of alcohol (furnishing alcohol to minors without a sale is covered by 11-100).
Punitive damages are available for willful and wanton conduct.
General Obligations Law 11-100: Liability for unlawfully furnishing alcohol to a minor or assisting a minor in procuring alcohol.
What constitutes assisting in procuring alcohol?
Mere participation in a party with underage drinking (even by an adult) does not give rise to liability.
A minor may be held liable under 11-100 for furnishing alcohol to another minor.
Alcoholic Beverage Control Law 65: Definition of "unlawful selling/furnishing" of alcohol.
Important case law points related to General Obligations Law 11-100 and 11-101.
Requirement of direct sale/furnishing of alcohol.
Apparent age of person sold/furnished with alcohol (includes discussion of fake IDs).
A minor need not be intoxicated when sold/furnished with alcohol.
The person sold/furnished alcohol must be intoxicated/impaired at the time of the incident.
Intoxication/impairment must play a part in causing the accident.
Liability of property owners for alcohol provided on their property.
Claims by the intoxicated person are not permitted.
Types of damages recoverable under Gen. Obl. L. 11-101 and Gen. Obl. L. 11-100.
Punitive damages are recoverable under 11-101, but not under 11-100.
Claims by decedent's relatives and against estate of person selling/furnishing alcohol.
Loss of services, affection and companionship may not be recovered.
Emotional distress (injured person only, but physical injury not required).
New York's statutory modifications to joint and several liability may apply to claims under Gen. Obl. L. 11-100 and 11-101.
The statute of limitations for 11-100 and 11-101 claims is 3 years even for wrongful death.
A no-fault (PIP) carrier is entitled to a lien on recoveries for liquor liability.
Insurance cases related to liquor liability.
A premises liability claim only applies to injuries which occur on the premises.
A premises liability clam probably can not be sustained by the intoxicated person him/herself.
Owner who rents premises to others not liable.
Parent's responsibility for parties at home.
No premises liability for sudden assaults.
Duty to supervise a minor under one's care and control.
The duty extends to supervising the minor's safe departure.
Liability extends to injuries off premises.
There is liability for injuries to the intoxicated minor.
What about liability to others whom the intoxicated minor injures?
Under Gen. Obl. L. 11-101 (text available from Findlaw here - opens in new tab) a person who is injured (personal injury, property damage, etc.) "by an intoxicated person, or by reason of the intoxication of any person" has a right to recover damages from anyone who, "by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication[.]" Both actual damages and exemplary (i.e. punitive) damages may be recovered.
Although 11-101 does not require the seller's conduct be "knowing," Sherman v. Robinson, 80 N.Y.2d 483, 488 (1992) reads this requirement into the statute based on analogy from Gen. Obl. L. 11-100 (discussed below) which does refer to one who "knowingly causes such intoxication . . . by unlawfully furnishing . . . [alcohol] . . . "
Thus, in order to establish liability, there must be "(1) an injury caused by an intoxicated person, (2) a knowingly unlawful sale of alcohol by the defendant to the intoxicated person, and (3) that the alcohol sold by the defendant caused or contributed to the person's intoxication at the time the injury occurred[.]" Johnson v. Verona Oil, Inc., 36 A.D.3d 991, 993 (3d Dep't 2007)(citations omitted).
The term "unlawful selling/assisting in procuring" is understood to refer to a violation of N.Y. Alco. Bev. Cont. L. 65 discussed below. See Sherman v. Robinson, 80 N.Y.2d 483, 487 (1992).
Where the conditions of Gen. Obl. L.11-101 are not met but injury occurs on the property of the seller of alcohol, premises liability may apply.
There must be a sale of alcohol (furnishing alcohol to minors without a sale is covered by 11-100). Importantly, Gen. Obl. L. 11-101 applies only to commercial sale of alcohol and not, for instance, alcohol provided to employees at a company picnic. D'Amico v. Christie, 71 N.Y.2d 76, 83-84 (1987).
As such, a bar could not be held liable for alcohol consumed by its bartender because the bartender did not pay for the alcohol and thus the bar had not engaged in a sale of alcohol. Carr v. Kaifler 195 A.D.2d 584 (2d Dept. 1993), Custen v. Salty Dog, Inc.4445, 170 A.D.2d 572 (2nd Dept. 1991) Similarly, in Stevens v. Spec, Inc., 224 A.D.2d 811, 813 (3rd Dept. 1996), where an independent contractor was "free to drink if he wished and, if he did so, he would be furnished with free drinks," there was no sale of alcohol implicated Gen. Obl. L. 11-101. The three-judge majority rejected the two dissenting judges' argument that the free alcohol was part of the considerations of the contract and thus did implicate the Dram Shop Act. Id. at 813-814 (Yesawich Jr., J, concurring in part and dissenting in part). Note that the dissent disagreed with Carr and Custen to the extent that those cases would disagree with the dissent's conclusion.
In Wright v. Sunset Recreation, Inc., 91 A.D.2d 701 (3rd Dept. 1982) cited with approval in D'Amico v. Christie, 71 N.Y.2d 76, 83 (1987), a bowling alley was landlord to a tavern, and tavern waitresses would solicit and fill orders for drinks from bowling alley patrons. Noting that the Dram Shop Act must be construed narrowly, the court said that "[t]he convenience that may have existed by reason of the closeness of the bowling alley to the tavern cannot cause a sale by the tavern on the bowling alley premises to rise to the level of a sale by [the bowling alley] so as to impose liability." Similarly, in Haskell v. Chautauqua County Fireman's Fraternity, Inc., 184 A.D.2d 12, 17 (4th Dept. 1992) organizers of a charity event, including the owner of the grounds on which the event took place, could not be held liable for sale of alcohol where such concessions were handled by particular organizations.
Note that, as discussed below, the sale of alcohol has to be a fairly direct sale from the seller to the intoxicated person.
Also note that where there is no witness to the actual sale of alcohol, circumstantial evidence may be sufficient. See e.g. McGovern v. 4299 Katonah Inc., 5 A.D.3d 239, 240 (1st Dept. 2004), Jarzabek v. Tucci, 155 A.D.2d 908 (4th Dept. 1989).
Where there is no commercial sale of alcohol, Gen. Obl. L. 11-100 (discussed below) provides a potential for liability where alcohol was furnished to a person under 21. However, despite the enactment of 11-100, 11-101 (and, for instance, the availability of punitive damages under this statute) remains available in situations where alcohol is sold to a minor. McCauley v. Carmel Lanes, Inc., 178 A.D.2d 835, 836 (3rd. Dept. 1991).
Punitive damages are available for willful and wanton conduct. As noted above, punitive damages are permitted by the statute. In order to receive punitive damages, the plaintiff must prove willful and wanton conduct. See Samela v Post Rd. Entertainment Corp., 100 A.D.3d 857, 859 (2d Dept. 2012), McCauley v. Carmel Lanes, Inc., 178 A.D.2d 835, 836 (3d Dept. 1991).
Gen. Obl. L. 11-100 (text available from Findlaw here - opens in new tab) "intended to parallel those [provisions] contained in New York's Dram Shop Statute" (discussed above) without the requirement of a commercial sale. Sherman v. Robinson, 80 N.Y.2d 483, 487 (1992)(citations omitted).
Under 11-100, a person who is injured (personal injury, property damage, etc.) "by reason of the intoxication or impairment of ability of any person under the age of twenty-one years" has a right to recover damages from anyone 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."
Unlike 11-101, there is no reference to exemplary (i.e. punitive) damages and therefore punitive damages are not available under this statute. Lee v. Holloway, 146 Misc. 2d 455, 460 (Sup. Ct. Wayne Cty. 1989).
The term "unlawful furnishing/assisting in procuring" is understood to refer to a violation of N.Y. Alco. Bev. Cont. L. 65 discussed below. See Sherman v. Robinson, 80 N.Y.2d 483, 487 (1992). For the most part, as long as alcohol is provided to a person under 21, the action will be unlawful.
What constitutes furnishing alcohol? The Court of Appeals in Rust v. Reyer, 91 N.Y.2d 355, 359 (1998) recognized that the term "furnishing" is not defined in the statute, and noted that the term "is ordinarily understood to mean 'to provide in any way,' 'to supply' or 'to give[.]'" (citations omitted). The Court found that where a host allegedly "gave permission for the alcohol at the party . . . provided storage for the kegs of beer both before and after the party, negotiated a share of the proceeds from cup sales for herself and at least attempted to arrange for her friends to drink the beer without charge . . . if proven at trial, these facts could bring Reyer's acts within the meaning of 'furnishing' as used in the statute." Id. at 359-360. Rust comments that "Reyer's role could well be viewed as part of a deliberate plan to provide . . . alcohol," id. at 360 and that Reyer, "played an indispensable role in the scheme to make the alcohol available." Id. at 361. Although the Court did not say that such a role is necessary to constitute "furnishing," a number of Appellate Division cases have recited this language as the standard for liability for "furnishing" alcohol. See e.g. Cannon v Giordano, 93 A.D.3d 1329, 1330 (4th Dept.) app. denied 19 N.Y.3d 805 (2012)(dismissing on summary judgment a Gen. Obl. L. 11-100 claim against parents who purchased pitchers of beer at child's 21st birthday and a underage person helped herself to contents thereof), O'Neill v. Ithaca College, 56 A.D.3d 869, 870 (3rd Dept. 2008), McGlynn v. St. Andrew the Apostle Church, 304 A.D.2d 372, 373 (1st Dept.) app. denied, 100 N.Y.2d 508 (2003). In O'Neil 56 A.D.3d at 871, where Defendant drove another individual to buy beer for a party and admitted to having a shot (Defendant was under age), the court found "a question of fact as to whether [Defendant] assisted in furnishing alcohol to plaintiff."
As discussed below, mere ownership of premises on which alcohol is furnished is not sufficient for liability although in certain situations owners of property may be liable for injuries occurring on premises related to alcohol consumption (see below on premises liability). and one may be liable for failure to supervise minors under one's care and control. Note that these forms of liability can be established even in circumstances where the requirements of Gen. Obl. L. 11-100 or 11-101 are not met.
What constitutes assisting in procuring alcohol? "The term 'assisting in procuring' alcohol includes 'using one's own money to purchase alcohol for another', and 'contributing money to the purchase of alcohol'." Bregartner v. Southland Corp., 257 A.D.2d 554, 555-556 (2nd Dept. 1999)(citations omitted).
Fake identification. Etu v. Cumberland Farms, Inc., 148 A.D.2d 821, 824 (3rd Dept. 1989) rejected a claim that selling a fake ID could constitute "assisting in procuring," although the fact that the fake ID was clearly fairly poor may have contributed to that decision. Note that the Etu case also contemplates some other possible causes of action against the seller of a fake ID, which might be viable when supported with other evidence or arguments.
A minor may be held liable under 11-100 for furnishing alcohol to another minor. Schrader v. Carney, 180 A.D.2d 200, 205 (4th Dept. 1992).
Both Gen. Obl. L. 11-101 and Gen. Obl. L. 11-100 require a person to unlawfully sell/provide alcohol in order for there to be liability. As noted, the unlawful behavior referred to in these statutes is understood to refer to a violation of N.Y. Alco. Bev. Cont. L. 65. See Sherman v. Robinson, 80 N.Y.2d 483, 487 (1992). Section 65 (text available from Findlaw here - opens in new tab) forbids selling (with some other terms included such as "giving away") alcohol to a person "actually or apparently, under the age of twenty-one years;" "visibly intoxicated;" or a "habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages."
Note that although N.Y. Alco. Bev. Cont. L. 65 can be violated even where the person acquiring the alcohol appears to be of age, see e.g. Barnett v. O'Connell, 279 A.D. 449, 450 (3rd Dept. 1952), as discussed below liability under Gen. Obl. L. 11-100 and 11-101 requires some showing that the person selling/providing alcohol to a minor knew or should have known that the minor was under age.
Proving visible intoxication. A major challenge in many liquor liability cases is proving that alcohol was provided to a person while that person was visibly intoxicated. Note that, as discussed below, where a minor is involved, the minor need not be intoxicated when the alcohol was sold/furnished. Also note that this is a slightly different question from whether the person in question was intoxicated/impaired at the time of the incident, although that case law may be informative in this context as well.
The Legislature's use of the term "visible," . . . does not create a rigid requirement that essential element of the claim be established by direct proof in the form of testimonial evidence from someone who actually observed the allegedly intoxicated person's demeanor at the time and place that the alcohol was served. To the contrary, as was recognized at the time section 65 (2) was amended, the statutory language "[does] not preclude the introduction of circumstantial evidence to establish the visible intoxication of the customer" (Governor's Approval Mem, op. cit., at 3194).
Romano v. Stanley, 90 N.Y.2d 444, 450 (1997). Although blood alcohol level can be a strong piece of evidence, "high blood alcohol count alone, however, generally does not establish the 'visible' intoxication," both because allowing it to be sufficient proof "would run counter to the legislative goal of requiring an innkeeper's actual knowledge or notice of the customer's condition as a predicate for an 'unlawful' sale" and because, "it is well known that the effects of alcohol consumption 'may differ greatly from person to person[.]'" Id. (citations omitted) Hence, an expert's opinion that, based solely on a later blood alcohol test and the person's physical characteristics, the intoxicated person would have exhibited signs of visible intoxication when provided alcohol is likely insufficient to survive summary judgment. Id. at 451-452.
In Romano, the intoxicated person in question (Stanley) consumed alcohol at three establishments. According to evidence submitted on a motion for summary judgment, she arrived at "Jack's" around 6:45 PM and consumed one beer. Three co-workers and a Jack's bartender (who knew Stanley) testified that she did not appear intoxicated at this establishment. Id. at 447-448. Stanley then went to "Martel's" where she was served two more drinks. No witnesses saw her exhibit any signs of intoxication at Martel's. Id. at 448. Stanley then proceeded to "Dee's", arriving around 9:15 or 9:30 (the Court does not recite what quantity of alcohol she consumed at Dee's). One of her acquaintances indicated that Stanley appeared intoxicated when she left Dee's. Id. at 448. The traffic accident occurred at 10:30 PM. Id. at 447.
Martel's and Jacks's moved for summary judgment on the grounds that there was no sufficient proof that Stanley was visibly intoxicated at either establishment. Plaintiffs relied on a lab report indicating that Stanley had a blood alcohol level of .26% and a .33% level in her urine when she died, id. at 448, and Plaintiff's expert's conclusion based on this fact and Stanley's physical characteristics that Stanley must have exhibited signs of intoxication at least four hours prior to the accident at the times that Stanley was at Jack's and Martel's. Id.
The Court of Appeals found that the expert's report was "speculative and conclusory" and "unencumbered by any trace of facts or data." Id. at 451 (citations omitted). Although, as quoted in greater length above, the Court recognized that "[i]n some situations, the nature of the subject matter or the expert's area of special skill" or reference to outside material "of a kind accepted in the profession as reliable," can be sufficient, Plaintiff's expert's expertise was not found to be "sufficient to lend credence to his opinions," and his report "was devoid of any reference to a foundational scientific basis for its conclusions." Id. at 452. The Court concluded that the expert's affidavit, "had no probative force and was not by itself sufficient to defeat these defendants' motions for summary judgment" and granted summary judgment to Martel's and Jack's. Id. at 452.
Adamy v. Ziriakus, 92 N.Y.2d 396 (1998) came to a different result on somewhat similar facts. There, Plaintiff's expert opined that, based on the Ziriaku's (intoxicated person's) .17 blood alcohol content at 3:00AM, he had consumed 12 drinks at T.G.I. Friday's, that his blood alcohol level would have been .20 when he left the bar and would have been visibly intoxicated when last served. Id. at 401.
In Adamy, the Court of Appeals affirmed judgment against Friday's. The Court distinguished this case from Romano on procedural and factual grounds. At issue in Romano was the use of an expert's affidavit to defeat summary judgment, in which case the affidavit "must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered alone at trial, support a verdict in the proponent's favor[.]" Id. at 402 quoting Romano 90 N.Y.2d at 452. In Adamy the question was whether the expert's testimony was sufficient to support a jury's conclusions, in which case "it falls to the opponent of the testimony to bring out weaknesses in the expert's qualifications and foundational support on cross-examination--which is, of course, unavailable to a party seeking summary judgment, as in Romano." Id. The Court also noted that, unlike Romano, where the Plaintiff relied only on the expert's opinion, the Plaintiff in Adamy also relied on testimony of a police officer who observed Ziriaku's behavior at the scene of the accident, noting that, "[g]iven that these observations occurred a short time after Ziriakus left Friday's, it was not irrational for the jury, based on everyday experience and common knowledge, to find that Ziriakus was visibly intoxicated when served at Friday's." Id. at 402-403. Finally, the jury was properly allowed to consider the failure of Friday's bartender to testify as possibly indicating that his testimony would have been against Friday's position. Id.
Note that both Romano 90 N.Y.2d at 450 and Adamay 92 N.Y.2d at 401 note in footnotes that they were not deciding whether "relation-back" (extrapolating blood alcohol level at an earlier point based on a later blood test) was valid, though they reference People v. MacDonald, 227 A.D.2d 672, 674-675 (3d Dept.) affd. on other grounds 89 N.Y.2d 908 (1996) where the Third Department did find such extrapolation acceptable. Although we are not aware of any Court of Appeals case passing on this question, this form of extrapolation has continued to be accepted in the New York Appellate Division and the Court of Appeals has declined to review a number of these cases. See e.g. People v Menegan, 107 A.D.3d 1166, 1168-1169 (3rd Dept. 2013), People v. Stiffler, 237 A.D.2d 753, 754 (3rd Dept.) app. denied 90 N.Y.2d 864 (1997), People v. O'Connor, 290 A.D.2d 519, 520 (2d Dept.) app. denied 97 N.Y.2d 758 (2002), People v. Dombrowski-Bove, 300 A.D.2d 1122, 1123 (4th Dept. 2002).
N.Y. Veh. & Traf. L. 1192 does not create a presumption of intoxication based on blood alcohol level. Scheu v. High-Forest Corp., 129 A.D.2d 366, 371-372 (3rd Dept. 1987). See also Johnson v. Plotkin discussed in the section below regarding intoxicated/impaired at the time of the incident.
In Kish v. Farley, 24 A.D.3d 1198, 1200 (4th Dept. 2005) summary judgment was properly denied despite Defendant's bartenders averring that they had no recollection of Mills's visible intoxication where Plaintiff's expert relied on blood alcohol count, deposition testimony of a companion's description of Mills's visible intoxication, and statements of eyewitnesses regarding the circumstances of the accident. See further Sullivan v. Mulinos of Westchester, Inc., 73 A.D.3d 1018, 1020 (2nd Dept. 2010).
In Conklin v Travers, 129 A.D.3d 765, 766 (2nd Dept. 2015), an officer's description of the intoxicated person at the scene of the accident was sufficient to deny summary judgment in favor of the restaurant, despite several witnesses stating that the intoxicated person did not display signs of visible intoxication at the restaurant.
In Marconi v. Reilly, 254 A.D.2d 463 (2nd Dept. 1998) defendant's summary judgment motion was properly denied where, despite the intoxicated person's testimony that "she had no trouble getting off her barstool and leaving the restaurant," there was testimony regarding her intoxicated demeanor at the scene of the accident and a toxicologists' report that she "would have been exhibiting obvious signs of intoxication when she was served her last drink." Id. at 464. The court noted that, contrary to the facts in Romano, the expert's report included scientific data upon which his conclusions were based. This evidence was sufficient to raise a triable issue of fact as to whether a visibly intoxicated person had been served alcohol. See further Roy v. Volonino, 262 A.D.2d 546 (2nd Dept.), app. dismissed, 94 N.Y.2d 796 (1999)(Toxicologist's report, supported by scientific data, combined with eyewitness testifying to person's intoxicated state when entering a subsequent bar, sufficient to raise triable issue of fact as to whether prior bar served patron while same was visibly intoxicated).
Lay witnesses are competent to testify to intoxication.
An ordinary witness is competent to express an opinion as to whether he or she or any other person was intoxicated. "The exception under which the opinion of an ordinary witness may be received is said to rest upon the necessity of the case, for it often happens that it is quite impossible for a witness to describe in detail all the pertinent facts in such a manner as to enable a jury to form a conclusion without the opinion of the witness" (Richardson, Evidence § 363, at 327-328 [Prince 10th ed]). Thus, "lay witnesses who have sufficiently observed the actions of a person may testify categorically that the latter was sober or intoxicated"
Ryan v. Big Z Corp., 210 A.D.2d 649, 651 (3rd Dept. 1994)(some citations omitted). Thus, the testimony of three lay witnesses as to an assailant's intoxication was sufficient to raise a question of fact as to service of a visibly intoxicated person. Id. See further People v. Cruz, 48 N.Y.2d 419, 428 (1979).
Instructions to a jury should make it clear that while a single piece of circumstantial evidence is insufficient, a combination of pieces of circumstantial evidence may be sufficient to demonstrate visible intoxication. See LaCatena v. M.C. & E.D. Beck, Inc., 35 A.D.3d 388, 389 (2nd Dept. 2006).
The sale of alcohol under Gen. Obl. L. 11-101 or furnishing of alcohol to a minor under Gen. Obl. L. 11-100 must be a relatively direct sale/furnishing to the intoxicated person. Thus, in Sherman v. Robinson, 80 N.Y.2d 483 (1992) where Reif purchased alcohol while Robinson, the eventual intoxicated driver, waited in the car, the Court of Appeals found that there was no potential liability under Gen. Obl. L. 11-100 or 11-101 because liability is limited to selling/furnishing alcohol to the particular intoxicated person who got into the accident, even though it was sold to another underage person (note both 11-100 and 11-101 refer to liability for selling/furnishing/assisting in procuring alcohol for "such intoxicated person"). Id. at 487. The fact that a large quantity of alcohol was sold to a single individual did not impose any duty on the seller to investigate "possible ultimate consumers in the parking lot beyond its doors[,]" though the Court did suggest that in certain instances liability may be found where the intoxicated person was present at the time of the sale, either giving money to the purchaser or taking the alcohol from the purchaser. Id. at 488.
The Sherman decision does acknowledge that there can be certain facts on which it can be "reasonably inferred" that the seller knew that it was selling the alcohol to another person, for example if more than one person shows up at the checkout counter with one handing money to the other or taking the alcohol out of the hands of the "purchaser." Id. at 488. Sherman references certain cases (4373 Tavern Corp. v. New York State Liquor Authority, 50 A.D.2d 855 (2nd Dept. 1975), Beverly Lanes, Inc. v. Rohan, 12 A.D.2d 156 (4th Dept. 1961) revd. on dissenting opn. 11 N.Y.2d 909 (1962), Sheibar v. New York State Liquor Authority, 4 A.D.2d 442 (1st Dept. 1957) affd. 4 N.Y.2d 984 (1958)) addressing violations of N.Y. Alco. Bev. Cont. L. 65 and suggests that if alcohol is sold to one person who brings the alcohol to other person(s) within the premises (e.g. a person purchasing a pitcher of beer at the bar and taking it back to a table with friends), "where conduct constituting the alleged delivery of alcohol . . . was 'open, observable and of such nature that its continuance could, by the exercise of reasonable diligence, have been prevented.'" there may be grounds for liability. Id. (citations omitted).
In Kindzierski v. Foster, 217 A.D.2d 998, 999 (4th Dept. 1995) the court found a question of fact as to whether the seller knew that the beer was being sold to the underage driver where the buyer made two separate purchases of 12-packs, during the second transaction the buyer did not have enough money and therefore went out to the car to get more money which was given to him by the driver, and the seller looked over to the car and a driver waved to him. See further Krampen v. Foster, 242 A.D.2d 913 (4th Dept. 1997) In Ahigian v. Davis, 6 A.D.3d 956, 957 (3rd Dept.) app. denied 3 N.Y.3d 608 (2004), where an adult purchased alcohol with driver and another minor in a car that could be seen through the store window, and the buyer went out to consult with the driver during the purchase, the court commented that, "[w]hile there may be circumstances where a minor tortfeasor's participation in the purchase is so immediate and apparent to the seller that an exception to this rule [requiring direct sale] could be found . . . such circumstances are not present here," (citations omitted) and the court affirmed summary judgment in favor of the defendants. In Remillard v. Louis Williams, Inc., 59 A.D.3d 764, 765 (3rd Dept. 2009) where the intoxicated person's wife and friends purchased beer for the intoxicated person at a party the court did not "find any compelling facts or circumstances 'from which the requisite knowledge [of defendant] could reasonably be inferred' that the alcoholic beverages were actually being purchased for [the intoxicated person]." The court upheld the jury's verdict in favor of Defendants. Id. at 766.
Apparent age of person sold/furnished with alcohol (includes discussion of fake IDs). As discussed above, liability under Gen. Obl. L. 11-100 requires that one "knowingly causes such intoxication . . . by unlawfully furnishing . . . [alcohol] . . . with knowledge or reasonable cause to believe that such person was under the age of twenty-one years" and the courts have applied the "knowledge" requirement of Gen. Obl. L. 11-100 to claims under Gen. Obl. L. 101. Where the seller of alcohol does not adequately inspect identification, a question of fact may arise as to whether the person should have know that the buyer was under 21, thus subjecting the seller to liability under Gen. Obl. L. 11-100 and 101. Johnson v. Verona Oil, Inc., 36 A.D.3d 991, 993-994 (3d Dept. 2007).
Note also that N.Y. Alco. Bev. Cont. L. 65(6)(a) specifies that in a proceeding to revoke or suspend a liquor license for serving underage persons, it is an affirmative defense to prove that the person in question "produced a photographic identification card apparently issued by a governmental entity and that the alcoholic beverage had been sold, delivered or given to such person in reasonable reliance upon such identification." One might argue that this statute implies that such proof should be a defense against dram shop claims, or one might argue that since the statute specifies this only as a defense to suspension of a liquor license, the implication is that it should not be a defense in civil claims. We are not aware of any cases on point.
A minor need not be intoxicated/impaired when sold/furnished with alcohol. Alco. Bev. Cont. L. 65 (the violation of which is required for liability under Gen. Obl. L. 11-101) refers separately to selling alcohol to a visibly intoxicated person or a person under 21. Similarly, Gen. Obl. L. 11-100 refers to liability for furnishing alcohol to a minor without reference to that minor being intoxicated at the time. Therefore, the minor need not be intoxicated at the time that the minor was sold/furnished with alcohol. Powers v. Niagara Mohawk Power Corp., 129 A.D.2d 37, 40 (3rd Dept. 1987), Johnson v. Plotkin, 172 A.D.2d 88, 90-91 (3rd Dept. 1991) app. dismissed, 79 N.Y.2d 977 (1992). Note, however, that as discussed below, the person in question must be intoxicated at the time of the incident (e.g. the car accident).
The person sold/furnished alcohol must be intoxicated/impaired at the time of the incident. Gen. Obl. L. 11-101 requires that injuries be caused "by an intoxicated person, or by reason of the intoxication of any person," and Gen. Obl. L. 11-100 requires that the injury be "by reason of the intoxication or impairment of ability of any person under the age of twenty-one years." Therefore, even though, as discussed above, a person sold or furnished alcohol when under the age of 21 need not be intoxicated when sold/furnished alcohol, both adults and minors must be intoxicated/impaired at the time of the incident (e.g. the car accident) in order for the person(s) who sold/furnished alcohol to be liable. Johnson 172 A.D.2d at 91, Basile v. Francino, 253 A.D.2d 779 (2nd Dept. 1998) app. dismissed, 93 N.Y.2d 958 (1999).
In Renzo v. Tops Friendly Markets, Inc., 136 A.D.2d 952, 953 (4th Dept. 1988) the court wrote that "Intoxication is not an unfamiliar concept however, or a concept that requires an expert opinion. 'A layman, including the defendant and those charged with administering the law, should be able to determine whether defendant's consumption of alcohol has rendered him incapable of operating a motor vehicle as he should.'" (citations omitted). The court in Renzon concluded that the arresting officer's observations were sufficient to raise a fact question as to the intoxication of the person involved and that the fact that the intoxicated minor's blood alcohol level was tested at .01% did not obviate this question despite N.Y. Veh. & Traf. L. 1195(2)(a) specifying that a blood alcohol level of .05% or less constituted "prima facie evidence that the ability of such person to operate a motor vehicle was not impaired by the consumption of alcohol, and that such person was not in an intoxicated condition." Regarding lay opinion of intoxication, see further People v. Cruz, 48 N.Y.2d 419, 428 (1979).
Johnson v. Plotkin, 172 A.D.2d 88, 91 (3rd Dept. 1991) concludes that the New York statutes do not create any presumption of intoxication based on a particular blood alcohol level. Nonetheless, the court concludes that "we are of the view that for the purposes of the Dram Shop Act a blood alcohol content of .26% is some evidence of intoxication and, in the circumstances of this case, it is sufficient to preclude summary judgment on the issue of the deceased driver's intoxication at the time of the accident." Id. Regarding the lack of presumption of intoxication based on the statute, see also Scheu v. High-Forest Corp., discussed in the section above regarding whether a person was visibly intoxicated when sold alcohol.
Intoxication/impairment must play a part in causing the accident. As noted above, Gen. Obl. L. 11-101 requires that injuries be caused "by an intoxicated person, or by reason of the intoxication of any person," and Gen. Obl. L. 11-100 requires that the injury be "by reason of the intoxication or impairment of ability of any person under the age of twenty-one years."
In order to show that the damages suffered by the plaintiff in a Dram Shop action arose "by reason of the intoxication" of a patron to whom alcohol was illegally sold, there must be "some reasonable or practical connection" between the sale of alcohol and the resulting injuries. However, proximate cause, as must be established in a conventional negligence case, is not required.
In Catania, where "the jury found that the defendant sold alcohol to the visibly-intoxicated person who assaulted the plaintiff, and that the sale of alcohol contributed to this person's intoxication to an appreciable degree . . . . [,] . . . there was uncontradicted testimony that the unidentified assailant's behavior became increasingly aggressive as he continued to drink throughout the course of the evening, and that the attack on the plaintiff was sudden and unprovoked," the court concluded that "'no valid line of reasoning and permissible inferences' could have lead to a conclusion other than that there was a reasonable connection between the assailant's intoxication and the assault," and therefore the jury's finding in favor of Defendant was vacated and Plaintiff granted judgment as a matter of law as to liability. Id. at 478.
Murphy v Cominsky, 100 A.D.3d 1493 (4th Dept. 2012) finding the argument that, "as a result of their intoxication, the minors attending the party became rowdy, thereby agitating the dog and causing it to bite plaintiff" "stated a legally cognizable cause of action against defendant for a violation of the Dram Shop Act." (citations omitted).
In Church v. Burdick, 227 A.D.2d 817, 818 (3rd Dept. 1996), the Third Department found that despite the fact that the intoxicated person had been "passive" throughout his "four-hour drinking bout" and that the intoxicated person had been sleeping for several minutes when he got home, a question of fact still remained as to whether his intoxication contributed to him shooting the decedent.
Liability of property owners for alcohol provided on their property. An owner of property may not be held liable under Gen. Obl. L. 11-100 or 11-101 absent taking part in the activity described in those sections. Guercia v. Carter, 274 A.D.2d 553, 554 (2nd Dept. 2000)(parents whose children threw a party while they are away without the parents' permission to serve alcohol), Lane v. Barker, 241 A.D.2d 739, 739-740 (3rd dept. Dep't 1997)(parents whose adult child hosted a part with alcohol with their permission but without parents' participation in providing the alcohol), Lombart v. Chambery, 19 A.D.3d 1110, 1111 (4th Dept. 2005)(similar to Lane), McGlynn v. St. Andrew the Apostle Church, 373 (1st Dept. 2003) app. denied, 100 N.Y.2d 508, (2003)(church renting space to a 20 year old to host a party even if the church knew that alcohol would be served), Wright v. Sunset Recreation, Inc., 91 A.D.2d 701 (3rd Dept. 1982) cited with approval in D'Amico v. Christie, 71 N.Y.2d 76, 83 (1987)(Bowling alley not liable where it was landlord to a tavern, and tavern waitresses would solicit and fill orders for drinks from bowling alley patrons).
Note that in certain situations owners of property may be liable for injuries occurring on premises related to alcohol consumption (see below on premises liability), and one may be liable for failure to supervise minors under one's care and control. Note that these forms of liability can be established even in circumstances where the requirements of Gen. Obl. L. 11-100 or 11-101 are not met.
This rule pertains both to claims under Gen. Obl. L. 11-101 and under Gen. Obl. L. 11-100. Sheehy v. Big Flats Community Day, Inc., 73 N.Y.2d 629 (1989).
People who suffer losses due to the injury or death of the intoxicated person (e.g. loss of support) can make a claim and likely are not subject to any reduction for the comparative negligence of the intoxicated person. Similarly, parents may recover for medical and funeral expenses incurred on behalf of their minor children, see e.g. Kudisch v Grumpy Jack's, Inc., 112 A.D.3d 788, 791-792 (2nd Dept. 2013), McArdle v. 123 Jackpot, Inc., 51 A.D.3d 743, 746 (2nd Dept. 2008) and cases cited therein.
In situations where premises liability applies, it is not entirely clear whether a claim by the injured intoxicated person will lie.
Where the injured intoxicated party is a minor, in certain situations, a claim for negligent supervision may lie.
Oursler v. Brennan, 67 A.D.3d 36, 40 (4th Dept. 2009) and O'Gara v. Alacci, 67 A.D.3d 54,57 (2nd Dept. 2009) assume that this rule applies to a drunk pedestrian, without discussing whether a pedestrian should be any different from other injured parties. However, both Ousler, at 44-45, and O’Gara, at 57-59 say that if the injured pedestrian sues the driver, the driver may sue the dram shop for contribution. On the other hand, Fowler v. Taffe, 152 Misc. 2d 343, 576 N.Y.S.2d 743 (Sup. Ct. Bronx Cty. 1990) held that a contribution claim cannot lie (note Bronx County is in the 1st Department). Schoonover v. City of N.Y., 2018 NY Slip Op 31777(U) (Sup. Ct. New York Cty.) (also a case under the 1st Department), chose to follow Ogara rather than Fowler.
Claims by "drinking buddies." A person who became inebriated along with the intoxicated person is not prohibited from claims unless the person played a "much more affirmative role than that of drinking companion to the one who injures him before." Mitchell v. Shoals, Inc., 19 N.Y.2d 338, 340 (1967). Oursler v. Brennan, 67 A.D.3d 36 (4th Dept. 2009) discusses the role that must be played. See further Powers v. Niagara Mohawk Power Corp., 129 A.D.2d 37, 41 (3rd Dept. 1987)("Nor may one who actively causes or procures the intoxication of the person responsible for the accident recover under this statute"). Ousler concludes that purchasing a single drink for a minor who eventually causes the injury is sufficient to preclude recovery, but that when alcohol was purchased by the injured person for an adult who later caused the injury requires a more balanced approach and that only one who, "affirmatively causes or encourages the intoxication of another person should not be permitted to assert a cause of action under the Dram Shop Act . . . because his or her conduct constitutes 'guilty participation.'" 67 A.D.3d at 41-42. On the other hand, a number of Second Department cases seem to imply that the purchase of a single drink for the an eventually intoxicated adult is sufficient to preclude recovery. See e.g. Pineda v Javar Corp., 96 A.D.3d 731 (2nd Dept.) app. denied 19 N.Y.3d 813 (2012), Reese v. Sierra, 17 A.D.3d 439 (2nd Dept. 2005), Prunty v. Keltie's Bum Steer, 163 A.D.2d 595 (2nd Dept. 1990) and thus probably disagree with Ousler's conclusions. See 4-95 Warren's Negligence in the New York Courts § 95.04 footnote 31 and accompanying text (presenting 2nd and 3rd Department precedent and then saying "[b]ut see Oursler . . . "). In Slocum v. D's & Jayes Valley Restaurant & Cafe, Inc., 182 A.D.2d 981 (3rd Dept. 1992), a husband who took turns with his wife going back to the bar for further drinks was precluded from recovery in an action involving an accident in which his wife was driving, a decision which is probably consistent with either the 4th or 2nd Department's approach.
As noted above, in the sections addressing Gen. Obl. L. 11-101 and Gen. Obl. L. 11-100, exemplary (i.e. punitive damages) are expressly permitted under 11-101, but are not permitted under 11-100.
Both Gen. Obl. L. 11-101(2) and Gen. Obl. L. 11-100(2) specify that claims survive after death of either the injured party or the liable party. Note that "the damages recoverable by an administrator for a 'survived' Dram Shop Act cause of action are the same as the injured party could have recovered if death had not ensued." Scheu v. High-Forest Corp., 129 A.D.2d 366, 369-370 (3rd Dept. 1987). For instance, if the decedent died instantaneously, such that the decedent had no claim for pain and suffering, the survivors would not have a claim for such injuries either. Id. at 370, Monteleone v. Johnson, 173 A.D.2d 429 (2nd Dept. 1991).
Loss of support may be recovered. Both Gen. Obl. L. 11-101(1) and Gen. Obl. L. 11-100(1) refer to persons injured "by means of support." See further Valicenti v. Valenze, 68 N.Y.2d 826 (1986). However, the injured party must already have been providing support or obligated to do so. Projected future support may not be recovered. Marsico v. Southland Corp., 148 A.D.2d 503, 505 (2nd. Dept. 1989), Scheu v. High-Forest Corp., 129 A.D.2d 366, 370 (3rd Dept. 1987). Additionally, note that "[t]he courts have held that this right to recovery does not strictly depend on whether the plaintiff was owed a statutory or contractual duty of support by the person whose ability to furnish such support was diminished as the result of the injuries suffered on account of intoxication. Such recovery is possible if the injured party either had such a duty, or had undertaken a preaccident course of making support payments notwithstanding the absence of such a duty." Dunphy v. J & I Sports Enters., 297 A.D.2d 23, 25 (2nd Dept.) app. denied, 99 N.Y.2d 531 (2002)(citations omitted). In Soto v. Montanez, 173 A.D.2d 90 (4th Dept. 1991) a former wife living with her ex-husband, who provided support despite the lack of any requirement to do so under the divorce decree, and an unmarried woman living with a man (together with "their children") who provided money to support the household were both entitled to loss recovery for loss of support. Note that, as discussed below, the support recovery may not be reduced by the injured person's comparative negligence.
Loss of services, affection and companionship may not be recovered. Valicenti v. Valenze, 68 N.Y.2d 826 (1986), McCauley v. Carmel Lanes, Inc., 178 A.D.2d 835, 836-837 (3rd Dept. 1991).
Recovery may be made for emotional distress of the injured person even if a person was not physically injured as a results of the intoxicated person's actions. Winje v. Cavalry Veterans of Syracuse, Inc., 124 A.D.2d 1027, 1028 (4th Dept. 1986). However, family members may not recover for emotional distress from the injury/death of a family member. Kudisch v Grumpy Jack's, Inc., 112 A.D.3d 788, 791 (2nd Dept. 2013), Marsico v. Southland Corp., 148 A.D.2d 503, 504-505 (2nd Dept. 1989).
Comparative negligence defenses. Comparative negligence defenses may lie, where, for instance, the injured party got into a car with an intoxicated person, Schrader v. Carney, 180 A.D.2d 200, 208-209 (4th Dept. 1992), Ciserano v. Sforza, 130 A.D.2d 618, 620 (2nd Dept. 1987) or where the injured person's conduct unrelated to the consumption of alcohol contributed to the loss (for example where the intoxicated person is in a car accident with another driver who also drove negligently), Adamy v. Ziriakus, 92 N.Y.2d 396, 404-405 (1998). As noted above the intoxicated person may not make a claim under 11-101. However, as noted above, persons who suffer losses due to the injury or death of the intoxicated person (e.g. loss of support) can make a claim, Oursler v. Brennan, 67 A.D.3d 36, 40 (4th Dept. 2009), Coughlin v. Barker Ave. Assocs., 202 A.D.2d 622, 623 (2nd Dept. 1994), and likely are not subject to any reduction for the comparative negligence of the intoxicated person (including by way of a claim made against he decedent's estate). Coughlin, 202 A.D.2d at 623 (2nd Dept. 1994), Bartlett v. Grande, 103 A.D.2d 671 (4th Dept. 1984), compare Zona v. Oatka Restaurant & Lounge, Inc., 68 N.Y.2d 824 (1986)(permitting a claim for contribution against a deceased intoxicated person other than the injured person in question, even where the two were husband and wife).
A party liable under Gen. Obl. L. 100 or 101 may seek contribution from the intoxicated person Zona v. Oatka Restaurant & Lounge, Inc., 68 N.Y.2d 824, 826 (1986), Herrick v. Second Cuthouse, Ltd., 100 A.D.2d 952, 953 (2nd Dept. 1984) affd. 64 N.Y.2d 692 (1984). However, note, as discussed above, persons who suffer losses due to the injury or death of the intoxicated person (e.g. loss of support) can make a claim under Gen. Obl. L. 100 and 101 and likely are not subject to any reduction for the comparative negligence of the intoxicated person. Also note that a claim for contribution by seller of alcohol against an intoxicated person does not include any punitive damages for which the vendor is liable. Herrick v. Second Cuthouse, Ltd., 100 A.D.2d 952, 953 (2nd Dept. 1984) affd. 64 N.Y.2d 692 (1984).
A party liable under Gen. Obl. L. 100 or 101 may seek contribution from other parties who may also be liable under Gen. Obl. L. 100 or 101. Smith v. Guli, 106 A.D.2d 120 (4th Dept. 1985) cited with approval in Zona v. Oatka Restaurant & Lounge, Inc., 68 N.Y.2d 824, 826 (1986).
An intoxicated person being sued may make a claim for contribution premised on Gen. Obl. L. 100 or 101. Cresswell v. Warden, 164 A.D.2d 855 (2nd Dept. 1990).
One who injures an intoxicated person (e.g. striking an intoxicated pedestrian) may seek contribution under Gen. Obl. L. 100 or 101 if intoxication was a factor in the person's injuries. O'Gara v Alacci, 67 A.D.3d 54, 59 (2nd Dept. 2009), Oursler v. Brennan, 67 A.D.3d 36, 45 (4th Dept. 2009). O'Gara holds that this is true even though, as discussed above, the injured intoxicated person does not have a cause of action under Gen. Obl. L. 100 or 101 (Oursler does not address this point).
New York's statutory modifications to joint and several liability may apply to claims under Gen. Obl. L. 11-100 and 11-101. For background, see our discussion of joint and several liability and New York's limited exception to joint and several liability on our web page discussing New York PIP recovery and other laws related to subrogation in New York (the discussion will appear in the bottom frame of the screen). Van Vlack v. Baker, 242 A.D.2d 704, 704-705 (2nd Dept. 1997) found that a claim under Gen. Obl. L. 11-100 did not fall within any of the exceptions to New York's modifications of joint and several liability law and further stated that "it was improper . . . to determine that CPLR 1601 did not apply . . . on the ground that the policies underlying the enactment of General Obligations Law § 11-100 outweighed the policies underlying the subsequent enactment of CPLR article 16." (citations omitted). However, note that, pursuant to Gen. Obl. L. 1602(7), conduct giving rise to liability under Gen. Obl. L. 11-100 and 11-101 will override New York's modifications to joint and several liability where such conduct demonstrates "reckless disregard for the safety of others." Spatz v. Riverdale Greentree Restaurant, Inc., 256 A.D.2d 207, 208 (1st Dept. 1998).
The statute of limitations for 11-100 and 11-101 claims is 3 years even for wrongful death. Actions pursuant to Gen. Obl L. 11-100 and 11-101 are actions "to recover upon a liability . . . created or imposed by statute" and hence are subject to the three-year statute of limitations in N.Y.C.P.L.R. 214(2). This remains true even where the claim is made for wrongful death by the decedent's estate, despite the two-year limitation on wrongful death actions pursuant to N.Y.E.P.T.L. 5-4.1. Bongiorno v. D.I.G.I., 138 A.D.2d 120 (2nd Dept. 1988).
A no-fault (PIP) carrier is entitled to a lien on recoveries for liquor liability pursuant to N.Y. Ins. L. 5104(b). Dymond v. Dunn, 148 A.D.2d 56, 58 (3rd Dept. 1989). See our discussion of this point on our web page discussing New York PIP recovery and other laws related to subrogation in New York (the discussion will appear in the bottom frame of the screen).
Insurance cases related to liquor liability. Many liability policies will contain exclusions of coverage for claims related to service of alcohol (separate insurance can be acquired for these types of claims) and these exclusions generally will apply to dram shop claims. See e.g. New York Mut. Underwriters v. Burdick, 196 A.D.2d 668, 669 (3rd Dept. 1993). However, these exclusions will generally be narrowly construed, and will be even more narrowly construed when dealing with the liability insurer's obligation to defend its insured. Thus, in Dryden Mut. Ins. Co. v. Harr, 247 A.D.2d 684 (3rd Dept. 1998), an exclusion relating to service of alcohol did not apply to claims based on premises liability because those claims were "at least facially distinct from those relating to the service of alcoholic beverages." Id. at 686. Similarly, in County of Schenectady v. Travelers Ins. Co., 48 A.D.2d 299, 301 (3rd Dept. 1975), an exclusion for "damage for which the insured . . . may be held liable, as a person or organization engaged in the business of manufacturing, distributing, selling or serving alcoholic beverages or as an owner or lessor of premises used for such purposes . . ." was read to apply only to an ongoing venture of manufacturing or selling alcohol, and not to the sale of alcohol by an organization pursuant to a temporary license for a party. In Cooperative Fire Ins. Co. v. Vondrak, 74 Misc. 2d 916, 918 (Sup. Ct. Warren Cty. 1973) the court ruled that a homeowner's policy's exclusion of coverage for losses resulting from use of an automobile did not apply to a dram shop liability where the intoxication led to a car accident.
As discussed above, an owner of property may not be held liable under Gen. Obl. L. 11-100 or 11-101 absent taking part in the activity described in those sections. In certain situations owners of property may be liable for injuries occurring on premises related to alcohol consumption even in certain circumstances where the requirements of Gen. Obl. L. 11-100 or 11-101 are not met.
Landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property. In particular, they have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control. Applying this rationale, lower courts have recognized that a landowner may have responsibility for injuries caused by an intoxicated guest. Significantly, however, these decisions have uniformly acknowledged that liability may be imposed only for injuries that occurred on defendant's property, or in an area under defendant's control, where defendant had the opportunity to supervise the intoxicated guest. That duty emanated not from the provision of alcohol but from the obligation of a landowner to keep its premises free of known dangerous conditions, which may include intoxicated guests.
A premises liability claim only applies to injuries which occur on the premises. See quotation from D'Amico immediately above. See further Lombart v. Chambery, 19 A.D.3d 1110 (4th Dept. 2005)(dismissing premises liability claim of plaintiff who was injured in a car accident while being driven home from a party by an underage individual who consumed alcohol at the party. This is different from claims for failure to supervise minors under one's care and control where liability may extend to injuries occurring off premises.
A premises liability claim probably can not be sustained by the intoxicated person him/herself. Sheehy v. Big Flats Community Day, Inc., 73 N.Y.2d 629, 636-637 (1989). Sheehy does not decide whether this limitation should apply where the injured intoxicated person is a minor, Id. at 637, but since the courts (including in Sheehy) have held that injured intoxicated minors cannot recover under Gen. Obl. L. 11-100 or 11-101, one imagines that the courts might well apply this limitation to premises liability claims as well. Also, presumably, claims such as loss of support probably would not lie since the duty owed is only owed to persons on the property. Finally, note that where the injured intoxicated party is a minor, in certain situations, a claim for negligent supervision may lie.
Owner who rents premises to others not liable. A landlord has no liability for activity on premises leased to a bar. Winter v. Jimmy's Lakeside Inn, 200 A.D.2d 826 (App. Div. 3rd Dept. 1994). Similarly, where property was rented to another for a party, the owner of the property was "not under a duty to supervise [the] party or otherwise retain control of its premises." McGlynn v. St. Andrew the Apostle Church, 304 A.D.2d 372, 372 (1st Dept. 2003) app. denied, 100 N.Y.2d 508, (2003). Interestingly, as noted above in the section discussing an owner's liability for violation of Gen. Obl. L. 11-100 and 11-101, McGlynn specifically noted that the Gen. Obl. L. 11-100 claim against the church would not lie, "even if it knew that there would be beer at the party," id. at 373, even though the church was rented out by a 20 year old. Id. at 372. This makes sense for Gen. Obl. L. 11-100 because of the narrowly construed statutory requirement of "furnishing" alcohol. The court in McGlynn did not explain why renting to a 20 year old with knowledge that alcohol would be served is not sufficient basis for premises liability.
Parent's responsibility for parties at home. Where parents knew or should have known of underage drinking in the home, a question of fact existed as to whether it was foreseeable that someone would get drunk and injure another person in a fight. Lane v. Barker, 241 A.D.2d 739, 740 (3rd Dept. 1997). See further Comeau v. Lucas, 90 A.D.2d 674, 674-675 (4th Dept. 1982)(parents permitted 16 year old daughter to host party with beer served while they were away). Also note, as discussed below, one may be liable for failure to supervise minors under one's care and control and that this liability may extend to injuries occurring off premises.
Although a property owner must act in a reasonable manner to prevent harm to those on its premises, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control. Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults.
Giambruno v. Crazy Donkey Bar & Grill, 65 A.D.3d 1190, 1192 (2nd Dept. 2009)(citations omitted). See further Stevens v. Spec, Inc., 224 A.D.2d 811, 812-813 (3rd Dept. 1996) concluding that even the fact that there had been three or four fights in the nightclub within a 10-month period was insufficient to sustain a premises liability claim where there was evidence that "the altercation in question happened very suddenly."
Important note: In this section, we are talking about the failure to supervise a minor, i.e. one who is under 18, which is different from much of the rest of the discussion on this web page, which involves furnishing alcohol to a person under the legal drinking age.
The duty extends to supervising the minor's safe departure. In Aquino v. Higgins, 15 N.Y.3d 903, 905 (2010) the Court of Appeals found "an issue of fact as to whether defendants provided adequate supervision for minor guests who became intoxicated at their home and, in particular, whether defendants properly supervised their departure from the premises."
Liability extends to injuries off premises. Unlike premises liability claims, claims based on negligent supervision are not limited to injuries that occur on the supervising person's property. Aquino v. Higgins, 15 N.Y.3d 903, 905 (2010)("Since the basis of any liability on defendants' part, assuming proximate cause, rests on the duty to supervise, rather than their duty as landowners, it is not dispositive that the injury occurred off premises." (citations omitted)).
There is liability for injuries to the intoxicated minor. Unlike liability under Gen. Obl. L. 11-100 and 11-101 and under premises liability, one who is negligent in supervising a minor may be liable for injuries to the intoxicated minor. See Parslow v. Leake, 117 A.D.3d 55, 67-68 (4th Dept. 2014) explaining Struebel v. Fladd, 75 A.D.3d 1164 (4th Dept. 2010). Parslow explains that, "[t]he duty of the minor host's mother to supervise the intoxicated decedent emanated not from her duty as a landowner but, rather, from the duty to protect minors over whom she had assumed temporary custody or control, regardless of how they became intoxicated." Id. at 68 (citations omitted).
What about liability to others whom the intoxicated minor injures? We are unaware of any cases discussing whether a failure to supervise claim based on alcohol consumption might give rise to liability for injuries to others. For instance, if the homeowner fails to ensure an intoxicated minor's safe departure (see above) and the minor drives home while intoxicated and gets in an accident (note as discussed the failure to supervise may result in liability for injuries off premises), might the homeowner be liable to someone injured in the accident? Liability in this situation might be analogous to an adult's liability for entrusting a dangerous instrumentality to a minor, see e.g. Rios v. Smith, 95 N.Y.2d 647, 652 (2001), or where a parent is aware of "a specific type of pertinently dangerous characteristics and particularly foreseeable conduct" of a child, see e.g.LaTorre v. Genesee Mgmt., 90 N.Y.2d 576, 582-583 (1997).


March 10, 1961. Rehearing Denied April 28, 1961.
Appeal from the 92nd District Court, Hidalgo County, S. N. McWhorter, J.
Kelley, Looney, McLean Littleton, Edinburg, for appellant.
Orrin W. Johnson, Harlingen, for appellee.
Clarence Wise, owner of the surface of a 53 acre tract of land and one-half of the minerals thereon, brought suit against M. E. Anderson and Anderson Oil Gas Company to recover damages arising out of alleged oral fraudulent misrepresentations and false promises to drill an oil well in connection with a five year oil and gas lease executed by plaintiff to M. E. Anderson. The case was tried before a jury and based upon the verdict, judgment was entered for plaintiff against the defendants in the sum of $13,901.15, including exemplary damages. M. E. Anderson and Anderson Oil Gas Company have appealed.
The controlling issues presented by appellants' points are concerned with the admissibility of evidence and the existence and sufficiency of the pleadings and evidence to show actionable fraud, and the questions of limitations and waiver. The record, in our opinion, shows the existence of actionable fraud, shows that the court properly held Wise was not precluded from recovery by reason of having accepted delay rentals with knowledge that no well had been commenced in compliance with the alleged fraudulent oral promise, but it shows that appellants' contention is well taken that appellee's cause of action was barred by the two year statute of limitation. The material facts and considerations involved and our conclusions in regard thereto are as hereinafter set out.
(12) months, from said date. In like manner and upon like payments or tenders the commencement of a well may be further deferred for like periods of the same number of months successively. And it is understood and agreed that the consideration first recited herein, the down payment, covers not only the privilege granted to the date when said first rental is payable as aforesaid, but also the lessee's option of extending that period as aforesaid, and any and all other rights conferred."
The suit by Wise and the judgment in his favor are based upon alleged acts of fraud committed by M. E. Anderson which were designed to and did induce Wise and his wife to execute the oil and gas lease on October 25, 1954. The factual background of the claimed fraud was that the Wise property, which had no oil production and was not even under lease, was, nevertheless, favorably located in an oil field and extremely valuable; that Wise was interested in having a well drilled on his land, and, in order to secure drilling, was willing to sell his lease for a much smaller bonus than could have otherwise been obtained. Two of the acts of fraud alleged by Wise and found by the court were misrepresentations of past or existing material facts bearing upon the ability of Anderson to drill on the land, to-wit: (1) that Anderson had theretofore secured an oil and gas lease from the owner of the other one-half mineral interest under Wise's land, and (2) that Anderson had enough acreage to drill an oil and gas well upon Wise's land. The third and basic act of fraud alleged by Wise and found by the court was a promise on the part of Anderson to drill a test well on the land for the purpose of producing oil and gas which promise was made to induce and did induce the execution of the oil and gas lease. Wise alleged and the court found that the promise was not kept and was made by Anderson without any intention on his part to perform it.
In appellants' first point it is contended that the court erred in admitting evidence and in submitting special issues concerning an oral promise by Anderson to drill a test well, made by him without intention to perform it. Appellants contend that the oil and gas lease was a written instrument and contained express contractual provisions covering appellants' obligation to drill which were binding on the parties, and that parol evidence was not admissible to change or vary the terms of the written instrument. Appellants' first point is not well taken and is overruled. At common law and under Article 4004, V.A.T.C.S., the making of a false promise to do an act in the future without any intention to perform, which promise was intended to and did induce the execution of a contract, constitutes actionable fraud. Powell v. Andrews, Tex. Civ.App., 220 S.W.2d 718, (Ref.N.R.E.); Maulding v. Niemeyer, Tex.Civ.App., 241 S.W.2d 733, (Mand. Overruled); Panhandle Refining Co. v. Swope, Tex.Civ.App., 241 S.W. 597. In such cases it is held that parol evidence is admissible to establish that the contract was induced by fraud. Dallas Farm Machinery Co. v. Reaves, 158 Tex. 1, 307 S.W.2d 233.
It is contended in appellants' second point that the court erred in admitting parol evidence and submitting special issues concerning alleged misrepresentations by Anderson to appellee Wise to the effect that he, Anderson, 'had enough acreage' under lease to secure a permit from the railroad commission to drill a well. Appellants urge that the determination of the amount of acreage required to secure a permit to drill an oil well was subject to regulation by an agency of the State, and that a representation concerning the matter amounted to no more than an opinion and constitutes no basis for fraud. We cannot agree with this contention. The representation by appellant that he 'had enough acreage' to drill an oil well was under the evidence very material to the transaction. Appellant was an oil man, and in better position to know about the matter than appellee. Appellee had the right to 'treat the affirmation as a statement of fact and — rely upon it as such.' 20-A Tex.Jur. 29.
It is contended in appellants' third point that the court erred in finding that Anderson falsely represented that he had 'secured an oil and gas lease from the owner of the other undivided one-half mineral interest', that such finding was not supported by the evidence and was against the great weight and preponderance of the evidence. This point is also overruled. Wise testified that Anderson told him 'that he had the Engleman half under lease and had enough acreage to drill a well'; that he believed what Anderson said and relied upon it. Although there was testimony by Anderson to the contrary, the evidence was not such as to require a reversal. Measured by the rule laid down in In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660, there was ample evidence to support the finding, and the finding was not so against the great weight and preponderance of the evidence as to be manifestly unjust. Rules 451, 453 and 455, T.R.C.P.
As affirmative defenses appellants filed pleas of waiver, estoppel, laches and limitation. The following facts are material to a determination of the issues presented. The date of the execution of the lease in question was October 25, 1954. Wise alleged and the court found that Anderson promised to commence the drilling of an oil well on the land within 90 days. This promise is the basis of the alleged fraud. It is undisputed that in October of 1955 and 1956 appellee Wise accepted and retained delay rentals under the lease. It is likewise undisputed that at the time Wise accepted such delay rental payments he had knowledge of the fact that drilling had not been commenced on the land within 90 days after the execution of the lease or at any time prior to the receipt of such rental payments.
Appellant contends that in view of the above stated facts the court erred in refusing to sustain the pleas of waiver, estoppel and laches. This point is not well taken. When appellee Wise acquired knowledge that Anderson had not commenced drilling operations within 90 days, as he had fraudulently promised to do. Wise had the right to rescind or cancel the lease. Wise did not seek to cancel and, as we understand, correctly concedes that the acceptance of the delay rentals under the circumstances amounted to a waiver of his right to rescind and precluded him from rescinding or cancelling the lease. It is held, however, that 'A waiver of the right to rescind does not operate as a waiver of the right to recover damages.' 37 C.J.S. Fraud § 69, p. 365; Thompson v. Pitts, Tex.Civ.App., 2 S.W.2d 899; Grabenheimer v. Blum, 63 Tex. 369; Witherspoon Oil Company v. Randolph, Tex.Com.App., 298 S.W. 520. We overrule appellants' contention, in effect, that appellee's claim for damages for fraud was under the facts waived as a matter of law by acceptance of the delay rentals called for in the lease. Appellee had the right to affirm the contract and still sue for damages sustained by reason of fraud inducing the execution of the contract. 21-A Tex.Jur., Fraud and Deceit, § 72; Roy Klossner Co. v. McIntire, Tex.Civ.App., 301 S.W.2d 197, (Ref. N.R.E.), and cases cited therein.
We next come to a consideration of the point urging that the court erred in failing to sustain appellants' plea of limitation. This point is well taken. A cause of action for deceit accrues and the statute of limitation usually begins to run at the time of the discovery of the facts constituting the fraud or when the injured party acquired or should have acquired knowledge of the fraud. 54 C.J.S. Limitations of Actions § 184, pp. 181, 182; Eckert v. Wendel, 120 Tex. 618, 40 S.W.2d 796, 76 A.L.R. 855; Hoerster v. Wilke, 138 Tex. 263, 158 S.W.2d 288. In the instant case it is undisputed that on January 25, 1955, which was the end of the 90 day period after execution of the lease, Wise knew that no drilling had been commenced on his land. He did not file suit until July 12, 1957, which was more than 2 years and 5 months later. Appellee's cause of action accrued and limitation began to run immediately after January 25, 1955, when he knew that Anderson had breached and had not complied with his fraudulent promise to commence the drilling of a well within 90 days. It is noted that in both pleadings and testimony Wise admitted that when Anderson did not have a rig on the land within 90 days after October 25, 1954, he 'decided at once to inquire of the whole matter'. This showed not only that Wise had knowledge that no drilling had been commenced in compliance with the fraudulent promise, but that Wise was on guard concerning the 'whole mater'. The facts which Wise had knowledge of after Anderson failed to commence drilling operations within 90 days were, as a matter of law, sufficient to put him on notice of the truth or falsity of the other fraudulent representations relied upon by appellee, and of the fraud itself. Glenn v. Steele, Tex., 61 S.W.2d 810; Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 137 A.L.R. 263; Caprito v. Grisham-Hunter Corporation, Tex.Civ.App., 128; S.W.2d 149, (Writ Dis. Judgment Correct). The fact that Anderson did not have a lease on the other undivided one-half of the minerals under appellee's land could have been promptly and easily determined. A check of the public records would have shown that no such lease was on file and the matter could have been positively determined by inquiry of the owner of the other one-half who was a neighbor and acquaintance of appellee. In any event the basic consideration or element of the fraud relied upon by Wise was the fraudulent promise by Anderson to begin drilling an oil well on his land within 90 days. Anderson did not comply with the promise. Wise had knowledge of the failure. This knowledge, as a matter of law, put Wise on notice concerning the existence of fraud. By pleading and testimony he admitted that he immediately became concerned and decided to inquire about the 'whole matter'. His cause of action accrued and limitation began to run at that time.
Appellee contends that the evidence shows Anderson was out of the state for at least six months of the claimed period of limitation, and that the running of the statute was tolled as to the action against Anderson for at least that long, and shortens the limitation period to less than the required two years. One who relies upon the absence or non-residence of the opposite party to avoid the running of the statute of limitations has the burden of proof. 54 C.J.S. Limitations of Actions § 388, p. 527; Griffiths v. Travis, Tex.Civ.App., 102 S.W.2d 445, (Writ Ref.). The evidence shows only that Anderson was out of the state on two or three occasions during the limitation period, each of which was of about two weeks duration. The evidence does not show that he was outside the state for as much as six months during the limitation period or for a sufficient length of time to avoid the running of the statute.
From the undisputed facts it is clear that appellee's cause of action against appellants was barred by the two year statute of limitation when this suit was filed.
For the reasons stated, the judgment is reversed and judgment is here rendered for appellants.


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In Episode 17 of the California SLAPP Law Podcast, we go back to basics, with an introduction to the fundamental concepts behind California’s SLAPP Law and anti-SLAPP motions.
It was a great anti-SLAPP week at Morris & Stone. Today we discuss two of our motions, and the result of last week’s Evil Yogurt Maker case. We will examine the scope of discovery following the filing of an anti-SLAPP motion, and apply those standards to a pending motion.
Specifically, I discuss the case of Britts v. Superior Court (2006) 145 Cal.App.4th 1112. In Britts, the defendant filed an anti-SLAPP motion on the same day that his opposition to a motion to compel was due. He argued that under the plain wording of CCP section 425.16(g), the motion stays all discovery “proceedings”, and therefore he was not required to file any opposition to the motion. The trial court disagreed, and granted the unopposed motion to compel, and awarded $5,000 in sanctions.
Britts took the matter up on a writ, and the Court of Appeal ordered the trial court to vacate the ruling on the motion to compel and for sanctions, holding that the statute means exactly what it says; an anti-SLAPP motion stops all discovery proceedings, including any pending discovery motions.
The trial court had also made a strange ruling (on an earlier anti-SLAPP motion in the case) that the defendant was not entitled to all the attorney fees incurred on the motion, because he had failed to meet and confer with opposing counsel. In other words, the court felt that if plaintiff’s counsel had simply been informed that one of the causes of action was a SLAPP, the complaint could have been amended and the motion avoided. That was not a holding from the case, but I explain why that reasoning is terrible and, if followed, could constitute malpractice.
I also discuss the case of Blanchard v. DirecTV (2004) 123 Cal.App.4th 903. In Blanchard, the court deliniated the scope of permissible discovery after an anti-SLAPP motion has been filed. As set forth in CCP section 425.16(g), a plaintiff must show good cause before taking ANY discovery after an anti-SLAPP motion has been filed. Good cause means ONLY discovery relevant to the Plaintiff’s burden of establishing a reasonable probability of prevailing on the claim. Discovery that is NOT relevant to a legal defense being asserted by the Defendant in the anti-SLAPP motion is not permitted.
Given that Blanchard permits only discovery related to potential defenses by the defendant, the case of Balzaga v. Fox News (2009) 173 Cal.App.4th 1325 came to the logical conclusion that if a plaintiff seeks leave to pursue discovery on a given defense, the defendant can prevent that discovery by informing the court that it is waiving that defense.
A client found me while searching for information about California Code of Civil Procedure section 425.17, proving that clients do some very sophisticated research on their legal issues. Changing the facts to protect the privacy of my client, he had warned the public about an evil yogurt maker who was falsely claiming to sell organic yogurt, and for that good deed he was hit with a lawsuit for defamation and interference with business.
In today’s podcast, we discuss the elements of CCP section 425.17, which under the proper circumstances will exempt a business versus business claim from the anti-SLAPP statute. In the most basic sense, section 425.17 applies when one business is talking about another business’s goods or services, AND the audience that the business is talking to consists of potential customers, AND the point of the talking is to promote the speaker’s own business.
Will section 425.17 defeat the anti-SLAPP motion, and allow the evil yogurt maker to go forward with his bogus defamation claim? Listen to episode 8 of The California SLAPP Law Podcast and find out.
Case cited: Sharper Image Corporation v. Target Corporation, 425 F.Supp.2d 1056 (N.D. CA 2006). In this case, Sharper Image, manufacturer of tower air purifier brought action against Target, manufacturers and retailers of competing product, alleging patent and trade dress infringement. Target moved for summary adjudication of plaintiff’s claims and their counterclaims for non-infringement of the asserted patents. Sharper Image separately moved to strike defendants’ tort and state law counterclaims, and in the alternative, moved for judgment on the pleadings of the counterclaims, and for partial summary adjudication on its utility patent infringement claim. Of note for today’s discussion, the court found that the anti-SLAPP motion was excluded by CCP section 425.17, but nonetheless threw out the claim under the alternative motions.
A suit against a public official who is accused of acting on a contract in which he or she has a personal financial interest does not implicate speech or petition rights for purposes of the anti-SLAPP statute, the Court of Appeal for this district has ruled.
Similar to the HOA case I reported yesterday, the fact that the defendant is voting or acting in an official capacity does not successfully invoke the anti-SLAPP statute if the basis of the action is fraud or breach of fiduciary duty.
Here, members of the Los Angeles City Council voted 3-2 to award a 15-year, $150 million contract to a company in which one of the members had a financial interest.
The Court of Appeal, said the a council member’s vote is an act on behalf of the public, not the individual, and thus does not implicate free speech and petition rights.
With the wisdom of a penny-stock investor trying out day-trading for the first time, the brilliant financial minds at CalPERS (California Public Employees’ Retirement System) decided to dump more than a billion dollars into three “structured investment vehicles” or SIVs, backed by subprime mortgages. (That was a really long sentence but I think it’s grammatically correct.) After all, Standard & Poors had given these three SIVs AAA ratings, even though they were “stuffed full of toxic, subprime mortgages, home equity loans, and other types of structured-finance securities linked to subprime mortgages,” as CalPERS now alleges.
As most do when they make really bone-headed investment decisions, CalPERS looked for someone to blame, and settled on Standard & Poors for that AAA rating. It sued Standard & Poors for negligent misrepresentation, asserting that the ratings company should be held responsible for the losses suffered by CalPERS.
We agree with CalPERS this evidence reflects that the Rating Agencies published the ratings from a position of superior knowledge, information and expertise regarding the SIVs’ composition, underlying structure and function that was not generally available in the market. More specifically, we conclude this evidence reflects not only that the Agencies employed superior knowledge and special information and expertise to assign ratings to the SIVs, they employed their special knowledge, information and expertise to participate in, and exert control over, the very construction of the SIVs. As such, we agree with CalPERS a prima facie case has been made that the ratings are actionable as ‘professional opinions’ or ‘deliberate affirmations of fact’ regarding the nature and quality of the SIV product.
While pure opinion speech is of course protected, and would generally protect Standard & Poor’s from it predictions, “the same cannot be said of the ratings at issue here, which were allegedly issued for private use by the limited class of investors dealing in complex and esoteric nonregistered securities,” Jenkins said.
The case is California Public Employees’ Retirement System, Inc. v. Moody’s Investors Services, Inc., 14 S.O.S. 2584. I have provided below the actual file-stamped copy of the complaint (complete with Civil Case Cover Sheet!) and the opinion of the Court of Appeal.
I have also attached a copy of the Order on a demurrer in the action. It has nothing to do with what we are discussing, but I wanted you to see it so you don’t make the same mistake the attorneys at Berman DeValerio made. Well, it’s not so much a mistake, per se, ab initio, but they prepared the proposed order and entitled the document “[Proposed] Order blah, blah, blah.” So far so good. The judge then reviews and signs the Order, and crosses out the word “proposed” in the name of the document. But then thinking that the footer has to exactly match the name of the document, the attorneys at Berman DeValerio (I’m guessing it was Daniel Barenbaum because he has a pretty high bar number, whereas Joseph Tabacco stated practicing back when IBM Mag Card typewriters were on the bleeding edge of technology, and he would therefore be very frugal with keystrokes) then put that exact title in the footer of every page in the proposed order. Poor Judge Kramer then had to cross out the word “Proposed” on every single page. No wonder it takes so long to get a case to trial in San Francisco. I never put the word “proposed” in the footer, and so far no one has ever complained.
What is the purpose of an anti-SLAPP motion?
Contrary to the seeming belief of some attorneys, the purpose of is anti-SLAPP motion is not just to recover attorney fees. Of course you should seek attorney fees after a successful anti-SLAPP motion, but the purpose of the motion is to extract your client from a wrongful and harassing lawsuit as quickly as possible.
Indeed, in a perfect world, when your client was served with a SLAPP, you would contact opposing counsel, instruct him on the error of his ways, and get a dismissal without ever having to bring an anti-SLAPP motion. In the real world, that’s not normally a viable option. Putting the opposition on notice that they have filed a SLAPP could afford them the opportunity to amend in order to change the nature of the action. Your effort to avoid further litigation could actually result in your client being trapped in an action that could have been disposed of with the anti-SLAPP motion.
However, after the anti-SLAPP motion is filed, the negotiations to end the action can begin. I have been successful in this effort on at least two occasions that I recall. I contacted opposing counsel, informed him of the attorney fees that had been incurred to date, and afforded the opportunity to settle the matter for the payment of those fees and costs before the case went any further.
SLAPP002 – Can Claims Against Lawyers Be Defeated with an Anti-SLAPP Motion?
In the last episode of the California SLAPP Law Podcast, I explained how crucial it is for every California litigator to understand this sweeping area of the law. There is virtually no litigation practice that won’t be impacted by the anti-SLAPP statutes.
If that was not persuasive enough, let me bring in a little closer to home. In today’s episode I discuss the common causes of action that are pursued against attorneys, and examine which of those have been found to fall under the anti-SLAPP statutes. Can claims against lawyers be defeated with anti-SLAPP motions?
BLEAVINS v. DEMAREST (2011) 196 Cal. App. 4th 1533; 127 Cal. Rptr. 3d 580.
In a neighbor dispute, court determined if a party to an action can sue the opposition’s attorney for malpractice.
Does an attorney breach the duty of loyalty owed a former client when he or she actively takes a position against the former client on the same issue for which the lawyer previously had been retained, even though the lawyer is acting on his or her own behalf and there is no subsequent representation or employment?
Holding that legal malpractice actions are categorically outside the reach of the anti-SLAPP statute.
A malicious prosecution action can be based only on the filing of a lawsuit.
Discusses breach of fiduciary duty action against law firm and the interplay of California’s SLAPP Law.
Every week I get callers complaining about the anti-SLAPP statutes and/or the litigation privilege. The scenario is almost always the same. The caller sued someone for defamation for something they said in conjunction with litigation or an investigation by some government agency, and the caller was hit with an anti-SLAPP motion. The caller is outraged that the anti-SLAPP motion is keeping him from getting damages for the allegedly false statements made in court or court documents.
The outrage is misplaced, because the law is working properly by preventing the callers from doing what they are trying to do. The legal system cannot function without a litigation privilege. That privilege provides that anything said in conjunction with litigation is privileged, and cannot form the basis for a defamation action. And since the speech is privileged, a plaintiff can’t make an end run around the statute by just asserting different causes of action. I have written on this topic before, and the prior article shows what the justice system would be like without the litigation privilege.
Today I argued an anti-SLAPP motion in Los Angeles Superior Court, and the facts of the case provide a real life example of why the litigation privilege is so essential.
Let’s call the plaintiff in this case John. John decided one day that his employer was discriminating against him, and filed a complaint with the EEOC on that basis. There was then a dispute with his employer, with the employer saying John had violated a company policy and John denying that claim. The employer fired John for the alleged violation. John argued to the EEOC that the termination for the alleged violation was just more evidence of discrimination.
This case is a few years old, but it illustrates how anti-SLAPP issues can come up in just about any context. In this entertaining case, Hallmark Cards published a card using Paris Hilton’s likeness, and her ridiculous tag-line, “that’s hot”.
Hilton sued for the unauthorized commercial use of her image and, incredibly, Hallmark brought an anti-SLAPP motion, claiming the card was a matter of public interest. The trial court denied the anti-SLAPP motion, finding the card and its speech was not a matter of public interest, and the Court of Appeals for the Ninth Circuit agreed.
Here is the complete opinion.
I get this type of call perhaps twice a week, so I decided to post this article, in order to provide detailed information to prospective clients who bring up these issues.
Here is the scenario. The caller is convinced that he is being slandered, but does not know exactly what is being said. He may know who is making the statements, but has heard only rumors about what is being said, or has witnessed only the consequences of the statements. Often the issue will arise in the workplace, where because of the statements of a co-worker, the caller is being passed over for promotions, or perhaps was terminated because of those statements. Other times it might be a neighborhood situation, where the caller feels he is being shunned by neighbors and has reason to believe it is because of something said at an HOA meeting.
The problem with this sort of case is that you can’t determine if you are being defamed until you know what is being said. The consequence of a false statement can be severe, but that does not mean the statement is defamatory. For example, you might be entirely correct that you are being passed over for promotions because of something being said by a co-worker, but that co-worker might simply be saying that you are lazy and should not be promoted. That statement is not defamatory, because it is an opinion. Defamation can be very nuanced, and whether a statement is defamatory can come down to a single word or even the voice inflection used.

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