New York’s Dram Shop Act provides that a tavern owner who unlawfully serves alcohol to an intoxicated person is liable to any third party injured by the intoxicated person. However, the intoxicated person himself/herself has no right to sue the tavern owner for his/her own injuries. In O’Gara v. Alicca, the intoxicated plaintiff, a pedestrian, was injured in an automobile accident. She sued the automobile driver, who then impleaded the tavern owner who allegedly unlawfully contributed to the plaintiff’s intoxication. The tavern owner moved to dismiss, arguing that the tavern owner could not be compelled to pay damages in a case brought by the intoxicated person.

Plaintiff Kathleen O’Gara began the evening of October 28, 2006 with a Percocet. She then went off to the Katonah Bar & Grill, where she allegedly consumed “copious amounts of alcohol.” Kath left the tavern at 5:00 a.m. and then, for reasons she can no longer recall, chose to walk across the Saw Mill River Parkway. Defendant Matthew Alacci was driving on the Parkway and his car struck the plaintiff.

The plaintiff filed suit against Alacci, claiming he was at fault for the accident. Alacci impleaded the tavern on a cause of action for contribution on the theory that the tavern wrongfully caused the plaintiff’s intoxication. In a case of first impression, an appellate court in NY ruled that the claim for contribution is valid and can go forward. The court ruled that while an intoxicated person cannot sue a tavern for damages under the Dram Shop Act, there is no reason to prohibit a defendant from seeking compensation from the tavern on the Act. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06668.htm