On November 21, 2011, Donovan James was about to enter Terrace Tavern in Newburgh, NY when he spotted certain individuals inside who he suspected would like to cause him harm, including Robert McKenzie.  James immediately decided to find refreshment elsewhere but had been spotted by McKenzie, who pursued James and shot him outside the tavern.

James commenced a suit against McKenzie, Terrace Tavern and the Tavern’s Landlord for negligence and under GLO §11-101 (“Dram Shop” liability for unlawfully selling alcohol to an intoxicated person who then, while intoxicated, injures a third-party).  James v Tavern, 9470/2012, NYLJ 1202676582807 (Decided November 6, 2014). Dram shop claims could not be sustained as the plaintiff could not show that the Tavern had served alcohol to McKenzie before the incident.

The common law premises liability claims against the Tavern and Landlord were premised on their failure to maintain a safe premises.  The Plaintiff alleged that the Terrace Tavern had been the location of several incidents in recent years but could not show that, on the night in question, any dangerous activity had occurred or The Tavern was unsafe.

The court refused to extend the common law duty of bar owners and their landlords to supervise or control the behavior of their patrons outside of the bar, aside from situations where the Dram Shop Act may be applicable.  The court’s survey of similar cases with the same outcome shows that even when a landlord is aware that dangerous activity is common in the vicinity of his premises, the Landlord does not have a special relationship to others who may be injured in the vicinity and thus, owes no duty to them.

Here, the court ruled that the Tavern and Landlord’s duty to Donovan James, their would-be patron, did not exist, even if the harm he suffered emanated from their establishment, and thus, summary judgment for the defendants was granted.

Had James been able to provide testimony as to the unsafe atmosphere inside the bar, the decision may have come out differently. Perhaps he should have stopped in for one drink??   hanks for Jim Rogers for his contribution to this post.