The Dram Shop Act creates a cause of action by an injured third-party against one who unlawfully sells alcoholic beverages to an intoxicated person. An “unlawful” sale or delivery of alcohol is defined as follows: “No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to (1) Any person, actually or apparently, under the age of twenty-one years; and (2) Any visibly intoxicated person.”

In Tansey v. Coscia, plaintiff was assaulted at a bar in Manhattan. Plaintiff sued the underage-defendant, Coscia who assaulted him, and the bar for a violation of the “Dram Shop Act.” The bar moved for summary judgment on the basis that its employees never saw Coscia drinking at the bar prior to the incident, and there was no reason to believe Coscia was underage. In opposing this motion, plaintiff relied upon Coscia’s testimony that Coscia spent time in the “VIP lounge” prior to the incident, it was undisputed he was underage at the time of the incident and had full access to alcoholic beverages despite being underage.

In denying the bar’s motion, the court held that the fact that the bar’s employee did not see Coscia drinking at the bar prior to the incident “carries little evidentiary weight as to whether Coscia was served alcohol at the bar.” The Court also found “it cannot be said as a matter of law that there was no reasonable or practical connection between the defendant’s alleged unlawful sale of alcohol to Coscia and the subsequent injuries” since Coscia testified he “abused the privilege” of free drinks toward the end of the night, had a tendency to fight when mad and was repeatedly annoyed by plaintiff. Further, the Court rejected the bar’s argument that the assault was the result of plaintiff’s own actions since intervening factors/independent wrongdoing does not eliminate liability under the Dram Shop Act.

Courts are hesitant to dismiss cases involving underage drinking for public policy reasons. Thus, bars should be extra cautious in guarding against underage drinking especially since intervening factors, such as criminal activity, is not a defense under the Dram Shop Act.

Thanks to Caroline Freilich for her contribution to this post.