The Appellate Division recently held that the Dram Shop Act does not apply to a tavern hosting a small party where the guests, who were employees of the tavern, brought their own alcohol to the party.  The Dram Shop Act was designed to protect the rights of persons who suffer loss as a result of the negligent service of alcohol by a licensed alcoholic beverage server.

In Votor-Jones v. Delly, plaintiff was one of seven employees and patrons of Kelly’s Tavern invited on a social trip organized by the tavern’s owner.  The guests brought with them four or five coolers of alcohol on two boats.  One guest, Michelle, started drinking before they got on the boat.  Michelle continued to drink alcohol after the boats departed for the ocean.  Other guests described Michelle as “loud”, “boisterous” and “excited,” but they conceded that they did not know whether she was intoxicated.

After stopping the boats, Michelle was allowed to operate Kelly’s boat.  Michelle sped away, but turned back toward the other boat at a speed of 40mph.  Michelle then struck plaintiff who was swimming in the ocean.

To prevail on a Dram Shop Act Claim, a party must present evidence that an establishment served alcohol to a visibly intoxicated person.  The Appellate Division rejected as “too attenuated” plaintiff’s contention that the circumstances fell within the scope of the Dram Shop Act because neither Kelly’s Tavern nor Kelly individually were acting as a “licensed alcoholic beverage server” or “server” completed by the statute.  Moreover, Michelle was not a “customer” of Kelly’s Tavern or Kelly.  The Court summarized the outing as an informal, small-scale get together that required attendees to bring their own food and alcohol.

Although there are many instances where an individual is “served” alcohol, not every instance will give rise to liability if that person injures another after imbibing alcohol.  Small get-togethers hosted by a tavern where guests bring their own alcohol will not subject a tavern to liability, but the Court acknowledged that a more large scale party for employees where alcohol is provided to them would result in liability to the tavern.

Thanks to Michael Noblett for his contribution to this post.