Bar Defends Lawsuit by Patron who was Stabbed on Dance Floor

Posted on April 24, 2010 by John Hochfelder

It's no surprise that people drink alcohol in bars and dance clubs. They get drunk and rowdy. And when they do, fights often erupt and people get hurt. Sometimes pretty seriously.

Bar fights have been happening ever since alcohol has been served:


Winning a lawsuit against the person who started it all is usually pretty easy but often fruitless since the individual is often without liability insurance and can’t pay a judgment. So the injured party looks for a “deep-pocket” defendant – someone who has insurance and the ability to pay – and that’s the bar owner.


As we’ve discussed before, here, bar owners, as with all premises owners, have a general duty to protect customers from unforeseeable and unexpected assaults.

Additionally, as discussed below, when the injuries are caused by an intoxicated person, there are specific statutes  that impose liability upon bar owners.


It was “Thursday College Night” on November 11, 2005 and it was rocking at Rockin Robbins Bar and Club in Yonkers, New York. The place was jammed with hundreds of young people attracted by free champagne for female college students and two for one drink specials all night. A fellow out of jail on probation, Michael Penzo, arrived about 10 p.m. and David Morris got there around midnight.

Fifteen minutes later, David stumbled out of the bar and went to the hospital with stab wounds in his stomach – the result of a brief altercation with Penzo, a man he’d never met. David had  bumped into him in the restroom (according to David, accidentally; according to Penzo, on purpose) and Penzo took offense, followed David out to the dance floor, stabbed him in the gut and left.

Morris was admitted to the hospital for five days during which time he underwent surgery to repair a perforation of his sigmoid colon and a laceration of his abdominal wall. He was left with some nasty scars in and about his stomach.


Two years later, Morris sued both Penzo and Bianna, Inc., the owner of the bar. Penzo admitted that he had stabbed Morris during a fight on the dance floor in which Penzo was knocked to the ground, found a knife on the floor and came up swinging the knife to get away. He was arrested two weeks later for assault but all charges were dropped. Here is Penzo's testimony at his examination before trial.

The bar vigorously defended the lawsuit claiming there was no basis for imposing any liability upon it. After depositions were taken, Rockin Robbins made a motion for summary judgment in which it asked the judge to dismiss the lawsuit alleging that there were no substantial facts in dispute and that the applicable legal principles mandated a dismissal.


Under the pertinent statutes – General Obligations Law Section 11-101 (known as the Dram Shop Act) and Alcoholic Beverage Control Law Section 65 - to impose liability upon the bar owner plaintiff had to prove that Penzo was served alcohol at a time when he was visibly intoxicated. Penzo said he hadn’t consumed any alcohol that night as his probation restrictions prohibited him from drinking. And there was no testimony that Penzo had been served alcohol. Nonetheless, the judge's decision in Morris v. Bianna, Inc. allowed the case to proceed to trial because there was evidence that Penzo displayed some of the classic signs of intoxication – slurred speech and red, watery eyes.


On appeal, the defendant again argued that there was insufficient proof that Penzo was served alcohol while visibly intoxicated. In particular, the bar pointed to the fact that Penzo had been grabbed by bouncers immediately after the violent assault and his slurred speech and blurry eyes could well have been attributable to the headlock he’d been placed in.

The appellate judges in Morris v. Bianna, Inc. (2nd Dept. 2010) rejected that argument and affirmed the denial of the defendant’s summary judgment motion. They stated that it was for the jury to determine whether in fact Penzo was visibly intoxicated and served alcohol before he stabbed Morris; if so, liability would attach to the bar owner under the Dram Shop Act.


The case proceeded to trial and a jury was selected on March 10, 2010. Before the first witness, though, the case settled for $75,000.


Inside Information:

  • Plaintiff’s settlement demand before trial had been $1,200,000 but after the jury was selected he reduced it to $85,000 before agreeing to settle. The defendant had a $300,000 liability insurance policy.
  • While plaintiff prevailed upon two sets of judges to defeat the defendant’s motion, the plaintiff still had a daunting burden of proof - at trial he had to show that, before the attack, Penzo was visibly intoxicated. Apparently, plaintiff concluded he’d be unable to do so in view of the lack of any testimony that Penzo had consumed any alcohol at all that night.
  • Plaintiff admitted he’d smoked marijuana before arriving at the bar and to giving a false name at the hospital (because he had no health insurance and wanted to avoid getting billed)

 

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Courts Rule on Important Issues in Drunk Driving Injury Cases: Husband who bought drinks may sue for wife's death; Driver who struck pedestrian may look to bar to share in defense

Posted on October 10, 2009 by John Hochfelder

It’s as simple as A-B-C. The Alcohol Beverage Control Law has long provided that it is a crime to sell alcohol to a visibly intoxicated person. Violation of the A.B.C. Law will expose the seller to a lawsuit for civil damages too. We visit two new cases that made their way to appeals courts this month, each starting with a drunk driving car accident and tragic injuries.

Julie Oursler died on 10/27/02 at 3 a.m., after several hours of drinking at a bowling alley in Buffalo, New York. Walking along the side of a road, she was struck by a car and later run over by a police officer responding to a 911 call made by the fellow who hit her.

Four years later, on 10/29/06 at 5 a.m., Kathleen O’Gara was seriously injured when, after drinking heavily at a bar in Katonah, New York and taking narcotic painkillers, she tried to cross the Saw Mill River Parkway and was struck by a car.

These accidents both resulted in personal injury lawsuits that have just now been ruled upon by two separate appeals courts. They involve New York’s Dram Shop Act (General Obligations Law Section 11-101) which provides that anyone who has been injured by a visibly intoxicated person has a claim to recover his damages from the one who caused or contributed to the intoxication by unlawfully selling alcohol.

The typical Dram Shop Act lawsuit involves a slobbering drunk driver who crashes into and injures or kills an innocent victim who (or whose estate) then sues not only the drunk driver but also the bar or restaurant whose bartender could see that his customer was drunk (and should have known his customer would later drive and injure an innocent victim).

This woman should not be served any more drinks:

Neither of the two new cases is typical but each is fascinating and breaks new legal ground.

In Oursler v. Brennan the issue was whether a husband’s actions in buying drinks for his wife would preclude him from winning his own Dram Shop Act case against a bowling alley. Christopher and Julie Oursler were at a Halloween party at the bowling alley where they drank for four hours – Chris bought his wife two beers, she and friends bought others and she also had free Jell-O shots. Dressed in a black witch’s costume, Mrs. Oursler got into a fight outside the bar when she left, was arrested, driven home by the cops and left there with her mother. An hour later, still in black, she left her house, alone, and walked along a dark road. That’s when she was struck by a car and after a 911 call to help her she was run over by the responding officer who did not see her.

How could anyone see a person dressed like this, at night, on a dark road?

Oursler’s estate clearly had no claim in this case because one cannot maintain a lawsuit for personal injuries sustained due to one’s own intoxication. The surviving husband, though, had his own, separate claim for spousal loss of support (the same claim children have upon the death of a parent).

The driver moved to dismiss the husband’s claim under the well settled principle that one who is a guilty participant may not recover for his own injuries caused by an intoxicated person.

The appeals court held that merely buying two beers for his wife did not establish a guilty participation defense. The husband’s claim may now proceed to trial.

Inside Information:

  • Plaintiff still has the difficult burden of proving that there was a practical connection (we lawyers call it "proximate cause") between the unlawful alcohol sale and death several hours later. As a dissenting judge said, this case involves the intervening actions of three sober individuals who directly altered the course of events beyond any reasonable or practical connection to the unlawful alcohol sale to the decedent.
  • Plaintiff will be in the hot seat at trial as the issue of his drinking with his wife will come up again, with full blown testimony from all the witnesses and cross-examination of the husband. A skilled defense lawyer will be permitted to try to convince the jury that the husband participated in getting his wife drunk to such a degree that he should not win money for himself. 

In O’Gara v. Alacci, the issue was whether the driver who struck the drugged and drunk 23 year old plaintiff crossing the highway at night could assert a claim against the bar for contribution to any damages the driver might be liable to pay the plaintiff.

Before wandering onto the highway, Ms. O'Gara took painkillers and drank alcohol. Bad move.

Clearly, plaintiff herself had no claim against the bar for her own injuries; however, in a case of first impression, the appeals court held that the defendant driver could bring in the bar as a so-called third-party defendant and, if found liable, defendant driver could have the bar share in the payment of damages to the plaintiff. The judges stated that their decision promotes an important goal of the Dram Shop Act, namely motivating sellers of alcohol to exercise greater care in their sales.

Inside Information:

  • This was a case that plaintiff would have lost at trial. She was in a stupor, at night, crossing a busy highway and didn’t even know how she came to be there. Nonetheless, defendantsettled for $7,500 (nuisance value) while the appeal was pending.
  • Plaintiff sustained fractures to her tibia, thoracic spine and pelvis as well as massive skin injuries requiring grafts.
  • The drinking in this case, as in the Oursler case, took place at a Halloween party.
  • The bar had called a cab for the plaintiff but she left on foot before it arrived.

Unfortunately, drunk drivers often collide with innocent victims with resulting deaths and grievous serious injuries. Lawsuits follow, especially when the drunk driver has insufficient liability insurance coverage and the facts show that the Dram Shop Act was violated (i.e., the drunk was served when he was visibly intoxicated). We will continue to follow these cases and report on interesting decisions and verdicts. 

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