Like other states, the State of New York allows anyone injured by a motorist who was convicted on a charge of DUI/DWI to file a lawsuit asking a court to order the guilty motorist to pay damages to the injured party or parties in such accidents. In certain well-defined situations, New York law also allows an injured party to file a lawsuit against a business or private individual that provided alcoholic beverages to someone who was later involved in an accident that resulted in an injury to another party.
On this page, the New York DUI/DWI accident injury lawyer at The Doan Law Firm will explain the New York “Dram Shop” and “Social Host” laws and how those laws may impact the success of a New York DUI/DWI accidental injury or wrongful death lawsuit. He will then suggest legal strategies that may be employed to use these laws to insure that those injured by impaired drivers collect the full amount of damages they are legally entitled to receive.
What is a “Dram Shop Law?”
Historically, a “Dram Shop” was any establishment that sold alcohol by the “dram” or “drachm” (a unit of measurement such that there were 8 drams in one fluid ounce or, by extension, 12 drams in a modern “shot” [1.5 fluid ounces]). Even though most modern establishments no longer use this measurement, the term “Dram Shop” is frequently used in law to describe any business that sells alcoholic beverages. In particular, a “Dram Shop Law” or “Act” usually defines the circumstances under which a bar, tavern, or similar business can be held liable if 1) that business serves alcohol to a customer, 2) that customer later causes an accident, and 3) it can be shown that the act of serving alcohol contributed to that customer’s intoxication.
New York alcoholic beverage law specifically states that it is illegal to serve alcohol to an individual who is either “intoxicated” and/or is less than 21-years-of-age. New York’s “Dram Shop” law extends this provision ofcriminal law to the state’scivil (non-criminal) code by allowing an injured party to file acivil lawsuit against the server if:
The seller (e.g. a sales clerk, waitress, or bartender) knew, or should have known, that the purchaser was “obviously” intoxicated. However, New York law leaves that determination to the judgement of the seller.
The seller knew, or should have suspected, that the purchaser was less than 21-tears-of-age. Although New York law does not require that a seller confirm a purchaser’s age,failure to confirm that a purchaser is of legal age isalways considered to indicatenegligence on the part of the seller.
As explained in the following sections, the above provisions of law do not always applyif alcoholic beverages are provided by a “social host.”
Who is a “Social Host?”
Generally, New York law considers a “social host” to be an individual who provides alcoholic beverages to another in a private settingand the social host obeys all the laws and regulations that would apply to a “dram shop” under similar circumstances. Thus, a social hostcannot serve alcoholic beverages to someone who is 1) already intoxicated or 2) is under 21-years of age. As yet another general rule, if a person provides alcohol in a situation thatdoes not require an alcoholic beverage license issued by the state or a locality, the person is usually considered to be a social host.
Who can file a New York “Dram Shop” or “Social Host” lawsuit?
In order to name a “dram shop” or a “social host” as a defendant in a New York DUI/DWI accident injury lawsuit, youmust be able to show a court that:
You were injured in an accident where the person deemed responsible for that accident was found to have been impaired at the time of the accident,and
that the impairment was due to the fact that the party responsible for the accident was served alcohol in violation of state law prohibiting the serving of alcohol by a dram shop or social host.
Note that, under New York civil law, a person who causes injury to another in a DUI/DWI accident is allowed to sue a dram shop for their own injuriesif he or she can show that the dram shop violated state law by serving them alcohol when itshould not have done so. However, if that individual was illegally served by a social host, the individualcannot sue thesocial host for damages related to their own injuries
Regardless of who is deemed to have been responsible for your injuries or other losses, New York law imposes “time limits” (“statutes of limitations”) that definewhen your lawsuit must be filed and, in certain situations,who is allowed to file such lawsuits.
How long do I have to file a lawsuit?
New York’s civil law requires that any personal injury lawsuit be filedwithin 3 years of the date on which the injury occurred. If, however, the accident resulted in the death of the accident victim, awrongful death lawsuit must be filed within2 years of the victim’s date of death.
Who is allowed to file a lawsuit?
In general, you are responsible for filing your own personal injury lawsuit. The only exceptions to this requirement are 1) if you are a minor and thus unable to legally enter into a contract or 2) if you are physically and/or intellectually disabled to the point that you are unable to act on your own behalf. In the first example, a parent or legal guardian may ask a court for permission to file a lawsuit on your behalf. In the second, and assuming that you are a married, your spouse would be allowed to file on your behalf. However, a New Yorkwrongful death lawsuit follows a different set of rules.
In order to file a wrongful death lawsuit, a court must be satisfied that 5 conditions either exist or there is a probability that those conditions can be proven to exist:
a death occurred
that death was due to “wrongful conduct” by the defendant(s)
the conduct of the defendant was sufficient to have sustained a personal injury lawsuit by the victim if the victim had survived the injury
the victim is survived by one or more persons who have suffered some loss(es) as a result of the victim’s death
these losses suffered by the victim’s estate would have been recoverable by the victim had the victim survived the injury
Even if the above-listed can be demonstrated, New Yorkdoes not allow a victim’s survivors todirectly sue for wrongful death. Instead, all wrongful death lawsuits must be filed by thepersonal representative of the victim’sestate. In most cases, the personal representative is theexecutor named in the victim’s will. If there is no will, the court will appoint a personal representative/executor to handle the dispersal of the estate to the victim’s eligible heirs and this person will usually be allowed to any wrongful death lawsuit.
Contacting a New York DUI/DWI accident injury lawyer
As you have seen, New York DUI/DWI accident injury cases can easily become quite complicated from a legal point of view. This is particularly true in cases involving more serious injuries and/or in cases where there is more than one potential defendant. In such cases, it is important to consult a lawyer with both the training and experience to win the most favorable possible settlement on behalf of his or her clients. One such lawyer is the New York DUI/DWI accident injury lawyer at The Doan Law Firm, a national personal injury law practice with offices conveniently located in Buffalo, Manhattan/New York City, and Rochester.
When you contact our firm, you first consultation with us is always free of any charges and does not obligate you in any way to retaining us as your legal counsel. Should you later decide to file a lawsuit, and that you would like for us to represent you in court, we are willing to assume full responsibility for all aspects of preparing your case for trial in exchange for a percentage of the final settlement that we will win for you.