MEMORANDUM

QUESTION PRESENTED

Under the New York Dram Shop Act, which requires a plaintiff to establish that a defendant served alcohol to a “visibly intoxicated” person, could the court find that the patron was visibly intoxicated at the time of service when the current evidence suggests that (1) she did not slur her words or lost her balance at the bar, (2) exhibited glassy eyes, tripped over the doorframe, and consumed more alcohol after leaving the bar, and (3) failed the field sobriety test and had a Blood Alcohol Content (BAC) of 0.182 at least 1 1/2 hours after the time of service?

BRIEF ANSWER
No. The current evidence could not prove that The Devil’s Advocate served alcohol to Eleanor Shellstrop when she was “visibly intoxicated.” To support a finding of visible intoxication, a court will consider all direct and circumstantial evidence. The less circumstantial evidence is in temporal proximity to the service of the bar, the less likely it is to support a finding of visible intoxication. Here, direct proof of intoxication is absent. Circumstantial evidence is insufficient because there is only one piece of circumstantial evidence in temporal proximity to the service of alcohol. Further alcohol consumption and a substantial time gap between the service and the later evidence severs the evidentiary link to support an inference of visible intoxication.

STATEMENT OF FACTS

In the evening of July 26, 2019, Shellstrop spent several hours with her friend at a bar called The Devil’s Advocate, the defendant, and drank four Martinis and two beers. The bartender on shift testified that he continued to serve Shellstrop because she neither slurred her words nor lost her balance. Shellstrop paid her bill at 11:03 p.m. and left shortly after.

Shellstrop returned to her apartment around 11:15 p.m. and drank two beers. Her housemate testified that the only sign of drinking he noticed was “glassy eyes.” Although Shellstrop tripped over the doorframe when she came in, there was “a bump to watch out for,” and the same happened when she first moved in. Shellstrop did not stagger, wobble, or slur her words. They talked for an hour until Shellstrop left around 12:15 a.m. on July 27, 2019.

At 12:30 a.m., the police found that Shellstrop ran a red light and struck the car of Chidi Anagonye. The police officer smelled alcohol on her breath, administered the standardized field sobriety test, and determined that she was intoxicated. Her BAC was 0.182, above the legal limit of 0.08. Anagonye sued The Devil’s Advocate under the Dram Shop Act, which requires him to prove that The Devil’s Advocate served alcohol to Shellstrop when she was “visibly intoxicated.”

DISCUSSION

The current evidence cannot prove that Shellstrop was “visibly intoxicated” when The Devil’s Advocate served her. Under the Dram Shop Act, a party who unlawfully sells alcohol to another person is liable for injuries caused by that person’s intoxication. N.Y. Gen. Oblig. Law § 11-101 (McKinney 1980). Furnishing alcohol to a visibly intoxicated person is unlawful. N.Y. Alco. Bev. Cont. Law § 65(2) (McKinney 2016). The term “visible” does not create a rigid requirement of direct proof: when direct proof is absent, circumstantial evidence can also prove visible intoxication. Romano v. Stanley, 90 N.Y.2d 444, 450 (1997). The court will weigh all the evidence together to determine whether a finding of visible intoxication is warranted. Adamy v. Ziriakus, 92 N.Y.2d 396, 401 (1998).

Direct proof is testimony from a person who observed the allegedly intoxicated person’s demeanor “at the time and place that the alcohol was served.” Id. This may include alcohol on the person’s breath, glassy and bloodshot eyes, slurred speech, and poor motor coordination. See id. at 450. A large amount of alcohol consumed in a short time is not valid evidence because “tolerance for alcohol is subject to wide individual variation.” Romano, 90 N.Y.2d at 450; Csizmadia v. Town of Webb, 289 A.D.2d 854, 856 (N.Y. App. Div. 2001) (four drinks in an hour).

Circumstantial evidence includes expert and eyewitness testimony, police officers’ accounts, and lab reports. See Romano, 90 N.Y.2d at 450–51. The more circumstantial evidence is in temporal proximity to the time of service, the more likely it is to cumulatively support a finding on visible intoxication. See Adamy, 92 N.Y.2d at 403 (holding that expert testimony, police officers’ accounts from the accident scene, high BAC level, the non-testifying of the bartender on shift, and the short time between the patron’s departure from the bar and the accident provided ample evidence of visible intoxication). On the other hand, a single piece of circumstantial evidence in temporal proximity is generally insufficient to support a finding of visible intoxication. See Adamy, 92 N.Y.2d at 401 (high BAC alone); Romano, 90 N.Y.2d at 441 (expert testimony alone); Meizinger v. Akin, 192 A.D.2d 1011, (App. Div. 3rd Dept. 1993) (expert testimony alone); Senn v. Scudieri, 165 A.D.2d 346, 351–52 (1s Dep’t 1991) (slurred speech alone).

There may be an alternative explanation for signs of intoxication. Poor motor coordination can be warranted by the circumstances and thus unable to support an inference of visible intoxication. For example, in Csizmadia, parking on the slope and prior clumsiness were an alternative explanation other than intoxication for the patron’s loss of motor control. Csizmadia, 289 A.D.2d at 856.

A substantial time gap and intermediate drinking can weaken the inferential ability of circumstantial evidence. When the later evidence is not in temporal proximity to the service and the patron drinks more alcohol in the interim, the court is not likely to find visible intoxication at the time of service even when the patron is very intoxicated at the later time. See, e.g., Terbush v. Buchman, 147 A.D.2d at 828–29 (granting summary judgment for the defendant when the person consumed liquor in another bar and the accident occurred two hours later); Meizinger, 192 A.D.2d 1013–14 (granting summary judgment for the defendant when the person consumed three or four beers in another bar and the accident occurred 2 1/2 hours later); Donato v. McLaughlin, 195 A.D.2d 685, 688 (N.Y. App. Div. 1993); Sorensen v. Denny Nash Inc., 249 A.D.2d 745, 748 (N.Y. App. Div. 1998); cf. Adamy, 92 N.Y.2d at 404 (affirming the jury verdict for the plaintiff when the accident occurred “only a short time after”).

Here, the current evidence is insufficient to support a finding of visible intoxication.

Direct proof is absent because the affidavit of the bartender suggests no sign of intoxication. Shellstrop neither slurred her words nor lost her balance. Four martinis and two beers in a few hours is not a proof of visible intoxication because the effect of alcohol may vary from person to person.

Circumstantial evidence is also insufficient because the only evidence in temporal proximity to the service of alcohol is her glassy eyes, which is 15 minutes after Shellstrop left the bar. One sign alone is not likely to support a finding of visible intoxication.

Although Shellstrop stumbled on her way into her apartment, the court will not find this to be a sign of intoxication because the unusual bump in the doorframe provides an alternative explanation for her stumble. Indeed, Shellstrop tripped over a doorframe so conspicuous that one could not reasonably ignore its presence, but she had displayed the same clumsiness before when she was sober. Similar to Csizmadia, where the person’s motorcycle fell over on a slope, just as it had happened before, the bump could have caused Shellstrop to trip over the doorframe, just as it did when she first moved in.

The time gap and intermediate drinking weaken the inferential ability of later evidence. Although the police report and the lab report of high BAC level can prove that Shellstrop was visibly intoxicated at the time of the accident, the evidence was at least 1 1/2 hours after Shellstrop left The Devil’s Advocate and she drank two beers in the meantime. In all similar cases with a substantial time gap and intermediate drinking, the court rejected a finding of visible intoxication. Since the 1 1/2 hour gap makes the present case factually more similar to Terbush and Meizinger than Adamy, the court is not likely to find the circumstantial evidence sufficient.

CONCLUSION

With the current evidence, the court is not likely to find that the patron was visibly intoxicated. Direct proof is absent and circumstantial evidence is insufficient because one piece of circumstantial evidence in temporal proximity cannot justify an inference of intoxication. The substantial time gap and intermediate drinking weaken the inferential ability of later evidence. Further testimony from Shellstrop herself, her friend at the bar and cross-examination of the bartender may prove otherwise.