New York Dram Shop Law: When a Bar Has to Pay for What Its Customer Did

A worked example

It is easiest to understand with a story. On a Friday night, a man spends four hours at a bar near the Long Island Expressway. By ten o'clock he is slurring and stumbling, and he knocks over a stool on the way to the restroom. The bartender serves him two more drinks. At midnight he drives home, runs a red light on Francis Lewis Boulevard, and hits a car carrying a nurse on her way back from a late shift. She suffers a fractured pelvis and a brain injury, and she cannot work for a year.

The driver carries a minimum auto policy. The nurse's losses are many times that. The rest of this article follows her claim, one element at a time.

Step one: the statute that creates the claim

New York's Dram Shop Act is General Obligations Law § 11-101. It gives a right of action to any person injured "by any intoxicated person, or by reason of the intoxication of any person" against anyone who caused or contributed to that intoxication "by unlawful selling to or unlawfully assisting in procuring liquor" for that person. The injured person may recover actual damages and, in an appropriate case, exemplary (punitive) damages.

The key word is unlawful. The Act does not make a bar responsible for every customer who later causes harm. It applies when the sale itself broke the law. That sends us to a second statute.

Step two: what makes a sale unlawful

Under Alcoholic Beverage Control Law § 65, no one may sell, deliver or give away alcohol to:

• anyone actually or apparently under 21;
• any visibly intoxicated person; or
• a habitual drunkard known to be one by the person serving.

In adult drunk-driving cases, the second category does nearly all the work. The question is not whether the driver was legally drunk by blood-alcohol content, or whether he was drunk when he left. It is whether he was visibly intoxicated — showing signs a reasonable server would notice — at the time he was served.

In our example, slurred speech, stumbling, and knocking over a stool are classic signs. Two drinks served after that is exactly what § 65 prohibits.

Step three: proving visible intoxication

This is where most dram shop cases are won or lost, and it is rarely easy. Bars do not keep logs of who looked drunk. The evidence is usually circumstantial and has to be gathered quickly:

• Witnesses. Other patrons, friends who were with the driver, and staff. People who saw him stumbling are the best evidence there is.
• Receipts and tabs. Credit card records and itemized checks show how many drinks were served and when. A long tab in a short time is telling.
• Video. Many bars have interior cameras. That footage is usually overwritten within days or weeks, so a preservation demand must go out immediately.
• The driver's condition after the crash. Police observations, field sobriety tests, and the blood-alcohol result. A very high BAC can support expert testimony about how the driver must have appeared earlier in the night.
• The criminal case. If the driver is prosecuted, the file often contains statements about where he was drinking.

Courts have repeatedly held that a high blood-alcohol reading alone does not prove the person looked drunk when served, so the case needs evidence about appearance and behavior, not just chemistry. That is one reason these cases need early investigation.

Step four: connecting the sale to the crash

The injured person must show that the unlawful sale caused or contributed to the intoxication that led to the harm. New York courts do not require the strict proximate-cause showing of an ordinary negligence case here; they look for a reasonable or practical connection between the unlawful sale and the injury. If the bar served the driver while he was visibly drunk and he drove straight from the bar into the crash, that connection is usually clear. If he went to two other places and drank for hours more, it gets harder, and the other establishments may become defendants too.

Step five: who can and cannot sue

The Act protects third parties: the nurse in our example, her passengers, pedestrians, other drivers, and, in a fatal case, the family. It also protects people injured in the drunk person's "means of support," which is how a spouse or child who depended on the injured person's income can have a claim of their own.

New York courts have long held that the intoxicated person cannot use the Act to sue the bar for his own injuries. Companions who drank with him and helped bring about his intoxication may also be barred. If you were a passenger who had been drinking with the driver all night, talk to a lawyer about the specifics before assuming either way.

Social hosts and house parties

The Dram Shop Act applies to sales. A host who serves drinks at a private party is not selling, so a social host is generally not liable under § 11-101 for an adult guest who drives away drunk.

Underage drinking is the major exception. Under General Obligations Law § 11-100, anyone who knowingly causes the intoxication of a person under 21, by unlawfully furnishing alcohol or helping them get it, with knowledge or reasonable cause to believe the person was under 21, can be liable to someone that person injures. That reaches parents who host drinking parties for teenagers, older friends who buy for them, and stores that sell to them. Unlike § 11-101, § 11-100 provides for actual damages only.

How the claims fit together

Back to the nurse. She would have several claims running side by side:

• No-fault benefits, paying her medical bills and part of her lost earnings regardless of fault. See our no-fault guide.
• A negligence claim against the driver, limited in practice by his insurance. Because a fractured pelvis is a "serious injury," she can recover pain and suffering.
• Her own underinsured motorist coverage, if her policy carries it. See uninsured and underinsured drivers.
• A dram shop claim against the bar, which usually carries its own liquor liability insurance.

How fault is divided between the driver and the bar is a question for the jury, and New York's rules on joint liability affect how much each pays. Practically, the bar's policy is often what makes a full recovery possible.

Beyond car crashes

Dram shop claims are most common in drunk-driving cases, but the statute is not limited to them. Bar fights, assaults by intoxicated patrons outside a club, and injuries caused by someone who was served while visibly drunk at a stadium or event can all qualify. These cases often combine a dram shop claim with a claim for inadequate security; see negligent security lawsuits.

Deadlines

A dram shop claim for personal injury is generally subject to New York's three-year statute of limitations, and a wrongful death claim is generally two years from the death. See New York's filing deadlines and our guide to wrongful death claims. The real deadline, though, is the evidence: bar video, witness memories and receipts all fade quickly. If a drunk driver injured you or someone in your family, the time to identify where they were drinking is the first week, not the third year.

What to do now

• Get the police report and the accident report number.
• Ask the investigating officer, or later the prosecutor's office, whether the driver said where they had been drinking.
• Write down anything the driver or their passengers said at the scene.
• Keep all medical records and bills, and apply for no-fault within 30 days.
• Do not contact the bar yourself. Let a lawyer send a formal preservation demand.

We handle these cases through our motor vehicle accident and wrongful death practices, on a contingency fee.

Common questions

Can I sue a bar for serving a drunk driver in New York?

Yes, under New York's Dram Shop Act, if the bar unlawfully sold alcohol to the driver, most often by serving them while visibly intoxicated, and that contributed to the intoxication that caused your injury.

What do I have to prove in a New York dram shop case?

That the establishment unlawfully sold alcohol to the person, typically while they were visibly intoxicated or under 21, and that there is a reasonable connection between that sale and your injury.

Can a homeowner be liable for serving alcohol at a party?

Generally not for adult guests, because the Dram Shop Act applies to sales. But anyone who knowingly furnishes alcohol to a person under 21 can be liable under General Obligations Law § 11-100 for injuries that person causes.

Can the drunk driver sue the bar for their own injuries?

No. New York courts have held that the intoxicated person cannot recover under the Dram Shop Act for their own injuries.

How long do I have to bring a dram shop claim?

Generally three years for personal injury and two years from the date of death for wrongful death. Evidence like bar video disappears much faster, so act quickly.

This page is general information about New York law. The example above is illustrative and does not describe a real case. It is not legal advice, and reading it does not create an attorney-client relationship with Davidov & Cohen Law. To talk about your own situation, tell us what happened.