| O'Neill v Ithaca Coll. |
| 2008 NY Slip Op 08388 [56 AD3d 869] |
| November 6, 2008 |
| Appellate Division, Third Department |
| Ellie Grace O'Neill et al., Plaintiffs, v Ithaca College, Defendantand Third-Party Plaintiff-Respondent-Appellant. Dustin Adams, Third-PartyDefendant-Appellant-Respondent, and Michael O'Connell, Third-Party Defendant-Respondent,et al., Third-Party Defendants. |
—[*1] Bond, Schoeneck & King, P.L.L.C., Syracuse (Thomas R. Smith of counsel), for defendantand third-party plaintiff-respondent-appellant. Murphy & Lambiase, Goshen (George A. Smith of counsel), for third-partydefendant-respondent.
Cardona, P.J. Cross appeals from an order of the Supreme Court (Garry, J.), enteredDecember 26, 2007 in Tompkins County, which, among other things, partially granted a motionby third-party defendant Dustin Adams for summary judgment dismissing the third-partycomplaint against him.
On October 22, 2004, plaintiff Ellie Grace O'Neill (hereinafter plaintiff), at that time a19-year-old college sophomore, sustained serious injuries when she fell from a third-floorbalcony attached to a student apartment in a residential building on defendant's campus after shestepped outside "to get some fresh air." At the time of the accident, plaintiff was attending abirthday party for third-party defendant Simon Folkard, one of the five students who shared theapartment.
In the complaint, plaintiff and her parents, derivatively, alleged that defendant is liable forher injuries because, among other things, the balcony and its railings were unsafe and negligentlydesigned. Following joinder of issue, defendant commenced a third-party contribution actionagainst the architect who designed the balcony and railings, as well as the five students whoshared the subject apartment. The causes of action against the students alleged that they wereliable for contribution pursuant to General Obligations Law § 11-100 and under a theory ofcommon-law negligence. According to defendant, plaintiff's accident was caused, in whole orpart, by intoxication resulting from her alleged consumption of alcoholic beverages provided bythe students hosting the party.
After discovery, two of the students, third-party defendants Michael O'Connell and DustinAdams, each moved for summary judgment dismissing the third-party complaint against them.Supreme Court granted O'Connell's motion in its entirety and partially granted Adams' motion bydismissing the claim of contribution based on common-law negligence. These cross appealsensued.
Turning first to defendant's statutory claim, we conclude that Supreme Court properlyapplied General Obligations Law § 11-100 (1) with respect to the summary judgmentmotions of Adams and O'Connell. In order to establish statutory liability, defendant would berequired to demonstrate that it sustained injury: "by reason of the intoxication or impairment ofability of any person under the age of [21] years . . . [which resulted in] a right ofaction to recover actual damages against any person who knowingly cause[d] such intoxication orimpairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholicbeverages for such person with knowledge or reasonable cause to believe that such person wasunder the age of [21] years" (General Obligations Law § 11-100 [1]).
In this case, defendant maintains that the "actual damages" it sustained for purposes of thestatute emanate from the fact that, if it is ultimately held to be liable to plaintiffs in the primarynegligence action, then that liability was caused, at least in part, by the students' actions infurnishing the alcohol that was voluntarily consumed by plaintiff (see generally Johnson vPlotkin, 172 AD2d 88 [1991], lv dismissed 79 NY2d 977 [1992]). Significantly,beyond the explicit acts of purchasing for, or directly giving alcohol to, a minor, one whochooses to[*2]"participate in a scheme to furnish alcohol tounderage individuals" may be considered to have furnished or assisted in procuring alcoholpursuant to the statute (Rust v Reyer, 91 NY2d 355, 359-360 [1998] [internal quotationmarks omitted]). This is particularly so if that person played an "indispensable role" in makingthe alcohol available (id. at 361). Thus, we must determine if the record containsquestions of fact as to whether Adams and/or O'Connell unlawfully furnished or assisted inprocuring alcohol for plaintiff.
Notably, the record indicates that neither Adams nor O'Connell actually purchased orcontributed any money for the alcohol at the party, although Adams stated that he drovethird-party defendant Michael Gordon to the store so that he could do so. Adams also admittedlydrank a "shot" of liquor with plaintiff at the party. This proof, when viewed in the light mostfavorable to defendant, discloses a question of fact as to whether Adams assisted in furnishingalcohol to plaintiff. Accordingly, we conclude that Supreme Court properly denied Adams'motion for summary judgment dismissing defendant's cause of action pursuant to the GeneralObligations Law.
In contrast to the evidence with respect to Adams, the record discloses that, aside fromknowing that alcohol was being purchased for the party and that underaged persons might attend,there is nothing that would raise an inference that O'Connell played an indispensable role oractively assisted in procuring the alcohol for plaintiff; in fact, he did not know that plaintiff wasat the party until after the accident. Given the sparsity of proof that O'Connell was anything otherthan a "passive participant who merely knew of the underage drinking and did nothing else toencourage it" (id. at 361), Supreme Court properly granted his motion for summaryjudgment dismissing the statutory claim.
Turning our attention to the causes of action against Adams and O'Connell seekingcontribution based upon a claim of common-law negligence, defendant offers various theories insupport of its argument that Supreme Court erred in dismissing those claims. Significantly, forcontribution to be available, there generally must be a breach of duty by a party from whomcontribution is sought and the breach " 'must have had a part in causing or augmenting the injuryfor which contribution is sought' " (Raquet v Braun, 90 NY2d 177, 183 [1997], quotingNassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603 [1988]).Here, defendant maintains that Adams and O'Connell are potentially liable because they breacheda duty owed to both defendant and plaintiff to control or supervise the activities of guests at theirparty (see D'Amico v Christie, 71 NY2d 76, 85 [1987]). However, while social hosts maybe found liable where a factual issue has been presented regarding "whether it was foreseeable'that someone would get drunk at [a] party, engage in a fight, and cause injury to a third party' "(Lane v Barker, 241 AD2d 739, 740 [1997], quoting Comeau v Lucas, 90 AD2d674, 675, [1982]; accordCrowningshield v Proctor, 31 AD3d 1001, 1003 [2006]; see Smith v Taylor, 304AD2d 902, 904 [2003]), in this case, there was no fight nor was there proof of any uncontrolledparty guests that may have led to a dangerous situation. In fact, there is no proof that a thirdperson was involved in any way with plaintiff's fall from the balcony. Furthermore, despite proofthat plaintiff drank alcohol at the party, there is no proof in this record that her consumption wasanything other than voluntary (compare Oja v Grand Ch. of Theta Chi Fraternity, 257AD2d 924, 925 [1999]) or that her actions needed to be controlled because she was stumbling,slurring her speech or unable to control her physical abilities (see e.g. Dollar v O'Hearn,248 AD2d 886, 887 [1998]).
Next, defendant argues that Adams and O'Connell breached a duty specifically owed to [*3]it to reasonably prevent or control underage drinking at the campusapartment. Notably, as pointed out by defendant, "in certain cases, contribution will lie where theparty from whom it is sought breached a duty owed exclusively to the party seeking it, rather thanto the injured plaintiff" (23 NY Jur 2d, Contribution, Indemnity, and Subrogation § 31, at49; see Raquet v Braun, 90 NY2d at 182-183; Sommer v Federal Signal Corp.,79 NY2d 540, 559 [1992]). Here, however, defendant has not identified or established anycognizable breach of duty owed directly to it in that regard. While it is true that furnishingalcohol to persons under the age of 21 years is prohibited under most circumstances (seeAlcoholic Beverage Control Law § 65 [1]; General Obligations Law § 11-100 [1]),there is no common-law cause of action for the "negligent provision of alcohol" (McGlynn vSt. Andrew Apostle Church, 304 AD2d 372, 373 [2003], lv denied 100 NY2d 508[2003]; see D'Amico v Christie, 71 NY2d at 85). Thus, Supreme Court properly grantedsummary judgment to Adams and O'Connell dismissing the claims based on common-lawnegligence.
All remaining contentions not explicitly addressed above have been examined and found tobe unpersuasive.
Peters, Rose, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts. [See 18 Misc 3d 1113(A), 2007 NY Slip Op 52506(U) (2007).]