Was Owner/Dram Act Implicated?
Thomas Asher sought damages for injuries he sustained in December 2017 when Erik Walordy punched him in the head inside of the Local Ale House, a bar owned by Charter Pub Inc. located in Island Park, New York. Charter sought summary judgment dismissing the action.
Asher, a frequent patron of the Local Ale House—he visited 3 or 4 times per week—arrived alone at the saloon approximately at midnight and proceeded to sit at the end of the bar to talk with his friend, Bob Mauro, and Mauro’s wife. The bar was not crowded at the time—a total of 8-10 people, including two female bartenders. Asher spoke with Mauro for approximately half-an-hour when Walordy approached him, touched his chest and said that Walordy’s friend wanted to meet him. Mauro told Asher that Walordy and his friends were at a Christmas party at Mauro’s karate establishment and that they came to the bar afterwards. Asher did not notice anything that would indicate that Walordy was intoxicated—his speech was not slurred nor were his eyes glassy or bloodshot. Asher and Mauro laughed off Walordy’s approach.
“Typical joking around” then followed (according to Asher’s deposition testimony), as Walordy, Mauro, and Asher conversed. Walordy then grabbed Asher’s left arm putting him “in a lock,” which Asher successfully exited. Everything remained cordial. Walordy then tried to get Asher’s right arm in a lock, and again Asher got out of the hold. According to Asher: “It was all joking around. There was no confrontation at all.”
After Asher got out of the hold he “tapped” Walordy and “basically dropped him”—Walordy went halfway to the ground. A friend of Walordy—known to Asher—then approached, and said “woe, woe, woe, that’s Mr. Asher. That’s Brendan’s dad.” Walordy then “popped up,” said “I know your son,” and Asher and Walordy shook hands and laughed. The bartenders said, “hey guys, knock it off.” Asher testified that the entire encounter “was still cordial… [t]here was never any heat,” and there was no tension at all. Walordy then walked away and went back to his friends.
Approximately half-an-hour later, Asher was having a beer with two other friends at the bar, near the bar’s exit. Asher noticed Walordy walking towards him—he thought Walordy was coming to say goodbye—when Walordy suddenly and without warning punched him in the head without provocation or a word being exchanged. Asher was rendered unconscious from the punch.
Asher alleged that Charter was negligent because the bartenders did not remove either Asher or Walordy from the bar following their earlier horseplay. Although Asher’s complaint alleged that the bar served Walordy alcohol while he was intoxicated, Asher did not seek to support this claim in his opposition papers.
To establish a cause of action under General Obligations Law § 101 (New York’s Dram Shop Act), a plaintiff is required to prove that the defendant sold alcohol to a person who was visibly intoxicated and that the sale of that alcohol bore some reasonable or practical connection to the resulting damages. Charter submitted evidence—including the testimony of Asher—to satisfy its prima facie burden of establishing that Walordy was not intoxicated. Asher failed to proffer any evidence to the contrary. The Dram Shop claim against Charter was dismissed.
As described by Asher—and as reflected on the videotapes of the incident submitted by Charter—Walordy’s punch was sudden and unexpected and no amount of security would have prevented the incident. As a result, the negligence claims were dismissed.
Asher’s argument that the bartenders should have removed either Asher or Walordy from the bar because of their earlier interaction was not supported by the evidence. Asher testified that the interaction never got hostile: “It was all joking around. There was no confrontation at all,” and the bartenders told the two to knock off the horseplay and they immediately did, shook hands and remained cordial. They did not speak again. According to Asher, at no time thereafter was Walordy aggressive towards him, nor was he concerned or apprehensive that Walordy was angry with him. As far as Asher was concerned, “the girls [bartenders] handled it. [I]t was over.”
Asher’s expert opined that the bartenders should have known that the initial interaction between Asher and Walordy “would certainly result in further altercations in the bar.” But that was pure speculation, unsupported by any evidence since the initial interaction always remained cordial and never got heated—as Asher testified. The expert affidavit was speculative, unsubstantiated, and conclusory. Unsupported by facts or data, the expert testimony was of no probative force, whatsoever.
Charter’s motion was granted and Asher’s complaint against the pub was dismissed.