De Leo v Bauman

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[*1] De Leo v Bauman 2019 NY Slip Op 29171 Decided on June 10, 2019 Supreme Court, Nassau County Brandveen, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on June 10, 2019
Supreme Court, Nassau County

Anthony De Leo, Executor of the Estate of EILEEN DE LEO and ANTHONY DE LEO, Individually, Plaintiffs,


Diane Bauman and MIRABELLA RESTAURANT and BAR, Defendants.



Babchik & Young, LLP

By Carol Morokoff, Esq.

245 Main Street, Suite 330

White Plains, N.Y. 10601


Defendant Bauman

Fishman & Tynan, Esqs.

By John Fishman, Esq.

1757 Merrick Avenue, Suite #202

Merrick, N.Y. 11566

Antonio I. Brandveen, J.

The following papers having been read on this motion:

Notice of Motion, Affidavits, & Exhibits 1-2

Answering Affidavits 3

Replying Affidavits 4


Defendant Bauman moves for an order granting summary judgment in her favor.[FN1]

Although the Court of Appeals and appellate courts have for the last thirty years "refused to recognize a common-law cause of action against providers of alcoholic beverages in favor of persons injured as a result of their own voluntary intoxication," (Sheehy v. Big Flats Community Day, 73 NY2d 629, 636-637 [1989]), the facts and circumstances presented here compels this Court to find that the defendant landowner/social host in this tragic wrongful death action had, as a landowner, a legal duty of care to the inebriated and drugged decedent, her long-time friend, which led to the 54-year old decedent drowning in the defendant's hot tub in Saugerties, NY

The following facts and contentions are gleaned from the motion papers, exhibits and pleadings:

According to the statement Bauman gave to a police officer, under penalty of perjury, at 6 a.m. on October 27, 2019, the decedent, Eileen De Leo, and defendant Bauman traveled together on October 26, 2012, from the Port Authority to Kingston, NY, as part of a planned weekend visit for Eileen, Bauman's "best friend" for over 25 years, to see Bauman's new home in the Town of Saugerties. After they arrived by taxi from Kingston, defendant Bauman took Eileen on a tour of the house, and then they went back to the village for an "early...big dinner" at co-defendant Mirabella Restaurant and Bar. Bauman claimed that the decedent had a Xanax prior to their dinner, had four beers with her dinner; when they returned home at 7 p.m., she poured a glass of wine for herself and "Eileen, [who] also took an Ambien." Defendant further stated that they then went into the hot tub, and "after about 30-40 minutes ...Eileen asked...for another glass of wine [emphasis supplied]" When defendant Bauman returned, Eileen had died, according to the autopsy and toxiciology report, from asphyxia due to drowning, and that the decedent's blood alcohol level was .25 at the time her blood was analyzed.

Defendant Bauman maintains that she owed no duty to her friend since Eileen became inebriated on her own accord while she was also under the influence of prescription drugs that included Xanax, an anti-anxiety medicine, and Ambien, a sedative.

The plaintiff, Anthony De Leo, individually and as the executor of the estate of Eileen De Leo, contends in opposition to defendant's motion that Bauman owed a duty of care to his wife. He argues that pursuant to CPLR 4519, commonly referred to a the Dead Man's statute, defendant Bauman's deposition testimony should not be considered admissible evidence in support of her summary judgment motion. The plaintiff, who was not present, avers that the decedent "was not a drinker," and that he was "shocked" that the defendant, who was aware of the decedent's cancer and medication protocol, [*2]"allowed Eileen to consume so much alcohol,...[gave] her access to prescription drugs,... allow[ed] her to get into a hot tub while intoxicated,...and allowed her to behave out of character and against what she knew to be medically appropriate." Plaintiff's attorney maintains that defendant Bauman had prescription drugs in her home, which Bauman left open and unattended on a counter - "defendant allowed Eileen access to a bowl of narcotics, including Ambien," for which the decedent allegedly did not have a prescription. The plaintiff's attorney points out that defendant Bauman testified that she left the decedent alone in the hot tub for approximately seven to 10 minutes, during which time the decedent drowned. The plaintiff was "shocked" that the defendant called him first before calling the police.

" 'A tort obligation is a duty imposed by law to avoid causing injury to others' (New York Univ. v Continental Ins. Co., 87 NY2d 308, 316 [1995]). . ...[T]he term "duty" is best used to describe 'the relation between individuals which imposes upon one a legal obligation for the benefit of the other' (Prosser & Keeton, Torts § 53 at 356 [5th ed 1984])....'[O]nce a duty is found, the duty, in theory at least, always requires the same [general] standard of conduct, that of a reasonable person under the same or similar circumstances' (Prosser & Keeton, Torts § 37 [4] at 236 [5th ed]; see generally 1A NY PJI3d 2:10 at 219 [2015])" (Abrams v. Bute, 138 AD3d 179, 182-183 [2d Dept 2016]).

Thus, since a finding of negligence must be based upon a breach of that duty, the threshold legal question that the court is required to determine is whether the alleged tortfeasor owes a duty of care to the injured party (Davis v. South Nassau Communities Hosp., 26 NY3d 563, 572 [2015]; Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001]; Di Ponzio v Riordan, 89 NY2d 578, 583 [1997]). "In the absence of duty, there is no breach and without a breach there is no liability (Kimbar v. Estis, 1 NY2d 399, 405 [1956])" (Pulka v. Edelman, 40 NY2d 781, 782 [1976]).

" 'Courts resolve legal duty questions by resort to common concepts of morality, logic and consideration of the social consequences of imposing the duty'(Tenuto v. Lederle Labs., Div. of Am. Cyanamid Co., 90 NY2d 606, 612 [1997]; see Palka v. Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 586 [1994] ). A critical consideration in determining whether a duty exists is whether 'the defendant's relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm" (Hamilton v. Beretta U.S.A. Corp, supra at 233).

In this context, "a moral duty should... be distinguished from a legal duty. The former is defined by the limits of conscience; the latter by the limits of law. A person may have a moral duty to prevent injury to another, but no legal duty. While a court might impose a legal duty where none existed before (see, generally, 1A Warren's Negligence, § 3.13, subd [2], pp 166-167), such an imposition must be exercised with extreme care, for legal duty imposes legal liability" (Pulka v. Edelman, supra at 786).

The modern view of the duty of care that a landowner owes to individuals on his or her premises was adopted by the Court of Appeals in its landmark decision in

[*3]Basso v. Miller, 40 NY2d 233, the Court of Appeals in 1976 adopted the modern standard to be used in evaluating a common law negligence claim against a landowner: "A landowner must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Basso v. Miller, 40 NY2d 233, 241 [1976]. The landowner's "duty of care to maintain his or her property in a reasonably safe condition (see Gronski v County of Monroe, 18 NY3d 374, 379 [citation omitted] [2011])....'is premised on the landowner's exercise of control over the property, as the person in possession and control of property is best able to identify and prevent any harm to others' (Gronski v County of Monroe, 18 NY3d at 379, quoting Butler v Rafferty, 100 NY2d 265, 270 [2003]). Indeed, '[i]t has been held uniformly that control is the test which measures generally the responsibility in tort of the owner of real property' (Ritto v Goldberg, 27 NY2d 887, 889 [1970])" (Agbosasa v. City of New York, 168 AD3d 795,796 [2d Dept. 2019]).

"New York courts have not imposed a common-law duty to protect a person whose injuries are results of his or her own voluntary intoxication, and have refused to recognize a common-law cause of action against providers of alcoholic beverages for injuries to such persons (Sheehy v Big Flats Community Day, 73 NY2d 629, 636 [1989]; Livelli v Teakettle Steak House, 212 AD2d 513 [1995])" (Butler v. NY City Transit Auth., 3 AD3d 301, 301-302 [1st Dept 2004]. "An exception...has been recognized in cases where a property owner has failed to protect others on the premises, or in other areas within the property owner's control, from the misconduct of an intoxicated person, at least when the opportunity to supervise was present (see, D'Amico v Christie, supra at 85 [and cases cited therein])" (Sheehy v. Big Flats Community Day, Inc., supraat 637 [emphasis supplied]; see Martino v Stolzman, 18 NY3d 905, 908, 964 [2012]; Sheehy v Big Flats Community Day, 73 NY2d 629, 636 [1989]; Covelli v Silver Fist, Ltd., 167 AD3d 980, 980-981 [2d Dept 2018]).

In applying the foregoing principles to the facts and circumstances at bar, this Court finds that although defendant Bauman, as a friend, had a moral duty to protect decedent Eileen De Leo from the results of her own voluntary intoxication and drug use, she did not have a common-law legal duty to do so (see, Sheehy v. Big Flats Community Day, supra at 636-637; Lizarzaburo v. Schmergel, 135 AD3d 833, 835 [2d Dept 2016]; Kudisch v. Grumpy Jack's, Inc., 112 AD3d 788,785 [2d Dept 2013]). This Court notes that "[r]ecognizing such a duty imposes a minimal burden on landowners, but its fulfillment here could have saved a life" (Galindo v. Town of Clarkstown,2 NY3d 673, 640 [Kaye, J. dissenting] [2004]).

However, defendant Bauman, as a landowner, did have a legal duty to take reasonable steps to prevent harm to the decedent while she was a guest on Bauman's property, especially since the defendant was aware of the decedent's intoxicated and drugged condition, and was in a position to reasonably exercise supervision and control over the use of her property - the hot tub - where Eileen De Leo's accidental death [*4]occurred (see, D'Amico v. Christie, supra at 86; Kudisch v Grumpy Jack's, Inc., supra at 790); cf. Martino v Stolzman, supra at 908. Thus the facts and circumstances present here constitute another exception to the common-law voluntary intoxication rule, in contrast to the underlying facts of all the reported appellate cases regarding injuries and death to guests who voluntarily sought and accepted alcohol from hosts and landowners (see, e.g., Sheehy v. Big Flats Community Day, supra; D'Amico v. Christie, supra).

Turning now to the evaluation of whether defendant Bauman should be granted summary judgment dismissing the complaint, the Court finds that the defendant has met her initial burden of making a prima facie showing of entitlement to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The defendant sufficiently demonstrated in her moving papers that the decedent voluntarily became intoxicated and under the influence of narcotic drugs, and consequently, as a matter of law, the complaint should be dismissed since a provider of alcohol such as defendant Bauman does not have a common-law duty to protect a consumer of alcohol from the results of her or his own voluntary conduct (see, Sheehy v. Big Flats Community Day, supraat 636). The burden then shifted to the plaintiff to raise a triable issue of fact (see, Winegrad v. New York Univ. Med. Center,64 NY2d 851, 853 [1985]). The plaintiff furnished sufficient evidence to meet his burden of raising material questions of fact requiring a plenary trial, including, but not limited to, whether defendant Bauman breached her duty as a landowner to act reasonably to prevent harm to decedent Eileen De Leo while she was on her property (see, Basso v. Miller, supra at 241). The owner's manual for the subject Pinnacle Spas hot tub warns, under the heading "To Reduce Injury," that "[t]he use of alcohol, drugs or medication before or during spa/hot tub use may lead to unconsciousness with the possibility of drowning," and within the section "Basic Safety Guidelines" cautions that "[p]ersons under the influence of medication, drugs or alcohol should not be allowed into your hot tub." Consequently, there is a triable issue of fact as to whether defendant's conduct and actions - e.g., in permitting the decedent to drink alcohol and use the hot tub for over thirty minutes, and then leave her unattended - were causally related to her friend Eileen De Leo's death ( see, Fernandez v Castillo, 165 AD3d 1044, 1044-1045 [2d Dept 2018]).

Finally, plaintiff's counsel's request - that this Court follow the Arizona Supreme Court holding in Gipson v. Kasey, 214 Ariz. 141 [2007], and by analogy recognize an expansive interpretation of Public Health Law §§3302 (7), (10) and 3304 to require that a duty of care is owed when a drug such as Ambien is improperly and negligently given to a person for whom it was not prescribed - may be renewed before the justice assigned for the trial of this action after all the evidence has been presented at trial.

Accordingly, it is

ORDERED that the motion by the defendant for an order granting summary judgment in her favor is DENIED.

The foregoing constitutes the decision and order of this Court. All applications not specifically addressed are denied.

Dated: June 10, 2019

E N T E R:


J. S. C. Footnotes

Footnote 1:The plaintiff's action was discontinued against co-defendant restaurant and bar.