Romano v. Stanley

Citations: 220 A.D.2d 5; 643 N.Y.S.2d 238; 1996 N.Y. App. Div. LEXIS 5807

Court: Appellate Division of the Supreme Court of the State of New York; May 23, 1996; New York; State Appellate Court

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On January 18, 1991, an automobile accident in Colonie, Albany County resulted in the death of Nancy A. Stanley (the decedent) and injuries to plaintiff Marie A. Romano. The decedent had been drinking at three establishments owned by defendants Jack’s Oyster House, Inc., Martel’s of Broadway, Inc., and Dee Dee’s Tavern, Inc. before the accident, which occurred shortly after she left Dee Dee’s around 10:00 p.m. Romano alleges that these defendants violated the Dram Shop Act by serving alcohol to the decedent when she was visibly intoxicated. 

After the defendants moved for summary judgment, the Supreme Court denied their motions, leading to this appeal. The defendants submitted affidavits and deposition testimony indicating that the decedent was not visibly intoxicated when served. Consequently, the burden shifted to the plaintiff to provide admissible evidence of a material factual dispute. The plaintiff relied on an affidavit from forensic pathologist Thomas Oram, who analyzed the decedent’s alcohol levels (0.26 in blood and 0.33 in urine) and concluded that she exhibited signs of intoxication during her time at the bars.

Defendants countered that Oram’s opinion was speculative and argued that visible intoxication must be proven through eyewitness testimony. However, the court found this perspective too restrictive and clarified that while blood alcohol content alone does not suffice to establish liability under the Dram Shop Act, evidence of a person's alcohol consumption and its effects can be part of establishing visible intoxication. The court emphasized the variability of individual responses to alcohol, cautioning against reliance on generalizations regarding its effects.

Oram, a pathologist, asserts that the decedent exhibited visible signs of intoxication during her time at Jack’s and Martel’s, based on her physical characteristics and a high blood alcohol concentration of 0.26%. He identifies specific symptoms, including gaze nystagmus, glassy eyes, motor impairment, and difficulty speaking, which would have been apparent given her level of intoxication. This expert opinion raises a factual question regarding the decedent’s visibility of intoxication when served alcohol, which is significant in the context of summary judgment where witness credibility is essential. The Supreme Court correctly denied summary judgment, as the defendants provided adequate proof to argue against an illegal sale of alcohol to the decedent. However, dissenting opinions highlight that the accompanying police and accident reports are hearsay, and the toxicology report lacks proper certification, thus failing to meet the standards for admissible evidence regarding the decedent’s intoxication level.

Oram's expert affidavit lacks sufficient foundation as it heavily relies on the toxicology report without establishing his qualifications to render an opinion on the correlation between the decedent's blood alcohol content and visible signs of intoxication. An expert must possess the necessary credentials—skill, training, education, or experience—to ensure the reliability of their opinions, as established by case law (Matott v Ward). In this instance, Oram's affidavit only includes vague claims of expertise without specific evidence detailing his qualifications or the studies that support his assertions. His background in pathology does not sufficiently qualify him to comment on visible intoxication, making his opinion inadmissible. As this case involves a summary judgment, plaintiffs must provide admissible evidence, which they failed to do, leading to the conclusion that the defendants' motions for summary judgment should be granted. Furthermore, even if Oram's reports were considered, the overwhelming evidence indicates that the decedent was not visibly intoxicated at the relevant times, and Oram’s speculative assertions do not create a factual dispute. Oram did not engage with the decedent personally nor did he possess firsthand knowledge of her drinking habits, further undermining the reliability of his opinion. Finally, the inherent uncertainties in medical opinion evidence prevent any definitive conclusions about the effects of the decedent's alcohol levels on her behavior that night.

Oram's opinion regarding the decedent's visible signs of intoxication based on her elevated blood alcohol level is deemed speculative and insufficient for establishing a claim under the Dram Shop Act. While Oram considered factors such as the decedent's physical makeup and liver tissue analysis, his conclusions do not provide a reasonable medical certainty regarding her behavior or appearance at the time of intoxication. The court emphasizes that established case law recognizes the variability of alcohol's effects among individuals, and thus, a specific blood alcohol content does not guarantee visible intoxication. Furthermore, mere intoxication is not enough to support a claim; there must be evidence of visible intoxication. The court finds that Oram's assertions contradict the statutory requirements and prior amendments, leading to the decision to reverse the Supreme Court's order and grant summary judgment in favor of the defendants. The court also considers a subsidiary argument regarding the admissibility of Oram's toxicology report but ultimately believes it would be unjust to dismiss the claims based on that reasoning alone.

Dissenters criticize the quality of Oram’s affidavit, but the defendants have not contested his qualifications as an expert or provided evidence to suggest that other factors, such as the decedent's medication use, influenced Oram’s conclusions. The court emphasizes that general qualifications of a medical expert do not automatically guarantee the admissibility of their opinion, and challenges to qualifications typically affect the weight of the opinion rather than its admissibility. The defendants' failure to specifically challenge the admissibility of the plaintiffs’ evidence in their appeal briefs does not negate the court’s role in reviewing both sufficiency and admissibility during summary judgment motions. The court has the authority to examine the record thoroughly and grant appropriate relief. Additionally, Oram’s affidavit lacks detail, as it does not address how the four-day delay in analyzing blood and urine samples might impact the alcohol levels detected. Testimony indicated that the decedent was ill, on medication, and under stress at the time of the accident, and that she had previously been able to handle alcohol well. These factors could affect the decedent’s alcohol metabolism but are not addressed in Oram’s affidavit. While these deficiencies may impact the weight of the opinion rather than its admissibility, they illustrate the affidavit's lack of specificity.