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Vol. 9 - Issue 5
July 16, 2020


A Rarity: Complaint Alleges Dram Shop Cause Of Action In Dog Bite Case


You certainly don’t see this everyday: A dog bite case with a cause of action for violation of a dram shop statute. 

One was filed in March in South Carolina federal court in Lori Zmolek v. Low Tide Brewing, LLC, No. 20-1017 (D.S.C. Mar. 16, 2020).   

The complaint alleges that Low Tide Brewing, a bar in Charleston County, encourages customers to bring their dogs and have them mingle with other dogs and customers.  In October 2019, Low Tide customer Benjamin Kasper was present in the bar with his Labrador retriever.  The complaint alleges that the bartender had served Kasper a significant number of beers, knowing, or that he should have known, that Kasper  was  intoxicated, not in adequate control of his faculties, and, therefore, presented a danger to others because he was unable to fully control his dog.  The complaint alleges that Kasper was ineffectively holding his dog’s leash.  Suddenly and without  warning, Kasper’s unrestrained dog lunged at plaintiff, Lori Zmolek, clamped its teeth onto the upper part of her right arm and dragged her to the floor.  

In addition to claims for strict liability and gross negligence, the complaint asserts a claim under South Carolina’s dram shop statute, alleging that Low Tide was negligent, careless and reckless in “continuing   to   knowingly   sell   and   serve   beer   to   Kasper   after   he   became intoxicated,  and  appreciably  impaired,  causing  him  to  be  unable  to  control  or restrain his dog from attacking and biting Ms. Zmolek.”

Let’s see.  Dram shop claim – furnishing alcohol to an intoxicated bar patron and they get into their car and cause of accident.  All the time. Dram shop claim – furnishing alcohol to an intoxicated bar patron and they get into a fight.  Yep.  Seen that often.  Dram shop claim – furnishing alcohol to an intoxicated bar patron and then they can’t control their dog and it bites another bar patron.  Hmm.  Can’t say I’ve seen that one before. 

Actually, I found one judicial opinion of all fours.  And the New York appellate division did not dismiss the dram shop claim!:

In Murphy v. Cominsky, 954 N.Y.S.2d 343 (App. Div. 2012), Plaintiff sought damages for injuries she sustained when her face was bitten by a dog during a party at which alcohol, furnished by defendants, was served to minors.  Plaintiff alleged that, as a result of the intoxication of the minors attending the party, they became rowdy, agitating the dog in the home and causing it to bite plaintiff.

The court held: “New York’s Dram Shop Act affords a person injured ‘by reason of the intoxication’ of another person an independent cause of action against the party that unlawfully sold, provided or assisted in procuring alcoholic beverages for such intoxicated person.  The statute requires only some reasonable or practical connection between the [furnishing] of alcohol and the resulting injuries; proximate cause, as must be established in a conventional negligence case, is not required.”

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