In this premises liability action, Plaintiffs seek damages from Defendant Ithaca College for personal injuries sustained by Plaintiff Ellie Grace O'Neill (hereinafter referred to as Plaintiff) in a fall on Defendant's campus. Defendant's Answer raises affirmative defenses of comparative negligence on the part of Plaintiff and unnamed others. (O'Connell Motion Exh. B). Its Third-Party Complaint seeks contribution under CPLR Article 14 from, among others, Third-Party Defendants Michael O'Connell and Dustin Adams on theories of liability under General Obligations Law § 11-100 and common law negligence. O'Connell and Adams now move separately for summary judgment dismissing the Third-Party Complaint as against them. Defendant opposes the motion. Plaintiffs, Defendant, Third Party Defendant O'Connell, and Third Party Defendant Adams appeared by Counsel for oral argument on September 14, 2007.

Plaintiff was a 19-year-old sophomore at Ithaca College on October 22, 2004, when she [*2]was severely injured in a fall from a third-floor fire escape or balcony (hereinafter balcony). The balcony was located outside a student apartment in a residential building on Defendant's campus. In the primary action, Plaintiff and her parents allege that the balcony's inadequate railings constituted a dangerous condition that caused her fall. (O'Connell Motion Exh. A.)

At the time of her accident, Plaintiff was visiting the apartment to attend a surprise twenty-first birthday party for Third-Party Defendant Simon Folkard, one of five student roommates who shared the apartment. The other roommates, all of whom are Third-Party Defendants, were Adams, O'Connell, Ethan Capone, and Michael Gordon. Defendant's Third-Party Complaint seeks contribution from the roommates on the theory that Plaintiff's accident was caused, in whole or in part, by intoxication resulting from her alleged consumption of alcoholic beverages during the party. (O'Connell Motion Exh. C.)

In an affidavit supporting his summary judgment motion, Third Party Defendant O'Connell alleges that he did not have anything to do with planning the party, that he first learned about the party approximately a week before it was held, and that his only involvement in preparing or hosting the party was to go out with Folkard and other roommates in an attempt to keep Folkard away from the apartment while others made preparations for the party. O'Connell alleges that he did not purchase any alcohol for consumption at the party, contribute any funds for its purchase, or serve alcohol to anyone who attended, and that none of the alcohol that was allegedly served at the party belonged to him. He asserts that he did not invite any guests to the party or know who was being invited, that he was not aware that anyone under 21 had been invited or was present, and that he was not aware that anyone at the party was intoxicated or that any minors were drinking alcohol. He allegedly did not know Plaintiff before the accident, did not know she was at the party, did not know her age, did not witness her accident, and first learned that it had happened when one of the other roommates came back into the apartment from the balcony and told him that someone had fallen. (O'Connell Affidavit sworn to on August 23, 2007.) Defendant alleges that O'Connell's deposition testimony shows that he helped plan the party by assisting in keeping Folkard out of the apartment, that he knew there would be alcohol at the party and that it would be attended by people under the age of 21, including some of his roommates, and that during the party he did not attempt to ascertain the ages of the guests or to prevent people under the age of 21 from drinking. (O'Connell Motion Exh. K, pp. 24-25, 34-36.)

Third Party Defendant Adams was deposed on June 15, 2006 (Defendant's Exh. C) and again on February 8, 2007 (Adams Motion Exh. C.) He alleges that the party was planned by Folkard's sister Christina and possibly by some of Christina's roommates. He testified that before the party, he had discussions with Christina regarding her plans to decorate the apartment and provide food, but that he did not remember any discussions regarding alcohol. (Adams Motion Exh. C, p. 23-24.) A day or two before the party, Adams drove his roommate Michael Gordon to a liquor store where Gordon, who was over 21, purchased about a case of beer, a bottle of Jagermeister, and unspecified amounts of wine and rum. (Adams Motion Exh. C., pp. 27-30.) Adams did not enter the store and did not contribute any of his own funds to the purchase. (Defendant's Exh. C, p. 39.) When Adams was asked whether Gordon purchased the alcohol for the party, he responded, "Yes," (Defendant's Exh. C, p. 38-39), but he also testified that it was his understanding that Gordon purchased the alcohol for the general use of the five roommates and that the alcohol was not intended to be freely available at the party. (Adams Motion Exh. C., [*3]p. 33; Defendant's Exh. C, p. 48-49.) Before the party, the alcohol that Gordon purchased was stored in the apartment refrigerator, where Folkard and the other roommates had access to it. (Adams Motion Exh. C., pp. 29-30.) Adams testified that the alcohol Gordon purchased was not the only alcohol at the party, that some attendees brought their own alcohol, and that guests got their own drinks. (Defendant's Exh. C. p. 49-50.)

Adams had known Plaintiff for a month and a half or two months before the accident happened. He was two years ahead of her in school and had helped her with some of her course work. (Adams Motion Exh. C., pp. 23, 31.) During the party, Adams saw Plaintiff for about ten minutes and had a conversation with her that lasted a minute or two. (Defendant's Exh. C., p. 28). Adams saw Plaintiff drink a shot of the Jagermeister that Gordon had purchased, and at another time he saw her holding a cup, although he did not know what was in it. (Defendant's Exh. C, p. 50-51.) Adams testified that he was also drinking Jagermeister but that he did not pour Plaintiff's Jagermeister or serve alcohol to anyone at the party at any time. (Defendant's Exh. C. p. 49). Adams described Plaintiff as "perhaps a little tipsy" and somewhat more "outgoing and direct" than she normally was during the party, but he stated that she was normally an energetic and outgoing person and that she did not appear to him to be intoxicated. (Defendant's Exh. C, pp. 29-30; Adams Motion Exh. C., pp. 11-13). He did not witness Plaintiff's accident.

Any person who shall be injured in person, property, means of support or otherwise, by reason of the intoxication or impairment of ability of any person under the age of twenty-one years, whether resulting in his death or not, shall have a right of action to recover actual damages against any person who knowingly causes such intoxication or impairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for such person with knowledge or reasonable cause to believe that such person was under the age of twenty-one years.

Defendant contends that material questions of fact exist as to whether the Third Party Defendants unlawfully furnished or assisted in procuring the alcoholic beverages that Plaintiff allegedly consumed at the party, thereby causing her to become intoxicated.^[FN1] Therefore, Defendant contends, if it is held liable to Plaintiff in the primary action, it will be "injured" within the meaning of § 11-100 and may seek contribution from them in proportion to their relative culpability.

Initially, the two Movants contend that contribution is not available to Defendant under § 11-100. They point out that the statute does not permit Plaintiff to maintain a cause of action in her own favor by reason of her own intoxication (Searley v. Wegman's Food Markets, 24 AD3d [*4]1202 [4th Dep't 2005]; Sheehy v. Big Flats Community Day, 73 NY2d 629 [1989]) and that her infancy does not provide her with an exception. (Searley, supra; Livelli v. Teakettle Steak House, 212 AD2d 513 [2d Dep't 1995]). Movants contend that principles of comparative negligence will adequately protect Defendant from being cast in liability for their conduct because, if a jury eventually determines that Plaintiff's accident was caused in part by her alleged intoxication and in part by a defective condition on Defendant's campus, the operation of comparative negligence should ensure that Defendant will be held liable only to the extent that the defective condition on its property, and not the intoxication, caused the injury. Thus, Movants contend that permitting Defendant to raise this claim for contribution along with its affirmative defense of comparative negligence constitutes a form of "double-dipping" in which Defendant is attempting to reduce its liability twice based on the single factor of Plaintiff's alleged intoxication.

The court in Woodbeck v. Caputo, et al, 131 Misc 2d 321, 326 [Supreme Court, Saratoga County 1986], followed a similar line of reasoning when it refused to "extend the law of contribution" to include a third-party claim filed under the Dram Shop Act, General Obligations Law § 11-101, by the owner and operator of a truck that collided with a bicyclist against a restaurant that had allegedly served alcohol to the bicyclist. The Woodbeck court noted that "it is conceivable (though never recently so held) that being cast in damages is indeed an injury' within the meaning of the Dram Shop Act upon which defendants, third-party plaintiffs may sue." (Woodbeck at 323.) Without so holding, however, the court dismissed the third-party claim, finding that principles of comparative negligence adequately protected the interests of the truck's owner and operator in the bicyclist's negligence action against them.

In the 21 years since Woodbeck was decided, however, no other court appears to have reached a similar conclusion. Generally, tortfeasors who are subject to liability for the same injury may seek contribution among themselves even though the theory on which contribution is sought differs from the theory asserted by the plaintiff. (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C1401:2.) The same principle holds true for a negligent tortfeasor who seeks contribution from another tortfeasor for an alleged violation of the Dram Shop Act. (Johnson v. Plotkin, 172 AD2d 88 [3d Dep't 1991]).

In Strassner v. Saleem, 156 Misc 2d 768 (Monroe County Supreme Court 1993), an intoxicated minor left a party where he had been drinking, crossed a street, and was struck by the defendant's vehicle. The court permitted the defendant's third-party claim under General Obligations Law § 11-100 against the homeowner who hosted the party, saying:

While General Obligations Law § 11-100 did not create a cause of action in favor of the intoxicated recipient of the beverage, regardless, the statute does allow for finding an independent obligation owed by the third-party defendant, to prevent foreseeable harm to the defendants, including their potential liability to the plaintiff. (Id. at 771.)

More recently, a defendant's ability to seek contribution under the Dram Shop Act was upheld on facts similar to those presented in the current action. In Tratt v Washington Building Management Co., 15 Misc 3d 1136[A] (Sup Ct Broome County 2007), an allegedly intoxicated 20-year-old student fell from a stair landing in a rented fraternity house. His premises liability action against the landlord asserted that inadequate railings caused the fall. The landlord filed a [*5]third-party action for contribution under Gen. Obs. Law §§ 11-100, -101 against two taverns. The court did not directly address the interaction between contribution and comparative negligence. Instead, citing Johnson, supra, it rejected the taverns' claim that the Dram Shop Act was meant to protect the traveling public rather than to provide an offset for money damages. It held that even though the allegedly intoxicated student was not an "innocent party" like the passenger plaintiffs in Johnson, supra, "to prohibit [the landlord] from pursuing the taverns would deny [it] the right of contribution against potential tortfeasors under the Dram Shop Act." (Id. at 1136[A].)

Thus, while Defendant plainly may not "double-dip" by reducing its liability twice as discussed above, it has the right to show, if it can, that some or all of any liability it may ultimately incur towards Plaintiff results from violations of § 11-100. To survive the current summary judgment motion as to O'Connell and Adams, it must show that questions of fact exist as to whether their conduct constituted "furnishing" or "procuring" alcohol to the Plaintiff within the meaning of that provision.

Defendant does not suggest that either O'Connell or Adams actually purchased the alcohol allegedly consumed by Plaintiff or poured it for her. However, the Court of Appeals has held that to limit the meaning of the term "furnishing" "to those who hand the alcohol to the minor—gives the term an overly narrow reach that undermines the clear legislative goal" of deterring underage drinking. (Rust v. Reyer, 91 NY2d 355, 360 [1998]). In that case, Reyer, a 17-year-old minor, planned a party at her home in her parents' absence and agreed to permit a high school fraternity to sell beer at the party in exchange for payment of a share of the proceeds. Reyer provided storage for the fraternity's beer kegs before the party, attempted to arrange free beer for her friends, and saw many of her under-aged guests consuming the fraternity's beer. An estimated 150 minors attended the party, and one of them became inebriated and struck the plaintiff. Although Reyer neither drank nor dispensed the beer herself, the Court of Appeals reversed the dismissal of a claim against her under 11-100, noting that the beer could not have been served without her advance permission and that her plan to share in the fraternity's profits "underscore[d] her complete complicity in the fraternity's plans to furnish beer." (Id. at 359). In the Court's words, Reyer was not an "unknowing bystander . . . an innocent dupe . . . or a passive participant who merely knew of the underage drinking and did nothing to discourage it . . . [She] played an indispensable role in the scheme to make the alcohol available to the underage party guests." (Id. at 361).

The allegations against O'Connell do not approach this standard. O'Connell's active role in preparing for the party did not involve alcohol in any way, but was instead limited to helping to protect the surprise by keeping Folkard away. Even in that limited role, he was not "indispensable," since several of the roommates shared the job. At the most, he permitted the party to take place in the shared apartment, knew that alcohol that belonged, in part, to him as a roommate would be served at the party, knew that some guests would be under-aged, and did not attempt to determine which guests were under-aged or to prevent them from drinking. These are not the actions of one who is actively complicit in a scheme to furnish alcohol to minors, but instead those of a "passive participant who merely [knows] of underage drinking and [does] nothing to discourage it" as in Rust. Unlike Reyer, who entered into a plan to profit financially from a scheme to sell alcohol to underaged guests, there is no evidence suggesting that O'Connell [*6]played an indispensable role or was "completely complicit" in any plan to furnish alcohol to minors. O'Connell is therefore entitled to summary judgment in his favor on Defendant's contribution claim under § 11-100. (See Lane v. Barker, 241 AD2d 739 [3d Dep't 1997]).The facts regarding Adams' participation are less clear. Unlike O'Connell, Adams knew Plaintiff, knew her age, saw her at the party drinking alcohol that Gordon had purchased, spoke with her, and believed her to be, at least, "tipsy." By driving Gordon to the liquor store, he provided at least some assistance in purchasing alcohol that was, in fact, consumed by Plaintiff. There are material issues of fact as to whether the alcohol was intended for the party or for the roommates' personal use; whether in providing transportation, Adams intended to participate in a plan to make alcohol available to minors at the party; whether Adams' personal familiarity with Plaintiff's age and her consumption of alcohol that he assisted in purchasing made him more than a "passive participant" in the availability of alcohol to minors in the apartment; and thus, whether he furnished or unlawfully assisted in procuring alcohol within the meaning of § 11-100. His summary judgment motion is therefore denied.

2. Common-law Contribution

In addition to its claim under General Obligations Law § 11-100, Defendant also seeks contribution from Movants under a common-law negligence theory, contending that they breached a duty to Defendant to prevent it from incurring liability as a result of Plaintiff's injuries. As previously discussed, Plaintiff may not maintain an action directly against the Movants for injuries she sustained as the result of her own alleged voluntary intoxication. However, Defendant cites Raquet v. Braun, 90 NY2d 177, 182 [1997], for the proposition that even in such situations, "a claim of contribution may be asserted where there has been a breach of a duty running from the contributor to the defendant who has been held liable."

The threshold question in any negligence action is: does defendant owe a legally recognized duty of care to plaintiff? . . . The injured party must show that a defendant owed not merely a general duty to society but a specific duty to him or her, for without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm. (Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001]).

To support Defendant's common-law contribution claim, it must show that a duty runs directly from Movants to it as the injured person. Defendant alleges that the Movants had the opportunity to prevent underage drinking in their apartment and knew or should have known that under-age drinking was taking place there, citing Demarest v. Bailey, 246 AD2d 772 [3d Dep't 1998], Lane v. Barker, 241 AD2d 739 [3d Dep't 1997], and Fantuzzo v. Attridge, 291 AD2d 871 [4th Dep't 2002]. These cases, however, address the well-established duty of landowners and their agents to act reasonably to prevent harm to persons on their property a duty that, in each of the cited cases, runs directly between the landowners and an injured plaintiff. The cases cited do not involve third-party contribution claims and do not address the question whether a duty exists on the part of a third party to protect a landowner from incurring liability to a person harmed on its property. Similarly, Raquet does not establish the existence of such a duty; it merely holds that a claim of contribution may be asserted when a duty running from the contributor to the defendant who has been held liable exists.

"If an independent obligation can be found on the part of a concurrent wrongdoer to [*7]prevent foreseeable harm, he should be held responsible for the portion of the damage attributable to his negligence, despite the fact that the duty violated was not one owing directly to the injured person." (Sommer v. Federal Signal Corp., 79 NY2d 540, 559 [1992]). In this case, no such independent obligation has been shown to exist. No case law to date has established a duty of care between college students and their colleges or between tenants and their landlords under circumstances such as these. The existence of a duty of care is a question of law to be determined by the court (Donahue v. Copaigue Union Free School District, 64 AD2d 29 [2d Dep't 1978]), and courts are cautious about extending liability to defendants for failure to control the conduct of others. (Hamilton, supra at 233.) In the absence of case-law precedent or a compelling rationale for the establishment of the new duty that Defendant claims to exist, this court declines to find that college students living as temporary tenants in on-campus residential housing owe a duty to the landlord college to protect it from incurring liability as the result of the alleged voluntary intoxication of another student. The Third Party Defendants are therefore entitled to summary judgment on Defendant's contribution claim in common law negligence.

Issues of fact exist as to whether Third Party Defendant Adams furnished or unlawfully assisted in procuring alcohol for minors within the meaning of § 11-100. His motion for summary judgment on Defendant's contribution claim under that provision is therefore denied.

As a matter of law, neither Third Party Defendant Adams nor O'Connell owed Defendant a duty of care to prevent it from incurring liability to Plaintiff. Their motions for summary judgment dismissing Defendant's common-law negligence contribution claims against them are therefore granted.

This constitutes the Decision and Order of the Court.

Dated:December 19, 2007

Norwich, New York

ENTER__________________________________________

Hon. Elizabeth A. Garry

Tompkins County Supreme and County Court Chief Clerk, Original Decision and Order with Notice of Motion dated August 13, 2007, Attorney Affirmation of Frank A. Bersani, Jr., Esq., dated August 13, 2007, and Exhibits A through C; Memorandum of Law dated August 9, 2007; Notice of Motion dated August 23, 2007, Affirmation of Donald J. Lambiase, Esq., dated August 23, 2007, Affidavit of Michael O'Connell, sworn to on August 23, 2007, and Exhibits A through K; Memorandum of Law dated August 23, 2007; Affidavit of Thomas R. Smith, sworn to on September 7, 2007, with attached Exhibits A through C; Defendant Ithaca College's Memorandum of Law in Opposition to Third-Party Defendants Dutin Adams' and Michael O'Connell's Motions for Summary Judgment, dated September 7, 2007; Responding Affidavit of Edward S. Leone, sworn to on September 12, 2007, with attached Exhibit A; Reply Memorandum of Law dated September 12, 2007; Affirmation in Reply of Thomas Humbach, Esq., dated September 13, 2007; Affirmation of Thomas R. Smith, dated September 13, 2007, with attached Exhibits A through C.