Lawsuits against bars and businesses under Dram Shop laws have become routine, though still somewhat controversial when owners are sued for the excessive drinking of third parties, here and here and here. We have seen a few cases where parents or home owners have been sued, though those cases are far more controversial, here. A case in New York, however, pushes this line of cases to the farthest extreme. The parents of Robert Ogle, 16, have sued the people who they say are responsible for their son’s death by a hit-and-run driver: the people who threw a birthday party where Robert became intoxicated and the owner of the car that was stolen by the hit-and-run driver.

The chain of events began around 1:30 a.m. when Jaber left his Kia idling while he dashed into a Super Deli. Guyear, 28, stole the Kia and ran over Robert and his friend Alex Paul, 20. They were walking home after drinking at the birthday party of the son of Sing-Chau Fung and Yuk Lai Fung.

The hit-and-run driver, Kenneth Guyear, is clearly responsible. An ex-con, he was drunk and driving a stolen car.

However, Robert’s father Brendan Ogle insists that he is not the only one who caused Robert’s death: “Each person in their own way contributed to this train wreck. If everyone had exercised better judgment, my son would be alive today.” His lawyer Sanford Rubenstein agrees and says that it is just a matter of setting out the “appropriate percentage of responsibility.” That may be a bit optimistic.

The Ogle’s have sued Sing-Chau Fung and Yuk Lai Fung, who threw the party that Ogle attended and had alcoholic drinks — presumably on the grounds that he was less alert when the car came careening by. They have also sued David Jaber for leaving his running car unattended.

There is no question that leaving your car idling unattended is negligent. Indeed, it is negligent per se in most states, which have laws making such an act unlawful. However, the factual and legal causation in the case is a challenge. Factually, one could argue that “but for” Jaber’s act, the accident would not have occurred. However, the jury will have to decide if it was foreseeable that the result of such negligence was the death of this boy at the hands of an ex-con, drunk driver.

There is a strong argument to make that this was an unforeseeable plaintiff under Palsgraf v. Long Island Railroad — which ironically occurred in New York. In that case, A man running for the Long Island Railroad was carrying a package, which he dropped as he tried to jump on the train. He was assisted in his attempt to get on the train by two railroad guards. When the package fell, it exploded due to fireworks inside. That small explosion caused scales at the other end of the platform to fall on Mrs. Helen Palsgraf, who sued the railroad. While Palsgraf prevailed in the lower courts, the Court of Appeals reversed and dismissed the case in a famous opinion by Chief Judge Benjamin Cardozo.

The other problem for the Ogle’s is that, while not an absolute rule, criminal acts often cut off causation as a superseding intervening act by a third party. There are exceptions to this rule as in another famous New York case Brower v. New York Central & H.R.R. where the railroad was held liable when cider barrels and other goods were stolen from a man’s wagon after it was hit by the train.

As for the Fungs, their inclusion appears driven by the same negligence per se theories. It is negligent per se to serve minors alcohol or to throw a party where minors are drinking. The Ogle’s will claim that it is foreseeable that drunken teens can be injured in either driving drunk or wandering into traffic. However, here you have a drunk driver fleeing in a stolen car. This issue may turn on factual causation. It is not clear that “but for” allowing Robert to drink the accident would not have occurred. The adult with him was also hit in the accident and perfectly sober individuals may have been struck by the drunk driver. As a legal causation question, there is the question of a foreseeable harm or injury under either Re Polemis & Furniss, Withy & Co Ltd or Overseas Tankship Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound). Polemis is usually an easier standard to make as opposed to Wagon Mound which is more likely to find accidents too remote or due to some change in the harm.

It seems that New York could make some interesting law with the Ogle case and it is worth watching. The complaint is expected to be filed soon.

In the meantime, Guyear is charged with DWI and manslaughter — though there is no mention of auto theft in articles (which I assume is also included in the charges).

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