Law Life New York City judge boots beer pong injury suit

By Pat Murphy

The Daily Record Newswire

"Fat, drunk and stupid is no way to go through life, son."

Dean Wormer's famous words in National Lampoon's Animal House are words to live by.

I know I've lived by those words, at least the drunk part. Perhaps Alan Berger should consider them as well.

Back in 2009, Berger was 22 years old and full of life. On June 20, he left his home in Manalapan, New Jersey, for an evening of beer pong at Wicked Willy's, a New York City bar.

Beer pong is one of those silly drinking games which way too often lead to some form of tragedy for young men and women. The object of the game is to bounce a ping pong ball across a table with the aim of landing it in one of a set of cups of beer lined up across the way. If your aim is true, members of the opposing team must drink the beer.

Berger allegedly played this game for 3 1/2 hours at Wicked Willy's before he left the bar after midnight and headed for home. Of course, by that time Berger was intoxicated and a danger to himself.

Berger's trip home included a bus ride. After being let off at a bus stop in New Jersey, Berger tried to cross a highway to get to his home. He was nailed by a fast-moving car and suffered serious injuries. Tests at the hospital showed that Berger had a blood alcohol content of .26, nearly four times the legal limit.

Berger's lawyer, Michael Wiseman, told The New York Post that Berger's injuries included a broken hip, leg and foot, tears in both knees, and a lacerated liver.

Naturally, Berger didn't blame himself for his mishap. No, he sued Wicked Willy's in the New York Supreme Court in Manhattan, alleging in his complaint that the bar had encouraged the playing of beer pong by setting up several gaming tables at the back of the establishment.

According to Berger, Wicked Willy's was negligent in failing to monitor the games to prevent extreme intoxication and in continuing to serve him beer when he was visibly intoxicated.

Last week, Judge Lucy Billings gave Berger's lawsuit the old heave-ho, granting Wicked Willy's motion to dismiss on the ground that the plaintiff could not show a duty of care:

Despite the game tables, cups and alcohol [Wicked Willy's] made available to [Berger] and other bar patrons without serving the alcohol or monitoring its consumption, [Berger] voluntarily engaged in the drinking game ... and consumed alcohol to the point of diminished capacity. New York law recognizes no duty on [Wicked Willy's] part to warn patrons regarding the risks of engaging in the drinking activity [the bar] made available or to make it safer by stopping it or monitoring its participants.

So here's to Berger's continued recovery. Hopefully, he's learned a good lesson and will make Dean Wormer proud with the rest of his life.

Published: Fri, Feb 24, 2012


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