The opinion
Weinstein, J.,
dissents and votes to affirm the order and judgment appealed from, in accordance with the following memorandum, in which O’Connor, J., concurs: I do not subscribe to the conclusion of my learned colleagues of the majority that airline carriers owe to their passengers suffering from a disability such as intoxication a special duty of protection from the consequences thereof, to the extent of refusing to provide such passengers with food and beverage service which is commonly made available by the airline to its patrons, f As per my interpretation of the law, defendant owed no such duty to plaintiff’s decedent either pursuant to 14 CFR 121.575 or principles of common-law negligence. H With respect to the statutory claim, my views are consonant with those of the majority. Although this court previously found the existence of a cause of action under 14 CFR 121.575 on behalf of a third-party who had been assaulted by an intoxicated fellow passenger to whom the airline had served the alcoholic beverages (Manfredonia v American Airlines, 68 AD2d 131 ), the instant case is clearly distinguishable. Here, decedent’s injuries were the result of his own voluntary intoxication. Where the underlying purpose of the subject regulation was to ensure the safe operation of the aircraft by minimizing the disorderliness caused by intoxicated passengers (see FR Doc 59-5580, filed July 2, 1959), it is extremely doubtful that a passenger whose death resulted from his own intoxication comprised “ ‘one of the class for whose especial benefit the statute was enacted’ ” (Cort v Ash, 422 US 66, 78 , quoting from Texas v Pacific Ry. Co. v Rigsby, 241 US 33, 39 ). Accordingly, the holding in Manfredonia v American Airlines (supra) should not be extended to the facts of this case. Nor does plaintiff have a cause of action under New York’s Dram Shop Act (General Obligations Law, § 11-101) inasmuch as that act does not have extraterritorial application (Manfredonia v American Airlines, supra, pp 135-137). H Notwithstanding the common-law rule that a common carrier owes the highest duty of care to a passenger (see Croce v Bromley Corp., 623 F2d 1084, cert den 450 US 981 ; Fleming v Delta Airlines, 359 F Supp 339 ), plaintiff has failed to present in her opening statement any cause of action for common-law negligence. The mere act of allowing plaintiff’s decedent on the airplane could not possibly be construed as the proximate cause of his death by choking. More fundamentally, no special duty exists at common law on the part of an owner of a premises to protect a person from the consequences of his voluntary intoxication (Gabrielle v Craft, 75 AD2d 939 , 940; Paul v Hogan, 56 AD2d 723 ; Moyer v Lo Jim Cafe, 19 AD2d 523, 523-524 , affd 14 NY2d 792 ). Since defendant owed the intoxicated decedent no special duty to protect him from the results of his voluntary intoxication, it could not be held liable for negligence based upon the service of alcoholic beverages irrespective of what facts were presented at trial relevant to breach of duty, proximate cause or damage (see Palsgraf v Long Is. R. R. Co., 248 NY 339 ). Hit is well settled that “[f]he risk reasonably to be perceived defines the duty to be obeyed” (Palsgraf v Long Is. R. R. Co., supra, p 344). It is thus inconceivable that defendant could be held liable for negligence based upon its service of food to a passenger. The mere act of serving food and beverages to a person could not reasonably be foreseen as causing that person *962 to choke. Defendant’s conduct vis-á-vis plaintiff’s decedent was thus not patently unreasonable. On the contrary, serving food to an inebriated person, assuming, arguendo, that the airline actually knew of decedent’s state, is commonly perceived as a means of attempting to ameliorate that condition. It is questionable whether defendant could legitimately have refused to serve food or drink to decedent, a first-class passenger who requested this service. Imposing a duty upon airlines to examine their passengers prior to serving them would clearly be unduly onerous. In my view, recognition of claims of this nature against airlines would raise the spectre of indeterminate liability. 11 In the particular circumstances of this case, there was no evidence that defendant actually knew of decedent’s intoxicated or disabled state. Plaintiff’s counsel proffered no such evidence in the course of the opening statement and conceded that he had no evidence to offer other than plaintiff’s own testimony concerning decedent’s condition at the time he boarded the plane. On the other hand, two flight attendants averred, in the course of their depositions, that there had been nothing unusual about decedent’s appearance and demeanor. They each had occasion to converse with him and unequivocally stated that he did not appear to have been intoxicated. During the course of the flight, decedent was regularly in view of the flight attendants and at no point requested or appeared to be in need of any assistance. The only observed change in decedent’s behavior was his falling asleep. While a carrier would have a duty to obtain assistance for a passenger once he or she has exhibited substantial signs of illness, this does not appear to have been the situation here. 11 Further damaging to plaintiff’s case is the fact that the activity on defendant’s part which was allegedly the cause of a passenger’s demise was merely incidental to the primary service which defendant had contracted to provide for decedent, i.e., transportation from New York to Detroit. The instant situation is thus distinguishable from those cases in which carriers were held liable for actions or omissions relating directly to the activity for which they were contracted (PJI 2:162). Thus, in the course of moving passengers from one designated location to another, carriers are duty bound to remove a passenger who is or who has become too ill to travel and to place such passenger in a safe place (Jones v New York Cent. R. R. Co., 4 NY2d 963 ; Middleton v Whitridge, 213 NY 499 ); to keep passengers in a safe position while traveling (Longacre v Yonkers R. R. Co., 236 NY 119; Fardette v New York & Stamford Ry. Co., 233 NY 660 ); and to conduct them safely to their destinations (Elliott v New York R. T. Corp., 293 NY 145 ; Fagan v Atlantic Coast Line R. R. Co., 220 NY 301 ). The act involved herein — the service of alcoholic beverages or food to an allegedly intoxicated passenger — is not recognized at common law as violative of the duty of a common carrier. I therefore conclude that the afore-mentioned holdings should not be extended to a case such as this where no actual knowledge of decedent’s state was established and where plaintiff’s claim is predicated upon the carrier’s performance of a service which is merely incidental to its principal function. K Although the dismissal of an action after counsel’s opening statement is not generally a favored practice (see Davidson v Hillcrest Gen. Hosp., 40 AD2d 693 ), it was entirely proper for the trial court to have dismissed the action in the instant case. In my view, it would be futile to remit the matter for a full trial inasmuch as there was no special duty owed by defendant to plaintiff’s decedent, the breach of which would constitute an actionable tort.