|
E-Bulletin -
2008
|
NJ Appellate Court Extends Duty of Care Beyond Dram Shop Act
On March 20, 2008, the Appellate Division of the Superior Court of New Jersey expanded the duties of bars and restaurants that serve alcohol beyond the scope of the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act (N.J.S.A. 2A:22A-1 et seq.), also known as the “Dram Shop Act”. The Dram Shop Act, which states that “[t]his act shall be the exclusive civil remedy for personal injury or property damage resulting from the negligent service of alcoholic beverages by a licensed alcoholic beverage server”, was generally considered to be the sole cause of action against bars and restaurants for alcohol-related damages.
In Bauer v. Nesbitt, James Allan Hamby, the plaintiff’s decedent, was fatally injured while he was riding as a passenger in the vehicle of an intoxicated driver, after leaving the C View Inn in Cape May, New Jersey. While the C View Inn did not serve alcohol to the defendant driver, who was underage, both Mr. Hamby and the driver had been drinking prior to coming to the tavern and were visibly intoxicated. No evidence was presented that the C View Inn ever stopped the service of alcohol or otherwise attempted to insure these patrons’ safety when they left the tavern. The C View Inn had, in the past, either called taxi cabs for visibly intoxicated patrons or had the patron driven home by a sober member of the patron’s party.
The trial court had granted summary judgment to the C View Inn because there was no evidence that the intoxicated driver had been served any alcohol at the tavern. As such, the trial court found that there was no cause of action under the Dram Shop Act.
On appeal, the Bauer court held that, although the Dram Shop Act was not applicable to the C View Inn because intoxicated driver was not served there, the tavern still owed a duty of care under the common law to protect visibly intoxicated patrons from “foreseeable injury” by not only insuring that they do not drive, but also by insuring that they do not ride as a passenger with an intoxicated driver.
The Bauer court further held that the tavern also had the common law duty of care to prevent the visibly intoxicated driver from operating a motor vehicle, regardless of whether his intoxication was the result of being served by the C View Inn or from other causes.
The Bauer case constitutes a significant expansion of the duty of care that restaurants, taverns and other licensed servers of alcoholic beverages owe to their patrons. An establishment which serves alcohol, and their risk managers and insurers, can not afford to overlook this decision.
If you are a licensed alcoholic beverage server, or the risk manager or insurer for the hospitality industry in New Jersey, please do not hesitate to contact Golden, Rothschild, Spagnola, Lundell, Levitt & Boylan, P.C. We would be glad to further discuss this case, and its possible implications, with you.
Eric S. Schlesinger, Esq. is an associate of GRSLL&B in the firm’s GENERAL LIABILITY GROUP. He practices in the areas of Personal Injury, Premises Liability, and Liquor Liability defense.
|
