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Rappaport v. Nichols

Decided: November 23, 1959.

SELMA RAPPAPORT, ETC., PLAINTIFF-APPELLANT,
v.
ROBERT NICHOLS, ET AL., DEFENDANTS, AND HUB BAR, INC., A NEW JERSEY CORPORATION, ET AL., DEFENDANTS-RESPONDENTS



For affirmance -- None. For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. The opinion of the court was delivered by Jacobs, J.

Jacobs

[31 NJ Page 191] The plaintiff-appellant appealed to the Appellate Division from a judgment entered in the Law Division in favor of the defendants-respondents. We certified the matter on our own motion. [31 NJ Page 192] The plaintiff's complaint alleges that during the night of November 14 or the early morning of November 15, 1957 Robert Nichols, who was then about 18 years of age, was "wrongfully and negligently sold and served alcoholic beverages" at the tavern premises of the defendants Hub Bar, Inc., 146 Mulberry Street, Newark, Murphy's Tavern, Inc., 135 Mulberry Street, Newark, Nathan Sweet and Solomon Lustig, trading as Nate's Tavern, 116 Mulberry Street, Newark and El Morocco Cocktail Bar, Inc., 1011 Broad Street, Newark; that the alcoholic beverages were sold and served under circumstances which constituted "notice or knowledge" by the tavern operators that Nichols was a minor who could not lawfully be served by them; that during his visits to Murphy's Tavern and the El Morocco Cocktail Bar, Nichols was accompanied by the defendant Leonard Britton, an adult, who paid for the alcoholic beverages under circumstances which constituted notice or knowledge that Nichols should not be served because of "his age and apparent condition"; that by reason of the "negligence and wrongful conduct" of the defendants, Nichols was rendered "under the influence of alcoholic beverages and unfit and incompetent to safely and reasonably operate" the motor vehicle entrusted to him by his mother, the defendant Mary Nichols; that he nevertheless drove it along the public highway at Washington and Academy Streets in Newark in a careless manner, resulting in a collision with a car operated by Arthur Rappaport and owned by the plaintiff; that Arthur Rappaport died as the result of injuries received in the collision and the plaintiff was appointed as general administratrix and administratrix ad prosequendum and seeks damages as the representative of his estate and in her individual capacity as owner of the car. Upon the basis of the limited record before us we may, for present purposes, infer that Nichols had just attained his eighteenth birthday, that he was served with intoxicating beverages at each of the four named taverns, that he left the last of the taverns at about 2 A.M., that he was intoxicated and negligently drove the motor vehicle

and collided with the plaintiff's car between 2:15 and 2:20 A.M., and that his negligent operation of the motor vehicle was the result of his intoxication.

The tavern operators moved for summary judgment on the ground that the complaint "fails to state a cause of action and that as a matter of law" they are entitled to judgment. On March 20, 1959 the Law Division judge granted the motion in a letter opinion which stated that "while in some other jurisdictions outside New Jersey one may be held responsible for the actions of another to whom he has served intoxicating liquors, such is not the present law in New Jersey and to apply the doctrine of foreseeability to the facts in the case would stretch the intent of the doctrine too far." On April 20, 1959 a formal order for summary judgment was entered; it contained a provision staying proceedings against the remaining defendants until the plaintiff's rights are finally determined on appeal as against the tavern keepers. Cf. R.R. 4:55-2. Notice of appeal was filed by the plaintiff and her supporting brief as well as the brief in opposition by the tavern keepers addresses itself entirely to the issue of whether the plaintiff's complaint against the tavern keepers sets forth a common law cause of action grounded on negligence. We shall do the same, bearing in mind that in dealing with the legal sufficiency of the complaint, the plaintiff is entitled to a liberal interpretation of its contents and to the benefits of all of its allegations and the most favorable inferences which may be reasonably drawn from them. See Puccio v. Cuthbertson, 21 N.J. Super. 544, 548 (App. Div. 1952); Mianulli v. Gunagan, 32 N.J. Super. 212, 215 (App. Div. 1954); Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 248 (App. Div. 1957). At oral argument, counsel for the plaintiff indicated that the complaint was intended to charge not only that the tavern keepers unlawfully and negligently sold and served alcoholic beverages to Nichols under circumstances which constituted notice or knowledge that he was a minor but also that the sale and

service by one or more of the tavern keepers was at a time when Nichols' intoxicated condition was apparent. Despite its vague phraseology we shall assume that the complaint embodies such charge; in any event an amendment to that end would readily be allowed. See Schierstead v. City of Brigantine, 29 N.J. 220, 234 (1959).

Judges elsewhere have dealt with the issue of whether tavern keepers who unlawfully sell alcoholic beverages to persons who are already intoxicated or to minors who become intoxicated may properly be subjected to common law claims grounded on negligence where the intoxicated persons leave the taverns, carelessly drive their cars and injure others. Most of them, while acknowledging the justness of the common law principles which generally result in the imposition of liability for negligent conduct which causes injury to others, have rejected such claims. See Fleckner v. Dionne, 94 Cal. App. 2 d 246, 210 P. 2 d 530 (Dist. Ct. App. 1949); State for Use of Joyce v. Hatfield, 197 Md. 249, 78 A. 2 d 754 (Ct. App. 1951); Cowman v. Hansen, 92 N.W. 2 d 682 (Iowa Sup. Ct. 1958); 30 Am. Jur. Intoxicating Liquors ยง 520 (1958); Annotation, 130 A.L.R. 352 (1941); cf. Cole v. Rush, 45 Cal. 2 d 345, 289 P. 2 d 450, 54 A.L.R. 2 d 1137 (Sup. Ct. 1955). In the Fleckner case a divided court sustained the dismissal of a count in the complaint which charged that the defendant tavern keeper had unlawfully and negligently sold liquor to a minor while he was actually intoxicated and that the plaintiffs were injured when the minor left the tavern, negligently drove his car while intoxicated and collided with the plaintiffs' car causing their injuries. The majority took the position that the sale of the liquor was not the "proximate cause" of the plaintiffs' injuries and cited earlier cases which sought to separate and insulate the selling of the liquor from its consumption, suggesting that the latter and not the former was the proximate cause. In his dissenting opinion, Justice Dooling indicated that he was not at all impressed by this highly legalistic type of reasoning; he considered that the plaintiffs' claim

came well within fundamental common law negligence principles which are recognized in his state as well as elsewhere throughout the country; and he placed analogical reliance on the many decisions which impose common law liability on car owners who negligently loan their cars to intoxicated persons who then negligently injure innocent third parties. See Deck v. Sherlock, 162 Neb. 86, 75 N.W. 2 d 99 (Sup. Ct. 1956); Mitchell v. Churches, 119 Wash. 547, 206 P. 6, 36 A.L.R. 1132 (Sup. Ct. 1922).

In State for Use of Joyce v. Hatfield, supra, the court sustained a dismissal of a common law claim against the defendant tavern keeper on the ground that, as a matter of law, the sale to the intoxicated minor could not be considered the proximate cause of the later collision; the court stressed the fact that while many other states had done so, Maryland had never adopted a so-called Civil Damage Law or Dram Shop Act imposing strict liability upon tavern keepers for injuries resulting from sales of alcoholic beverages. See Appleman, "Civil Liability under Illinois Dramshop Act," 34 Ill. L. Rev. 30 (1939); Note, "Liability under the New York Dram Shop Act," 8 Syracuse L. Rev. 252 (1957). In Cowman v. Hansen, supra, the Iowa Supreme Court rejected the plaintiff's common law claim on the ground that the sale of the alcoholic beverage was "too remote" to be considered the proximate cause of the injury; in the course of its opinion it discussed Pratt v. Daly, 55 Ariz. 535, 104 P. 2 d 147, 130 A.L.R. 341 (Sup. Ct. 1940) where the court, citing many supporting cases involving habit forming drugs, held that a wife could properly assert a common law negligence claim against a tavern keeper for the loss resulting to her from the tavern keeper's continued service of alcoholic beverages to her husband, an habitual drunkard. See Moberg v. Scott, 38 S.D. 422, 161 N.W. 998, L.R.A. 1917 D, 732 (Sup. Ct. 1917); cf. Nally v. Blandford, 291 S.W. 2 d 832 (Ky. Ct. App. 1956); Riden v. Gremm, 97 Tenn. 220, 36 S.W. 1097, 35 L.R.A. 587 (Sup. Ct. 1896); Dunlap v. Wagner, 85 Ind. 529, 44 Am.

Rep. 42 (Sup. Ct. 1882); Skinner v. Hughes, 13 Mo. 440 (Sup. Ct. 1850). The Iowa court sought to distinguish Pratt v. Daly, on the rather unconvincing ground that while "it may be foreseen" or it may be "a natural result" of furnishing an alcoholic beverage to an intoxicated person "that he himself will get hurt" it is "not at all clear that he will naturally assault someone, drive a car and injure or kill another, or do some other tortious act." [92 N.W. 2 d 686]

The reasoning in cases such as Cowman v. Hansen, supra, has in effect been rejected in decisions under Civil Damage Laws which have sustained findings that the ensuing collisions were the proximate consequences of the liquor sales. In Manning v. Yokas, 389 Pa. 136, 132 A. 2 d 198 (Sup. Ct. 1957) the plaintiffs were injured when their car was struck by a car driven by Kordowski who was intoxicated. Kordowski was a minor and had been served alcoholic beverages at the defendant's premises. The plaintiffs claimed damages from the defendant under the Pennsylvania statute of 1854, Act May 8, 1854, P.L. 663, which provided, in part, that any person who wrongfully furnishes alcoholic beverages "to a minor" shall be held civilly responsible for any injuries "in consequence of such furnishing." The trial court, in setting aside a verdict by the jury ...


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