Conford, Freund and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.
Plaintiff Edith T. Soronen, as administratrix and administratrix ad prosequendum of John G. Soronen, deceased, appeals the involuntary dismissal of her suit brought under the death by wrongful act statute, N.J.S. 2A:31-1 et seq.
John G. Soronen (decedent) while a patron in a tavern fell and struck his head against a "steel lally column" in the tavern and died of a fractured skull several hours later.
Plaintiff's contention is that decedent's fall in the tavern and untimely death were the result of his having been served liquor by the bartender, although decedent was then in an
actual and apparent state of intoxication. The corporate owner of the tavern and its principal stockholder, who was bartender in the tavern, were joined as parties defendant.
At the conclusion of plaintiff's presentation of evidence the trial court ruled that, assuming plaintiff's contentions stated an actionable claim, plaintiff had not presented any evidence from which a jury could reasonably find that at the time decedent entered defendant's tavern and was served drinks, his condition of intoxication would have been apparent to the bartender.
Plaintiff's theory of liability is based on Rappaport v. Nichols , 31 N.J. 188 (1959). In that case it was held that a tavern keeper may be chargeable with common law negligence if he serves alcoholic beverages to a visibly intoxicated person, who thereafter because of his intoxicated condition caused injury to a third party. Rappaport was a suit by the third party against the tavern keeper. In its opinion the Supreme Court stated (31 N.J. , at page 202) that when a tavern keeper sells alcoholic beverages to an intoxicated person, the unreasonable risk of harm, not only to the intoxicated person but also to a third party, is readily foreseeable. The court also noted that in furtherance of the legislative policy enunciated in the Alcoholic Beverage Control Act, the Division of Alcoholic Beverage Control had by Regulation 20, Rule 1, provided that no licensee shall serve any alcoholic beverage to any person actually or apparently intoxicated. These restrictions, said the court, were not intended to benefit intoxicated persons alone, but also were intended for the protection of members of the general public.
While Rappaport involved a suit by a member of the general public against the tavern keeper, the opinion therein makes it clear that a tavern keeper owes a duty to a visibly intoxicated person not to serve him alcoholic beverages. As noted in the opinion, the unreasonable risk of harm to the intoxicated person himself is readily foreseeable.
The duty to the visibly intoxicated persons is both common law and statutory. Intoxication is a state of impairment
of one's mental and physical faculties due to overindulgence in alcoholic drink. A person in that condition is unable to exercise normal powers of judgment and prudence. He is a potential menace, not only to himself but to others. Common sense requires that a tavern keeper refuse to serve alcoholic drink to such a person. This common law principle is carried into our Alcoholic Beverage Control Act which, through implementing regulations, specifically prohibits a licensee from serving alcoholic drink to a person actually and apparently intoxicated. We conclude that plaintiff's complaint sets forth a justiciable cause of action.
A similar conclusion was reached in Galvin v. Jennings , 289 F.2d 15 (3 Cir. 1961). There a patron filed suit against a tavern keeper, charging that he had been served alcoholic beverages while noticeably intoxicated and that after leaving the tavern he became involved in an automobile accident and was injured. All of the events occurred in New Jersey, so that liability was determined by New Jersey law. The Third Circuit held that the complaint alleged a cause of action under New Jersey law and within the language of the Rappaport case.
Of course, it would be incumbent upon plaintiff to establish by a preponderance of the credible evidence that the drinks served decedent in defendant's tavern ...