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Aliulis v. Tunnel Hill Corp.

Decided: March 26, 1971.

ALITA ALIULIS, AN INFANT BY HER GUARDIAN AD LITEM, GEORGE ALIULIS, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
TUNNEL HILL CORP., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT AND CROSS-APPELLANT



Goldmann, Leonard and Fritz. The opinion of the court was delivered by Fritz, J.A.D.

Fritz

[114 NJSuper Page 206] The narrow issue presented by this appeal is whether the defense of contributory negligence is

available to a defendant tavern in an action for personal injuries caused to a plaintiff by a minor served alcoholic beverages by the tavern, in violation of a regulation of the Division of Alcoholic Beverage Control.

In the late afternoon of May 5, 1965 Alita Aliulis, the minor plaintiff with whom we are here concerned, was in a field near Washington, New Jersey, in the company of three other girls and two boys. The group had a case of beer. Of the other three girls, two were young adults, and one, Cynthia Zulauf, was also a minor. The ages of the boys do not appear, nor is it important. At some time during these activities, the two older girls left the field. Alita and Cynthia remained with the boys until about eight o'clock in the evening. They then left the field to commence a round of several taverns which was to continue until about three o'clock the following morning. It is not clear whether the two boys accompanied them, but sometime during the course of the evening they were rejoined by the other two girls. The four girls were together when they left Tunnel Hill Tavern, defendant here, in the early hours of the morning. At oral argument counsel agreed that despite the aforementioned activities, the record did not demonstrate that Alita was intoxicated when she left the defendant tavern.

The four girls were driven by a person (not here concerned) to a tavern previously visited and where Cynthia's car had been left. They proceeded from there, in Cynthia's car, with Cynthia driving. Because of an abbreviated record (the facts apparently not being in dispute) we have not had the benefit of the testimony, but we are advised by defendant's brief that Cynthia's three passengers all testified they knew she was not fit to drive the car, apparently because of intoxication. After a stop for gasoline, Cynthia drove only a short distance when she collided with a car operated by one Clifford Morgan. Cynthia was killed, and her three passengers were seriously injured.

A number of actions were instituted; all were settled, except Alita's claim against the tavern. This was tried to

a jury on the theory of defendant's negligence in serving alcoholic beverages to a minor, contrary to the provision of Regulation 20, Rule 1, of the Division of Alcoholic Beverage Control. Among other proper and unchallenged instructions, the trial judge charged the regulation, the availability of an inference of negligence upon the finding of a violation thereof, and the necessity for a determination of proximate cause before liability could be imposed. He then charged that plaintiff could not recover, regardless of defendant's negligence, if they found her to be contributorily negligent. Plaintiff's counsel made an appropriate and timely objection to this portion of the charge.

Although not solicited to do so by the charge, the jury returned with specific findings. It found defendant guilty of negligence and plaintiff guilty of contributory negligence. A concordant judgment in favor of defendant was entered, from which plaintiff here appeals.

It is beyond question in this State that if a defendant tavern sells alcoholic beverages to a minor in violation of the regulation of the Division of Alcoholic Beverage Control proscribing that activity, such illegal conduct provides adequate support for a jury verdict of negligence from which liability for injuries caused to another by the minor may be adjudged. Rappaport v. Nichols , 31 N.J. 188 (1959). It is clear, also, that this responsibility of the tavern keeper for the proximate results of a violation of the regulations extends to injuries suffered by the patron who is illegally served. Soronen v. Olde Milford Inn, Inc. , 84 N.J. Super. 372 (App. Div. 1964). To the same effect, on directly certified appeal from the retrial in Soronen , is 46 N.J. 582 (1966). Both Soronen opinions held that the bar of contributory negligence was not available to the defendant tavern in an action by the patron.

We hold that, for reasons of policy clearly enunciated in Rappaport and Soronen , contributory negligence is not available as a defense to the defendant tavern in the circumstances here presented.

A persuasive argument can be made for a contrary result based upon traditional concepts of negligence and contributory negligence. This was the approach of the trial judge in his reliance upon Petrone v. Margolis , 20 N.J. Super. 180 (App. Div. 1952); Bowman v. Central R.R. Co. of N.J. , 27 N.J. Super. 370 (App. Div. 1953), and King v. Jones , 47 N.J. Super. 279 (App. Div. 1957). But in none of these cases, all of which preceded Rappaport and Soronen , was it necessary to consider the conflict between the common law ...


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