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Tiger v. American Legion Post No. 43

Decided: October 30, 1973.

GERALDINE TIGER AND RAYMOND TIGER, HER HUSBAND, PLAINTIFFS-RESPONDENTS,
v.
AMERICAN LEGION POST NO. 43 AND LEONARD CLARK, DEFENDANTS-RESPONDENTS, AND RONALD M. HEYMANN, DIRECTOR OF MOTOR VEHICLES OF STATE OF NEW JERSEY, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Morris County.

Carton, Seidman and Goldmann. The opinion of the court was delivered by Seidman, J.A.D.

Seidman

[125 NJSuper Page 364] This appeal involves a personal injury negligence action brought by plaintiff Geraldine Tiger and her husband against American Legion Post No. 43 (Post), its employee and bartender Leonard Clark, and the Director of the Division of Motor Vehicles. She claimed that the American Legion Post, through the bartender, negligently served her alcoholic beverages while she was visibly intoxicated,

thus proximately contributing to her being struck and injured by a hit-and-run vehicle. Recovery was sought from the Director of the Division of Motor Vehicles pursuant to N.J.S.A. 39:6-78, the Unsatisfied Claim and Judgment Fund Law, because of the alleged negligence of the unknown driver. Her husband sued per quod.

All defendants charged her with contributory negligence. No cross-claims were asserted among themselves, but the Post and Clark counterclaimed against Mr. Tiger for indemnification and contribution because of his negligence in permitting his wife to go to the bar operated by the Post.

At the close of the evidence defendants Post and Clark moved to dismiss the complaint on the ground that there was no proof that their alleged negligence proximately caused plaintiff's injuries. Plaintiff offered no resistance to the motion, but the Director opposed it. The motion was granted.

The trial judge denied the Director's motion for dismissal, sought on the grounds that plaintiff had not proved the involvement of a hit-and-run vehicle, that she had failed to make all reasonable efforts to identify the alleged hit-and-run driver, and that she was guilty of contributory negligence as a matter of law.

Plaintiff's motion to strike the defense of contributory negligence was granted.

The jury returned a verdict in favor of Mrs. Tiger in the sum of $7,300 and one in favor of her husband for $3,200. Subsequently, on motion and after hearing argument, the trial judge entered an order directing the Fund to pay $10,000, plus costs and interest under R. 4:58.

The Director appeals, contending that the trial judge erred in (1) denying his motion for dismissal, (2) striking the defense of contributory negligence and refusing to charge it, (3) granting the dismissal motion of the co-defendants (4) failing and refusing to charge the jury on plaintiff's burden to establish she was struck by an unidentified vehicle, (5) ordering payment by the Unsatisfied Claims and Judgment

Fund even though plaintiff had failed to make reasonable efforts to identify the owner or driver of the unknown vehicle, and (6) allowing plaintiff costs and interest on the judgment.

From our canvass of the record we believe there are only two substantial issues in this case, namely, whether the trial judge properly struck the defense of contributory negligence and whether the Director has standing to ...


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