On appeal from Superior Court of New Jersey, Law Division, Ocean County.
Bischoff, J. H. Coleman and Gaulkin.*fn1The opinion of the court was delivered by Coleman, J.h., J.A.D.
The novel issue raised by this appeal is whether a dram shop that sells intoxicating beverages to an actually or apparently intoxicated pilot of a private airplane, who crashes the plane, killing himself and his passengers, can assert the defense of contributory negligence against claims made on behalf of the unintoxicated deceased passengers on the flight who knew the pilot was probably intoxicated. In other words, does the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 et seq., apply to this dram shop under the limited facts of this case. The trial judge answered in the negative. We disagree and reverse for the reasons which follow.
In this tragic case three wrongful death actions (N.J.S.A. 2A:31-1 et seq.) were filed by the personal representatives of three passengers killed in the crash. In each case the defendants are Forked River House, a tavern-restaurant (dram shop), Ocean Aviation, Inc., the lessor of the aircraft, and the Estate of Charles Pirolo, the licensed pilot. The case filed by the pilot's survivors is not before us because that matter was settled. The three actions were consolidated for trial because common questions of fact and law existed. All defendants alleged that the passengers were negligent because they rode with the pilot who they knew or should have known was actually or apparently intoxicated. The jury found that the passengers and the dram shop were negligent, to wit: (1) Roseann Buckley 6 3/4%, the dram shop 5 3/4%; (2) Karl Elms 20%, the dram shop 6%; and (3) Charles Reidinger 20%, the dram shop 6%. The trial judge molded the verdict to deny the dram shop the benefit of the passengers' negligence. Other defendants were not affected by that ruling, and they have not appealed.
From the evidence presented at the trial, the jury could have found the following facts: On Saturday, December 4, 1976 Charles Reidinger worked with Charles Pirolo and their mutual employer Hugo Lotto from 8 a.m. until about 12 noon. The three men went to defendant Forked River House after work. While there Pirolo was served three or four beers and four or five double shots of scotch whiskey. At about 2 p.m. the three men went to a friend's house and each consumed a bottle of beer. Between 4:00 p.m. and 4:20 p.m. Pirolo and Reidinger met Karl Elms and others at the Forked River House where they were served additional alcoholic beverages. A witness testified that Pirolo was drunk before he left the tavern.
Pirolo suggested a plane ride and arranged to charter and pilot a twin engine aircraft from Ocean Aviation, Inc., the operator of the Miller Air Park, which was ten miles from Forked River. At 5:15 p.m. Pirolo took Reidinger, Elms, Stephen Racz and Richard Gardener for a plane ride. The plane buzzed the Forked River House several times at altitudes of 70 to 80 feet. The plane touched some tree tops and might have clipped others.
At about 7:30 p.m. Pirolo and his passengers returned to the Forked River House where they discussed the flight they had just completed. Pirolo consumed two more bottles of beer before leaving the tavern at about 8 p.m. for a second flight. Decedents Elms and Reidinger joined Pirolo on the second and fatal flight which departed at about 9 p.m. Roseann Buckley, who ate dinner at the Forked River House but did not consume any intoxicating beverages, also accompanied the three others on the second flight. At 9:20 p.m. the aircraft struck a radio tower near the Forked River House and crashed, killing all aboard.
A postmortem examination revealed that Pirolo had a brain alcohol reading of .171% at the time of death. An expert witness, who testified for plaintiffs, calculated that at 8 p.m., when Pirolo was at the dram shop, his blood alcohol was .217%.
During the trial the judge ruled that comparative negligence did not apply to defendant Forked River House because of public policy which imposes liability on tavern keepers for injuries that occur as a result of selling alcoholic beverages to persons actually or apparently intoxicated.
In this appeal Forked River House contends that the New Jersey Comparative Negligence Act, N.J.S.A. 2A:15-5.1 et seq., has modified our dram shop law enunciated in cases starting with Rappaport v. Nichols, 31 N.J. 188 (1959). The main thrust of Forked River House's argument involves two contentions: (1) the underpinning for our dram shop law is the harsh effect of common law contributory negligence; and (2) the enactment of N.J.S.A. 2A:15-5.1 et seq. is applicable to all negligence actions. Hence, it argues that under our modified comparative negligence law, the harsh effect of common law contributory negligence has been removed. Consequently, it argues, that since this is a negligence case, the negligence of the passengers should be compared to the negligence of the dram shop.
Generally, the contributory negligence of plaintiffs' decedents applies to claims made by survivors. See Soronen v. Olde Milford Inn, Inc., 46 N.J. 582, 589 (1966); Blaker's Ex'x v. Receivers of N.J. Midland R. Co., 30 N.J. Eq. 240 (Ch.1878). The defense of contributory negligence was also available to a tavern keeper in a suit by a patron before the dram shop rule was created. See Reilly v. 180 Club, Inc., 14 N.J. Super. 420, 424 (1951). Hence, prior to the Rappaport decision in 1959, contributory ...