For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Pollock, O'Hern and Garibaldi. Concurring in part; dissenting in part -- Justice Handler. The opinion of the Court was delivered by Clifford, J. O'Hern, J., concurring. Justice Garibaldi joins in this opinion. Handler, J., concurring in part and dissenting in part. O'Hern and Garibaldi, JJ., concurring in the result.
In these wrongful death cases plaintiffs' decedents were passengers in an aircraft piloted by defendant Pirolo and leased to him by defendant Ocean Aviation, Inc. All the occupants were killed when the airplane crashed. Immediately before the flight the occupants had been patrons of the defendant Forked River House, where the pilot and two of the passengers were served intoxicating liquors. The evidence strongly suggests that the pilot, Pirolo, was intoxicated when he left the tavern and when the plane went down.
The question posed by these appeals, argued together, involves the interaction of the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.3, with our common-law dram-shop rule. Unlike many states New Jersey does not have a dram-shop statute, under which civil liability may be imposed on unlawful sellers of alcoholic beverages. However, we do recognize a common-law cause of action against a tavern based on negligent sale of intoxicating liquor. See Rappaport v. Nichols, 31 N.J. 188 (1959); Comment, "Increasing the Liability of New Jersey Taverns: Where to Draw the Line," 3 Seton Hall L.Rev. 233, 235-36 (1971); see also Note, "Vendor Liability for Torts of Intoxicated Patrons," 12 U.Balt.L.Rev. 139, 143 (1982) (describing Rappaport as one of two decisions in the forefront of the trend toward finding vendor civilly liable for damages to third party based on vendor's illegal sale of alcohol to a minor); Nazareno v. Urie, 638 P. 2d 671, 674 n. 3 (Alaska 1981) (setting forth status of law in numerous other jurisdictions).
The trial court held that the tavern should not receive the benefit of any negligence of plaintiffs' decedents. The Appellate Division reversed and ordered that judgment be entered in favor of the tavern. Judgments in favor of plaintiffs against
other defendants were accordingly remolded. Buckley v. Estate of Pirolo, 190 N.J. Super. 491, 500 (1983).
We granted certification, 95 N.J. 199 (1983), to review the Appellate Division's determination that the Comparative Negligence Act applies to these plaintiffs' claims against a tavern under New Jersey's common-law dram-shop rule. Although we agree with the court below that the Comparative Negligence Act applies, we reverse and remand the cause for further proceedings to determine the impact of comparative negligence principles on these parties, inasmuch as a full and fair hearing on that aspect of the case was not afforded at trial.
The Appellate Division opinion contains an accurate recitation of the facts that, on the evidence presented, a jury could have found:
On Saturday, December 4, 1976 Charles Riedinger worked with Charles Pirolo and their mutual employer, Hugh 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 Riedinger 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 Riedinger, 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 Riedinger 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 [sic: blood] alcohol reading of .171% at the time of his 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%.
[190 N.J. Super. at 494.]
The personal representatives of three passengers who were killed in the crash started actions for the wrongful deaths of their decedents. See N.J.S.A. 2A:31-1 to -6. The cases were consolidated for trial. In each suit plaintiff charged defendants with negligence -- Pirolo, the pilot, for the manner in which he operated the aircraft; Ocean Aviation, Inc. on a theory of negligent entrustment of the aircraft; and Forked River House for serving alcoholic beverages to Pirolo when the tavern knew or should have known that he was intoxicated.
Defendants, in addition to denying negligence, set up the defense of the passengers' negligence. As to defendant Forked River House, however, the trial court, in apparent reliance on Aliulis v. Tunnel Hill Corp., 114 N.J. Super. 205 (App.Div.), aff'd, 59 N.J. 508 (1971), ruled early in the trial that principles of comparative negligence, applicable as between plaintiffs and the remaining defendants, would not be applied between plaintiffs and the tavern. It based that ruling on the public policy that imposes on tavern keepers liability for injuries to third parties resulting from the sale of alcoholic beverages to persons actually or apparently intoxicated. However, at no point did the court acquaint the jury with its ruling, the effect of which was that that defendant Forked River House would not be afforded the benefit of any finding of the passengers' negligence. Instead, at the conclusion of the trial the court charged the jury just as if the tavern's negligence, like that of the other defendants (who were not affected by the dram-shop rule), was to be compared with the passengers' negligence. It was the court's intention, later fulfilled, to mold the verdicts consistent with its earlier ruling, communicated only to counsel, that comparative negligence principles would not apply as between plaintiffs and the tavern.
Therefore, the jurors received an instruction on the law of comparative negligence as it was at the time of this trial (as noted hereafter, infra at 81, the law has since been changed). Those instructions included an "outcome" charge, in which the jurors were told that "a plaintiff cannot recover money damages against a defendant if you find that the plaintiff's negligence was greater than the negligence of that defendant." See Van Horn v. Blanchard Co., 88 N.J. 91 (1981) (plaintiff can recover only from defendants who were more negligent than plaintiff), and Roman v. Mitchell, 82 N.J. 336, 345-46 (1980) (jury in a comparative negligence situation should be given an "ultimate outcome" charge). To aid the jury in its deliberation the court submitted specific interrogatories directed to the percentages of negligence of all parties. The jury calculated the damages and found the following percentages of negligence:
Forked River House 5-3/4%