On appeal from the Superior Court, Law Division, Monmouth County.
King, Brody and Ashbey. The opinion of the court was delivered by Ashbey, J.A.D.
[229 NJSuper Page 296] This is a dram shop case. The question is whether it is foreseeable to a tavern serving alcohol to an underage drinker
that fire-related death and injuries will proximately result. Defendants Ren-Bar, its owner Rene Bartoli, (collectively the tavern or Poor Mike's) appeal from verdicts in plaintiffs' favor for compensatory and punitive damages. Plaintiffs cross-appeal from a post-trial order which vacated the awards for punitive damages. Separately, plaintiff Maryella Thomas cross-appeals from a trial court ruling which removed from the jury consideration of her claim on behalf of Nicole Thomas.*fn1 We affirm.
Plaintiffs represent members of the same family. They were living together in a house which burned to the ground. Defendant George Thomas was also a member of the family, and assertedly responsible for the fire. Plaintiffs claimed that George, under the legal age to drink, had been served alcohol by defendant tavern, had become intoxicated, and had negligently set the house on fire. The jury concluded that George was 25% responsible for the fire and that defendant tavern was 75% responsible. Poor Mike's challenges the ensuing judgments and the denial of its motion for a new trial.
The fire occurred in the early hours of March 10, 1985. It resulted in the deaths of two small children, Melvin and Nicole
Thomas, their 16 year old uncle, Michael Thomas, and 46 year old aunt, Mildred Finney. Woodie Thomas, Michael's brother, survived the fire, but suffered burns. Much of the evidence concerned how the fire occurred. Plaintiffs contended that George left a pot of cooking oil burning on the stove after he came in late after drinking at Poor Mike's.
Maryella Thomas, George's sister, testified that a pot of oil had been used earlier in the evening and been placed on a back burner to cool. No one was cooking when she went to bed on the first floor before George came home. After George came in, Maryella was asleep and was awakened by the smoke and flames. She "jumped up and went into the kitchen cautiously because the door frame leading to the kitchen was on fire." "I saw a pot on the stove on fire." "[a]ll I saw was the grease in the pot and the grease on fire, . . . and the burner on fire. . . . the cabinets were catching on fire back of the stove. . . . [the fire] was heading into the dining room all along the walls, the ceiling." She threw some water on the fire which made it worse. Maryella said that after the fire George admitted he had been cooking; he was watching television and had fallen asleep. George's brother, Woodie, testified that George admitted he was cooking before the fire, he wasn't sure if he turned off the stove, and he fell asleep. George's brother, Willie, also testified that George wasn't quite sure whether he was cooking when he came home.
Officer Calderone testified that he saw flame on top of the stove in the kitchen and observed that it involved the cabinets directly over the stove. Lt. Dispensiere took extensive color slides of the fire scene. He also inspected the stove top and the left rear burner (where the pot had melted) and found it in the full "on" position. Lt. Dispensiere testified that the electrical system, the gas system and other potential causes of the fire were in working order.
George testified that on the evening of March 9, 1985 some time after 9 p.m., he arrived at Poor Mike's. He was working
as an assistant to the disc jockey. He only had one sip of beer which was given to him by someone he could not identify. He denied that he turned on the stove and denied that he had ever admitted to anyone that he had been cooking. George admitted that Sally Todd was a bartender at Poor Mike's that night. According to Todd's deposition, she served two drinks to George, a beer and a double shot of rum. She did not require him to produce any proof of age. She had seen George at Poor Mike's drinking, on previous occasions. Maryella testified that she believed that George was under the influence of alcohol. He was difficult to rouse. Officer Calderone, when he arrived at the fire scene, observed that George's speech was "slurred" and that, he appeared to be "sort of dazed. Maybe groggy." Seth Cunningham testified that he was in the bar and personally saw George purchase and consume several rum and cokes accompanied by several beers. The tavern offered no contrary testimony.
The jury was instructed that
Plaintiffs here may recover from a tavern owner if they show by a preponderance of the evidence that Poor Mike's negligently served George Thomas intoxicating beverages when he was underage. That at the time of the service Poor Mike's knew or should have known from the circumstances that George Thomas was underage or an apparent minor and that the service of the alcoholic beverages was a ...