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Tilton v. Brombacher

March 17, 1989

KIRK W. TILTON, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF VICTORIA TILTON AND KIRK W. TILTON, INDIVIDUALLY, PLAINTIFF,
v.
IDA C. BROMBACHER AND PARIS, INC., A CORPORATION OF THE STATE OF NEW JERSEY T/A THE HAPPY HOUR, DEFENDANTS



Pepe, J.s.c.

Pepe

This is a motion for summary judgment by defendant Paris, Inc., trading as "Happy Hour," a package liquor store. Victoria Tilton, a pregnant woman, was killed when an intoxicated 71-year-old woman, proceeding in the wrong direction on Route 37 East, a divided highway, struck her vehicle head-on. Plaintiff alleges that defendant Paris, Inc., sold a bottle of whiskey to an apparently intoxicated individual, defendant Ida C. Brombacher, that she consumed part of the contents of that bottle, thereby contributing to her intoxication and to the happening of the accident and the death. Defendant, while denying the factual scenario, has argued that tavern-owner liability, as established in Rappaport v. Nichols, 31 N.J. 188 (1959), and the cases that followed, has never been extended to package sales of alcohol to intoxicated adults.

This is a case of first impression. This court holds that a licensee who sells package-alcoholic beverages, albeit in a sealed bottle, to a visibly intoxicated patron who thereafter negligently operates a motor vehicle, is liable for injuries inflicted upon a third party as a result thereof, when the intoxication has been contributed to by imbibing the purchased liquor.

A brief review of the history of so-called dram shop liability in the State of New Jersey is necessary to understand the natural progression of the law which has led this court to its decision.

In Rappaport, supra, the Court held a tavern owner liable for service of alcohol to a minor and to one who was actually or apparently intoxicated when the intoxication was a proximate cause of injury to that person or to an innocent third party. Once tavern owners' liability had been established, public policy considerations called for an extension of liability that was not immediately accepted. In Anslinger v. Martinsville Inn, Inc., 121 N.J. Super. 525 (App.Div.1972), certif. den., 62 N.J. 334 (1973), the court refused to extend the liability to quasi -business organizations. Subsequently, however, in Linn v. Rand, 140 N.J. Super. 212 (App.Div.1976), liability was extended to include social hosts serving minors. The court adopted the progressive philosophy of Rappaport by stating:

It makes little sense to say that the licensee in Rappaport is under a duty to exercise care, but give immunity to a social host who may be guilty of the same wrongful conduct merely because he is unlicensed. [ Id. at 217]

Continuing the progression of the law, the court in Figuly v. Knoll, 185 N.J. Super. 477 (Law Div.1982), extended the social host liability to the service of alcohol to an intoxicated adult guest:

While Linn dealt with serving of alcohol to a minor while a social guest at defendants' home and imposed liability, there is nothing in the reasoning thereof which would limit the application of the doctrine set forth therein to minors anymore than it could be argued that the Rappaport doctrine should have been so limited.

The Figuly holding was reinforced by the Supreme Court in Kelly v. Gwinnell, 96 N.J. 538 (1984), in which the Court stated "We impose this duty on the host to the third party because we believe that the policy considerations served by its imposition far outweigh those asserted in opposition." Id. at 548.

Thereafter, liability was partially extended to a package store in Thompson v. Victor's Liquor Store, Inc., 216 N.J. Super. 202 (App.Div.1987) wherein the court held:

There is no question that Rappaport v. Nichols, supra, as well as the Alcoholic Beverage Control Regulation, N.J.A.C. 13:2-23.1(a) prohibiting direct and indirect sales to minors, provide a basis for liability. . . . We also observe that the decided cases in this State have all involved the sale of drinks at a bar or tavern or at a private party, and, therefore, an issue may be raised whether the same rule should apply to the sale of liquor or beer from a package store. . . . Therefore, a sale to a ...


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