On appeal from the Superior Court, Law Division, Mercer County.
Dreier, Scalera and D'Annunzio. The opinion of the court was delivered by Scalera, J.A.D. D'Annunzio, J.A.D. (concurring).
Theodore Geherty brought suit against Richard Moore and McGuinn's Place, Inc., for personal injuries sustained when his parked vehicle was negligently struck by Moore's vehicle. Geherty alleged that Moore was intoxicated at the time and that prior thereto, he negligently had been served alcoholic beverages by McGuinn's Place.
Summary judgment was entered against Moore on the issue of liability. Thereafter, a jury trial was held on the liability issue against McGuinn's Place and on the issue of damages against both defendants. Geherty's motion at the conclusion of the evidence, to eliminate the issue of proximate cause as to McGuinn's Place, was denied. The verdict returned was molded to indicate that McGuinn's Place was not liable to plaintiff and damages of $80,000.00 were entered against Moore alone.
Subsequently, plaintiff moved for a new trial on the issue of liability against McGuinn's Place. Moore moved for a new trial on the issue of damages. Both motions were denied. Plaintiff filed an appeal from the judgment in favor of McGuinn's Place and McGuinn's Place filed a cross-appeal alleging that the award of money damages was excessive. Moore's motion seeking leave to file a cross-appeal nunc pro tunc, was denied.
Most of the operative facts involving liability were not disputed at trial. On April 22, 1983, at approximately 10:30 in the morning, Moore drove his 1980 Toyota to Baltimore, Maryland in connection with his work in a research program. Sometime around 1:00 p.m. he had lunch, during which he had "several beers." At about 4:30 in the afternoon he drove back toward his home at 12 Stonicker Drive, in Lawrence Township, New
Jersey. Somewhere above Philadelphia, just before crossing over the bridge to New Jersey, at about 6:00 p.m., Moore stopped at a bar for an hour or so, during which he consumed a "couple of beers."
He then drove into New Jersey and, at approximately 8:00 p.m., stopped at McGuinn's Place in Lawrenceville. He had been there on several occasions before. He drank beer while he was there, but could not recall how much. However, it was his "habit and custom" to drink "two to three beers per hour." He did recall that the beer was served in sixteen ounce glasses. Moore did not eat while at McGuinn's Place, nor did he recall having any conversations with the bartender that evening. At approximately 11:00 p.m., Moore left McGuinn's Place for home.
Then 19 years old, Geherty and his girlfriend, Susan Berry, arrived at her home at 13 Stonicker Drive sometime around 11:00 p.m. in a 1979 Volkswagen. Geherty parked in front of Susan's home for two to three minutes without any lights on. As Geherty was about to exit, he noticed Moore's car coming "quite fast" from the opposite direction. It came over to Geherty's side of the road and struck his car on the front driver's side pushing it over the curb, across the sidewalk and onto the lawn of a neighbor's yard. When Geherty went over to Moore, who was sitting in the driver's seat, he saw that Moore was "sort of swaying around a little bit" and smelled of alcohol. Geherty called for help and then suddenly felt as though "someone hit [him] in the head with a baseball bat." He sat on the lawn and shortly thereafter the police arrived. At this point he began to "shiver uncontrollably" and was taken to Princeton hospital.
Moore's deposition was read into evidence and indicated that after turning down Stonicker Drive and traveling about two blocks, Moore was "wide-angling to the left" as he normally does, to pull into the driveway of his house. All of a sudden, he
struck a car parked in a spot where none had ever been parked during the four years that he had lived there.
Lieutenant James Kelley was dispatched to the accident and found Moore standing outside of his vehicle. He appeared to be swaying a bit and Kelley smelled the odor of alcohol on his breath. Kelley asked Moore to perform several sobriety tests. During the finger to the nose test with his right hand, Moore appeared "sure" but seemed "a little uncertain" when using his left hand. Although Moore's speech was slurred and Kelley felt that he was "under the influence of alcohol," Moore was not loud, boisterous or rambling. Rather, he was polite, cooperative and appeared calm. However, because Kelley believed that Moore was intoxicated he was taken to police headquarters for a breathalyzer test.
At headquarters, Moore was given a breathalyzer test by Sergeant Richard Stout who used the Stevenson, model 900, machine. The first breath test, performed at 12:24 a.m., revealed Moore's blood alcohol content to be .21 percent. Approximately ten minutes later a second test indicated a blood alcohol content of .20 percent.
Plaintiff produced Richard Zylman, who testified without objection as an expert regarding "alcohol in the human body and the breathalyzer." He opined that the beer which Moore had drunk during lunch would have dissipated long before the time of the accident. However, he reached various conclusions by extrapolating the results of the breathalyzer test, Moore's body weight, the amount of beer consumed and the time over which he had been drinking. He calculated that Moore had drunk approximately 167 ounces of beer, or about 10 sixteen ounce glasses, between 6:00 p.m. and 11:00 p.m. He indicated that while drinking at the first bar in Pennsylvania, Moore's blood alcohol rose from zero to between .02 and .03 percent. After entering McGuinn's Place his blood alcohol level rose to .10 percent by 9:20 p.m. and to .15 percent by 10:30 p.m. Finally, by the time he left McGuinn's at 11:00 p.m., Moore's
blood alcohol level was up to about .17 percent. Eventually, his blood alcohol level increased to the .21 percent registered by the breathalyzer.
Zylman opined that at that point, Moore was "highly intoxicated." He concluded with the opinion that when the blood alcohol range of .12 percent was reached, even an "experienced drinker" would have exhibited effects which would have been "observable by an ordinary person." As part of its case, McGuinn's Place read Moore's deposition into evidence wherein Moore denied that his ability to drive had been affected by his consumption of alcoholic beverages. Further, David Lester, the expert for McGuinn's Place, testified that the particular model of breathalyzer machine used by the police to test Moore was subject to operator error, making its readings unreliable. In sum, McGuinn's Place sought to establish that Moore was not intoxicated that night and that, in any event, he did not exhibit any signs of intoxication while at its establishment.
At the conclusion of the evidence, with respect to the liability of McGuinn's Place, the trial judge charged:
Now, in this case, the plaintiff, as I've said, seeks damages against the defendant, McGuinns Place, contending that McGuinns Place was negligent by serving alcoholic beverages to defendant Moore while defendant Moore was intoxicated, and that such negligence proximately caused an accident in which the plaintiff was injured. Plaintiff contends that at the time the alcoholic beverages were served, defendant McGuinns Place knew or in the circumstances, should have known that the patron, Mr. Moore, was intoxicated.
In this case, I will use the phrase visibly intoxicated to mean a patron who McGuinns Place knew or from the circumstances, should have known was intoxicated.
Now, I've used the term negligence. Negligence is generally defined as the failure to exercise that degree of care for the safety of others which a reasonably prudent person would exercise in the same or similar circumstances. In determining whether such care has been exercised, you should consider whether the defendant and again now, we're talking about McGuinns Place only, should have foreseen in the attending circumstances that the natural and proximate consequences of its conduct would have been some accident or injury. For a person to be negligent, it is not necessary that it foresees the particular accident that occurred or the specific injuries which result from the accident. A person or in this case, the tavern owner, is negligent, however, if it does those acts which a reasonably prudent person would not have done, thereby creating
or contributing to a risk of harm and circumstances where a reasonably prudent person would have foreseen that the probable consequence of its conduct would be some accident or injury.
Thus, negligence is the doing of an act which a reasonably prudent person would not have done in the same or similar circumstances because that act creates or contributes an unreasonable and foreseeable risk of harm to others. A person is also deemed negligent if it creates or contributes to an unreasonable risk of injury by its conduct when that conduct is combined with the conduct of others which a reasonably prudent person would foresee.
In other words, a tavern owner is deemed negligent if it serves alcoholic beverages to a visibly intoxicated person in circumstances where a reasonably prudent person would foresee that by serving alcoholic beverages to such a person, it is causing or contributing to an unreasonable risk of harm to others that may result thereafter by the conduct of the intoxicated person.
In this connection, you may consider that in current times, traveling by car to and from a tavern is commonplace, and you may consider that the effects of intoxication of a driver may reasonably be foreseen.
Now, the Division of Alcoholic Beverage Control which is a state agency, pursuant to authority granted by a statute, enacted by our legislature has adopted Regulation 20, Rule ...