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McGovern v. Koza''s Bar & Grill

Decided: December 6, 1991.

JOANNE E. MCGOVERN, PLAINTIFFS,
v.
KOZA'S BAR & GRILL, DEFENDANTS



Menza, J.s.c.

Menza

MENZA, J.S.C.

This is a dram shop action.

Plaintiff has moved to strike defendant's comparative negligence defense.

The question presented is whether the comparative negligence defense is available under the Alcoholic Beverage Servers Liability Act (N.J.S.A. 2A:22A-1 et seq.), to a tavern owner against whom a patron has brought suit for injuries she suffered as a result of her being intoxicated.

Surprisingly, there are no New Jersey cases which have interpreted the statute.

Plaintiff was a patron in the defendant's tavern, at which she consumed four to five glasses of beer and four to five shots of whiskey. She was injured when, upon leaving the tavern, she lost control of her vehicle, and struck two parked cars.

Plaintiff contends that under case law, the defendant is prohibited from asserting the defense of the patron's comparative negligence. The defendant responds that comparative negligence may be advanced as a defense against a plaintiff patron by virtue of the Alcoholic Beverages Servers Liability Act.

In Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959), the Supreme Court held that a defendant tavern owner was liable to the estate of a minor to whom the tavern sold alcoholic beverages which caused a fatal accident resulting in the minor's death. In response to the defendant's argument that the decedent himself was negligent in the operation of his motor vehicle and therefore contributed to the accident, the court stated that this negligence, if it did exist, was a normal incident

to the risk created by the tavern owner when it served alcoholic beverages to the minor.

When alcoholic beverages are sold by a tavern keeper to a minor or to an intoxicated person, the unreasonable risk of harm not only to the minor or the intoxicated person but also to members of the traveling public may readily be recognized and foreseen; this is particularly evident in current times when traveling by car to and from the tavern is so commonplace and accidents resulting from drinking are so frequent. (at 202, 156 A.2d 1).

In Soronen v. Olde Milford Inn, Inc., 46 N.J. 582, 218 A.2d 630 (1966), the Supreme Court set forth the proposition that contributory negligence is not available as a defense to a tavern keeper who negligently served alcoholic beverages to a patron which thereby ...


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