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Fisch v. Bellshot

Decided: May 9, 1994.

NATALIE FISCH, AS ADMINISTRATRIX AD PROSEQUENDUM AND AS GENERAL ADMINISTRATRIX OF THE ESTATE OF DOLORES LAPOLLO, DECEASED, AND NATALIE FISCH, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
RICHARD BELLSHOT, INDIVIDUALLY AND T/A RICHIE'S TAVERN, DEFENDANT-RESPONDENT, AND ABC CORPORATION (FICTITIOUS CORPORATION), INDIVIDUALLY AND T/A RICHIE'S TAVERN AND JOHN DOES #1-10 (FICTITIOUS NAMES FOR BUSINESS ENTITIES), INDIVIDUALLY, JOINTLY, SEVERALLY AND/OR IN THE ALTERNATIVE, DEFENDANTS.



On certification to the Superior Court, Appellate Division.

Wilentz, Clifford, Handler, Pollock, O'Hern, Garibaldi, Stein

Per Curiam

Per Curiam

In this appeal we interpret for the first time the "New Jersey Licensed Alcoholic Beverage Server Fair Liability Act," N.J.S.A. 2A:22A-1 to -7 (hereinafter Act). In so doing we consider the interaction between the Act and the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.2; the extent to which the principles set forth in Lee v. Kiku Restaurant, 127 N.J. 170, 603 A.2d 503 (1992), and Buckley v. Estate of Pirolo, 101 N.J. 68, 500 A.2d 703 (1985), apply to causes of action under the Act; and whether violations of administrative regulations constitute evidence of negligence under the Act. More specifically, we determine whether the trial court's instruction to the jury on plaintiff's decedent's contributory negligence was erroneous.

I

Plaintiff, Natalie Fisch, individually and as Administratrix Ad Prosequendum and General Administratrix of the Estate of her mother, Delores Lapollo, brought an action against defendant Richard Bellshot, individually and as the owner of Richie's Tavern, pursuant to the Act. The complaint alleged that defendant had served alcohol to Mrs. Lapollo at a time he knew or should have known that she was intoxicated. Moreover, the complaint alleged that that service proximately caused the death of Mrs. Lapollo, who was killed in a one-car accident after leaving defendant's bar following her shift as a bartender somewhere between 10:30 p.m. and 11:00 p.m. on November 22, 1987.

Mrs. Lapollo had reported to work at the tavern that day at approximately 11:00 a.m. Although her scheduled shift was supposed to end at 7:00 p.m., she agreed to work until 10:00 p.m. after her replacement called in sick. Bellshot greeted Mrs. Lapollo on her arrival at the bar at 11:00 a.m. and made her breakfast. He agreed to replace her at 10:00 p.m., but did not actually relieve her until 10:30 p.m. Shortly after defendant replaced her behind the bar, Mrs. Lapollo left the tavern and was subsequently killed in the crash. An autopsy revealed that Mrs. Lapollo's blood alcohol content at the time of the crash was .20 -- a level significantly above the legal limit for a driver.

At trial witnesses presented inconsistent testimony regarding decedent's conduct and level of intoxication. Likewise, testimony was in conflict regarding defendant's awareness of Mrs. Lapollo's condition and her conduct throughout the day. Defendant himself testified that he had no indication that Mrs. Lapollo had been drinking or was intoxicated until after she drove away. According to defendant, he served decedent breakfast at 11:00 a.m. and then went to his adjacent apartment to watch the Sunday football games. He did not see her again until 7:00 p.m., when he passed her on his way to dinner. At that time, he did not notice anything unusual about her behavior and had no indication that she was drunk or had been drinking. The next and last time he saw Mrs. Lapollo was when he came to relieve her at approximately 10:30 p.m. He testified that she was angry that he was half-an-hour late in relieving her, that she collected her tips, and then left without saying goodbye. Only after she had gone did he learn from a patron that Mrs. Lapollo had been squirting beer around and was intoxicated.

In addition, defendant testified that only once had he witnessed decedent drink while on duty. That had occurred approximately two weeks before the fatal accident. Defendant did have a policy prohibiting employees from drinking during their shifts. Moreover, all defendant's employees were required to take and to pass a State training and alcohol management course. Mrs. Lapollo had been certified on September 9, 1986. Although it was his policy to fire employees caught drinking on duty, he did not fire Mrs. Lapollo. Defendant stated that he felt sorry for her and believed she would not drink on duty again, so he had merely suspended her.

Other witnesses cast doubt on defendant's testimony. Plaintiff, Mrs. Lapollo's daughter, testified that defendant had phoned her the morning after the fatal crash to inquire about her mother. According to plaintiff,

He asked me if I knew where my mother was and I asked him why, and he said because I kind of had the feeling she was hitting the bottle last night, and at that point I said well, yeah, I just identified the body, she's dead.

Defendant admits to calling plaintiff, but denies that he said that he suspected that decedent had been drinking.

Roger Stewart, a patron of the tavern, testified that he had made two stops at Richie's Tavern on November 22, 1987. At approximately noon, he and Ray Callahan stopped there for lunch. At that time, Stewart did not see defendant and had no indication that Mrs. Lapollo was drunk or had been drinking. He said that when he returned with Callahan at approximately 8:20 p.m. Mrs. Lapollo was apparently intoxicated. He testified that he saw Mrs. Lapollo drink a shot of alcohol with another patron. He further testified that defendant saw this occur as well, but took no action to stop it, and that defendant did not say anything afterward. Defendant's silence did not surprise Stewart because he claimed to have seen decedent drink on duty in the presence of defendant on two or three other occasions without defendant taking corrective action. Ray Callahan confirmed Roger Stewart's testimony concerning Mrs. Lapollo drinking a shot sometime between 8:20 p.m. and 9:00 p.m. He also confirmed that defendant had been present in the bar at the time, but could not confirm that defendant saw Mrs. Lapollo drink the shot.

Gregory Stewart, Roger's brother, also testified on plaintiff's behalf. He testified that he had seen decedent drink a shot of alcohol sometime around 6:00 p.m. Although defendant was not in the bar at that time, Gregory testified that when he returned to the tavern after Mrs. Lapollo had left, defendant told him that he (defendant) had told decedent to leave because she had been drinking.

Heather Mason, a childhood friend of plaintiff, claimed that she had arrived at the tavern at approximately 1:00 p.m. looking for plaintiff. Although plaintiff was not in the bar, she sat down at the bar and talked to decedent for about an hour. During that time, she observed Mrs. Lapollo drink a shot of alcohol. Moreover, she testified that defendant had been present and also had witnessed Mrs. Lapollo drinking the shot. Ms. Mason further testified that she returned to Richie's tavern at approximately 10:00 p.m. with a friend. At that time, according to her, decedent was highly intoxicated and continuing to drink.

Two other patrons testified. Joe Wight said that when he arrived at approximately 8:00 p.m., Mrs. Lapollo was intoxicated. The other patron, Nancy Fallon, who arrived at the tavern at approximately 7:30 p.m. and left two hours later, testified that she had seen decedent drink two shots of alcohol. Wight claimed to have seen defendant in the bar between 8:30 p.m. and 9:00 p.m., but Ms. Fallon testified that she did not see defendant in the bar during her stay.

The jury concluded that defendant negligently had served Mrs. Lapollo while she was visibly intoxicated. Moreover, it found that defendant's negligence had proximately caused her death. Yet, the jury also found that decedent had been contributorily negligent and that her negligence also had been a proximate cause of her death. Apportioning the relative degrees of negligence, the jury assessed seventy-five percent to Mrs. Lapollo and twenty-five percent to defendant. As a result, the court dismissed plaintiff's cause of action pursuant to N.J.S.A. 2A:15-5.1.

The Appellate Division affirmed and we granted plaintiff's petition for certification, 130 N.J. 399 (1992). We now affirm.

II

Plaintiff first contends that the trial court erred in refusing to instruct the jury on administrative regulations concerning the standards of conduct for alcoholic-beverage licensees. Specifically, plaintiff requested that the trial court's instruction on defendant's negligence include the following two administrative regulations defining the scope of duty of licensed alcoholic-beverage servers for licensing purposes:

N.J.A.C. 3:2-23.1(b). No licensee shall sell, serve or deliver or allow, permit or suffer the sale, service or delivery of any alcoholic beverage, directly or indirectly, to any person actually or apparently intoxicated, or permit or suffer the consumption of any alcoholic beverage by any such person in or upon the licensed premises.

[and]

N.J.A.C. 13:2-23.20. No licensee shall work in any capacity in or upon the licensed premises while actually or apparently intoxicated or allow, permit or suffer any actually or apparently intoxicated person to work in any capacity in or upon the licensed premises.

The trial Judge determined in limine that he would not charge the violation of administrative regulations as elements of negligence. He reasoned that the Act, effective when this cause of action arose, provided the exclusive ...


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