On appeal from the Superior of New Jersey, Law Division, Burlington County, L-2150-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2007
Before Judges Weissbard, S.L. Reisner and Gilroy.
Plaintiff Denise Mazzacano's husband was killed in a onecar accident involving a drag-racing vehicle driven by John Kinnerman. Plaintiff appeals from a jury verdict of no cause based on the jury's negative answer to the first interrogatory, asking them to decide whether defendant Happy Hour Social and Athletic Club of Maple Shade, Inc. (Happy Hour or the Club) negligently provided alcoholic beverages to Kinnerman while Kinnerman was visibly intoxicated.*fn1 She also appeals from a trial court order dismissing her complaint against defendant Ritchie & Page Distributing Co., Inc., the firm that supplied the beer to the Club for its annual pig roast.*fn2 We affirm.
Happy Hour is a New Jersey non-profit social club located on Route 73 and Laurelton Avenue in Maple Shade, New Jersey. The Club owns approximately 5.4 acres of property, on which is located a social hall consisting of a bar in one half of the structure and a large room in the other half. Happy Hour has maintained a liquor license in good standing since the 1950s.
Since 1986, Happy Hour has held an annual pig roast on its property. The pig roast draws a crowd of approximately 150 to 175 people of all ages. At the Club's sixteenth annual pig roast, held on August 17, 2002, the date of the accident, patrons were charged $20 to enter the party, which entitled them to eat and drink as much as they pleased within the five-hour time frame, 1:00 p.m. to 6:00 p.m. The event featured a refrigerated truck from which beer could be dispensed from several taps on the side of the truck.
In order to legally serve beer to the general public and not just to its members, the Club applied for and obtained a special permit from the Division of Alcoholic Beverage Control (ABC). The permit stated in relevant part:
This permit is conditioned that the permittee shall not sell, serve or deliver, or allow, permit or suffer the sale, service or delivery of any alcoholic beverage, directly or indirectly to, or consumption by any person under the legal age to consume alcoholic beverages, nor to any person who is actually or apparently intoxicated.
The Club also submitted a diagram of the premises, which outlined where the beer truck would be situated. In the diagram, two stick figures were drawn next to the beer truck with the words, "two club members checking ID," written above the stick figures' heads.
However, Happy Hour's President, Robert Wojahowski, the individual who completed the special permit application and had drawn the diagram, testified*fn3 that no club member was actually assigned to remain near the beer truck to check identification or to determine if a patron was visibly intoxicated. Wojahowski also testified that, in the past, when a patron appeared to be visibly intoxicated at the pig roast, he and the club's vice-president would confront the patron and prohibit him or her from drinking any more alcohol at the event. If the patron became violent or unruly, a club member would call the local police who would remove the patron from the premises.
Happy Hour reserved the beer truck from Ritchie & Page for the pig roast almost a year in advance. Ritchie & Page is a licensed wholesale beer distributor, authorized to sell alcoholic beverages to other wholesalers, retailers and holders of special permits and club licenses, pursuant to N.J.S.A. 33:1-11. Pursuant to the same statute, Ritchie & Page is not licensed to sell or serve alcoholic beverages to the general public.
Happy Hour ordered five half-kegs and requested that Ritchie & Page's driver remain on-site to replenish the kegs during the event. However, once the taps on the beer truck were operational, the beer was available to adult patrons on a self-serve basis. Richie & Page instructed its driver that he was prohibited from serving beer to patrons of the pig roast.
Plaintiff's husband Steven Mikalic attended the pig roast. One of Mikalic's close friends, John Kinnerman, also came to the pig roast, driving a 1971 Mustang Mach 1, a vehicle he had modified for drag-racing. Sometime after 6:00 p.m., when the pig roast ended, Kinnerman, Mikalic, and two other passengers left the event in Kinnerman's vehicle and headed for a local bar to watch a football game. According to a witness, a few blocks from the Club premises Kinnerman suddenly gunned the engine on a straight stretch of Route 73 and the car took off at about 100 miles per hour. All four occupants perished when Kinnerman's vehicle veered off the highway, crossed the median, and struck a van traveling in the opposite direction.
According to a witness from the county medical examiner's office, at the time of his death, Kinnerman had a blood alcohol content (BAC) of .181, almost double the statutory level of presumptive intoxication at that time. See N.J.S.A. 39:4-50(a). Mikalic, a former police officer then employed as a prosecutor's detective, had a BAC below the level of intoxication.
Plaintiff's expert, Dr. Robert Pandina, testified that at the time of the accident, Kinnerman's BAC was rising, based on the alcohol contents of his stomach, brain, and urine, which were tested during his autopsy. Extrapolating backward to the time of the pig roast, Dr. Pandina opined that if Kinnerman's BAC was .181 at the time of his death, he would have reached a .15 BAC around 6:00 p.m. He also opined that when Kinnerman's BAC reached .15, he most likely would have been visibly intoxicated because "about 85 to 90 percent of individuals reliably show visible signs of intoxication" at this BAC. Dr. Pandina's testimony was the only evidence as to Kinnerman's alleged state of visible intoxication while at the pig roast.
However, no one who attended the pig roast supported that conclusion. Several patrons of the pig roast testified that Kinnerman did not appear visibly intoxicated before leaving the premises. Kinnerman's mother, who spoke with her son around 5:20 p.m. as she was leaving the Club, testified that he did not appear intoxicated. The Club's former president, Mr. Wojahowsky, testified that he spoke with Kinnerman during the pig roast and saw Kinnerman drinking an O'Douls, a non-alcoholic beer. Wojahowsky also stated that Kinnerman did not appear intoxicated when he spoke with him. Kevin Jacoby, the last witness to see Kinnerman before he drove away, testified that neither Kinnerman nor his passengers appeared intoxicated.
William Natale, who had socialized with Kinnerman for many years, testified that after drinking for several hours Kinnerman typically became "more social [and] a little more happy" than his normal disposition. Consequently, there was some evidence that ...