October 23, 2007
DIANE M. MAZZACANO, ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF STEPHEN N. MIKALIC, DECEASED, PLAINTIFF-APPELLANT,
THE ESTATE OF JOHN A. KINNERMAN, DECEASED AND ANHEUSER-BUSCH, INC., DEFENDANTS, AND HAPPY HOUR SOCIAL AND ATHLETIC CLUB OF MAPLE SHADE, INC., RITCHIE & PAGE DISTRIBUTING, CO., INC., AND STEPHEN JOHN KANICKIJ, DEFENDANT-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Kinnerman could drink without displaying obvious signs of intoxication.
At the trial, plaintiff sought to make the Club's special permit a centerpiece of the case. Following plaintiff's opening statement, which highlighted the permit extensively, the Club's attorney moved for a mistrial, contending that the permit was irrelevant and that the permit's stated conditions contained language that was inconsistent with the requirements for liability under the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-1 to -7. (Dram Shop Act or the Act). Plaintiff's counsel agreed that for liability purposes the only relevant statute was the Act, and that he was not attempting to introduce evidence about the permit for purposes of establishing that the Club violated ABC regulations. During later arguments over the admissibility of the permit, plaintiff's counsel again insisted that he only wanted to introduce the permit on the issue of "credibility" and not on the issue of defendant's violation of a separate duty.
The trial judge declined to admit the permit in evidence because it was not relevant to credibility and it set forth a standard of conduct different than that contained in the Act. The judge concluded:
I don't think it's relevant because . . . it deals with a standard unrelated to the issues in our case, and I don't think it opens the door to credibility  because . . . I don't think there is anything in here which shows that they lied to the ABC.
[The Club] had a duty not to allow anybody to get beer from that truck who's visibly intoxicated. That's the duty under the statute.
At the close of plaintiff's case-in-chief, Richie & Page moved for involuntary dismissal pursuant to R. 4:37-2(b). The judge granted the motion:
[It is] undisputed by anybody . . . that Ritchie & Page -- Happy Hour did not expect Ritchie & Page to do anything as far as monitoring the beer consumption. . . .
[I]n essence, Ritchie & Page is a middleman, and the product that they provide is beer.
I don't think that there is an obligation upon them as middlemen outside any defect in the product to have any -- to have any exposure in a situation where there is somebody who is taking the duty under the statute, [Happy Hour].
To follow [plaintiff's] argument, -- would be to provide them with a much greater exposure on liability than the people who threw the party and the people who had some obligations pursuant to the statute . . . to be careful of people at their party drinking.
For the reasons I just articulated . . . the law would serve a greater duty on, in essence, a middleman than they would on the producer, and because there is an understanding between . . . Happy Hour and . . . Ritchie & Page and because I could point to no case law which would put liability on Ritchie & Page in this matter or a case similar and because I see Ritchie & Page as purely a middleman delivering product and which there is no defect in the product itself, I'm going to grant the application.
During deliberations, the jury asked the following question: "As per obtained permit, does the club have the responsibility to monitor alcoholic consumption?" The judge instructed the jury that "[t]he permit is not in evidence and you're not allowed to speculate as to what it says or doesn't say." He then repeated the instruction he had previously given as to the basis of liability under the Act: "If you find that [the Club] allowed Mr. Kinnerman to consume alcoholic beverages when he was visibly intoxicated, then you must find [the Club] was negligent." He also instructed them that "if you find that [Kinnerman] wasn't visibly intoxicated . . . while he was drinking at [the Club], then you must find [the Club] not negligent."
On this appeal, plaintiff raises the following contentions:
THE SPECIAL PERMIT ISSUED FOR BEER TRUCK SERVICE AT HAPPY HOUR'S PIG ROAST PRESCRIBED POSTING OF MONITORS AS A REASONABLE MEANS OF AVOIDING SERVICE OF THE VISIBLY INTOXICATED AND THE TRIAL COURT SHOULD HAVE ALLOWED THE JURY TO CONSIDER THIS STANDARD OF SERVER CARE.
FAILURE TO INSTRUCT ON THE CRITICAL ISSUE OF SERVER CONDUCT.
EVEN WITHOUT THE PERMIT, IT WAS AGAINST THE WEIGHT OF REASONABLY CREDIBLE EVIDENCE FOR THE JURY TO HAVE FOUND THAT THE DRIVER KINNERMAN WAS NOT VISIBLY INTOXICATED IN THE FACE OF:
i) EMPIRICAL EVIDENCE THAT HIS INTOXICATION MOST PROBABLY WOULD HAVE BEEN PERCEPTIBLE;
ii) DISINTERESTED WITNESS TESTIMONY OF ERRATIC DRIVING CONSISTENT WITH VISIBLE INTOXICATION; AND
iii) ADMISSIONS BY DEFENDANTS' AGENTS THAT THEY WERE IN SUBSTANCE NOT COMPETENT TO TESTIFY AS TO KINNERMAN'S SOBRIETY.
GRANTING RITCHIE & PAGE'S MOTION FOR INVOLUNTARILY DISMISSAL WAS ERROR BECAUSE RITCHIE & PAGE HAD A DUTY TO PREVENT UNATTENDED SERVICE FROM THE BEER TRUCK.
We find no merit in plaintiff's contentions concerning the permit or her related argument concerning standards of server conduct. The fact that Happy Hour had no servers was certainly relevant to whether it was more likely that Kinnerman could have obtained alcohol while visibly intoxicated. Cf. Truchan v. Sayreville Bar and Rest. Inc., 323 N.J. Super. 40, 51-52 (App. Div. 1999) (whether a bar was a "family place" was not admissible on the issue of whether it was likely to serve a visibly intoxicated patron). But plaintiff was permitted to introduce that evidence. The absence of servers, and the ability of the patrons to serve themselves, was repeatedly placed before the jury through the testimony of numerous witnesses.
However, plaintiff would have us go further and hold that the Club's alleged failure to comply with the terms of its permit should have been admitted as relevant. We reject this argument, because, even if ABC regulations obligated the Club to have servers (an issue not briefed here), violation of that duty did not form an independent cause of action. As we held in Truchan, the Act is the "the exclusive civil remedy for personal injuries resulting from negligent service of alcoholic beverages." Ibid.; see N.J.S.A. 2A:22A-4. And the Act is clear that, other than serving a minor, the sole basis for liability is serving someone who is visibly intoxicated. N.J.S.A. 2A:22A-5b. The Supreme Court so held in Fisch v. Bellshot, 135 N.J. 374, 383 (1994):
[The Dram Shop Act] exclusively defines negligence for the purposes of civil liability. Negligence is not definable by reference to administrative regulations.
Indeed, the Legislature drafted subsection b precisely to render service to a visibly-intoxicated person the only defining act of negligence other than serving alcohol to a person whom one knows or reasonably should know under the circumstances is a minor.
More recently, in Verni v. Harry M. Stevens Inc., 387 N.J. Super. 160 (App. Div. 2006), certif. denied, 189 N.J. 429 (2007), we reiterated that evidence of violation of alcoholic beverage service regulations and poor training of servers should not have been admitted in a Dram Shop case.
Other evidence presented by plaintiffs may be marginally relevant to the ability or will of the beer dispensers to observe whether a patron is visibly intoxicated.
This evidence includes violations of several alcohol service polices, including service of more than two beers to a single patron, consumption of alcohol by a server, and incomplete training of servers. This evidence, however, veers away from the statutory standard of visible intoxication and approaches the abrogated common law claims of negligent hiring, training and supervision of staff. Moreover, this evidence had the clear capacity to mislead the jury from the central and only issue of liability; that is, whether Lanzaro was served beer when he was visibly intoxicated. [Id. at 189.]
In a case involving social host liability under N.J.S.A. 2A:15-5.5b, we construed "providing" alcoholic beverages as including permitting someone to have self-service while visibly intoxicated. Dower v. Gamba, 276 N.J. Super. 319, 326 (App. Div. 1994), certif. denied, l40 N.J. 276 (1995). We assume, as we did in Dower, that our holding there would apply equally to a commercial host or an entity such as the Club. Id. at 325-26. But our holding in Dower still does not convert failure to have servers into an independent cause of action.*fn4 It simply precludes a defendant from arguing either that it did not "serve" an intoxicated person or that "visibly" intoxicated equates with "seen while intoxicated." If a social or commercial host chooses not to see whether guests are intoxicated, by failing to serve guests or failing to employ servers for that purpose, the host is nonetheless liable if a guest or patron meeting the statutory definition of "visibly intoxicated" obtains alcohol provided by the host. Dower, supra, 276 N.J. Super. at 327-28.
This standard was not in dispute in the trial, however. Defense counsel never argued to the jury that if Kinnerman was visibly intoxicated the Club could escape liability because there were no servers to observe his condition. In fact, in discussing the charge, all counsel agreed that the proper term in this case was "provide" rather than "serve" and that the Club would be liable if Kinnerman obtained alcohol while visibly intoxicated.*fn5 The key issue in this trial was whether Kinnerman was visibly intoxicated, and the court's charge properly focused the jury on that issue.*fn6
While the jury might have accepted plaintiff's evidence on that issue, we cannot say that its failure to do so was against the weight of the evidence. There was some testimony that Kinnerman could drink without showing signs of intoxication. And the fact that passengers who were not apparently intoxicated, including plaintiff's husband, made the decision to get into Kinnerman's car may have weighed heavily with the jury on the question of whether Kinnerman was "visibly" intoxicated. Likewise the jurors may have credited the testimony of Kevin Jacoby, who saw Kinnerman getting into the car just as Kinnerman was about to leave, spoke to him, and did not observe Kinnerman showing signs of intoxication.
Finally, we need not address at length plaintiff's arguments concerning the liability of Ritchie & Page, an entity not licensed to serve alcoholic beverages. See N.J.S.A. 33:1-11. If Kinnerman had been visibly intoxicated when he took alcohol from the beer truck, we would consider plaintiff's argument that Ritchie & Page should share in the Club's liability. But we do not reach that issue, because the jury found Kinnerman was not visibly intoxicated, and hence there is no basis to infer liability.
WEISSBARD, J.A.D. dissenting.
The Dram Shop Act limits the liability of licensed dispensers of alcohol to the serving of a person who is visibly intoxicated. In our reported decisions the actual server of the alcohol has been a bartender, see Salemke v. Sarvetnick, 352 N.J. Super. 319 (App. Div. 2004); McGovern v. Koza's Bar & Grill, 254 N.J. Super. 723, (Law Div. 1991); Benson v. Brown, 276 N.J. Super. 553, (App. Div. 1994); Showalter v. Barilari, Inc., 312 N.J. Super. 494 (App. Div. 1998); Truchan v. Sayreville Bar, 323 N.J. Super. 40 (App. Div. 1999); a waiter Lee v. Kiku Restaurant, 127 N.J. 170 (1992) or, as in our most recent case, multiple individuals selling and dispensing the alcohol within the licensed establishment. Verni v. Harry M. Stevens, Inc., 387 N.J. Super. 160, (App. Div. 2006), certif. denied, 189 N.J. 429 (2007).*fn7 But, who is the server in a self-service situation, as was the case here? The statute does not provide an answer, allowing, and indeed requiring, some permissible judicial gloss.
In Dower v. Gamba, 276 N.J. Super. 319 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995), we held that a homeowner who merely made alcohol available to his guests on a self-serve basis could be subject to liability pursuant to a separate, but related, statute, N.J.S.A. 2A:15-5.6b, which imposes responsibility on a social host who has "willfully and knowingly provided alcoholic beverages" to a guest under certain designated circumstances. (emphasis added). Noting the distinction between "provided" in the social host statute and "serve" in the Dram Shop Act, we made the following observation:
Although the word "provide" can be more easily seen to encompass those situations where the social host indirectly dispenses or provides the alcohol beverage, the word "serve," as noted, can also be interpreted to refer to the situation where the commercial purveyor makes available the alcoholic beverage without directly waiting on the customer. [Id. at 326.]
The trial judge in this case commendably recognized that the Pig Roast, while technically a commercial enterprise, was in fact a hybrid social and commercial undertaking. To that end, the judge instructed the jury that Happy Hour could be liable if it "provided, served or allowed to be provided alcoholic beverages to" a visibly intoxicated person. Defendant did not object to that modification of the model charge. However, that modification did not answer the question of how a self-service entity -- whether social or commercial -- becomes charged with knowledge that a patron/guest is visibly intoxicated. In a commercial setting, the answer is usually obvious. The bartender, who is at the point of dispensing, is chargeable with knowledge of the patron's consumption status on behalf of the establishment.*fn8 But who is in the position of the bartender when there is no bartender? It cannot be that the quasi-commercial "server," such as Happy Hour, can escape liability by having no one in place through whom to impute the requisite knowledge of visible intoxication.
The perceptive jury in this case zeroed in on the critical question of whether defendant had "the responsibility to monitor alcoholic consumption." Regrettably, they preceded this question with the phrase "as per obtained permit," referring to plaintiff's persistent and misguided effort to tie defendant's duty to monitor to the special permit obtained from the ABC.*fn9 On that score, I agree with the majority that the permit was not admissible because it referenced a standard that was at variance with the Dram Shop Act and only, at best, required persons to check for age identification -- not intoxication. But when the jury made its deliberation inquiry, I believe the judge should have recognized the core issue lurking beneath the permit admissibility question, and acted sua sponte.
In my view, the judge should have then instructed the jury that defendant did indeed have a "responsibility to monitor alcoholic consumption," a duty that was concomitant with the service of alcohol. Further, the duty could not be fulfilled by having members make random observations, as Happy Hour claimed, but required that persons be specially designated to perform that task. Even if the requirement of a bartender-substitute goes too far, the jury would at least be called on to determine whether haphazard observations by Happy Hour members fulfilled the duty to monitor. And it is no answer that the attorneys were permitted to argue in summation that defendant acted properly, or did not, by relying on the member observations. Without an appropriate instruction the arguments were unanchored to any legal obligation. Imposition of such a duty is entirely consistent with, and in no way serves to undermine, the legislative objectives reflected in the Act. To the extent it may be argued that the statute itself contains no duty to monitor, it has long been the "settled rule that the construction [of a statute] may be enlarged or restrained according to the evident sense of the lawyer." Wright v. Vogt, 7 N.J. 1, 6 (1951). As I see it, the statute contains an evident gap, which we can and should fill.
The more difficult question is what flows from a breach of such a duty to monitor. Certainly it would not be appropriate to permit an inference that the statute has been violated. That would go too far. Nevertheless, I would conclude that if the jury found that defendant had failed to meet its responsibility, the jury should have been instructed that it was free to infer that Kinnerman's intoxication could have been observed if the alcohol consumption had been properly monitored.
I do not agree with the majority that the jury's negative response to the question whether Kinnerman obtained alcohol while visibly intoxicated ends all further inquiries. The jury understandably answered as it did when faced with testimony of club members that Kinnerman was not visibly intoxicated, despite a BAC almost double the level of presumptive intoxication. Thus, Happy Hour escaped liability precisely because it did not properly monitor. To the extent that the majority reads Verni, 387 N.J. Super. at 189, as suggesting that evidence concerning the poor training of servers is generally inadmissible (slip op. at 12), I disagree with Verni. If there is, as I suggest, a duty to monitor, the training of the monitors is surely highly probative.
Because I conclude that there should be a new trial as to Happy Hour, I would reach the issue of Ritchie & Page's liability. Ritchie & Page was not subject to the Act because they were not a licensed server. As a result, its discussion of the limits placed by the Act on a licensed server's liability is misplaced. Rather, the distributor's conduct must be judged by common law standards. Doing so, I conclude that Ritchie & Page was under no duty to monitor alcohol consumption and, therefore, was without liability as a matter of law.
To me, the result here reflects such injustice as to require a new trial against Happy Hour under the plain error standard. R. 2:10-2.