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Bauer v. Nesbitt

March 20, 2008


On appeal from Superior Court of New Jersey, Law Division, Cape May County, L-422-04.

The opinion of the court was delivered by: Payne, J.A.D.



Argued October 24, 2007

Before Judges Axelrad, Payne and Sapp-Peterson.

Kathleen Bauer, suing as the administratrix ad prosequendum of the estate of James Allan Hamby and individually, appeals from an order of summary judgment dismissing her wrongful death and survivorship claims against a Cape May bar and restaurant, the C View Inn, arising from a single-car motor vehicle accident, occurring on September 3, 2003, caused by the car's intoxicated nineteen-year-old driver, Frederick Nesbitt, III. Upon analysis following the accident, Nesbitt's blood-alcohol concentration was found to be .199.

Causes of action were premised upon alleged violations of the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act (the Dram Shop Act), N.J.S.A. 2A:22A-1 to -7, and upon common law negligence. The motion judge found the Dram Shop Act inapplicable to the case, because liability under it was limited to instances in which there was service of alcohol, and although decedent Hamby was served beer, there was no evidence of service of any alcohol by the C View Inn to Nesbitt. He dismissed common-law causes of action such as negligent supervision that were unrelated to service of alcohol, holding that the Dram Shop Act preempted the field.


In granting summary judgment, the trial judge was required to view the competent evidence in a light most favorable to plaintiff, drawing all inferences in her favor, and on that basis determine whether a genuine issue of material fact precluded summary judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We are governed by the same standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied,. denied, 154 N.J. 608 (1998). Our review of the law applicable to the facts is plenary. Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

The facts, viewed as required by the Brill standard, disclose the following. At 5:30 p.m. on the day of the accident, defendant Nesbitt picked up his close friend, twenty-one-year-old Hamby, at Hamby's home. At the time, Hamby's license was suspended as the result of a conviction for driving while intoxicated. He therefore did not drive at any point during the evening. Although Nesbitt's and Hamby's eventual destination was the C View Inn, where they planned to meet friends for their regular Wednesday "Wing Night" gathering, Nesbitt and Hamby first stopped at the Seaville Tavern, where Hamby purchased either a twelve-pack or eighteen-pack of beer, as well as a pint of Captain Morgan rum. The two started drinking beer as soon as Hamby returned to the car. Nesbitt then drove to the home of a friend, Wade Dickinson who, they learned, had gone to a house in North Cape May occupied by a friend in the Coast Guard. After learning of Dickinson's whereabouts, Nesbitt drove Hamby to North Cape May, drinking along the way. They remained in North Cape May, socializing with the people there, for approximately two hours. According to the statement given by Nesbitt to the State Police on the day after the accident, Nesbitt drank a small bottle of rum during his stay.

Nesbitt and Hamby then proceeded to the C View Inn, where they met their friends Dickinson, Jason Kleinschmidt, and Kevin Smith, all of whom were at least twenty-one years of age. En route, Nesbitt and Hamby each drank one beer. In his deposition, Nesbitt testified that he also probably drank in the parking lot of the Inn. After entering the Inn at approximately 7:00 p.m., the five proceeded to a table located two- to six-feet from the Inn's bar. As illustrated in drawings made by Dickinson and Kleinschmidt at their depositions, the table was situated perpendicular to the bar, with no tables intervening between it and the bar. Kleinschmidt testified that Nesbitt and Hamby sat on the right side of the table, with Nesbitt closest to the bar. Dickinson sat opposite Nesbitt; Kleinschmidt sat opposite Hamby; and Smith sat at the end of the table farthest from the bar. The head of the table remained open throughout all but one fifteen-minute period during the evening. Although seating existed along the bar itself, the head of the table occupied by the five friends faced a waitress station, and thus no seated bar customers blocked the view of the table by the two bartenders. This fact was confirmed by Kleinschmidt in his deposition, who stated: at that particular seat there would be nothing obstructing their [the bartenders'] view because, as I have noted here, in the center of the bar, which is directly in front of our table, there is a waitress station there where they drop off the dirty places, that's where they keep the condiments and stuff like that for the cocktails and all.

Wing Night was a popular event for the Inn, and approximately sixty people were present in the bar and restaurant areas. The bar was "somewhat crowded" when the group walked in, but the table chosen by the five, consisting of two smaller square tables pushed together, remained empty. In his deposition, Kleinschmidt confirmed that sixty people "at most" were in the bar, but he stated, "was it packed, no." He later agreed that Wing Night was popular in Cape May, but that he "wouldn't say" that particular night "was a busy night."

Nesbitt testified that the noise level at the Inn that night was "medium."

Once seated, Kleinschmidt, Dickinson, Smith, and Hamby ordered pitchers of beer with frosted glasses, along with chicken wings. Nesbitt, who was known to the Inn's employees to be underage and did not look to be twenty-one, ordered a Coke. There is no evidence that he was ever served alcohol by an employee of the C View Inn, and there is no direct evidence that he drank the beer that had been ordered by the others. However, Nesbitt testified at his deposition that Hamby spiked Cokes ordered by Nesbitt on two occasions, placing the glass beneath the table when doing so to avoid detection. Their server that evening was Casey Walker, a young woman who had graduated from high school with Nesbitt and was acquainted with him. Her service was attentive, since the group habitually gave large tips. Kleinschmidt described Walker's behavior at his deposition in the following exchange regarding the provision of new frosted mugs:

Q: But you've had times when you would drink out of a pitcher with other people and you would finish a pitcher and maybe another pitcher was brought. Had you ever been a part of that situation?

A: Yes.

Q: Would you get a new mug with that pitcher or did you have to request it?

A: You'd have to request it.

Q: The night that we're talking about with Casey [Walker], did you request it each time or did she just know you guys and -

A: She just knew what we wanted, yeah, every time.

Q: So even going in that night when you got your first refill, so to speak, you didn't have to say, "Casey, give me a fresh mug." She knew it?

A: She knew it right away. She'd take the old mugs away and then she would bring us four new ones.

Descriptions of the quantity of alcohol consumed in the two and one-half hours that the five remained at the Inn varied. Nesbitt testified that each of the other four ordered a pitcher of beer, and more than one person had more than one pitcher. Walker testified that the group as a whole ordered three or four pitchers of light beer, and that "two of them had Grey Goose and orange in a tall glass, . . . and maybe two or three of them were served to that table." If Dickinson is to be believed, by the end of the friends' two and one-half hour stay at the Inn, he and Hamby were "pretty much intoxicated," both having drunk eight to twelve frosted mugs of beer there, in addition to whatever they had drunk previously.

Both Kleinschmidt and Dickinson gave deposition testimony regarding signs of intoxication on the part of Hamby and Nesbitt at the Inn. The following exchange occurred with Kleinschmidt at his deposition with respect to Jay Hamby:

Q: Okay. At any point during the evening while you were in the bar did you notice that Jay appeared to be showing ...

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