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Mazzacano v. Estate of Kinnerman

January 22, 2009

DIANE M. MAZZACANO, ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF STEPHEN N. MIKALIC, DECEASED, PLAINTIFF-APPELLANT,
v.
THE ESTATE OF JOHN A. KINNERMAN, DECEASED, RITCHIE & PAGE, DISTRIBUTING CO., INC., ANHEUSER-BUSCH, INC., STEPHEN JOHN KANICKIJ, JOHN DOE AND JANE DOE, FICTITIOUS INDIVIDUALS, DEFENDANTS, AND HAPPY HOUR SOCIAL AND ATHLETIC CLUB OF MAPLE SHADE, INC., DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Court considers whether a licensed alcoholic beverage server can be held liable for civil wrongful death under the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act (Dram Shop Act or Act), N.J.S.A. 2A:22A-1 to -7, for failing to monitor a patron who became intoxicated at a party where the patrons served themselves alcohol.

Defendant Happy Hour Social and Athletic Club of Maple Shade, Inc. (the Club) is a non-profit organization formed for the purpose of helping community children. The New Jersey Division of Alcohol Beverage Control issued to the Club a limited social-affair permit to dispense alcohol at its yearly picnic to benefit community athletic teams. Guests were able to serve themselves beer from a tap in a specially-provisioned truck for the occasion. No one was assigned by the Club to stand by the beer truck to determine whether a patron was intoxicated. After the party, one of the guests, while driving three other guests to a bar, lost control of his car, causing the deaths of all four. An autopsy of the driver revealed that his blood alcohol content was almost twice the legal limit.

At a civil wrongful death trial brought under the Dram Shop Act, multiple witnesses testified that the driver did not appear intoxicated. The plaintiff's toxicology expert conceded that a very small percentage of people might not seem visibly intoxicated at the level recorded for the driver. Before the jury deliberated, it was instructed on the applicable law under the Dram Shop Act. The trial court charged the jury that the Club was negligent if it provided, served or allowed to be provided alcoholic beverages to a visibly-intoxicated person. In response to a question by the jury during its deliberations whether the Club had the responsibility to monitor alcohol consumption, the court reminded the jury that if it found the Club "allowed" the driver to consume alcohol when he was visibly intoxicated, it must find the Club negligent. The jury found that the Club did not negligently provide alcoholic beverages to the driver when he was visibly intoxicated. The trial court denied a motion for a new trial by the plaintiff, finding no basis to reverse its prior legal rulings and finding further that the verdict was not against the weight of the evidence.

A two-judge majority of the Appellate Division panel affirmed in an unpublished decision. In a dissenting opinion, the third panel member asserted that in cases involving the self-service of alcohol, the Dram Shop Act had an "evident gap" that the court should fill. In his view, the jury should have been instructed that the Club had a responsibility to monitor alcohol consumption and, if it found the Club failed to meet that responsibility, the jury should have been instructed that it was free to infer that the driver served himself alcohol while he was visibly intoxicated.

To decide the appeal-as-of-right arising from the dissent in the Appellate Division, the Supreme Court considered whether the trial court erred by not instructing the jury that a licensed alcoholic beverage server could be liable under the Dram Shop Act for failing to monitor patrons for intoxication at parties involving the self-service of alcohol.

HELD: The New Jersey Licensed Alcoholic Beverage Server Fair Liability Act permits a finding of liability when a licensed alcoholic beverage server allows a patron to become visibly intoxicated through the self-service of alcohol at a party. However, the Act does not impose a separate duty to monitor alcohol ingestion or define negligence as the failure to monitor, and the Court declines to impose a monitoring duty that is not set forth in the Act. In this civil action arising from the deaths of party-attendees who were riding in a car driven by another attendee who became intoxicated at the party through the self-service of alcohol, there was sufficient evidence in the record to support the jury's verdict that the server did not negligently provide alcohol to the driver when he was visibly intoxicated.

1. The Dram Shop Act is the exclusive remedy for personal injury or property damage resulting from the negligent service of alcoholic beverages by a licensed alcoholic beverage server. Under the Act, a licensed alcoholic beverage server can be held liable only if (1) the server is deemed negligent; (2) the injury or damage was proximately caused by the negligent service; and (3) the injury or damage was a foreseeable consequence of the negligent service. Also under the Act, a licensed alcoholic beverage server is negligent only when the server served a visibly intoxicated person or served a minor. (Pp. 15-16).

2. The Club does not deny that the self-service of alcohol constituted service of alcohol under the Dram Shop Act, and the trial court correctly instructed the jurors that if the Club "allowed" the driver to consume alcoholic beverages when he was visibly intoxicated, it must find the Club negligent. The Legislature did not intend that a licensed alcoholic beverage server would benefit from willful blindness by hosting a party that permits the self-service of alcohol. A licensed server that places at the disposal of its patrons a beer truck for the self-service of alcohol is serving alcohol within the intendment of the Act. If a licensed server serves alcohol in this manner to a visibly-intoxicated person, it is acting negligently and is exposed to civil liability. Because this exposure to liability can result in economic ruin from a lawsuit and the inability to secure insurance in the future, a licensed server has a strong economic incentive to monitor the condition of persons served alcohol. (Pp. 16-18).

3. This case centers on one question-whether the driver was allowed to serve himself alcohol while visibly intoxicated. If anyone had observed the driver visibly intoxicated before he left the Club's grounds, the jury would have been free to infer that the Club had allowed him to drink while intoxicated. No one who observed the driver during the picnic, however, was of the opinion that he met the Dram Shop Act's definition of visibly intoxicated. Although plaintiff's toxicologist relied on statistical evidence that most people possessing a blood alcohol content identical to the driver's would have shown signs of intoxication, he indicated that not all will do so. It was the jury's task to decide what weight to give to the testimony of the witnesses and the expert. Ultimately the jury determined that the Club did not negligently provide alcoholic beverages to the driver when he was visibly intoxicated. The Court concludes that there was sufficient evidence in the record to support that verdict. (Pp. 18-19).

4. With regard to the conclusions of the dissenting Appellate Division judge, the Legislature clearly signaled that the Dram Shop Act is the exclusive civil remedy for the negligent service of alcoholic beverages by a licensed alcoholic beverage server. The Act's language strongly suggests that the Legislature did not want our courts adding civil remedies through either the common law or creative statutory construction not found in the Act itself. The Court cannot and should not rewrite a plainly written enactment of the Legislature or write in an additional qualification that the Legislature pointedly omitted. The Court declines to adopt the dissenting judge's approach, which would create a judicial standard not intended by those who wrote and enacted the Act. (Pp. 20-23).

5. In summary, the Dram Shop Act permits a finding of liability when an establishment allows a patron to become visibly intoxicated through the self-service of alcohol at a party. For that reason alone, a licensed alcoholic beverage server has a compelling economic interest to monitor the intake of alcohol. The Club did not benefit from the absence of monitors; rather it unnecessarily exposed itself to a potentially staggering liability award. However, the Act does not impose a separate duty to monitor alcohol ingestion. Nor does it define negligence, which is the only available cause of action in the Act, as the failure to monitor. Rather, as specifically stated in the Act, a licensed alcoholic beverage server is negligent only when the server served a visibly intoxicated person or served a minor. The Legislature is free to enact higher standards, such as a duty to monitor, than those presently found in our statutes. (Pp. 23-24).

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE ALBIN's opinion.

The opinion of the court was delivered by: Justice Albin

Argued October 6, 2008

In this case, defendant Happy Hour Social and Athletic Club of Maple Shade, Inc. (Happy Hour Social and Athletic Club or the Club) was issued a limited permit to dispense alcohol at its yearly "Pig Roast" picnic. Guests were able to serve themselves beer from a tap in a specially-provisioned truck for the occasion. At the end of the picnic, one of the guests, while driving three others to a sports bar, lost control of his car, causing the deaths of all four. At a civil wrongful death trial brought under the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act (Dram Shop Act), N.J.S.A. 2A:22A-1 to -7, a jury found the Club not liable for the accident, apparently because the driver of the doomed vehicle did not appear to be visibly intoxicated when he left the picnic.

The trial court had charged the jury that if the Club allowed the service of alcohol to a visibly-intoxicated person, then liability would follow, provided that the service of the alcohol was the proximate cause of the victims' injuries and deaths. The trial court rejected the theory that the Club had an independent duty under the Dram Shop Act to monitor the guests serving themselves beer and that the failure to do so, standing alone, could be the basis for liability. A divided appellate panel affirmed the trial court's rulings and the jury verdict.

A dissenting panel member concluded that the Club had a duty to monitor its guests and, because of the absence of such monitoring, the trial judge should have charged the jury that it was free to infer that the driver of the vehicle served himself while visibly intoxicated. Because the Dram Shop Act is the "exclusive civil remedy for personal injury . . . resulting from the negligent service of alcoholic beverages," N.J.S.A. 2A:22A-4, we reject the dissenter's invitation to impose a judicially-created monitoring duty that is not set forth in that statute. We affirm the appellate panel, but emphasize that the Dram Shop Act provides a powerful incentive to a social club to monitor its guests at an affair, because if such a club allows the self-service of alcohol to a visibly-intoxicated guest or patron who then causes an automobile accident proximately related to his intoxicated condition, it can be held accountable under the Act.

I.

A.

Defendant Happy Hour Social and Athletic Club is a nonprofit organization, which was formed for the purpose of "help[ing] community kids." The Club has approximately 115 members, all male, and owns a building equipped with a private bar, resting on ...


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