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Bauer v. Nesbitt

May 7, 2009


On certification to the Superior Court, Appellate Division, whose opinion is reported at 399 N.J. Super. 71 (2008).


(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).

In this wrongful death action arising from the death of James Allen Hamby, who was a passenger in a car driven by an intoxicated underage driver, the Court considers whether the establishment that served liquor to Hamby had a duty under the common law or the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act (Dram Shop Act), N.J.S.A. 2A:22A-1 to -7, to monitor the driver's appearance even though it did not serve him alcohol.

On September 3, 2003, five friends went to the C View Inn (Inn). Four of them were over the age of twenty-one. Only one, Frederick Nesbitt, III, was under the legal drinking age. There is no claim that any employee of the Inn served Nesbitt alcohol or allowed him to drink alcohol that was brought to the friends' table. However, Nesbitt had been drinking before he arrived. Hamby, who was riding in Nesbitt's car, had provided him with rum and beer. After arriving at the Inn, Hamby sneaked a pint of rum inside his pocket, leaving six unopened bottles of beer in the car. During the next two hours the Inn served alcohol to all except Nesbitt. Nesbitt claimed that the Inn's employees knew he was a minor. The waitress, who had attended school with Nesbitt, provided him with glasses of Coca-Cola. Nesbitt recalled, however, that on two occasions Hamby slipped rum into his soda glass under the table.

No one who observed Nesbitt at the Inn claimed that he appeared intoxicated. The group left the Inn between 9 p.m. and 9:30 p.m., with Hamby riding in Nesbitt's car. At 10:35 p.m., Nesbitt crashed into a guardrail and rolled over, killing Hamby. Nesbitt's blood sample yielded a 0.199% blood alcohol concentration (BAC). Plaintiff's alcohol expert opined that Nesbitt's BAC "was definitely above a.10 [% BAC] in the C-View Inn," and that he would have shown obvious signs of intoxication. The record does not reveal what became of the beer that was left behind in Nesbitt's car when the group entered the Inn or the bottle of rum that Hamby secreted on his person.

Hamby's mother, Kathleen Bauer, filed a five-count complaint against Nesbitt, Nesbitt's mother, and the Inn. The first three counts allege that Nesbitt's mother negligently entrusted her car to him and that he had negligently operated it. The fourth count alleges that the Inn committed common-law negligence and violated the Dram Shop Act by serving the underage Nesbitt alcohol when he was visibly intoxicated or allowing him to consume alcohol in his clearly impaired condition, proximately causing Hamby's death. The fifth count names John Doe defendants in case it was discovered that an unknown entity served Nesbitt alcohol. The complaint does not allege that the Inn acted negligently or violated the Dram Shop Act by serving Hamby alcohol when he was visibly intoxicated.

Following discovery, the Inn moved for summary judgment. Although the trial court denied the motion, it granted a later motion for reconsideration and dismissed the claims against the Inn. The court concluded that there were no witnesses or facts to support the argument that Nesbitt drank alcohol served to the table by the Inn's employees. The court held also that even if Nesbitt had consumed rum that was secreted into the bar, the Inn could not be liable for Hamby's decision to secretly serve alcohol, procured outside of the Inn, to a minor on its premises.

The Appellate Division reversed. 399 N.J. Super. 71 (2008). The panel found that the Inn served alcohol to a visibly intoxicated Hamby, who because of his impaired state got into a car with an intoxicated driver, raising a jury issue concerning the Inn's liability under the Dram Shop Act. Alternatively, the panel stated that the Inn could be liable for negligently supervising Nesbitt who, based on the expert's report, would have been showing signs of intoxication at the Inn. The panel acknowledged that the Inn could not be held liable for Hamby's acts in secretly spiking Nesbitt's Coke, but determined that it had a common-law duty to protect Nesbitt from the foreseeable risk of injury to himself and others by insuring that he did not drive while intoxicated. The panel concluded that the Inn could be found liable under the Dram Shop Act or for breaching a common-law duty of care that it owed its patrons. HELD: Under the circumstances of this case, neither the common law nor the New Jersey Licensed Alcoholic

Beverage Server Fair Liability Act (Dram Shop Act), N.J.S.A. 2A:22A-1 to -7, imposed a duty on the licensed alcoholic beverage server to monitor the appearance of a patron to whom it had not served alcohol.

1. The function of a complaint is to fairly apprise an adverse party of the claims to be raised at trial. If a cause of action is not pled in a complaint, it cannot be raised for the first time in an appellate court opinion. Here, the complaint does not reflect a Dram Shop cause of action based on the Inn's service of alcohol to Hamby, and Bauer did not pursue that theory in her motion or on appeal. It originated in the Appellate Division's decision. Because Bauer's complaint did not allege that the Inn violated the Dram Shop Act by negligently serving Hamby alcohol while he was visibly intoxicated, the Court reverses the Appellate Division and dismisses that claim. (Pp. 11-13).

2. The Dram Shop Act is the exclusive civil remedy for personal injury or property damage resulting from the negligent service of alcoholic beverages by a licensed alcoholic beverage server. The history of the Act reveals that it was designed to make it economically feasible for insurance companies to provide licensed alcoholic beverage servers with coverage, while at the same time protecting the rights of victims to recover for the negligent service of alcohol. Under the Act, a licensed server "shall be deemed to have been negligent only when the server served a visibly intoxicated person, or served a minor...." N.J.S.A. 2A:22A-5(b). In order to sustain a liability award against an alcoholic beverage server, a plaintiff must also show that the injury or damage was proximately caused by and a foreseeable consequence of the negligent service of alcohol. N.J.S.A. 2A:22A-5(a). (Pp. 13-15).

3. The Dram Shop Act's language and history demonstrate that the Legislature did not intend a licensed alcoholic beverage server to be liable for failing to monitor a person to whom it did not serve alcohol, even if that person was intoxicated. Permitting a negligent-supervision cause of action to proceed in this case would fly in the face of the liability limits that the Legislature put in place in the Dram Shop Act and would impose on alcoholic beverage servers the duty to monitor every guest, including those to whom no alcohol was served, for signs of possible intoxication. Here, Nesbitt was never served any beverage other than a Coke and did not imbibe any beer from pitchers left on his table for his friends. No one claims to have seen Hamby spike Nesbitt's Coke, nor did any witness testify that Nesbitt appeared intoxicated. Although Nesbitt had a high BAC at the time of the accident, he and Hamby had left the Inn more than an hour earlier and entered a car that contained six unconsumed bottles of beer. Their conduct during the hour before the accident is unknown. Those missing facts and the eyewitness accounts of Nesbitt at the Inn suggest that Bauer's expert engaged in speculation by concluding that Nesbitt would have shown signs of intoxication before he left the Inn. On this record, Bauer cannot make out a case under the Dram Shop Act. Furthermore, permitting a negligent-supervision act to go forward in this case would eviscerate the protections given to licensed alcoholic beverage servers in the Dram Shop Act. (Pp. 15-19).

4. Business owners owe a duty to provide a safe environment to their patrons. Circumstances also may dictate that a business owner has a duty to safeguard a patron from a foreseeable danger; for example, in situations in which a patron passed out drunk on the floor or injured himself in the presence of the owner or an employee, requiring immediate assistance. The Court does not consider here whether a licensed alcoholic beverage server who does not serve a patron a drink would have a duty to act in those circumstances. Nesbitt gave no indication that he would be a menace after he left the Inn. Because the Inn did not serve alcohol or allow alcohol to be served to Nesbitt, it had no duty to monitor him to ensure that he was not intoxicated. (Pp. 19-21).

The judgment of the Appellate Division is REVERSED, and the dismissal of the claim against the Inn is REINSTATED.


The opinion of the court was delivered by: ...

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