5.71 TAVERN KEEPERS SERVING MINORS AND INTOXICATED
PERSONS (3/10)
NOTE TO JUDGE
These
instructions are designed for cases arising under the Licensed Server Liability Act, N.J.S.A. 2A:22A-1 et seq.
(“Act”). The instructions in Sections
A-D should be used for the ordinary case where there is no issue of
apportionment of liability.
The
instructions in E-I address those cases where there is an issue of
apportionment of liability based on either: (1) a claim of plaintiff’s
comparative negligence; or (2) a claim of plaintiff’s injury was caused by
another tortfeasor. Section E (General
Introductory Instruction) and I (General Concluding Instruction) should be
given in all cases where there is an issue of apportionment of
liability. Section F should be given
when the comparative negligence claim is based on plaintiff’s negligence as a
visibly intoxicated driver, and Section G should be given when that
claim is based on plaintiff’s negligence as a visibly intoxicated passenger. Section H is designed for those cases where
the licensed alcoholic beverage server claims that plaintiff’s injury was
caused by the assaultive behavior of a patron.
A. Negligence of Licensed Alcoholic Beverage
Server (LABS)
In this case the plaintiff claims that
the [name of licensed alcoholic beverage server] (and his/her employee)[1]
was (were) negligent by serving alcoholic beverages to [name] while
he/she was visibly intoxicated (or, was known or reasonably should have known
to be a minor). The plaintiff maintains
that the negligence proximately caused (or, was a substantial factor in
causing) an [event] in which plaintiff was injured. Plaintiff contends that at the time the
alcoholic beverage was served, the (person) was visibly intoxicated (or, was
known or reasonably should have been known to be a minor).
"Visibly intoxicated" means
a state of intoxication accompanied by a perceptible act or series of acts
which present clear signs of intoxication (and an "apparent minor" is
a person under the age of 21 or an individual who under the circumstances was
known or reasonably should have been known to be a minor).
If you find that the [name of
licensed alcoholic beverage server] served, or permitted to be served,
alcoholic beverages to a person when visibly intoxicated (or was known or
reasonably should have been known to be a minor) then you must find the
licensed alcoholic beverage server negligent.
If you find that the [name of licensed alcoholic beverage server]
did not serve alcoholic beverages to a visibly intoxicated person, then the [name
of licensed alcoholic beverage server] was not negligent.
Cases:
Lee v. Kiku Restaurant, 127 N.J. 170 (1992); Rappaport
v. Nichols, 31 N.J. 188 (1959); Geherty v. Moore, 238 N.J.
Super. 463 (App. Div. 1990); Aliulis v. Tunnel Hill Corp., 114 N.J.
Super. 205 (App. Div.), afff’d, 59
N.J. 508 (1971).
See also Fisch v. Bellshot, 135 N.J.
374, 382-386 (1994) (Licensed Server
Liability Act provides exclusive definition of an alcoholic beverage
server’s negligence for all causes of action arising under Act, and jury should
not be instructed that violation of administrative regulations is evidence of a
defendant’s negligence.)
NOTE TO JUDGE
(1) In the case of a sale to an apparent minor,
see Rappaport v. Nichols, 31 N.J. 188, 201 (1959) for the concept of
selling the first drink which does
"its share of the work" (citing
Taylor
(2) In cases where licensed alcoholic beverage
server hosts a party that permits
the self-service of alcohol, see Mazzcano v. Estate of Kinnerman, 197 N.J.
307 (2009) for the concept that self- service
constitutes service of alcohol under the Licensed
Alcoholic Beverage Server Fair Liability
Act (the “Dram Shop Act”), N.J.S.A. 2A:22A-1 to -7.
Statute:
N.J.S.A.
2A:22A-1 et seq.
Cross-reference:
See negligence charges.
B. Proximate
Cause ― Intervening Cause ― Substantial Factor
If you find that the [name of
licensed alcohol beverage server] did serve alcoholic beverages to [name
of intoxicated person] when he/she was visibly intoxicated, you then must
determine whether or not that conduct was a proximate cause of the [event]. By proximate cause we mean a cause which
naturally and probably led to the [event] and resulting injuries. Sometimes an event results from two or more
causes. Nevertheless, if a person's
negligence is a substantial factor in causing an [event], that negligent
person is held liable to a person so injured.
Therefore, you must also determine whether the service of alcoholic
beverages to [insert name of intoxicated person] was a substantial
factor in bringing about the [event].
It makes no difference whether any other causes intervened and
contributed to the [event] as long as the service of alcoholic beverages
to [insert name of intoxicated person] was a substantial factor in
causing the event.
C.
Negligence of Visibly Intoxicated Plaintiff
In
determining whether plaintiff is entitled to recover from the [name of
licensed alcoholic beverage server], you must also consider whether the [event]
was a foreseeable consequence of the negligent service of alcoholic
beverages. A foreseeable consequence is
a natural and probable consequence of the service of alcoholic beverages to the
visibly intoxicated person (or to a person who was known or should have been
known to be a minor). It is the kind of
event that is susceptible of being anticipated in advance of the service of
alcoholic beverages by the exercise of that degree of care which the ordinary
and prudent person would exercise under the circumstances existing at the time. However, it is not necessary that the
defendant [name of licensed alcoholic beverage server] have anticipated
this specific event as long as the event was a natural and probable consequence
of the service of the alcoholic beverages.[2]
D. Comparative Negligence
Thus,
plaintiff is entitled to recover from the [name of licensed alcoholic
beverage server], if plaintiff proves by the preponderance (greater weight)
of evidence the following elements:
1. That defendant served alcoholic beverages to [name];
2. That when the alcoholic beverage was served the person was
visibly intoxicated (or, was known or reasonably should have been known to be a
minor);
3. That such service of alcoholic beverages was a proximate cause
of the [event] and injury complained of; and
4. That the injury or damage was a foreseeable consequence of the
negligent service of alcoholic beverages.
E. When
Joint Tortfeasor
In this case, it is contended that [insert
nature of claim, e.g., plaintiff was negligent by becoming voluntarily
intoxicated and/or by driving his/her car while intoxicated; plaintiff was at
fault by becoming voluntarily intoxicated and thereafter riding as a passenger
with an intoxicated driver, or by other conduct that might suggest that he/she
was negligent; (name of patron who assaulted plaintiff) caused the injury by
his/her assaultive conduct].
If you conclude that plaintiff has
proven his/her claim against [name of licensed alcoholic beverage server],
you must then apportion fault between the [name of licensed alcoholic
beverage server] and [name of plaintiff if comparative negligence or of
other defendants if joint tortfeasors] based on the extent that each
party’s negligence [or other conduct, if assault] contributed to the
event.
The
general purpose of the Licensed Servers
Liability Act is to impose on taverns financial responsibility for injuries
proximately caused by the negligent service of alcoholic beverages. I will now instruct you on apportioning
responsibility for the incident in this case.
In allocating responsibility between [name of licensed alcoholic
beverage server] and [name of plaintiff if comparative negligence or of
other defendants if joint tortfeasors], you should hold the tavern
responsible for negligent service to the extent that it influenced the behavior
of persons whom the tavern should not have served.[3]
[Additional Language When Patron Is Underage]
You should also be aware that taverns
have a heightened duty to underage patrons under the Licensed Servers Liability Act.
The Act deems the licensed server negligent if it serves a person it
knew or should have known was underage, regardless of that person’s visible
level of intoxication. This heightened
duty was imposed because of the Legislature’s recognition that minors as a
class are less likely than adults to drink responsibly and more likely to
become intoxicated and pose a danger of harm to others[4]
As I just
mentioned, it is contended that plaintiff was negligent by becoming voluntarily
intoxicated and/or by driving his/her car while intoxicated.[6]
The [name of licensed alcoholic
beverage server] is responsible for its conduct in serving alcoholic
beverages to a visibly intoxicated person.[7] An intoxicated person generally lacks the
capacity to adequately evaluate his ability to drive. As a result, the tavern [or insert other
appropriate word to refer to type of licensed alcoholic beverage server] is
ordinarily responsible for the driver's decision to drive an intoxicated state. The defendant driver is, however, responsible
for his/her conduct in drinking to the point of intoxication.[8]
You are to consider the negligence of [name
of intoxicated driver] in becoming voluntarily intoxicated, the negligence
of the [name of licensed alcoholic beverage server] in serving a visibly
intoxicated person and the nature and circumstances of the negligent operation
of the vehicle. Based on all the
relevant evidence you must allocate the responsibility for the negligent
operation of that vehicle between [name of intoxicated driver] and [name
of licensed alcoholic beverage server].
Cases:
The contributory
negligence of the person served is not a bar to recovery under the statute or
the pre-statute dram shop rule, although the plaintiff may be found to have
been comparatively negligent. See N.J.S.A. 2A:22A-6(a); Soronen
v. Olde Milford Inn, Inc., 46 N.J. 582 (1966); Lee v. Kiku
Restaurant, 127 N.J. 170 (1992).
As to the effect on recovery of the negligence on an injured third
party, Aliulis v. Tunnel Hill Corp., 59 N.J. 508 (1971) held
that, in the circumstances of that case (i.e., the injured third party
had no real choice but to ride with the intoxicated driver in order to get
home), the injured third party's negligence was not a bar.
However,
later cases have clarified these decisions by requiring that the jury be
instructed on principles of comparative negligence Buckley v. Estate of
Pirolo, 101 N.J. 68 (1985); Lee v. Kiku Restaurant, 127 N.J.
170 (1992).
This
continues to be the state of the law under the statute. See
N.J.S.A. 2A:15-5 et seq.
(eliminating contributory negligence as a bar to recovery and applying
comparative negligence to determine damages) and N.J.S.A. 2A:15-5.2
(finding of facts regarding comparative negligence) should apply in all court
actions under this Act. Buckley
and Lee provide guidance on the specific elements of comparative
negligence that should be charged under the statute.
G. Comparative
Negligence: When Plaintiff Is Passenger
As I just
mentioned, it is contended that plaintiff was at fault by becoming voluntarily
intoxicated and thereafter riding as a passenger with an intoxicated driver, or
by other conduct which might suggest that he/she was negligent.
The [name of licensed alcoholic
beverage server] is responsible for his/her conduct in serving alcoholic
beverages to a visibly intoxicated person.
An intoxicated person generally lacks the capacity to assess adequately
the risk of riding with an intoxicated driver.
As a result, a tavern [or insert other appropriate word to refer to
type of licensed alcoholic beverage server in case] ordinarily is
responsible for the intoxicated passenger's decision to ride with the
driver. The intoxicated passenger is,
however, responsible for his/her conduct in drinking to the point of
intoxication.
You are to consider the negligence of [name
of intoxicated passenger] in becoming voluntarily intoxicated the
negligence of the (name of licensed alcoholic beverage server) in serving a
visibly intoxicated person, and the nature and circumstances of the negligent
operation of the vehicle. Based on all
of the relevant evidence, you must allocate the responsibility for plaintiff
riding in the car driven by an intoxicated driver between the [name of
licensed alcoholic beverage server] and [name of intoxicated passenger].
H. Apportionment
of Fault: When Plaintiff Is Victim of Assaultive Behavior
NOTE TO JUDGE
The Lee
presumption in the ordinary case under the Licensed
Server Liability Act (see note 6, supra) is not applicable to
the case of an assaultive patron. Steele
v. Kerrigan, supra at 33. Instead, as the following instruction
indicates, the jury should be instructed to consider the assaultive patron’s
capacity to initiate or refrain from volitional assaultive conduct, as well as
other relevant evidence.
As I just mentioned, it is contended
that the actions of [name of patron who assaulted plaintiff] caused the
plaintiff’s injuries. In this case, you
must decide the extent to which [name of licensed alcoholic beverage server]’s
negligence in serving alcohol to [name of the patron who assaulted
plaintiff] contributed to the incident.
You should apportion fault between [name of licensed alcoholic
beverage server] and [name of the patron who assaulted plaintiff] on
the basis of all the evidence, including the evidence of [name of licensed
alcoholic beverage server] negligence in both commencing and continuing to
serve [name of the patron who assaulted plaintiff], evidence of [name
of the patron who assaulted plaintiff] fault in deciding to consume the
alcohol, evidence concerning [name of the patron who assaulted plaintiff]’s
actual degree of intoxication and his/her capacity to determine whether to
refrain from or initiate assaultive behavior, and any evidence of [name of
the patron who assaulted plaintiff]’s predisposition to violence or other
factors contributing to the incident. In
sum, you are to apportion fault between [names of parties] based on all
of the evidence pertaining to each party’s role in the incident.[9]
I.
Apportioning Fault Where Claim of Comparative Negligence
or Joint Tortfeasors (General Concluding Instruction)
Based on these instructions, if you
find the plaintiff was negligent (or if you find that [name of
licensed alcoholic beverage server] and [name of other party] to be
jointly liable for plaintiff’s injuries), then the licensed alcoholic beverage
server (and other party, where joint tortfeasors) shall be responsible for no
more than that percentage share of the total damages that is equal to the
percentage share of negligence attributable to each of them.
Source: https://njcourts.gov/attorneys/civilcharges.html
[1] Instructions on respondeat superior should be given if
conduct of an employee is involved.
[2] In cases of an intentional
assault by a patron, the following language should be inserted:
In general,
assaultive behavior is considered one of the foreseeable risks of negligent
service. However, you must still
determine in this case whether the resulting injury to (name of plaintiff) was
a foreseeable consequence of (name of licensed alcoholic beverage server)
negligent service of alcoholic beverages to (name of patron who assaulted
plaintiff). See Steele v. Kerrigan,
148 N.J. 1, 34 (1997).
[3] Steele v. Kerrigan, supra at 34. Although Steele involved an underage
patron, the discussion in the opinion is generally applicable to all
patrons.
[5] These charges assume that the
intoxicated person is the plaintiff driver or passenger. The charges should be appropriately adjusted
if the intoxicated person is a defendant, third party plaintiff or
cross-claimant.
[6] The typical principles of
comparative negligence will apply to joint tortfeasors in ordinary
dram-shop actions as they apply in all other negligence cases involving joint
tortfeasors. Lee, supra,
127 N.J. at 183-84. Accordingly,
in the ordinary case the judge should not instruct the jury to determine
the extent to which the person had retained some capacity to appreciate the
risk of engaging in the activities that led to the incident. Instead, as the instructions in the text
provide, there is a presumption that the intoxicated person lacked the capacity
to evaluate the ensuing risks. However,
there may be exceptional cases that require appropriate modifications of
these instructions (see note 7 below).
It should also
be recognized that there are types of conduct other than driving that may be
the basis of the claimed liability or comparative negligence. Although the charge is modeled on a driving
case, appropriate substitutions must be considered in those cases.
[7] In Fisch v. Bellshot,
135 N.J. at 391, the Supreme Court held that the Lee presumption
set forth in note 6, supra., is inapplicable where “exceptional
circumstances” exist. In those cases, a
jury should be instructed to consider the extent to which the person retained
some capacity to appreciate the risk of engaging in the activity that led to
the accident. Ibid. In Fisch, the
Court found exceptional circumstances when the decedent was the tavern’s
bartender; she served herself despite the obligation not to drink while on
duty; and her training and experience equipped her with an increased ability to
assess the progression of intoxication and to understand the debilitating
effects of excessive drinking. The
question of whether “exceptional circumstances” exist is an issue of law for
the trial judge. Id.
[8] The Supreme Court in Lee
noted a single exception to this rule.
The Court stated:
[H]owever, under some circumstances an
alcoholic may be a person who, in becoming
intoxicated, could be excused from a failure to exercise reasonable care. (Citations
omitted). Thus in the event a patron was
known to the tavern’s employees to
be an alcoholic, the duty of the tavern to refrain from serving that patron could arise well before the patron
reaches the stage of
being visibly intoxicated. (Lee, supra at 185).
If there is a defense raised
that the plaintiff is an alcoholic and that the tavern knew it, the charge
should be amended to reflect this holding.
If the plaintiff were to establish this defense, the licensed alcoholic
beverage server would be strictly liable for serving a visibly intoxicated
person or minor.
[9] Steele v. Kerrigan, supra at 34-35. Although Steele involved an underage
patron, the discussion in the opinion is generally applicable to all
patrons.
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