A New Jersey Case on Drunk Driving and Tort Law
Can Stadiums and Even Football Teams Be Liable for Accidents?

In many American states, courts have imposed a duty upon both licensed sellers of alcohol and social hosts to stop providing alcohol to visibly drunk guests. Anti-drunk driving activists such as Mother Against Drunk Driving have argued that, over the past decade, decisions imposing this duty have played an important role in reducing the number of alcohol-related fatalities.

But assuming that tort liability is indeed an effective tool to control drunk driving, how far do we want to go? Certainly drunk drivers should be held liable - but how many other people who contribute to the chain of causation that results in an accident should also be held liable? The case of Antonia Verni poses this very question.

Last week, in The New York Times, one of the attorneys for the Vernis said that the suit is "not based on some esoteric concept we came up with this morning . . . it's based on New Jersey law." In this column, I will discuss how accurate this statement is - and how tort law on drunk driving, in New Jersey and elsewhere, has evolved.

Four years ago, a football fan drank 14 beers at a game at Giants Stadium. Then he drove home - and caused a serious car accident. That accident paralyzed the then-six-year-old Antonia Verni. The driver just finished serving a prison sentence for his crime.

Antonia's family has brought a lawsuit based on the accident in New Jersey court. In addition to suing the driver himself, the Vernis also suing the National Football League; the New Jersey Sports and Exposition Authority, which owns the stadium in East Rutherford; the New York Giants, who were playing; and the stadium's concessionaire, among others.

Thus far, New Jersey has been on the forefront of expanding the duties of servers of alcohol.

In 1959, the State's Supreme Court broke with common law (that is, judge-made) precedent, and held that a commercial establishment could be held liable to third persons if they served alcohol to a minor who later got into a car accident. In 1976, the Court extended this duty to social hosts. And in 1984, in Kelly v. Gwinnell, the court made clear that the standard of liability was the same regardless of whether the host was commercial or social, and whether the guest was a minor or an adult.

Some New Jersey legislators, however, criticized this line of decisions. And after Kelly, the legislature attempted to codify - and therefore limit - the liability of commercial establishments and social hosts. (Judge-made common law may evolve quickly; statutory interpretation can be more static, at least comparatively.) However, the statute's limits on liability were not drastic.

Under New Jersey law, commercial establishments still have a duty - even to their patrons - not to serve alcohol to those who are "visibly intoxicated." In addition, they may be held liable both to patrons themselves, and to third parties injured as a result of the patrons' subsequent drunk driving.

Meanwhile, under New Jersey law, social hosts have a slightly more limited duty than commercial hosts do. If they serve a guest who is visibly intoxicated and that guest gets into an accident, they cannot be sued by the guest - only by a third party, such as the other victim of the accident caused by the guest.

So is the Vernis' case based on New Jersey law, as their attorney has claimed? Yes, and no.

First, recall that the intoxicated driver who struck Antonia Verni had been served alcohol by a commercial establishment. Recall also that New Jersey law makes commercial establishments liable when they serve visibly drunken patrons. And note that it seems probable that the driver - who had had 14 beers - was indeed visibly drunk.

Now add in another New Jersey rule: That liability on the part of commercial establishments extends to the foreseeable risks that are created by their breach of duty. (Unforeseeable risks don't count: New Jersey courts don't make servers liable when a patron later burns his house down, or writes a bunch of bad checks.) And the risk that a drunk driver will hit a child is certainly foreseeable. (So is, say, a barroom brawl.)

So far, so good. But at this point, the case seems to look a little strange - for the commercial establishment being sued isn't Bob's Bar and Grill, it's Giants Stadium. And it's not clear the New Jersey statute meant to impose its duty in circumstances where not hundreds, but thousands or tens of thousands, of people were being served alcohol.

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In the preamble to the New Jersey statute, the legislature made its motivation quite clear: It was concerned that, in the absence of a statute, the judicial decisions imposing tort liability for serving intoxicated guests were getting out of hand.

Accordingly, the legislature wanted to strike a balance. On the one hand, it thought it was, at times, a good idea to use servers as sentries against excess drinking. On the other hand, it did want to create unfair excess liability on servers who were not at fault - thus upping insurance rates and/or drink prices. To strike that balance, the law requires that the plaintiff prove that the defendant failed to see that the customer it served was "visibly" drunk.

In sum, servers' establishments were to be liable for what was within their reach - declining to serve drunken patrons. But they were not to be liable for what was beyond it: Perceiving that a patron was drunk even when they showed no signs of it.

Placing this duty on a bartender, who has the opportunity to observe patrons over some time, may be reasonable. But is it reasonable to place such a duty on a concessionaire who may be handing beers over a sea of heads to faraway patrons in a long line, or along a row of seats?

In the end, what the Vernis seek is, in effect, not a duty to refrain from serving the visibly drunken patron. It's a duty, on the stadium's part, to take active steps to prevent binge drinking by those who are intent on doing it, visibly drunk or not.

The stadium already stops selling beer after the third quarter of each game. There may be other steps it could take to insure that patrons determined to get very drunk cannot do so. But it is unclear whether New Jersey's current tort law places that duty upon them.

In sum, the Vernis' case against Giants Stadium, though it may in the end prevail, is dicey. New Jersey legislators were likely envisioning corner bars, not massive stadiums, when they imposed liability on servers of drunk drivers.

Moreover, in addition to naming the stadium as a defendant, the Vernis have also named the NFL and the Giants. While the case against the stadium is dicey, the case against the NFL and the team seems very unlikely to succeed.

It might succeed if the Vernis' lawyers ultimately argue that the NFL and the Giants control the beer concessionaires, just as hotel might control the bar in its lobby - and thus is vicariously responsible for liabilities the concessionaires incur. But that is not currently what they seem to be arguing. And what they seem to be arguing, is unlikely to pass muster in court.

In the New York Times article quoted earlier, a lawyer for the Vernis said that the liability of the NFL and the Giants is based on "the fact that these companies profit from the excess drinking that occurs at the games." The attorney said that, "What they do is promote the concept that people can't have fun at a football game unless they're drunk."

But under New Jersey law, servers have the duty not to serve those who are visibly drunk. They do not have the duty not to encourage or profit from drinking - even drinking to excess. And it's very unlikely New Jersey courts would create such a duty.

For one thing, the relevant statute seems to exhaustively cover the duties of servers of alcohol. And for another thing, such a duty would be unusual in American law. Normally, we do not hold others responsible for encouraging others to do things that might lead to injury to others, except in very special circumstances.

Put another way, while "aiding and abetting" is a criminal law concept, it's not usually a tort law concept. And drinking - even drinking to excess - is not a crime. If NFL and the Giants were encouraging their patrons to do any illegal activity - say, vandalism - they'd be in trouble. But they are not. The Vernis seem to be arguing that because driving while intoxicated is a crime, and it is likely that at least some of the patrons of Giants stadium who drink to excess will drive home, the NFL and the Giants are "in effect" encouraging their patrons to engage in illegal activities. But knowing about a consequence is not the same thing as intending a result.

In essence, what the Vernis want is that the NFL and the Giants be held to a duty to protect them from the misdeeds of some of the patrons who attend their games -perhaps by making clear to patrons that fun and excessive drinking don't have to mix.

As a policy matter, it would seem to be a good idea for the NFL and the Giants indeed to send this message. But as a legal matter, they do not now have a duty to do so. Thus, while the Vernis' attorneys' strategy of trying to make the NFL and the team liable is clever, it ultimately must fail