A Remarkable New Jersey Decision Holds a Bar Broadly Responsible For Protecting Passengers of Drunk Drivers Whom the Bar Never Served, and Who Did Not Seem Drunk
By ANTHONY J. SEBOK
|Tuesday, Mar. 25, 2008|
Last week, a state appellate court in New Jersey issued a remarkable decision: It held that a bar has a duty to make sure that an intoxicated person does not get into a car that is driven by another intoxicated person, even if the driver did not consume alcohol in the bar or appear intoxicated.
The logic of this decision, Bauer v. Nesbitt, takes the use of tort law to regulate drunk driving into new and uncharted territory.
The Facts of the Case
The facts of Bauer are sad and all too familiar. James Hamby, age 21, and Frederick Nesbitt III, age 19. began their evening by drinking beer and rum. Later, they met three other friends (all of whom were 21 or older) at the C View Inn in Cape May, New Jersey for "Wing Night."
At the C View Inn, the underage Nesbitt ordered soft drinks and was not served alcohol. At trial, there was testimony that Nesbitt received some rum from Hamby surreptitiously "under the table," but there was no evidence submitted that the staff at the bar knew about this. Furthermore, the only evidence that was introduced concerning Nesbitt's visible intoxication was that he was "boisterous."
Hamby, on the other hand, was served alcohol and became extremely drunk. He was loud, boisterous and vulgar, to the point where he displayed a piercing that he had just received on a private part of his anatomy.
That night, Hamby accepted a ride from Nesbitt, and Nesbitt crashed his car on the Garden State Parkway, killing Hamby. When the accident occurred, Nesbitt's blood alcohol level was .199 percent (almost double the legal limit in New Jersey).
Hamby's estate then sued Nesbitt, who is serving a five-year sentence for negligent vehicular homicide. It also sued the C View Inn, under New Jersey's Dram Shop Act.
The Trial Court's Decision to Dismiss the Suit
The trial judge dismissed the suit against the C View Inn on the ground that the Dram Shop Act, N.J.S.A. 2A:22A-4, did not apply. Under this statutory tort, a "licensed alcoholic beverage server shall be deemed to have been negligent only when the server served a visibly intoxicated person, or served a minor, under circumstances where the server knew, or reasonably should have known, that the person served was a minor."
The bar had not served a minor. It had, arguably, served alcohol to a visibly intoxicated person - Hamby. However, the judge reasoned, Hamby did not cause the accident that caused the injury; he was only a passenger. (If he had grabbed the wheel from Nesbitt while the latter was driving, that would have been a completely different story, but that is not what happened, according to the court.) For the trial judge, then this was a simple case of "no harm, no foul"--the person whom the C View Inn served didn't drive, and the person who drove wasn't served by the C View Inn.
The Appellate Court's Decision to Reinstate the Suit
So why did the New Jersey appellate court reverse the trial judge and return the case for trial? It gave two reasons.
First, it held that the risks that the Dram Shop Act was intended to prevent were not just accidents resulting from drunk-driving, but also any accidents that could foreseeably result from intoxication.
The appellate court offered a number of precedents to support its claim. It cited, for example, the 1997 decision in Steele v. Kerrigan, where a bar was held liable to a victim of a bar fight initiated by a minor to whom the bar had served alcohol. It also cited the 2003 decision in Kuehn v. Pub Zone, where a bar was held liable because it did not protect a patron from an attack, on the bar's premises, by a motorcycle club. In addition, it cited the 2001 decision in Martin v. Prime Hospitality Corp., where a bar was held liable for failing to protect an intoxicated patron from an off-site rape by other patrons in the bar.
The problem with these cases, however, is that none of them is really on point. To begin, Steele is the only case, among the three, that relies on the Dram Shop Act, and it is easily distinguishable from Bauer: In Steele, the victim was attacked by a minor to whom the bar served alcohol. The C View Inn, as noted above, did not serve Nesbitt, the minor who caused the car accident.
The other two key cases the New Jersey appeals court cited, Kuehn and Martin, have a basis that is quite different from the Dram Shop Act. They are based on the much broader and more basic duty that a landowner has a duty to protect a guest (whether an invitee or a licensee) from foreseeable criminal assaults, even after the patron leaves to premises, to the extent that the landowner could take reasonable steps to provide protection. But, on the night in question, Nesbitt was not threatening Hamby, at least not in the sense upon which duty was based in Kuehn and Martin--that is, as a foreseeable criminal assailant. Had the bar been forewarned that an angry Nesbitt might try to run down Hamby in the parking lot, then these cases would apply.
With no precedent truly on point to support its decision, it is most accurate to say that the appellate court created a new duty in Bauer. It essentially held that since Hamby, the passenger, was visibly drunk, the bar had a duty to protect him against his own bad judgment which led him to accept a ride from Nesbitt, the driver. The problem with this logic, however, is that while Nesbitt was too drunk to drive, and Hamby knew it, the staff at the bar did not.
This is a very expansive duty. All the staff at the C View Inn knew was that Hamby was very drunk. They could be assumed to know that very drunk people make bad choices. But the staff did not know the range of bad choices from which Hamby was choosing. They did not know, for example, that he was choosing to drive with another person who was very drunk.
The Arguments in Favor of the Court's New Duty
I suppose that the best argument in favor of the new duty created by the appellate court is that the duty to protect visibly drunk patrons can't end at the bar - or car - door. After all, wouldn't the bar have a duty to stop Hamby from staggering out the door of the bar and trying to walk home in a snowstorm?
The answer is yes--but there is a difference: The staff of the C View Inn would or should surely have recognized the risk faced by Hamby had he staggered into a snowstorm, drunk. Yet, given the actual facts of the case, the court itself conceded that when Hamby chose to leave with Nesbitt, the staff at that bar had no reason to believe that Nesbitt could not drive safely. As far as the staff knew, the drunk Hamby was accepting a ride with a driver who had drunk no alcohol in their bar - a far better option that Hamby's staggering off alone, or driving drunk himself.
The court's second argument for returning the case for trial is that if a jury finds that Nesbitt was, in fact, visibly intoxicated, then the bar had a duty to protect Hamby from Nesbitt, even if they were not responsible for Nesbitt's intoxication (which derived from drinks he had consumed earlier, and/or that Hamby sneaked to him). Notice that this argument does not depend at all on the fact that Nesbitt was a minor. It would have the same force if Nesbitt had been Hamby's 50 year old father who had drunk five scotches before coming to "pick up" his son from the C View Inn.
In my view, this second argument mounted by appellate court is only a little more persuasive than the first. In part, that is because if Nesbitt was visibly intoxicated, then the bar's duty to prevent Hamby--who was disabled by alcohol provided by the bar--from accepting Nesbitt's ride seems more credible.
Yet the court also insists on pushing the second argument too far. Its argument suggests that even if Hamby were not impaired, the bar would still have had a duty to prevent him from accepting a ride from Nesbitt, even if Nesbitt's impairment was a result of drinking done off-premises. It cites, again, cases like Kuehn and Martin.
As noted above, however Kuehn and Martin involved the duty to protect patrons from rape and assault on or near the landowner's premises; they did not involve the Dram Shop Act. Does the court in Bauer really want to create a freestanding duty on landowners to protect their guests from the reckless, drunk driving of others--especially when the offer to drive comes from someone who did not receive alcohol from the landowner? That rule seems to go too far, holding landowners liable when they have not done anything wrong - effectively appointing them to police drunk driving in their vicinity.
Bauer is a hard case, but it requires much more thought than the current appellate court has provided. If a licensed establishment's duty to protect patrons from the risks associated with alcohol is to be radically expanded--as it has been in Bauer--then the New Jersey Supreme Court should provide much more detailed reasoning for why that result is supported by existing law. Thus far, it has not done so.