Aliulis v. Tunnel Hill Corp.

• Decision Date: 06 December 1971
• Citation: 284 A.2d 180,59 N.J. 508
• Parties: Alita ALIULIS, an infant, by her Guardian ad Litem, George Aliulis, Plaintiff-Respondent, v. TUNNEL HILL CORP., a corporation of the State of New Jersey, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 508

59 N.J. 508

284 A.2d 180

Alita ALIULIS, an infant, by her Guardian ad Litem, George

Aliulis, Plaintiff-Respondent, v. TUNNEL HILL CORP., a corporation of the State of New Jersey,

Defendant-Appellant.

Supreme Court of New Jersey.

Argued Nov. 8, 1971.

Decided Dec. 6, 1971.

Harry K. Seybolt, Hackettstown, for defendant-appellant.

Verling C. Enteman, Washington, for plaintiff-respondent.

PER CURIAM.

This case arose out of a tragic automobile accident near Washington, Warren County. A car driven by a concededly intoxicated 19 year old girl, in which plaintiff, a 16 year old, was a passenger, collided with another vehicle. The driver was killed and plaintiff was seriously injured. Also hurt were two female adult passengers, as well as the operator of the second car, who was blameless. A flurry of litigation resulted, only the final remnant of which reached the Appellate Division and is before us. That is a suit by plaintiff against the last of three taverns in which the 19 year old had been served alcoholic beverages ¹ on the night in question, in violation of N.J.S.A. 33:1--77 and the regulations of the Division of Alcoholic Beverage Control prohibiting sales to minors. The theory of the cause of action by an injured third party against the tavern was that laid down in Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959).

The only meritorious question presented is whether, as a matter of law, an injured third party is barred from recovery in such a situation if that party's negligence proximately contributed to her own injuries. This question differs from that presented in Soronen v. Olde Milford Inn, Inc., 46 N.J. 582, 218 A.2d 630 (1966), in which the injury was to a patron of the defendant tavern who had been sold liquor in violation of state regulations. It was there held that any contributory negligence of the patron is not, as a matter of public policy, available to a tavern keeper by way of defense when the sale is the proximate cause of the patron's injury. In the case at bar, the illegal sale alleged to be the proximate cause of plaintiff's injuries was made no to plaintiff, but to another minor--the driver of the car in which she rode.

The trial court here instructed the jury in substance that plaintiff could not recover if it found that an ordinarily cautious and prudent person would not, under the same or similar circumstances, incur the risk of riding with this intoxicated driver ²--in effect, the same well established principle of contributory negligence that would be applicable if the suit were by a passenger against the intoxicated driver of the vehicle in which he was riding. The jury, although not requested to do so, returned a special verdict that plaintiff was contributorily negligent, which resulted in a judgment in favor of defendant. (The case was tried only on the issue of liability and all other elements of plaintiff's cause of action were found in her favor.)

The Appellate Division reversed the result in the trial court, ordered the entry of judgment as to liability and remanded the case for a trial as to damages. 114 N.J.Super. 205, 275 A.2d 751 (1971). We granted defendant's petition for certification. 58 N.J. 435, 278 A.2d 491 (1971).

The Appellate Division held, as a matter of law, 'that, for reasons of policy clearly enunciated in Rappaport and Soronen, contributory negligence is not available as a defense to the defendant tavern In the circumstances here presented.' (emphasis added) 114 N.J.Super. at 208, 275 A.2d at 752. Although the court, in thereafter articulating the 'reasons of policy,' splke in rather absolurte and all-encompassing terms, we take it the court's decision was grounded in the circumstances of the case at bar even though those circumstances were not spelled out. We agree, and are of the view that no more should be decided in this case.

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