Bauer v. Nesbitt

• Decision Date: 07 May 2009
• Docket Number: A-16 September Term 2008
• Citation: 969 A.2d 1122,198 N.J. 600
• Parties: Kathleen V. BAUER, Administratrix ad Prosequendum for the Estate of James Allan Hamby, and Individually, Plaintiff-Respondent, v. Frederick NESBITT, III, driver, Julia Nesbitt, owner and John Doe Dram Shop and/or Homeowner Server of Alcohol, Defendants, and C View Inn, Defendant-Appellant.
• Court: New Jersey Supreme Court

969 A.2d 1122

198 N.J. 600

Kathleen V. BAUER, Administratrix ad Prosequendum for the Estate of James Allan Hamby, and Individually, Plaintiff-Respondent, v. Frederick NESBITT, III, driver, Julia Nesbitt, owner and John Doe Dram Shop and/or Homeowner Server of Alcohol, Defendants, and C View Inn, Defendant-Appellant.

A-16 September Term 2008

Supreme Court of New Jersey.

Argued December 2, 2008.

Decided May 7, 2009.

Terence M. King argued the cause for appellant.

Rudolph C. Westmoreland argued the cause for respondent (Westmoreland Vesper

& Quattrone, attorneys; Mr. Westmoreland and Kathleen F. Beers, on the brief).

Justice ALBIN delivered the opinion of the Court.

This appeal involves a wrongful death and survivorship lawsuit filed against defendant C View Inn by plaintiff Kathleen V. Bauer. Plaintiff's twenty-one-year-old son, James Allan Hamby, was killed in an accident while a passenger in a car operated recklessly by a nineteen-year-old drunk driver, Frederick Nesbitt, III, after the two young men had socialized at the Inn. In the civil complaint, plaintiff claims that the Inn had a duty to monitor Nesbitt for signs of intoxication. Although the underage Nesbitt was not served alcohol by any of the Inn's employees, he had been drinking before his arrival at the Inn and, while there, Hamby surreptitiously slipped rum into Nesbitt's soda.

The trial court granted summary judgment in favor of the Inn, finding that it did not violate the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act (Dram Shop Act), N.J.S.A. 2A:22A-1 to -7, or otherwise act negligently. The Appellate Division reversed, based on a theory of liability not set forth in the complaint — that the Inn had served Hamby alcohol while he was visibly intoxicated and that, because of his impaired state, he got into a car with an intoxicated driver. Those facts, according to the panel, satisfied the prerequisites for a claim under the Dram Shop Act. The panel also determined that, under common-law principles of negligence, the Inn owed a duty to monitor Nesbitt, even if it had not served him alcohol, and to protect him from harming himself or others. Based on the evidence, the panel reasoned that a jury could find that the Inn's failure to monitor Nesbitt was the proximate cause of Hamby's death.

We reverse the Appellate Division for two reasons. First, plaintiff never pled in her complaint that the Inn violated a statutory or common-law duty by serving Hamby alcohol while he was visibly intoxicated. That theoretical cause of action was raised by the panel on its own for the first time in its opinion. The Inn was not given fair notice in the complaint of a cause of action involving the service of alcohol to Hamby, and accordingly a theory of the case that was never advanced by plaintiff cannot be sustained.

Second, because no evidence was produced that the Inn either served or allowed the service of alcohol to Nesbitt, plaintiff has no valid claim under the Dram Shop Act. Significantly, no one who observed Nesbitt at the Inn testified that he appeared visibly intoxicated or in any way impaired. Although circumstances may dictate that a commercial establishment has a duty to ensure the safety of its guests from a foreseeable danger, in this case, we cannot find that the Dram Shop Act or common-law principles of negligence imposed a duty on the C View Inn to monitor the appearance of a person to whom it had not served alcohol. We therefore reinstate the trial court's dismissal of plaintiff's claim against the Inn.

I.

A.

For purposes of this appeal, the critical events occurred at the C View Inn, a tavern in Cape May County, beginning at 7:00 p.m. on September 3, 2003.¹ At that time, five friends entered the Inn on its weekly "Wing Night" to socialize and drink. The group consisted of defendant Frederick Nesbitt, III, then age nineteen, and James Hamby, Jason Kleinschmidt, Wade Dickinson, and Kevin Smith, all of whom were over the age of twenty-one. The five were seated at a table approximately six feet from the bar. The waitress, Casey Walker, who served the table, as well as the bartender and other Inn employees, knew that Nesbitt was a minor. No one has claimed that anyone at the C View Inn that evening served Nesbitt alcohol or allowed Nesbitt to drink any alcohol brought to the table.

However, Nesbitt did drink alcohol before his arrival at the Inn. Earlier in the evening, at approximately 5:30 p.m., Nesbitt picked up Hamby at his home and drove to the Seaville Tavern, where Hamby purchased a pint of rum and a twelve-pack of beer. Nesbitt was the "designated driver" because Hamby's license had been suspended due to a driving-under-the-influence conviction. Back in the car, Hamby drank beer, throwing the empty bottles out the window, while Nesbitt took a "couple swigs" from the bottle of rum. They then drove to the home of Kevin Smith, where they met their friends Jason Kleinschmidt and Wade Dickinson. At Smith's home, Nesbitt ate some pizza and drank some more rum. Afterwards, Nesbitt drove Hamby and Kleinschmidt to the C View Inn. On the way, Nesbitt and Hamby drank a beer, and in the Inn's parking lot, Nesbitt "probably" had a swig of the rum. When they entered the Inn, half of the twelve-pack of beer still remained unconsumed in the car; Hamby sneaked in the bottle of rum inside his pants' pocket.

During the roughly two hours that the group of five socialized at the Inn, all but Nesbitt were served alcohol at their table. Indeed, Nesbitt claimed that the Inn's employees, who knew he was a minor, were watching him like a hawk.² In the course of the evening, the four of-age members of the group were served three to four pitchers of light beer as well as vodka and orange juice in tall glasses. Additionally, thirty chicken wings and an order of French fries were brought to the table. The waitress — who had been Nesbitt's high school classmate — provided Nesbitt with several glasses of Coca-Cola. Although Nesbitt admitted that he was not served alcohol by any of the Inn's employees or poured any beer from the pitchers on the table, he recalled that on two occasions Hamby slipped rum into his soda glass under the table.

Because it was "Wing Night," the Inn was packed with approximately sixty people. At times, Hamby grew boisterous, and at one point he exposed himself to his friends, saying that "he wanted to get a smiley face tattooed on his penis." To Kleinschmidt, that behavior indicated that Hamby was drunk. However, Dickinson observed no clear signs that Hamby was intoxicated: he was not talking loudly, staggering, or acting rowdy. No one who observed Nesbitt at the Inn offered the opinion that he appeared intoxicated. He was not falling down or stumbling or exhibiting any other obvious signs of intoxication. Indeed, Dickinson thought that Nesbitt "looked like the safest to drive."

Between 9:00 p.m. and 9:30 p.m., the group departed from the C View Inn, with Hamby leaving in Nesbitt's car. At approximately 10:35 p.m., while Nesbitt was driving north on the Garden State Parkway, he lost control of the car, which crashed into a guardrail and rolled over. Neither Nesbitt nor Hamby was wearing a seat belt. Nesbitt was thrown through the car's back window, suffering serious injuries; Hamby died of the injuries he sustained in the crash. After Nesbitt was taken to the hospital, a sample of his blood yielded a 0.199% blood alcohol concentration (BAC).³ Thomas Hand, plaintiff's drug and alcohol expert, opined that Nesbitt's BAC "was definitely above a .10[% BAC] in the C-View Inn, and therefore [Nesbitt] would have been showing obvious physical signs of intoxication ... before he left the premises." The record does not reveal what became of the approximately six bottles of beer that were left behind in Nesbitt's car when the group entered the C View Inn or the bottle of rum that Hamby secreted on his person.

B.

In July 2004, plaintiff Kathleen Bauer, individually and as administratrix ad prosequendum of the estate of her son, James Allen Hamby, filed a five-count wrongful death and survivorship complaint, naming as defendants, Nesbitt, Nesbitt's mother (the owner of the ill-fated car), and the Inn. The first three counts of the complaint allege that Nesbitt negligently operated the car, causing Hamby's death, and that Nesbitt's mother negligently entrusted the car to her son. The fourth count alleges that the C View Inn committed common-law negligence and violated the Dram Shop Act by either serving the underage Nesbitt alcohol when he was visibly intoxicated or allowing him to consume alcohol in his clearly impaired condition. In that count, plaintiff contends that the conduct of the Inn was the proximate cause of her son's death. The fifth count names as defendants, John Doe Dram Shop or Homeowner Server of Alcohol, in the event that discovery establishes that, within several hours of the deadly accident, one of those fictitious defendants served or allowed to be served alcohol to Nesbitt as a minor or when he was visibly intoxicated. Nowhere in the complaint did plaintiff allege that the C View Inn acted negligently or violated the Dram Shop Act by serving Hamby alcohol when he was visibly intoxicated.

After a period of discovery, the Inn moved for summary judgment, arguing that, based on the record, plaintiff had no viable cause of action under the Dram Shop Act. Initially, the trial court denied the Inn's motion. However, on a motion for reconsideration, the court dismissed plaintiff's action against the Inn, concluding that "[t]here [was] no witness testimony, and no facts to affirmatively support the argument that Nesbitt drank beer served to the table by C View's employees." The court also held that, even if Nesbitt had consumed rum that he or Hamby "surreptitiously brought into the bar," the Inn could not be liable for "negligent service" under the Dram Shop Act. The court specifically found, in deciding the...