Blair v. Anik Liquors

• Decision Date: 24 January 1986
• Citation: 210 N.J.Super. 636,510 A.2d 314
• Parties: Deanna BLAIR, as Guardian ad Litem of Cindy Blair and Leslie Blair, Plaintiffs, v. ANIK LIQUORS t/a Buy-Rite Liquors, Defendant.
• Court: New Jersey Superior Court

Page 636

210 N.J.Super. 636

510 A.2d 314

Deanna BLAIR, as Guardian ad Litem of Cindy Blair and Leslie

Blair, Plaintiffs, v. ANIK LIQUORS t/a Buy-Rite Liquors, Defendant.

Superior Court of New Jersey, Law Division,

Passaic County.

Decided Jan. 24, 1986.

Gary R. Matano, Paterson, for plaintiffs (DeYoe, Heissenbuttel & Mattia, attorneys).

Robert L. Ritter, Hackensack, for defendant (Cole, Schotz, Bernstein, Meisel & Forman, attorneys).

SAUNDERS, J.S.C.

This case presents a new question arising out of driving while intoxicated. Can a minor who was illegally sold alcoholic beverages by a liquor store recover the damages flowing from a motor vehicle conviction for driving while intoxicated (D.W.I.)? In other words, are statutorily imposed fines and sanctions, costs and other losses arising out of the conviction a proper element of damages recoverable against the store owner? This question is raised by defendant's Motion for Summary Judgment.

For purposes of this motion, it is conceded that the plaintiff, Cindy Blair, was 17 years old on July 19, 1984. On that date, she purchased two 6 packs of beer from the defendant, Anik Liquors. After consuming the beer, plaintiff drove her automobile to Cedar Grove where she was arrested and charged with D.W.I. in violation of N.J.S.A. 39:4-50. She was subsequently convicted in Municipal Court.

Cindy Blair and her father brought suit against the defendant alleging negligence by the store for selling the beer to a minor in violation of N.J.S.A. 33:1-77. Plaintiffs seek recovery for monetary damages resulting from the D.W.I. conviction, which include the following: fine and court costs, fees for reinstatement of driver's license, fees for an alcohol rehabilitation course and an insurance surcharge fee of $1,000 per year for three years. In addition, plaintiffs claim incidental damages This motion can be decided only after a consideration and resolution of two conflicting public policies. First, the prohibition of the sale of alcoholic beverages to minors and the imposition of civil liability and sanctions against those violating that prohibition. Second, the prohibition of D.W.I. and the imposition of sanctions against those violating that prohibition.

arising out of the suspension of Cindy Blair's driving privileges for six months, including transportation expenses, emotional distress and diminution in the quality of life.

I

It is settled law that a tavern which sells alcoholic beverages to a minor or intoxicated person whose intoxication causes injury to himself or a third person may be liable for those injuries. Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959); Soronen v. Olde Milford Inn, Inc., 46 N.J. 582, 218 A.2d 630 (1966). The Supreme Court in Rappaport recognized that:

[W]hen alcoholic beverages are sold by a tavern keeper to a minor or to an intoxicated person, the unreasonable risk of harm not only to the minor or the intoxicated person but also to members of the traveling public may readily be recognized and foreseen; this is particularly evident in current times when traveling by car to and from the tavern is so commonplace and accidents resulting from drinking are so frequent. [Id. at 202, 156 A.2d 1.]

The court went on to observe that:

[R]ecognition of the plaintiff's claim will afford a fairer measure of justice to innocent third parties whose injuries are brought about by the unlawful and negligent sale of alcoholic beverages to minors and intoxicated persons, will strengthen and give greater force to the enlightened statutory and regulatory precautions against such sales and their frightening consequences, and will not place any unjustifiable burdens upon defendants who can always discharge their civil responsibilities by the exercise of due care. [Id. at 205, 156 A.2d 1.]

It is equally well settled that the defense of contributory negligence of the bar's patron is not available to the tavern.

The public policy of the dram shop rule is to protect the intoxicated patron from his incapacity to protect himself or the public from foreseeable and unreasonable risk of harm ... The need to protect an intoxicated patron from foreseeable harm to himself and others is self-evident because he lacks the capacity 'to exercise normal powers of judgment and prudence. He is a potential menace, not only to himself but to others' ... He 'is a danger to himself and is in no "The accountability may not be diluted by the fault of the patron for that would tend to nullify the very aid being afforded. Since the patron has become a danger to himself and is in no position to exercise self-protective care, it is right and proper that the law view the responsibility as that of the tavern keeper alone." Soronen v. Olde Milford Inn, Inc., supra, 46 N.J. at 592, 218 A.2d 630.

                position to exercise self-protective care'.   Buckley v. Pirolo Estate, 190 N.J.Super. 491, 498, 464 A.2d 1136 (App.Div.1983)
                

It is clear, then, that our courts recognize a "dram shop rule" based on principles of common law negligence. A liquor licensee may be civilly liable where injuries proximately result from the illegal sale of alcohol to a minor or intoxicated person. The rationale for imposing liability is based upon two concepts. It is a general rule that when the Legislature has by statute established a certain standard of conduct, one of the class for whose protection the statute was enacted obtains the benefit of the statute in an action for negligence if the breach was the efficient cause of the injury of which he complains. Faces, Inc. v. Kennedy, 185 N.J.Super. 113, 447 A.2d 592 (Law Div.1981), aff'd 185 N.J.Super. 77, 447 A.2d 572 (App.Div.1982); McCarthy v. Nat. Assoc. for Stock Car Auto Racing and Co., 87 N.J.Super. 442, 209 A.2d 668 (Law Div.1965), aff'd 90 N.J.Super. 574, 218 A.2d 871 (App.Div.1966), aff'd 48 N.J. 539, 226 A.2d 713 (1967); Moich v. Passaic Terminal and Transp. Co. 82 N.J.Super. 353, 197 A.2d 690 (App.Div.1964). It is undisputed that the infant plaintiff is one of the class to be protected by the statute prohibiting the sale of liquor to minors. "The Legislature has in explicit terms prohibited sales to minors as a class because it recognizes their very special susceptibilities and the intensification of the otherwise inherent dangers when persons lacking in maturity and responsibility partake of alcoholic beverages; insofar as minors are concerned the sale of the first drink which does 'its share of the work' ... and which generally leads to the others is unequivocally forbidden." Rappaport v. Nichols, supra, 31 N.J. at 201, 156 A.2d 1.

Another basis for permitting civil liability is the heavy burden our courts place upon liquor licensees to prevent violation of alcoholic beverage control statutes and regulations. Our courts have long recognized that liquor licensees operate their businesses by way of a privilege and that if imposing liability under these circumstances will increase their diligence "the public interest will indeed be very well served". Rappaport v. Nichols, supra, 31 N.J. at 206, 156 A.2d 1. "Those who enter the licensed liquor business do so with full awareness that it is heavily fraught with dangers and that the members of the general public as well as the individual patron are entitled to receive and do receive high measures of protection from its abuses." Soronen v. Olde Milford Inn, Inc., supra, 46 N.J. at 592, 218 A.2d 630.

The soundness of the court's policy of placing this heavy burden on tavern keepers was re-examined and approved in Aliulis v. Tunnel Hill Corp., 114 N.J.Super. 205, 275 A.2d 751 (App.Div.1971), and more recently in Faces, Inc. v. Kennedy, supra.

II

The operation of a motor vehicle while under the influence of intoxicating liquor or with a blood alcohol concentration of 0.10% or more is strictly forbidden. N.J.S.A. 39:4-50(a). The penalties for a first offense mandate a minimum fine of $250, a period of detainment of not less than 12 hours and a loss of driving privileges for a period of not less than six months. N.J.S.A. 39:4-50(a)(1). The offender must pay a fee of $40, successfully complete a program of highway safety and alcohol education, N.J.S.A. 39:4-50(b), and is assessed a per diem charge of $25 for attendance at the Intoxicated Driver Resource Center. N.J.S.A. 39:4-50(f). A surcharge of $100 is imposed on a violator to fund a "Drunk Driver Enforcement Fund". N.J.S.A. 39:4-50.8. There is an additional insurance surcharge of $3,000 payable at the rate of $1,000 per year. N.J.S.A. 17:29A-35(b)(2). In addition to the mandatory minimum fine, sanctions and surcharges, the court has the discretionary It is clear that New Jersey and other jurisdictions have "cracked down" on D.W.I. in recent years. New Jersey re-established the age of 21 as the legal age for purchasing and consuming alcoholic beverages as a response to the increase in teenage driving and drinking. Our sister state of New York and other states have recently joined this trend. A recently enacted statute provides that no driver or passenger shall consume an alcoholic beverage while the motor vehicle is being operated. N.J.S.A. 39:4-51a(a). The United States Congress has provided federal incentive grants to states with stringent drunk driving laws. This has encouraged states to adopt more comprehensive drinking and driving laws. See Assembly Judiciary, Law, Public Safety and Defense Committee Statement on New Jersey Senate Bill 1833 L 1983, c. 129.

                right to impose a term of imprisonment of not more than 30 days and to increase the minimum fines within the guidelines set forth in the statute.   N.J.S.A. 39:4-50(a)(1)
                

There is an increased public awareness of the devastation that results from drinking and driving. This is reflected by the proliferation of organizations such as Mothers Against Drunk Drivers (M.A.D.D.), Students Against Driving Drunk (S.A.D.D.) and Remove Intoxicated Drivers (R.I.D.). Many municipalities have raised their court...