Soronen v. Olde Milford Inn

• Decision Date: 30 June 1964
• Docket Number: No. A--777,A--777
• Citation: 84 N.J.Super. 372,202 A.2d 208
• Parties: Edith T. SORONEN, as Administratrix, and Administratrix Ad Prosequendum of John G. Soronen, deceased, Plaintiff-Appellant, v. OLDE MILFORD INN, a New Jersey corporation, and James Frei, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 372

84 N.J.Super. 372

202 A.2d 208

Edith T. SORONEN, as Administratrix, and Administratrix Ad Prosequendum of John G. Soronen, deceased Plaintiff-Appellant, v. OLDE MILFORD INN, a New Jersey corporation, and James Frei Defendants-Respondents.

No. A--777.

Superior Court of New Jersey, Appellate Division.

Argued April 20, 1964.

Decided June 30, 1964.

William V. Breslin, Englewood, for appellant (Fornabai & Zimmermann, Fort Lee, attorneys; Thomas J. Spinello, Paterson, on the brief).

H. Curtis Meanor, Jersey City, for respondents (Lamb, Blake, Hutchinson & Dunne, Jersey City, attorneys).

Before Judges CONFORD, FREUND and SULLIVAN.

The opinion of the court was delivered by

SULLIVAN, J.A.D.

Plaintiff Edith T. Soronen, as administratrix and administratrix Ad prosequendum of John G. Soronen, deceased, appeals the involuntary dismissal of her suit brought under the death by wrongful act statute, N.J.S. 2A:31--1 et seq., N.J.S.A.

John G. Soronen (decedent) while a patron in a tavern fell and struck his head against a 'steel lally column' in the tavern and died of a fractured skull several hours later.

Plaintiff's contention is that decedent's fall in the tavern and untimely death were the result of his having been served liquor by the bartender, although decedent was then in an actual and apparent state of intoxication. The corporate owner of the tavern and its principal stockholder, who was bartender in the tavern, were joined as parties defendant.

At the conclusion of plaintiff's presentation of evidence the trial court ruled that, assuming plaintiff's contentions stated an actionable claim, plaintiff had not presented any evidence from which a jury could reasonably find that at the time decedent entered defendant's tavern and was served drinks, his condition of intoxication would have been apparent to the bartender.

Plaintiff's theory of liability is based on Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 75 A.L.R.2d 821 (1959). In that case it was held that a tavern keeper may be chargeable with common law negligence if he serves alcoholic beverages to a visibly intoxicated person, who thereafter because of his intoxicated condition caused injury to a third party. Rappaport was a suit by the third party against the tavern keeper. In its opinion the Supreme Court stated (31 N.J. at page 202, 156 A.2d 1) that when a tavern keeper sells alcoholic beverages to an intoxicated person, the unreasonable risk of harm, not only to the intoxicated person but also to a third party, is readily foreseeable. The court also noted that in furtherance of the legislative policy enunciated in the Alcoholic Beverage Control Act, the Division of Alcoholic Beverage Control had by Regulation 20, Rule 1, provided that no licensee shall serve any alcoholic beverage to any person actually or apparently intoxicated. These restrictions, said the court, were not intended to benefit intoxicated persons alone, but also were intended for the protection of members of the general public.

While Rappaport involved a suit by a member of the general public against the tavern keeper, the opinion therein makes it clear that a tavern keeper owes a duty to a visibly intoxicated person not to serve him alcoholic beverages. As noted in the opinion, the unreasonable risk of harm to the intoxicated person himself is readily foreseeable.

The duty to the visibly intoxicated persons is both common law and statutory. Intoxication is a state of impairment of one's mental and physical faculties due to overindulgence in alcoholic drink. A person in that condition is unable to exercise normal powers of judgment and prudence. He is a potential menace, not only to himself but to others. Common sense requires that a tavern keeper refuse to serve alcoholic drink to such a person. This common law principle is carried into our Alcoholic Beverage Control Act which, through implementing regulations, specifically prohibits a licensee from serving alcoholic drink to a person actually and apparently intoxicated. We conclude that plaintiff's complaint sets forth a justiciable cause of action.

A similar conclusion was reached in Galvin v. Jennings, 289 F.2d 15 (3 Cir.1961). There a patron filed suit against a tavern keeper, charging that he had been served alcoholic beverages while noticeably intoxicated and that after leaving the tavern he became involved in an automobile accident and was injured. All of the events occurred in New Jersey, so that liability was determined by New Jersey Jersey law. The Third Circuit held that the complaint alleged a cause of action under New Jersey law and within the language of the Rappaport case.

Of course, it would be incumbent upon plaintiff to establish by a preponderance of the credible evidence that the drinks served decedent in defendant's tavern were a proximate cause of decedent's fall.

Defendants in their answer, Inter alia, pleaded the defense of contributory negligence on the part of decedent.

At trial the court raised the query as to whether this defense would not be an absolute bar to plaintiff's claim. Since the case will have to be retried for reasons hereinafter stated, we conclude that we should decide the availability of contributory negligence as a defense to this type of action. Such a defense, if valid, would be a bar to plaintiff's cause of action under N.J.S. 2A:31--1, N.J.S.A. Cf. Shutka v. Pennsylvania R.R. Co., 74 N.J.Super. 381, 181 A.2d 400 (App.Div.), certification denied 38 N.J. 183, 183 A.2d 88 (1962).

It is defendants' contention that, absent a situation of an alcoholic, not here present, a person's overindulgence in intoxicating liquor, with resulting drunkenness, is his own voluntary act. If thereafter he falls and injuries himself due to his intoxicated condition, he is necessarily guilty of contributory negligence.

We conclude that contributory negligence is not a defense to the claim here involved. The whole basis of plaintiff's cause of action is that decedent was manifestly intoxicated at the time he was served liquor in defendant's tavern. If so, the bartender knew or should have known that decedent's mental and physical faculties were impaired, that he was in no condition to exercise normal powers of judgment and prudence, and that more liquor would only make him worse.

As heretofore noted, a duty is imposed on a tavern keeper by common law and by statute not to serve liquor to an intoxicated person. This duty arises not only in the public interest but for the protection of the intoxicated person himself. The duty would be rendered meaningless to a large extent if a tavern keeper could avoid responsibility by claiming that it was the person's own fault if he drank too much. It is obvious that in the ordinary sense it is one's own fault if one gets drunk, but the postulation of the tavern owner's duty in such a situation assumes implicitly that there has been such fault on the part of the drinker and nevertheless imposes the protective duty.

In Schelin v. Goldberg, 188 Pa.Super. 341, 146 A.2d 648 (Super.Ct.1958), plaintiff, a patron in defendant's tavern, was served liquor while manifestly intoxicated. Thereafter he got into an altercation in the tavern with another patron and was injured. The court not only held that plaintiff had a common law cause of action against the tavern keeper, but also ruled that he could not be chargeable with contributory negligence in accepting and consuming the liquor. In ruling out contributory negligence as a defense, the court noted section 493 of the Pennsylvania Liquor Code of 1951, 47 P.S. § 4--493, which made it unlawful to sell, furnish or give any liquor to a visibly intoxicated person. Holding that the statute was for the protection of the intoxicated person as well as the general public, the court then applied the principle of law set forth in Restatement of Torts, section 483, which provides that

'If the defendant's negligence consists in the violation of a statute enacted to protect a class of persons from their inability to exercise self-protective care, a member of such class is not barred by his contributory negligence from recovery for bodily harm caused by the violation of such statute.'

We find the Restatement principle applicable to the instant case, since in effect defendants are charged with violation of a regulation promulgated by the Director of Alcoholic Beverage Control under our State Liquor Act. Cino v. Driscoll, 130 N.J.L. 535, 34 A.2d 6 (Sup.Ct.1943). However,...