Soronen v. Olde Milford Inn, Inc.

• Citation: 46 N.J. 582,218 A.2d 630
• Decision Date: 04 April 1966
• Docket Number: No. A--89,A--89
• Parties: Edith T. SORONEN, as administratrix and administratrix and prosequendum of John G. Soronen, deceased, Plaintiff-Respondent and Cross-Appellant, v. OLDE MILFORD INN, INC., a New Jersey corporation, and James Frel, Defendants-Appellants and Cross-Respondents.
• Court: United States State Supreme Court (New Jersey)

Page 582

46 N.J. 582

218 A.2d 630

Edith T. SORONEN, as administratrix and administratrix and prosequendum of John G. Soronen, deceased Plaintiff-Respondent and Cross-Appellant, v. OLDE MILFORD INN, INC., a New Jersey corporation, and James Frel, Defendants-Appellants and Cross-Respondents.

No. A--89.

Supreme Court of New Jersey.

Argued Feb. 7, 1966.

Decided April 4, 1966.

H. Curtis Meanor, Jersey City, for defendants-appellants and cross-respondents (Lamb, Blake, Hutchinson & Dunne, Jersey City, attorneys).

William V. Breslin, Englewood, for plaintiff-respondent and cross-appellant (Fornabai & Zimmerman, Fort Lee, attorneys, Thomas J. Spinello, Paterson, on the brief).

The opinion of the court was delivered by

JACOBS, J.

The defendants appealed to the Appellate Division from a judgment entered in the plaintiff's favor pursuant to a verdict of the jury. The plaintiff cross-appealed seeking to have interest added to the judgment from the date of the accrual of her cause of action. We certified before argument in the Appellate Division.

The decedent John G. Soronen was seen in the Manor Tavern, New Milford, at 8:30 A.M. on Monday, October 30, 1961, and was seen drinking at home later that morning. At about noon he was seen at a bus stop near the Manor Tavern and shortly after 1 P.M. he entered the Olde Milford Inn at 133 Center Street, New Milford. While there he was served at the bar with two shots of whisky and three beers. At about 3 P.M. he rose from the stool on which he was sitting and took several steps before he fell striking his head against a steel column. He died of a fractured skull at about 11 P.M.

Asserting that the defendants Olde Milford Inn, Inc. and James Frei had negligently served alcoholic beverages to the decedent while he was visibly intoxicated and that their negligent conduct had proximately caused or contributed to his death, the decedent's widow instituted an action for wrongful death under N.J.S. 2A:31--1 et seq., N.J.S.A. At the close of the plaintiff's case, the trial judge ruled that there was no evidence from which a jury could reasonably find that when the liquor was served the bartender knew or should have known that the decedent was intoxicated. The action was dismissed and the plaintiff appealed to the Appellate Division which reversed in an opinion reported at 84 N.J.Super. 372, 202 A.2d 208 (1964). After reviewing the testimony, the Appellate Division concluded that there was enough evidence to go to the jury. 84 N.J.Super., at pp. 378--381, 202 A.2d 208. It rejected the defendants' contention that, even if it be assumed they were negligent, there could be no recovery by the plaintiff because of the decedent's contributory negligence. It held that contributory negligence was not available as a defense to a liquor licensee who has sold alcoholic beverages to a visibly intoxicated person and has thereby proximately caused or contributed to his accidental death. 84 N.J.Super., at pp. 377--378, 202 A.2d 208.

At the retrial the plaintiff again presented her evidence to establish that the decedent was visibly intoxicated when served by Frei. Officer Rittgers of the New Milford Police Department testified that he arrived at the Olde Milford Inn at 3:04 P.M. in response to a call. He found the decedent lying on the taven floor bleeding profusely. He called for a doctor and the police surgeon, Dr. Frieman, arrived in about five minutes. Dr. Frieman testified that when he approached Soronen 'there was a very, very profuse, profound odor of alcohol from him.' He examined his reflexes and found they were 'just about nonexistent.' He expressed the opinion that he was in a state of acute alcoholism and had been so for at least two hours. Dr. Greenfield, the assistant county physician who examined Soronen's body about 8 to 10 hours after death, testified that he noticed a 'strong odor of alcohol.' This caused him to list 'acute alcoholism' as a contributory factor although he testified that the cause of death was 'a skull fracture with intracranial hemorrhage.'

Dr. Effron, who testified for the defendants, had been called in by Dr. Frieman as a consultant and had examined Soronen at about 8:15 P.M. He stated that he did not notice any odor of alcohol or find any 'evidence of any complications due to acute alcoholism.' Dr. Flicker, who also testified for the defendants, expressed the opinion that the head injuries sustained by Soronen at the time of his fall accounted for the lack of reflexes. The defendant Frei and several regular patrons of the Olde Milford Inn testified that when the decedent was served he did not appear to be intoxicated. Frei's back was toward the bar when the decedent fell. He heard the fall and turned around but remained behind the bar. Neither he nor any of the patrons went near the fallen man. He testified that although he alone was in charge of the premises, it was not his 'place to go over there.' One of the patrons, Mr. Flanagan, called the police. He sat next to Soronen at the bar but had no conversation with him although he heard him 'mumbling.'

We are satisfied that there was legally sufficient evidence from which a jury could find that Soronen was visibly intoxicated when he was served by Frei. The time, the place, the strange silent behavior of those about when Soronen fell, and the testimony of Doctors Frieman and Greenfield gave rise to inferences which the jury was at liberty to accept in negation of testimony by Frei that Soronen 'looked all right' to him. Frei's duty not to serve Soronen while he was intoxicated was firmly embodied in a long-standing regulation of the Division of Alcoholic Beverage Control which explicitly prohibits the service on licensed premises of alcoholic beverages to anyone who is 'actually or apparently intoxicated.' See Rappaport v. Nichols, 31 N.J. 188, 202, 156 A.2d 1, 75 A.L.R.2d 821 (1959). If despite the regulation, Frei wrongfully served Soronen though he then knew or should have known of Soronen's intoxicated condition, Frei and the Olde Milford Inn subjected themselves to common law negligence claims for damages proximately resulting from the wrongful service. See Rappaport v. Nichols, supra.

In Rappaport a minor was served in several taverns while he was intoxicated. After leaving the last tavern, he drove his car and collided with another car driven by Rappaport who died as a result of injuries received in the collision. Rappaport's widow sued the taverns, alleging that their service of alcoholic beverages to the minor while intoxicated constituted negligent conduct which had proximately caused or contributed to the death of her husband. In holding that she had a cause of action we applied traditional negligence principles, rejecting authorities elsewhere which had, on one ground or other, immunized tavern keepers from comparable common law negligence claims. In the course of our opinion we expressed views which are readily adaptable to the circumstances presented here. Thus we found that the departmental regulation against the sale of alcoholic beverages to anyone actually or apparently intoxicated was intended to protect both the intoxicated person and the general public. 31 N.J., at p. 202, 156 A.2d 1; see Galvin v. Jennings, 289 F.2d 15, 17 (3 Cir. 1961). We noted that a tavern keeper who serves alcoholic beverages when he knows or should know that the patron is intoxicated, may properly be found to have created an unreasonable risk of harm and to have thus engaged in negligent conduct on which a common law claim for damages may be grounded. 31 N.J., at pp. 202--203, 156 A.2d 1. And we noted further that the tavern keeper, as tortfeasor, may be held answerable for the injuries which result in the ordinary course of events from his negligent conduct and that it is sufficient if his conduct was a substantial factor in bringing about the injuries. 31 N.J., at p. 203, 156 A.2d 1.

Although they have not attacked it directly, the defendants have submitted an extended presentation in which they conclude that 'except for Pennsylvania decisions, Rappaport seems to stand alone within American jurisdictions as a common law principle.' The Pennsylvania decisions are Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965), Jardine v. Upper Darby Lodge No. 1973, Inc., 413 Pa. 626, 198 A.2d 550 (1964), Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963), and Schelin v. Goldberg, 188 Pa.Super. 341, 146 A.2d 648 (1958). Waynick v. Chicago's Last Department Store, 269 F.2d 322, 77 A.L.R.2d 1260 (7 Cir.1959), certiorari denied 362 U.S. 903, 80 S.Ct. 611, 4 L.Ed.2d 554 (1960), cited in Rappaport (31 N.J. at 198, 156 A.2d 1), may still be viewed as lending support for recognition of the common law principle in jurisdictions having no dram shop legislation, despite the defendants' citation of Jones v. Bourrie, 369 Mich. 473, 120 N.W.2d 236 (1963). Further support may readily be gathered from the recent opinions rendered in Colligan v. Cousar, 38 Ill.App.2d 392, 187 N.E.2d 292, 301 (1963), Mitchell v. Ketner, Tenn.App., 393 S.W.2d 755, 758 (1964), Ramsey v. Anctil, 106 N.H. 375, 211 A.2d 900, 901 (1965), and Berkeley v. Park, 47 Misc.2d 381, 262 N.Y.S.2d 290, 293 (1965). The law review comments have been substantially unanimous in their support. See Oberst, 'Torts', 36 N.Y.U.L.Rev. 416, 423 (1965); 49 Minn.L.Rev. 1154 (1965); 60 Colum.L.Rev. 554 (1960); 58 Mich.L.Rev. 1075 (1960); 48 Geo.L.J. 791 (1960); 48 Ky.L.J. 611 (1960); 13 Vand.L.Rev. 1308 (1960); 5 Vill.L.Rev. 694 (1960); cf. 12 Baylor L.Rev. 388 (1960); 14 Rutgers L.Rev. 618 (1960). Nothing which has occurred since Rappaport was handed down in 1959 causes us to question its principles or its policy; we now reaffirm it and take this occasion to reiterate the thoughts which were expressed in its concluding paragraph and are clearly pertinent here:

'Although it is evident that the strict civil liability prevailing by statute in many of the states is a...