Steele v. Kerrigan

Decision Date06 March 1997
Citation689 A.2d 685,148 N.J. 1
PartiesTy Paul STEELE, a single man, Plaintiff-Respondent, v. George KERRIGAN, Gregory Sutor, Serena Ulrich, Michael McCool, and John Doe, a fictitious name, operators of Gilhooley's, jointly, severally and in the alternative, Defendants, and Mums, Inc., a New Jersey Corporation, t/a Gilhooley's, Defendant-Appellant.
CourtNew Jersey Supreme Court

Michael J. Palma, Clifton, argued the cause, for appellant (Frese & Palma, attorneys).

James P. Savio, Absecon, argued the cause, for respondent (Savio, Reynolds & Drake, attorneys).

The opinion of the Court was delivered by

STEIN, J.

This appeal provides another opportunity to address the principles that guide apportionment of fault in actions arising under the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, L. 1987, c. 152 (codified at N.J.S.A. 2A:22A-1 to -7) (Licensed Server Liability Act or Act). Plaintiff Steele was assaulted by defendant Kerrigan, an underage patron who was served alcohol by Gilhooley's, a tavern owned by defendant Mums, Inc. (Mums). The central issue concerns the comparison of fault under the Act between the negligent tavern and the assaultive patron. The trial court instructed the jury that once a tavern is found negligent for serving alcohol to an underage patron, the tavern is responsible for the patron's subsequent acts except to the extent that the underage patron's behavior prior to consuming the alcohol contributed to the incident, and the jury apportioned fault accordingly. The Appellate Division affirmed. We reverse and remand for a new trial on liability.

I

Our summary of the underlying facts is based on the trial record. Shortly after midnight on the evening of November 27, 1992, defendant George Kerrigan, along with his friend George Sutor, entered Gilhooley's, a tavern in Margate. Kerrigan was nineteen years old at the time and Sutor was twenty. Kerrigan testified that he drank five to seven beers at Gilhooley's in the one and one half to two hour period that he was in the tavern. Plaintiff Ty Paul Steele was also at Gilhooley's that morning, accompanied by his friend Robbie Belk. Steele and Belk played a game of pool against Kerrigan and Sutor. Without Kerrigan's knowledge, the other players agreed to bet a round of beers on the game. After Steele and Belk won, Sutor left to buy the beers. Steele approached Kerrigan concerning the bet. Steele and Kerrigan exchanged words. Before long, Kerrigan hit Steele in the face with his fist. According to some testimony, Kerrigan was holding a cue ball in his hand. Kerrigan was six feet tall, weighed 185 pounds and had training as a boxer and weight lifter. Steele's hands were at his sides when he was hit.

Steele sustained serious injuries from the blow, including multiple fractures to his facial bones. He was treated at an emergency room that night and required extensive subsequent surgery that left him with permanent metal plates and screws in his face. Because of his injuries, Steele now suffers from misalignment of his teeth, chronic inflammation and congestion of his sinuses and nasal passages, headaches, earaches, ear ringing, and numbness in his gum and lip.

In January 1993, Steele filed suit against Kerrigan and Mums. Plaintiff also named the shareholders and an employee of Mums, individually, but agreed at trial not to pursue his claims against them. The complaint alleged that Kerrigan intentionally or negligently struck Steele and sought punitive as well as compensatory damages against Kerrigan. The complaint also set forth three theories of liability against Mums: (1) common-law liability based on negligent supervision of the tavern premises; (2) statutory liability based on service of alcoholic beverages to Kerrigan when the tavern knew or should have known that Kerrigan was a minor 1; and (3) statutory liability based on service of alcoholic beverages to Kerrigan after Kerrigan was visibly intoxicated. The last claim was dismissed prior to trial on an unopposed motion based on plaintiff's failure to introduce any evidence that Kerrigan appeared intoxicated.

In answer to special interrogatories, the jury found that Kerrigan assaulted Steele and that the assault was a proximate cause of Steele's injuries. The jury also found that Gilhooley's served Kerrigan alcohol, that Gilhooley's knew or should have known that Kerrigan was a minor, that the service of alcohol to Kerrigan proximately caused Steele's injuries, and that Steele's injuries were a foreseeable result of the service of alcohol to Kerrigan. Further, the jury found that Gilhooley's was negligent in supervising the premises and that the negligent supervision was also a proximate cause of the incident. Finally, the jury found that Steele was negligent but that his negligence was not a proximate cause of the incident.

The jury was asked to determine the extent to which each party's tortious conduct contributed to the incident and the resulting injuries. Because Gilhooley's was covered by separate insurance carriers for alcohol-service and for general liability, the verdict form asked for separate fault percentages for the two theories of tavern liability. In instructing the jury on the apportionment of fault between Kerrigan and Mums, the trial court told the jury that, if found negligent in serving Kerrigan, Mums bears full responsibility for Kerrigan's actions after service except to the extent that Kerrigan's entering the bar and requesting that he be served contributed to his inability to appreciate the risk of his behavior after service. That instruction was repeated after the jury asked for clarification on the law concerning the actions of minors after they are served alcohol. The trial court suggested that the jury consider first the responsibility of Kerrigan and then apportion the remaining responsibility between the two theories of liability asserted against Mums.

The jury found that Kerrigan was 30% at fault, and that the tavern was 50% at fault for negligent service of alcohol to a minor and 20% at fault for negligent supervision of the premises. The jury awarded a total of $275,000 in compensatory damages; it also awarded $7,000 in punitive damages against Kerrigan. The trial court entered judgment against Mums and Kerrigan jointly and severally for $275,000 plus prejudgment interest, and ordered that Mums would have a claim for contribution against Kerrigan for any amount paid exceeding 70%. The court also entered judgment against Kerrigan alone for $7,000. Subsequently, Mums, through its alcohol-service liability carrier, settled the claim for negligent service of alcohol for $137,500. Mums, represented by counsel for the general liability carrier, appealed the verdict on the negligent supervision claim.

The most significant of Mums's grounds for appeal was that based on the jury instruction concerning the apportionment of fault. Mums asserted that the trial court's instruction to the jury regarding the relative fault of Kerrigan and Mums on the statutory alcohol-service claim was flawed because it precluded the jury from attributing any fault to Kerrigan for his conduct after consuming alcohol at Gilhooley's. Mums argued that that instruction misinterpreted the law of alcohol-service liability, and also tainted the jury's apportionment of liability relating to negligent supervision.

In an unpublished opinion, the Appellate Division affirmed the judgment below. Regarding the alleged error in jury instructions, the Appellate Division determined that under the Licensed Server Liability Act, as it applies to service of minors, the "statutory wrong is complete upon service." Therefore, the panel reasoned, to attribute fault to the minor only up to the point of service is appropriate. The jury having determined that the service was a proximate cause of the injury, the Appellate Division concluded that there was no fundamental unfairness in the jury instructions.

The Appellate Division also affirmed on the other points raised by Mums. Specifically, the Appellate Division found that sufficient evidence existed for the question of liability for negligent supervision to have gone to the jury and to support the jury verdict on that issue; that it was not plain error for the trial court to allow the jury to hear testimony regarding Kerrigan's net worth before the jury decided the liability issues; that it was not harmful error for the trial court to have refused to instruct the jury that the court would award prejudgment interest; and that the trial court was correct to treat the tavern as one entity for purposes of applying the general statutory provisions for joint and several liability and contribution, see N.J.S.A. 2A:15-5.3, despite the two distinct theories of recovery against the tavern and the exception from joint and several liability of licensed servers provided by the Licensed Server Liability Act, see N.J.S.A. 2A:22A-6.

Mums petitioned this Court for certification on the issue of the jury instruction regarding the apportionment of fault between Kerrigan and Mums and on the issue of the trial court's refusal to instruct on prejudgment interest. We granted certification. 144 N.J. 174, 675 A.2d 1122 (1996).

II
A

We first review the principles governing the apportionment of fault in actions based on assault by one party and negligent supervision of the premises by another. We have held in such cases that the principles of the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.3, require apportionment of fault between intentional and negligent tortfeasors. See Blazovic v. Andrich, 124 N.J. 90, 111-12, 590 A.2d 222 (1991) (requiring fact-finder to apportion relative percentages of fault for injuries to victim of parking lot assault between alleged negligent plaintiff, alleged negligent restaurant and alleged intentional tortfeasors); see also Bonpua v. Fagan, 253 N.J.Super. 475, 479, 602 A.2d 287 (...

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