Thompson v. Victor's Liquor Store, Inc.

• Decision Date: 26 March 1987
• Citation: 523 A.2d 269,216 N.J.Super. 202
• Parties: Ronald B. THOMPSON and Eva N. Thompson, Plaintiffs-Appellants, v. VICTOR'S LIQUOR STORE, INC., a New Jersey Corp. t/a Victor's Liquor Store, John Doe, (agent, employee, and/or servant of Victor's Liquor Store) and John Roe, (agent, employee, supervisor and/or manager of Victor's Liquor Store, Inc.) Jointly, Severally, and/or in the Alternative, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 202

216 N.J.Super. 202

523 A.2d 269

Ronald B. THOMPSON and Eva N. Thompson, Plaintiffs-Appellants, v. VICTOR'S LIQUOR STORE, INC., a New Jersey Corp. t/a Victor's Liquor Store, John Doe, (agent, employee, and/or servant of Victor's Liquor Store) and John Roe, (agent, employee supervisor and/or manager of Victor's Liquor Store, Inc.) Jointly, Severally, and/or in the Alternative, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Submitted Feb. 19, 1987.

Decided March 26, 1987.

Falciani & Fletcher, Woodbury, for plaintiffs-appellants (Angelo John Falciani, on the brief).

Horn, Kaplan, Goldberg, Gorny & Daniels, Atlantic City, for defendants-respondents (Richard S. Ranieri, on the brief).

Before Judges FURMAN, DREIER and STERN.

The opinion of the court was delivered by

DREIER, J.A.D.

Plaintiffs Ronald B. Thompson, a minor, and Eva N. Thompson were the driver and owner, respectively, of an automobile involved in a one car accident. They appeal from a summary judgment granted by the Law Division dismissing their claims against defendant Victor's Liquor Store Inc., an employee of which sold liquor and beer to James Mullins, also a minor.

The facts of this case are relatively simple, and will be viewed giving plaintiffs the benefit of all facts reasonably inferable from the affidavits and other proofs submitted to the trial judge. R. 4:46-2; 4:46-5(a); Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 73-75, 110 A.2d 24 (1954). On September 13, 1983 at approximately 11:00 a.m., plaintiff Ronald B. Thompson and two other minor friends, James Mullins and John Platanella, drove to Victor's Liquor Store in Mays Landing in a car driven by Mullins. They parked on the side of the building out of the view of any occupant of the store. Mullins, then 18 (the legal age for the purchase or consumption of alcoholic beverages was then 19), entered the store and purchased one pint of Yukon Jack Whiskey and two six-packs of 12-ounce cans of Old Milwaukee beer ¹. Mullins stated that the person who served him was an elderly woman and that he was not asked for proof of his age. The boys then drove to a wooded area and started drinking. They split the whiskey three ways and drank some of the beer. They then went to the apartment of Platanella's brother, who was not at home, and continued to drink. Later Mullins left the other two boys and went home.

At approximately 3 p.m., between three and five hours after the purchase, plaintiff, with Platanella and Platanella's girlfriend as passengers in the front seat of his mother's car, drove to Absecon to speak to plaintiff's employer. According to the depositions of all three occupants, it was raining very hard and plaintiff, travelling at between 40 and 50 miles per hour attempted to pass a vehicle. When returning to the right lane he allegedly hit a mud puddle and, notwithstanding plaintiff's application of his brakes and attempt to pull to the left, his car continued to travel right and collided with a brick wall. At the time of the accident plaintiff was wearing an air cast on his right ankle for an injury he had sustained the previous week while playing basketball. After the accident there was no breathalyzer or other blood alcohol test performed.

Plaintiff maintains that at the time of the accident he was still intoxicated from the one-third of a pint of whiskey and two to three 12-ounce cans of beer he had consumed earlier ². The trial judge granted summary judgment to defendants on the basis that liability in this case would exceed that authorized by Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959), in that it was not reasonably foreseeable that an underage purchaser of liquor would "give it to somebody else who in turn is going to get drunk and in turn is going to drive a car and go off the road." He viewed the theory of liability advanced by plaintiff to be one of "strict liability for the ultimate result ... of the sale of liquor if that sale happens to be illegal." We disagree with this disposition as a matter of summary judgment and reverse.

There is no question that Rappaport v. Nichols, supra, as well as the Alcoholic Beverage Control regulation, N.J.A.C. 13:2-23.1(a) prohibiting direct and indirect sales to minors, ³ provide a basis for liability had Mullins been the driver of the car at the time of the accident. We also observe that the decided cases in this State have all involved the sale of drinks at a bar or tavern or at a private party, and, therefore, an issue may be raised whether the same rule should apply to the sale of liquor or beer from a package store. A sale to the minor is prohibited under all circumstances both by the Rappaport rule and N.J.A.C. 13:2-23.1(a). Therefore, a sale to a minor by a package-goods store or by the drink at a tavern should be subject to the same rule. Defendant does not suggest otherwise.

This case directly and principally raises the issue of foreseeability. We view the matter not as one of liability or exoneration depending solely upon who purchased the liquor and who drove the car. Rather we see possible responsibility as a continuum starting with evident responsibility and ending with a lack thereof. If Mullins purchased the beverages, immediately drank them to a state of intoxication and then drove the car, defendant's liability would be a foregone conclusion. If the beverages were purchased by Mullins, but the store owner could see that there were young people sitting in Mullins' car and then the beverages were immediately consumed by them with one of the other occupants driving, it clearly would not be unreasonable for a jury to determine that it was foreseeable that the purchaser would share the beverages with his friends. In effect, the purchase would have been by the group through Mullins, its agent ⁴. The administrative regulation prohibits not only "direct" but also "indirect" sales. N.J.A.C. 13:2-23.1. Other factors in the foreseeability analysis are the quantity of alcohol purchased, the time of day, statements made at the time of purchase, and any other relevant circumstances of the sale.

At some point, however, the chain of proximate causation is broken, for it is no longer reasonably foreseeable that the accident would occur without the intervention of an unanticipated act of a third party; nor is the situation any longer one of "the natural and probable consequences" of the original act. See Menth v. Breeze Corp. Inc., 4 N.J. 428, 441-442, 73 A.2d 183 (1950). Cf. Jensen v. Schooley's Mountain Inn, Inc., 216 N.J.Super. 79, 522 A.2d 1043 (App.Div.1987); Griesenbeck by Kuttner v. Walker, 199 N.J.Super. 132, 488 A.2d 1038 (App.Div.1985), certif. den. 101 N.J. 264, 501 A.2d 932 (1985). The actions of the third party can become sufficiently divorced from the initial sale of the beverage that legal responsibility should no longer be assessed. Where reasonable persons could differ, however, the issue is not one to be determined by the court; it must be left for the jury. R. 4:46-2; Judson v. Peoples Bank & Trust Co. of Westfield, supra, 17 N.J. at 74-75, 110 A.2d 24.

On remand, if defendant is to be held liable the jury must determine that the seller could reasonably foresee that the purchase by Mullins was for the consumption by one or more other minors and that there was no intervening efficient cause of the accident. But, with respect to Mullins' act of sharing the beverages, the possibility of such concurrent negligence does not absolve the package store if its conduct was also culpable ⁵. As noted in Menth v. Breeze Corp. Inc., supra, and as quoted in Rappaport v. Nichols, 31 N.J. at 204-205, 156 A.2d 1:

A tort-feasor is not relieved from liability for his negligence by the intervention of the acts of third persons, including the act of a child, if those acts were reasonably foreseeable. The theory being that the original negligence continues and operates contemporaneously with an intervening act which might reasonably have been anticipated so that the negligence can be regarded as a concurrent cause of the injury inflicted.

We do not suggest that defendant can be strictly liable for the effect of the beverages wherever or whenever they may be consumed once they are sold to a minor. There must be some reasonable limitations placed upon such responsibility. Jensen v. Schooley's Mountain Inn, Inc., 216 N.J.Super. at 82, 522 A.2d 1043. In the case before us and at this early stage in the proceedings we initially discern the added element of the quantity of beverages purchased. Certainly the pint of whiskey and two six-packs of beer were not a half gallon and a keg, which might have strongly indicated a teen party. But neither were they such a small quantity to indicate solitary consumption. There is, however, an additional inference which can be drawn from the immediate consumption of the beer, namely that it was taken from the seller's refrigerator, not the shelf; few people drink warm beer. Therefore, a jury could find that the seller should have reasonably anticipated that a purchase of 12 cold cans of beer and a pint of whiskey by a single young person would be for the immediate consumption by a group of young persons, rather than by only the purchaser. In short, there were sufficient factual issues arising from the circumstances of this case to warrant a jury's determination of the reasonable foreseeability of Mullins' immediate sharing of the beverages with other underage drinkers, including plaintiff. We reiterate that we reach this conclusion not from the fact of sale alone, but upon the need for a jury to appraise the totality of the circumstances.

The decision we reach today recognizing possible liability is in accordance with the weight of out-of-state authority. Compare Floyd v. Bartley, 727 P.2d 1109 (Colo.1986); Reber v. Commonwealth, 516 A 2d 440 (Pa. Commonw. Ct. 1986); Morris v. Farley Enterprises Inc., 661 P.2d 167 (Alaska 1983); ...