Young v. Gilbert

• Decision Date: 26 October 1972
• Citation: 121 N.J.Super. 78,296 A.2d 87
• Parties: Sylvia YOUNG and Wilhelmina Mays, Plaintiffs, v. Edith GILBERT et al., Defendants.
• Court: New Jersey Superior Court

Page 78

121 N.J.Super. 78

296 A.2d 87

Sylvia YOUNG and Wilhelmina Mays, Plaintiffs, v. Edith GILBERT et al., Defendants.

Superior Court of New Jersey,

Law Division.

Oct. 26, 1972.

Leslie S. Kohn and Emanuel Needle, Newark, for plaintiffs (Kohn, Kirsch & Needle, Newark, attorneys).

Thomas M. Falkowski, South Orange, for defendants James Zimmerman and Thomas Finland (Gurry & Conlan, South Orange, attorneys).

Jerome S. Lieb, East Orange, for defendant King Pin Alleys (Donald B. Kaufman, East Orange, attorney; Lieb, Teich & Berlin, East Orange, of counsel).

MILMED, J.S.C.

Defendant King Pin Alleys, a bowling establishment, cocktail lounge and snack bar, located in West Nyack, New York, served with summons and a copy of the amended complaint by certified mail, return receipt requested, moved to dismiss this personal injury auto negligence action for lack of jurisdiction In personam and for failure of the complaint to state 'a cause of action' against it. ¹ On the same grounds it also seeks summary judgment dismissing crossclaims against it for indemnity and contribution. Annexed to the notice of motion is the affidavit of Louis Pasternak, vice-president of Ripvan Corporation, a corporation of the State of New York, trading as King Pin Alleys, the gist of which is that the corporation has no business contact or any type of contact with New Jersey and that its sole business is the operation of a bowling alley, restaurant and bar at its only location, I.e., at 20 Virginia Avenue in West Nyack, New York.

By their amended complaint plaintiffs, passengers in an automobile owned and operated by defendant Edith Eileen Gilbert, claim damages from all defendants for injuries sustained by them as a result of a collision between the automobile in which they were riding and an automobile owned by defendant Thomas Finland and operated at the time by defendant James Zimmerman. The collision occurred on Knickerbocker Road in Demarest in Bergen County in this State late on the night of December 12, 1969. In regard to defendants Cedar Tavern Corporation, a New Jersey corporation trading as Frontier Room, and King Pin Alleys, the amended complaint alleges, among other things, that they 'were the owners and operators of certain premises engaged in the selling and serving of alcoholic beverages to the public'; that they

* * * negligently served alcoholic beverages to the defendants, James Zimmerman and Thomas Finland causing them to become intoxicated and become involved in * * * (the) motor vehicle collision * * *;

and that they

* * * served alcoholic beverages to the defendants, James Zimmerman and Thomas Finland, in violation of State and local law and are therefore liable to plaintiffs by reason of strict liability in tort.

The depositions of Louis Pasternak and James Zimmerman were taken upon oral examination and used on the motion. It appears that defendant James Zimmerman, 20 years of age at the time of the collision, was driving defendant Finland's car when it was involved in the collision on the night of December 12, 1969. He and defendant Finland, who was 21 years old at the time, had been together continuously that night from about 7 P.M. They both lived in Bergenfield. Starting at defendant Zimmerman's home, each had two cans of beer. They then proceeded to New York, stopping along the way for about 20 to 30 minutes at the Frontier Room, a tavern, in Dumont in Bergen County, and having while there four or five glasses of beer. They then left for New York, arriving at the King Pin Alleys in West Nyack at about 8 o'clock in the evening.

It further appears from the deposition of defendant Zimmerman that King Pin Alleys was well known in the Bergenfield area; that during the course of the evening on December 12, 1969 about 30 people were in the cocktail lounge, about half of them from the Bergenfield area; and that the 'approximate age group' of those in the cocktail lounge at the time he was there was 'Seventeen through twenty.' While he and defendant Finland were at the cocktail lounge of the King Pin Alleys, each consumed between 12 and 14 bottles of beer, each bottle containing 12 ounces of beer. At this cocktail lounge they also engaged in a 'chug-a-lug' contest, which involved attempting to consume the contents of a bottle of beer by one uninterrupted long drink. Neither had anything to eat at the Frontier Room or at King Pin Alleys, and neither of them was refused service by either of the two bartenders on duty at the cocktail lounge of King Pin Alleys.

At about 11:30 that night when they left King Pin Alleys to go home to Bergenfield, each was intoxicated. Defendant Finland drove the car for about ten minutes to Knickerbocker Road, in Norwood in Bergen County, when he said he was too intoxicated to drive and turned the car over to defendant Zimmerman. After taking over the driving of the car, Zimmerman drove south from Norwood into Demarest, where the accident occurred. He drove 'in excess of a hundred, to a hundred and twenty miles an hour' on Knickerbocker Road, a two-lane roadway, one lane for traffic in each direction, the posted speed limit being 40 miles an hour. He drove the car back and forth from one lane to the other and 'made a three car pass just prior to the accident and almost had a head-on collision' with a car going in the opposite direction. He approached the intersection where the collision occurred traveling at 100 miles an hour.

As previously indicated, defendant King Pin Alleys contends that the court has no In personam jurisdiction over it since it is a New York corporation and has no business contacts with New Jersey. Mr. Pasternak, vice-president of Ripvan Corporation trading as King Pin Alleys, resides in Fair Lawn in Bergen County in this State. He testified that King Pin Alleys has only one business location and that is at 20 Virginia Avenue in West Nyack, New York, and that he is the accountant for the business and also manages its day-to-day operations. Alcoholic beverages are served on the premises to anyone over 18 years of age. Some of the supplies for the bar are purchased from an establishment in Fort Lee in Bergen County. Life insurance coverage for the employees and officers of the corporation is provided by an insurance company in Newark. King Pin Alleys does no advertising for business in New Jersey. Pasternak's residence in Fair Lawn is 22 miles from the King Pin Alleys in West Nyack, which is five to seven miles from the New Jersey State line. He has observed New Jersey cars parked in the parking lot of King Pin Alleys. He maintains, however, that the number was small since their business is dependent on local trade.

So much for the factual setting of the motion now before the court. At the outset, in dealing with the legal sufficiency of the amended complaint, plaintiffs are 'entitled to a liberal interpretation of its contents and to the benefits of all of its allegations and the most favorable inferences which may reasonably be drawn from them.' Rappaport v. Nichols, 31 N.J. 188, 193, 156 A.2d 1, 4 (1959). Applying this well settled principle to the allegations of the amended complaint in this action, it is clear that this pleading, as against the defendant King Pin Alleys, sets forth, under the substantive law of this State, a common law action grounded on negligence. Id.

As previously indicated, the amended complaint alleges, among other things, that defendant King Pin Alleys owned and operated premises engaged in selling and serving alcoholic beverages to the public and that it negligently served alcoholic beverages to the defendants Zimmerman and Finland, causing them to become intoxicated and involved in the motor vehicle collision which is the subject of this litigation. Accordingly, the amended complaint as against King Pin Alleys sets forth a claim upon which relief can be granted. It follows that if this defendant is amenable to suit in this State, the determination of that claim must await a plenary trial. See Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74, 110 A.2d 24 (1954).

Both in New Jersey and in New York the sale of alcoholic beverages by a tavern keeper to a person 'actually or apparently' intoxicated is unlawful. See Rule 1 of State Regulation No. 20, Division of Alcoholic Beverage Control; Division of Alcoholic Beverage Control in the Department of Law and Public Safety v. Bruce Zane Inc., 99 N.J.Super. 196, 198, 239 A.id 28 (App.Div.1968); and Alcoholic Beverage Control Law (New York), § 65(2), 3 McKinney's Consolidated Laws of New York Annotated, c. 3--B, Alcoholic Beverage Control Law, § 65(2) at 89. In this State, if the tavern keeper knows, or should know, that the patron is intoxicated, his service to him of alcoholic beverages may also constitute common law negligence. In such a situation the unreasonable risk of harm, not only to 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 common place and accidents resulting from drinking are so frequent.' Rappaport v. Nichols, Supra, 31 N.J. at 202, 156 A.2d at 8. While under these circumstances liability for damages is, in this State, grounded in common law negligence, liability for damages in New York proceeds from its version of the 'Dram Shop Act,' General Obligations Law, § 11--101, 23A McKinney's Consolidated Laws of New York Annotated, c. 24--A, General Obligations Law, § 11--101 at 538. Paragraph 1 of that statute reads as follows:

Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed...