On September 3, 2003, 19-year-old Frederick Nesbitt was underaged at “Wing Night” at the C View Inn in Cape May, New Jersey, so the waitress at the bar only served him soda while his companions drank pitchers of beer. (His 21-year-old companion James Hamby had a suspended license for drunk driving.) But Nesbitt had been drinking rum and drinking beer with the others before they got to the bar; and Hamby spiked Nesbitt’s drinks with rum under the table at the bar, which was presumably busy serving sixty other people and didn’t notice. So Nesbitt had a 0.199 blood-alcohol level when, speeding, he “lost control [of his car], careening back and forth across the road before striking a guard rail and landing on the driver’s side. He was thrown out the rear window while Hamby, who was found in the car, was pronounced dead at the scene.” Nesbitt is serving a five-year prison term for vehicular homicide, but Hamby’s estate is suing the bar. (It settled with Nesbitt for his $50,000 insurance coverage.)
The lower court threw out the case since the bar didn’t serve Nesbitt any alcohol, but a New Jersey appellate court ruled that the bar has a duty to arrange transportation for anyone who walks in who appears to be drunk “regardless of whether Nesbitt’s intoxication resulted from the service of alcohol by the inn or from other causes” (notwithstanding the absence of such a cause of action under the dramshop statute) so the bar will now have to hope the jury credits the witnesses who say that Nesbitt didn’t appear drunk. (Mary Pat Gallagher, “N.J. Court: Bar May Be Liable for Fatal Crash Even if It Didn’t Serve Patron Alcohol”, NJ Law J, Mar. 24; Tom Hester & Abby Green, “Court adds to taverns’ duty toward safe driving”, Newark Star-Ledger, Mar. 21; Insurance Journal, Mar. 21; AP, Mar. 20; NJLawman.com message board).
If your drinks appear more expensive in New Jersey, it’s because you’re paying for insurance for drunk drivers who might stop at the bar to use the restroom. Of course, why stop at bars? Why not convenience stores?
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Arranging transportation for Mr. Hambry might have been more difficult in the real world than in the world of the Appellate judges.
“If your drinks appear more expensive in New Jersey, it’s because you’re paying for insurance for drunk drivers who might stop at the bar to use the restroom.”
This remark seems empiricism-free.
In any event, nobody won a jury award here because a driver stopped to use the restroom. Nobody, in fact, has won a jury award at all. The Appellate Division has merely held there is sufficient evidence for a claim to go to trial. That claim, just to be perfectly clear, is not a claim by a patron to whom the bar served no alcohol. It is a claim by the estate of a wildly intoxicated patron to whom the bar did serve prodigious quantities of alcohol, arising from the bar’s failure to arrange safe transportation for him, and from his resulting death.
According to the Appellate Division’s opinion’s recital of the evidence, Nesbitt (the underage patron, and the driver in the fatal crash) was seated at a table where his friends (including Hamby, the plaintiff, who was killed in the crash) were drinking. Their server was a young woman who graduated high school with Nesbitt. She served the group attentively because it customarily left large tips. Their table was two to six feet from the bar, and the bartenders had an unobstructed view of it. There was also an unobstructed view from the waitress station. It was a Wednesday evening and the bar was not particularly busy — or noisy, except for Nesbitt’s group.
The group as a whole consumed at least “three or four” pitchers of beer, as well as other alcoholic beverages, over a 2.5 hour span. (Such was the server’s estimate. Nesbitt and his companions testified to the consumption of substantially more. Curiously, the opinion does not mention the amount of the tab.) During their time at the bar, members of the group were conspicuously intoxicated. Hamby himself was so far gone as to place his penis on the table to show the server his piercing. Nesbitt was loud and boisterous and was using foul language, to the point where even his intoxicated companions were concerned about his breach of decorum. Based on Nesbitt’s blood alcohol level of .199 at the ER, an expert agreed that Nesbitt would have been showing obvious signs of intoxication at the bar.
On those facts, the Appellate Division’s opinion does two things. First, it holds the bar potentially liable under New Jersey’s Dram Shop Act if, despite Hamby’s obvious intoxication, the bar made no reasonable effort to call a cab or otherwise ensure that Hamby was driven home by a sober person. A commenter to this post suggests that only a cloistered appellate judge could imagine that summoning a taxi for Hamby was practicable at 9:30 p.m. on a Wednesday evening. I do not know how much time the commenter has spent in Cape May. For that matter, I don’t know how much time he may have spent with appellate judges (some of whom have been known to frequent bars, and many of whom may have arranged for cabs at 9:30 p.m.). However that may be, the opinion says that the bar’s usual practice was to call a cab for intoxicated patrons, so presumably this was feasible, and apparently the bar itself saw it as a reasonable step. In the alternative, the bar would sometimes have the patron call some sober friend. Had Nesbitt appeared sober, his service as a chauffeur might have been an acceptable alternative, the court’s opinion acknowledges. But there is substantial record evidence that in fact Nesbitt was seriously and visibly intoxicated. In any event, there is no record evidence, so far as the opinion discloses, that the bar had any idea who might drive Hamby away, or that the bar bothered to try to find out.
In sum, potential liability on the Dram Shop claim would seem a straightforward, garden-variety application of the statute.
The second thing the opinion does is to hold that the Dram Shop Act does not preempt Hamby’s alternative common law claim for negligent supervision. In the case at hand, that action was brought by a patron to whom the bar did serve alcohol. Admittedly, however, the opinion also speaks of a common law duty running to Nesbitt, to exercise reasonable care for his safety (in addition to that of his companions). To me, the court’s remarks on that score (the duty to Nesbitt) look like dictum, because no claim by Nesbitt himself was at issue. But even if they are construed as a holding, those remarks do not sound wildly improvident to me.
Quite the contrary, in fact. As the opinion correctly notes, bar personnel have a special expertise in detecting intoxication. They also profit from producing it. To be sure, I can imagine arguments for not recognizing bar liability at all. But once any duty is recognized, it would seem counterproductive, to me, to allow the bar to argue to the trier of fact that its own alcohol was not the proximate cause of the inebriation. For one thing, that would simply incentivize bad transactional record-keeping, in an often cash-oriented line of commerce where record-keeping is already highly imperfect. For another, it’s probably actually easier for a bar to monitor every customer’s intoxication than it would be for the bar to parse its monitoring by the fact or quantity of alcohol consumption. For still another, and as already noted, the reason to impose a duty at all is largely that the bartenders and servers are better able than inebriated patrons to gauge the patrons’ state of intoxication (which, to repeat, bars are in the profit-making business of generating). Bar-hopping being a fact of life, it doesn’t seem unreasonable to extend that level of care to every patron, whether the patron actually consumes alcohol at the last bar or not. Not without a shudder, I can still remember my law-school bar-hopping experiences, if only somewhat foggily, and it was often at the last bar that we decided we really didn’t need another drink, so much as we needed a sandwich and a cup of coffee. What motivated the trek to that last bar, nevertheless, was the promise of more alcohol.
That, according to the opinion, is also what motivated the visit to the bar here. “We went there for one reason,” one of Nesbitt’s companions testified, “and that was to drink.”
Defending against litigation is a very real cost, whether or not this suit eventually succeeds. Nothing in the appellate court’s opinion limits its holding to these facts. DWI limits in New Jersey are 0.08%, which is just a couple of drinks.
And simple fairness suggests that Hamby’s estate doesn’t get to sue the bar when it was Hamby who got Nesbitt drunk and chose to drive home with him.
If the legislature wants to outlaw alcohol and drive bars out of business, then it should do so, rather than delegating the task to trial lawyers. Nothing in the dram shop law suggests that the New Jersey legislature wished to go this far: that was the doing of the judiciary, violating the separation of powers to create a new cause of action.
“Nothing in the dram shop law suggests that the New Jersey legislature wished to go this far.”
The plain language of section 2A:22A-5 would seem to cover this:
Your objection, Ted, may be that you don’t see Hamby’s poor choice of chauffeur, and his consequent death, as being proximately caused by, or a foreseeable result of, his inebriation. But if reasonable persons might see those issues differently from you, as I think they might on these facts, then the Dram Shop claim is squarely within the plain statutory language.
As for the suggestion that trial lawyers want to outlaw alcohol . . . well, I know some trial lawyers, and I’d sooner expect them to propose that its liberal consumption be made legally mandatory.
Peter, You are better than this.
“A commenter to this post suggests that only a cloistered appellate judge could imagine that summoning a taxi for Hamby was practicable at 9:30 p.m. on a Wednesday evening.”
The practicality is not in dialing a taxi service, it is in dealing with the foreseeable mayhem of challenging ruffians (The wonderful movie “Road House” applies here.)
You also make the post hoc .. error:
“Your objection, Ted, may be that you don’t see Hamby’s poor choice of chauffeur, and his consequent death, as being proximately caused by, or a foreseeable result of, his inebriation.”
I suspect that Mr. Nesbitt’s driving behavior was known to all in the group. Mr. Hambrey deliberately made matters worse by spiking Mr. Nesbitt’s drinks. It seems to me that Mr. Hambrey was a man of poor judgment, drunk or sober.
Darwinism at its best.
This remark seems empiricism-free.
The legal discussion aside (I’m not qualified to participate…), it amazes me that people are still calling for empirical proof that people respond to incentives. Incredible.
(2) The injury or damage was proximately caused by the negligent service of alcoholic beverages; and
(3) The injury or damage was a foreseeable consequence of the negligent service of alcoholic beverages.
Since the impaired driver was Mr. Nesbitt, who the bar apparently did not serve, it seems pretty obvious that the proximate cause was not negligent service of alcoholic beverages.
Or are we going to say that when serving a customer, the bar could reasonably foresee that he might arrange for a ride with an impaired driver?
Mr Nessbit seems the clear and primary cause of this tragedy and should be made to shoulder the burden.
William Nuesslein: I genuinely didn’t understand that your point involved a possible confrontation with the drunken patrons. It’s a good point, and I would impose no liability if the bar backed off after an offer to arrange transportation was met with hostility. At that point, I might also encourage the bar to call the police.
Joe Bingham: The general proposition that people respond to incentives doesn’t call for empirical validation. But the claim that this decision will increase drink prices in New Jersey sounded like a claim about actual, observable phenomena in the economic world. I don’t think the latter claim would be regarded, even by economists, as an a priori truth.
I’m quite confident this decision will increase insurance costs for bars, since they no longer have to serve alcohol to a customer to be held liable, which, in the long run, will increase drink prices ceteris paribus.
Just surfing for “Deep Pockets” law suits and stumbled here.
What a terrific case. Once again lawyers, in persuit of a buck, shift the blame from the guilty to someone else who might have deeper pockets.
What I’d like to know is how to file a class-action suit against all lawyers who shift the blame to deeper pockets just because that is where the money is.
Will individual responsibility for one’s actions ever return???