Failure To Supervise Drunken Patron May Make Bar Liable for Fatal Crash
Mary Pat Gallagher
Thursday, March 20, 2008
New Jersey Law Journal


A tavern may be liable for negligence if it makes no effort to keep a visibly drunken patron safe, even though his drinking may have been done elsewhere, a New Jersey appeals court held Thursday in a case of first impression.

The ruling, in Bauer v. Nesbitt, A-2343-06, means that bar owner can be sued for failing to prevent a patron from getting into a car driven by another who was visibly intoxicated and who thereafter caused the passenger's death.

The victim, James Hamby, 21, and his 19-year-old friend, Frederick Nesbitt III, had been drinking heavily before arriving at the C View Inn in Cape May. They ordered only Cokes, but there was testimony that Hamby spiked Nesbitt’s sodas with rum under the table to the point where Nesbitt became visibly intoxicated.

If the inn’s employees should have recognized that Hamby was drunk, the inn “had a duty to protect him from foreseeable injury as the result of an automobile accident by insuring that he did not drive and that he did not ride as a passenger with a patron who was similarly impaired,” wrote Appellate Division Judge Edith Payne.

The panel also found a direct duty to Nesbitt, who is serving a five-year prison term for negligent vehicular homicide. Though the inn served him no alcohol, if it knew or should have known he was impaired, it had a duty to protect him, too, by keeping him from driving.

The judges reversed a trial court's dismissal of the case on summary judgment. Superior Court Judge Joseph Visalli found New Jersey's Dram Shop Act, N.J.S.A. 2A:22A-1 to -7, did not apply because the inn did not serve Nesbitt alcohol. He also found that the act pre-empted any common law cause of action involving the service of alcohol.

But the Appellate Division found no pre-emption. “If, as the evidence we have recounted permits a jury to conclude, Nesbitt was visibly intoxicated while at the C View Inn, then a duty of reasonable care for his safety arose, regardless of whether Nesbitt’s intoxication resulted from the service of alcohol by the inn or from other causes,” wrote Payne, joined by Judges Francine Axelrad and Paulette Sapp-Peterson.

That duty “included a duty to protect Nesbitt from the foreseeable risk of injury to himself and others from an automobile accident by insuring that Nesbitt did not drive while in an intoxicated state.”

Payne noted that there was no precedent for a common law negligence claim against a drinking establishment involving the service of liquor, though plaintiffs have recovered for negligent supervision resulting in assault and rape.

But, she added, “we find nothing in prior decisions that would limit the availability of a cause of action for negligent supervision to these contexts, and we decline to do so.”

Nesbitt was driving north on the Garden State Parkway on the way home from the inn, with Hamby in the passenger seat, when he lost control, 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, whose blood-alcohol was .199 percent, testified at his deposition that he was drunk when he left the inn and should not have been driving.

There was testimony that the pair began drinking before they arrived at the inn, picking up a 12- or 18-pack of beer and a bottle of rum and heading to the home of a friend where Nesbitt drank rum.

They then met three friends at the inn and all but the underage Nesbitt downed mug after mug of beer during the next two-and- one-half hours at a table described as only a few feet from the bar and in plain view of the bartender.

There was no evidence Nesbitt was served alcohol or drank his friends’ beer but he admitted that Hamby spiked two of his Cokes surreptitiously, said the panel. Hamby was allegedly so drunk that he exposed his penis and put it on the table.

One of the other friends said Nesbitt did not appear drunk but another described him as using foul language and speaking so loudly he was almost yelling.

Payne pointed out there was no indication the inn tried to cut off the flow of alcohol or call a cab for any of the group when they left, despite the waitress’s testimony that it had done so for other customers on prior occasions.

“This may be the case where bad facts make bad law,” says Terence King, who represents the inn. “Hamby’s estate is suing because he served [liquor to] his designated driver and got himself killed.”

The ruling breaks with prior case law, says King, of Lavallette. “The court is trying to say it hasn’t established a new precedent, but I guarantee you every defense lawyer thinks they have.”

In holding that the statute would apply to Hamby, the appeals court looked at the case differently from the plaintiff whose case was based on negligent service of Nesbitt, adds King.

Rudy Westmoreland, the lawyer for Hamby’s estate, acknowledges the landmark nature of the decision on the claim under the act, but says the negligent supervision aspect is where the law has been headed in effectuating the strong state policy against drunken driving.

“For the first time, it says under the Dram Shop Act, if someone becomes visibly intoxicated in your bar and you know it or should have known it you can’t let them leave without trying to find an alternative method,” says Westmoreland, of Westmoreland, Vesper & Quattrone.

The estate settled its claim against Nesbitt for the amount of the $50,000 in coverage, says Westmoreland.