(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 7, l996 -- Decided March 6, 1997
STEIN, J., writing for a unanimous Court.
In this appeal, the Court addresses the apportionment of fault in actions arising under the New
Jersey Licensed Alcoholic Beverage Server Fair Liability Act (the Act). In this particular matter, the central
issue concerns the comparison of fault under the Act between a negligent tavern and an assaultive patron.
Steele, while a patron at Gilhooley's, a tavern owned by defendant Mums, Inc. (Mums), was
assaulted and seriously injured by Kerrigan, an underage patron who was served alcohol by Gilhooley's.
Subsequently, Steele filed suit against Kerrigan and Mums. The complaint alleged that Kerrigan intentionally
or negligently stuck Steele and sought punitive as well as compensatory damages against Kerrigan. The
complaint also set forth several theories of liability against Mums, including common-law liability based on
negligent supervision of the tavern premises and statutory liability based on service of alcoholic beverages to
Kerrigan when the tavern knew or should have known that Kerrigan was a minor.
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. When the jury asked for
clarification on the law concerning the actions of minors after they are served alcohol, the trial court
repeated its instruction and 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
apportionment of liability based on the two remaining theories of liability against Mums was necessary
because Gilhooley's was covered by different insurance carriers for alcohol-service and for general liability.
Following trial, 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. After
the trial court entered judgment for compensatory and punitive damages plus prejudgment interest, Mums,
through its alcohol-service liability carrier, settled the claim for negligent service of alcohol. Mums,
represented by counsel for the general liability carrier, appealed the verdict on the negligent supervision
claim.
On appeal, 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
the instruction misinterpreted the law and also tainted the jury's apportionment of liability relating to
negligent supervision. The Appellate Division affirmed the judgment below, concluding that it was
appropriate under the Act to attribute fault to the minor only up to the point of service of the alcoholic
beverages. Mums also asserted on appeal that the trial court committed harmful error by refusing to instruct
the jury that the court would award prejudgment interest. The Appellate Division affirmed the judgment
below on that point as well.
The Supreme Court granted Mums' petition 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.
HELD: The trial court's instruction was incorrect as applied to the comparison of fault between a tavern
that is negligent under the Licensed Server Liability Act and an assaultive patron, because it precluded the
jury from considering all the legally relevant evidence in apportioning fault among the parties.
1. Comparative negligence principles are applied to actions involving intentional and negligent tortfeasors.
(pp. 7-13)
2. Although the Licensed Server Liability Act specifically calls for the application of the Comparative
Negligence Act, it does not specify detailed principles to guide the apportionment of fault in such cases and
guidance must be sought by reference to the historical application of contributory negligence and
comparative negligence principles to actions brought under this State's common-law dramshop doctrine.
(pp. 13-19)
3. The presumption that a patron, who has been negligently served by a tavern to the point of intoxication,
will ordinarily lack the capacity to appreciate the risks of his subsequent actions that led to the injuries at
issue is to be used in apportioning fault between a tavern and a patron only for that part of the injuries
attributable to the patron's negligence caused by intoxication. (pp. 19-22)
4. The Licensed Server Liability Act reflects a legislative recognition that innocent plaintiffs injured in part
as a result of negligent service by a licensed server may not always receive full compensation for their
injuries. (pp. 22-23)
5. The Licensed Server Liability Act does not distinguish between damages caused by intentional torts and
damages caused by negligent acts. Rather, once a licensed server is found to have been negligent, the
damages for which it is liable are limited only by issues of causation and foreseeability. (pp. 23-26)
6. In the context of social host liability, New Jersey treats the negligent operation of an automobile as a
special risk of intoxication, different from all other intoxicated acts. (pp. 26-27)
7. The duty imposed on a tavern has never been limited to preventing automobile accidents. (pp. 28-30)
8. The imposition of liability on a tavern that serves a minor reflects the recognition that minors are
especially likely to be adversely affected by alcohol and to cause damage to themselves and others. (pp. 31-34)
9. Foreseeability and causation are threshold issues that must be determined before imposing liability on a
tavern under the Licensed Server Liability Act. (pp. 35-37)
10. Notwithstanding the correlation between alcohol use and incidence of violent behavior in general, a
tavern is less able to foresee assaults committed by its patrons. Because causes other than intoxication, such
as a predisposition to violence or provocation by the victim, are more likely to contribute to the occurrence
of an assault, an assaultive patron is not entitled to a presumption that he did not have the capacity to
appreciate or control his own actions after being negligently served by the tavern. (pp. 38-39)
11. In apportioning fault, the jury should be instructed on the general purpose of tavern liability under the
Licensed Server Liability Act and that its verdict should reflect the tavern's responsibility for negligent
service to the extent that it influenced the behavior of persons whom the tavern should not have served. The
jury should also be informed that, in general, assaultive behavior is considered one of the foreseeable risks of
negligent alcohol service and should further be instructed concerning the heightened duty of taverns to
underage patrons under the Act. (pp.39-40)
12. In apportioning fault, the jury must consider the degree to which the licensed server's negligence in
serving alcohol to the underage patron contributed to the incident. In the case of an intentional assault, the
jury should be instructed to apportion fault on the basis of all the evidence pertaining to each party's role in
the incident. (pp. 40-41)
The judgment of the Appellate Division is REVERSED in part and REMANDED to the Law
Division for retrial on the issue of liability only. The judgment of the Appellate Division on the issue of the
trial court's omission of an instruction concerning prejudgment interest is AFFIRMED substantially for the
reasons stated in the Appellate Division's opinion.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
COLEMAN join in JUSTICE STEIN'S opinion.
SUPREME COURT OF NEW JERSEY
A-
25 September Term 1996
TY 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.
Argued October 7, 1996 -- Decided March 6, 1997
On certification to the Superior Court,
Appellate Division.
Michael J. Palma argued the cause for
appellant (Frese & Palma, attorneys).
James P. Savio 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.
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 minorSee footnote 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 (1996).
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 (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 (App. Div. 1992) (holding that defendant who had been convicted of criminal assault adequately stated an affirmative defense of comparative negligence to civil suit by assault victim); cf. Bencivenga v. J.J.A.M.M., Inc., 258 N.J. Super. 399, 406-10 (App. Div.) (holding that unknown assailant may not be considered when apportioning fault between parties in action based on negligent supervision of premises), certif. denied, 130 N.J. 598 (1992). The Comparative Negligence Act, as first adopted in 1973, L. 1973, c. 146 (codified as amended at N.J.S.A. 2A:15-5.1 to 5.3), required the trier of fact to find "[t]he extent, in the form of a percentage, of each party's negligence." L. 1973, c. 146, § 2b. Subsequent amendments maintained this language, which referred to "negligence" only. See L. 1987, c. 325, § 1. The Court, however, "read the term `negligence' in the Act `as being subsumed within the concept of tortious fault.'" Blazovic, supra, at 103 (quoting Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 162 (1979) (holding Comparative Negligence Act applicable to apportion fault in strict-liability claim)). Accordingly, the Court held, in an action alleging assault against one defendant and negligent supervision of the premises against another, that "responsibility for a plaintiff's claimed injury is to be apportioned according to each party's relative
degree of fault, including the fault attributable to an
intentional tortfeasor." Blazovic, supra, 124 N.J. at 107.See footnote 2
In Blazovic, supra, the Court acknowledged but declined to
follow case law from other jurisdictions holding that comparative
negligence principles should not be applied to actions involving
intentional and negligent tortfeasors; the Court noted that those
cases were generally decided under contributory negligence
regimes and were therefore aimed at circumventing the harsh
effects of a complete bar to recovery. See 124 N.J. at 101, 106
(citing Steinmetz v. Kelly,
72 Ind. 442, 446 (1880); Prosser,
Comparative Negligence,
41 Cal. L. Rev. 1, 4-7 (1953)). The
Blazovic Court noted that the Comparative Negligence Act replaced
the absolute bar of common-law contributory negligence with a
comparative fault system, id. at 97; see N.J.S.A. 2A:15-5.1;
Ostrowski v. Azzara,
111 N.J. 429, 436 (1988), and observed that
"[r]efusal to compare the negligence of a plaintiff whose
percentage of fault is no more than fifty percent with the fault
of intentional tortfeasors is difficult to justify under a
comparative-fault system in which that plaintiff's recovery can
be only diminished, not barred," 124 N.J. at 106 (citing Dear &
Zipperstein, Comparative Fault and Intentional Torts: Doctrinal
Barriers and Policy Considerations, 24 Santa Clara L. Rev. 1, 11
(1984)). The Blazovic Court also rejected "the concept that
intentional conduct is `different in kind' from both negligence
and wanton and willful conduct, and consequently cannot be
compared with them." Id. at 107. Instead, the Court interpreted
the different types of conduct to be "different in degree," and
stated that the difference does not preclude comparison by a jury
in accordance with the basic principles of comparative fault:
The different levels of culpability inherent
in each type of conduct will merely be
reflected in the jury's apportionment of
fault. By viewing the various types of
tortious conduct in that way, we adhere most
closely to the guiding principle of
comparative fault -- to distribute the loss
in proportion to the respective faults of the
parties causing that loss.
In Blazovic, the Court also noted that the application of comparative negligence principles to the apportionment of fault between intentional and negligent tortfeasors conforms with developments in the law governing contribution between joint tortfeasors and the law governing credit given nonsettling tortfeasors for partial settlements by other tortfeasors. See id. at 103-06. In Judson v. People Bank & Trust Co., 17 N.J. 67,
87-91 (1954), the Court interpreted the Joint Tortfeasors
Contribution Law, N.J.S.A. 2A:53-1 to -20, as abrogating the
common-law rule that contribution is not allowed between joint
intentional tortfeasors; subsequent cases extended Judson to
permit contribution between joint tortfeasors when one was liable
on a negligence theory and the other on a strict liability
theory. See Blazovic, supra, 124 N.J. at 104-05 (citing Cartel
Capital Corp. v. Fireco,
81 N.J. 548 (1980); Adler's Quality
Bakery, Inc. v. Gaseteria, Inc.,
32 N.J. 55 (1960); Neveroski v.
Blair,
141 N.J. Super. 365 (App. Div. 1976)). The Comparative
Negligence Act modified the Joint Tortfeasors Contribution Law to
require that contribution be determined by percentage of fault
assigned by the trier of fact, rather than on a pro rata basis.
See id. at 105 (citing N.J.S.A. 2A:15-5.3; Cartel Capital Corp.,
supra, 81 N.J. at 569; Lee's Hawaiian Islanders, Inc. v. Safety
First Prods.,
195 N.J. Super. 493, 505 (App. Div.), certif.
denied,
99 N.J. 205 (1984)). Similarly, the Comparative
Negligence Act also modified the rule governing the credit due a
nonsettling tortfeasor for a settling tortfeasor's share of the
judgment to require apportionment by percentage of fault. See
id. at 106 (citing Young v. Latta,
233 N.J. Super. 520 (App.
Div.), aff'd,
123 N.J. 584 (1991)). Therefore, when joint
tortfeasors are liable based on different tort theories, it is
now necessary to apportion fault between them in order to
determine their rights of contribution or rights to credit for
partial settlements.
The Blazovic Court reasoned that assessing damages in
proportion to fault in the circumstances presented by that case
did not undermine the Court's holding in Butler v. Acme Markets,
Inc.,
89 N.J. 270 (1982), which imposed liability on a
commercial-property owner for negligently failing to prevent a
criminal assault on a patron in a parking lot. See Blazovic,
supra, 124 N.J. at 110. The Court recognized a line of decisions
that might be interpreted to "preclude apportionment of fault
between two tortfeasors when the duty of one encompassed the
obligation to prevent the specific misconduct of the other,"
including Cowan v. Doering,
111 N.J. 451, 466-67 (1988) (holding
contributory negligence not available to hospital as defense
against psychiatric patient who jumped out of window), Suter,
supra, 81 N.J. at 177 (holding comparative negligence not
available to manufacturer as defense in a products-liability case
where the plaintiff was injured by using product for its intended
or foreseeable purpose), and Soronen v. Olde Milford Inn, Inc.,
46 N.J. 582, 592 (1966) (holding contributory negligence not
available as defense to tavern who negligently sells alcoholic
beverages to an already intoxicated patron). Blazovic, supra,
124 N.J. at 111. However, the Blazovic Court held that the
rationale of those cases was inapplicable:
Based on the record before us, it would be
highly speculative to conclude that the
causal connection between Plantation's
alleged negligence and the combined
misconduct of plaintiff and the individual
defendants was sufficient to invoke the
rationale of Cowan, Suter, and Soronen. Our
view is that the events that allegedly took
place in the parking lot neither were
sufficiently foreseeable nor bore an adequate
causal relationship to Plantation's alleged
fault to justify the imposition on Plantation
of the entire responsibility for the
resultant injury.
Thus, although a defendant may have a duty to prevent injury to a
plaintiff directly attributable to a third party assault, in such
negligence actions foreseeability and causation often require
fact-intensive inquiries. Therefore, the jury ordinarily should
apportion fault between the negligent supervisor and the
intentional tortfeasor based on the circumstances of the specific
case.
We also review the principles governing apportionment of fault in alcohol-service liability litigation. The Licensed Server Liability Act specifies that the Comparative Negligence Act "shall apply in all civil actions instituted pursuant to the provisions of this act." N.J.S.A. 2A:22A-6. The Licensed Server Liability Act is a codification of the common-law "dram shop" doctrine that evolved in a series of cases beginning with Rappaport v. Nichols, 31 N.J. 188 (1959). (For a comprehensive history of civil dram-shop liability in New Jersey, see Lee v. Kiku Restaurant, 127 N.J. 170, 175-79 (1992) and Buckley v. Estate of Pirolo, 101 N.J. 68, 74-79 (1985)). By enacting the Act, the Legislature intended to address "drastic increases" in the cost of insuring for dram-shop liability by defining the
limits of such liability. N.J.S.A. 2A:22A-2; see Fisch v.
Bellshot,
135 N.J. 374, 382 (1994). The Act was "designed to
protect the rights of persons who suffer loss as a result of the
negligent service of alcoholic beverages by a licensed alcoholic
beverage server while at the same time providing a balanced and
reasonable procedure for allocating responsibility for such
losses." N.J.S.A. 2A:22A-2. Thus, the Legislature required that
comparative negligence principles be applied to apportion fault.
Although the Licensed Server Liability Act provides that the
Comparative Negligence Act governs, the Act does not specify
detailed principles to guide the apportionment of fault in such
cases. We have therefore looked for guidance to the historical
application of contributory negligence and comparative negligence
principles to actions brought under this State's common-law dram-shop doctrine. The early dram-shop cases were decided before the
adoption of the Comparative Negligence Act in 1973, L. 1973, c.
146, which largely abrogated the common-law doctrine of
contributory negligence. See N.J.S.A. 2A:15-5.1. In those early
cases, the Court was reluctant to allow the defense of
contributory negligence, which would have completely barred
recovery from a tavern that was determined to be negligent on a
dram-shop theory if the plaintiff was determined to be
contributorily negligent. In Soronen v. Olde Milford Inn, supra,
the widow of a tavern patron, who died from injuries suffered
when he fell and struck his head on a steel column, sued the
tavern for wrongful death, alleging that the tavern had continued
to serve her husband after he became severely intoxicated. 46
N.J. at 584-85. The tavern sought to defend based on the
contributory negligence of the patron. Id. at 585. The Court
held that the defense of contributory negligence was not
available, stating:
The accountability [of the tavern for service
to a patron who is visibly intoxicated] may
not be diluted by the fault of the patron for
that would tend to nullify the very aid being
afforded. Since the patron has become a
danger to himself and is in no position to
exercise self-protective care, it is right
and proper that the law view the
responsibility as that of the tavern keeper
alone.
The Court subsequently relied on the same principle to bar the defense of contributory negligence in a dram-shop action brought by an injured third party. In Aliulis v. Tunnel Hill Corp., 59 N.J. 508 (1971), the plaintiff, a sixteen year old passenger injured in the crash of an automobile caused by the intoxicated driver, sought recovery from one of the taverns that had served the underage driver. Id. at 509. The tavern defended based on the theory that the passenger was contributorily negligent for deciding to ride with the intoxicated driver -- the same defense that would have been available to the driver if she had been sued. Id. at 510. The Court held that the defense of contributory negligence was not available to the tavern in this circumstance, where the plaintiff, who was sixteen years old and in a strange town at 3:00 a.m., had no real choice but to ride in the intoxicated driver's car. Id. at 511. The Court
specifically stated, however, that contributory negligence might
be available as a defense against third party claimants who were
negligent in other ways. For example, contributory negligence
might be an available defense in a case where a driver's own
negligence contributed to a collision with a car driven by an
intoxicated tavern patron. Ibid.
In its first consideration of the application of the
Comparative Negligence Act to a dram-shop action, the Court
applied similar principles to balance the duty of the tavern to
refrain from serving intoxicated patrons with the duty of the
patron to take self-protective measures. In Buckley v. Estate of
Pirolo, supra, the plaintiffs were the survivors of three
passengers killed in the crash of an airplane being used for
recreational purposes. 101 N.J. at 71-72. The plaintiffs sued
the establishment in which the pilot and two of the passengers
had been drinking, alleging that the establishment had continued
to serve the pilot after he became visibly intoxicated. Ibid.
The establishment alleged comparative negligence on the part of
the passengers based on each passenger's decision to ride with
the intoxicated pilot. Id. at 72. The Appellate Division,
assuming that the passengers were not intoxicated, held that the
establishment could claim the benefit of the Comparative
Negligence Act to reduce recovery by the passengers' survivors.
190 N.J. Super. 491, 500 (App. Div. 1983). The Appellate
Division reasoned that that result did not undermine the policy
of the dram-shop doctrine to protect "the intoxicated patron from
his incapacity to protect himself or the public from foreseeable
and unreasonable risk of harm," because the passengers were
capable of self-protection. Id. at 498.
This Court generally approved of the Appellate Division's
legal analysis. Nevertheless, the Court reversed and remanded
because it found that the record was inadequate concerning the
intoxication of the passengers. 101 N.J. at 77-81. The Court
held that on remand the plaintiffs would be free to meet the
comparative negligence defense by "contend[ing] that their
decedents did not act unreasonably in going on the ill-fated
flight, probably on some theory of their non-appreciation of any
unreasonable risk" and that to that end plaintiffs could present
evidence that the passengers were themselves intoxicated by
consumption of alcohol at the establishment. Id. at 80-81.
Thus, the Court endorsed an approach to comparative fault in
dram-shop actions that asked the fact-finder to assess the
ability of the intoxicated patron to appreciate the consequences
of her own actions in apportioning fault between the tavern and
its patrons. Justice O'Hern's concurrence, however, suggested
that the legislative abrogation of the doctrine of contributory
negligence in favor of a comparative negligence system warranted
a fuller reexamination of the appropriate apportionment of fault
in dram-shop actions. Id. at 82-83 (O'Hern, J., concurring).
In Lee v. Kiku Restaurant, supra, the Court undertook that
reexamination and further refined the principles for apportioning
fault between taverns and intoxicated patrons. The plaintiff in
Lee was injured in an automobile accident; he was a passenger
accompanying the intoxicated driver who was at fault. 127 N.J.
at 172. The passenger sued the restaurant at which he and the
driver had been drinking prior to the accident, alleging that the
restaurant served the driver after he became visibly intoxicated.
Id. at 173. The issue on appeal was how the jury should be
instructed regarding the comparison of the conduct of the driver
and the passenger with the restaurant's actions in serving them.
Id. at 174-75. The Court modified the holding in Buckley as it
applied to most cases where the patron was served after reaching
the point of intoxication, by shifting the focus of the jury's
inquiry away from the negligent patron's ability to appreciate
the consequences of his actions after the negligent service of
alcohol by the tavern, focusing instead on the extent to which
the patron's drinking up to the point of intoxication contributed
to his presumed later inability to appreciate the consequences of
his actions. The Court held:
First, an intoxicated patron may no longer
avoid responsibility for injuries proximately
caused by his or her voluntary decision to
consume alcohol to the point of intoxication.
Second, once a jury determines that a tavern
continued to serve drinks to a visibly-intoxicated patron, the jury should not be
instructed, absent exceptional circumstances,
to determine the extent to which the patron
retained some capacity to appreciate the risk
of engaging in the activity that led to the
accident. If the tavern serves alcohol to a
visibly-intoxicated patron, a court will
ordinarily presume the patron's lack of
capacity to evaluate the ensuing risks.
Thus, the Lee Court "struck a balance between the unfairness of
the Soronen rule . . . and the confusion surrounding the
application of the Buckley factor, i.e., the plaintiff's ability
to appreciate the risk of engaging in the activity that led to
the accident." Fisch, supra, 135 N.J. at 388.
The Lee holding does not impose strict liability for all
injuries caused by a tavern patron after negligent service by a
tavern. The presumption established in Lee -- that if a tavern
negligently served a patron after the patron reached the point of
intoxication, the patron thereafter ordinarily will have lacked
the capacity to appreciate the risks of her subsequent actions
that led to the injuries at issue -- is to be used in
apportioning fault between a tavern and a patron only for that
part of the injuries attributable to the patron's negligence
caused by intoxication. In order to complete the apportionment
of fault, the fact-finder must consider all of the causes of the
incident. As stated in Lee:
[T]he jury may allocate the fault involved in
the negligent operation of the vehicle
between the patron-driver and the tavern
based on the jury's qualitative evaluation of
all of the evidence bearing on the extent to
which the respective conduct of the patron-driver and the tavern contributed to the
negligent operation of the vehicle. In
making that allocation, the jury may consider
the patron-driver's conduct in becoming
voluntarily intoxicated, the extent of the
tavern's misconduct in continuing to serve
the patron-driver, and the specific evidence
relating only to the nature and circumstances
of the negligent operation of the vehicle.
Juries must be informed that they are
authorized to allocate responsibility for
negligent operation of a vehicle between the
patron-driver and the tavern based on the
relevant evidence.
Just as under the proximate cause inquiry required by the
Licensed Server Liability Act, N.J.S.A. 2A:22A-5, the jury is
free to find that the negligent alcohol service was not a
proximate cause of the injury at all, the jury is also free to
apportion all fault to the patron for any of the patron's actions
that were not the result of intoxication. For example, a driver
who for some time has knowingly been driving an automobile with
faulty brakes can not shift to the tavern responsibility for
driving the automobile in that condition on the occasion in
question simply because the tavern was negligent in serving the
driver after she was visibly intoxicated, even if other aspects
of the driver's negligence contributing to the accident were due
to intoxication. Cf. Thompson v. Victor's Liquor Store, Inc.,
216 N.J. Super. 202, 212 (App. Div. 1987) ("[I]f adequate proof
supports such a finding, a jury could determine that plaintiff
drove negligently and would have driven in the same manner . . .
whether he was inebriated or not.").
Although the incident at issue in Lee arose before the
enactment of the Licensed Server Liability Act in 1987, L. 1987,
c. 152, the Court stated that apportionment of fault to the
patron for drinking to the point of intoxication was consistent
with the Act. Lee, supra, 127 N.J. at 183. As noted above, the
Licensed Server Liability Act specifically calls for the
application of the Comparative Negligence Act. See N.J.S.A.
2A:22A-6. In Fisch v. Bellshot, the Court's first opportunity to
consider the application of the Comparative Negligence Act to a
case arising under the Licensed Server Liability Act, the Court
approved of the Lee Court's conclusion "that the principles set
forth [in Lee] are completely 'consistent with the apparent
intent of the Legislature in enacting the Act.'" Fisch, supra,
135 N.J. at 388 (quoting Lee, supra, 127 N.J. at 183).
In Fisch, supra, the Court also had its first opportunity to
address the scope of Lee. Fisch involved a bartender who served
herself alcoholic beverages while on duty and later died in a
one-car accident as she attempted to drive home. 135 N.J. at
378. The bartender's survivors sued the tavern at which she
worked. Ibid. The trial court instructed the jury according to
Buckley, telling the jury it could find the bartender negligent
for deciding to drive "if she retained some ability to appreciate
the risk of driving in an intoxicated state." Id. at 389. The
plaintiff argued on appeal that the trial court instead should
have instructed the jury according to Lee, that is, it should
have told the jury that, if the jury determined that the tavern
served the bartender after she became visibly intoxicated, it
should not consider the bartender's negligence in subsequently
deciding to drive. Ibid. Emphasizing that the decedent had
served herself despite her obligation not to do so while on duty
and that, based on her occupational training and experience, she
was equipped "with an increased ability to assess the progression
of intoxication and to understand the debilitating effect of
excessive drinking," the Court held that this was a case of
"exceptional circumstances" in which the Lee presumption was
inappropriate and therefore the Buckley instruction was correct.
Id. at 390-91. Lee, supra, had anticipated that such
"exceptional circumstances" might exist. 127 N.J. at 184. The
Fisch Court confirmed, however, that Lee provided the general
rule to be followed in apportioning fault between a tavern and a
patron for the patron's negligent actions subsequent to the
tavern's negligent service of alcohol to the patron. See Fisch,
supra, 135 N.J. at 390-91.
We note that we infer from the provisions of the Licensed
Servers Liability Act a legislative recognition that innocent
plaintiffs injured in part as a result of negligent service by a
licensed server may not always receive full compensation for
their injuries. In addition to specifying the application of the
Comparative Negligence Act, the Licensed Server Liability Act
further limits servers' exposure by providing that a server is
never responsible for a greater share of the damages than the
percentage of fault attributed to it, notwithstanding contrary
provisions of the Comparative Negligence Act calling for limited
joint and several liability between multiple tortfeasors. See
N.J.S.A. 2A:22A-6b.See footnote 3 Thus it is clear that the Legislature
intended that comparative negligence principles be used to
apportion fault between multiple defendants as well as between
plaintiff and defendant, and that recovery from the tavern be
limited to the percentage apportioned, notwithstanding the fact
that a blameless plaintiff may be unable to recover fully in
cases where one or more tortfeasors are insolvent. Cf. N.J.S.A.
2A:15-5.8 (providing same protection from joint and several
liability to social hosts as provided to licensed servers and
thus superseding holding in Kelly v. Gwinnell,
96 N.J. 538, 559
(1984), that social hosts found negligent for serving intoxicated
guests are to be held jointly liable with their guests for
injuries to third parties).
This appeal differs from previous cases in which this Court has considered the principles of comparative negligence as applied to dram-shop actions, in that the injury was the direct consequence of an assault rather than of negligent driving. The Licensed Server Liability Act itself does not distinguish between damages caused by intentional torts and damages caused by negligent acts. Rather, once a licensed server is found to have been negligent, the damages for which it is liable are limited
only by issues of causation and foreseeability. As stated in the
Act:
A person who sustains personal injury or
property damage as a result of the negligent
service of alcoholic beverages by a licensed
alcoholic beverage server may recover damages
from a licensed alcoholic beverage server
only if:
(1) The server is deemed negligent
pursuant to subsection b. of this section;
and
(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.
Similarly, prior to the adoption of the Licensed Server Liability Act, the determination of whether a patron's actions were such that the negligent tavern could be held liable for them followed the basic outlines of negligence law, that is, the tavern must have been found to have breached an existing duty, and that breach must have proximately caused the injury. See Finney v. Ren-Bar, Inc., 229 N.J. Super. 295, 301 (App. Div. 1988) (holding tavern liable for damages caused by minor patron who negligently caused fire after returning home from tavern). Duty traditionally has been defined by the foreseeability of the particular harm to be guarded against. See Hill v. Yaskin, 75 N.J. 139, 144 (1977). Of course, the duty inquiry involves questions of policy as well as logical foreseeability. See Caputzal v. The Lindsay Co., 48 N.J. 69, 75 (1966). "[W]hether a
duty exists is ultimately a question of fairness. The inquiry
involves a weighing of the relationship of the parties, the
nature of the risk, and the public interest in the proposed
solution." Kelly, supra, 96 N.J. at 544 (quoting Goldberg v.
Housing Auth.,
38 N.J. 578, 583 (1962) (emphasis ommitted), and
holding that social hosts have duty to prevent drunken driving
accidents by refraining from serving intoxicated guests).
The duty of a tavern to refrain from negligently serving
patrons, both before and after adoption of the Licensed Server
Liability Act, has most often been recognized in the context of
preventing automobile accidents. Such cases include Fisch,
supra; Lee, supra; Buckley, supra; Kelly, supra; Aliulis, supra;
Rappaport, supra; Petitto v. Sands Hotel & Casino,
288 N.J.
Super. 304 (App. Div.), certif. denied,
144 N.J. 589 (1996);
Benson v. Brown,
276 N.J. Super. 553 (App. Div. 1994); and
Geherty v. Moore,
238 N.J. Super. 463 (App. Div. 1990). In
common-law cases involving taverns that serve intoxicated or
minor patrons the policy discussion has generally focused on
drunken driving. For example, Rappaport, supra, noted that the
foreseeability of unreasonable risk of harm to the public when
alcoholic beverages are sold to a minor or intoxicated person is
"particularly evident in current times when traveling by car to
and from the tavern is so commonplace and accidents resulting
from drinking are so frequent." 31 N.J. at 202. The Rappaport
Court cited several scholarly studies concerning automobile
accidents. See ibid. Similarly, the legislative history of the
Licensed Server Liability Act shows that the Legislature was
largely concerned with liability for injuries caused by
automobile accidents. See, e.g., Assembly Insurance Committee,
Statement to Assembly Committee Substitute for A. 2264, 2209,
2211, 1876, 1679, 864, and 554 at 2 (May 29, 1986) ("[L]icensed
alcoholic beverage servers are often named in personal injury
suits which are filed in connection with automobile accidents
involving drunken driving."). The foreseeability to taverns of
automotive accidents being caused by intoxicated drivers is
indisputable.
In the context of social host liability, New Jersey treats
the negligent operation of an automobile as a special risk of
intoxication, different from all other intoxicated acts.
Specifically, the 1988 amendments to the Comparative Negligence
Act provide that social hosts will be liable for damages to third
parties caused by adult guests whom the host negligently served
when visibly intoxicated only when those damages were caused by
the negligent operation of an automobile. See N.J.S.A. 2A:15-5.6; Componile v. Maybee,
273 N.J. Super. 402, 404-409 (Law Div.
1994). The first reported case to extend "dram shop" type
liability to social hosts, Linn v. Rand,
140 N.J. Super. 212
(App. Div. 1976), involved an intoxicated minor driver, id. at
214. The court noted that the foreseeability of accident or
injury in those circumstances was "devastatingly apparent in view
of the ever-increasing incidence of serious automobile accidents
resulting from drunken driving." Id. at 219. In Kelly v.
Gwinnell, supra, which first announced the duty of social hosts
to third parties injured by intoxicated adult guests, the Court
specifically limited its holding to cases involving automobile
accidents. See 96 N.J. at 559. In Griesenbeck by Kuttner v.
Walker,
199 N.J. Super. 132 (App. Div.), certif. denied,
101 N.J. 264 (1985), the Appellate Division declined to extend social host
liability to cover the negligent setting of a fire by an
intoxicated adult. See id. at 134. The Appellate Division based
the distinction between automobile accidents and other types of
injuries on foreseeability and fairness, writing:
In imposing [a duty to not serve intoxicated
guests who will drive] upon a social host [in
Kelly], the court recognized the reasonable
foreseeability of the harm to others likely
to result from the operation of a car by the
intoxicated guest and the fairness of holding
the host responsible for injuries resulting
from the presence on the highway of a drunken
driver whose intoxicated condition was due in
large measure to the conduct of the host.
This result was also deemed to be consistent
with desired social goals. As the present
case does not involve the operation of a
motor vehicle by the intoxicated guest, these
applications of foreseeability and fairness
are not pertinent to our consideration of the
existence of a duty . . . .
The liability of social hosts in New Jersey for injuries caused by their intoxicated guests has never been extended beyond injuries in automobile accidents.
The duty imposed on a tavern, on the other hand, has never been limited to preventing automobile accidents. See, e.g., Soronen, supra, 46 N.J. at 587 (implicitly assuming tavern may be
liable on dram-shop cause of action for injury sustained by
tavern patron in drunken fall). In Finney, a tavern was held
liable for injuries caused by a minor patron who negligently set
a fire after returning home from the tavern, despite
Griesenbeck's holding that social hosts could not be held liable
in a similar fact pattern. Finney, supra, 229 N.J. Super. at
300-04. The Appellate Division agreed with the trial court that
"to a tavern serving liquor to an underage person, it was
reasonably foreseeable that some injury would result, and that
this injury was neither a bizarre nor attenuated result of the
tavern's conduct." Id. at 300. The broader duty of a tavern as
opposed to a social host reflects both the more complete
knowledge imputed to the tavern and the higher standard of care
imposed as a policy matter on licensed servers, both
legislatively and by the courts. See id. at 304; see also Kelly,
supra, 96 N.J. at 565-67 (Garibaldi, dissenting) (comparing
taverns' expertise about and control over patron intoxication
with lesser expertise and control of social hosts who serve
alcohol to guests).
Without question, the occasional assault by a belligerent
drunk is a foreseeable consequence of serving alcohol. A tavern
therefore may have a duty to prevent such assaults by refraining
from negligent service. A nineteenth century New Hampshire court
put it colorfully when it described alcohol as "a stimulus highly
promotive of brawls, affrays, riots and all other crimes," and
asked "why one held liable for damage done by dangerous animals
belonging to, or kept by, himself, or carelessly conducted by him into a populous town, should not also be liable for damage done by men whom he has drawn together in the same place, and aided in making irrational, uncontrollable, and dangerous. . . ." Underhill v. City of Manchester, 45 N.H. 214, 216-18 (1864 ). Although no New Jersey court has directly ruled on the question of whether a tavern is liable on a dram-shop cause of action for an assault by an intoxicated patron, courts have assumed implicitly that that type of liability exists. See, e.g., Popow v. Wink Assocs., 269 N.J. Super. 518, 527-29 (App. Div. 1993) (holding that tavern found liable under negligent supervision claim for injuries caused by assault of one patron on another could not appeal jury verdict that found no alcohol-service liability in order to bring liability under tavern's alcohol-service liability insurance coverage); Maro v. Potash, 220 N.J. Super. 90, 97-99 (Law Div. 1987) (taking personal jurisdiction over concessionaire at Veterans' Stadium in Pennsylvania in dram-shop action brought by spectator who was New Jersey resident for damages caused by assault by intoxicated fellow spectator at football game); Mt. Hope Inn v. Travelers Indem. Co., 157 N.J. Super. 431, 438 (Law Div. 1978) (holding that insurer had no duty to defend tavern with respect to allegations that tavern negligently served intoxicated patron who assaulted another patron where insurance policy contained exclusion for dram-shop liability). Other jurisdictions that have dram-shop statutes frequently recognize that taverns may be liable for injuries
caused by assaults by patrons as well as by patrons' negligent
acts. See
45 Am. Jur 2d Intoxicating Liquors, § 567 (1969).
The parties to this action do not dispute that such
liability may be imposed pursuant to the Licensed Server
Liability Act. Neither do they dispute that in such actions
fault may be apportioned between negligent and intentional
tortfeasors. As stated in Blazovic, supra, "the divergence
between intentional conduct and negligence [does not preclude]
comparison by a jury." 124 N.J. at 107. The practical
guidelines appropriate to the apportionment of fault in an
alcohol-service liability action involving an alleged assault,
however, may differ from the guidelines appropriate to the
apportionment of fault in the alcohol-service liability cases we
have previously considered.
Finally, we have also considered the fact that the tavern's alcohol-service liability in this appeal was based on negligent service to a minor as opposed to negligent service to an intoxicated adult. The Licensed Server Liability Act provides that for purposes of determining liability a server of alcoholic beverages may be deemed negligent in two circumstances: "when the server served a visibly intoxicated person, or served a minor, under circumstances where the server knew, or reasonably
should have known, that the person served was a minor."
N.J.S.A. 2A:22A-5b. As noted above, a "minor" is defined by the
Act as "a person under the legal age to purchase and consume
alcoholic beverages." N.J.S.A. 2A:22A-3. Previous to the
adoption of the Licensed Server Liability Act, common-law dram-shop liability similarly encompassed service both to a visibly
intoxicated patron and to an underage patron. See Rappaport,
supra, 31 N.J. at 201 ("Where a tavern keeper sells alcoholic
beverages to a person who is visibly intoxicated or to a person
he knows or should know from the circumstances to be a minor, he
ought to recognize and foresee the unreasonable risk of harm to
others through action of the intoxicated person or the minor.").
In reaching this result, the case law relied in part on
administrative regulations that prohibited liquor licensees from
serving minors or visibly intoxicated patrons. See id. at 202;
Thompson, supra, 216 N.J. Super. at 205 n.3.
The imposition of liability on a tavern that serves a minor,
whether or not that minor can be shown to have been intoxicated
at the time, reflects the recognition that minors are especially
likely to be adversely affected by alcohol and to cause damage to
themselves and others. In Rappaport, supra, the Court emphasized
the "special susceptibilities" of underage drinkers:
The Legislature has in explicit terms
prohibited sales to minors as a class because
it recognizes their very special
susceptibilities and the intensification of
the otherwise inherent dangers when persons
lacking in maturity and responsibility
partake of alcoholic beverages; insofar as
minors are concerned the sale of the first
drink which does "its share of the work" and
which generally leads to the others is
unequivocally forbidden.
[31 N.J. at 201 (citing Taylor v. Wright,
17 A. 677, 678 (Pa. 1889)).]
Other jurisdictions have analogized the furnishing of alcohol to
giving a firearm, gunpowder or even an automobile to a minor.
See Estate of Hernandez v. Arizona Bd. of Regents,
866 P.2d 1330,
1340-41 (Ariz. 1994) (automobile); Davis v. Shiappacossee,
155 So.2d 365, 367 (Fla. 1963) (firearm); Tobin v. Norwood Country
Club, Inc.,
661 N.E.2d 627, 633 (Mass. 1996) (gunpowder). "Once
a vendor places liquor in the hands of a minor, it may set in
motion the very harm which the Legislature has attempted to
prevent." Michnik-Zilberman v. Gordon's Liquor, Inc.,
453 N.E.2d 430, 433 (Mass. 1983) (holding vendor liable for injuries to
third party caused by negligent sale of alcohol to underage
drinker).
In general, New Jersey's policy against serving minors
enjoys even stronger legislative support than the policy against
serving intoxicated adults. Rappaport relied in part on the
Legislature's decision to create a disorderly person offense for
selling alcoholic beverages to a minor. See Rappaport, supra, 31
N.J. at 201 (citing N.J.S.A. 33:1-77). Minors themselves commit
a disorderly person offense when they buy liquor. N.J.S.A. 33:1-81; see also N.J.S.A. 9:17B-1b (establishing minimum legal
drinking age). There is no counterpart statute governing sales
to visibly intoxicated persons. In recent legislation limiting
the liability of social hosts for damages caused by guests who
were served after they became visibly intoxicated to injuries to
third parties in automobile accidents, the Legislature
specifically preserved full common-law liability of social hosts
for damages caused by minors to others and even to themselves.
See N.J.S.A. 2A:15-5.6 to 5.7; see also Kelly, supra, 96 N.J. at
561 n.1 (Garibaldi, J., dissenting) (noting that author, although
dissenting on extension of liability to social hosts for damages
to third parties caused by serving alcohol to visibly intoxicated
guests, would vote to uphold extension of liability to social
hosts who serve minors).
In New Jersey's common law, "[t]he liability of a person
controlling alcohol and serving it to minors has historically
preceded and even exceeded that respecting service of alcohol to
adults." Finney, supra, 229 N.J. Super. at 301. The seminal
case establishing a dram-shop cause of action, Rappaport, supra,
was based on service of alcoholic beverages to a minor who later
caused an automobile accident in which plaintiff's decedent was
killed. See 31 N.J. at 192. An Appellate Division opinion
extended dram-shop liability to social hosts for damages to third
parties caused by serving alcohol to minors in 1976. See Linn,
supra. It was not until 1982 that a reported decision held a
social host liable to a third party for serving a visibly
intoxicated adult. See Figuly v. Knoll,
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