The New Jersey Supreme Court has agreed to decide whether drunken drivers injured in accidents they cause can sue the liquor establishments that served them.
State insurance law bars them from bringing personal injury claims against other drivers, but the court has never ruled on whether that statute takes precedence over the dram shop act, which makes liquor establishments liable for serving visibly intoxicated patrons.
In April, the Appellate Division held that it does not, finding no intent by the Legislature to immunize tavern owners -- and strong public policy reasons against such a result.
Now, the court has agreed to hear the case, Voss v. Tranquilino, A-110-09, which was among the latest batch of certification grants announced on Friday.
Frederick Voss was injured on Nov. 9, 2006, when his motorcycle collided in Toms River with a vehicle operated by Kristoffe Tranquilino. Voss allegedly suffered a separated shoulder, a broken wrist and a closed head injury.
Voss, who had a blood-alcohol level of .196, more than double the .08 legal limit, pleaded guilty to DWI. He then sued Tiffany's Restaurant, alleging the Toms River tavern substantially contributed to the accident because it served him alcoholic drinks beforehand even though he was obviously intoxicated.
Tiffany's asked the court to throw the case out for failure to state a claim, arguing it was barred by the insurance law provision, N.J.S.A. 39:6A-4.5(b), which states that a person convicted of drunken driving "shall have no cause of action for his or her injuries."
Ocean County Superior Court Judge John Peterson denied the motion and the appellate court affirmed on April 24 in a published opinion.
The dram shop act (formally, the Licensed Alcoholic Beverage Server Fair Liability Act) was enacted in 1987 to create a civil remedy for someone "who sustains personal injury or property damage as a result of the negligent service of alcoholic beverages by a licensed alcoholic beverage server."
Though it is usually the victims of drunken drivers who sue under the dram shop act, the law also allows suits by drunken drivers, said the appeals panel.
Anti-drunken-driving amendments to the insurance law in 1997, at 39:6A-4.5(b), did not change that, although they did bar suits against other drivers involved in the crash.
The appeals court found support in the dram shop act's legislative history. As originally passed, it would have immunized liquor servers from claims by drunken drivers and their passengers but that language was eliminated in response to a conditional veto by Gov. Thomas Kean, who said it contravened alcoholic beverage control policy.
The panel saw no indication that the insurance law changes were meant to immunize liquor servers in dram shop cases by drunken drivers.
It also found a public policy rationale for allowing the claim against Tiffany's. "The Legislature could not have thought it could reduce the number of drunk drivers by immunizing liquor establishments from their claims and thus providing a disincentive to the licensees, who possess the expertise and the statutory and regulatory responsibility to avoid serving visibly intoxicated patrons, thus increasing their degree of intoxication before turning them loose on the highways," wrote Appellate Division Judge Joseph Lisa, joined by Linda Baxter and Carmen Alvarez.
Voss' lawyer, Brielle, N.J., solo William Wenzel, says, "The theory out there for years has been that the bar only applies to suits against another automobile." He adds, "The Supreme Court wants to address the issue and put it to rest once and for all, hopefully on our side."
Tiffany's lawyer, Richard Ranieri, of Weber Gallagher Simpson Stapleton Fires & Newby in Murray Hill, N.J., has contended that Bessor v. Colatrella, A-1748-07, an unpublished appellate decision in 2008, supports immunity. The Bessor court ruled that the immunity law barred a drunken driver from claiming that negligent maintenance of trees on the property where an accident occurred was partly to blame for his injuries.