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Drunken Drivers May Sue Dram Shops That Served Them Prior to AccidentsA New Jersey appeals court ruled Wednesday that liquor establishments are not protected by a state law that bars drunken drivers involved in accidents from suing other parties for economic and noneconomic damages. While the decision is the first by a state appeals court to explicitly deprive licensed premises of immunity in such cases, dram shops are not the first class of defendants to see plaintiffs overcome the general bar on claims by drunken drivers arising from their accidents.
New Jersey Law Journal2010-04-30 12:00:00 AM
A New Jersey appeals court ruled Wednesday that liquor establishments are not protected by a state law that bars drunken drivers involved in accidents from suing other parties for economic and noneconomic damages.
It may be true that drivers who endanger highway safety by driving drunk should be penalized by losing their right to sue, but the owners of licensed premises have the expertise and statutory obligation to avoid serving intoxicated patrons and setting them loose on New Jersey's highways, the court said in Voss v. Tranquilino, A-5431.
Even though the plain language of the law doesn't say so, the "Legislature could not have thought it could reduce the number of drunken drivers by immunizing liquor establishments from their claims and thus providing a disincentive to the licensees," Judge Joseph Lisa wrote in an opinion joined by Judges Linda Baxter and Carmen Alvarez.
The ruling affirms the right of Frederick Voss, a cyclist hurt in an accident in Toms River in 2006, to pursue a claim that Tiffany's Restaurant served him while drunk, contributing to the accident. Voss pleaded guilty to driving while intoxicated.
Tiffany's argued it was immune from suit and sought summary judgment. Ocean County Superior Court Judge John Peterson denied the motion and the appeals court affirmed.
The 1997 anti-drunken driving amendments to motor vehicle insurance law, at N.J.S.A. 39:6A-4.5(b), say a driver convicted of DWI in connection with an accident "shall have no cause of action for his or her injuries."
But as an insurance law, it did not trump the Dram Shop Act, adopted 10 years earlier, which protects the rights of people who suffer loss as a result of the negligent service of alcoholic beverages by licensed servers, the court said.
The typical dram shop case is brought by a drunken driver's victim, but in terms of who may sue, the Dram Shop Law does not make a distinction between those victims and the drunken drivers themselves.
The 1997 law, as passed by the Legislature, included language barring dram shop claims by passengers who knew a driver was drunk. But Gov. Tom Kean vetoed that provision and the act passed without it. As a result, "the Legislature considered, but ultimately rejected, the immunity Tiffany's now urges us to find," the court said.
While Wednesday's decision is the first by a state appeals court to explicitly deprive licensed premises of immunity in such cases, dram shops are not the first class of defendants to see plaintiffs overcome the general bar on claims by drunken drivers arising from their accidents.
In Camp v. Lummino, 352 N.J. Super. 414 (App. Div. 2002), the court found that immunity did not apply in a host-liability case. In that case, an appeals court permitted a common law claim by an underage drunken driver against the owner of a home where he had been drinking.
"That analysis and conclusion apply with even greater force to a dram shop claim, which, unlike the common law claim in Camp is governed by statute," the appeals panel said Wednesday.
Even so, Tiffany's lawyer, Richard Ranieri, says it's a case of first impression and that he may appeal to the Supreme Court. If so, it would be his second visit in this case. When the trial court ruled against him last year, the Appellate Division denied his motion to appeal, but the court granted it and ordered the Appellate Division to decide the issue on the merits.
That suggests the court may be interested in taking the case, says Ranieri, of Weber Gallagher Simpson Stapleton Fires & Newby in Murray Hill.
He also says his argument is supported by an unpublished decision after Camp that the appellate division did not mention, Bessor v. Colatrella, A-1748, decided Sept. 25, 2008.
In that case, an appeals court ruled that the immunity statute barred a drunken driver from claiming that his injuries were caused in part by negligent maintenance of trees on a premise where the accident occurred.
"The public policy concerns that compelled the statutory enactment are advanced regardless of whether the theory of liability in this case relates to automobiles or premises," the court in Bessor ruled. "The conduct to be deterred, drunk driving, is the same."
Brielle solo William Wenzel, who represents Voss, was on vacation Wednesday and could not be reached for comment.