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Original WP 5.1 Version
This case can also be found at 135 N.J. 374.
(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 March 1, 1993 -- Decided May 9, 1994
Natalie Fisch, individually and as administrator of her deceased mother's estate, brought an action,
pursuant to the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act (Act), against Richard
Bellshot, individually and as owner of Richie's Tavern. Fisch's complaint alleged that Bellshot had served
alcohol to decedent, Delores Lapollo, when at the time he knew or should have known that decedent was
intoxicated and that that negligent service proximately caused decedent's death. Delores Lapollo was killed
in a one-car accident after leaving Richie's Tavern following her bartending shift somewhere between 10:30
p.m. and 11:00 p.m. on November 22, 1987.
At trial, witnesses provided inconsistent testimony in respect of decedent's conduct and her level of
intoxication. There was also conflicting testimony in respect of Bellshot's awareness of decedent's condition
and conduct throughout the day. Bellshot testified that he had no indication that decedent had been drinking
or was intoxicated until after she drove away. However, other witnesses testified to having observed
decedent drinking. Several of these witnesses also testified that Bellshot was aware that decedent was
The jury concluded that Bellshot negligently had served decedent while she was visibly intoxicated
and that Bellshot's negligence had proximately caused her death. The jury also found that decedent had
been contributorily negligent and that her negligence also had been a proximate cause of her death.
Apportioning the relative degrees of negligence, the jury assessed seventy-five percent to decedent and
twenty-five percent to Bellshot. As a result, the court found that Natalie Fisch had no cause of action against
On appeal, the Appellate Division affirmed. The Supreme Court granted certification.
HELD: The circumstances in this case are exceptional, not ordinary, such that the trial court's failure to
instruct the jury on the Lee v. Kiku Restaurant presumption (a defendant found negligent is
liable for the intoxicated plaintiff's decision to drive or accompany an intoxicated driver) was not
erroneous. Moreover, trial courts in dram-shop cases, under the New Jersey Licensed Alcoholic
Beverage Server Fair Liability Act, may not instruct the jury that violations of administrative
regulations are evidence of a defendant's negligence.
1. The trial court correctly noted that the Act provides the exclusive definition of an alcoholic-beverage
server's negligence. The Act is a comprehensive statutory scheme that was designed to address the
increasing costs and widespread unavailability of liability for licensed alcoholic-beverage servers. The
intention of the Act was to alleviate those problems by limiting dram-shop liability. Section 4 of the Act
specifically states that the Act provides the exclusive remedy for dram-shop causes of action arising after its
effective date. (pp. 7-9)
2. The trial court did not err in refusing Fisch's request to instruct the jury on administrative regulations concerning the standards of conduct for alcoholic-beverage licensees. Under Section 4 of the Act, a person who is injured as a result of the negligent service of alcoholic beverages by a licensed alcohol beverage server may recover damages from that server only if the server is deemed to have been negligent; if
the injury or damage was proximately caused by the negligent service of alcoholic beverages; and if the injury
was a foreseeable consequence of the negligent service of alcoholic beverages. An alcoholic-beverage server
is deemed to have been negligent only when the server served a visibly intoxicated person or a minor. On its
face Section 5 exclusively defines negligence for the purposes of civil liability - service to a visibly intoxicated
person is the only defined act of negligence, other than serving alcohol to a person whom one knows or
should know is a minor. Negligence is nowhere defined by reference to administrative regulations.
Furthermore, the legislative purpose of greater predictability of dram-shop liability would be frustrated by
permitting administrative regulations to provide alternative standards of care for alcoholic-beverage servers.
3. Under the Act, a plaintiff's contributory negligence can limit a defendant's liability. If a tavern
owner can demonstrate that the patron had the ability to appreciate the risk of driving while intoxicated or of
accompanying an intoxicated driver, the tavern owner could reduce his or her liability in accordance with the
Comparative Negligence Act. However, if the patron's intoxicated condition rendered he or she unable to
appreciate the risk and the tavern owner served the patron alcohol when he or she was visibly intoxicated,
the tavern could not assert the defense of comparative negligence. In Lee v. Kiku Restaurant, this Court
held that, in the ordinary case, once a defendant is found to have been negligent, that defendant is
responsible for the plaintiff's decision to drive or to accompany an intoxicated driver. That responsibility
may be diminished only to the extent that the plaintiff's drinking prior to the point of intoxication contributed
to his or her inability to appreciate the risk of his or her behavior. (pp. 13-17)
4. Fisch contends that Lee: 1) explicitly prohibits a trial court from instructing a jury that an intoxicated
patron's decision to drive is evidence of negligence; and 2) requires that the trial court instruct the jurors that
once they find that a defendant served a visibly-intoxicated person, they should presume that that person
lacked the capacity to evaluate the risk of driving while intoxicated. Although, the trial court's comparative-negligence charge did not adhere to the outline provided in Lee for the ordinary dram-shop case, this is not
an ordinary case. Decedent, the tavern's bartender, served herself even though she had an obligation not to
drink while on duty and had been trained in alcohol management. The presumption established in Lee was
not intended to apply to the circumstances of this case. Here, the circumstances of this case are
"exceptional" such that the trial court's failure to instruct the jury on the Lee presumption was not erroneous.
The trial court's instruction to the jury was entirely appropriate. (pp. 17-22)
5. Because the Lee presumption is not applicable, Fisch's contention that the matter should be
remanded because of the intervening decision in Lee is without merit. Had the Court decided Lee prior to
the jury instruction in this case, it would not have changed the substance of the jury instruction. (pp. 22-24)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in this opinion.
SUPREME COURT OF NEW JERSEY
A- 103 September Term l992
NATALIE FISCH, as Administratrix
RICHARD BELLSHOT, Individually
ABC CORPORATION (fictitious
Argued March 1, l993 -- Decided May 9, 1994
On certification to the Superior Court,
John Morelli argued the cause for appellant.
Stacy L. Moore, Jr., argued the cause for
respondent (Parker, McCay & Criscuolo,
attorneys; Mary Ann C. O'Brien, on the
In this appeal we interpret for the first time the "New Jersey Licensed Alcoholic Beverage Server Fair Liability Act,"
N.J.S.A. 2A:22A-l to -7 (hereinafter Act). In so doing we
consider the interaction between the Act and the Comparative
Negligence Act, N.J.S.A. 2A:l5-5.l to -5.2; the extent to which
the principles set forth in Lee v. Kiku Restaurant, l27 N.J. l70
(l992), and Buckley v. Estate of Pirolo, l0l N.J. 68 (l985),
apply to causes of action under the Act; and whether violations
of administrative regulations constitute evidence of negligence
under the Act. More specifically, we determine whether the trial
court's instruction to the jury on plaintiff's decedent's
contributory negligence was erroneous.
Plaintiff, Natalie Fisch, individually and as Administratrix Ad Prosequendum and General Administratrix of the Estate of her mother, Delores Lapollo, brought an action against defendant Richard Bellshot, individually and as the owner of Richie's Tavern, pursuant to the Act. The complaint alleged that defendant had served alcohol to Mrs. Lapollo at a time he knew or should have known that she was intoxicated. Moreover, the complaint alleged that that service proximately caused the death of Mrs. Lapollo, who was killed in a one-car accident after leaving defendant's bar following her shift as a bartender somewhere between l0:30 p.m. and ll:00 p.m. on November 22, l987. Mrs. Lapollo had reported to work at the tavern that day at approximately ll:00 a.m. Although her scheduled shift was supposed to end at 7:00 p.m., she agreed to work until l0:00 p.m.
after her replacement called in sick. Bellshot greeted Mrs.
Lapollo on her arrival at the bar at ll:00 a.m. and made her
breakfast. He agreed to replace her at l0:00 p.m., but did not
actually relieve her until l0:30 p.m. Shortly after defendant
replaced her behind the bar, Mrs. Lapollo left the tavern and was
subsequently killed in the crash. An autopsy revealed that Mrs.
Lapollo's blood alcohol content at the time of the crash was .20
-- a level significantly above the legal limit for a driver.
Only after she had gone did he learn from a patron that Mrs.
Lapollo had been squirting beer around and was intoxicated.
Defendant admits to calling plaintiff, but denies that he said
that he suspected that decedent had been drinking.
At that time, Stewart did not see defendant and had no indication
that Mrs. Lapollo was drunk or had been drinking. He said that
when he returned with Callahan at approximately 8:20 p.m. Mrs.
Lapollo was apparently intoxicated. He testified that he saw
Mrs. Lapollo drink a shot of alcohol with another patron. He
further testified that defendant saw this occur as well, but took
no action to stop it, and that defendant did not say anything
afterward. Defendant's silence did not surprise Stewart because
he claimed to have seen decedent drink on duty in the presence of
defendant on two or three other occasions without defendant
taking corrective action. Ray Callahan confirmed Roger Stewart's
testimony concerning Mrs. Lapollo drinking a shot sometime
between 8:20 p.m. and 9:00 p.m. He also confirmed that defendant
had been present in the bar at the time, but could not confirm
that defendant saw Mrs. Lapollo drink the shot.
down at the bar and talked to decedent for about an hour. During
that time, she observed Mrs. Lapollo drink a shot of alcohol.
Moreover, she testified that defendant had been present and also
had witnessed Mrs. Lapollo drinking the shot. Ms. Mason further
testified that she returned to Richie's tavern at approximately
l0:00 p.m. with a friend. At that time, according to her,
decedent was highly intoxicated and continuing to drink.
The Appellate Division affirmed and we granted plaintiff's
petition for certification, l
30 N.J. 399 (l992). We now affirm.
Plaintiff first contends that the trial court erred in refusing to instruct the jury on administrative regulations concerning the standards of conduct for alcoholic-beverage licensees. Specifically, plaintiff requested that the trial court's instruction on defendant's negligence include the following two administrative regulations defining the scope of duty of licensed alcoholic-beverage servers for licensing purposes:
N.J.A.C. 3:2-23.l(b). No licensee shall sell, serve or deliver or allow, permit or suffer the sale, service or delivery of any alcoholic beverage, directly or indirectly, to any person actually or apparently intoxicated, or permit or suffer the consumption of any alcoholic beverage by any such person in or upon the licensed premises.
N.J.A.C. 13:2-23.20. No licensee shall work
in any capacity in or upon the licensed
premises while actually or apparently
intoxicated or allow, permit or suffer any
actually or apparently intoxicated person to
work in any capacity in or upon the licensed
The trial judge determined in limine that he would not charge the violation of administrative regulations as elements of negligence. He reasoned that the Act, effective when this cause
of action arose, provided the exclusive definition of an
alcoholic-beverage server's negligence. We agree.
server by any other statute, rule or
Consistent with its preemptive purpose and exclusive nature,
the Act defines the plaintiff's prima facie case for all dram-shop causes of action. Specifically, section five, N.J.S.A.
(l) 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
(3) The injury or damage was a foreseeable
consequence of the negligent service of
b. A licensed alcoholic beverage server
shall be deemed to have been negligent only
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.
We must interpret statutes in accordance with their plain meaning. Phillips v. Curiale, l 28 N.J. 608, 6l7-l8 (l992); State v. Bigham, ll 9 N.J. 646, 65l (l990). Absent any specific legislative intent to the contrary, this Court will not do
violence to a statute's plain meaning. Town of Morristown v.
Woman's Club, l
24 N.J. 605, 6l0 (l99l); Mortimer v. Board of
99 N.J. 393, 398 (l985).
We find no other plausible explanation for the Legislature's
use of the word "only." On its face section five exclusively
defines negligence for the purposes of civil liability.
Negligence is not definable by reference to administrative
regulations. Indeed, the Legislature drafted subsection b
precisely to render service to a visibly-intoxicated person the
only defining act of negligence other than serving alcohol to a
person whom one knows or reasonably should know under the
circumstances is a minor.
The foregoing construction effectuates the Legislature's
intent. See Cedar Grove, Inc. v. Stanzione, l
22 N.J. 202, 2l3
(l99l); Accountemps Div. v. Birch Tree Group, ll
5 N.J. 6l4, 622
(l989). As previously mentioned, the Legislature intended to
lend a greater degree of predictability to when and under what
circumstances licensed alcoholic-beverage servers would be
subject to dram-shop liability. The Legislature made its purpose
That purpose would be severely undermined by allowing
various administrative regulations to provide alternative
standards of care for alcoholic-beverage servers. Allowing
administrative regulations to serve as proxies for negligence
would introduce unpredictability into dram-shop liability. As a
result, alcoholic-beverage servers and licensees would have
difficulty obtaining insurance and we would defeat the purpose of
Plaintiff mistakenly relies on Geherty v. Moore,
Super. 463 (App. Div. l990), certif. vacated, l
27 N.J. 287
(l99l), and other pre-Act cases for the proposition that
violation of administrative regulations constitutes negligence.
Because the Act is exclusive, administrative regulations are no
longer proper benchmarks of a licensee's duty.
was. Plaintiff's argument is merely an attempt to introduce the
administrative regulations through the back door. Not only would
such an instruction be confusing, it would also be illogical to
hold that violating some standard of care is not evidence of
negligence but can be evidence of the degree of negligence. The
argument simply makes no sense.
not conclusive on the issue of negligence in a civil action but
it is a circumstance which the trier of fact should consider in
assessing liability"); see also Driscoll v. Department of
625 N.J. Super. 503, 514 (Law Div. 1993) (noting that
"any violation of [a] regulation is not conclusive on the issue
of negligence in a civil action but merely a circumstance which
is to be taken into consideration upon assessing liability"). We
do not depart from that well-established principle today, but
merely hold that trial courts in dram-shop Act cases may not
instruct the jury that violations of administrative regulations
evidence a defendant's negligence.
We turn now to the interaction of comparative negligence and dram-shop liability under the Act. By its express terms, the Act provides that a plaintiff's (in this case decedent's) contributory negligence can limit a defendant's liability under the Act. N.J.S.A. 2A:22A-6 provides in relevant part:
Damages may be awarded in a civil action under P.L. l987, c. l52 (C. 2A:22A-l et seq.) subject to the limitations set forth in this section.
a. The provisions of sections l and 2 of
P.L. l973, c. l46 (C. 2A:l5-5.l and C. 2A:l5-5.2) shall apply in all civil actions
instituted pursuant to the provisions of this
Thus, in causes of action under the Act in which "the question of liability is in dispute," the trier of fact must determine "[t]he extent, in the form of a percentage, of each party's negligence .
. . [assuming that] the total of all percentages of negligence of
all parties to a suit shall be l00%." N.J.S.A. 2A:l5-5.2.
the Legislature's decision to supplant the harsh doctrine of
contributory negligence with comparative negligence. In Soronen,
we rejected the tavern owner's defense of contributory negligence
in an action brought by the survivors of a tavern patron who had
died as a result of falling off a bar stool and striking his head
on a metal column. Id. at 596. In Buckley, we reasoned that the
impetus behind the Soronen rule -- precluding a negligent tavern
owner from being completely insulated from liability due to even
slight negligence on the part of a plaintiff -- had lost its
force in light of the adoption of comparative negligence. l0l
N.J. at 77-78.
suggests a legislative intent contrary to our decision in Lee.
In fact, we were fully cognizant of the Act in our decision in
Lee and we concluded then, as we do now, that the principles set
forth therein are completely "consistent with the apparent intent
of the Legislature in enacting the Act." Id. at l83.
Thus, we struck a balance between the unfairness of the Soronen rule, which could potentially lead to holding a tavern l00" liable where it was only l" responsible, 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. Comparative negligence was still an available defense after
Lee, but ordinarily a plaintiff's decision to engage in conduct
after the point of intoxication would not be evidence of the
plaintiff's own negligence. That is because in the ordinary case
a jury instructed to evaluate whether a plaintiff could
appreciate the risk of driving while intoxicated would tend to
focus on the plaintiff's voluntary intoxication and not the
defendant's act of serving the visibly-intoxicated patron.
Plaintiff argues that the trial court's charge to the jury on comparative negligence unfairly emphasized decedent's negligence in drinking and driving after the point of intoxication. Plaintiff contends that the trial court's instructions on comparative negligence impermissibly informed the jury that it should find decedent negligent if she retained some ability to appreciate the risk of driving in an intoxicated state and yet decided to drive. Plaintiff maintains that this Court's decision in Lee, supra, explicitly prohibits a trial court from instructing a jury that an intoxicated patron's decision to drive is evidence of negligence. According to plaintiff, Lee requires trial courts to instruct jurors that once they find that a defendant served a visibly-intoxicated person, they should presume that the intoxicated person lacked the capacity to evaluate the risk of driving while intoxicated. In other words, in the face of defendant's negligence, decedent's decision to drive after the point of intoxication cannot be evidence of her contributory negligence.
In this case, the trial court did not have the benefit of our decision in Lee before it charged the jury. As a result, it instructed the jury in accordance with the Appellate Division's decision in Lee and our decision in Buckley. Specifically, the trial court instructed the jury as follows on the issue of comparative negligence.
We talk about her negligence as terms of
comparative negligence or contributory
negligence and let me address that for a
moment. * * *
When I say a reasonably prudent person I mean
not the most cautious person in the world or
somebody who is unusually bold, but a person
of reasonable caution and prudence. And you
must determine whether Mrs. Lapollo has
conformed to or departed from that standard
of care. A driver is not absolved from
responsibility by virtue of voluntary
intoxication. A drunk driver can be
responsible for the accident if the driver
fails to exercise reasonable care for her own
safety. An intoxicated driver's
circumstances are to be assessed by you in
order to determine whether and to what extent
that person's appreciation of the risk was
still effective, notwithstanding some level
of inebriation. So you want to think about
to what extent was Mrs. Lapollo's rational
decision making ability impaired by
intoxication; did she retain some ability to
appreciate that she was not fully capable of
operating a vehicle. If and if she retained
the accident (sic) one degree or another to
appreciate her limitations due to liquor, and
yet she voluntarily exposes herself to a
manifest danger which she otherwise could and
indeed a sober person in the exercise of
ordinary foresight and prudence would have
avoided, then she would be guilty of
comparative or contributory negligence.
Remember what you are assessing are the
relative degrees of responsibility for the
claim that Mrs. Lapollo got drunk because of
that intoxication, drove into a one car fatal
accident; the licensed beverage server is
responsible for consequences of the accident
if the server causes the drinker, here Mrs.
Lapollo, to fail to control her own actions
or appreciate the risk surrounding her
conduct, and of course she is responsible for
her own acts to the extent that she could
appreciate the limitations and despite those
limitations caused by drinking decided to get
into the car and drive anyway.
Like the Appellate Division, we agree with plaintiff that
the trial court's comparative-negligence charge did not adhere to
the outline we provided in Lee for the ordinary dram-shop case.
The trial court did not instruct the jury to presume that
plaintiff's decedent lacked the capacity to evaluate the ensuing
risks of driving while intoxicated. Instead, the court
instructed the jury to determine whether plaintiff's decedent had
retained the ability to appreciate the risks associated with
driving in her condition. If the jury concluded that she had
retained the capacity to appreciate the risk, it should find that
she had been contributorily negligent.
But this is not an ordinary case. Here, "exceptional circumstances" existed. Decedent, the tavern's bartender, served herself. She did so despite her obligation not to drink at all while on duty. Additionally, she had been trained in alcohol management and knew, more so than the average patron, the signs and ramifications of intoxication. Such training as well as her occupational experience had equipped decedent with an increased ability to assess the progression of intoxication and to understand the debilitating effect of excessive drinking. See Kelly v. Gwinnell, 96 N.J. 538, 565 (1984) (acknowledging that experience of alcoholic beverage licensees and their employees
gives them certain expertise in determining levels and degrees of
intoxication) (Garibaldi, J., dissenting). We did not intend
that the presumption we established in Lee would apply to the
circumstances of this case. That is precisely why we were
careful in Lee to explain that a court should not instruct the
jury to determine the extent to which the patron had retained
some capacity to appreciate the risk of engaging in the activity
that led to the accident, "absent exceptional circumstances."
l27 N.J. at l84 (emphasis added). Moreover, we stated that a
court should "ordinarily presume the patron's lack of capacity to
evaluate the ensuing risks." Ibid. (emphasis added). We find
the circumstances of this case to be exceptional, such that the
trial court's failure to instruct the jury on the Lee presumption
was not erroneous.
Latta v. Caulfield, 79 N.J. l28, l35 (l979) (finding that
"[r]eversible error will not be found where the charge,
considered as a whole, adequately conveys the law and would not
confuse or mislead the jury, even though part, standing alone,
might be incorrect"); Jurman v. Samuel Braen, Inc.,
47 N.J. 586,
59l-92 (l966) (stating that jury charge "must outline the
function of the jury, set forth the issues, correctly state the
applicable law in understandable language and plainly spell out
how the jury should apply the legal principles to the facts as it
may find them").
Hackensack River Sanitary Sewer Dist. Auth., l
8 N.J. 294, 3l5
(l955) (holding that unless error in jury instruction was
prejudicial to party's substantial rights, no reason exists to
reverse trial court); Lang v. Baker, l
95 N.J. Super. 430, 434
(App. Div. l984) (holding that error in instructing jury on
controlling law that has no capacity to lead to unjust result is
harmless), rev'd on other grounds, l0l N.J. l47 (l985); Jorgensen
v. Pennsylvania R.R. Co.,
38 N.J. Super. 3l7, 339 (App. Div.
l955) (holding that erroneous jury instruction does not require
reversal unless error is prejudicial because inconsistent with
substantial justice), certif. denied,
20 N.J. 308 (l956).
This case involved a tragic accident. Because plaintiff and her family have had to bear the full burden of the tragedy, they have a natural tendency to resist assigning blame to the decedent. She was, after all, the victim of the accident. Yet, we know that she was also the victim of her own conduct. "Our statutory and case law reflect the compelling public policy that those who voluntarily become intoxicated must be held responsible for the consequences of their behavior." Lee, supra, 127 N.J. at 182. As Justice O'Hern eloquently stated in Buckley, "In a self-governing society, law derives much of its normative force from acceptance and understanding of the justness of its principles."
101 N.J. at 82 (O'Hern, J., concurring). Here, the jury reached
a just result in accordance with the applicable law. We see no
reason to disturb that result.
Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein join in this opinion.
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