For information on New York liquor liability laws, please click here. Please also visit our Guide to Recovery of PIP in New Jersey and Guide to Recovery of PIP in New York which also feature other selected laws related to subrogation.
Please note that this document is provided as a reference guide only and is provided subject to this disclaimer.
Originally, common law did not recognize a cause of action by an injured person against anyone who provided alcohol to the person who eventually caused an injury. For instance, a person injured by a drunk driver could not sue the bar that sold the alcohol to the drunk driver. However, over time, courts, including New Jersey courts, developed grounds for liability where one negligently provided alcohol, which contributed to a person's injuries.. Eventually, the New Jersey legislature pulled back on the reigns by crafting "Dram Shop" and "Social Host" statutes that delineate the basis of liability for providing alcohol in certain situations. As the New Jersey Supreme Court explained, the Dram Shop statute was, "carefully crafted to balance both the needs of licensed alcoholic beverage servers to secure affordable insurance and the rights of victims to recover for the negligent service of alcohol." Mazzacano v. Estate of Kinnerman, 197 N.J. 307, 322 (2009). Somewhat similarly, the Social Host statute was designed to "establish for social hosts who serve alcoholic beverages a clear, statutory standard of liability that cannot be expanded or limited except by the Legislature itself." Senate Law, Public Safety & Defense Committee, Statement to Senate Committee Substitute for Senate Bill Nos. 1152 and 545--L.1987, c. 404 (March 6, 1986) quoted in Dower v. Gamba, 276 N.J. Super. 319, 325 (App.Div. 1994). An outline of New Jersey's liquor liability laws follows.
CONTENTS:
Basics of dram shop/social host liability:
Additional notes:
A Dram Shop, called a "Licensed alcoholic beverage server" in the statute, is anyone "licensed to sell alcoholic beverages" pursuant to New Jersey law, N.J.S.A. 2A:22A-3 (text available from Justia here - opens in new tab), for instance a bar or a night club. Under N.J.S.A. 2A:22A-5 (text available from Justia here - opens in new tab), a licensed servers can be found liable for serving alcohol only if each of the following apply:
BASICS OF SOCIAL HOST LIABILITY:
A Social Host is defined in N.J.S.A. 2A:15-5.5 (text available from Justia here - opens in new tab) as one who is hosting guests but neither holds a liquor license nor is required to hold a liquor license and legally provides alcohol to a person who is of legal age to purchase alcohol. Under N.J.S.A. 2A:15-5.6 (text available from Justia here - opens in new tab), a social host may be found liable for providing alcohol if all of the following apply:
ADDITIONAL NOTES:
Here are some other important notes about dram shop and social host liability:
Some language in Bauer does suggest that the New Jersey Supreme Court would not look kindly on claims for alternative bases for dram shop/social host liability. The Court wrote that "to permit a negligent-supervision cause of action to proceed in this case would fly in the face of the liability limits that the Legislature put in place in the Dram Shop Act." Id. at 613. On the other hand, the question of supervising a person who is served/provided alcohol was not before the Court in Bauer, and the court expressed particular consternation toward finding liability where the person "ate nothing more than chicken wings on the premises," and stated that, "[i]t is one thing . . . to be accountable for serving a visibly intoxicated patron an alcoholic beverage, it is another thing to serve that same person a Coca-Cola and still be responsible for his conduct once he leaves the premises[,]" id., suggesting that the case might have turned out differently had the intoxicated person been served any alcohol by the dram shop.
Truchan v. Sayreville Bar and Restaurant, Inc., 323 N.J. Super. 40, 52-53 (App.Div. 1999) may also provide some guidance on this question. The case involved a victim who was struck by a drunk driver. The Appellate Division affirmed dismissal of counts in the Plaintiff's complaint that included wrongful hiring, wrongful supervision of employees, failure to identify patrons at risk to become intoxicated, and "inappropriate exercise of the obligation to maintain the tavern premises as a safe environment after completion of actual service of alcoholic beverages." The Appellate Division agreed that, "some common law causes of action survive the Act." However, the court dismissed these counts, including the count related to maintaining a safe environment after serving alcohol because, "as best we can discern from this record, the common law claims plaintiff sought to assert against the Sayreville Bar all arose out of, and were related to, the negligent service of alcoholic beverages and are therefore barred by the exclusivity provisions of the Act." Id. at 53 (citations omitted). The Appellate Division did not explain further what forms of failure to maintain a safe environment after service of alcohol would be sufficiently separated from the service of alcohol so as to survive the Dram Shop Act's exclusivity provision.
Note that to the extent that the exclusivity provision limits a social host's liability for negligence not related to the providing of the alcohol, such restrictions would likely not apply to a social host's negligence regarding minors, because, as discussed above, the Social Host statute does not address service of alcohol to minors.
As noted, Lee states that the capacity of an intoxicated person to appreciate risks should not be considered "absent exceptional circumstances." Id. at 184. A number of cases demonstrate such exceptional circumstances:
Note that the Social Host statute does not address service of alcohol to minors. This is evident from the fact that N.J.S.A. 2A:15-5.5 defines a social host as one who provided alcohol to a person of legal age and from the fact that N.J.S.A. 2A:15-5.6 states that it is the exclusive civil remedy for the provision of alcohol to a person of age. As the New Jersey Supreme Court observed, this means that, "the Legislature specifically preserved full common-law liability of social hosts for damages caused by minors to others and even to themselves." Steele v. Kerrigan, 148 N.J. 1, 29 (1997)(dicta)(citations omitted) see further Camp v. Lummino, 352 N.J. Super. 414, 417 (App.Div. 2002) quoting Governor's Reconsideration and Recommendation Statement to S 1152 and 545, L. 1987, c. 404 ("The legislative history further indicates that the bill [was] not intended to affect the [then] current law regarding social hosts who serve individuals under the legal age to purchase and consume alcoholic beverages.").
In this case, the trial court correctly instructed the jurors that if "the Happy Hour Social & Athletic Club of Maple Shade allowed Mr. Kinnerman to consume alcoholic beverages when he was visibly intoxicated, then you must find the [Club] was negligent." The Legislature did not intend that a licensed alcoholic beverage server would benefit from willful blindness by hosting a party that permits the self-service of alcohol. For purposes of N.J.S.A. 2A:22A-5(b), a licensed alcoholic beverage server that places at the disposal of its patrons a "beer truck" for the self-service of alcohol is serving alcohol within the intendment of the statute. See Dower v. Gamba, 276 N.J. Super. 319, 326 (App.Div.1994), certif. denied, 140 N.J. 276, (1995) ("[W]e have no doubt that a commercial server who provides alcohol to a customer by a means other than direct service may nonetheless be liable under N.J.S.A. 2A:22A-5b, notwithstanding the use of the term 'serve' in the statute."). Thus, if a licensed alcoholic beverage server serves alcohol in this manner to a visibly-intoxicated person, it is acting negligently and is exposed to civil liability.
[O]nce 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 a tavern serves alcohol to a visibly-intoxicated patron, a court will ordinarily presume the patron's lack of capacity to evaluate the ensuing risks.
Id. at 184. Lee further states that:If, as here, the driver has been served alcohol by the tavern when visibly intoxicated, the 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.
Id. at 185-186. In other words, the intoxicated person's capacity to appreciate the risk of driving a car or being a passenger with someone who is intoxicated may not be considered, however, the negligent manner in which the car was driven as well as the intoxicated person's level of fault in getting intoxicated may be considered.
[W]e do not believe that the assaultive patron is 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. Such a presumption would, in the case of assaultive patrons, interfere with the jury's ability to focus properly on issues of foreseeability and causation in apportioning fault. Rather, the jury should be instructed to consider the patron's capacity to initiate or refrain from volitional assaultive conduct, as well as all other relevant evidence.