Whenever you prosecute an action under New Jersey’s Dram Shop Act, the liquor license holder will invariably seek to place the blame for the claim on the drunk driver (DWI).  In addressing these contentions, it is important to know that the liability for the drunk driver’s (DWI) post-visibly intoxicated decision to drive can be imputed to the liquor license holder.  To be seen below, there is a significant distinction between a drunk driver’s (DWI) post-visibly intoxicated decision to drive and his/her pre-visibly intoxicated decision to drink.  Absent extraordinary circumstances,  the drunk driver (DWI) is presumed not to have contributed to the losses resulting from a  post-visibility intoxicated decision to drive and, while the drunk driver (DWI) may have some conceptual liability for the decision to become intoxicated, the practical influence of the facts in some cases may direct otherwise.  Keep a close eye on those facts.

Apportioning fault between a liquor license holder and its intoxicated customer in a Dram Shop Case requires an analysis of the Dram Shop Act and the Comparative Negligence Act.  In fact, the Dram Shop Act specifically provides that the Comparative Negligence Act “shall apply in all civil actions instituted pursuant to the provisions of this act.”  The original version of the Dram Shop Act, enacted after the adoption of the Comparative Negligence Act, intended to bar recovery for individuals that became voluntarily intoxicated.  In order to prevent such a harsh result, the Dram Shop Act permitted the application of the comparative negligence principles which was a decision anchored in the  “public policy of the state.” 


The issue of whether the Comparative Negligence Act applied to suits under the Dram Shop  Act was first addressed by the Supreme Court in Lee v. Kiku Restaurant.  There, the Court held: “that in dram-shop litigation a jury should apportion fault between the patron and the tavern based on the extent to which each party’s negligence contributed to the plaintiff’s injuries.  Thus, in determining a patron’s fault, a jury may consider the extent to which the plaintiff’s injuries were caused by the patron’s conduct in drinking to the point of intoxication.  Similarly, the jury will consider the extent to which the tavern’s actions in serving the patron after obvious intoxication contributed to the plaintiff’s injuries.”
Thus, a jury’s attention in a dram shop case should be directed to both post-and-pre-visibly intoxicated conduct.

Parenthetically, it should be recognized that these principles of comparative negligence apply to dram shop cases where the patron is the plaintiff or a joint tortfeasors. Lee, supra.

  1.  Post-Visibly Intoxicated Decision to Drive

In a rather succinct statement of law, the court in Lee, held that:

        “once a jury determined that a tavern continued to serve drinks to a visibly-intoxicated patron, the jury should not be instructed, absent exception 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 ensuring risks.” (emphasis supplied). 

Resultantly, a patron’s conduct after the point of intoxication shall not be considered when determining that patron’s comparative negligence. One case said rather clearly that “ordinarily a plaintiff’s decision to engage in conduct after the point of intoxication would not be evidence of the plaintiff’s own negligence.”  See also, Steele v. Kerrigan; Petitto v. Sands Hotel & Casino, Inc., (a jury could not consider the patron’s failure to wear a set belt because the decision not to wear the seat belt was after “the point of intoxication.”)

  2.    Pre-Visibility Intoxicated Decision to Drink

If a jury determines that a liquor license holder has over-served a patron, its “responsibility may be diminished only to the extent that the [patron’s] drinking prior to the point of intoxication contributed to his or her inability to appreciate the risk of his or her behavior.”

In a case we recently tried for four weeks and returned over a two million dollar verdict, the drunk driver (DWI)  testified that she left her vehicle at a tavern because she did not want to drink and drive and that the reason she went to another tavern with another couple was because they promised to take her home.  It was this promise that induced her to continue to drink at the second tavern.  In addition, when the couple drove the drunk driver to her vehicle at the first tavern, she was profoundly drunk and, as a result, they had an unyeilding responsibility to take her home, even if a jury concludes that the couple did not originally promise to take her home.

Resultantly, to the extent that this drunk driver (DWI) may have some liability for death of our clients’ husband and father because of her decision to drink prior to her post-visibly intoxicated state that liability was superceded by the couples negligence whether in the breach of their promise to take the drunk driver (DWI)  to her home or their home; or the breach of their duty to take her home because of her elevated  state of intoxication.  Showaither v. Barilari, Inc., (superceding cause is one that entirely supersedes the original tortfeasors negligence).  In short, the drunk driver (DWI) should have no pre-visibly intoxicated liability for her voluntary decision to drink because of the special facts of the case.