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Wednesday, March 26, 2008

Sebok on "New Duty" for New Jersey Restaurants to Protect Bar Patrons

In this week's Writ Column on FindLaw, Tony Sebok analyzes an interesting dram shop case in New Jersey:  Bauer v. Nesbitt.  As Sebok explains, Bauer involved several young men who were drinking at the C View Inn in Cape May, NJ.  One young man, James Hamby, was visibly intoxicated.  He left with his friend Frederick Nesbitt, who was not visibly intoxicated and - to the restaurant's knowledge - had been drinking soda all evening.  Nesbitt crashed his car, killing Hamby.  Hamby's estate sued Nesbitt and the C View Inn under New Jersey's Dram Shop Law.  The trial court dismissed the suit against the C View Inn, but in a recent opinion, the appellate court reversed.   

As Sebok notes, the appellate court "held that the risks that the Dram Shop Act was intended to prevent were not just accidents resulting from drunk-driving, but also any accidents that could foreseeably result from intoxication."  Sebok argues that the appellate court "created a new duty in Bauer. It essentially held that since Hamby, the passenger, was visibly drunk, the bar had a duty to protect him against his own bad judgment which led him to accept a ride from Nesbitt, the driver. The problem with this logic, however, is that while Nesbitt was too drunk to drive, and Hamby knew it, the staff at the bar did not."

The full column analyzes the underlying rationales of the decision, the precedents cited by the court, and the potential policy implications.  Give the column a read!


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The actual record in Bauer substantially undermines the claim that Nesbitt was not visibly intoxicated. His companions testified that he was loud and boisterous and using foul language. An expert also opined, based on Nesbitt's blood alcohol level of .199 at the ER, that Nesbitt would have been showing obvious signs of inebriation at the restaurant.

But what the restaurant knew about Nesbitt is neither here nor there, because according to the opinion, there is no evidence that the restaurant had any idea that Nesbitt would be driving. The problem of which the restaurant was aware was that Hamby was roaring drunk -- so drunk that he placed his genitalia on the table to show the female server his piercings. The restaurant commonly called a taxi for patrons in such a condition. But from the opinion, it appears the restaurant took no steps here to arrange safe transportation for Hamby. It helped get him wildly drunk (I say "helped" because he'd been drinking before he arrived), and then it left him to his own devices.

Posted by: Peter Nordberg | Mar 26, 2008 7:07:42 AM

1)The requirement for liability is "visible intoxication." The trial judge read that correctly in the statute. The appellate court, I always thought, was not there to reverse findings of fact by the trial judge.

See the definition section.

2) The case should get reversed on policy grounds by the NJ Supreme Court. It is the policy of the NJ legislature to not cause liability insurance to rise so high as to destroy much of the tourism business. The latter is surprisingly big in New Jersey. This appellate decision jeopardizes that explicit legislative intent.

3) The phenomenon of acute tolerance exists with alcohol. The effect of the brain is great in the upsweep of the blood alcohol curve. As it descends, alcohol has much less effect, despite being at the same blood level as on the way up.

Thus a high alcohol blood level does not automatically mean visible intoxication. Experienced dram shop defense specialists know all about this established effect. I am curious about its absence as a defense here, even after witnesses testified otherwise. Was the loudness and cursing taking place at the time they left?

Sorry about inclusion of this abstract. I could not figure out how to link to it.

"Alcohol Clin Exp Res. 1993 Apr;17(2):211-6. Measurement of acute tolerance to alcohol in human subjects. Martin CS, Moss HB.

Acute tolerance can be defined as a decrease in response to alcohol within a single exposure to the drug, which occurs independently of changes in blood alcohol concentrations (BACs). BACs change over time in most human alcohol administration studies, and computational techniques that account for these changes must be used to measure the rate of acute tolerance development. The most widely used acute tolerance measure in human research is often called the Mellanby effect, and involves the comparison of responses at the same BAC on the ascending and descending limbs of the blood alcohol curve. We compared the Mellanby measure with two other measures of acute tolerance: a conceptually similar area under the curve measure, and a slope function approach that used data only from the descending limb of the blood alcohol curve. The measures were intercorrelated and discussed with regard to empirical and conceptual issues. Exploratory comparisons of those with and without a family history of alcoholism are reported. Methodological recommendations for the computation of acute tolerance are made. The results suggest new methods for measuring the rate of acquisition of acute tolerance, and suggest areas for future research on tolerance-proneness and risk for alcoholism."

Posted by: Supremacy Claus | Mar 26, 2008 11:39:04 AM

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