On May 7, 2009, the New Jersey Supreme Court took a step toward limiting the duty owed by a purveyor of alcoholic beverages to its patrons.  In Bauer v. Nebbitt, 399 N.J. Super. 71 (2009), the state Supreme Court held that neither the common law nor New Jersey Jersey's Dram Shop Act (N.J.S.A. 2A:22A-1 et seq.) imposes a duty upon businesses to monitor a patron's intoxication level where no alcoholic beverages were served to the patron.

Bauer involved a tragic car accident in which the passenger of a vehicle driven by Frederick Nesbitt was killed.  Mr. Nesbitt's blood alcohol level was .199% at the time of the accident.  Prior to the crash, Nesbitt and four friends went to the C View Inn (the "Inn") where everyone but Nesbit was served alcoholic beverages.  However, it was alleged that Nesbitt was provided alcohol by his friends both before, and possibly after, visiting the Inn.  Although no eyewitness testimony was provided to establish that Nesbitt was visibly intoxicated while at the Inn, expert testimony was offered that Nesbitt was above a .10 %BAC when at the Inn and would have shown obvious signs of intoxication.

The Supreme Court of New Jersey held that "because the Inn did not serve alcohol or allow alcohol to be served to Nesbitt, under the Dram Shop Act it had no duty to monitor Nesbitt to ensure that he was not intoxicated."  The Court made clear that no duty would extend to the Inn even if Nesbit was in fact intoxicated. The Court further held that under the circumstances of the case, no claim of negligent supervision could be asserted, stating that "to permit a negligent-supervision action to go forward in this case would eviscerate the protections given to licensed alcoholic beverage servers in the Dram Shop Act."  The Court reasoned that if liability were imposed on the Inn, "every license holder whether a diner or tavern, would be potentially liable if a person ate nothing more than chicken wings on the premises, but had consumed alcohol earlier off-premises to the point of intoxication.  It is one thing, under the Dram Shop Act, 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."


Anastasius (Tassos) Efstratiades is a partner in the Philadelphia and Cherry Hill offices of Obermayer Rebmann Maxwell & Hippel LLP. He is a member of the firm's Business and Finance Department.  He can be reached at tassos@obermayer.com or 215-665-3030 or 856-957-1424.

Matthew A. Green is an associate in the Philadelphia and Cherry Hill offices of Obermayer Rebmann Maxwell & Hippel LLP.  He is a member of the firm's Litigation Department and the Labor Relations and Employment Law Department.   He can be reached at matthew.green@obermayer.com or 215-665-3000 or 856-795-3300.

The information contained in this article should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.