July 20, 2009

Bartenders have a duty not to serve alcohol to visibly intoxicated persons or minors both under the common law and the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act. But what is their obligation to people who are already drunk and who they have not served? Is the bartender responsible for monitoring that intoxicated person, when the drinking happened somewhere else?

In the recent case Bauer v. Nesbitt, the New Jersey Supreme Court reviewed a suit filed by the mother of a passenger killed in a drunk driving accident. The driver of the car had been drinking, and according to the decision, had a .199 blood alcohol content. Among the defendants in the lawsuit was the inn where the group had been the evening of the accident. The driver had been drinking elsewhere, but the group presented him as the designated driver to the inn’s staff. Importantly, while he was intoxicated that night, the driver was not served alcohol at the inn.

The Supreme Court found that in order to sustain a liability award against an alcoholic beverage server, a plaintiff must also show that the injury or damage was proximately caused by and a foreseeable consequence of the negligent service of alcohol. Where, as in Bauer, the inn did not serve alcohol or allow alcohol to be served to the individual, it had no duty to monitor him to ensure that he was not intoxicated. The Supreme Court refused to permit what amounted to a negligent-supervision cause of action to proceed because to do so would impose upon servers the duty to monitor every guest, including those to whom no alcohol was served, for signs of possible intoxication. That, according to the Court, was not intended by the Legislature when enacting the Licensed Alcoholic Beverage Server Fair Liability Act, which covers the service of alcohol.

The Court ultimately found that the inn’s employees were not responsible for the accident in this case, but restaurant, inn and bar owners, servers and employees should carefully review their operating procedures to ensure that they are providing a safe environment to their patrons. While not at issue in Bauer, the Court made it clear that a business owner still has a duty to safeguard a patron from a foreseeable danger and in situations where there is an indication that a patron would be a menace after leaving the establishment, came short of holding that no duty could exist.

Ryan P. Kennedy is an associate of Hill Wallack LLP in the Princeton office where he is a member of the Real Estate Division, Banking & Secured Transactions, Eminent Domain and Regulatory & Government Affairs Practice Groups. He concentrates his practice in all aspects of commercial real estate acquisition and development, with particular emphasis on complex negotiations, redevelopment, condemnation and transit oriented development.