DWI Killer May Recover Against Bar Where He Got Drunk – Bauer v. Nesbitt

In this morning’s Appellate Division holding in Bauer v. Nesbitt, the Court ruled that New Jersey common law provides a basis for a person who secretly drank alcoholic beverages in a bar to the point of intoxication to sue the bar where he got drunk due to the bar’s negligent failure to protect him from himself. In Bauer case, an underage person entered a bar with a group of friends. While at the bar he ordered Cokes. These drinks were secretly “spiked” with rum under the table by his friends and knowingly consumed by the youth. Although there was no evidence to suggest that the bar ever directly served him any alcoholic beverages, as time went on at the bar, the youth became visibly intoxicated. He subsequently left the bar and operated a motor vehicle that became involved in an accident that killed of one of his passengers. The young driver was ultimately prosecuted, convicted of homicide and sent to prison.

The Appellate Division concluded that while the driver may have no cause of action against the bar under the Dram Shop Act, NJSA 2A:22A-5, New Jersey common law would recognize a cause of action for negligent supervision against the bar. Even when a bar has not knowingly served alcohol to a patron, it has an affirmative duty to take reasonable steps to ensure that a visibly intoxicated patron will not be injured. Although this cause of action has always been applied in cases involving sexual assaults and other types of violence in bars, as a result of today’s decision, the same common law principles apply in drunk driving cases. In short, regardless of where the drinking occurred, if a jury were to find that the underage drinker was visibly intoxicated while in the bar, it could also conclude that the bar management had an affirmative, common law duty to protect him from the foreseeable risk of injury to himself or others that might flow from an automobile accident.

Download a copy of Bauer v. Nesbitt.

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