On June 1, 2011, in Voss v. Tranquilino, No. A-110-09 (N.J. June 1, 2011),
the New Jersey Supreme Court, affirming the judgment of New Jersey's Appellate
Division, held, in a per curiam opinion from which two Justices
dissented, that a driver of a motor vehicle who is convicted of, or pleads
guilty to, driving while intoxicated ("DWI"), N.J.S.A. § 39:4-50(a), may
recover damages under the New Jersey Licensed Alcoholic Beverage Server Fair
Liability Act, N.J.S.A. §§ 2A:22A-1 - 2A:22A-7 (the "New Jersey Dram Shop
Act" or the "Dram Shop Act"), from a bar or restaurant that served him
alcoholic beverages when he was visibly intoxicated before the motor vehicle
collision. For this author's June 9, 2010 post on the New Jersey's
Appellate Division's decision in Voss which the New Jersey
Supreme Court upheld, see here.
New Jersey's court of last resort's decision confirms that
it is crucial for bars, restaurants, and other liquor licensees in New Jersey
to adopt, and to train their workers on, responsible policies for the service
of alcohol to customers.
In Voss, the New Jersey Supreme Court held that a
bar or restaurant may be liable to a convicted drunk driver to whom that
establishment had served alcoholic beverages while the driver was visibly
intoxicated, even though a 1997 anti-drunk-driving amendment to the motor
vehicle insurance law, codified as N.J.S.A. § 39:6A-4.5, declares that a person
convicted of DWI "shall have no cause of action for recovery of economic or
noneconomic loss sustained as a result of" the motor vehicle collision.
In Voss, the New Jersey Supreme
Court explained that, were it to construe the 1997 amendment to the
motor vehicle insurance law to prohibit convicted drunk drivers from suing dram
shops that served them alcohol when they were visibly
intoxicated, the 1997 amendment would implicitly repeal that portion of the New
Jersey Dram Shop Act stating that "a person who sustains personal injury
or property damage as a result of the negligent service of alcoholic beverages
by a licensed alcoholic beverage server may recover damages from a licensed
alcoholic beverage server" if "the server served a visibly intoxicated
person." N.J.S.A. § 2A:22-A-5(a), 2A:22-A-5(b). The Voss
Court observed that "There is a strong presumption against repealing statutory
provisions by implication." According to the Court, the legislative
history of the 1997 act containing N.J.S.A. § 39:6A-4.5 did not suffice to
overcome that powerful presumption.
Rather, in Voss, the New Jersey Supreme Court
found that "the Legislature's overriding objective when enacting the 
legislation that contained N.J.S.A. [§] 39:6A-4.5(b) was to effect automobile
insurance reform," and that "[n]owhere in that [act's] legislative history was
there any suggestion that the statute would affect liability under the Dram
New Jersey's highest court's decision allows Frederick
Voss, a motorcyclist injured in a motor vehicle collision in Toms River in
2006, to pursue a claim that Tiffany's Restaurant served alcohol to Voss while
he was was visibly intoxicated, contributing to the collision. Voss pled
guilty to driving while intoxicated.
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