death by due

Who is to blame for causing a death by DWI?

Under the circumstances of this case, neither the common law nor the Dram Shop Act imposed a duty on the licensed alcoholic beverage server to monitor the appearance of a patron to whom it had not served alcohol

Bauer V. Newsbitt, A-16 September Term 2008; Supreme Court; opinion by Albin, J., decided May 7, 2009. On certification to the Appellate Division, 399 N.J. Super. 71 (App. Div. 2008)

The story:

This is a wrongful death-survival action initiated by Hamby’s mother, Kathleen Bauer against Nesbitt, Nesbitt’s mother and the C View Inn.  A group of friends, including Frederick Nesbitt III and James Allen Hamby were business invitees of the C View Inn on September 3, 2003. Nesbitt was under the legal drinking age. Hamby had provided Nesbitt with rum and beer prior to their arrival at the Inn.

The Inn did not serve Nesbitt any alcoholic beverage during his time there; however,  Hamby snuck a pint of rum into the Inn, and poured Newbitt shots of rum in the Coca-Cola Nesbitt was served by the Inn. The group of friends left the Inn between 9 p.m. and 9:30 p.m., with Hamby riding in Nesbitt’s car. At 10:35 p.m., Newbitt crashed into a guardrail and rolled over, killing Hamby.

Nesbitt’s blood sample yielded a 0.199 percent blood-alcohol concentration. Plaintiff’s alcohol expert opined that Nesbitt would have shown obvious signs of intoxication at the Inn.

Legal Theory against the C View Inn:

Plaintiff argued that the Inn had a duty to monitor Nesbitt, who was under the legal age to drink alcohol, and to ensure his safety and the safety of others if he appeared visibly intoxicated. The Inn negligently allowed Nesbitt to leave its premises in an intoxicated condition, posing a foreseeable risk of harm to others.

The Supreme Court held that a duty did not exist requiring the Inn to monitor a person to whom it did not serve alcohol. The court reversed the Appellate Division decision, which was based on a theory created by the Appellate Division; and was not raised by any of the litigants.  The Supreme Court rejected plaintiff’s expert’s conclusion that based upon a Blood Alcohol reading of 0.199, Nesbitt was visibly intoxicated during the time he was at the Inn as speculative.


Another tragic case of terrible judgment, young people, and alcohol. I believe the Supreme Court got it right. The Inn has a legal duty to monitor the appearance of the patrons to whom it serves alcohol; and stop serving liquor to any patron that is visibly intoxicated. Imagine how difficult this duty is to execute on a crowded Friday night, with hundreds of patrons drinking alcohol.  It is unreasonable to extend the duty to patrons who are under the legal drinking age, and are not being served alcohol.

Another example of bad facts for the plaintiff resulting in a bad decision for plaintiff; and having far-reaching implications on an area of law. Here you have Hamby guilty of serving alcohol to a minor prior to their arrival at the Inn; sneaking in a pint of rum and serving Nesbitt during their visit to the Inn. Afterwards, getting in the car with this underage drinker, allowing him to drive.  Who better than Hamby to know that Nesbitt was intoxicated? Who better than Hamby to take action to prevent Nesbitt from driving? Hamby was the guy responsible for this tragic accident, which resulted in his death.  Horrible, horrible.

Are we growing a generation of finger pointers? When you make a terrible mistake there are going to be terrible consequences. Take responsibly for your actions and act responsibly; especially when it comes to drinking and driving

Please comment. Your opinion matters

Please comment. Your opinion matters

Where does liability end and responsibility begin?


About Lawrence "Larry" Berezin

I retired from the private practice of law after a 35-year legal career and fight parking tickets for people like you and me. I love sharing valuable information and beating NYC parking tickets for the driving community in NYC

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