Mazzacano v.Happy Hour Social and Athletic Club of Maple Shade, Inc. (A-102-07)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).

Mazzacano v.Happy Hour Social and Athletic Club of Maple Shade, Inc. (A-102-07)

Argued October 6, 2008 -- Decided January 22, 2009

ALBIN, J., writing for a unanimous Court.

The Court considers whether a licensed alcoholic beverage server can be held liable for civil wrongful death
under the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act (Dram Shop Act or Act), N.J.S.A.
2A:22A-1 to -7, for failing to monitor a patron who became intoxicated at a party where the patrons served
themselves alcohol.

Defendant Happy Hour Social and Athletic Club of Maple Shade, Inc. (the Club) is a non-profit organization
formed for the purpose of helping community children. The New Jersey Division of Alcohol Beverage Control
issued to the Club a limited social-affair permit to dispense alcohol at its yearly picnic to benefit community athletic
teams. Guests were able to serve themselves beer from a tap in a specially-provisioned truck for the occasion. No
one was assigned by the Club to stand by the beer truck to determine whether a patron was intoxicated. After the
party, one of the guests, while driving three other guests to a bar, lost control of his car, causing the deaths of all
four. An autopsy of the driver revealed that his blood alcohol content was almost twice the legal limit.

At a civil wrongful death trial brought under the Dram Shop Act, multiple witnesses testified that the driver did
not appear intoxicated. The plaintiff’s toxicology expert conceded that a very small percentage of people might not
seem visibly intoxicated at the level recorded for the driver. Before the jury deliberated, it was instructed on the
applicable law under the Dram Shop Act. The trial court charged the jury that the Club was negligent if it provided,
served or allowed to be provided alcoholic beverages to a visibly-intoxicated person. In response to a question by
the jury during its deliberations whether the Club had the responsibility to monitor alcohol consumption, the court
reminded the jury that if it found the Club “allowed” the driver to consume alcohol when he was visibly intoxicated,
it must find the Club negligent. The jury found that the Club did not negligently provide alcoholic beverages to the
driver when he was visibly intoxicated. The trial court denied a motion for a new trial by the plaintiff, finding no
basis to reverse its prior legal rulings and finding further that the verdict was not against the weight of the evidence.
A two-judge majority of the Appellate Division panel affirmed in an unpublished decision. In a dissenting
opinion, the third panel member asserted that in cases involving the self-service of alcohol, the Dram Shop Act had
an “evident gap” that the court should fill. In his view, the jury should have been instructed that the Club had a
responsibility to monitor alcohol consumption and, if it found the Club failed to meet that responsibility, the jury
should have been instructed that it was free to infer that the driver served himself alcohol while he was visibly
intoxicated.

To decide the appeal-as-of-right arising from the dissent in the Appellate Division, the Supreme Court considered
whether the trial court erred by not instructing the jury that a licensed alcoholic beverage server could be liable
under the Dram Shop Act for failing to monitor patrons for intoxication at parties involving the self-service of
alcohol.

HELD: The New Jersey Licensed Alcoholic Beverage Server Fair Liability Act permits a finding of liability when
a licensed alcoholic beverage server allows a patron to become visibly intoxicated through the self-service of
alcohol at a party. However, the Act does not impose a separate duty to monitor alcohol ingestion or define
negligence as the failure to monitor, and the Court declines to impose a monitoring duty that is not set forth in the
Act. In this civil action arising from the deaths of party-attendees who were riding in a car driven by another
attendee who became intoxicated at the party through the self-service of alcohol, there was sufficient evidence in the
record to support the jury’s verdict that the server did not negligently provide alcohol to the driver when he was
visibly intoxicated.

2
1. The Dram Shop Act is the exclusive remedy for personal injury or property damage resulting from the negligent
service of alcoholic beverages by a licensed alcoholic beverage server. Under the Act, a licensed alcoholic beverage
server can be held liable only if (1) the server is deemed negligent; (2) the injury or damage was proximately caused
by the negligent service; and (3) the injury or damage was a foreseeable consequence of the negligent service. Also
under the Act, a licensed alcoholic beverage server is negligent only when the server served a visibly intoxicated
person or served a minor. (Pp. 15-16).

2. The Club does not deny that the self-service of alcohol constituted service of alcohol under the Dram Shop Act,
and the trial court correctly instructed the jurors that if the Club “allowed” the driver to consume alcoholic
beverages when he was visibly intoxicated, it must find the Club negligent. The Legislature did not intend that a
licensed alcoholic beverage server would benefit from willful blindness by hosting a party that permits the self-
service of alcohol. A licensed server that places at the disposal of its patrons a beer truck for the self-service of
alcohol is serving alcohol within the intendment of the Act. If a licensed server serves alcohol in this manner to a
visibly-intoxicated person, it is acting negligently and is exposed to civil liability. Because this exposure to liability
can result in economic ruin from a lawsuit and the inability to secure insurance in the future, a licensed server has a
strong economic incentive to monitor the condition of persons served alcohol. (Pp. 16-18).

3. This case centers on one question—whether the driver was allowed to serve himself alcohol while visibly
intoxicated. If anyone had observed the driver visibly intoxicated before he left the Club’s grounds, the jury would
have been free to infer that the Club had allowed him to drink while intoxicated. No one who observed the driver
during the picnic, however, was of the opinion that he met the Dram Shop Act’s definition of visibly intoxicated.
Although plaintiff’s toxicologist relied on statistical evidence that most people possessing a blood alcohol content
identical to the driver’s would have shown signs of intoxication, he indicated that not all will do so. It was the jury’s
task to decide what weight to give to the testimony of the witnesses and the expert. Ultimately the jury determined
that the Club did not negligently provide alcoholic beverages to the driver when he was visibly intoxicated. The
Court concludes that there was sufficient evidence in the record to support that verdict. (Pp. 18-19).

4. With regard to the conclusions of the dissenting Appellate Division judge, the Legislature clearly signaled that
the Dram Shop Act is the exclusive civil remedy for the negligent service of alcoholic beverages by a licensed
alcoholic beverage server. The Act’s language strongly suggests that the Legislature did not want our courts adding
civil remedies through either the common law or creative statutory construction not found in the Act itself. The
Court cannot and should not rewrite a plainly written enactment of the Legislature or write in an additional
qualification that the Legislature pointedly omitted. The Court declines to adopt the dissenting judge’s approach,
which would create a judicial standard not intended by those who wrote and enacted the Act. (Pp. 20-23).

5. In summary, the Dram Shop Act permits a finding of liability when an establishment allows a patron to become
visibly intoxicated through the self-service of alcohol at a party. For that reason alone, a licensed alcoholic beverage
server has a compelling economic interest to monitor the intake of alcohol. The Club did not benefit from the
absence of monitors; rather it unnecessarily exposed itself to a potentially staggering liability award. However, the
Act does not impose a separate duty to monitor alcohol ingestion. Nor does it define negligence, which is the only
available cause of action in the Act, as the failure to monitor. Rather, as specifically stated in the Act, a licensed
alcoholic beverage server is negligent only when the server served a visibly intoxicated person or served a minor.
The Legislature is free to enact higher standards, such as a duty to monitor, than those presently found in our
statutes. (Pp. 23-24).

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE, RIVERA-SOTO and
HOENS join in JUSTICE ALBIN’s opinion.

SUPREME COURT OF NEW JERSEY
A-102 September Term 2007


DIANE M. MAZZACANO,
Administratrix ad
Prosequendum and General
Administratrix of the Estate
of STEPHEN N. MIKALIC,
Deceased,

Plaintiff-Appellant,

v.

THE ESTATE OF JOHN A.
KINNERMAN, Deceased, RITCHIE
& PAGE, DISTRIBUTING CO.,
INC., ANHEUSER-BUSCH, INC.,
STEPHEN JOHN KANICKIJ, JOHN
DOE and JANE DOE, Fictitious
Individuals,

Defendants,

and

HAPPY HOUR SOCIAL AND
ATHLETIC CLUB OF MAPLE SHADE,
INC.,

Defendant-Respondent.


Argued October 6, 2008 – Decided January 22, 2009

On appeal from the Superior Court, Appellate
Division.

Kenneth D. McPherson, Jr., argued the cause
for appellant (Waters, McPherson, McNeill,
attorneys; Mr. McPherson, Eric D. McCullough
and Robert S. Lipschitz, on the brief).

Terrence J. Bolan argued the cause for
respondent (Bolan Jahnsen Reardon,
2
attorneys; Elizabeth A. Wilson, on the
brief).


JUSTICE ALBIN delivered the opinion of the Court.
In this case, defendant Happy Hour Social and Athletic Club
of Maple Shade, Inc. (Happy Hour Social and Athletic Club or the
Club) was issued a limited permit to dispense alcohol at its
yearly “Pig Roast” picnic. Guests were able to serve themselves
beer from a tap in a specially-provisioned truck for the
occasion. At the end of the picnic, one of the guests, while
driving three others to a sports bar, lost control of his car,
causing the deaths of all four. At a civil wrongful death trial
brought under the New Jersey Licensed Alcoholic Beverage Server
Fair Liability Act (Dram Shop Act), N.J.S.A. 2A:22A-1 to -7, a
jury found the Club not liable for the accident, apparently
because the driver of the doomed vehicle did not appear to be
visibly intoxicated when he left the picnic.
The trial court had charged the jury that if the Club
allowed the service of alcohol to a visibly-intoxicated person,
then liability would follow, provided that the service of the
alcohol was the proximate cause of the victims’ injuries and
deaths. The trial court rejected the theory that the Club had
an independent duty under the Dram Shop Act to monitor the
guests serving themselves beer and that the failure to do so,
standing alone, could be the basis for liability. A divided
3
appellate panel affirmed the trial court’s rulings and the jury
verdict.
A dissenting panel member concluded that the Club had a
duty to monitor its guests and, because of the absence of such
monitoring, the trial judge should have charged the jury that it
was free to infer that the driver of the vehicle served himself
while visibly intoxicated. Because the Dram Shop Act is the
“exclusive civil remedy for personal injury . . . resulting from
the negligent service of alcoholic beverages,” N.J.S.A. 2A:22A-
4, we reject the dissenter’s invitation to impose a judicially-
created monitoring duty that is not set forth in that statute.
We affirm the appellate panel, but emphasize that the Dram Shop
Act provides a powerful incentive to a social club to monitor
its guests at an affair, because if such a club allows the self-
service of alcohol to a visibly-intoxicated guest or patron who
then causes an automobile accident proximately related to his
intoxicated condition, it can be held accountable under the Act.

I.
A.
Defendant Happy Hour Social and Athletic Club is a non-
profit organization, which was formed for the purpose of
“help[ing] community kids.” The Club has approximately 115
members, all male, and owns a building equipped with a private
4
bar, resting on 5.4 acres of land in Maple Shade. The Club
holds a liquor license.
In keeping with an annual tradition, on August 17, 2002,
the Club hosted an outdoor “Pig Roast” on its property, with the
proceeds to benefit community athletic teams. The event was
open to the general public at a charge of twenty dollars per
person. Both food and beverages, including beer, were available
at the picnic.
The Club arranged for beer to be supplied by Ritchie & Page
Distributing Co., Inc. (Ritchie & Page), a licensed, New Jersey
wholesaler of beer products manufactured by Anheuser-Busch, Inc.
At the picnic, Ritchie & Page provided a refrigerated “beer
truck,” which contained five half-sized kegs with three taps
located outside the vehicle. In advance of the Pig Roast, the
Club also obtained from the New Jersey Division of Alcohol
Beverage Control a “social affair permit” that allowed for the
service of alcohol at the event.1 In its application for the
permit, the Club submitted a sketch of a “beer truck” and two

1
A social affair permit “authorize[s] the sale of alcoholic
beverages by the glass or other open receptacle by civic,
religious, educational, veterans or other qualified
organizations . . . notwithstanding that the sale of alcoholic
beverages has otherwise been prohibited by [statute] or
municipal ordinance or resolution.” N.J.S.A. 33:1-74(c)
(citations omitted); see also N.J.A.C. 13:2-5.1. The fee for
such a permit is statutorily set. N.J.S.A. 33:1-74(a). The
Maple Shade municipal clerk’s office approved the Club’s
application for the permit.

5
stick figures next to the truck, accompanied by a handwritten
notation: “two club members checking IDs.”2
Approximately 175 people, including children, attended the
Pig Roast, which began at 1:00 p.m. Stephen John Kanickij, an
employee of Ritchie & Page, drove the “beer truck” to the event
and made “sure everything [was] running properly.” Beer was
available on a self-serve basis from taps outside of the truck.
Kanickij did not believe that he had any responsibility to
monitor the intake of alcohol by those attending the Pig Roast.
The Club’s president, Robert Wojahowski, did not assign club
members to stand by the beer truck to check identification or to
determine if a patron was visibly intoxicated. Nor did the Club
hire police officers or private security guards to monitor
alcohol consumption. In the past, if a guest “got out of hand,”
Wojahowski would simply call the police.
John A. Kinnerman, age 34, arrived at the picnic at
approximately 1:00 p.m. Over the next five hours, Kinnerman was
observed at least once at the beer truck, but no one remembered
him drinking alcohol. By various accounts, from the time of his
arrival at the party until he departed at approximately 6:40

2
The permit limited the service of alcohol at the event to the
hours of 1:00 p.m. to 6:00 p.m. and prohibited the Club from
allowing the service or consumption of alcohol “directly or
indirectly” to “any person . . . who is actually or apparently
intoxicated.”

6
p.m., Kinnerman did not appear to be visibly intoxicated.
William Natale, who observed Kinnerman at 3:00 p.m., found
nothing about Kinnerman’s appearance suggesting intoxication.
Kinnerman’s mother last saw him at 5:20 p.m. and did not
consider him to be under the influence. Last, Kevin Jacoby
witnessed Kinnerman leave the party and enter his car and, in
his estimation, Kinnerman did not appear intoxicated.
Kinnerman left the Pig Roast with three other people who
attended the party, their destination a local sports bar.
Stephen N. Mikalic, age 45, an investigator at the Camden County
Prosecutor’s Office, Michael McMullen, and John Meloni took
passenger seats in Kinnerman’s 1971 Ford Mustang, which was
equipped with racing tires.3 Kinnerman, who was an experienced,
high-performance driver with a reputation for racing through
Maple Shade at speeds in excess of 100 miles per hour, got
behind the wheel. Kinnerman raced the Mustang, accelerating to
a speed of ninety miles per hour. About a quarter mile from the
picnic site, he lost control of the car, which crossed over the
center divider. Kinnerman’s car hit a van traveling in the
opposite direction, and then flipped over. All four men in the
Mustang were killed, and the driver of the van was seriously
injured.

3
The car was also described as a “1971 Ford Mach.”
7
An autopsy later revealed that Kinnerman’s blood alcohol
content (BAC) was 0.181 percent at the time of his death, almost
twice as high as the then-permissible BAC limit in 2002 under
N.J.S.A. 39:4-50. See L. 2001, c. 12, § 1.4 By contrast,
Mikalic’s BAC was 0.085 percent, a level below the then
legislatively defined BAC limit.
At trial, David Pandina, Ph.D., a toxicology expert,
testified that Kinnerman “was certainly under the influence of
alcohol” at the time of the accident. Pandina concluded that
Kinnerman’s 0.181 BAC reading indicated that he had consumed the
equivalent of thirteen twelve-ounce glasses of beer over a
period of four-and-one-half hours or nine twelve-ounce glasses
within an hour of the accident. Pandina formed an opinion,
within a reasonable degree of probability, that Kinnerman was
“visibly intoxicated” at the party. Pandina reached that
hypothesis based on studies that at a 0.15 BAC “the vast
majority of people will show signs and symptoms” of
intoxication. He conceded, however, that even at that BAC level
“a very small percentage” would not appear visibly intoxicated,

4
In 2002, at the time of the accident, the legal BAC limit for
operating a motor vehicle in New Jersey was 0.10 percent. See
L. 2001, c. 12, § 1. The legal level of intoxication was
lowered in 2004 to 0.08 percent. See L. 2003, c. 314 (codified
at N.J.S.A. 39:4-50).

8
and that it was possible that some people with a 0.20 BAC level
might not “seem visibly intoxicated.”

B.
The victims’ families as well as the injured driver of the
van instituted civil actions against Kinnerman’s estate, the
Happy Hour Social and Athletic Club and other parties as a
result of the tragic accident. This appeal involves only the
amended wrongful death and survival action filed by plaintiff
Diane M. Mazzacano, the widow of Stephen N. Mikalic, against
Kinnerman’s estate, the Club, Anheuser-Busch, Inc., Ritchie &
Page, and its employee, Kanickij. Plaintiff’s complaint sought
damages against Kinnerman’s estate based on Kinnerman’s
negligent operation of his car and damages against the Club,
Ritchie & Page, Kanickij, and Anheuser-Bush based on the
negligent service of alcohol to Kinnerman in violation of the
Dram Shop Act. At the pre-trial stage, Anheuser-Busch was
dismissed from the case, and plaintiff settled with Kinnerman’s
estate.
The case proceeded to trial before a jury against the
remaining defendants. At the conclusion of plaintiff’s
presentation, the court dismissed Ritchie & Page and Kanickij
from the case on the ground that the beer distributor was merely
a “middleman delivering [a] product” and, in that capacity, had
9
no statutory or common law duty to monitor the consumption of
beer at the party. Thus, the Happy Hour Social and Athletic
Club was left as the sole defendant.
Although the court allowed considerable testimony
concerning the social affair permit, it did not grant
plaintiff’s request that the permit itself be introduced into
evidence. The court ruled so because the language on the
permit, which prohibited service of alcohol “to any person who
is actually or apparently intoxicated,” differed from the
negligence standard under the Dram Shop Act, which makes the
server of alcohol liable only when “the server served a visibly
intoxicated person, or served a minor.” N.J.S.A. 2A:22A-5(b).
Before it deliberated, the jury was instructed on the
applicable law under the Dram Shop Act. The court advised the
jury:
If you find that the Happy Hour Social &
Athletic Club of Maple Shade provided,
served, or allowed to be provided alcoholic
beverages to a person when that person was
visibly intoxicated, then you must find that
the [Club] was negligent. If you find that
the [Club] did not serve or allow or provide
alcoholic beverages to a visibly intoxicated
person, then it was not negligent.

[(Emphasis added).]

The court defined “visibly intoxicated” as “a state of
intoxication accompanied by a perceptible act or series of acts
10
which present clear signs of intoxication,” and instructed the
jury on proximate cause.
During its deliberations, the jury posed the following
question to the court: “As per obtained permit, does the club
have the responsibility to monitor alcohol consumption?” The
court responded that the permit was not in evidence, and
recharged the jury on the law under the Dram Shop Act. In
particular, the court reminded the jury that “[i]f you find that
the Happy Hour Social & Athletic Club of Maple Shade allowed Mr.
Kinnerman to consume alcoholic beverages when he was visibly
intoxicated, then you must find the [Club] was negligent.” The
jury, by a vote of seven to one, returned a verdict in favor of
the Club, finding that it did not “negligently provide alcoholic
beverages to [Kinnerman] while [he] was visibly intoxicated.”5
The court then entered judgment dismissing the cause of action
against the Club. The court denied plaintiff’s motion for a new
trial, finding no basis to reverse its prior legal rulings and
finding that the verdict was not against the weight of the
evidence.

C.

5
Because of this finding, there was no need for the jury to
address any of the remaining interrogatories dealing with
proximate cause and damages.
11
In an unpublished opinion, a divided appellate panel
affirmed. First, the panel (two-judge majority) acknowledged
that, based on the evidence, the jury was free to conclude, from
the absence of servers at the Pig Roast, that “Kinnerman’s
intoxication, if visible, would more likely have gone
unobserved.” Indeed, the panel noted that the Club did not
argue that “if Kinnerman was visibly intoxicated [it] could
escape liability because there were no servers to observe his
condition.” It noted that the parties did not dispute the
standard for liability under the Dram Shop Act, both agreeing
that “the Club would be liable if Kinnerman obtained alcohol
while visibly intoxicated.” The panel, however, rejected the
dissent’s suggestion that the Act imposed an obligation on the
trial court to “instruct the jury about a separate duty to
monitor consumption.” The Legislature spoke clearly, according
to the panel, that the only basis for liability under the Dram
Shop Act is if a guest or patron is provided alcohol when
“‘visibly intoxicated.’”
Second, the panel concluded that the verdict was not
against the weight of the evidence. It emphasized that several
persons attending the Pig Roast did not observe any sign that
Kinnerman was intoxicated; that “[t]here was some testimony that
Kinnerman could drink without showing signs of intoxication”;
and that the three victim passengers, who “apparently” were not
12
intoxicated, got into the car with Kinnerman. The jury, the
panel held, was free to accept that evidence and other
supportive inferences.
Last, the panel recognized that “because the jury found
Kinnerman was not visibly intoxicated,” there was no basis to
infer liability against Ritchie & Page and therefore no need to
consider whether, under other circumstances, Ritchie & Page,
which was “not licensed to serve alcoholic beverages,” could be
held liable under the Dram Shop Act.
The dissenting judge believed that in cases involving the
self-service of alcohol, such as the present one, the Dram Shop
Act had an “evident gap,” which the court “can and should fill.”
Although the dissenter found it commendable that the trial court
advised the jury that it could hold the Club liable if the Club
“‘allowed to be provided alcoholic beverages to a visibly
intoxicated person,’” he still concluded that the Club should
not “escape liability by having no one in place through whom to
impute the requisite knowledge of visible intoxication.” In his
view, the trial court had the obligation to “instruct[] the jury
that [the Club] did indeed have a ‘responsibility to monitor
alcoholic consumption.’” That duty, according to the dissenter,
“is entirely consistent with . . . the legislative objectives
reflected in the Act.” In his opinion, “if the jury found that
[the Club] had failed to meet its responsibility, the jury
13
should have been instructed that it was free to infer that
Kinnerman’s intoxication could have been observed if the alcohol
consumption had been properly monitored.”6 Last, the dissenter
would have decided that Ritchie & Page was not subject to the
Dram Shop Act because it was not a licensed server and because
it had no common law duty to monitor alcohol consumption at the
picnic.
Based on the dissent in the Appellate Division, plaintiff
filed an appeal as of right. R. 2:2-1(a)(2); see Gilborges v.
Wallace, 78 N.J. 342, 349 (1978) (“[T]he scope of the appeal . .
. is limited to those issues encompassed by the dissent.”). We
denied plaintiff’s petition for certification, declining to
review the appellate panel’s holding that Ritchie & Page was not
liable under common law negligence principles. Mazzacano v.
Happy Hour Social & Athletic Club of Maple Shade, Inc., 194 N.J.
267 (2008). Therefore, the only issue before this Court is
whether the trial court erred in not instructing the jury that a
licensed alcoholic beverage server could be held liable under
the Dram Shop Act for failing to monitor a patron who becomes
intoxicated at a party involving the self-service of alcohol.

II.

6
The dissenting judge “agree[d] with the majority that the
[social affair] permit was not admissible because it referenced
a standard that was at variance with the Dram Shop.”
14
Plaintiff Dianne Mazzacano basically argues that because a
licensed alcoholic beverage server is only negligent under the
Dram Shop Act when a visibly-intoxicated patron is served
alcohol, the Act necessarily presupposes that the server will
actually observe the person who is served alcohol. From that
simple premise, she reasons that the Legislature could not have
intended that a licensed alcoholic beverage server would escape
liability when failing to monitor the self-service of alcohol at
a party, particularly given the significant and foreseeable
risks posed by drunk drivers. She therefore submits that the
trial court wrongly refused to charge the jury that the Happy
Hour Social and Athletic Club had a duty to monitor the intake
of alcohol by guests at the Pig Roast.
In contrast, defendant Happy Hour Social and Athletic Club
contends that the Dram Shop Act, which is the exclusive civil
remedy for the negligent service of alcohol by a licensed
server, does not provide an independent basis for liability for
failure to monitor. The Club concedes that the self-service of
alcohol at the Pig Roast constituted the service of alcohol by
the Club. Significantly, the Club did not object to the court’s
jury charge, which stated that if it allowed Kinnerman to serve
alcohol to himself while he was visibly intoxicated, it would be
negligent and therefore liable for the accident, provided
plaintiff proved the additional elements of proximate cause and
15
forseeability. The Club’s main defense was that Kinnerman was
not visibly intoxicated when he left the Pig Roast. The Club
urges the Court not to judicially impose, as a basis for civil
liability, a duty of monitoring that does not appear in the Dram
Shop Act.
In determining whether the Act imposes civil liability on
a licensed alcoholic beverage server for not monitoring the
self-service of alcohol at a party, we turn first to the text of
the statute and then to the statute’s policy objectives, which
are set forth in the Act itself.

III.
A.
The New Jersey Licensed Alcoholic Beverage Server Fair
Liability Act, N.J.S.A. 2A:22A-1 to -7, known more commonly as
the Dram Shop Act,7 is “the exclusive civil remedy for personal
injury or property damage resulting from the negligent service
of alcoholic beverages by a licensed alcoholic beverage server,”

7
The term “dram shop” was first used in the 1830s to describe
inns where “liquor was sold in quantities of less than a
gallon.” Jana L. Morino, Comment, Tobin v. Norwood Country
Club, Inc.: The Massachussetts Emergence of Dram Shop Liability
for Intoxicated Minors Without Evidence of a Direct Sale to the
Minor, 33 New Eng. L. Rev. 173, 173 n.3 (1998) (citation
omitted). Today, the term refers to “an establishment in which
liquor is served to be consumed on the premises.” Ibid. (citing
Black’s Law Dictionary 494 (6th ed. 1990)).

16
N.J.S.A. 2A:22A-4 (emphasis added). Under the Dram Shop Act, “a
licensed alcoholic beverage server” can be held liable for
damages suffered by “[a] person who sustains personal injury or
property damage as a result of the negligent service of
alcoholic beverages . . . only if” three elements are
established:
(1) The server is deemed negligent . . .; and
(2) The injury or damage was proximately
caused by the negligent service of alcoholic
beverages; and

(3) The injury or damage was a foreseeable
consequence of the negligent service of
alcoholic beverages.

[N.J.S.A. 2A:22A-5(a) (emphasis added).]

Under the Act, a licensed alcoholic beverage server is
“negligent only when the server served a visibly intoxicated
person, or served a minor . . . .” N.J.S.A. 2A:22A-5(b)
(emphasis added).
There is no question that the Happy Hour Social and
Athletic Club was a licensed alcoholic beverage server for
purposes of the Dram Shop Act because it was issued a social
affair permit to sell alcoholic beverages by the New Jersey
Division of Alcohol Beverage Control pursuant to N.J.S.A. 33:1-
74. See N.J.S.A. 2A:22A-3 (“‘Licensed alcoholic beverage
server’ or ‘server’ means a person . . . who has been issued a
permit to sell alcoholic beverages by the Division of Alcoholic
17
Beverage Control in the Department of Law and Public Safety.”).
Therefore, the dictates of the Dram Shop Act apply to this case.
As noted earlier, the Club does not deny that the self-
service of alcohol at the party constituted service of alcohol
under the Act. That is, the Club does not read the statute to
require that an alcoholic drink must be served by a bartender,
waitress, or other such person before liability can attach under
the statute.
In this case, the trial court correctly instructed the
jurors that if “the Happy Hour Social & Athletic Club of Maple
Shade allowed Mr. Kinnerman to consume alcoholic beverages when
he was visibly intoxicated, then you must find the [Club] was
negligent.” The Legislature did not intend that a licensed
alcoholic beverage server would benefit from willful blindness
by hosting a party that permits the self-service of alcohol.
For purposes of N.J.S.A. 2A:22A-5(b), a licensed alcoholic
beverage server that places at the disposal of its patrons a
“beer truck” for the self-service of alcohol is serving alcohol
within the intendment of the statute. See Dower v. Gamba, 276
N.J. Super. 319, 326 (App. Div. 1994), certif. denied, 140 N.J.
276 (1995) (“[W]e have no doubt that a commercial server who
provides alcohol to a customer by a means other than direct
service may nonetheless be liable under N.J.S.A. 2A:22A-5b,
notwithstanding the use of the term ‘serve’ in the statute.”).
18
Thus, if a licensed alcoholic beverage server serves alcohol in
this manner to a visibly-intoxicated person, it is acting
negligently and is exposed to civil liability.
Allowing the service of alcohol to a “visibly intoxicated
person” -- who causes personal injury or property damage that is
a proximate and foreseeable consequence of his intoxication --
will expose a licensed alcoholic beverage server to civil
liability under N.J.S.A. 2A:22A-5(b). A licensed alcoholic
beverage server without adequate insurance can suffer economic
ruin from a lawsuit or lose its ability to secure insurance in
the future. For that reason, even if not motivated by any
benevolent purpose, a licensed alcoholic beverage server has a
strong economic incentive to monitor the condition of persons
served alcohol.
Plaintiff’s case boiled down to one essential but disputed
fact -- whether Kinnerman was allowed to serve himself alcohol
while visibly intoxicated. Had anyone observed Kinnerman
visibly intoxicated before he walked off the Club’s grounds, the
jury would have been free to infer that the Club allowed
Kinnerman to drink himself into a state of intoxication. No one
who observed Kinnerman during the picnic was of the opinion that
he met the definition of visibly intoxicated. See N.J.S.A.
2A:22A-3 (“‘Visibly intoxicated’ means a state of intoxication
accompanied by a perceptible act or series of acts which present
19
clear signs of intoxication.”). Moreover, three men, including
a Prosecutor’s investigator, who presumably were in a position
to discern Kinnerman’s condition, chose to be passengers in
Kinnerman’s Ford Mustang before the deadly ride. Even Dr.
Pandina, the toxicologist who testified for plaintiff, could not
state with certitude -- only to a reasonable degree of
probability -- that Kinnerman exhibited signs of intoxication at
the picnic. Although Dr. Pandina relied on statistical evidence
that most people with Kinnerman’s 0.181 BAC reading will show
symptoms of intoxication, he also indicated that not all people
will reveal such symptoms. It was the jury’s task to decide
what weight, if any, to give to the testimony of the witnesses
at the Pig Roast and the expert testimony. Had there been no
testimony concerning Kinnerman’s condition at the picnic, the
jury might well have been persuaded that Dr. Pandina’s testimony
was sufficient to prove the Club’s negligence. Ultimately, the
jury determined that the Club did not negligently provide
alcoholic beverages to Kinnerman when he was visibly
intoxicated.
We conclude that there was sufficient credible evidence in
the record to support the jury’s verdict in favor of the Club.
We now address the dissent in the Appellate Division.

B.
20
The dissenting judge on the appellate panel concluded that
the Dram Shop Act contained an “evident gap” in cases involving
the self-service of alcohol -- a gap that could be filled by
imposing on licensed alcoholic beverage servers a duty to
monitor. He believed that imposing a duty to monitor is
“entirely consistent with” the Act’s objectives, regardless of
the absence of statutory language setting forth such a duty.
The dissenting judge would construe the Dram Shop Act, even if
it meant enlarging it, to meet the “evident sense of the
lawgiver.” (Quoting Wright v. Vogt, 7 N.J. 1, 6 (1951)). In
his opinion, the trial court should have instructed the jury
that the Club had “a ‘responsibility to monitor alcoholic
consumption,’” and that if it failed to do so the jury “was free
to infer that Kinnerman’s intoxication could have been observed
if the alcohol consumption had been properly monitored.”
The type of judicial tinkering with the statute proposed by
the dissenting judge is not consonant with the language used in
the Dram Shop Act or the legislative intent underlying the Act.
The Legislature clearly signaled that the Dram Shop Act is “the
exclusive civil remedy . . . [for] the negligent service of
alcoholic beverages by a licensed alcoholic beverage server.”
N.J.S.A. 2A:22A-4. That language strongly suggests that the
Legislature did not want our courts adding civil remedies,
through either the common law or creative statutory
21
construction, not found in the Act itself. See Verni v. Harry
M. Stevens, Inc., 387 N.J. Super. 160, 187 (App. Div.), certif.
denied, 189 N.J. 429 (2007) (“Common law claims arising out of
the negligent service of alcoholic beverages are thus barred by
the exclusivity provisions of the Beverage Server Act.”
(citation omitted)). Indeed, in Fisch v. Bellshot, 135 N.J. 374
(1994), we held that “the Legislature drafted subsection b [of
N.J.S.A. 2A:22A-5] precisely to render service to a visibly-
intoxicated person the only defining act of negligence other
than serving alcohol to a person whom one knows or reasonably
should know under the circumstances is a minor.” Id. at 383.
We noted that in light of N.J.S.A. 2A:22A-5(b)’s specific
language circumscribing liability, “[n]egligence is not
definable by reference to administrative regulations.” Ibid.
Significantly, the Dram Shop Act was passed at a time when
licensed alcoholic beverage servers were facing a liability
insurance crisis. See N.J.S.A. 2A:22A-2. The statute was
carefully crafted to balance both the needs of licensed
alcoholic beverage servers to secure affordable insurance and
the rights of victims to recover for the negligent service of
alcohol. See ibid. The Legislature expressed its purpose in
very clear terms by stating that
lack of insurance adversely affects not only
the licensed alcoholic beverage servers
themselves, but also patrons and third
22
persons who suffer personal injury and
property damage as a result of the negligent
service of alcoholic beverages by a licensed
alcoholic beverage server.

In order to make it economically
feasible for insurance companies to provide
coverage, the incidence of liability should
be more predictable. That predictability may
be achieved by defining the limits of the
civil liability of licensed alcoholic
beverage servers in order to encourage the
development and implementation of risk
reduction techniques.

This act has been designed to protect
the rights of persons who suffer loss as a
result of the negligent service of alcoholic
beverages by a licensed alcoholic beverage
server while at the same time providing a
balanced and reasonable procedure for
allocating responsibility for such losses.
It is anticipated that this act may result
in the improvement of the alcoholic beverage
liability insurance market in this State.

[N.J.S.A. 2A:22A-2.]

We cannot, and should not, “rewrite a plainly-written
enactment of the Legislature” or “write in an additional
qualification which the Legislature pointedly omitted.”
DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citations and
internal quotation marks omitted). “Our duty is to construe and
apply the statute as enacted.” Ibid. (citation and internal
quotation marks omitted). We have previously stated that
“[t]here is a fine line between interpreting statutory language
and engrafting a judicial standard over that language.” Serrano
v. Serrano, 183 N.J. 508, 518 (2005). We believe that the
23
dissenting judge’s approach would “create[] a judicial standard
not intended by those who wrote and enacted the statute.” Ibid.
As we already have discussed, the Dram Shop Act permits a
finding of liability when an establishment, such as the Happy
Hour Social and Athletic Club, allows a patron to become visibly
intoxicated through the self-service of alcohol at a party. For
that reason alone, under the Act, a licensed alcoholic beverage
server has a compelling economic interest to monitor the intake
of alcohol. The Club did not benefit from the absence of
monitors; rather it unnecessarily exposed itself to a
potentially staggering liability award. However, the Dram Shop
Act does not impose a separate duty to monitor alcohol ingestion
or define negligence, the only available cause of action in the
Act, as the failure to monitor. Rather, a licensed alcoholic
beverage server is negligent “only when the server served a
visibly intoxicated person” or serves a minor. N.J.S.A. 2A:22A-
5(b).8

8
We note that the holder of a social affair permit is subject to
the provisions of the Alcoholic Beverage Law, N.J.S.A. 33:1-1 to
-97, and the regulations promulgated under that Act. See, e.g.,
N.J.S.A. 33:1-12.37 (“Any person violating any provision of this
act or of any rule or regulation issued pursuant to this act
shall be punished by a fine of not less than $50.00 and not more
than $250.00 and such person shall also be subject to the
penalties and provisions of chapter 1 of Title 33 which are
applicable thereto by virtue of such violation.”); N.J.A.C.
13:2-5.1(g) (“A social affair permittee must abide by all the
provisions of the New Jersey Alcoholic Beverage law, Division
rules and regulations, and municipal ordinances. Failure to do
24
Needless to say, the Legislature is free to enact higher
standards -- such as a duty to monitor -- than those presently
found in our statutes, based on the reasoning of the dissenting
judge.
IV.
Accordingly, we affirm the judgment of the Appellate
Division.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE,
RIVERA-SOTO and HOENS join in JUSTICE ALBIN’s opinion.

so may result in said permittee being denied future applications
for social affair permits.”).
SUPREME COURT OF NEW JERSEY

NO. A-102 SEPTEMBER TERM 2007
ON APPEAL FROM Appellate Division, Superior Court

DIANE M. MAZZACANO,
Administratrix ad
Prosequendum and General
Administratrix of the Estate
Of STEPHEN N. MIKALIC,
Deceased,

Plaintiff-Appellant,

v.

HAPPY HOUR SOCIAL AND
ATHLETIC CLUB OF MAPLE SHADE,
INC.,

Defendant-Respondent.





DECIDED January 22, 2009
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LONG X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE WALLACE X
JUSTICE RIVERA-SOTO X
JUSTICE HOENS X
TOTALS 7