New Jersey’s Dram Shop Act, N.J.S.A. 2A:22A-1 to -7, provides the exclusive civil remedy for injuries sustained by a plaintiff resulting from the negligent service of alcoholic beverages to him or her by a liquor licensee. Under the Act, a liquor licensee is negligent if it serves alcoholic beverages to a “visibly intoxicated” person.” A separate statutory provision that was enacted as part of an automobile insurance overhaul, N.J.S.A. 39:6A-4.5(b), states that if a driver is convicted of or pleads guilty to driving while intoxicated (“DWI”), he or she “shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident.”

In Voss v. Tranquilino, __ N.J. ___ (2011), the plaintiff was involved in an automobile accident and pled guilty to DWI. He pursued a dram shop action against the restaurant that allegedly served him alcohol while he was visibly intoxicated. The restaurant, relying upon N.J.S.A. 39:6A-4.5(b), moved to dismiss the plaintiff’s complaint but the trial court denied the motion. The Appellate Division affirmed the trial court’s ruling, and then the Supreme Court affirmed the Appellate Division’s decision, concluding that N.J.S.A. 39:6A-4.5(b) did not serve to repeal the contrary provisions of the Dram Shop Act.

On November 9, 2006, the plaintiff was injured when the motorcycle he was operating collided with an automobile. The plaintiff claimed that prior to the accident he had been a patron at defendant Tiffany’s Restaurant and that the restaurant had negligently served him alcoholic beverages. The plaintiff’s blood alcohol content after the accident was .196, almost two and one-half times the legal limit of .08 percent. The plaintiff was charged with DWI and pled guilty. He also sued Tiffany’s and the operator and owner of the automobile involved in his accident. (Those defendants were later dismissed.)

Tiffany’s moved to dismiss the plaintiff’s complaint, arguing that N.J.S.A. 39:6A-4.5(b) barred his claim. That provision states that “[a]ny person who is convicted of, or pleads guilty to, operating a motor vehicle in violation of [N.J.S.A.] 39:4-50 . . . [or N.J.S.A.] 39:4-50.4a[], or a similar statute from any other jurisdiction, in connection with an accident, shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident.” The trial court denied Tiffany’s motion.

The Appellate Division affirmed and held that N.J.S.A. 39:6A-4.5(b) did not bar the plaintiff’s dram shop action for three reasons: 1) the purpose of that provision was to reduce automobile insurance premiums and its scope should be limited to losses subject to coverage under Title 39; 2) allowing dram shop actions to be barred would effectively, and improperly, repeal contrary provisions of the Dram Shop Act; and 3) shielding liquor licensees from liability under such circumstances would be contrary to the State’s policy of eliminating drunken driving.

In a 5-2 per curiam opinion, the Supreme Court affirmed the Appellate Division’s decision “substantially for the reasons expressed in the thoughtful and thorough opinion” of the Appellate Division. The Court stressed that it was “far from clear” that by enacting automobile insurance reform, i.e., N.J.S.A. 39:6A-4.5(b), the Legislature intended to repeal the contrary provisions of the Dram Shop Act. Additionally, the Court elaborated upon the Appellate Division’s reasoning and pointed out that N.J.S.A. 39:6A-4.5(b) and dram shop actions could co-exist, as “the application of established principles of comparative negligence will apportion properly responsibility for damages as between dram shop parties and the injured drunk driver.”

Justice Albin, joined by Justice Rivera-Soto, dissented. Justice Albin opined that “[w]hen the Legislature expresses its will -- and its policy preferences -- through the plain language of a statute, the role of this Court is not to paste in a judicial exception because the result in a particular case does not seem desirable. But that is exactly what the majority has done here in affirming the Appellate Division. It has rewritten a clear and unambiguous statute under the dubious assumption that the Legislature did not mean what it said.”

“The plain, unadorned language of N.J.S.A. 39:6A-4.5(b), without exception, bars a person convicted of drunk driving who is involved in an accident from filing suit against the tortfeasor, who he claims caused his injuries. Under the language of the statute, it makes no difference whether the tortfeasor is a person who ran a red light or a stop sign, or one who served him drinks at the bar he last visited. But the majority has concluded -- wrongly, in my opinion -- that the Legislature did not really mean to exclude taverns from suit, despite the statutory language to the contrary.”

“However imperfect or misguided the statute may seem to the majority as written, our duty is to give it effect. Because the majority has failed to follow the first principle of statutory construction -- to honor the plain language of N.J.S.A. 39:6A-4.5(b) as expressing the intent of the Legislature – I respectfully dissent.”