Sobering court ruling finds opposition from bar owners
By MICHAEL MILLER Staff Writer, 609-463-6712
Published: Saturday, March 22, 2008
Bar patrons and owners disagreed with a court's decision this week that bartenders are responsible for all drunken patrons, even those to whom they serve no alcohol.
A state Appellate Division panel ruled Thursday that a Cape May restaurant could be sued by the estate of an Upper Township man who was killed in a drunken-driving accident in 2003.
James A. Hamby, 21, a construction worker from Upper Township, was a passenger riding with a drunken friend who crashed on the Garden State Parkway after leaving the C View Inn in Cape May.
The driver of the car, Frederick Nesbitt III, of Dennis Township, was 19, and thus underage, at the time of the crash.
According to court papers, Nesbitt spent two hours drinking beer and rum before going to the Cape May restaurant, where he was served non-alcoholic soda.
Nesbitt pleaded guilty to vehicular homicide and was sentenced to five years in state prison, according to court papers. He is eligible for parole July 31.
At sentencing, Nesbitt told the court he had too much to drink that night and should not have been driving.
According to court papers, Hamby and Nesbitt were rowdy that night, which should have been a sign to restaurant staff that they were intoxicated. In depositions, the friends testified they knew Hamby was drunk because he exposed his pierced penis at the table to show his friends where he wanted to get a smiley-face tattoo.
Nesbitt, the driver in the accident, was using profanity and raising his voice, they said in court papers.
After the accident, Nesbitt's blood-alcohol level tested at .19 - about twice the legal limit.
The court ruled that if the inn recognized Hamby was intoxicated, "the inn had a duty to protect him from foreseeable injury as the result of an automobile accident by insuring he did not drive and that he did not ride as a passenger with a patron who was similarly impaired."
Likewise, the court ruled that the inn was responsible for Nesbitt. Even though he was not served any alcohol at the restaurant, he was visibly intoxicated, the court determined. Therefore, the restaurant was negligent, the court said.
Patrons at Atkinson's Tavern in Middle Township said customers are responsible for their own behavior.
"I have some guys. We rent a limo. We paint the town whatever color we want," Middle Township resident Tyrone Spaulding said. "It falls on the individual person. If I feel I have one too many, it would be on me."
Bill Delanzo, a bartender at Atkinson's and son of the owner, said he feels a moral obligation to make sure all of his customers get home safely. Even so, he said, it can be tricky to tell if someone is intoxicated.
"It's hard to control that," he said. "It's happened many a time that someone has been flagged at another bar and comes in here."
Pub crawls are popular, especially during festivals. Usually, groups of friends hire or designate a driver so they can go freely from bar to bar.
Ric Rutherford of Rio Station in Middle Township said he would like to think his employees would have intervened under similar circumstances.
"That's a pretty gross example of overlooking behavior. If that had happened in our house, that guy wouldn't have gotten out of there," he said. "Somebody in that crew should have noticed it."
But Rutherford conceded it might be difficult for his bartenders to police the unseen behavior of his customers.
"Bar owners have insurance. We're pretty protected from monetary losses. But we're not protected from emotional losses. Serving alcohol is a dangerous business," he said. "We have a responsibility to look out for people who drink."
At Atlantic City's Ducktown Tavern, owner John Exadaktilos said it is easier to keep tabs on the drinking habits of regulars. But how are bartenders to know what customers have been doing before they arrived?
"I have people who come in here. You would never know they were drunk or not," Exadaktilos said.
"It just sucks. I see the 'Big Brother' effect. You want to go out and have a good time on the weekend, have fun. But you should be responsible for your own actions," he said.