ERICA FLOWERS v. CROSSED KEY INN

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0066-19

ERICA FLOWERS,

          Plaintiff-Appellant,

v.

CROSSED KEY INN, CROSSED
KEY ESTATE, JOHN
RODRIGUEZ, and JUSTIN
MEZZINO,

          Defendants/Third-Party
          Plaintiffs-Respondents,

v.

SARAH BEAGLE,

     Third-Party Defendant.
______________________________

                   Argued October 1, 2020 – Decided August 31, 2021

                   Before Judges Fuentes, Whipple, and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Sussex County, Docket No. L-0446-17.
            David L. Wikstrom argued the cause for appellant
            (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins,
            PC, attorneys; David L. Wikstrom, of counsel and on
            the briefs).

            Robert F. Ball argued the cause for respondents (Weber
            Gallagher Simpson Stapleton Fires & Newby,
            attorneys; Robert F. Ball, on the brief).

PER CURIAM

      This civil action originated from an automobile accident. Plaintiff Erica

Flowers was seriously injured on July 31, 2016, when a car driven by third-party

defendant Sarah Beagle collided with a car that was lawfully stopped on the side

of the road to assist a disabled motorist. The police officers who responded to

the scene of the accident noticed that Beagle appeared to be under the influence

of alcohol. The police officers obtained a sample of Beagle's blood for analysis

by medical professionals.     The analysis revealed Beagle had an alcohol

concentration (BAC) level of .16% or .17% at the time of the accident. Pursuant

to  N.J.S.A. 39:4-50(a), a person who drives a motor vehicle with a BAC level

of .08% or higher is deemed to be under the influence of an intoxicating liquor

as a matter of law.

      On September 13, 2017, plaintiff filed this civil action seeking

compensatory damages and named as defendants the Crossed Key Inn, Crossed

Key Estate, John Rodriguez and Justin Mezzino, and other fictitiously named

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persons and entities. Plaintiff's theory of liability against defendants is based

on negligent hiring and/or supervision of Beagle, who was employed by

defendants as a bartender at the time of the accident. According to plaintiff,

defendants are liable because Beagle drank alcohol to the point of intoxication

at defendants' premises after her workday was over and in the presence of

management.

      Defendants Crossed Key, Rodriguez and Mezzino filed their answer

which included a third-party complaint against Beagle.      After joinder of issue,

the parties conducted discovery until the end of the discovery period on Ap ril

30, 2019.    Defendants moved for summary judgment on June 28, 2019,

supported by a "Statement of Undisputed Material Facts" as required by Rule

4:46-2(a). Plaintiff responded with her own Statement of Undisputed Material

Facts and a brief.

      Judge David J. Weaver heard oral argument on the motion on August 2,

2019. The parties agree that the pertinent facts related to this cause of action

are not disputed and the issue of liability is thus ripe for disposition as a matter

of law. R. 4:46-2(c). We review a purely legal issue de novo. Manalapan

Realty, L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366, 378 (1995). As framed

by the parties, this court must determine whether defendants can be held liable


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to plaintiff based on the common law tort of negligent hiring and/or supervision.

Stated differently, is plaintiff's cause of action precluded under the New Jersey

Licensed Alcoholic Beverage Server Fair Liability Act, (Act),  N.J.S.A. 2A:22A-

1 to -7.

      Judge Weaver reviewed the case law that has addressed this issue in a

variety of factual settings and concluded that plaintiff's common law cause of

action is explicitly precluded by the Legislature under the Act, based on the

following unequivocal language:

            This act shall be the exclusive civil remedy for personal
            injury or property damage resulting from the negligent
            service of alcoholic beverages by a licensed alcoholic
            beverage server. Nothing contained herein shall be
            deemed to limit the criminal, quasi-criminal, or
            regulatory penalties which may be imposed upon a
            licensed alcoholic beverage server by any other statute,
            rule or regulation.

            [N.J.S.A. 2A:22A-4.]

      The Supreme Court has made clear 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." Mazzacano v. Estate of

Kinnerman,  197 N.J. 307, 322 (2009).        Thus, the exclusivity provision in

 N.J.S.A. 2A:22A-4 bars plaintiff's cause of action which arises out of the



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                                       4
common law tort of negligent hiring and/or supervision. Verni ex rel. Burstein

v. Harry M. Stevens, Inc.,  387 N.J. Super. 160, 187 (App. Div. 2007).

       We discern no legal basis to disagree with any part of Judge Weaver's

comprehensive, well-reasoned legal analysis as expressed in his memorandum

of opinion attached to his August 21, 2019 order granting defendants' motion

for summary judgment and dismissing plaintiff's cause of action as a matter of

law.

       Affirmed.




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