Find Legal Information

(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).

     Argued March 1, 1993 -- Decided May 9, 1994

    PER CURIAM

    Natalie Fisch, individually and as administrator of her deceased mother's estate, brought an action, pursuant to the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act (Act), against Richard Bellshot, individually and as owner of Richie's Tavern. Fisch's complaint alleged that Bellshot had served alcohol to decedent, Delores Lapollo, when at the time he knew or should have known that decedent was intoxicated and that that negligent service proximately caused decedent's death. Delores Lapollo was killed in a one-car accident after leaving Richie's Tavern following her bartending shift somewhere between 10:30 p.m. and 11:00 p.m. on November 22, 1987.

    At trial, witnesses provided inconsistent testimony in respect of decedent's conduct and her level of intoxication. There was also conflicting testimony in respect of Bellshot's awareness of decedent's condition and conduct throughout the day. Bellshot testified that he had no indication that decedent had been drinking or was intoxicated until after she drove away. However, other witnesses testified to having observed decedent drinking. Several of these witnesses also testified that Bellshot was aware that decedent was consuming alcohol.

    The jury concluded that Bellshot negligently had served decedent while she was visibly intoxicated and that Bellshot's negligence had proximately caused her death. The jury also found that decedent had been contributorily negligent and that her negligence also had been a proximate cause of her death. Apportioning the relative degrees of negligence, the jury assessed seventy-five percent to decedent and twenty-five percent to Bellshot. As a result, the court found that Natalie Fisch had no cause of action against Bellshot.

    On appeal, the Appellate Division affirmed. The Supreme Court granted certification.

HELD:    The circumstances in this case are exceptional, not ordinary, such that the trial court's failure to instruct the jury on the Lee v. Kiku Restaurant presumption (a defendant found negligent is liable for the intoxicated plaintiff's decision to drive or accompany an intoxicated driver) was not erroneous. Moreover, trial courts in dram-shop cases, under the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, may not instruct the jury that violations of administrative regulations are evidence of a defendant's negligence.

1.    The trial court correctly noted that the Act provides the exclusive definition of an alcoholic-beverage server's negligence. The Act is a comprehensive statutory scheme that was designed to address the increasing costs and widespread unavailability of liability for licensed alcoholic-beverage servers. The intention of the Act was to alleviate those problems by limiting dram-shop liability. Section 4 of the Act specifically states that the Act provides the exclusive remedy for dram-shop causes of action arising after its effective date. (pp. 7-9)

2.    The trial court did not err in refusing Fisch's request to instruct the jury on administrative regulations concerning the standards of conduct for alcoholic-beverage licensees. Under Section 4 of the Act, a person who is injured as a result of the negligent service of alcoholic beverages by a licensed alcohol beverage server may recover damages from that server only if the server is deemed to have been negligent; if

the injury or damage was proximately caused by the negligent service of alcoholic beverages; and if the injury was a foreseeable consequence of the negligent service of alcoholic beverages. An alcoholic-beverage server is deemed to have been negligent only when the server served a visibly intoxicated person or a minor. On its face Section 5 exclusively defines negligence for the purposes of civil liability - service to a visibly intoxicated person is the only defined act of negligence, other than serving alcohol to a person whom one knows or should know is a minor. Negligence is nowhere defined by reference to administrative regulations. Furthermore, the legislative purpose of greater predictability of dram-shop liability would be frustrated by permitting administrative regulations to provide alternative standards of care for alcoholic-beverage servers. (pp. 9-13)

3.    Under the Act, a plaintiff's contributory negligence can limit a defendant's liability. If a tavern owner can demonstrate that the patron had the ability to appreciate the risk of driving while intoxicated or of accompanying an intoxicated driver, the tavern owner could reduce his or her liability in accordance with the Comparative Negligence Act. However, if the patron's intoxicated condition rendered he or she unable to appreciate the risk and the tavern owner served the patron alcohol when he or she was visibly intoxicated, the tavern could not assert the defense of comparative negligence. In Lee v. Kiku Restaurant, this Court held that, in the ordinary case, once a defendant is found to have been negligent, that defendant is responsible for the plaintiff's decision to drive or to accompany an intoxicated driver. That responsibility may be diminished only to the extent that the plaintiff's drinking prior to the point of intoxication contributed to his or her inability to appreciate the risk of his or her behavior. (pp. 13-17)

4.    Fisch contends that Lee: 1) explicitly prohibits a trial court from instructing a jury that an intoxicated patron's decision to drive is evidence of negligence; and 2) requires that the trial court instruct the jurors that once they find that a defendant served a visibly-intoxicated person, they should presume that that person lacked the capacity to evaluate the risk of driving while intoxicated. Although, the trial court's comparative-negligence charge did not adhere to the outline provided in Lee for the ordinary dram-shop case, this is not an ordinary case. Decedent, the tavern's bartender, served herself even though she had an obligation not to drink while on duty and had been trained in alcohol management. The presumption established in Lee was not intended to apply to the circumstances of this case. Here, the circumstances of this case are "exceptional" such that the trial court's failure to instruct the jury on the Lee presumption was not erroneous. The trial court's instruction to the jury was entirely appropriate. (pp. 17-22)

5.    Because the Lee presumption is not applicable, Fisch's contention that the matter should be remanded because of the intervening decision in Lee is without merit. Had the Court decided Lee prior to the jury instruction in this case, it would not have changed the substance of the jury instruction. (pp. 22-24)

    Judgment of the Appellate Division is AFFIRMED.

     CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in this opinion.
                            SUPREME COURT OF NEW JERSEY
                            A- 103 September Term l992

NATALIE FISCH, as Administratrix
Ad Prosequendum and as General
Administratrix of the ESTATE OF
DOLORES LAPOLLO, Deceased, and
NATALIE FISCH, Individually,

    Plaintiff-Appellant,

     v.

RICHARD BELLSHOT, Individually
and t/a RICHIE'S TAVERN,

    Defendant-Respondent,

     and

ABC CORPORATION (fictitious
corporation), individually and
t/a RICHIE'S TAVERN and JOHN
DOES #l-l0 (fictitious names for
business entities), individually,
jointly, severally and/or in the
alternative,

    Defendants.
__________________________

        Argued March 1, l993 -- Decided May 9, 1994

        On certification to the Superior Court, Appellate Division.

        John Morelli argued the cause for appellant.

        Stacy L. Moore, Jr., argued the cause for respondent (Parker, McCay & Criscuolo, attorneys; Mary Ann C. O'Brien, on the brief).

PER CURIAM

    In this appeal we interpret for the first time the "New Jersey Licensed Alcoholic Beverage Server Fair Liability Act,"

N.J.S.A. 2A:22A-l to -7 (hereinafter Act). In so doing we consider the interaction between the Act and the Comparative Negligence Act, N.J.S.A. 2A:l5-5.l to -5.2; the extent to which the principles set forth in Lee v. Kiku Restaurant, l27 N.J. l70 (l992), and Buckley v. Estate of Pirolo, l0l N.J. 68 (l985), apply to causes of action under the Act; and whether violations of administrative regulations constitute evidence of negligence under the Act. More specifically, we determine whether the trial court's instruction to the jury on plaintiff's decedent's contributory negligence was erroneous.

after her replacement called in sick. Bellshot greeted Mrs. Lapollo on her arrival at the bar at ll:00 a.m. and made her breakfast. He agreed to replace her at l0:00 p.m., but did not actually relieve her until l0:30 p.m. Shortly after defendant replaced her behind the bar, Mrs. Lapollo left the tavern and was subsequently killed in the crash. An autopsy revealed that Mrs. Lapollo's blood alcohol content at the time of the crash was .20 -- a level significantly above the legal limit for a driver.
    At trial witnesses presented inconsistent testimony regarding decedent's conduct and level of intoxication. Likewise, testimony was in conflict regarding defendant's awareness of Mrs. Lapollo's condition and her conduct throughout the day. Defendant himself testified that he had no indication that Mrs. Lapollo had been drinking or was intoxicated until after she drove away. According to defendant, he served decedent breakfast at ll:00 a.m. and then went to his adjacent apartment to watch the Sunday football games. He did not see her again until 7:00 p.m., when he passed her on his way to dinner. At that time, he did not notice anything unusual about her behavior and had no indication that she was drunk or had been drinking. The next and last time he saw Mrs. Lapollo was when he came to relieve her at approximately l0:30 p.m. He testified that she was angry that he was half-an-hour late in relieving her, that she collected her tips, and then left without saying goodbye.

Only after she had gone did he learn from a patron that Mrs. Lapollo had been squirting beer around and was intoxicated.
    In addition, defendant testified that only once had he witnessed decedent drink while on duty. That had occurred approximately two weeks before the fatal accident. Defendant did have a policy prohibiting employees from drinking during their shifts. Moreover, all defendant's employees were required to take and to pass a State training and alcohol management course. Mrs. Lapollo had been certified on September 9, 1986. Although it was his policy to fire employees caught drinking on duty, he did not fire Mrs. Lapollo. Defendant stated that he felt sorry for her and believed she would not drink on duty again, so he had merely suspended her.
    Other witnesses cast doubt on defendant's testimony. Plaintiff, Mrs. Lapollo's daughter, testified that defendant had phoned her the morning after the fatal crash to inquire about her mother. According to plaintiff,
        He asked me if I knew where my mother was and I asked him why, and he said because I kind of had the feeling she was hitting the bottle last night, and at that point I said well, yeah, I just identified the body, she's dead.

Defendant admits to calling plaintiff, but denies that he said that he suspected that decedent had been drinking.
    Roger Stewart, a patron of the tavern, testified that he had made two stops at Richie's Tavern on November 22, l987. At approximately noon, he and Ray Callahan stopped there for lunch.

At that time, Stewart did not see defendant and had no indication that Mrs. Lapollo was drunk or had been drinking. He said that when he returned with Callahan at approximately 8:20 p.m. Mrs. Lapollo was apparently intoxicated. He testified that he saw Mrs. Lapollo drink a shot of alcohol with another patron. He further testified that defendant saw this occur as well, but took no action to stop it, and that defendant did not say anything afterward. Defendant's silence did not surprise Stewart because he claimed to have seen decedent drink on duty in the presence of defendant on two or three other occasions without defendant taking corrective action. Ray Callahan confirmed Roger Stewart's testimony concerning Mrs. Lapollo drinking a shot sometime between 8:20 p.m. and 9:00 p.m. He also confirmed that defendant had been present in the bar at the time, but could not confirm that defendant saw Mrs. Lapollo drink the shot.
    Gregory Stewart, Roger's brother, also testified on plaintiff's behalf. He testified that he had seen decedent drink a shot of alcohol sometime around 6:00 p.m. Although defendant was not in the bar at that time, Gregory testified that when he returned to the tavern after Mrs. Lapollo had left, defendant told him that he (defendant) had told decedent to leave because she had been drinking.
    Heather Mason, a childhood friend of plaintiff, claimed that she had arrived at the tavern at approximately l:00 p.m. looking for plaintiff. Although plaintiff was not in the bar, she sat

down at the bar and talked to decedent for about an hour. During that time, she observed Mrs. Lapollo drink a shot of alcohol. Moreover, she testified that defendant had been present and also had witnessed Mrs. Lapollo drinking the shot. Ms. Mason further testified that she returned to Richie's tavern at approximately l0:00 p.m. with a friend. At that time, according to her, decedent was highly intoxicated and continuing to drink.
    Two other patrons testified. Joe Wight said that when he arrived at approximately 8:00 p.m., Mrs. Lapollo was intoxicated. The other patron, Nancy Fallon, who arrived at the tavern at approximately 7:30 p.m. and left two hours later, testified that she had seen decedent drink two shots of alcohol. Wight claimed to have seen defendant in the bar between 8:30 p.m. and 9:00 p.m., but Ms. Fallon testified that she did not see defendant in the bar during her stay.
    The jury concluded that defendant negligently had served Mrs. Lapollo while she was visibly intoxicated. Moreover, it found that defendant's negligence had proximately caused her death. Yet, the jury also found that decedent had been contributorily negligent and that her negligence also had been a proximate cause of her death. Apportioning the relative degrees of negligence, the jury assessed seventy-five percent to Mrs. Lapollo and twenty-five percent to defendant. As a result, the court dismissed plaintiff's cause of action pursuant to N.J.S.A. 2A:l5-5.l.

    The Appellate Division affirmed and we granted plaintiff's petition for certification, l 30 N.J. 399 (l992). We now affirm.

                    [and]

        N.J.A.C. 13:2-23.20. No licensee shall work in any capacity in or upon the licensed premises while actually or apparently intoxicated or allow, permit or suffer any actually or apparently intoxicated person to work in any capacity in or upon the licensed premises.

    The trial judge determined in limine that he would not charge the violation of administrative regulations as elements of negligence. He reasoned that the Act, effective when this cause

of action arose, provided the exclusive definition of an alcoholic-beverage server's negligence. We agree.
    The Legislature codified civil dram-shop liability in the Act, which was passed on June 25, l987, and became effective on September 23, l987. The Act is a comprehensive statutory scheme designed to address the problems that developed in the common-law in the aftermath of Rappaport v. Nichols, 3l N.J. l88 (l959), and its progeny. The Legislature designed the Act to address the drastic cost increases and widespread unavailability of liability insurance for licensed alcoholic-beverage servers. The Legislature intended to alleviate those problems by limiting dram-shop liability.
    Prior to the Act, civil dram-shop liability had evolved in a series of Supreme Court cases beginning with Rappaport and ending with Lee, supra, l27 N.J. l70. For a thorough review of the history of civil dram-shop liability in New Jersey, see Lee, supra, 127 N.J. at l75-97, and Buckley, supra, l0l N.J. at 74-79.
    Section four of the Act, N.J.S.A. 2A:22A-4, unequivocally states that the Act provides the exclusive remedy for dram-shop causes of action arising after the effective date of the Act. Specifically, N.J.S.A. 2A:22A-4 provides:
        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.

    Consistent with its preemptive purpose and exclusive nature, the Act defines the plaintiff's prima facie case for all dram-shop causes of action. Specifically, section five, N.J.S.A. 2A:22A-5, provides:
        a. A person who sustains personal injury or property damage as result of the negligent service of alcoholic beverages by a licensed alcoholic beverage server may recover damages from a licensed alcoholic beverage server only if:

        (l) The server is deemed negligent pursuant to subsection b. of this section; 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.

        b. A licensed alcoholic beverage server shall be deemed to have been negligent only when the server served a visibly intoxicated person, or served a minor, under circumstances where the server knew, or reasonably should have known, that the person served was a minor.

    We must interpret statutes in accordance with their plain meaning. Phillips v. Curiale, l 28 N.J. 608, 6l7-l8 (l992); State v. Bigham, ll 9 N.J. 646, 65l (l990). Absent any specific legislative intent to the contrary, this Court will not do

violence to a statute's plain meaning. Town of Morristown v. Woman's Club, l 24 N.J. 605, 6l0 (l99l); Mortimer v. Board of Review, 99 N.J. 393, 398 (l985).                                  We find no other plausible explanation for the Legislature's use of the word "only." On its face section five exclusively defines negligence for the purposes of civil liability. Negligence is not definable by reference to administrative regulations. Indeed, the Legislature drafted subsection b 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.                                      The foregoing construction effectuates the Legislature's intent. See Cedar Grove, Inc. v. Stanzione, l 22 N.J. 202, 2l3 (l99l); Accountemps Div. v. Birch Tree Group, ll 5 N.J. 6l4, 622 (l989). As previously mentioned, the Legislature intended to lend a greater degree of predictability to when and under what circumstances licensed alcoholic-beverage servers would be subject to dram-shop liability. The Legislature made its purpose unmistakably clear.
        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 civil liability of licensed alcoholic beverage servers in order to encourage the development and implementation of risk reduction techniques.

    That purpose would be severely undermined by allowing various administrative regulations to provide alternative standards of care for alcoholic-beverage servers. Allowing administrative regulations to serve as proxies for negligence would introduce unpredictability into dram-shop liability. As a result, alcoholic-beverage servers and licensees would have difficulty obtaining insurance and we would defeat the purpose of the Act.                                                  Plaintiff mistakenly relies on Geherty v. Moore, 238 N.J. Super. 463 (App. Div. l990), certif. vacated, l 27 N.J. 287 (l99l), and other pre-Act cases for the proposition that violation of administrative regulations constitutes negligence. Because the Act is exclusive, administrative regulations are no longer proper benchmarks of a licensee's duty.
    We likewise find unpersuasive plaintiff's argument that even if section five provides the exclusive definition of defendant's negligence, the trial court should have instructed on the relevant administrative regulations in order for the jury to assess defendant's and Mrs. Lapollo's relative degrees of fault. Plaintiff contends that although the jury must first determine whether defendant violated the statutory standard of care by having served alcohol to a visibly intoxicated person, the court should allow the jury to consider whether defendant violated relevant administrative regulations in assessing how negligent he

was. Plaintiff's argument is merely an attempt to introduce the administrative regulations through the back door. Not only would such an instruction be confusing, it would also be illogical to hold that violating some standard of care is not evidence of negligence but can be evidence of the degree of negligence. The argument simply makes no sense.
    In this case the theory of liability was (and the jury found) that defendant had "served" alcohol to Mrs. Lapollo while she was visibly intoxicated. Because this is a dram-shop cause of action arising solely under the Act, negligence must be defined within the four corners of the Act, not with reference to the administrative regulations governing the licensing of alcoholic-beverage servers. Here, the jury did not consider whether defendant negligently supervised or hired decedent. If a cause of action is premised on a theory of negligent hiring, negligent supervision, or some other theory not involving negligent service, violations of relevant administrative regulations may evidence a tavern owner's negligence.
    Our courts have consistently held that violations of relevant statutory or regulatory standards of care should be presented to the trier of fact for its evaluation in civil actions. See Eaton v. Eaton, 119 N.J. 628, 642 (1990) (holding that violation of statutory standard of care should be considered by jury); Braitman v. Overlook Terrace Corp., 68 N.J. 368, 385 (1975) (stating, "the violation of a statutory duty of care is

not conclusive on the issue of negligence in a civil action but it is a circumstance which the trier of fact should consider in assessing liability"); see also Driscoll v. Department of Treasury, 625 N.J. Super. 503, 514 (Law Div. 1993) (noting that "any violation of [a] regulation is not conclusive on the issue of negligence in a civil action but merely a circumstance which is to be taken into consideration upon assessing liability"). We do not depart from that well-established principle today, but merely hold that trial courts in dram-shop Act cases may not instruct the jury that violations of administrative regulations evidence a defendant's negligence.
         

        a. The provisions of sections l and 2 of P.L. l973, c. l46 (C. 2A:l5-5.l and C. 2A:l5-5.2) shall apply in all civil actions instituted pursuant to the provisions of this act.

Thus, in causes of action under the Act in which "the question of liability is in dispute," the trier of fact must determine "[t]he extent, in the form of a percentage, of each party's negligence .

. . [assuming that] the total of all percentages of negligence of all parties to a suit shall be l00%." N.J.S.A. 2A:l5-5.2.
    The original version of the Act would have barred a person who became voluntarily intoxicated and who thereby sustained personal injuries from recovering damages against an alcoholic beverage server. Assembly Bill No. 554 § 2 (l985). The Governor's conditional veto of the proposed legislation, however, tempered the Legislature's bright-line bar to recovery by recommending that the Legislature provide a dram-shop cause of action, but limit a licensee's liability "by applying comparative negligence principles where the injured party had the capacity to engage in self-protective measures." Governor's Veto Message to Assembly Bill Nos. 2264, 2209, 2211, 1876, 1679, 865, and 554 (Jan. 22, 1987). The Legislature adopted the Governor's recommendation almost verbatim. Compare ibid. with N.J.S.A. 2A: 22A-5, -6. Thus, the Governor's conditional veto and the Legislature's subsequent acquiescence therein make the legislative intent readily discernible. Specifically, public policy is best served by limiting a licensee's dram-shop liability through the application of comparative negligence rather than by eliminating such liability entirely.
    In Buckley, supra, l0l N.J. 68, we addressed the common-law dram-shop rules in the context of the Legislature's adoption of the Comparative Negligence Act. There, we reassessed our holding in Soronen v. Olde Milford Inn, 46 N.J. 582 (l966), in light of

the Legislature's decision to supplant the harsh doctrine of contributory negligence with comparative negligence. In Soronen, we rejected the tavern owner's defense of contributory negligence in an action brought by the survivors of a tavern patron who had died as a result of falling off a bar stool and striking his head on a metal column. Id. at 596. In Buckley, we reasoned that the impetus behind the Soronen rule -- precluding a negligent tavern owner from being completely insulated from liability due to even slight negligence on the part of a plaintiff -- had lost its force in light of the adoption of comparative negligence. l0l N.J. at 77-78.
    Thus, Buckley permitted a limited comparative-negligence defense in dram-shop actions. If a tavern owner could demonstrate that a plaintiff had the ability to appreciate the risk of driving while intoxicated or of accompanying an intoxicated driver, the tavern owner could reduce his or her liability in accordance with the Comparative Negligence Act. Ibid. If, on the other hand, a patron's intoxicated condition rendered the patron unable to appreciate such a risk and the tavern owner served the patron alcohol when he or she was visibly intoxicated, the tavern could not assert the defense of comparative negligence. Ibid.
    We reassessed the principles governing civil dram-shop liability in Lee, supra, l27 N.J. l70. Although the cause of action in Lee arose under the common law, nothing in the Act

suggests a legislative intent contrary to our decision in Lee. In fact, we were fully cognizant of the Act in our decision in Lee and we concluded then, as we do now, that the principles set forth therein are completely "consistent with the apparent intent of the Legislature in enacting the Act." Id. at l83.
    In Lee, a passenger in a car driven by an intoxicated driver sought to recover from the restaurant who had served the driver when he was visibly intoxicated. Id. at l72. We modified our holding in Buckley as follows.
        First, an intoxicated patron may no longer avoid responsibility for injuries proximately caused by his or her voluntary decision to consume alcohol to the point of intoxication. Second, once a jury determines that a tavern continued to serve drinks to a visibly-intoxicated patron, the jury should not be instructed, absent exceptional circumstances, to determine the extent to which the patron retained some capacity to appreciate the risk of engaging in the activity that led to the accident. If a tavern serves alcohol to a visibly-intoxicated patron, a court will ordinarily presume the patron's lack of capacity to evaluate the ensuing risks.

Thus, we struck a balance between the unfairness of the Soronen rule, which could potentially lead to holding a tavern l00" liable where it was only l" responsible, and the confusion surrounding the application of the Buckley factor, i.e., the plaintiff's ability to appreciate the risk of engaging in the activity that led to the accident.                              Comparative negligence was still an available defense after

Lee, but ordinarily a plaintiff's decision to engage in conduct after the point of intoxication would not be evidence of the plaintiff's own negligence. That is because in the ordinary case a jury instructed to evaluate whether a plaintiff could appreciate the risk of driving while intoxicated would tend to focus on the plaintiff's voluntary intoxication and not the defendant's act of serving the visibly-intoxicated patron.
    In Lee, we recognized that the proper inquiry should focus on the decision to drive (or to accompany an intoxicated driver). We reasoned that the best way to ensure that a jury would distinguish a plaintiff's conduct in becoming intoxicated from that plaintiff's conduct in deciding to drive (or to accompany an intoxicated driver) while intoxicated was to instruct the jury that a comparative-negligence defense cannot be based on the decision to drive (or to accompany an intoxicated driver). In other words, in the ordinary case, once a defendant is found to have been negligent, that defendant bears the responsibility for the plaintiff's decision to drive (or to accompany an intoxicated driver). That responsibility may be diminished only to the extent that the plaintiff's drinking prior to the point of intoxication contributed to his or her inability to appreciate the risk of his or her behavior. Id. at l87.

        We talk about her negligence as terms of comparative negligence or contributory negligence and let me address that for a moment. * * *

        When I say a reasonably prudent person I mean not the most cautious person in the world or somebody who is unusually bold, but a person of reasonable caution and prudence. And you must determine whether Mrs. Lapollo has conformed to or departed from that standard of care. A driver is not absolved from responsibility by virtue of voluntary intoxication. A drunk driver can be responsible for the accident if the driver fails to exercise reasonable care for her own safety. An intoxicated driver's circumstances are to be assessed by you in order to determine whether and to what extent that person's appreciation of the risk was still effective, notwithstanding some level of inebriation. So you want to think about to what extent was Mrs. Lapollo's rational decision making ability impaired by intoxication; did she retain some ability to appreciate that she was not fully capable of operating a vehicle. If and if she retained the accident (sic) one degree or another to appreciate her limitations due to liquor, and yet she voluntarily exposes herself to a manifest danger which she otherwise could and indeed a sober person in the exercise of ordinary foresight and prudence would have avoided, then she would be guilty of comparative or contributory negligence.

        Remember what you are assessing are the relative degrees of responsibility for the claim that Mrs. Lapollo got drunk because of that intoxication, drove into a one car fatal accident; the licensed beverage server is responsible for consequences of the accident if the server causes the drinker, here Mrs. Lapollo, to fail to control her own actions or appreciate the risk surrounding her conduct, and of course she is responsible for her own acts to the extent that she could appreciate the limitations and despite those limitations caused by drinking decided to get into the car and drive anyway.

    Like the Appellate Division, we agree with plaintiff that the trial court's comparative-negligence charge did not adhere to the outline we provided in Lee for the ordinary dram-shop case. The trial court did not instruct the jury to presume that plaintiff's decedent lacked the capacity to evaluate the ensuing risks of driving while intoxicated. Instead, the court instructed the jury to determine whether plaintiff's decedent had retained the ability to appreciate the risks associated with driving in her condition. If the jury concluded that she had retained the capacity to appreciate the risk, it should find that she had been contributorily negligent.

gives them certain expertise in determining levels and degrees of intoxication) (Garibaldi, J., dissenting).     We did not intend that the presumption we established in Lee would apply to the circumstances of this case. That is precisely why we were careful in Lee to explain that a court should not instruct the jury to determine the extent to which the patron had retained some capacity to appreciate the risk of engaging in the activity that led to the accident, "absent exceptional circumstances." l27 N.J. at l84 (emphasis added). Moreover, we stated that a court should "ordinarily presume the patron's lack of capacity to evaluate the ensuing risks." Ibid. (emphasis added). We find the circumstances of this case to be exceptional, such that the trial court's failure to instruct the jury on the Lee presumption was not erroneous.
    The unmistakable corollary to our holding in Lee is that if "exceptional circumstances" exist, a jury should consider the "extent to which the patron retained some capacity to appreciate the risk of engaging in the activity that led to the accident." l27 N.J. at l84. Because of the "exceptional circumstances" of this case, the trial court's instruction to the jury to that effect was entirely appropriate. It correctly applied the Buckley standard to the peculiar facts of the case and did not mislead the jury. See Vadurro v. Yellow Cab Co., 6 N.J. l02, l07-08 (l950) (holding that "acid test" for reviewing jury instructions is whether jury could have been misled); see also

Latta v. Caulfield, 79 N.J. l28, l35 (l979) (finding that "[r]eversible error will not be found where the charge, considered as a whole, adequately conveys the law and would not confuse or mislead the jury, even though part, standing alone, might be incorrect"); Jurman v. Samuel Braen, Inc., 47 N.J. 586, 59l-92 (l966) (stating that jury charge "must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language and plainly spell out how the jury should apply the legal principles to the facts as it may find them").
    Given the fact that the Lee presumption is inapplicable to this case, plaintiff's contention that we should remand this case because of our intervening decision in Lee is meritless. Had we decided Lee prior to the jury instruction in this case, we would not have altered the substance of the jury instruction. The trial court would have had to determine first whether "exceptional circumstances" existed. After determining that "exceptional circumstances" did exist, the trial court would have had to instruct the jury precisely as it did on comparative negligence. Our decision in Lee would have had no effect on the substance of the jury charge; therefore, to allow Lee to be the basis of a reversal and remand would have been pointless. Courts uphold even erroneous jury instructions when those instructions are incapable of producing an unjust result or prejudicing substantial rights. See Terminal Constr. Corp. v. Bergen County

Hackensack River Sanitary Sewer Dist. Auth., l 8 N.J. 294, 3l5 (l955) (holding that unless error in jury instruction was prejudicial to party's substantial rights, no reason exists to reverse trial court); Lang v. Baker, l 95 N.J. Super. 430, 434 (App. Div. l984) (holding that error in instructing jury on controlling law that has no capacity to lead to unjust result is harmless), rev'd on other grounds, l0l N.J. l47 (l985); Jorgensen v. Pennsylvania R.R. Co., 38 N.J. Super. 3l7, 339 (App. Div. l955) (holding that erroneous jury instruction does not require reversal unless error is prejudicial because inconsistent with substantial justice), certif. denied, 20 N.J. 308 (l956).

101 N.J. at 82 (O'Hern, J., concurring). Here, the jury reached a just result in accordance with the applicable law. We see no reason to disturb that result.
    Judgment affirmed. No costs.

    Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein join in this opinion.