Before GOODRICH, McLAUGHLIN and FORMAN, Circuit Judges.
This is a tort case in which the District Court for the District of New Jersey gave judgment for the defendant on the ground that the complaint failed "to state a cause upon which relief may or can be granted." At this stage, of course, the complaint "must be viewed in the light most favorable to the plaintiff." Frederick Hart & Co. v. Recordgraph Corp., 3 Cir., 1948, 169 F.2d 580, 581. The case is in federal court on the grounds of diversity only. The events on which the complaint is based all occurred in New Jersey*fn1 and the rights and liabilities of the parties are determined by New Jersey law. This simple undisputed proposition requires no citation of authority.
The plaintiff says in his complaint that on a day in July in 1958 about ten o'clock in the morning he entered defendant's place of business and while there was served strong alcoholic beverage even after he was noticeably intoxicated. Then comes the critical language and it seems best to quote it in the words of the complaint:
"Upon leaving the defendant's tavern, plaintiff was able neither to walk nor to drive properly, and, indeed, was so inebriated that it was necessary for defendant Jennings to come outside and give plaintiff specific and extensive instructions as to which way to turn his steering wheel in order that plaintiff might drive his car from defendant's parking lot."
The complaint then goes on to say that because of his intoxicated condition, the plaintiff became involved in an automobile accident shortly after leaving the defendant's tavern. This is followed up by a more detailed statement of the injuries which plaintiff says he suffered from the accident.
There are two approaches to the alleged facts in determining whether the defendant may be charged with liability creating conduct toward this plaintiff. The first depends upon no statute whatever. It has to do with the responsibility of the proprietor of premises to another, whether he be business guest, licensee or even trespasser*fn2 in removing or helping to remove the guest from the owner's premises. A leading case is Black v. New York, N.H. & H.R. Co., 1907, 193 Mass. 448, 79 N.E. 797, 7 L.R.A.,N.S., 148. Black was a passenger on the railroad and entered the train in an intoxicated condition. His intoxication was apparent. When the train arrived at Ashmont, Black's destination, the conductor and the brakeman helped him down from the train and led him to a series of steps leading up from the platform to the station. They got him about half way up and left him there. Black reeled for a moment or so and then fell backward down the steps hurting himself. A directed verdict for the defendants was reversed. Mr. Chief Justice Knowlton, for the court, said: "* * * they voluntarily undertook to help him from the car, and they were bound to use ordinary care in what they did that might affect his safety. Not only in the act of removal, but in the place where they left him, it was their duty to have reasonable regard for his safety in view of his manifest condition. The jury might have found that they were negligent in leaving him on the steps where a fall would be likely to do him much harm." Variations of this set of facts are found in many cases reported from many states.*fn3
The interesting case of Depue v. Flateau, 1907, 100 Minn. 299, 111 N.W. 1, 8 L.R.A.,N.S., 485, is familiar to many tort students. There the householder assisted a sick passenger into his sleigh and started him off on a cold Minnesota winter night. The man fell out of his sleigh and suffered harm from exposure. The court had no difficulty in finding the foundation for liability here. Note that in this case the plaintiff was ill, not drunk, but the liability has been found in many other cases of ejection of drunks from a tavern, a private club and a railroad depot.*fn4 A court also found a defendant liable whose employees failed to prevent the decedent who was visibly intoxicated from wandering onto its property and falling into a grinding machine.*fn5
In the case before us we have not merely the sale of intoxicants to a drunk but the allegation of specific directions to get him from the defendant's premises on to the public highway. This we think is analogous to the assistance the railroad employees gave to Black in the case discussed earlier. What would be the situation if Poison Pete had simply sold this plaintiff too much liquor and then let him leave by himself is something we do not need to consider on this phase of the case.*fn6
A second theory for finding a basis of liability is the violation by the defendant of Regulation No. 20, Division of Alcoholic Beverage Control, New Jersey, Rule 1:
"No licensee shall sell, serve or deliver or allow, permit or suffer the sale, service or delivery of any alcoholic beverage, directly or indirectly * * * to any person actually or apparently intoxicated, or allow, permit or suffer the consumption of any alcoholic beverage by any such person in or about the licensed premises."*fn7
This rule was said by the Supreme Court of New Jersey to be "in furtherance of the legislative policy." Rappaport v. Nichols and Hub Bar, Inc., 1959, 31 N.J. 188, 201, 156 A.2d 1, 8. In that case it was held that the dram shop proprietor who had sold liquor to a drunk was liable to an innocent third person when the drunk, operating his car, hit that person. That, of course, is not this case. The court did, however, assume that the regulation already cited was not narrowly intended to benefit the minors and intoxicated persons alone but was to protect the public as well. 31 N.J. at page 202, 156 A.2d at page 8. In other words, the court assumes that the regulations are to protect minors, drunks and other incompetent persons and then extends the protection further than that. That is not conclusive, of course, but it tends to show the assumption by the New Jersey court that the regulations were to protect incompetents against their own incompetency.
Furthermore, the New Jersey court cites with approval the Pennsylvania case of Schelin v. Goldberg, 1958, 188 Pa.Super. 341, 146 A.2d 648 (leave to appeal denied February 27, 1959). In this case the Superior Court, through Judge Woodside, discussed the repeal of the Act of 1854 and called attention to Section 493 of the Liquor Code of 1951, Pa.Stat.Ann., tit. 47, § 4-493(1), which made it unlawful to sell liquor to any person visibly intoxicated. The court thought that the statute was not only to protect society generally but to protect intoxicated persons from their inability to take care of themselves. It is New Jersey law we are discussing, of course, but the fact that the New Jersey court referred with approval and discussed the Pennsylvania case we believe to be relevant in our consideration here.
The proposition is general that a statute, or regulation having force of statute, can establish a standard of care and that one who violates it has therefore acted in a way to create liability if ...