Being hit by a drunk driver adds anger to injury, and it adds legal options too. In New Jersey you can bring a civil claim against the impaired driver, and in the right case also against the bar or restaurant that over-served them. Punitive damages may also be available. Here's how these claims work.
The civil case is separate from the criminal case
The State prosecutes the DWI in municipal or Superior Court. Your injury claim is a separate civil case for compensation. You don't have to wait for the criminal case to end, although a conviction or guilty plea can be powerful evidence. The two-year deadline to file your injury lawsuit (N.J.S.A. 2A:14-2) runs whatever happens in the criminal case.
Claims against the driver
Driving while impaired is strong evidence of negligence. Your claim can include medical expenses PIP doesn't cover, lost wages, and pain and suffering, subject to your policy's lawsuit option. If the drunk driver has little insurance, your own underinsured motorist coverage may pay the difference.
Punitive damages
New Jersey's Punitive Damages Act requires proof, by clear and convincing evidence, of actual malice or a wanton and willful disregard of people who foreseeably might be harmed (N.J.S.A. 2A:15-5.12). Drunk driving cases are among the situations where courts have allowed punitive claims to go to a jury. Note that New Jersey's cap on punitive damages, five times compensatory damages or $350,000, whichever is greater, does not apply to a case against a driver who caused the injury while driving under the influence (N.J.S.A. 2A:15-5.14(c)). More on punitive damages.
Claims against the bar or restaurant ("dram shop")
New Jersey's Licensed Alcoholic Beverage Server Fair Liability Act (N.J.S.A. 2A:22A-1 and following) lets an injured person recover from a licensed server, such as a bar, restaurant, or liquor store, when:
- The server served a person who was visibly intoxicated, or served a minor when the server knew or reasonably should have known the person was a minor (N.J.S.A. 2A:22A-5)
- That service was a proximate cause of the injury, and
- The injury was a foreseeable result
"Visibly intoxicated" means a state of intoxication accompanied by a perceptible act or series of acts showing the intoxication. Evidence often includes receipts and bar tabs, surveillance video, staff and patron testimony, and the driver's blood alcohol content compared with how much they drank. Comparative fault rules apply, and the bar's percentage of fault is decided by the jury.
Dram shop claims matter because bars carry liquor liability insurance, which can add coverage when the driver's policy is small. See our bar liability page.
Social hosts
New Jersey also allows limited claims against adult social hosts who serve alcohol to a visibly intoxicated adult and then let that person drive, under N.J.S.A. 2A:15-5.5 to -5.8. The rules are narrower than for bars. Social hosts who give alcohol to minors may face broader liability under case law.
If the drunk driver was working
If the driver was on the job, for example driving a company vehicle, the employer and its commercial policy may also be responsible.
If the drunk driver was hurt too
A driver convicted of or pleading guilty to DWI in connection with the crash generally has no cause of action for their own injuries (N.J.S.A. 39:6A-4.5(b)). That doesn't affect your claim.
What to do
- Tell the responding officer if you smelled alcohol or saw signs of impairment.
- Get witness names. Other drivers may have seen erratic driving before the crash.
- Write down where the driver said they were coming from, if they said anything.
- Talk to a lawyer quickly. Bar surveillance video and receipts may be deleted within days.
Learn more on our drunk driving accidents page.