We have granted defendant's petition and plaintiffs' cross-petition for rehearing, both parties desiring us to reconsider the views we expressed on the availability of the defense of contributory negligence in this case, and to review various other matters considered in the opinion. Tabor v. O'Grady, 59 N.J. Super. 330 ( App. Div. 1960). Briefs have been filed by the parties in support of the respective positions taken.

A New Jersey Court reversed and remanded for a new trial where, in a summation to the jury that "far exceeded the bounds of proper comment and argument", the defense was described as being "replete with misleading red herrings" and "based on trickery, shameful conduct, and the pulling of 'stunts'". Tabor v O'Grady, 59 N.J. Super. 330, 340-341; 157 A.2d 701, 707 (1960). III

Thus, for instance, a passenger in a motor vehicle generally has only two duties: not to interfere with the driver's operations, Lombardo v. Hoag, 269 N.J.Super. 36, 54, 634 A.2d 550 (App.Div. 1993), certif. denied, 135 N.J. 469, 640 A.2d 850 (1994), and to protect himself or herself. Ambrose v. Cyphers, 29 N.J. 138, 150, 148 A.2d 465 (1959); Melone v. Jersey Cent. Power Light Co., 18 N.J. 163, 176, 113 A.2d 13 (1955); Tabor v. O'Grady, 59 N.J.Super. 330, 337-38, 157 A.2d 701 (App.Div.), modified in part on reh'g, 61 N.J.Super. 446, 161 A.2d 267 (App.Div. 1960). However, as to the latter, namely the duty to exercise care for one's own safety, until there is evidence of unsafe driving, there is no duty on the passenger's part "to supervise the driving, to keep a lookout for danger or to warn of a danger."

Ibid. See also Tabor v. O'Grady, 59 N.J. Super. 330, 340-41 (App.Div. 1960), mod. on other grounds, 61 N.J. Super. 446 (App.Div. 1960). This is so, because of the tendency of such comments "to instill in the minds of the jury impressions not founded upon the evidence."

Intoxicated persons, like sober individuals, are held to the same standard of care of a reasonable person. Ibid. (citing Allen v. Rutgers, State Univ. of New Jersey, 216 N.J. Super. 189, 195, 523 A.2d 262 (App.Div.), certif. denied, 107 N.J. 653, 527 A.2d 472 (1987); Anslinger v. Martinsville Inn, Inc., 121 N.J. Super. 525, 534, 298 A.2d 84 (App.Div. 1972), certif. denied, 62 N.J. 334, 301 A.2d 449 (1973); Tabor v. O'Grady, 59 N.J. Super. 330, 339, 157 A.2d 701 (App.Div. 196 0)). The facts reflect that decedent had difficulty opening the rear door to his apartment, which had a tendency to stick in humid weather.

See Ambrose v. Cyphers, 29 N.J. 138, 150, 148 A.2d 465 (1959) (Weintraub, C.J.) ("[A] passenger is bound to exercise for his own safety the care of a reasonably prudent person under the circumstances."); Melone v. Jersey Central Power Light Co., 18 N.J. 163, 176, 113 A.2d 13 (1955) (General rule is that passenger is "bound to exercise such care for his own safety as the exigencies of the situation require."); Tabor v. O'Grady, 59 N.J. Super. 330, 337, 157 A.2d 701 (App.Div. 1960), modified in part on reh'g, 61 N.J. Super. 446, 161 A.2d 267 (App.Div. 1960) ("A passenger in an automobile must exercise such reasonable care and caution as an ordinarily prudent person would exercise under like circumstances."). Such duty, however, is not without limitation.

The third ground for making a jury question of the cause set out in the complaint is that if the defendant is guilty of wilful negligence plaintiff's contributory negligence does not defeat his claim, unless of course his contributory negligence was also wilful. Tabor v. O'Grady, App. Div. 1960, 59 N.J. Super. 330, 157 A.2d 701, on rehearing App. Div. 1960, 61 N.J. Super. 446, 161 A.2d 267. This was not presented to the district court at all.

See, e.g., Melone, 18 N.J. at 163 (contributory negligence a question for the jury where the plaintiff-passenger testified that the driver was driving in “a very normal fashion” considering the rainy conditions, yet the passenger “wasn't paying much attention” and had been “sitting there nonchalantly”); Tabor v. O'Grady, 59 N.J.Super. 330 (App. Div. 1960) (whether plaintiff was contributorily negligent by failing to control or restrain the driver, or by failing to get out of the vehicle before the accident, was “reasonably debatable” and thus a question for the jury); Staines v. Cent R. Co., 72 N.J.L. 268 (1905)

Rather, an intoxicated person is held to the same standard of care as a sober person. See Tabor v. O'Grady, 59 N.J. Super. 330, 339, 157 A.2d 701, 706 (App.Div. 1960); see also Allen v. Rutgers, State Univ. of New Jersey, 216 N.J. Super. 189, 195, 523 A.2d 262, 265 (App.Div. 1987), certif. denied, 107 N.J. 653, 527 A.2d 472 (1987); Anslinger v. Martinsville Inn, Inc., 121 N.J. Super. 525, 534, 298 A.2d 84, 88 (App.Div. 1972), certif. denied, 62 N.J. 334, 301 A.2d 449 (1973). As recently reiterated by the New Jersey Supreme Court, the state's "statutory and case law reflect the compelling public policy that those who voluntarily become intoxicated must be held responsible for the consequences of their behavior."

Such damages were held proper because the circumstances warranted a conclusion of wanton misconduct. See also Tabor v. O'Grady, supra, 59 N.J. Super. 330, same case on reh. 61 N.J. Super. 446 (App.Div. 196 0); Bogle v. Conway, 198 Kan. 166, 422 P.2d 971 (1967). In the present case we are satisfied that the totality of the evidence established a factual question for jury decision as to whether defendant Farms' acts and omissions constituted willful and wanton misconduct. It constructed and maintained the dock extending into the water with planking projecting beyond the terminal points of the side rails and about six feet farther out over the water.