Most states, including New Jersey, have enacted “dram shop” laws. These civil statutes provide that in certain circumstances an injured claimant may bring a lawsuit against a business that served or sold alcohol to an individual who then caused an alcohol-related accident resulting in injuries. However, as discussed more fully below, the seemingly clear standard imposing liability upon a bar, restaurant or similar entity, favors the dram shop and places a heavy burden upon an injured plaintiff.
Liability of a Licensed Alcoholic Beverage Server
Chapter 22A of Title 2A of the New Jersey Statutes Annotated is titled the “New Jersey Licensed Alcoholic Beverage Server Fair Liability Act,” but is commonly referred to as the New Jersey Dram Shop Act.
The Act is the “exclusive civil remedy for personal injury or property damage resulting from the negligent service of alcoholic beverages by a licensed alcoholic beverage server.” N.J.S.A. 2A:22A-4. Under the Dram Shop Act, “a licensed alcoholic beverage server” can be held liable for damages suffered by “[a] person who sustains personal injury or property damage as a result of the negligent service of alcoholic beverages” where three elements are established:
1) 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.
[N.J.S.A. 2A:22A-5(a)].
Subsection b of the above section provides that a licensed alcoholic beverage server is “negligent only when the server served a visibly intoxicated person, or served a minor…” N.J.S.A. 2A:22A-5(b) (emphasis added). The definitions section of the Act provides further clarification as to what constitutes a “visibly intoxicated” person. It provides that “[v]isibly intoxicated means a state of intoxication accompanied by a perceptible act or series of acts which present clear signs of intoxication.” N.J.S.A. 2A:22A-3.
Consequently, in the case of an intoxicated adult causing injury or property damage, a claimant must make a showing that the licensed alcoholic beverage server, served a visibly intoxicated individual. Such a showing is typically made through eyewitness testimony, from individuals who directly observed the intoxicated individual shortly before the alleged accident.
Dram shop laws impose a difficult burden upon plaintiffs. For example, in Mazzacano v. Estate of Kinnerman, the New Jersey Supreme Court affirmed the judgment of the Appellate Division, which had affirmed the trial court’s rulings and jury verdict in favor of the defendant, licensed alcoholic beverage server. 197 N.J. 307, 324 (2009).
The defendant, in Mazzacano hosted its annual outdoor Pig Roast, which was open to the general public and served both food and beverages including beer. Id. at 311. A refrigerated beer truck was provided on a self-serve basis and the defendant did not assign individuals to check identification or determine if a patron was visibly intoxicated. Id. at 311-12.
An attendee at the pig roast was observed at least once at the beer truck over the five hours that he had attended, but “[b]y various accounts, from the time of his arrival at the party until he departed…[he] did not appear to be visibly intoxicated.” Ibid. Nevertheless, the patron, who was noted as being an “experienced, high-performance driver with a reputation for racing” got behind the wheel of his sports car, where he accelerated to a speed of ninety miles per hour. The driver then lost control of the vehicle and crossed over the center divider, striking a van traveling in the opposite direction, killing himself, as well as all of the occupants inside his vehicle, and resulting in serious injuries to the van operator. Id. at 312-13.
At trial, the plaintiff called a toxicology expert who opined that the driver “was certainly under the influence of alcohol” at the time of accident. Id. at 313. The expert further concluded that the driver’s blood alcohol content (BAC) reading of 0.181, “indicated that the driver had consumed the equivalent of thirteen twelve-ounce classes of beer over a period of four-and-one-half hours or nine twelve-ounce classes within an hour of the accident.” Ibid.
Prior to the jury deliberating, the trial judge charged the jury regarding the applicable law under the Dram Shop Act, including the definition of “visibly intoxicated” under the Act. Id. at 314. Ultimately, the jury returned a verdict for the licensed alcoholic beverage server, and the Appellate division affirmed concluding that “several persons attending the Pig Roast did not observe any sign that [the patron] was [visibly] intoxicated.” Id. at 316. The case today, serves as the representative decision of just how heavy a burden a plaintiff must carry to prevail on against a dram shop.
As of 2013, however, the burden appears to have been slightly eased, by the Appellate Division’s decision in Halvorsen v. Villamil, 429 N.J. Super. 568 (App. Div. 2013). There the court highlighted the fact that the Act does not contain language mandating direct eyewitness testimony, in order for a plaintiff to establish the element of visible intoxication.
In Halvorsen, the defendant driver Villamil, was involved in a motor vehicle accident approximately thirty minutes after he left the bar at TGI Friday’s, where he had been drinking for several hours. Id. at 571-72. Villamil’s blood was drawn by police at the hospital following the accident and chemists later determined his BAC to be 0.278 percent. Id. at 830.
During discovery, plaintiffs produced an expert report from a toxicology, who concluded based on the “relation back” of Villamil’s BAC, he must have been served while visibly intoxicated and the toxicologist further opined that Villamil “would have had to consume the equivalent of approximately seventeen [twelve] ounce containers of beer.” Id. at 830. Nevertheless, at the close of discovery, TGI Friday’s moved successfully for summary judgment, pointing to the plaintiff’s failure to set forth any direct evidence that defendant Villamil was visibly intoxicated when they had served him. Id. at 573. Plaintiff appealed, and the Appellate Division reversed, noting that the Act does not explicitly mandate eyewitness testimony. Id. at 579.
Instead, the Appellate Division found plaintiff presented sufficient evidence on the visible intoxication issue. Id. at 576-77. Specifically, plaintiff presented the following:
- Villamil testified at his deposition that he did not consume alcohol before going to T.G.I. Friday’s or after leaving, and that the accident occurred only twenty minutes after he left T.G.I. Friday’s.
- The police report documents erratic driving by Villamil when he struck a slowing vehicle in the rear with sufficient impact to cause it to flip on its side.
- When the police and paramedics arrived at the accident scene, they smelled alcohol on Villamil’s breath.
- Villamil told the police he was not in pain, despite the paramedics reporting that he sustained serious bodily injuries requiring hospitalization.
- Villamil’s blood taken at the hospital revealed the very high blood alcohol concentration of 0.278 percent.
[Ibid.]
As such, the Halvorsen opinion serves as the first decision allowing a plaintiff to prove negligence on the part of a dram shop with circumstantial evidence alone. However, the Halvorsen court was careful to point out that the toxicologist’s “relation back” testimony was insufficient, without the presence of other facts that would allow a reasonable juror to find that the individual was served while visibly intoxicated. Id. at 579.
Therefore, it is now possible for a plaintiff to prevail on his/her claim without direct eyewitness testimony. However, extensive circumstantial evidence will be required to survive a defendant dram shop’s motion for summary judgment.
Conclusion
Prevailing against a licensed alcoholic beverage server requires specific evidence in order to establish liability. In the pre-suit phase, attorneys must identify all witnesses who may have seen the intoxicated individual during the course of his or her drinking. Receipts are very important to establish when the individual was served and to prove it was the right entity that served the intoxicated person. Always send a spoliation letter to preserve all video that the establishment may have of the intoxicated person. To ensure that no stone is left unturned, and all evidence is gathered and preserved, you should contact an attorney familiar with handling claims against bars, restaurants and other licensed alcoholic beverage servers. Keep in mind that social host liability and the serving of minors involve slightly different theories and must be analyzed under the appropriate laws applying to those claims.
Our attorneys have substantial experience navigating New Jersey claims involving the Dram Shop Act on behalf of injured plaintiffs and we are available to discuss all aspects of such claims. Please feel free to contact us at weirlaw@weirattorneys.com if you have any questions on this subject.