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CASE NOTES – COMMENTARY ON NEW DECISIONS

| Jun 7, 2013 | Firm News |

There is a newly published case in New Jersey reversing a summary judgment granted to the dram shop defendant where the trial court erred in holding that the absence of eyewitness testimony that the driver was served while visibly intoxicated was fatal to the dram shop claim. Halvorsen et al; v. Villamil, Delgado, Metz and Associates, Ltd. et al; (App. Div. 2013) decided March 6, 2013. It is useful as a summary of New Jersey law regarding the proof of liability under New Jersey’s dram shop law when there is no direct testimony that the intoxicated driver was served after he presented signs of intoxication that did, or should have, alerted the server that he was visibly intoxicated and should not have been served. N.J.S.A. 2A:22A-5(b). The Appellate Division based its determination on the absence of an eyewitness requirement in the statutory language [A licensed alcoholic beverage server shall be deemed to have been negligent only when the server served a visibly intoxicated person….], and the New Jersey Supreme Court’s discussion in Mazzacano v. Estate of Kinnerman, 197 N.J. 307 (2009) which had held that expert testimony, by itself could have been enough to take the issue of the intoxicated driver’s condition when served to the jury. [Mazzacano was actually a self-serve situation where a social club made beer available and guests served themselves from a tap.] The facts are particularly well-suited to the extrapolation theory of the plaintiff’s proofs in that the intoxicated driver, although inconsistent in his statements about when he started drinking, did not waver at all in his testimony that he did not consume alcoholic beverages at any location other than the TGI Fridays in question either before or after he was there. The time that he left TGI Fridays was also consistently described and it was a very short time prior to the accident. Additional factual elements included the driver’s erratic operation of his vehicle, the odor of alcohol on his breath, and his claims of painlessness despite significant head injuries. Holding that a fact may be proved by both direct and circumstantial evidence, the Appellate Division found a sufficient basis for a jury to conclude that the driver was visibly intoxicated when served at TGI Fridays. The accident occurred at 9:00 p.m., the driver testified that he left the restaurant twenty to thirty minutes earlier, a blood sample drawn at 10:32 – approximately two hours after the driver would have stopped drinking – yielded a .278 alcohol concentration result. The former NJSP alcohol expert, Richard Saferstein, testifying for the plaintiffs, [two adults and three children riding in a pick up truck overturned by the intoxicated driver striking it from behind as it slowed for a turn] opined that in order to yield this reading – given the driver’s height and weight – he would have to have been over .10 percent while he was still being served at TGI Fridays. Prior cases which lacked the same factual predicate in that the intoxicated driver did not know how many drinks he had at each bar, when he left, or whether he even visited a second bar – Riley v. Keenan, 406 N.J. Super 281(App. Div.) certif. denied, 200 N.J.207 (2009) or when the extrapolation calculation placed the driver’s last drink at a time after last call – Salemke v. Sarvetnick, 352 N.J. Super. 319 (App. Div.) certif. denied, 175 N.J. 77 (2002), were distinguished on their facts.

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