New Jersey Appellate Division Allows Dram Shop Case to Proceed Despite Lack of Direct Evidence Showing Negligent Service of Alcohol
On March 6, 2013, the New Jersey Appellate Division decided Halvorsen v. Villamil, et al., 2013 WL 811070 (App. Div. 2013) and discussed the types of proof needed to pursue a case under the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, commonly known as the Dram Shop Act (the Act). The court reversed a grant of summary judgment in favor of a restaurant/bar and held that the lack of eyewitness testimony regarding a patron’s behavior and demeanor while at the bar was not fatal to a claim under the Act. Rather, there was a sufficient amount of circumstantial evidence to create an issue of fact as to whether negligent service of alcohol had occurred.
THE NEW JERSEY DRAM SHOP ACT
Pursuant to N.J.S.A. 2A:22A-2, a claim for personal injury or property damage can be brought against a licensed alcoholic beverage server if alcohol was served to either a visibly intoxicated person or a minor and the service proximately caused foreseeable injuries.
HALVORSEN AND THE BURDEN OF PROOF UNDER THE DRAM SHOP ACT
In Halvorsen, the defendant driver consumed alcohol at a bar for several hours. Twenty minutes after leaving the bar, the driver rear-ended the plaintiffs’ vehicle, causing injury to several individuals. Over an hour after the accident, the driver’s blood was tested and revealed a blood alcohol content (BAC) of 0.278.
In support of their claim under the Act, the plaintiffs provided the report of a toxicologist who opined, through the use of “relation back” opinion evidence, that the driver would have reached a BAC of .10 one hour before he left the bar. At this level, the toxicologist opined that the driver would have been showing signs of intoxication including “an unsteady gait, poor balance, slow and uncertain hand movements and possible slurred speech…” The toxicologist further concluded that, based upon his post-accident BAC, the driver had consumed approximately 17 drinks at the bar.
The bar successfully moved for summary judgment based upon the plaintiffs’ lack of direct evidence regarding the driver’s demeanor and actions while at the bar. The plaintiffs appealed arguing that eyewitness testimony was not required and the other evidence, including the “relation back” opinion of a toxicologist, was sufficient to create an issue of fact as to whether negligent service of alcohol had occurred.
In reversing summary judgment, the Appellate Division noted that the Act’s language did not require eyewitness testimony and the court declined to read such a requirement into the Act. Rather, a plaintiff can survive summary judgment by providing sufficient circumstantial evidence that a patron was served while visibly intoxicated. The court concluded that the following evidence constituted sufficient circumstantial evidence of negligent service of alcohol:
- The toxicologist’s opinion that the driver would have been showing signs of visible intoxication one hour before he left the bar based on “relation back” BAC calculations;
- The driver’s testimony that all of the alcohol he consumed that night was at the bar in question;
- The short period of time (i.e. 20-30 minutes) between the driver leaving the bar and the motor vehicle accident;
- The odor of alcohol noticed on the driver’s breath by the responding police officer;
- The driver’s comment to the police that he was not in any pain despite sustaining serious head injuries in the accident; and
- The driver’s extremely high BAC one hour after the accident.
Although the court did not conclude that the toxicologist’s opinion alone would be sufficient to defeat summary judgment, the opinion, in combination with the other facts, provided enough circumstantial evidence to allow a reasonable person to conclude that the driver was served alcohol while visibly intoxicated at the bar.
Two key points can be gleaned from the holding of Halvorsen. First, the Appellate Division held that eyewitness testimony regarding a patron’s conduct at a bar is not required to prove negligent service of alcohol. Second, a plaintiff can prove negligent service of alcohol through circumstantial evidence alone.
The plaintiff’s bar will undoubtedly use Halvorsen to oppose summary judgment in Dram Shop Act cases in which there is a lack of direct evidence showing negligent service of alcohol. However, Halvorsen is extremely fact specific and may be distinguished on that basis.