NJ Dram Shop Act: Over-Service of Alcohol & Visible Intoxication

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Eyewitness Testimony of "Visible Intoxication" Not Required

to Defeat Summary Judgment in Dram Shop Case

In a recent case, the New Jersey Appellate Division ruled that eyewitness testimony is not required to prove that a licensed alcoholic beverage server violated the New Jersey Dram Shop Act (N.J.S.A. 2A:22A-1 to -7) by serving a visibly intoxicated customer. Halvorsen v. Metz & Associates (March 6, 2013). Halvorsen involves a motor vehicle accident which occurred approximately 30 minutes after defendant, Russell Villamil, left the bar at T.G.I. Friday's where he had been drinking for somewhere between 90 minutes and 4.5 hours. His BAC, which was taken 90 minutes after the accident, was .278. There was no eyewitness testimony of Villamil's condition or alcohol consumption at Friday's. Plaintiffs however, produced a report authored by Richard Saferstein, a forensic science expert, who concluded that, based upon his post-accident BAC, Villamil would have been visibly intoxicated when served alcohol at Friday's. At the close of discovery, Friday's filed a motion for summary judgment arguing that plaintiffs failed to establish that Villamil was served while visibly intoxicated at Friday's. The motion was granted and plaintiffs filed an appeal.

The Appellate Division focused its decision on a reading of the Dram Shop Act and the New Jersey Supreme Court opinion in Mazzacano v. Estate of Kinnerman, 197 N.J. 307 (2009). The Court noted that "visibly intoxicated" is defined within the statute as "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. Despite the clearly stated requirement for "a perceptible act or series of acts", which seemingly signifies the need for actual eyewitness observation, the Halvorsen Court concluded that the Act does not contain language mandating actual eyewitness testimony of service of alcohol to a visibly intoxicated patron. The Court cited to dicta within the Mazzacano opinion stating that even without eyewitness testimony concerning a person's condition when served an alcoholic beverage, expert testimony that the licensed alcoholic beverage server served a person an alcoholic beverage while visibly intoxicated can be sufficient to prove a violation of the Dram Shop Act. Thus, the Halvorsen Court declined to read into the Dram Shop Act the need for eyewitness testimony of visible intoxication and, based upon Dr. Saferstein's report and additional factual evidence, determined that a genuine issue of material fact existed regarding the issue of service while visibly intoxicated and reinstated the plaintiffs' claim against Friday's.

The Halvorsen Court explicitly stated that, alone, Dr. Saferstein's report did not create a genuine issue of material fact. Instead, the Court ruled that "To defeat a motion for summary judgment in a dram shop case, a plaintiff must present sufficient direct or circumstantial evidence that would permit a jury to reasonably and legitimately deduce that a beverage server served alcoholic beverages to the person at issue while he or she was visibly intoxicated." The other evidence which the Court deemed relevant to its analysis included Villamil's testimony that he did not eat, and only drank alcoholic beverages while at Friday's; the short amount of time between his leaving Friday's and the accident; his erratic driving which caused the accident; his advising the paramedics that he felt no pain despite sustaining serious injury; and his extremely high blood alcohol level.

The Halvorsen decision should not be read and cited for anything more than is stated above. The Court is not saying that expert opinion via extrapolation alone is enough to defeat summary judgment. What they have indicated however, is that eyewitness testimony of visible intoxication is not required to defeat a motion for summary judgment when there exists, "sufficient direct or circumstantial evidence" that would allow a jury to "reasonably and legitimately" determine that the A.I.P. (alleged intoxicated patron) was served while visibly intoxicated. This decision is nothing more than a dent in the armor of the Dram Shop litigator whose arsenal still includes the advocacy skill to make a deliberating jury wonder and question why the plaintiff never produced an eyewitness to say that the A.I.P. was served while visibly intoxicated. This case will not be appealed to the New Jersey Supreme Court.