In a recent case, Halvorsen v Villamil, the New Jersey Appellate Division held that the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-1 to -7 (the Dram Shop Act), does not require eyewitness testimony to prove a person was served an alcoholic beverage while visibly intoxicated. The court reinstated a Dram Shop action against the owners of T.G.I. Friday?s that had been dismissed by the trial court. The trial court found that there was insufficient evidence to prove that a visibly intoxicated person was served due to the lack of an eyewitness.
The facts of the case are as follows. On February 10, 2008, Gregory Villamill, arrived at T.G.I. Friday?s sometime between the hours of 4:00 and 7:00 p.m. According to Villamill, he did not consume alcohol before arriving at T.G.I. Friday?s or after leaving. He claimed that he sat at the bar and consumed only two to three beers. He could not describe any of the employees who were working that evening. He claims that he left T.G.I. Friday?s 20 to 30 minutes before he was involved in an automobile accident. Before the accident, he dropped an acquaintance off at her home. The accident occurred at approximately 9:00 p.m. The accident involved Mr. Villamill driving his vehicle into the rear of a pickup truck that was driven by the plaintiff. The plaintiff and her three children were injured in the accident. The police arrived at the scene at approximately 9:07 p.m. Paramedics noticed the odor of alcohol on his breath. The police report indicates that he had to be extricated from his vehicle, he sustained major head injuries, and he was in and out of consciousness. When asked if he was in pain, he replied ?No, I?m fine.? Blood was drawn at approximately 10:30 p.m. His blood alcohol was determined to be 0.278%. Plaintiffs retained Richard Saferstein as their toxicology and alcohol expert. He determined that Mr. Villamill would have had to have consumed the equivalent of seventeen 12 ounce beers. He further gave the opinion that, assuming he did not start drinking until 6:30 p.m., based on his height and weight, he would have reached a blood alcohol concentration of 0.1% by 7:30 p.m., which would have rendered him visibly impaired at that time. Given the fact that the accident occurred shortly after he claimed to have left the restaurant, the expert concluded that it was reasonable to conclude that he was being served at T.G.I. Friday?s while he exhibited marked physical manifestations of alcohol intoxication.
While the Trial Court found Mr. Villamill?s blood alcohol level shocking, it found that the plaintiffs had not presented any evidence as to what he drank or how he behaved at T.G.I. Friday?s on the evening of the accident. Accordingly, the court dismissed the case on summary judgment. On appeal, the court first explained that although the Dram Shop Act states that an alcoholic beverage server shall be deemed negligent ?only when the server served a visibly intoxicated person,? the statute does not contain language mandating that the plaintiff produce an eyewitness to prove service of a visibly intoxicated person. It then cited the 2009 New Jersey Supreme Court case, Mazzacano v. Estate of Kinnerman, where the High Court seemed to suggest that a plaintiff?s expert report could be sufficient under certain circumstances to establish negligence. ?Taking the statutory language and the Mazzacano case into consideration, the Appellate Court found that the lack of an eyewitness was not, per se, fatal to the plaintiff?s claim. With regard to the specific facts of this case, the court found that Mr. Villamill?s testimony that he did not consume any alcohol before or after he left T.G.I. Friday?s, a police report documenting erratic driving, the smell of alcohol on his breath, his claim that he was not in pain despite sustaining a serious head injury, and his blood alcohol concentration of 0.28%, taken together with Dr. Saferstein?s expert opinions, created an issue of fact as to whether T.G.I. Friday?s served Mr. Villamill while he was visibly intoxicated. In other words, the court found that a jury could reasonably conclude that T.G.I. Friday?s served Mr. Villamill while he was visibly intoxicated based on the totality of the evidence. The court also careful to point out that it was not concluding that Dr. Saferstein?s report alone created an issue of fact. It was the report, along with the other evidence and testimony on record, that created the issue of fact.
Despite the court?s cautionary comment, however, this case clearly sets a low standard for proving service of alcohol to a visibly intoxicated person. Plaintiffs can now take a case to trial with just an expert report and evidence that the driver was intoxicated post-accident.