In Halvorsen v. Villamil, 429 N.J. Super. 568 (App.Div. 2013) the New Jersey Superior Court, Appellate Division, recently held that the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-1 to -7 (“Dram Shop Act”) does not require eyewitness testimony to prove that a person was served an alcoholic beverage while visibly intoxicated.

This decision arises from a motor vehicle accident caused by an intoxicated driver who collided into the rear of a pickup truck containing a mother and her three children. In the hours before the accident, the driver arrived at T.G.I. Friday’s “sometime between the hours of 4:00 p.m. and 7:00 p.m.” The driver testified that he did not consume alcohol before arriving at T.G.I. Friday’s or after leaving. While at T.G.I. Friday’s, the driver consumed “two or three” alcoholic beverages. Following the 9:00 p.m. motor vehicle accident, paramedics noticed an odor of alcohol on the intoxicated driver’s breath. Shortly thereafter, New Jersey State Police chemists measured his blood alcohol concentration to be 0.278 percent.

The plaintiffs’ toxicology expert issued a report in which he opined that, in order for the intoxicated driver to reach a blood alcohol concentration of 0.278 percent, he “would have had to consume the equivalent of approximately seventeen [twelve] ounce containers of beer.” The expert further opined that “it’s reasonable to conclude that while [the intoxicated driver] was being served alcohol at [T.G.I.] Friday’s, he exhibited marked physical manifestations of alcohol intoxication.” In spite of this report, there were no witnesses who testified to having observed the driver visibly intoxicated while he was at T.G.I. Friday’s.

Upon completion of discovery, T.G.I. Friday’s filed a motion for summary judgment, arguing that the plaintiffs failed to produce evidence that T.G.I. Friday’s served the defendant driver alcoholic beverages while he was visibly intoxicated. The motion judge granted T.G.I. Friday’s motion holding that “[p]laintiffs have not presented any evidence as to what … [the intoxicated driver] drank or how he behaved at [T.G.I.] Friday’s on the evening of the accident.” Refusing to consider the plaintiffs’ expert report in conjunction with the direct and circumstantial evidence of record, the judge determined there was no genuine issue of material fact as to whether T.G.I. Friday’s served a “visibly intoxicated person.”

On appeal from the trial court, the Appellate Division considered two issues. The Appellate Division first considered whether the lack of an eyewitness to testify that T.G.I. Friday’s served alcohol to the intoxicated driver while he was visibly intoxicated is fatal to plaintiffs’ claims. In its analysis, the appeals court observed that the Dram Shop Act defines visibly intoxicated 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. The appeals court found, however, that the Dram Shop Act does not contain language mandating that a plaintiff produce an eyewitness to prove a person was served alcohol by the beverage server while he or she was visibly intoxicated. The appeals court also observed that, in Mazzacano v. Estate of Kinnerman, 197 N.J. 307 (2009), “our Supreme Court acknowledged that it is possible to prove liability under the [Dram Shop] Act without direct eyewitness testimony on the visible intoxication issue.” “Based on Mazzacano and the absence of an eyewitness requirement in the statutory language, we do not read such a requirement into the Act.” Finally, the appeals court noted that “[t]o 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.” Therefore, circumstantial evidence, by itself and if sufficient, can be used to defeat a motion for summary judgment based on the Dram Shop Act.

The appellate court then considered whether the evidence the plaintiffs presented in opposition to the defendant’s motion for summary judgment was sufficient to create a genuine issue of material fact as to whether the driver was served while visibly intoxicated. The court noted that the plaintiffs presented evidence that the driver admitted he did not consume alcohol before going to T.G.I. Friday’s or after leaving. The plaintiffs also produced evidence that the driver was driving erratically in the moments before the accident and that he had the smell of alcohol following the accident. The driver’s blood alcohol concentration was measured at 0.278 percent by hospital staff.

As an interesting side note, the appeals court observed that, while the “expert opinion bolstered this evidence,” the court did “not conclude [the] … expert report alone creates a genuine issue of material fact on the visible intoxication issue.” Based on the above, the decision of the trial court was reversed and remanded as the record created an issue of fact for the jury to resolve.