Visibly Intoxicated? Just Ask the Expert. (NJ)

In Halvorsen v. Villamil, plaintiffs brought a dram shop action against defendant, T.G.I. Friday’s (“T.G.I.F.’s”) for injuries sustained during a motor vehicle accident claiming that TGIF’s served alcoholic beverages to a visibly intoxicated patron. On the day of the subject accident, the defendant visited TGIF’s from approximately 4:00 to 7:00 p.m. He testified that he consumed two or three beers at the restaurant, but had no drinks prior to his arrival. Twenty to thirty minutes after the plaintiff left TGIF’s at about 9 p.m., he rearedended a pick up truck and flipped it on its side. Paramedics at the scene noted a strong odor of alcohol when extricating the defendant from his car. He subsequently registered a .278 blood alcohol concentration when he arrived at the Jersey Shore Medical Center at 10:32 p.m.

Plaintiffs’ expert opined that the defendant would have had to consume seventeen twelve-ounce beers to reach such a high BAC and would have been visibly intoxicated while at TGIF’s. At the end of discovery, TGIF’s moved for summary judgment arguing that plaintiffs could not prove that the defendant was served alcohol while he was visibly intoxicated as required by the N.J. Dram Shop Act. The trial court granted summary judgment finding that there was no evidence of what defendant drank or how he acted while at TGIF’s.

The Appellate Division disagreed with the trial court’s ruling. In order to defeat a summary judgment motion in a dram shop case, a plaintiff must present sufficient evidence that would permit a jury to deduce that a defendant was served alcoholic beverages while visibly intoxicated. A visibly intoxicated individual is one who exhibits a state of intoxication accompanied by acts which present clear signs of intoxication. Proof of visible intoxication does not hang on eyewitness testimy.  In fact, the appellate division noted that there is no specific provision in the N.J. Dram Shop Act that requires such.   A jury could be persuaded solely by an expert’s testimony as to whether a defendant was visibly intoxicated.

Nevertheless, the report of plaintiff’s expert on its own in this case was not sufficient to defeat defendant’s motion for summary judgment. However, the report, in combination with the strong circumstantial evidence in the record (i.e., defendant only drank alcohol at T.G.I.F’s, there was a short time between his leaving TGIF’s and the accident, and defendant’s excessive BAC, among others), could allow a jury to deduce that TGIF’s served defendant beverages while he was visibly intoxicated. As such, the Appellate Division found a genuine issue of material fact and remanded the matter back to the trial court.

Special Thanks to Andrew Marra for his contribution.

For more information contact Denise Ricci at dricci@wcmlaw.com