Bar Fight Liability: Taking it Outside (NY)

In Covelli v Silver Fist Ltd., 2018 NY Slip Op 08914 (2nd Dep’t December 26, 2018), the plaintiff, an administrator of a decedent’s estate, commenced an action against an individual, Roll, and bar defendants to recover damages for negligence and wrongful death.  Plaintiff’s decedent died from injuries sustained as a result of an altercation with Roll in the public street outside the bar.

The Second Department ruled that it is uniformly acknowledged that liability may be imposed only for injuries that occurred on defendant’s property, or in an area under defendant’s control, where defendants had the opportunity to supervise intoxicated guests and that a landowner, not being insurers of a visitor’s safety, have no duty to protect visitors against unforeseeable and unexpected assaults.

Here, as the altercation was outside the premises and control of the bar defendants and was a sudden and unforeseeable event, the lower Court’s order granting the bar defendants motions for summary judgment dismissing the complaint was affirmed. There was no comment regarding the irony of the bar’s name.

This case is of particular interest in that it allows the bar defendants off the hook for liability even when the altercation occurred right outside the bar.  However, although a beneficial opinion towards the defense bar, experienced defense attorneys will be cautious when using this case in similar bar fight scenarios as this opinion appears to show no evidence of the altercation brewing inside the bar before stepping outside.  In cases where evidence is present where the altercation starts developing in the bar it may be more difficult to as clearly differentiate when the bar’s duty to prevent the altercation starts.

Thanks to Jonathan Pincus for his contribution to this post.

NJ – Don’t Drink and Operate a Private Water Craft

The Appellate Division recently held that the Dram Shop Act does not apply to a tavern hosting a small party where the guests, who were employees of the tavern, brought their own alcohol to the party.  The Dram Shop Act was designed to protect the rights of persons who suffer loss as a result of the negligent service of alcohol by a licensed alcoholic beverage server.

In Votor-Jones v. Delly, plaintiff was one of seven employees and patrons of Kelly’s Tavern invited on a social trip organized by the tavern’s owner.  The guests brought with them four or five coolers of alcohol on two boats.  One guest, Michelle, started drinking before they got on the boat.  Michelle continued to drink alcohol after the boats departed for the ocean.  Other guests described Michelle as “loud”, “boisterous” and “excited,” but they conceded that they did not know whether she was intoxicated.

After stopping the boats, Michelle was allowed to operate Kelly’s boat.  Michelle sped away, but turned back toward the other boat at a speed of 40mph.  Michelle then struck plaintiff who was swimming in the ocean.

To prevail on a Dram Shop Act Claim, a party must present evidence that an establishment served alcohol to a visibly intoxicated person.  The Appellate Division rejected as “too attenuated” plaintiff’s contention that the circumstances fell within the scope of the Dram Shop Act because neither Kelly’s Tavern nor Kelly individually were acting as a “licensed alcoholic beverage server” or “server” completed by the statute.  Moreover, Michelle was not a “customer” of Kelly’s Tavern or Kelly.  The Court summarized the outing as an informal, small-scale get together that required attendees to bring their own food and alcohol.

Although there are many instances where an individual is “served” alcohol, not every instance will give rise to liability if that person injures another after imbibing alcohol.  Small get-togethers hosted by a tavern where guests bring their own alcohol will not subject a tavern to liability, but the Court acknowledged that a more large scale party for employees where alcohol is provided to them would result in liability to the tavern.

Thanks to Michael Noblett for his contribution to this post.



Chatty Juror Creates Trial Havoc (NJ)

Every trial begins with an admonition that members of the jury should have no contact with the parties, the attorneys, or the witnesses.   The instruction is given to ensure that the jury verdict is based on evidence admitted by the court and not by other outside, potentially prejudicial influences.

What happens when a juror ignores the court’s instruction and has a brief interaction with an expert witness? Should a mistrial be automatically granted and the trial started anew?

According to a recent New Jersey Appellate Division in Lukenda v. Grunberg, the trial court should determine whether the interaction improperly influenced the juror involved in event and whether the jury as a whole has been tainted. If not, the trial goes on.

Lukenda begins with two young adults who got together for some Christmas cheer in the young woman’s family home. According to the defendant, her male guest had too much to drink and was injured when the defendant attempted to wrestle the car keys away from her suitor. In contrast, the plaintiff denied that he was intoxicated and claimed he was injured when the defendant delivered a “blindsided kick” to his knee, causing devastating injuries. Clearly, the Christmas get together was hardly a holy or peaceful night for the young love birds.

Plaintiff’s expert orthopedist testified at trial, explaining in detail the lateral force necessary to inflict plaintiff’s injuries. During a break in the expert’s testimony, juror number two approached the doctor and quipped that “he thought the doctor was a great teacher and smiled.” Once defense counsel learned of the interaction, he moved for an immediate mistrial. The court questioned both juror number two and the expert witness about the contact between them. After juror number two assured the court that it would not affect his ability to be fair and impartial, the court admonished the juror to avoid any further discussions about the case until the start of deliberations and denied the motion.

The Appellate Division ruled that “a new trial is not necessary in every instance where it appears that an individual juror has been exposed to outside influence.” Under those circumstances, the court’s inquiry should focus on the specific nature of the interaction, whether the juror imparted the outside information to other jurors, and whether the jury, as a whole, has been tainted by the information. Of note, the defendant never requested that the court question the other jurors to determine whether they observed or overheard any part of the interaction between the chatty juror and plaintiff’s expert witness.

In Lukenda, the jury ultimately gave plaintiff a gift befitting the holiday season: it found the defendant liable and gave plaintiff a substantial award.

If you have any questions, please email Paul at

Misbehavior at Misconduct Tavern Leads to Adverse Inference at Trial (PA)

Timothy St. Clair and a group of friends weren’t feeling the luck of Irish on St. Patrick’s Day, 2012, according to the facts in St. Clair v. 1511 Locust Tavern. That evening, Plaintiff St. Clair and his brother entered Misconduct Tavern on 15th and Locust in Center City, Philadelphia to use the restroom. At some point thereafter, St. Clair realized that his brother was involved in what looked to be an impending altercation. While approaching his brother, St. Clair was struck on the side of the face and knocked out.

A staff member of Misconduct Tavern assured St. Clair that the bar had surveillance equipment that would show the incident. St. Clair departed for the hospital, where he had surgery to reconstruct his deviated septum. St. Clair then called Misconduct Tavern two days after the incident to ensure that the promised videotape was preserved. He was told that it was.
Days later, Misconduct Tavern stopped responding to St. Clair. It was subsequently discovered that the bar had failed to preserve the videotape, at which point St. Clair filed a personal injury claim against the bar based upon the allegation that Misconduct Tavern served the already-intoxicated assailant more alcohol.

At trial, Misconduct Tavern argued that they could not be held liable for St. Clair’s personal injuries because there was no video tape proving the bar served a visibly intoxicated individual. St. Clair then asked for and was granted an adverse inference that Misconduct Tavern spoliated evidence by losing the videotape. An eight-member jury found in favor of St. Clair after determining that Misconduct Tavern did serve alcohol to the already-intoxicated assailant, an act of negligence that was a factual cause of St. Clair’s injuries. The verdict was $80,000.

In the future, if a videotape is promised, it appears that a videotape must then be delivered to avoid a damaging adverse inference on spoliation. When dealing with patrons’ misbehavior, bars like Misconduct should be careful going forward to preserve all videotapes of incidents.

Special thanks to Melanie Brother for her contributions to this post. For more information, please e-mail Bob Cosgrove .

Intervening Factors or Independent Wrongdoing Does Not Eliminate Liability Under the Dram Shop Act.

The Dram Shop Act creates a cause of action by an injured third-party against one who unlawfully sells alcoholic beverages to an intoxicated person. An “unlawful” sale or delivery of alcohol is defined as follows: “No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to (1) Any person, actually or apparently, under the age of twenty-one years; and (2) Any visibly intoxicated person.”

In Tansey v. Coscia, plaintiff was assaulted at a bar in Manhattan. Plaintiff sued the underage-defendant, Coscia who assaulted him, and the bar for a violation of the “Dram Shop Act.” The bar moved for summary judgment on the basis that its employees never saw Coscia drinking at the bar prior to the incident, and there was no reason to believe Coscia was underage. In opposing this motion, plaintiff relied upon Coscia’s testimony that Coscia spent time in the “VIP lounge” prior to the incident, it was undisputed he was underage at the time of the incident and had full access to alcoholic beverages despite being underage.

In denying the bar’s motion, the court held that the fact that the bar’s employee did not see Coscia drinking at the bar prior to the incident “carries little evidentiary weight as to whether Coscia was served alcohol at the bar.” The Court also found “it cannot be said as a matter of law that there was no reasonable or practical connection between the defendant’s alleged unlawful sale of alcohol to Coscia and the subsequent injuries” since Coscia testified he “abused the privilege” of free drinks toward the end of the night, had a tendency to fight when mad and was repeatedly annoyed by plaintiff. Further, the Court rejected the bar’s argument that the assault was the result of plaintiff’s own actions since intervening factors/independent wrongdoing does not eliminate liability under the Dram Shop Act.

Courts are hesitant to dismiss cases involving underage drinking for public policy reasons. Thus, bars should be extra cautious in guarding against underage drinking especially since intervening factors, such as criminal activity, is not a defense under the Dram Shop Act.

Thanks to Caroline Freilich for her contribution to this post.




Bar Fights: Competing Policy Issues Left to the Jury to Decide

A bar has a duty to protect it’s patrons from attack when the bar owner has reasonable cause to anticipate conduct likely to endanger the safety of patrons.  However, a landowner is not an insurer of a visitor’s safety even when there is an extensive history of criminal conduct on the premises.  The competing interests is often litigated.

In Ware v. P.J.’s Cocktail Lounge Rest., Inc., plaintiff went to a bar.  Upon entering, he was patted down for weapons.  Plaintiff ordered a drink, and another patron got upset and yelled at him loudly.  The altercation did not escalate at that point.  Later in the night, the angry patron came back to the bar and shot plaintiff in the stomach.

Plaintiff sued the bar arguing that it was negligent in allowing an assailant to gain entry in light of five prior similar criminal incidents at the premises.  The bar moved for summary judgement by arguing that it did not have a duty to protect the plaintiff from a sudden and unforeseen assault, and it did not negligently hire the independent contractor security company.

In support of its motion, the bar included an affidavit from a security expert stating that the use of licensed security and four visible surveillance cameras were sufficient to maintain the safety of patrons.  The plaintiff submitting an affidavit of its own security expert who concluded that the fact pattern of a similar incident two years prior made it clear that the bar’s security measures were deficient.  The expert also stated that the bar was responsible for providing reasonable security, and a simple pat down for weapons by two security guards was insufficient. The court held that there was a triable issue of fact as to whether given the history of the prior violent criminal history at the bar, the security measures taken were reasonable.

This decision illustrates that courts are often unwilling to balance competing policy issues, in favor of having a jury decide close calls.

Thanks to Moya O’Connor for her contribution to this post.





Heard this one? A Man (almost) walks into a bar…

On November 21, 2011, Donovan James was about to enter Terrace Tavern in Newburgh, NY when he spotted certain individuals inside who he suspected would like to cause him harm, including Robert McKenzie.  James immediately decided to find refreshment elsewhere but had been spotted by McKenzie, who pursued James and shot him outside the tavern.

James commenced a suit against McKenzie, Terrace Tavern and the Tavern’s Landlord for negligence and under GLO §11-101 (“Dram Shop” liability for unlawfully selling alcohol to an intoxicated person who then, while intoxicated, injures a third-party).  James v Tavern, 9470/2012, NYLJ 1202676582807 (Decided November 6, 2014). Dram shop claims could not be sustained as the plaintiff could not show that the Tavern had served alcohol to McKenzie before the incident.

The common law premises liability claims against the Tavern and Landlord were premised on their failure to maintain a safe premises.  The Plaintiff alleged that the Terrace Tavern had been the location of several incidents in recent years but could not show that, on the night in question, any dangerous activity had occurred or The Tavern was unsafe.

The court refused to extend the common law duty of bar owners and their landlords to supervise or control the behavior of their patrons outside of the bar, aside from situations where the Dram Shop Act may be applicable.  The court’s survey of similar cases with the same outcome shows that even when a landlord is aware that dangerous activity is common in the vicinity of his premises, the Landlord does not have a special relationship to others who may be injured in the vicinity and thus, owes no duty to them.

Here, the court ruled that the Tavern and Landlord’s duty to Donovan James, their would-be patron, did not exist, even if the harm he suffered emanated from their establishment, and thus, summary judgment for the defendants was granted.

Had James been able to provide testimony as to the unsafe atmosphere inside the bar, the decision may have come out differently. Perhaps he should have stopped in for one drink??   hanks for Jim Rogers for his contribution to this post.

Valet Service Not Liable for Patron’s Drunk Driving (PA)

Although relatively strict with respect to dram shop liability, the Pennsylvania Superior Court recently deviated from the “visible intoxication” mantra to hold in a case of first impression that valet services are not liable for injuries sustained by a patron who injures himself as a result of driving under the influence.

In the case of Moranko v. Downs Racing LP, the administratrix of the decedent’s estate brought wrongful death and survival actions against Mohegan Sun casino under Pennsylvania’s dram shop laws, alleging that before his fatal motor vehicle accident, Mohegan Sun had served her son copious amounts of alcohol and allowed him to retrieve his automobile from valet services despite his alleged visible intoxication.  While Mohegan Sun unsurprisingly moved the trial court for summary judgment as to the lack of evidence regarding visible intoxication, it also argued that there is no cause of action in Pennsylvania allowing recovery against a valet service for relinquishing control of a vehicle to a visibly intoxicated customer.  This latter argument ultimately proved successful and summary judgment was awarded in favor of Mohegan Sun.

In the appeal to the Superior Court that followed, the administratrix took exception to, among other things, the trial court’s finding that Pennsylvania law does not impose an affirmative duty on valet services to prevent intoxicated customers from operating their vehicles.  Citing case law from around the country that likened the relationship between customer and valet to that of bailor and bailee, the three-judge panel of the Superior Court concluded that valets are “duty bound to surrender control of the [customer’s] vehicle when it [is] demanded, notwithstanding the [customer’s] alleged intoxication.”  More specifically, the Court explained that while valets retain temporary possession of their customers’ vehicles, they do not maintain a right of control and are therefore required to relinquish possession immediately upon request.

Although clearly compelled by Pennsylvania law governing the bailor-bailee relationship, the Court’s decision in Moranko might have been different if Mohegan Sun’s internal policies were intended to prevent intoxicated customers from operating their vehicles.  In particular, the Court considered whether Mohegan Sun’s internal policy preventing intoxicated customers from gambling was also evidence that it assumed the duty of preventing drunk driving.  Despite answering that question in the negative, the Court did imply that internal policies aimed at preventing customers from driving under the influence might suffice to impose a legal duty under Pennsylvania law.

All told, Moranko serves as a departure from Pennsylvania’s trending social policy towards dram shop liability, yet reminds us that parties can nonetheless assume otherwise nonexistent legal duties under the right circumstances.

Thanks to Adam Gomez for his contribution.

For more information, contact Denise Fontana Ricci at


Beware Of Boozy Patrons (NY)

Owners of establishments that serve alcohol must be conscious and wary of selling alcohol to those who have had too much to drink.  Sullivan v. Mulinos of Westchester reaffirms the Dram Shop Act’s purpose to prevent such establishments from escaping liability for their blatant disregard for a person’s visible intoxication.

Sullivan died after he lost control of his car, struck a lamp pole, went over a guardrail and plunged into the Hudson River.  He was allegedly intoxicated and had patronized Mulinos’ establishment and Trotters Tavern.  Sullivan’s estate sued Mulinos and Trotters Tavern under the Dram Shop Act based on a claim that they had sold alcohol to Sullivan while he was visibly intoxicated.

During trial, testimony was elicited from several witnesses who had been with Sullivan at Mulinos and later drove him to Trotters Tavern.  According to the witnesses, Sullivan had consumed numerous drinks before leaving Mulinos and was visibly intoxicated.  Despite this, the trial court granted a directed verdict for the defendants at the close of evidence.

On appeal, the Second Department found that there was a reasonable connection between Mulinos’ alleged unlawful sale of alcohol and the resulting damages.  Similarly, the court found that the evidence was sufficient to establish that Trotters Tavern served Sullivan while he was visibly intoxicated.  Thus, the court held that the matter should have been submitted to a jury as to whether the defendants violated the Dram Shop Act.

Special thanks to Lora Gleicher for her contribution to this post.  For more information, please contact Nicole Y. Brown at .

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