NJ Law Review Update
Dear
Colleagues:
ISSUE: Are eyewitnesses required for the plaintiff to
establish a dram shop claim?
In the
matter of Halvorsen v. Villamil, the New Jersey
Appellate Division opined that the lack of an eye witness
is not fatal to a plaintiff’s dram shop claim.
In
Halvorsen, the defendant Villamil consumed alcohol at
a T.G.I. Friday’s (“Friday’s”). Villamil claimed that he
did not consume alcohol before arriving at the restaurant
and that he consumed two to three beers while at the
restaurant. After leaving the restaurant, Villamil drove
his vehicle into the rear of a pick-up truck driven by the
plaintiff Holly Halvorsen injuring Holly and her three
passenger children. After the accident a blood sample was
drawn from Villamil, and revealed a blood-alcohol
concentration of 0.278 percent.
The
plaintiffs retained Richard Saferstein, an expert in
forensic science, toxicology, and alcohol. It was
Saferstein’s opinion that Villamil would have had to
consume the equivalent of 17 12-ounce containers of beer
to reach the blood alcohol level of 0.278.
The
defendant, Friday’s, moved for summary judgment on the
basis that the plaintiffs failed to produce evidence that
it served Villamil alcohol while he was visibly
intoxicated. The trial court granted the Motion.
The
Appellate Division affirmed the trial group’s ruling. It
cited that the New Jersey Licensed Alcoholic Beverage
Server Fair Liability Act (the Dram Shop Act) does not
require eyewitness testimony to prove a person was served
alcohol while visibly intoxicated. The Appellate set
forth that the record in this matter contained enough
evidence to create a genuine issue of material fact as to
whether Friday’s served Villamil while he was visibly
intoxicated. This evidence included Saferstein’s report,
the police documentation of erratic driving, the
paramedics smelling of alcohol on Villamil’s breath, and
his very high blood alcohol count. All of this evidence
combined created an issue of fact for the jury to resolve.
Therefore, the Court held that the trial court exceeded its discretion in this multiplaintiff, jointly case-managed litigation by ordering that the defendants were barred from retaining as an expert witness or consulting with any physicians who has at any time treated one or more of the several hundred plaintiffs.
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