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E-Bulletin -
2007
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Under the New Jersey Dram Shop Act, N.J.S.A. 2A:22A-5, bars, taverns, restaurants and other licensed alcoholic beverage servers can be found negligent if they serve a visibly intoxicated person or a minor.
In its recent decision in Conrad v. Michelle & John, Inc., d/b/a Nipper’s Pub, the Appellate Division made decisions that may have a direct and indirect effect on how “dram shop” cases are litigated in the future.
In Conrad, the plaintiff was a passenger in an automobile that the driver had crashed into a utility pole in Deptford Township, New Jersey. The plaintiff filed a civil action against Nipper’s Pub alleging that it had negligently served alcoholic beverages to the driver, although he was already visibly intoxicated. In support of her case, the plaintiff produced a witness who initially stated that the driver was visibly intoxicated when he was served alcoholic beverages by the pub. The witness later recanted his statement during his deposition, and Nipper’s Pub moved for summary judgment.
In the midst of oral argument on the motion for summary judgment, the trial court ordered the plaintiff to produce her expert for an evidentiary hearing to examine the expert’s scientific methodology. The plaintiff’s expert had used the driver’s height, weight and alcohol consumption to determine his blood alcohol level at the time of the service and then correlated the determined blood alcohol level with the eyewitness’ statement, in concluding that the driver had been visibly intoxicated when he was served by Nipper’s Pub.
The Appellate Division reversed the trial court’s dismissal of the plaintiff’s case, based upon the plaintiff’s failure to produce her expert for the evidentiary hearing and the trial court’s finding that the plaintiff’s eyewitness lacked credibility. The Appellate Division found the determination of a fact witness’ credibility, or lack thereof, was a material fact that must be decided by a jury.
Although the Appellate Division declined to decide whether a dram shop case could be maintained without eyewitness testimony as to whether a person was visibly intoxicated when served, it left the door open for future decisions regarding eyewitness testimony and the use of an expert to determine whether a person was visibly intoxicated when served. The lack of eyewitness testimony could be used to question the legitimacy of a plaintiff’s expert’s opinion in dram shop cases, since such experts often use eyewitness testimony to bolster their conclusions that a driver was in fact visibly drunk.
In light of this decision, and the Appellate Division’s decision last year in Verni, the future direction of dram shop cases in New Jersey remains a subject of some speculation.
If you are the risk manager for a restaurant, bar or tavern, or insure licensed alcoholic beverage servers in New Jersey, please do not hesitate to contact Golden, Rothschild, Spagnola, Lundell, Levitt & Boylan, P.C., and we would glad to further discuss the Conrad decision, and its possible implications, with you.
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