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Results

  • Claims Against Bar/Restaurant Dismissed in Dram Shop Action

    The plaintiff spent the afternoon at our client’s restaurant/bar before driving ten minutes to his local Country Club to continue celebrating his birthday. Ninety minutes after he arrived at the Club, he fell down the stairs and suffered a severe brain injury. His Blood Alcohol Content was roughly three times the legal limit. The plaintiff had previously worked as a high-end custom wood finisher but is now unable to see color, among having other deficits, and he is alleged to be fully disabled.  After more than 20 depositions, and despite varying reports as to what the plaintiff had to drink at our client’s establishment, we were able to argue that he showed no signs of visible intoxication prior to the last service of alcohol by our client. Our motion was strenuously opposed by the Country Club, who argued there was testimony that the plaintiff appeared intoxicated upon his arrival at the Club. The court agreed with our argument that this was insufficient evidence for a jury to find that our client served alcohol to a visibly intoxicated plaintiff, and, as such, all claims against our client were dismissed and summary judgment was granted.

  • Summary Judgment Secured in a Dram Shop Liability Case

    We won summary judgment in a challenging dram shop liability case against a large restaurant chain where the demand was $1 million. The plaintiff alleged our client was responsible for overserving the co-defendant driver prior to the subject motor vehicle accident. The court agreed with our arguments that the plaintiff failed to establish a violation of the The New Jersey Dram Shop Act. The plaintiff failed to present an expert report until opposing our motion for summary judgment. The expert report, which was submitted as an exhibit to the plaintiff’s opposition brief, did not extrapolate the defendant’s BAC at the time he left the defendant’s establishment. There was also no eyewitness testimony on the issue. The court rejected the plaintiff’s arguments that there was sufficient circumstantial evidence to support a jury’s conclusion that the co-defendant driver was visibly intoxicated at the time of service based on police observations at the scene of the accident and a (.17) BAC reading, which was administered approximately one hour and 30 minutes after leaving the restaurant. Distinguishing between prior case law and the subject circumstances, summary judgment was awarded based on the lack of either direct testimony or expert opinion as to the co-defendant’s state of intoxication at the time of service. 

  • Claim for Corporate Veil Piercing in Wrongful Death Dram Shop Action Dismissed

    The plaintiff included a count seeking to pierce the corporate veil and pursue the principals of the liquor licensee under an enterprise theory of liability. We argued that there is no cause of action for corporate veil piercing under an enterprise theory; rather, these theories are used to recover if, and only if, the entity is not able to satisfy any judgment against it. The court dismissed the count.

  • Defense Verdict in a Two-Week Jury Trial for a Tavern in a Dram Shop Act Case

    We obtained a defense verdict in a two-week jury trial in Middlesex County, New Jersey, in a case against a tavern alleged to have violated the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act (aka The Dram Shop Act). The plaintiff claimed the bar violated the Act by serving a patron—a settled co-defendant—alcohol while he was visibly intoxicated, resulting in that patron driving drunk and colliding with the plaintiff’s vehicle. The plaintiff suffered significant injuries to her neck, requiring two cervical fusion surgeries. Police were unable to obtain objective proof of the patron’s blood alcohol concentration (BAC) via a blood sample or breathalyzer. The tavern had no record of the patron, who paid cash for his beverages, and first learned of the accident upon being served with a complaint more than nine months later.  At trial, the plaintiff relied on the patron’s deposition testimony as to the timing of three different drinks he consumed at the bar, as well as a toxicology expert, to prove liability. The expert, in providing an opinion as to what the patron’s BAC would have been “while at or when leaving the bar,” used a dose reconstruction methodology based upon the patron’s testimony. However, on cross-examination, we were able to establish that the expert’s calculations of the amount of pure alcohol ingested by the patron were erroneous and unreliable and that the expert never provided an opinion as to whether the patron was visibly intoxicated at the time of service—the key issue in any Dram Shop case.  We also presented a credible toxicology expert on behalf of the defendant, who provided the jury a visual timeline of events to demonstrate that at the time the patron was last served alcohol (more than an hour before the accident), his BAC would have been well below the .15 threshold whereby most people would show visible signs of intoxication. We further argued that, despite any sympathy the jury may feel for the plaintiff, she failed to meet her burden of proving that the patron was exhibiting “clear signs of intoxication” at the time of service, as required by the statute. The jury agreed.  

  • Defense Obtains a Minority View Win in a Personal Injury/Dram Shop Action in the Connecticut Superior Court

    After suffering severe brain damage in a motor vehicle accident, the plaintiff brought claims of negligence and recklessness against our restaurant client and other various defendants, including the owners and operator of the offending vehicle, who was charged with multiple criminal offenses (still pending) for operating under the influence. On behalf of our client, cross-claims were asserted for contribution and indemnification. The co-defendants first requested revision of the cross-claims, which were complied with, and then moved to strike the cross-claims as not recognized under Connecticut law. We argued, on behalf of the restaurant and sole proprietor owner, that there was a minority view of Superior Court cases of more recent vintage than that cited by the co-defendants’ counsel which supported such cross-claims. We submitted that the rationale behind these cases includes the plain language interpretation that Connecticut General Statutes Sec. 52-572h(c) does not prohibit a defendant from acquiring an apportionment evaluation of another (already named) party’s negligence. We argued this is particularly so under the circumstances of a criminally charged co-defendant operating under the influence as the final conduct in the negligence timeline. The Stamford Superior Court agreed that prohibiting the cross-claims would be absurd, irrational and nonsensical. 

Firm Highlights

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.