Hospitality & Liquor Liability

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.

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. 

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.

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.