NJ Law Review Update
Dear
Colleagues:
Torts - Liquor Liability
IN THIS DRAM SHOP ACTION, JUDGMENT IN FAVOR OF THE PLAINTIFF WAS REVERSED BECAUSE THE TRIAL COURT ERRED REGARDING PROXIMATE CAUSE, IN PRECLUDING THE DEFENSE FROM EXPLORING THE DRIVER'S ALCOHOL TOLERANCE, AND IN GIVING A SPOLIATION CHARGE.
The New Jersey Supreme Court Appellate Division decided the case of Davis v. Barkaszi on February 9, 2012. The facts of the case are as follows. The defendant Justin B. Barkaszi
picked up the plaintiff Douglas D. Davis, after he had been drinking at Norman's Bar & Grill
Inc., d/b/a KC's Komer. Barkaszi's car slammed into a tree resulting in injuries to Davis.
Thereafter, Davis filed a dram shop action against the bartender, the bar's owner, and KC's
Komer, alleging that the bar negligently served alcohol to Barkaszi while he was visibly
intoxicated, in violation of NJ.S.A. 2A:22A-5, which resulted in the accident.
At the trial, the bar's owner testified that the bar area is monitored with a surveillance
system that automatically records over previous footage about once a week. He further testified
that he had seen the footage, but was precluded from testifying as to what he saw and from
explaining why he did not preserve the video. The judge gave the jury an adverse-inference
charge on KC's Komer's failure to preserve the video. In addition, the plaintiff presented an
expert in alcohol pharmacology and forensic toxicology who opined that Barkaszi was a person
of average tolerance who would have exhibited visible signs of intoxication during the 35
minutes prior to the accident. The jury found that KC's Komer negligently served Barkaszi
alcohol, which proximately caused the accident.
The appellate division held that the trial judge erred in declining to allow the defense to
explore Barkaszi' s tolerance to alcohol and in instructing the jury that he had an average
tolerance. The plaintiffs expert's opinion was based on his knowledge of Barkaszi's drinking habits which were derived in part from statements from people familiar with his drinking history. The appellate division held that these were not medical conclusions, but rather factual observations subject to rebuttal. In other words, the foundation of these facts could be called into question by examining lay individuals who might testify contrary observations. Therefore, the defense should have been allowed to develop lay evidence concerning Barkaszi' s alcohol tolerance.
The appellate division also held that the trial court's interpretation of proximate cause under N.J.S.A. 2A:22A-5 was incorrect. Where a defendant reasonably raises the defense that no alcohol served after visible intoxication entered the driver's bloodstream prior to the accident, the trial judge should amplify the proximate-cause paragraph of the model jury charge and instruct that the negligently served alcohol must have had sufficient time to negatively affect the driver's ability to drive.
Finally, the spoliation charge was erroneous because the plaintiff failed to make a threshold showing that KC's Komer improperly destroyed the surveillance footage. The judge erred in not allowing testimony concerning the reasons why KC's Komer chose not to preserve the footage.
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