May 13 2020

Implications of the New Jersey Licensed Server Liability Act

The New Jersey Licensed Server Liability Act specifically states that a server shall be deemed to have been negligent only when the server served a visibly intoxicated patron or served a minor under circumstances where the server knew, or reasonably should have known, that the person was a minor. The New Jersey Licensed Server Liability Act provides that it "shall be the exclusive civil remedy for personal injury or property damage resulting from the negligent service of alcoholic beverages by a licensed alcoholic beverage server." N.J.S.A. 2A:22A-4.

The New Jersey Licensed Server Liability Act provides as follows:

2A:22A-5. Conditions for recovery of damages

    • A person who sustains personal injury or property damage as a result of the negligent service of alcoholic beverages by a licensed alcoholic beverage server may recover damages from a licensed alcoholic beverage server only if:
      1. The sever is deemed negligent pursuant to subsection b. of this section; and
      2. The injury or damage was proximately caused by the negligent service of alcoholic beverages; and
      3. The injury or damage was a foreseeable consequence of the negligent service of alcoholic beverages.
    • A licensed alcoholic beverage server shall be deemed to have been negligent only when the server served a visibly intoxicated person, or served a minor, under circumstances where the server knew, or reasonably should have known, that the person served was a minor.

N.J.S.A. 2A:22A-5.

 Proof of Case

A plaintiff must present sufficient evidence, direct or circumstantial, that would permit a jury to reasonably and legitimately deduce that a beverage server served alcoholic beverages to the person at issue while he or she was visibly intoxicated. Halvorsen v. Villamil, 429 N.J. Super. 568, 575 (App. Div. 2013), citing Salemke v. Sarvetnick 352 N.J. Super. 319 (App. Div. 2002), certif. denied, 175 N.J. 77 (2002).

As explained by the Court in Halvorsen v. Villamil, a plaintiff may establish visible intoxication in two ways. The plaintiff may prove visible intoxication by direct evidence or circumstantial evidence. With regard to direct evidence, plaintiff may prove visible intoxication with an eyewitness who observed the patron being served alcohol by the beverage server while the patron was visibly intoxicated. The Halvorsen Court also explained that visible intoxication may be proven through a toxicology expert who can note the blood alcohol concentration at or about the time of the accident and extrapolate what that blood alcohol concentration would have been at the time that the patron was served alcohol by the beverage server. The toxicology expert would offer an opinion as to whether the patron, who had a particular blood alcohol concentration level, would have shown signs of visible intoxication.

Accordingly, under New Jersey law, a direct eyewitness of service of alcohol by a beverage server to the patron is not necessary where the plaintiff has a reliable toxicology expert report to assert that the patron would have been visibly intoxicated at the time he or she was served alcohol. The Halvorsen Court, however, explained that while a toxicology report could be sufficient to create an issue of material fact to prevent the granting of summary judgment to a defendant, the Court will consider all of the evidence, including any and all direct and circumstantial evidence which would allow a jury to reasonably and legitimately conclude that the beverage server served the patron an alcoholic beverage while the patron was visibly intoxicated. Accordingly, there are instances where the defense can successfully argue that the toxicology report alone is not sufficient where other evidence does not support the toxicologist's findings.

In Salemke v. Sarvetnick, 352 N.J. Super. 319 (App. Div. 2002) certif. denied, 175 N.J. 77 (2002), the Court held that a toxicology expert report may not necessarily be sufficient to sustain a claim under the New Jersey Licensed Server Liability Act. The Court in that case held that the plaintiff’s toxicology expert report was not sufficient for the plaintiff to sustain a claim. The expert report opined that, based upon the decedent's weight, her blood alcohol level would have been over 0.10 percent after 12:50 a.m., a level at which an average individual would appear visibly intoxicated. The Salemke Court, however, found that this was not sufficient evidence. In Salemke, no eyewitnesses observed the decedent being served alcohol while visibly intoxicated. The Salemke Court found that the trial court judge properly found that there were insufficient facts to establish a genuine issue of fact that the defendant served a visibly intoxicated person.

Comparative Negligence

The Licensed Server Liability Act is not a strict liability act. Accordingly, the alleged intoxicated patron’s comparative negligence may be assessed by the jury. Joint and several liability does not apply to a liquor liability defendant in New Jersey for claims against it pursuant to the Licensed Server Liability Act. N.J.S.A. 2A:22A-6.

The New Jersey Supreme Court in Lee v. Kiku Restaurant, 127 N.J. 170 (1992) explained that in a dram shop case, a jury should apportion fault between the patron and the tavern based upon the extent to which each party's negligence contributed to the plaintiff's injuries. "Thus in determining a patron's fault, a jury may consider the extent to which the plaintiff's injuries were caused by the patron's conduct in drinking to the point of intoxication. Similarly, the jury will consider the extent to which the tavern's actions in serving the patron after obvious intoxication contributed to the plaintiff's injuries. The principles of comparative negligence will apply to joint tortfeasors in dram shop actions as they apply in all other negligence cases involving joint tortfeasors.” Id. at pages 183 – 184.

The Lee case concerned a motor-vehicle accident where both the driver and his passenger were patrons of the restaurant and were allegedly served while visibly intoxicated. The Lee Court explained that, once a jury determines that a tavern continued to serve drinks to a visibly intoxicated patron, the jury should not be instructed, absent exceptional circumstances, to determine the extent to which the patron retained some capacity to appreciate the risk of engaging in the activity that led to the accident. The Court, however, goes on to explain that in the case where the co-defendant driver had been served alcohol by the tavern when visibly intoxicated, the jury may allocate the fault involved in the negligent operation of the vehicle between the patron driver and the tavern based on the jury's "qualitative evaluation of all of the evidence bearing on the extent to which the respective conduct of the patron driver and the tavern contributed to the negligent operation of the vehicle." The jury may consider the driver's conduct in becoming voluntarily intoxicated, the extent of the tavern's misconduct in continuing to serve the patron-driver, and the specific evidence relating only to the nature and circumstances of the negligent operation of the vehicles. The Court stated that "juries must be informed that they are authorized to allocate responsibility for negligent operation of a vehicle between the patron – driver and the tavern based on the relevant evidence.” Id. at page 185 – 186.

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