Eyewitness Testimony and the Dram Shop Act

Halvorsen v. Villamil, 429 N.J. Super. 568 (App. Div. 2013).  Does the Dram Shop Act, N.J.S.A. 2A:22A-1 to -7, which makes a licensed alcholic beverage server liable for serving a visibly intoxicated person who then causes personal injury or property damage to another, require eyewitness testimony to prove that person was served alcohol while visibly intoxicated?  In this opinion by Judge Hoffman, the Appellate Division answered that question in the negative.  The panel also concluded that the record revealed genuine disputes of material fact as to whether the alcoholic beverage server, T.G.I. Friday’s, served a visibly intoxicated person.  Accordingly, a summary judgment that had been entered in favor of defendant below was reversed.

Judge Hoffman observed that the Dram Shop Act does not contain any express requirement of eyewitness testimony.  He also cited dicta in Mazzacano v. Estate of Kinnerman, 197 N.J. 307 (2009), that “acknowledged that it is possible to prove liability under the Act without direct eyewitness testimony on the visible intoxication issue.”  Either direct or circumstantial evidence may be used in proving a Dram Shop Act case.  Applying the de novo standard of review of summary judgment decisions, the panel went on to analyze the expert testimony and other evidence in the motion record, and to conclude that whether an alcoholic beverage was served to a visibly intoxicated person was a fact issue for the jury.