DRAM SHOP CLAIM DISMISSED DUE TO PLAINTIFF’S FAILURE TO ESTABLISH FACTS THAT PLAINTIFF WAS VISIBLY INTOXICATED BEFORE LEAVING DEFENDANT’S PLACE OF BUSINESS

Jose Santiago v. Oscar Moran, et al.

Docket No.:    A-2010-21

Decided January 3, 2024

Submitted by New Jersey DWI Lawyer, Jeffrey Hark.

In a recent unpublished decision, the Appellate Division affirmed the granting of Defendant’s motion for summary judgment dismissing plaintiff’s dram shop claim because plaintiff’s failed to produce an expert report establishing Plaintiff’s level of intoxication while at the restaurant.

In Santiago v. Moran, while walking on a Hoboken sidewalk at approximately 3:05 p.m. on April 16, 2019, plaintiff was struck and injured by a vehicle driven by Moran. Prior to the accident, Moran had eaten lunch at a North Bergen restaurant, defendant Rumba Cubana. Moran testified he arrived at the restaurant at noon.

Moran reported he was at Rumba Cubana for approximately “an hour to an hour[-]and[-]a[-]half” and left between 1:00 to 1:30 p.m. Moran testified he ate lunch with a friend and had two glasses of sangria. He denied drinking any other alcoholic beverages that day. According to Moran, when he left the restaurant, he drove to Hoboken to drop off lunch for his daughter.

Moran testified it took about forty-five minutes to drive from the restaurant to Hoboken, but he could not recall if he had stopped at any other places during the trip. When questioned at his deposition about what he did after he left Rumba Cubana and prior to the accident, Moran said he did not recall because the accident occurred more than a year earlier, he did not “know exactly what happened,” and he may have left the restaurant “a little later” than he had otherwise said. Moran also testified he remembered leaving the restaurant but did not remember anything else until the police took him out of his car after it struck plaintiff.

Following the accident, Moran was arrested and required to perform field sobriety tests. The police reports state that during a walk-and-turn test, Moran “walked in a normal fashion, feet side-by-side,” but “had to be told to turn and walk back.” The reports also state that during a one-legged-stand test, Moran “wobbled on his feet when he attempted to raise his right foot,” and the police ended the test after two additional attempts because Moran was “in danger of falling.” The reports do not include any indication that Moran’s eyes were bloodshot, glassy, or watery, or that he exhibited any incoherent, rambling, boisterous, or slurred speech. The reports cited the results of chemical breath tests and a blood test showing Moran’s blood alcohol content (BAC) at different times following the accident.

Plaintiff produced a report from Robert J. Pandina, Ph.D. as support for his claim defendants are liable under the Dram Shop Act. In his report, Dr. Pandina explained he had been requested to opine “as to whether observable signs of intoxication would have been apparent” while defendant was at lunch at the restaurant such “that the staff at Rumba Cubana . . . knew or should have known [Moran] was impaired because of alcohol ingested and served him alcoholic beverages after the emergence of visible signs of intoxication.”

The report included an analysis of those issues, including Dr. Pandina’s extrapolation of Moran’s BAC—0.13 percent— at the time of the collision, and explained that level of intoxication adversely affected Moran’s ability to drive safely and contributed to the causation of the accident resulting in plaintiff’s injuries.

Although, as noted, Dr. Pandina’s report states he had been requested to opine as to whether Moran would have exhibited observable signs of intoxication while at the restaurant—such that its staff knew or should have known Moran was intoxicated but then served Moran alcohol—the requested opinion is not included in the report and the report otherwise does not include any opinion Moran would have exhibited visible signs of intoxication while at the restaurant.

Because the report only focused on Plaintiff’s intoxication level at the time of the crash and afterwards at the police station, it provided no analysis for Plaintiff’s level of intoxication at the restaurant or any signs that Plaintiff was visibly intoxicated at that time before leaving. Accordingly ,the Trial Court dismissed Plaintiff’s complaint on Defendant’s motion for summary judgment.

Plaintiff appealed, and the Appellate Division affirmed, agreeing there was a complete lack of evidence of intoxication at he time Plaintiff was in the restaurant.

This case is important to understand that in order to bring a dram shop claim holding a alcohol server responsible for personal injury damages, Plaintiff must show:

(1) The server 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

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

Pertinent here, Plaintiff must show this through expert opinion demonstrating evidence Plaintiff was visibly intoxicated while at the place of business. Without such information, the case will be dismissed on summary judgment.

If you or someone you know has been injured in a cross walk as a pedestrian, car accident, truck crash, or slip and fall, or any of these cases involving intoxication, call the experienced personal injury attorneys at Hark & Hark today. For personal injury matters, no money is paid up front, and fees are only collected if a recovery is made. At Hark & Hark, we represent clients for any case in any county in New Jersey Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Newark, Jersey City, Paterson, Elizabeth, Edison, Woodbridge, Lakewood, Toms River, Hamilton, Trenton, Clifton, Camden, Brick, Cherry Hill, Passaic, Middletown, Union City, Old Bridge, Gloucester Township, East Orange, Bayonne, Franklin Township, North Bergen, Vineland, and Union.