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Showalter v. Barilari Inc.

June 17, 1998


Before Judges Dreier, Keefe and Wecker.

The opinion of the court was delivered by: Keefe, J.A.D.

[9]    Submitted April 21, 1998

On appeal from the Superior Court of New Jersey, Law Division, Passaic County.

Defendant, Barilari, Inc., appeals after a jury in this dram-shop action awarded plaintiff $933,000 for injuries received when plaintiff, Keith Showalter, then a nineteen-year-old high school student, pushed his arm through two plate-glass store windows after drinking in defendant's pub. The jury found that defendant had served plaintiff in circumstances in which it knew or should have known he was "underage," and that the service proximately caused plaintiff's injuries. The jury also found, however, that defendant had not served plaintiff when he was visibly intoxicated. The jury attributed twenty-five percent of the liability to plaintiff and seventy-five percent to defendants Mikey Dentennis, the bartender, and Barilari, Inc., his employer. *fn1 The verdict was molded accordingly, and judgment was entered in the amount of $699,750, plus prejudgment interest and costs, for a total award against defendant of $867,230. Defendant's motion for a new trial was denied. This appeal followed.

Defendant has two primary contentions of error. First, it argues that the trial court should have granted its motion for involuntary dismissal at the end of plaintiff's case because he failed to present any evidence describing how the incident occurred or establishing a nexus between the incident and his having been served alcohol. Second, it contends that the jury was improperly precluded from considering plaintiff's actions in causing his own injury because the instructions limited the jury's consideration of plaintiff's liability to his decision to become voluntarily intoxicated. We disagree with defendant on the first issue but agree on the second issue and remand for a new trial on liability.


We deal first with the issue concerning the denial of defendant's motion for involuntary dismissal and recite the evidence advanced by plaintiff on the issue of liability.

On May 1, 1991, plaintiff was a nineteen-year-old high school senior, intending to enter the Navy within a week's time. That evening, he and his girlfriend went to defendant's pub for a "going away party." Plaintiff had visited the pub with two friends and his brother on approximately three earlier occasions. That night plaintiff and his girlfriend arrived at approximately 8:00 p.m, and were later joined by plaintiff's brother, Oliver Prochaska, Tim DeHaas, and Dean Genoulis.

Defendant Dentennis was the bartender on each of plaintiff's prior visits and he was working as a bartender on the night of May 1. Plaintiff had known Dentennis since they had played baseball together in Little League. Dentennis also attended high school with plaintiff and his brother. On one of plaintiff's earlier visits, Dentennis had asked plaintiff for proof of his age. Plaintiff did not have proof of his age at the time and he was not served. Plaintiff testified that on May 1 no one asked him for identification, but he was carrying false identification. Plaintiff testified that he had never used the false identification and did not use it on the night he was injured.

Plaintiff and his girlfriend were drinking beer when they first arrived, but when Genoulis arrived about forty-five minutes later the group began drinking "pitchers" of kamikazes. *fn2 Plaintiff testified that during the period from eight o'clock to ten o'clock that evening he had drunk "between ten and fifteen mugs" of beer. The group also shared about six pitchers of kamikazes, but plaintiff did not know how many shots he had had from the pitchers. After drinking the shots, plaintiff began to feel "very loose." The room was spinning, and he was feeling queasy.

Plaintiff asked his girlfriend to leave, but she refused. He testified that when she refused a second time he poured his beer over her and the next thing he remembered was being in a fight. Plaintiff could not remember much about the fight, nor could he remember how he left the pub, but said that he thought "a group of people pushed me out." His next recollection was "[w]aking up in a pool of blood in the hospital."

Plaintiff's brother, Harold, known as "Howie," was 20 years old at the time. Howie testified that he had also known Dentennis since the two had played Little League baseball and had gone to the same high school. He said that he and Dentennis would converse on occasion, and Dentennis knew Howie and plaintiff were brothers.

On the night of May 1, Howie arrived at the bar at approximately 9:00 p.m. and saw plaintiff, plaintiff's girlfriend, and Genoulis at the bar. He noticed that plaintiff's eyes were "glassy" and "bloodshot," and that he was swaying as he stood. He saw a pitcher of kamikazes in front of the group. Howie ordered a beer and was served by Dentennis. At about 10:00 p.m., Howie ordered his third beer and noticed plaintiff "was in the gravy." He advised plaintiff to leave. Shortly thereafter a fight broke out near plaintiff. Howie could not see plaintiff but saw people "piling . . . towards . . . the entrance part . . . ." By the time Howie got outside, he saw someone tying a shirt around plaintiff's arm. Howie retrieved his car from the back of the pub and drove plaintiff to the hospital.

Eric Ball, a friend of plaintiff and his brother, testified that about five minutes after he entered the pub on the night of May 1, he saw that a fight was about to occur involving plaintiff. He went over to separate the two people. The fight was broken up, and Kenny Barilari and others escorted plaintiff from the bar. A short time later, he heard a "big boom" and saw that one of the pub's front windows had been broken.

Plaintiff's counsel was allowed to read portions of Dentennis's deposition to the jury. In the portions of the deposition read to the jury, Dentennis said he knew "Howie" from high school, but the two were not in any classes together and Dentennis did not know what grade "Howie" was in. He had heard that "Howie" had a brother named Keith, but did not know him. Dentennis had refused to serve plaintiff on one occasion a few weeks earlier because he had no identification. Dentennis said that he had not requested identification on the night of May 1 because one or two weeks earlier plaintiff had come in and shown him a driver's license and social security card proving he was old enough to drink. He believed that that identification was in the name of Harold Showalter.

After resting his case, defendant moved for an involuntary dismissal. It argued that plaintiff had presented no evidence indicating how plaintiff injured himself, the effect of the service of the alcoholic beverages on plaintiff's conduct, or "the nexus between the allegations of drinking and the ultimate harm." Defendant also contended that there was no testimony indicating that plaintiff was served under circumstances in which it was apparent that he was a minor.

The trial Judge acknowledged that he did not "know how the window got broke." The Judge, however, recognized that he was nonetheless "caught by the language" of case law regarding the propensity of alcohol consumption to create hostile and reckless behavior. Stating that he was "giving every fair inference" to plaintiff and that "the question of foreseeability [was] for the jury," the Judge denied defendant's motion.

To survive defendant's motion for dismissal, plaintiff had to have presented evidence from which the court could determine a basis for dram-shop liability as set forth in N.J.S.A. 2A:22A-5 ("Conditions for recovery of damages"):

a. 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 if:

(1) The server is deemed negligentpursuant to subsection b. of thissection; and

(2) The injury or damage was proximatelycaused by the negligent service ofalcoholic beverages; and

(3) The injury or damage was aforeseeable consequence of the negligentservice of alcoholic beverages.

b. 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.

Thus, to prevail under the statute plaintiff had to prove 1) negligent service as defined in N.J.S.A. 2A:22A-5(b), 2) a nexus between the negligent service and the injury, and 3) that the type of injury was a foreseeable consequence of the negligent service. ...

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