The opinion of the court was delivered by: Irenas, Senior District Judge
HONORABLE JOSEPH E. IRENAS
Presently before the Court is the Motion for Partial Summary Judgment by Defendants Bally's Park Place, Inc. ("Bally's") and Eric Denmead, seeking dismissal of Plaintiff Samuel Lassoff's "Dram Shop Act" claim (Count 11 of the Second Amended Complaint).*fn1 For the reasons set forth below, the Motion will be granted.*fn2
The following undisputed facts are relevant to the present motion. Lassoff was gambling at Bally's casino on the night of November 1, 2002, and into the morning of November 2, 2002, when he had a physical confrontation with another gambler, Defendant Brian Taylor,*fn3 at the poker table where they both were playing.
According to Lassoff, Taylor, without warning, and without provocation, abruptly lunged across the poker table, grabbed Lassoff by the throat, and ripped Lassoff's shirt in the process. According to witness statements taken by Bally's Security personnel, Lassoff called Taylor a "bitch," prompting Taylor to grab Lassoff. Two witnesses, and Taylor, stated that Lassoff was intoxicated. None of the witness statements said that Taylor was intoxicated. Lassoff denies that he was intoxicated.
There was a bar located on the floor of the casino and cocktail waitresses were serving complementary alcoholic and non-alcoholic drinks to patrons, including Mr. Lassoff. Taylor had "a drink" in front of him at the poker table. A Bally's employee working that night testified that she smelled alcohol on Taylor's breath.
"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). "'With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by 'showing'-- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex). A plaintiff cannot rely on unsupported assertions, speculation, or conclusory allegations to avoid summary judgment. See Celotex, 477 U.S. at 324.
New Jersey's "Dram Shop Act," formally entitled the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, provides:
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 only if:
(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 ...