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John T. Campione and Anna Campione, His Wife v. Glenn A. Kivatisky

July 19, 2011


The opinion of the court was delivered by: Wigenton, District Judge.


Before the Court is Defendant Ruby Tuesday‟s ("Defendant" or "Ruby Tuesday‟s") Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56(c) ("Motion"). This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. Venue is proper pursuant to 28 U.S.C. § 1441(a). The Motion is decided without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons stated below, this Court grants Defendant‟s Motion.


This dram shop action arises out of an accident that occurred on December 22, 2007. On that day, Glenn Kivatisky‟s ("Kivatisky") truck struck the left rear bumper of Police Officer John Campione‟s patrol car at about 6:22 p.m. on Route 17 near the Garden State Plaza Mall in Paramus, New Jersey. (Def.‟s Ex. B at 1.) When responding officers approached Kivatisky, they detected a "strong odor" of alcohol on him. The officers also noticed that Kivatisky was swaying, his eyes were watery, and his speech was "slow and slurred." (Id. at 2.) Additionally, they observed that there was an open cooler in the front passenger seat of Kivatisky‟s vehicle containing water and several bottles of beer. (Id.; Def.‟s Ex. L, Kivatisky Dep. 106:21-23.) The cooler was positioned such that the person in the driver‟s seat of the vehicle could reach over to the passenger side and access its contents. (Def.‟s Ex. L, Kivatisky Dep. 107:6-11.) They also noticed that there was an open bottle of beer in the cup holder in the center console of Kivatisky‟s vehicle. (Id.; Def.‟s Ex. G at 1.) Furthermore, the officers found eight empty twelve-ounce beer bottles in the vehicle. (Def.‟s Ex. E; Def.‟s Ex. G at 2-3.)

Subsequently, Kivatisky was transported to the Paramus Police Department and underwent breathalyzer tests. The tests were administered at 7:20 p.m. and 7:30 p.m. and both tests revealed that Kivatisky‟s blood alcohol concentration ("BAC") was .26%. (Def.‟s Ex. D.) Kivatisky reported during the breathalyzer exam that he drank five or six beers between 3:00 p.m. and 4:00 p.m. (Def.‟s Ex. K). However, he later testified that he could not remember if he provided the police with accurate information when he was questioned. (Pl.‟s Ex. B, Kivatisky Dep. 69:16-23.) Subsequently, at around 8:46 p.m. Kivatisky was interviewed by two detectives. During the interview, Kivatisky asserted that he had been at Ruby Tuesday‟s around 3:00 p.m. on that day, and he had drank about three or four beers while he was there. (Def.‟s Ex. J at 2.) Kivatisky insisted that he only drank at Ruby Tuesday‟s. (Def.‟s Ex. J at 3.) However, when questioned about the open beer bottle found in the console of his vehicle, Kivatisky answered that "he did not think he drank while he was driving to the mall but [] it was "possible‟ that he had consumed some of the alcohol while driving through Paramus." (Id. at 2.)

Nonetheless, later, during his deposition, Kivatisky testified that he drank no more than four beers on the day of the accident, and he could not remember if he drank any of the beer in the cooler. (Def.‟s Ex. L, Kivatisky Dep. 52:7-10, 109:18-24.) Furthermore, he testified that he did not show any signs of intoxication when he was at Ruby Tuesday‟s. (Id. at 36:22-37:8.) He also stated that he could not recall the time he went to Ruby Tuesday‟s. (Id. at 23:8-14.) Although there was a receipt in Kivatisky‟s vehicle showing that he made a purchase at a McDonald‟s restaurant at 4:23 p.m., Kivatisky could not account for his whereabouts after 4:30 p.m. (Id. at 49:11-14, Def.‟s Ex. I.)

Plaintiffs John Campione and Anna Campione ("Plaintiffs") offer Francis X. Tobey, Jr. ("Tobey") as an expert on the issue of whether Kivatisky was served alcohol at Ruby Tuesday‟s when he was visibly intoxicated. Tobey prepared a report in which he concluded that Kivatisky "would have been perceived to have been obviously impaired prior to the accident when he had been a patron of Ruby Tuesday‟s." (Def.‟s Ex. M at 3.) In coming to this conclusion, Tobey relied on the Paramus police reports, Kivatisky‟s answers to interrogatories, the transcript of Kivatisky‟s deposition, and Kivatisky‟s statement during the interview following his arrest. (Id. at 1.) Tobey noted that to possess a BAC of .26%, Kivatisky "would have had to [] consume[] between fourteen and fifteen 12 oz. bottles of beer for a total of 168 oz. to 180 oz. of beer" between 3:00 p.m. and 4:00 p.m. (Id. at 2.) Therefore, Tobey acknowledged that Kivatisky‟s statement to the police about the number of beers he drank that day was inconsistent with his breath test results. (Id.)

According to Tobey, the two probable scenarios were that Kivatisky either "consumed a substantial amount of alcohol prior to visiting Ruby Tuesday‟s or had consumed, at least, fourteen 12 oz. beers at Ruby Tuesday‟s." (Id.) However, Tobey pointed out that there was no evidence indicating that Kivatisky consumed alcohol prior to going to Ruby Tuesday‟s. (Id.; Def.‟s Ex. O, Tobey Dep.15:25-26:2.) Tobey concluded that under either scenario, Kivatisky "most probably would have exhibited obvious alcohol impairment while at Ruby Tuesday‟s." (Def.‟s Ex. M at 2.) Although Tobey acknowledged that eight empty beer bottles were found in Kivatisky‟s vehicle, he placed heavy reliance on Kivatisky‟s statement that he only drank at Ruby Tuesday‟s. (Def.‟s Ex. M at 2; Def.‟s Ex. O, Tobey Dep. 20:10-11.)

During Tobey‟s deposition, he conceded that although he placed a significant emphasis on Kivatisky‟s testimony, there were inconsistencies in that testimony. (Def.‟s Ex. O, Tobey Dep. 14:23-24.) Additionally, he testified that if Kivatisky drank only six beers while he was at Ruby Tuesday‟s he would not have exhibited signs of visible intoxication. (Id. at 34:12-21.) Tobey also stated that he did not "know whether to believe" Kivatisky‟s statement that he did not drink while he was in his vehicle. (Id. at 20:24-25.) For instance, when asked: "And when [Kivatisky] [] says he didn‟t drink any beers in his truck, you assume that fact as true?" Tobey answered: "I don‟t think so." (Id. at 19:24-20:1.) Furthermore, Tobey testified that he did not know the number of beers Kivatisky consumed at Ruby Tuesday‟s. (Id. at 26:6-13.) Similarly, he admitted that he had no knowledge of the number beers Kivatisky may have consumed between 4:00 p.m. and 6:00 p.m. (Id. at 51:23-25.)

Defendant‟s expert Dr. Edward J. Barbieri ("Dr. Barbieri") also prepared a report. Dr. Barbieri, like Tobey, concluded that Kivatisky‟s BAC was inconsistent with his statement that he only drank four or five beers on the day of the accident. (Pl.‟s Ex. E at 4.) Dr. Barbieri also concurred with Tobey‟s conclusion that Kivatisky did not "consume[] alcohol prior to Ruby Tuesday‟s." (Id. at 6.) He found that Kivatisky may have consumed about twelve to thirteen alcoholic drinks. (Id. at 5.) However, he stated that "it is not logical to conclude that Mr. Kivatisky consumed all of these beers . . . within an hour at Ruby Tuesday[‟s]." (Id.) Dr. Barbieri noted that eight empty beer bottles were found in Kivatisky‟s vehicle. Consequently, he concluded that Kivatisky may have "consumed some or all of these beers or some other alcoholic beverages that afternoon." (Id.) According to Dr. Barbieri, Kivatisky‟s BAC "had to be from a combination of some beer . . . he said he consumed at Ruby Tuesday[‟s] and the majority elsewhere. Mr. Tobey has focused entirely on Mr. Kivatisky consuming all of the drinks at Ruby Tuesday[‟s] (which is not fit with the evidence in this case)." (Id. at 6.) Additionally, unlike Tobey, he concluded that "there is no definitive, factual evidence that indicates that" Kivatisky was visibly intoxicated when he was at Ruby Tuesday‟s. (Id. at 4.)


Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986). A fact is only "material" for purposes of a summary judgment motion if a dispute over that fact "might affect the outcome of the suit under the governing law." Id. at 248. A dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The dispute is not genuine if it merely involves "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party meets its initial burden, the burden then shifts to the non-movant who must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations, speculation, unsupported assertions or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001). "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party‟s evidence "is to be believed and all justifiable inferences are to be drawn in his favor.‟" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).

The nonmoving party "must present more than just "bare assertions, conclusory allegations or suspicions‟ to show the existence of a genuine issue." Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). Further, the nonmoving party is required to "point to concrete evidence in the record which supports each essential element of its case." Black Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284, 286 (D.N.J. 2004). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party‟s ...

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