On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-691-07.
The opinion of the court was delivered by: Koblitz, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Harris and Koblitz.
The opinion of the court was delivered by KOBLITZ, J.A.D.
This appeal arises from a dram shop action brought by plaintiff Douglas D. Davis against defendants Michael Kurilew, Walter Kurilew and Norman's Bar & Grill, Inc., d/b/a KC's Korner (collectively KC's Korner). Plaintiff alleged that KC's Korner negligently served alcohol to Justin B. "Red" Barkaszi*fn2 while he was visibly intoxicated in violation of N.J.S.A. 2A:22A-5, which resulted in Barkaszi causing an automobile accident while plaintiff was a passenger in his car.
At trial, the jury returned a verdict finding that KC's Korner had negligently served Barkaszi and that this service was a proximate cause of the accident. The jury awarded $420,000 for pain and suffering, as well as $17,000 for lost wages, apportioning thirty percent of the liability to Barkaszi and seventy percent to KC's Korner.
On appeal, KC's Korner alleges that several errors occurred during trial. KC's Korner asserts that the trial judge improperly interpreted the issue of proximate cause and erroneously precluded defense counsel from exploring Barkaszi's past drinking habits as a means to counter the testimony of plaintiff's expert concerning Barkaszi's tolerance to alcohol. The judge further erred in this matter, KC's Korner argues, by instructing the jury that plaintiff's expert's conclusion that Barkaszi was a man of "average tolerance" was not contradicted by the evidence at trial. KC's Korner further maintains that the trial judge improperly instructed the jury that KC's Korner spoliated video surveillance evidence of the night in question. We agree with KC's Korner that these errors warrant a new trial and reverse.
The trial testimony reveals the following facts. On Tuesday, December 12, 2006, at approximately 10 p.m., plaintiff was injured in a motor vehicle accident shortly after Barkaszi picked him up at his house. Prior to Barkaszi's arrival, plaintiff spoke on the phone with Barkaszi, who was at KC's Korner.
Immediately after plaintiff entered the car, Barkaszi accelerated rapidly. Barkaszi lost control of the vehicle and struck a large tree, approximately 2000 feet from plaintiff's driveway.
Officers William Lenire and Robert Wei of the Piscataway Township
Police Department responded to the scene of the accident. Plaintiff
and Barkaszi were transported to the Robert Wood Johnson University
Medical Center. Two blood samples were taken from Barkaszi. The first
sample, taken for medical purposes at approximately 11:45 p.m.,
revealed a .191% blood alcohol concentration (BAC).*fn3
The second sample was taken by medical personnel for the
police approximately twenty minutes later. This sample revealed a BAC
Barkaszi testified that he normally drove fast. He also stated that he began drinking alcohol when he was thirteen years old and that he tended to drink heavily on the weekends, but did not ordinarily drink during the week.
Three witnesses testified at trial that Barkaszi was at KC's Korner just prior to the accident. Dawn Scheuerman was with Barkaszi at KC's Korner that night. She testified that she did not remember the details of the evening well. In her deposition testimony, however, which was taken prior to KC's Korner being named as a party, she stated that she saw Barkaszi consume multiple shots of vodka, including two or three double shots and one or two triple shots. Scheuerman did not recall seeing Barkaszi exhibit signs of drunkenness. She further testified that he left KC's Korner sometime between 9:30 p.m. and 10:00 p.m. to pick up plaintiff.
Michael Kurilew,*fn4 the bartender at KC's Korner, testified that Barkaszi, James Latchford and Dawn Scheuerman were together at KC's Korner that night. He stated that Barkaszi had been there for about an hour and a half and drank Rumplemintz, a blackberry liqueur. He denied serving a triple shot of vodka to Barkaszi on the night of the accident and testified that Barkaszi did not act inappropriately at any point that night. While outside smoking a cigarette, Michael saw Barkaszi drive away quickly from KC's Korner.
Mike Duffell, James Latchford's roommate, was also present at KC's Korner that evening. He testified that he observed Barkaszi drinking Red Bulls with vodka during the course of the night, but that he neither saw Michael Kurilew pour a triple shot of vodka nor witnessed Barkaszi consume one. Duffel also testified that Barkaszi went outside at some point, after which he heard someone rev their engine in the parking lot and perform a "burnout." Duffel stated that Barkaszi then came back inside the bar and was served additional alcoholic beverages. Duffel further testified to hearing another burnout a while later when Barkaszi left KC's Korner.
KC's Korner monitored the bar area with a surveillance system that automatically recorded over previous footage approximately once a week. The system was functioning on the date of the accident. Walter Kurilew, the owner of KC's Korner and Michael's brother, indicated that this system could not record to DVD or VHS and, thus, did not allow for image preservation. Walter testified to learning of the accident shortly after it occurred and before the system recorded over the night's events. Walter further stated that he looked at the surveillance recording from December 12, 2006, but did not take steps to preserve the images or to show them to police. Nor did Michael make efforts to secure the footage.
At sidebar, defense counsel proffered to the trial judge that Walter saw nothing on the surveillance recording to contradict Michael's account of the evening, and so he did not think he would be sued, and therefore did not need to save the footage. The judge precluded Walter from testifying as to what he saw on the surveillance recording and from explaining why he did not attempt to preserve the footage. At the conclusion of trial, the judge gave the jury an adverse inference charge on KC's Korner's failure to preserve this footage.
Plaintiff presented the de bene esse video deposition testimony of Dr. John Brick, an expert in alcohol pharmacology and forensic toxicology. Dr. Brick concluded that Barkaszi consumed eighteen ounces of vodka on the night of the accident. He explained that most people exhibit visible signs of intoxication at a BAC of .15% and that, based on his review of the relevant factors, including Barkaszi's BAC, his weight, and the accident report, Barkaszi would likely have reached this level of intoxication between 9:25 p.m. and 9:50 p.m. on the night of the accident.
Dr. Brick further stated that, while tolerance can increase among alcoholics, there was nothing in the record to indicate that Barkaszi was an alcoholic or had chronic alcohol problems; he therefore concluded that Barkaszi was a person of average tolerance. Dr. Brick opined that Barkaszi would be characterized as a "binge drinker." His determination was based in part on medical records that included statements that Barkaszi was known to "drink heavily, but not on a regular basis, drinking at most one to two days per week, seven drinks at that time." Dr. Brick did admit, however, that a "binge drinker" could "fall into the alcoholic category or the problem drinker category" if "certain clinical criteria were met." Dr. Brick explained that his review of the evidence prompted him to conclude that Barkaszi's consumption of alcohol that night was a significant contributing factor to the motor vehicle accident.
We agree with KC's Korner's assertion that the trial judge erred in declining to allow defense counsel the opportunity to explore the issue of Barkaszi's tolerance to alcohol and in instructing the jury that Barkaszi had an average tolerance.
At trial, defense counsel sought to examine both Barkaszi and plaintiff as to Barkaszi's past drinking habits in an attempt to establish that he drank alcohol frequently enough to have developed a higher tolerance, and would therefore be less likely to exhibit visible signs of intoxication than a person of average tolerance at the same BAC. If Barkaszi's tolerance to alcohol would render him less likely to exhibit visible signs of drunkenness, then Michael Kurilew, the bartender, might not have known Barkaszi was intoxicated and would not have been negligent in serving him additional drinks. See Mazzacano v. Estate of Kinnerman, 197 N.J. 307, 324 ...