April 25, 2012
ANTONELLA DEL MAURO, AS ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF JOSEPH M. DEL MAURO, DECEASED, PLAINTIFF-APPELLANT,
LEGGETT'S SAND BAR, INSHORE ATLANTIC, INC., D/B/A LEGGETT'S, NICHOLAS FABIO, AND KAREN FABIO, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-911-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 15, 2012
Before Judges Yannotti, Espinosa and Kennedy.
Plaintiff Antonella Del Mauro is the general administratrix and administratrix prosequendum for the estate of decedent Joseph Del Mauro. She appeals from an order entered by the trial court on March 4, 2011, granting summary judgment to defendants Inshore Atlantic, Inc. d/b/a Leggett's (Leggett's), Nicholas Fabio (Nicholas) and Karen Fabio (Karen).*fn1 For the reasons that follow, we affirm.
This appeal arises from the following facts, which we draw from the record before the trial court. Decedent regularly watched televised football games at Leggett's on Sundays during football season. On November 5, 2006, decedent arrived at Leggett's. When they were deposed, three of Leggett's bartenders gave conflicting accounts of the time decedent arrived, the time he left and the number of drinks he consumed. They all testified, however, that he arrived at the bar sometime around noon and consumed alcoholic beverages while there.
One bartender, Jason Osborn (Osborn) identified decedent's check from that day, which indicated that he purchased three mixed drinks. Osborn believed he served decedent three drinks. No one could confirm whether decedent drank all three, whether he purchased drinks for someone else, or if someone else in the bar purchased drinks for him.
Bartender Christopher Soranno (Soranno) recalled serving decedent one drink, while bartender Keith Mizer (Mizer) recalled seeing decedent with one drink. However, all three bartenders testified that decedent did not appear intoxicated. Mizer testified that decedent left the bar before the football game started at 1:00 p.m., while Osborn testified that decedent stayed at the bar for "[p]ossibly two hours."
After he left Leggett's, decedent attended a child's birthday party at the home of his relatives, Nicholas Fabio (Nicholas) and Karen Fabio (Karen). Both Nicholas and Karen were deposed and testified that decedent arrived at their home around 1:30 p.m. in the afternoon. Although decedent had consumed alcohol at their home in the past, neither Nicholas or Karen saw decedent consume alcohol in their home on November 5, 2006.
Nicholas admitted that he kept a bottle of vodka in the freezer and decedent occasionally helped himself to a drink, but neither Nicholas nor Karen saw decedent serve himself vodka on that day. Both Nicholas and Karen testified that they sat down for dinner around 3:30 p.m. At that point, they noticed for the first time that decedent had left without saying good-bye, which was unusual for him.
Around 4:20 p.m., decedent was killed in a single car accident along the Garden State Parkway. His car swerved before leaving the roadway, eventually hitting several trees and landing in a wooded median. He was pronounced dead at the scene of the accident. Toxicology tests performed after the accident indicated that decedent had a blood alcohol level of .291% and a brain alcohol concentration (BAC) of .384%.
On November 5, 2008, plaintiff commenced this action as administratrix and administratrix ad prosequendum of decedent's estate. Plaintiff alleged that Leggett's was liable under the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-1 to -7 (commonly referred to as the Dram Shop Act), for negligently serving alcoholic beverages to decedent while he was visibly intoxicated. Plaintiff also alleged that the Fabios wantonly and willfully supplied decedent with alcohol at their home, making them liable for his death.
During discovery, plaintiff produced an expert report from Richard Saferstein, Ph.D. (Dr. Saferstein). In that report, Dr. Saferstein opined that if decedent began drinking at noon, he had to consume twenty-seven ounces of eighty-proof alcohol in order to reach a .291% blood alcohol level and a .384% BAC. Dr. Saferstein also opined that the average individual begins to demonstrate signs of intoxication when his or her BAC reaches approximately .1%. He said decedent's BAC would have reached that point around 1:10 p.m. on the day of the accident.
At his deposition, Dr. Saferstein conceded, however, that a "tolerant drinker" might not show signs of visible intoxication until reaching a .15% blood alcohol level. He also stated that, if decedent were a tolerant drinker, he might not have demonstrated visible signs of intoxication until 1:35 p.m. or later.
After the completion of discovery, Leggett's and the Fabios filed motions for summary judgment. The trial court considered the motions on March 4, 2011, and placed its decision on the record that day. The court determined that there was insufficient evidence to permit a jury to find that Leggett's served alcoholic beverages to a visibly intoxicated person, which is necessary to assert an action against Leggett's under the Dram Shop Act.
The court also determined that the Fabios were immune from claims by decedent, his estate or next of kin, under the Social Host Liability Act, N.J.S.A. 2A:15-5.5 to -8 (SHLA). The court noted that while the SHLA provides immunity for the negligent provision of alcohol, plaintiff had alleged that the Fabios' service of alcohol was willful and wanton. The court determined, however, there was "no evidence that [the Fabios] provided any alcohol at all to [decedent] much less that they did so willfully and wantonly in reckless disregard for the safety of others."
The court entered orders dated March 4, 2011, granting summary judgment to defendants. This appeal followed.
Plaintiff argues that summary judgment should not have been granted to defendants. We do not agree.
Summary judgment may be granted when the evidential materials before the court "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid.
In considering a summary judgment motion, the court must view the evidence "in the light most favorable to the non-moving party[.]" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)). An issue of fact may be resolved by the court when the evidence "'is so one-sided that one party must prevail as a matter of law[.]'" Ibid. (quoting Liberty Lobby, supra, 477 U.S. at 252, 106 S. Ct. at 1512, 91 L. Ed. 2d at 214). We apply the same standard in an appeal from an order granting summary judgment. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
Plaintiff contends that she presented sufficient evidence to support her claim against Leggett's under the Dram Shop Act. Plaintiff argues that, in ruling on the summary judgment motion, the trial court erred in failing to view the evidence in a light favorable to her as the non-moving party. We disagree.
The Dram Shop Act provides "the exclusive civil remedy for personal injury or property damage resulting from the negligent service of alcoholic beverages by a licensed alcoholic beverage server." N.J.S.A. 2A:22A-4. The Dram Shop Act states that a person injured as a result of "negligent service" of alcohol, can only recover from the licensed server 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 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(b) defines the term "negligent service" as service "when the server serve[s] a visibly intoxicated person. . . . " In addition, the term "visibly intoxicated" is defined as "a state of intoxication accompanied by a perceptible act or series of acts which present clear signs of intoxication." N.J.S.A. 2A:22A-3.
It is undisputed that decedent entered Leggett's around noon and he remained there about an hour or two. There was no evidence that decedent purchased or drank more than three alcoholic beverages while in the bar. As we have explained, the bartenders who served him testified that decedent did not appear to be intoxicated when he was in the bar. The trial court correctly found that this evidence is insufficient to support a claim against Leggett's under the Dram Shop Act. We agree.
Plaintiff argues, however, that Dr. Saferstein's report and deposition testimony raise a genuine issue of material fact as to whether decedent was visibly intoxicated when he was served alcoholic beverages at Leggett's. Dr. Saferstein opined that based on decedent's BAC at the time of his death, he would have been visibly intoxicated by 1:10 p.m. Dr. Saferstein also opined that, if he used blood alcohol level, rather than his BAC, decedent might not have been visibly intoxicated until 1:35 p.m. However, when he was deposed, Dr. Saferstein acknowledged that if decedent was a tolerant drinker, he might not have demonstrated visible signs of intoxication until later in the day.
Moreover, Dr. Saferstein's opinion was based on the assumption that decedent had been drinking "at a relatively constant rate" between noon and 4:20 p.m., when the accident occurred. There was no evidence that decedent was drinking constantly. Indeed, the evidence is to the contrary. Furthermore, Dr. Saferstein conceded that, if decedent's consumption of alcohol had been greater "in the latter part of that time range," the onset of intoxication would have been later.
Plaintiff further argues that she is entitled to an adverse inference because Leggett's allegedly failed to maintain surveillance footage recorded while decedent was at the bar. This argument was not raised or considered by the trial court. In any event, we are satisfied that this argument is without merit.
Spoliation is the concealment or destruction of evidence relevant to litigation. Rosenblit v. Zimmerman, 166 N.J. 391, 400-01 (2001). The duty to preserve evidence arises when (1) there is pending or likely litigation and knowledge of this fact by the alleged spoliating party, (2) the evidence is relevant to the litigation, and (3) the opposing party would be prejudiced by the destruction or disposal of the evidence. Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 366 (App. Div. 1998) (quoting Hirsch v. General Motors Corp., 266 N.J. Super. 222, 250-51 (Law Div. 1993)).
Depending upon the circumstances, an adverse inference may be drawn against the party that negligently or intentionally failed to preserve the evidence. Rosenblit, supra, 166 N.J. at 401-02. The inference permits the fact finder to presume that the evidence concealed or destroyed would have been unfavorable to the spoliator. Ibid.
Here, Mizer testified that, at the relevant time, cameras "cover[ed] everything in the bar." However, there is no evidence that the surveillance cameras were actually connected to a recording device. Furthermore, assuming Leggett's recorded footage from the surveillance camera, plaintiff presented no evidence showing that anyone at Leggett's intentionally or negligently destroyed or erased the recording in an effort to thwart potential litigation arising from decedent's fatal accident.
Plaintiff asserts that a meeting was held at Leggett's the morning after decedent's accident. Plaintiff suggests that there was an awareness of the potential for litigation and, under these circumstances, a duty to preserve any relevant evidence. But Soranno testified that Leggett's requires all of its bartenders to attend a meeting every Monday. Sorrano indicated that this was when he first learned about decedent's fatal accident. He did not say that the Leggett's employees discussed potential litigation against the bar or discarding evidence that might be pertinent to such a lawsuit.
We therefore conclude that the trial court correctly found that there was no genuine issue of material fact concerning plaintiff's claim against Leggett's under the Dram Shop Act, and Leggett's was entitled to judgment as a matter of law.
Plaintiff next argues that the trial court erred by granting summary judgment to the Fabios. Again, we disagree.
The SHLA provides "the exclusive civil remedy for personal injury or property damage resulting from the negligent provision of alcoholic beverages by a social host to a person who has attained the legal age to purchase and consume alcoholic beverages." N.J.S.A. 2A:15-5.6. Under the SHLA, a social host may not be liable as a result of the negligent provision of alcoholic beverages to a person who may legally purchase and consume alcoholic beverages. N.J.S.A. 2A:15-5.7.
Even so, a social host may be liable to third parties under this statute if:
(1) The social host willfully and knowingly provided alcoholic beverages either:
(a) To a person who was visibly intoxicated in the social host's presence; or
(b) To a person who was visibly intoxicated under circumstances manifesting reckless disregard of the consequences as affecting the life or property of another; and
(2) The social host provided alcoholic beverages to the visibly intoxicated person under circumstances which created an unreasonable risk of foreseeable harm to the life or property of another, and the social host failed to exercise reasonable care and diligence to avoid the foreseeable risk; and
(3) The injury arose out of an accident caused by the negligent operation of a vehicle by the visibly intoxicated person who was provided alcoholic beverages by a social host. [N.J.S.A. 2A:15-5.6(b).]
The practical effect of the SHLA is to "insulate a social host from liability to [a] drinking guest if that guest is of legal age." Finer v. Talbot, 230 N.J. Super. 19, 21 (App. Div. 1988). Moreover, the SHLA bars "first-party liability claim[s] on behalf of an intoxicated driver." AAA Mid-Atlantic Ins. of N.J. v. Prudential Prop. & Cas. Ins. Co., 336 N.J. Super. 71, 78 (App. Div. 2000). "A social host cannot be liable to the person to whom beverages are served, although there may be ultimate liability if that person injures a third party." Ibid.
Even if we assume that the SHLA does not preclude an action by the estate of a social drinking guest for the wanton and willful service of alcoholic beverages to a visibly intoxicated person, plaintiff's claim fails because there is no evidence the Fabios served decedent alcoholic beverages on November 5, 2006. Plaintiff notes that a bottle of vodka was stored in the Fabios' freezer and, in the past, defendant had helped himself to the vodka while at the Fabios' home. But there is no evidence that decedent drank any vodka at the Fabios' home on the day of the accident.
In support of her claim against the Fabios, plaintiff also relies on Dr. Saferstein's testimony that decedent would have exhibited signs of visible intoxication while at the Fabios' home. The Fabios cannot be liable merely because decedent might have been visibly intoxicated in their home. There is no evidence that they served decedent alcohol on November 5, 2006, let alone evidence that they did so in a wanton and willful manner.