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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...