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Tuesday, February 14, 2012

DOUGLAS D. DAVIS VS. JUSTIN B. BARKASZI, ET AL. A-2345-10T1

DOUGLAS D. DAVIS VS. JUSTIN B. BARKASZI, ET AL.           A-2345-10T1 
     In this dram shop case where the accident occurred only minutes after the driver left the defendant bar, we reverse and remand for a new trial because the trial court erred in three respects.  The judge failed to charge the jury that if it found that alcohol was negligently served, that alcohol must have had time to enter the bloodstream of the driver prior to the accident to be a proximate cause.  The judge also improperly charged the jury that the driver had an average tolerance to alcohol after precluding the defense from exploring this issue with lay witnesses.  The judge erred as well in his spoliation charge because plaintiff failed to make the threshold showing that the bar improperly destroyed its video surveillance footage.  This error was particularly harmful because the judge did not allow the jury to hear testimony concerning the reasons why the bar chose not to preserve the footage.  02-09-12