Alcohol Tolerance and Spoliation of Evidence Examined by NJ Court

Although frequently tragic, Dram Shop cases are never boring. They always involve a discussion of alcohol and the whacky ways that people find to get themselves in trouble. Dram Shop trials usually involve conflicting testimony about who drank what, when they drank it and the effect of that consumption on one or more persons.

In Davis v. Barkaszi, the jury was entertained by conflicting testimony about how much Justin Barkaszi had to drink at KC’s Korner bar before he got into a car accident while under the influence of alcohol. Some patrons recalled him consuming numerous shots of vodka while others recollected a far less raucous evening. Despite this disagreement, the medical records recorded a blood alcohol concentration (BAC) of .191%, well over the legal limit of .08% for operating a motor vehicle.

A key liability issue was whether the bar served Barkaszi when he was “visibly intoxicated.” During the trial, plaintiff’s expert testified that Barkaszi consumed 18 ounces of vodka. He also concluded that Barkaszi was a man of “average alcohol tolerance” based on statements that Barkaszi did not drink heavily on a regular basis. Thus, the plaintiff’s expert concluded that Barkaszi would have displayed evidence of “visible intoxication” while at the bar. The defense attorney planned on attacking this conclusion by eliciting testimony from witnesses including the plaintiff that Barkaszi drank much more heavily and frequently than assumed by plaintiff’s expert. According to the defense, Barkaszi had a high level of tolerance for alcohol and would not have demonstrated signs of “visible intoxication” at the bar despite his copious consumption of vodka.

In addition, KC’s Korner had a videotape system that ran on a continuous loop that taped over the prior footage after one week’s time. The bar owner was prepared to testify that he reviewed the tape after the accident, found that it corroborated his bartender’s version of the events and decided that there was no reason to preserve the tape. At trial, the court prohibited the bar owner from explaining his decision not to preserve the tape and gave the jury an “adverse inference” charge inviting them to conclude that the tape would not have supported the bar’s position at trial.

The New Jersey Appellate Division vacated the jury verdict in the plaintiff’s favor and remanded for a new trial. The court held that the bar should be permitted to develop evidence of Barkaszi’s customary alcohol consumption to demonstrate that he had a significant tolerance to alcohol, a concession that would undermine the opinion of plaintiff’s expert. Further, the Appellate Division held that the adverse inference charge on the issue of the supposed spoliation of evidence was improper because plaintiff never made the threshold showing that the bar violated a protocol or practice concerning the preservation of evidence.

If you have any questions or comments about this post, please email Paul at  You can review the actual decision by clicking on the case name in paragraph two.