In an unpublished opinion, Harrington vs. South City Prime Montvale, LLC, Docket No. A-3355-18T3, the Appellate Division addressed the issue of whether evidence of Plaintiff’s alcohol consumption alone, is admissible to infer Plaintiff’s intoxication, and thus negligence, at the time of trial. In overruling the trial court’s decision, the Appellate Court held that evidence of alcohol consumption is inadmissible unless accompanied by supporting evidence of intoxication.
In Harrington, Plaintiff was having dinner at a restaurant, in a booth that was elevated on a platform. During the three-and-a half hour dinner, Plaintiff consumed two glasses of wine. At the end of her dinner, Plaintiff fell while attempting to exit the raised booth. The manager on duty responded to Plaintiff and completed an incident report that failed to make any reference to Plaintiff’s possible intoxication. At trial, Defendants argued that evidence of Plaintiff’s alcohol consumption was relevant to the “narrative of events” from the night. Conversely, Plaintiff argued that Plaintiff’s alcohol consumption prior to her fall was inadmissible on the grounds that it was irrelevant and highly prejudicial. The trial court agreed with Defendants and permitted the evidence “for the sake of a complete narrative.”
During the trial, Plaintiff testified that she consumed a “couple” glasses of wine and no water. The on-duty manager confirmed that he observed the Plaintiff immediately after the accident and did not notice any signs of intoxication, such as bloodshot eyes or slurred speech. At the close of the trial, the jury returned a no-cause verdict in favor of the Defendants. Plaintiff subsequently appealed.
On appeal, the primary argument advanced by Plaintiff was that testimony of Plaintiff’s alcohol consumption alone, was prejudicial evidence that tainted the jury’s verdict. At the trial court level, the basis for permitting evidence of Plaintiff’s alcohol consumption was to advance the “narrative” of the night without any specific evidence of intoxication. In relying upon prior case law concerning the admissibility of evidence concerning a defendant’s alcohol consumption, the Appellate Court reversed and remanded the case for a new trial ruling that, without supporting evidence, the admittance of evidence that Plaintiff consumed alcohol is prejudicial because it allows the jury to improperly speculate. In Gusttavson vs. Gaynor 206 N.J. Super 540 (App. Div. 1985), the Appellate Court previously held, evidence that a defendant consumed alcohol prior to his involvement in an automobile accident “is by itself insufficient to warrant an inference that the (defendant) driver was intoxicated and the intoxication was such a degree as to render him unfit to drive at the time of the accident.” Additionally, the Court held that testimony concerning the drinking of intoxicants alone, without supporting evidence of intoxication, should be stricken and may constitute reversible error.
The Appellate Division’s decision in Harrington extends prior case law concerning the necessary criteria for introducing evidence of a defendant’s intoxication to that of a plaintiff in order to establish comparative negligence. The mere fact that an individual consumed alcohol alone, is inadmissible to infer or suggest intoxication without additional supporting evidence, such as testimony concerning the parties’ behavior, blood alcohol content established through expert testimony, and the timing and quantity of the alcohol. Therefore, when it is learned that a plaintiff’s intoxication may have contributed to an accident and may be advanced as a defense to any future litigation, there should be an immediate investigation of the matter detailing Plaintiff’s conduct, mannerisms, and appearance at the time of the accident, as well as identifying any potential witnesses and attempting to preserve all videos and records pertaining to Plaintiff’s food and alcohol consumption prior to the accident. Whether you own an establishment that serves alcohol, or are an insurance carrier, third-party administrator, or insurance broker that put on notice of a potential claim involving intoxication, consider immediately contacting GRSLBG&B’s accident response team to coordinate a full confidential and privileged investigation.
 Hristo Zevlikaris, Esq. is a Shareholder in GRSLBG&B’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New Jersey State and Federal Courts. Chris can be reached at CZevlikaris@grsl.com.
 Minal J. Acharya, Esq. is an Associate in GRSLBG&B’s Litigation Department. She defends a wide variety of clients in various civil actions brought forth in New Jersey State Courts. Minal can be reached at MAcharya@grsl.com.