Jose Santiago v. Oscar Moran ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2010-21
JOSE SANTIAGO,
Plaintiff-Appellant,
v.
OSCAR MORAN,
YOLANDA S. MORAN,
RUMBA CUBANA, and
AL 1 PROPERTIES, INC.,
Defendants-Respondents,
and
GEICO INSURANCE CO.,
Defendant.
___________________________
Submitted February 1, 2023 – Decided January 3, 2024
Before Judges Vernoia and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-2845-19.
Dario, Albert, Metz, Eyerman, Canda, Concannon,
Ortiz & Krouse, attorneys for appellant (Patrick M.
Metz, on the brief).
BBC Law, LLP, attorneys for respondents Rumba
Cubana and AL l Properties, Inc. (Laurence Ivan Gross,
on the brief).
The opinion of the court was delivered by
VERNOIA, J.A.D.
Plaintiff Jose Santiago appeals from an order granting summary judgment
to defendant Rumba Cubana, and its alleged owner, defendant AL 1 Properties,
Inc. (collectively "defendants"), on his claims defendants negligently served
alcohol to Oscar Moran (Moran), who operated a vehicle while intoxicated that
struck and injured plaintiff as he walked on a sidewalk in Hoboken.1 Having
conducted a de novo review of the summary judgment record, we agree with the
motion court that plaintiff lacks sufficient evidence establishing defendants'
1
Plaintiff's notice of appeal also states that he appeals from an order denying
his motion for reconsideration of the summary judgment award. In his brief on
appeal, plaintiff does not argue the court erred by denying the reconsideration
motion. We therefore deem abandoned plaintiff's appeal from the order denying
that motion. See Drinker Biddle & Reath LLP v. N.J. Dep't. of L. & Pub. Safety,
421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (explaining an issue not briefed
on appeal is deemed abandoned); 539 Absecon Blvd., LLC. v. Shan Enters. Ltd.
P'ship, 406 N.J. Super. 242, 272 n. 10 (App. Div. 2009) (same); Pressler &
Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2024) (noting "an issue
not briefed is deemed waived").
A-2010-21
2
alleged liability under the New Jersey Licensed Alcoholic Beverage Server Fair
Liability Act (Dram Shop Act), N.J.S.A. 2A:22A-1 to -7, and affirm.
Because we review an order granting summary judgment de novo applying
the same standard as the motion judge, we summarize the facts in the light most
favorable to plaintiff as the non-moving party. See Ben Elazar v. Macrietta
Cleaners, Inc., 230 N.J. 123, 135 (2017).
While walking on a Hoboken sidewalk at approximately 3:05 p.m. on
April 16, 2019, plaintiff was struck and injured by a vehicle driven by Moran.
Prior to the accident, Moran had eaten lunch at a North Bergen restaurant,
defendant Rumba Cubana. Moran testified he arrived at the restaurant at noon.
Moran reported he was at Rumba Cubana for approximately "an hour to
an hour[-]and[-]a[-]half" and left between 1:00 to 1:30 p.m. Moran testified he
ate lunch with a friend and had two glasses of sangria. He denied drinking any
other alcoholic beverages that day. According to Moran, when he left the
restaurant, he drove to Hoboken to drop off lunch for his daughter.
Moran testified it took about forty-five minutes to drive from the
restaurant to Hoboken, but he could not recall if he had stopped at any other
places during the trip. When questioned at his deposition about what he did
after he left Rumba Cubana and prior to the accident, Moran said he did not
A-2010-21
3
recall because the accident occurred more than a year earlier, he did not "know
exactly what happened," and he may have left the restaurant "a little later" than
he had otherwise said. Moran also testified he remembered leaving the
restaurant but did not remember anything else until the police took him out of
his car after it struck plaintiff.
Following the accident, Moran was arrested and required to perform field
sobriety tests. The police reports state that during a walk-and-turn test, Moran
"walked in a normal fashion, feet side-by-side," but "had to be told to turn and
walk back." The reports also state that during a one-legged-stand test, Moran
"wobbled on his feet when he attempted to raise his right foot," and the police
ended the test after two additional attempts because Moran was "in danger of
falling." The reports do not include any indication that Moran's eyes were
bloodshot, glassy, or watery, or that he exhibited any incoherent, rambling,
boisterous, or slurred speech. The reports cited the results of chemical breath
tests and a blood test showing Moran's blood alcohol content (BAC) at different
times following the accident.
Plaintiff filed a complaint against Moran and defendants asserting causes
for negligence and under the Dram Shop Act. Following completion of
discovery, defendants moved for summary judgment, arguing plaintiff failed to
A-2010-21
4
produce evidence establishing defendants were liable under the Dram Shop Act
by serving Moran with alcohol while he exhibited visible signs of intoxication.
In their Rule 4:4-6-2(a) statement of material facts supporting the motion,
defendants asserted the record lacked any factual support for plaintiff's claim
they violated the Dram Shop Act. Defendants further asserted that although the
September 21, 2021 discovery end date had passed, plaintiff had failed to
produce any expert reports expressing "opinions regarding . . . Moran's level of
intoxication or signs of visible intoxication while" at Rumba Cubana.
In response to defendants' assertion of those facts, plaintiff offered reasons
for his delay in timely providing an expert's report, and he referred to and relied
on a December 12, 2021 report from Robert J. Pandina, Ph.D. as support for his
claim defendants are liable under the Dram Shop Act. In his report, Dr. Pandina
explained he had been requested to opine "as to whether observable signs of
intoxication would have been apparent" while defendant was at lunch at the
restaurant such "that the staff at Rumba Cubana . . . knew or should have known
[Moran] was impaired because of alcohol ingested and served him alcoholic
beverages after the emergence of visible signs of intoxication."
Dr. Pandina also explained he had been requested to provide opinions as
to: Moran's level of intoxication and BAC at the time of the accident; the effect
A-2010-21
5
of his level of intoxication at the time of the accident on his judgment, attention,
reaction time, and motor coordination; the degree to which Moran's intoxication
interfered with his ability to operate his vehicle; and whether Moran's
intoxication contributed to the crash. The report included an analysis of those
issues, including Dr. Pandina's extrapolation of Moran's BAC—0.13 percent—
at the time of the collision, and explained that level of intoxication adversely
affected Moran's ability to drive safely and contributed to the causation of the
accident resulting in plaintiff's injuries.
More particularly, Dr. Pandina explained that:
Moran submitted to breath testing at the police station
at 4:38 p.m. and 4:42 p.m. approximately [ninety]
minutes post[-]collision. Results of the testing
indicated that . . . Moran's [BAC] at those times were
[0.106 percent and 0.113 percent]. Subsequent to
breath testing, . . . [b]lood was collected at 5:17 p.m.
(approximately [forty] minutes after breath testing was
conducted). The results of toxicological analysis
of . . . Moran's blood indicated a BAC of [0.10
percent].
Based on that information and other records he reviewed, Dr. Pandina
opined that Moran achieved a peak BAC of 0.14 percent about forty-five
minutes after he finished his last drink at Rumba Cubana. Relying on Moran's
testimony he consumed his last drink at around the time he left the restaurant—
between 1:00 and 1:30 p.m.—Dr. Pandina found Moran's peak BAC of 0.14
A-2010-21
6
percent would have been reached at around 2:15 p.m.—forty-five minutes before
the accident—and "would have been descending at the time of the collision."
According to Dr. Pandina, at the time of the collision around 3:05 p.m., Moran's
BAC was "0.13 percent (+/- 0.01 percent)."
Dr. Pandina further noted "[t]he majority of adult drinkers will display
one or more visible signs of intoxication as blood alcohol concentrations rise to,
reach, and exceed 0.15 percent." He also explained that only "a small percentage
of individuals exhibit visible [signs of intoxication] at lower BAC levels." He
provided a list of what he described were "common indicia" or "visible signs"
of intoxication but did not cite to any evidence Moran exhibited any of those
signs while having lunch at Rumba Cubana.
Although, as noted, Dr. Pandina's report states he had been requested to
opine as to whether Moran would have exhibited observable signs of
intoxication while at the restaurant—such that its staff knew or should have
known Moran was intoxicated but then served Moran alcohol—the requested
opinion is not included in the report and the report otherwise does not include
any opinion Moran would have exhibited visible signs of intoxication while at
the restaurant.
A-2010-21
7
Dr. Pandina noted that a BAC of 0.13 percent indicates acute intoxication,
which results in debilitating impairments in perceptual-motor coordination,
cognitive processing, decision-making, and emotional appreciation. Dr.
Pandina also observed that Moran reported significant memory loss concerning
the period after he left the restaurant and before the accident occurred.
The report states that memory loss is "typically associated with a BAC in
excess of 0.15 [percent] indicat[ing] a debilitating impact of intoxication beyond
that typically associated with a 0.13 [percent] (+/- .01 [percent])" BAC. Dr.
Pandina further opined that "[s]uch memory losses are consistent with alcohol
induced blackouts that are associated with heightened levels of alcohol
intoxication." The report states that for Moran to have a 0.13 percent BAC after
drinking during the one-and-a-half hours he reportedly ate lunch at the Rumba
Cubana, "he would have [to have been] served and consume[d] approximately
[eight] to [nine] ounces of brandy" containing a forty percent alcohol content.
The report does not include an opinion as to whether it is more likely than
not that Moran would have exhibited visible signs of intoxication after
consuming that amount of alcohol while at Rumba Cubana. The report also does
not include an opinion about, or an estimate of, Moran's BAC while he was at
the restaurant. The report further lacks any analysis or conclusions concerning
A-2010-21
8
the manner in which Moran's consumption of the alcohol or putative intoxication
resulting in the memory loss may have manifested itself in visible signs of
intoxication while at Rumba Cubana such that it could be reasonably and
rationally inferred that defendants' staff served Moran with alcohol after he
exhibited such signs. Dr. Pandina's report does not offer an opinion as to what
Moran's estimated BAC would have been while at the restaurant if he had
consumed that amount of alcohol or state that Moran would have exhibited
visible signs of intoxication while he was there.
Following argument on the motion, the court rendered a decision from the
bench granting defendants' motion. The court accepted Dr. Pandina's report but
found it did not establish Moran had displayed visible signs of intoxication while
at Rumba Cubana. The court found nothing in Dr. Pandina's report "that would
have translated into" evidence Moran exhibited visible signs of intoxication
while at Rumba Cubana and noted plaintiff's counsel's candid admission during
oral argument on the motion that plaintiff "can't prove" Moran exhibited such
signs.
Instead, counsel argued only that it was plaintiff's position Moran was
"clearly and visibly intoxicated when he left" Rumba Cubana because he did not
drink anywhere else after he left the restaurant and before the accident occurred.
A-2010-21
9
The court concluded the record lacked sufficient evidence permitting a rational
jury to find Moran exhibited visible signs of intoxication as he ate lunch at
Rumba Cubana such that plaintiff could sustain his burden under the Dram Shop
Act.
Following entry of an order granting defendants' summary judgment,
plaintiff moved for reconsideration. A different judge heard and denied the
motion, finding plaintiff failed to satisfy the standard for reconsideration and
concluding, after reviewing the summary judgment motion record, that "[t]here
is zero evidence, including any expert report, . . . Moran was served alcohol
while visibly intoxicated." This appeal followed.
We review a grant of summary judgment de novo, applying the same
standard as the trial court. Conforti v. Cnty. of Ocean, 255 N.J. 142, 162 (2023);
Samolyk v. Berthe, 251 N.J. 73, 78 (2022). The standard requires that we
"consider whether the competent evidential materials presented, when viewed
in the light most favorable to the non-moving party, are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in favor of the non-
moving party." Ibid. (quoting Statewide Ins. Fund v. Star Ins. Co., 253 N.J. 119,
125 (2023)). We also must determine "whether 'the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
A-2010-21
10
any, 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.'"
Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-
2(c)). Stated differently, we consider "'whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-
sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp.
v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).
Plaintiff's claims against defendants are limited to those permitted under
the Dram Shop Act. The statute 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.
Pertinent here, the Act states:
a. A person who sustains personal injury or property
damage as a result of the negligent service of alcoholic
beverages by a licensed alcoholic beverage server may
recover damages from a licensed alcoholic beverage
server only if:
(1) The server is deemed negligent pursuant to
subsection b. of this section; and
A-2010-21
11
(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.
b. A licensed alcoholic beverage server shall be deemed
to have been negligent only when the server served a
visibly intoxicated person, or served a minor, under
circumstances where the server knew, or reasonably
should have known, that the person served was a minor.
[N.J.S.A. 2A:22A-5.]
Thus, under the Dram Shop Act, "[a]llowing the service of alcohol to a 'visibly
intoxicated person'—who causes personal injury or property damage that is a
proximate and foreseeable consequence of his intoxication—will expose a
licensed alcoholic beverage server to civil liability under N.J.S.A. 2A:22A-
5(b)." Mazzacano v. Est. of Kinnerman, 197 N.J. 307, 320 (2009).
Visible intoxication 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. To establish a cause of action under the Dram Shop Act, a
plaintiff must therefore prove both a tortfeasor was intoxicated and exhibited
perceptible acts presenting clear signs of intoxication. Ibid. Moreover, a
plaintiff must prove the defendant served alcohol to the tortfeasor after the
tortfeasor was visibly intoxicated. N.J.S.A. 2A:22A-5(b); see also Bauer v.
A-2010-21
12
Nesbitt, 198 N.J. 601, 613 (2009) (explaining that under the Dram Shop Act, "a
licensed alcoholic beverage server is 'negligent "only when the server served a
visibly intoxicated person" or serves a minor'") (quoting Mazzacano, 197 N.J.
at 324).
A plaintiff asserting a cause of action under the Act is not required to
present eyewitness testimony or other direct evidence that a server served
alcohol to a visibly intoxicated person. Halvorsen v. Villamil, 429 N.J. Super.
568, 575 (App. Div. 2013). However, "[t]o defeat a motion for summary
judgment in a" case brought under the Dram Shop Act, "a plaintiff must present
sufficient direct or circumstantial evidence that would permit a jury to
reasonably and legitimately deduce that a beverage server served alcoholic
beverages to the person at issue while he or she was visibly intoxicated." Ibid.(citing Salemke v. Sarvetnick, 352 N.J. Super. 319, 327 (App. Div. 2002)).
Based on our review of the summary judgment record, we are persuaded
the motion court correctly determined plaintiff failed to present sufficient
evidence permitting a rational juror to conclude Moran was served alcoholic
beverages after exhibiting visible signs of intoxication. Conforti, 255 N.J. at
162. It is undisputed there is no direct evidence Moran exhibited visible signs
A-2010-21
13
of intoxication while at the restaurant or that defendants' staff served him
alcohol after he exhibited such signs.
Instead, plaintiff relies solely on Dr. Pandina's report to establish there is
circumstantial evidence defendants' staff served alcohol to Moran after he
showed visible signs of intoxication. In Mazzacano, the Court found an expert's
report offering an opinion "within a reasonable degree of probability" that the
tortfeasor "'was visibly intoxicated'" and "exhibited signs of intoxication" at a
party hosted by the defendant "was sufficient to" to establish the defendants'
negligence under the Dram Shop Act. 197 N.J. at 313, 321. There is no similar
evidence here.
Unlike the report considered by the Court in Mazzacano, and despite the
fact Dr. Pandina was expressly requested to do so, his report does not include
an opinion within a reasonable degree of probability or otherwise that Moran
was visibly intoxicated while at Rumba Cubana. Dr. Pandina's report does not
offer an opinion concerning whether Moran exhibited, or likely would have
exhibited, visible signs of intoxication while at the restaurant such that a rational
juror could conclude defendants' staff served him alcohol after he exhibited
physical signs of intoxication. Thus, as the motion court aptly recognized, the
report does not provide sufficient evidence satisfying plaintiff's burden under
A-2010-21
14
the Dram Shop Act, see Mazzacano, 197 N.J. at 324, and plaintiff offers no other
evidence supporting his claim under the statute.
We recognize the report includes estimates of Moran's BAC levels at
various times following his departure from the restaurant. Dr. Pandina
extrapolated those levels based on the results of chemical breath tests and a
blood test following the accident. Dr. Pandina's report explained his findings
and opinions were based on the science underlying the extrapolation of BAC
levels and that "[b]y understanding alcohol concentrations at certain times,
experts can estimate potential levels of impairment in various functions at those
points in time."
Dr. Pandina's report does not include an extrapolation of Moran's BAC at
any point in time Moran ate lunch at Rumba Cubana. Thus, the scientifically
based methodology Dr. Pandina described that he used to form his opinions—
which he claimed permits an assessment of levels of impairment at particular
points in time based on the BAC levels at those points in time—was not
employed to offer an opinion concerning Moran's level of impairment, if any,
while at defendants' restaurant. That is, Dr. Pandina did not calculate Moran's
alcohol concentration at the only relevant point in time—while he ate lunch at
Rumba Cubana. The report therefore is bereft of any opinion based on the only
A-2010-21
15
methodology Dr. Pandina explained could be used to establish levels of
impairment establishing Moran's level of impairment at the restaurant such that
a rational juror could conclude defendants served Moran alcohol after he
exhibited visible signs of intoxication. And, as noted, the report lacks any
opinion that Moran's consumption of alcohol caused visible signs of intoxication
such that a rational jury could infer he exhibited such signs while at the
restaurant.
Dr. Pandina noted Moran reported he had no recall about what occurred
after he left Rumba Cubana and until the police took him from his car following
the accident. Dr. Pandina opined that "[s]uch memory losses are consistent with
alcohol induced blackouts that are associated with heightened levels of alcohol
intoxication," and "[h]ence, it is probable that . . . Moran was impacted by
alcohol induced intoxication in a manner typically associated with" BACs
"higher" than the 0.14 percent BAC that Dr. Pandina calculated was Moran's
"peak" BAC at 2:15 p.m.; approximately an hour after he left the restaurant and
fifty minutes before the accident. 2 Dr. Pandina's report, however, does not
2
Dr. Pandina's report includes conflicting statements concerning Moran's peak
BAC following his lunch at Rumba Cubana. The report states Moran's peak
BAC was 0.14 percent at 2:15 p.m. and descended to 0.13 percent when the
collision occurred at 3:05 p.m. The report thereafter states Moran's peak BAC
A-2010-21
16
explain whether Moran's later lack of recall of the events occurring after his
departure from the restaurant support an inference Moran exhibited visible signs
of intoxication while eating lunch at Rumba Cubana. Similarly, the report states
it is probable Moran consumed eight to nine ounces of brandy while at Rumba
Cubana, but does include an opinion as to whether consumption of that amount
of alcohol would have resulted in Moran's exhibition of visible signs of
intoxication while at the restaurant.
Plaintiff relied exclusively on Dr. Pandina's report to establish an essential
element of his claim—that defendants violated the Dram Shop Act by serving
Moran with alcohol after he exhibited visible signs of intoxication. Plaintiff's
reliance is misplaced because the report offers no opinion as to Moran's
purported level of intoxication while at the restaurant or whether his level of
intoxication permits a finding that he had exhibited visible signs of intoxication
such that a rational jury could conclude defendants violated the statute. We
was 0.13 percent at the time of the collision. We attribute the latter references
to misstatements or typographical errors and accept the report's initial statement
of Moran's peak BAC of 0.14 percent as what Dr. Pandina intended. In any
event, because Dr. Pandina did not offer opinions on Moran's level of
intoxication while at the restaurant or that Moran's his level of intoxication while
at the restaurant would have likely resulted in the exhibition of visible signs of
intoxication, the different statements concerning Moran's BAC an hour or so
after he left the restaurant are of no moment under the Dram Shop Act.
A-2010-21
17
therefore affirm the court's orders granting defendants summary judgment and
denying defendants' reconsideration motion.
Affirmed.
A-2010-21
18