Adamy v. Ziriakus and T.G.I. Friday's, Inc., 1998 N.Y. Int. 0132 (Nov. 18, 1998).

EXPERT TESTIMONY - EVIDENCE - DRAM SHOP ACT - COMPARATIVE NEGLIGENCE

ISSUE & DISPOSITION

Issue

Whether there was sufficient evidence to support the jury's finding that T.G.I. Friday's served alcohol to a customer while he was "visibly intoxicated" and therefore was liable to Plaintiff for the decedent's death in a drunk driving accident caused by that customer.

Disposition

Yes. Sufficient evidence was presented by Plaintiff. The evidence, when coupled with the inferences the jury was allowed to draw from T.G.I. Friday's refusal to call its bartender to testify, was sufficient to support a reasoned juror's decision to hold Defendants liable.

SUMMARY

Joseph Adamy, an Amherst police officer, was killed when his police cruiser was hit by a truck driven by Mark Ziriakus. Ziriakus had been drinking at the restaurant T.G.I. Friday's, with friends shortly before the accident. At the accident scene, Ziriakus failed a field sobriety test and was arrested for drunk driving. He was later convicted of driving while intoxicated and failure to yield. Candice Adamy, the decedent's widow, sued both Ziriakus and T.G.I. Friday's alleging that the restaurant violated the Dram Shop Act by serving Ziriakus alcoholic beverages after he was "visibly intoxicated." At trial, the jury found Ziriakus was 40% liable, T.G.I. Friday's was 30% liable, Adamy was 30% liable, and awarded the plaintiff more than $5 million. Friday's made several post judgment motions, including motions for a new trial not withstanding the verdict, for a reduction of the total award by the proportion of Adamy's comparative negligence, and for the limitation of future damages award to a single $250,000 lump sum payment. T.G.I. Friday's primary argument was that there was insufficient evidence to support the jury verdict. The Appellate Division affirmed the verdict, but reduced the future payments to a single lump sum holding that the Supreme Court erroneously failed to reduce the award in proportion to Adamy's comparative negligence. The Court of Appeals affirmed, finding that the inferences the jury was allowed to draw from T.G.I. Friday's refusal to call its bartender to testify, coupled with the testimony of a forensic pathologist predicting Ziriakus's visible signs of intoxication before he left the restaurant was sufficient to allow a reasonable juror to conclude that T.G.I. Friday's violated the Dram Shop Act. The Court differentiated the forensic pathologists's testimony in this case from that used in Romano v Stanley (90 N.Y.2d 444), by focusing on the fact that in Romano, there was only an affidavit from the pathologist that was not subject to cross-examination by the defense. In this case, the pathologist testified before the Court, and the defense had the opportunity to challenge his opinions in cross examination. Because the defense failed to discredit the pathologist in cross-examination, the jury was entitled to rely on his opinions when rendering a decision.

Prepared by the liibulletin-ny Editorial Board.