He was attempting to create a fun atmosphere for younger adults to hangout and have a few drinks since most bars were focused on men. He began with a loan from his mother and started the brand with no experience in the industry.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
|Careers & Job Opportunities | TGI Fridays||Now before the Court is Defendants' motion to dismiss certain state-law claims.|
Central to these cross appeals is the question whether there was evidence to support the jury's verdict that defendant T. Concluding that the verdict cannot as a matter of law be disturbed, and that there is no reversible error in any of the other issues raised by the parties, we affirm the Appellate Division order.
Lieutenant Joseph Adamy, a member of the Town of Amherst Police Department, was killed in the early morning hours of January 27,when his police cruiser collided with a pickup truck driven by Mark Ziriakus. The accident occurred only a short time after Ziriakus had left Friday's, a nearby bar restaurant.
In the hours preceding the incident, Ziriakus was in the company of friends at Friday's, where he consumed a number of alcoholic beverages.
In the aftermath of the accident, Ziriakus failed field sobriety tests administered by police officers at the scene and was arrested. Decedent's widow, plaintiff Candice Adamy, individually and on behalf of decedent's estate, sued both Ziriakus and Friday's. Plaintiff claimed that Friday's had violated the Dram Shop Act by serving Ziriakus alcoholic beverages while he was visibly intoxicated.
Friday's made several post trial motions: We granted leave to both Friday's and plaintiff, and now affirm. Defendant's primary challenge to the jury verdict is that there was insufficient evidence that Ziriakus was served by its employees while he was visibly intoxicated.
In seeking this relief, defendant faces the lofty hurdle of showing that "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reachedby the jury on the basis of the evidence presented at trial" Cohen v Hallmark Cards, 45 NY2d Noticeably absent was any eyewitness testimony that Ziriakus showed signs of intoxication that could have alerted Friday's.
As we noted in Romano v Stanley 90 NY2dthe failure to provide direct proof of visible intoxication in Dram Shop Act cases is not itself dispositive: To the contrary, as was recognized at the time section 65 2 was amended, the statutory language '[does] not preclude the introduction of circumstantial evidence to establish the visible intoxication of the customer'" id.
In this case, plaintiff presented several categories of circumstantial evidence.
First, there was the testimony of plaintiff's expert, Dr. Michael Baden, a forensic pathologist. Baden opined, based on Ziriakus's 0. He further testified that if Ziriakus' BAC was 0. Baden's proffered testimony to that of the plaintiff's expert in Romano, Friday's urges that there was an insufficient foundation for Dr.
Baden's testimony, rendering his opinion purely speculative and conclusory. To be sure, in Romano, we noted that "the personal professional background of plaintiffs' expert--a clinical forensic pathologist whose specialty was the performance of autopsies--is not alone sufficient to lend credence to his opinions, since individuals in his field are not ordinarily called upon to make judgments about the manifestations of intoxication in live individuals" 90 NY2d, at Likewise, we recognized that the expert's affidavit in Romano "was devoid of any reference to a foundational scientific basis for its conclusions.
No reference was made either to [theexpert's] own personal knowledge acquired through his practice or to studies or to other literature that might have provided the technical support for the opinion he expressed" id. Friday's reliance on Romano is misplaced. In that case, an expert's affidavit was the only evidence offered to defeat the summary judgment motion of the vendor defendants.
In that context, we noted that "an expert's affidavit proffered as the sole evidence to defeat summary judgment must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered alone at trial, support a verdict in the proponent's favor" id.
By contrast, when expert testimony is offered at trial, "the technical or scientific basis for a testifying expert's conclusions ordinarily need not be adduced as part of the proponent's direct case" id.
Rather, it falls to the opponent of the testimony to bring out weaknesses in the expert's qualifications and foundational support on cross examination which is, of course, unavailable to a party seeking summary judgment, as in Romano.
In this case, Dr. Baden outlined his teaching career at several educational institutions, articles he had written germane to his understanding of alcohol and its effects and his experience as a medical examiner, and Friday's made no objection to his qualifications to testify as an expert witness.
Thus,Friday's cannot now argue that Dr. Baden's testimony was inadmissible as a matter of law. While Friday's did challenge Dr. Baden's testimony and qualifications in cross examination and again during summation, these contentions affect the weight to be accorded his views, not their admissibility.
Baden's testimony, if credited by the jury, provided a basis to conclude that Ziriakus had been served while visibly intoxicated.
This testimony, if credited, demonstrated that Ziriakus displayed signs of visible intoxication, including alcohol on his breath, glassy and bloodshot eyes, and slurred speech. According to this testimony, Ziriakus was at times unresponsive to the police officers' requests, and swayed or staggered while standing and walking.
To the extent that Friday's points to various inconsistencies in the observations ofthese officers, or argues that the behavior and appearance of Ziriakus was also consistent with that of an accident victim, those too were properly explored on cross examination, argued in summation and left for the jury to weigh.
Given that these observations occurred a short time after Ziriakus left Friday's, it was not irrational for the jury, based on everyday experience and common knowledge, to find that Ziriakus was visibly intoxicated when served at Friday's. A jury could have inferred, for example, that Ziriakus was served the drinks one at a time during his hours at Friday's and eventually displayed signs of intoxication that should have alerted defendant's employees.
Finally, at plaintiff's request, a missing witness instruction was given regarding Doug Daly, a Friday's bartender who was on duty the critical night and had the opportunity to serve Ziriakus.T.G.I.
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