With no explanation, chose the best option from "A", "B", "C" or "D". at the bar, the results of a Breathalyzer test, and expert testimony interpreting the results of the test. Id. {14} Other states with similar dram shop acts allow circumstantial evidence to be used to prove what the server should have known of the patron’s intoxication. In Kish v. Farley, 24 A.D.3d 1198 (N.Y. App. Div. 2005), New York’s intermediate appellate court explicitly addressed this issue. It stated that “visible intoxication may be established by circumstantial evidence,” id. at 1200, and that no “direct proof in the form of testimonial evidence from someone who actually observed the allegedly intoxicated person’s demeanor at the time and place that the alcohol was served” is required, id. (internal quotation marks and citation omitted). See also Perseus, 995 S.W.2d at 206-07 (<HOLDING>). {15} Applying this principle, in Cadillac

A: holding that expert proof was not required for an asserted claim of ordinary negligence
B: holding that the failure to properly instruct the jury on the burden of proof required a new trial
C: holding that proof of an explicit agreement is not required
D: holding that proof that the server actually witnessed the drunken behavior was not required
D.