Tuesday, January 19, 2021

Harrington v S. City Prime Montvale

                                                      SUPERIOR COURT OF NEW JERSEY

                                                     APPELLATE DIVISION

                                                     DOCKET NO. A-3355-18T3


ELIZABETH E. HARRINGTON,


       Plaintiff-Appellant,


v.


SOUTH CITY PRIME MONT-

VALE, LLC a/k/a SOUTH CITY

PRIME a/k/a SOUTH CITY PRIME

RESTAURANT t/a FIRE & OAK

d/b/a FIRE & OAK MONTVALE,

GRAND PRIX MONTVALE, LLC,

INK LESSEE, LLC; MARRIOTT

INTERNATIONAL, INC. d/b/a/

COURTYARD MARRIOT a/k/a

COURTYARD         MONTVALE,

ISLAND HOSPITALITY MAN-

AGEMENT, LLC, and MERCURY

NATIONAL       CONSTRUCTION

CORPORATION,


     Defendants-Respondent.

_______________________________


                Argued October 1, 2020 รข€“ Decided December 17, 2020


                Before Judges Geiger and Mitterhoff.

            On appeal from the Superior Court of New Jersey, Law

             Division, Bergen County, Docket No. L-2127-16.


             James A. Kassis argued the cause for appellant

             (Schenck, Price, Smith & King, LLP, attorneys; James

             A. Kassis and Sandra Calvert Nathans, of counsel and

             on the briefs).


             Kevin J. Conyngham argued the cause for respondents

             (Zimmerer, Murray, Conyngham & Kunzier, attorneys;

             Kevin J. Conyngham of counsel; Kevin J. Conyngham

             and Sidney E. Goldstein, on the brief).


PER CURIAM


       In this personal injury action, plaintiff Elizabeth Harrington appeals from


the February 7, 2019 judgment issued after a jury returned a no-cause verdict in


favor of defendant South City Prime, Montvale, LLC (South City Prime).


Plaintiff, after having dinner at the Fire & Oak restaurant (Fire & Oak), fell


when exiting a raised booth.1 On appeal, plaintiff argues the verdict must be set


aside because the jury was allowed to consider impermissible evidence


including: (1) plaintiff's alcohol consumption before the fall; (2) the safety


history of the elevated booths; and (3) the role of design professionals in the


construction of the booths. Additionally, plaintiff argues the trial court erred in


denying her motion for a new trial because the verdict was against the weight of




1

    South City Prime is the holding company that owns and operates Fire & Oak.

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the evidence; and portions of witness testimony were barred. We need not


consider each argument presented by plaintiff because, having considered the


record and applicable law, we conclude there was irrelevant and highly


prejudicial evidence presented to the jury that may well have tainted the verdict,


necessitating a reversal and retrial.


      We discern the following facts from the record. On January 11, 2016,


plaintiff met a friend for dinner at Fire & Oak. The pair sat in the bar and lounge


area of the restaurant. Seating in the lounge area includes elevated banquette


style booths constructed on top of a twelve-and-a-half-inch platform. Patrons


must step up onto the platform to enter the booths and step down to exit.


Lighting in the lounge is set to a lower level for dinner service than during lunch


service.


      Plaintiff and her friend dined for approximately three-and-a-half hours,


during which time plaintiff consumed two glasses of wine. When they finished


their meal, plaintiff attempted to exit the booth and fell. She sustained an


intertrochanteric fracture of her right hip, which would eventually require two


surgeries to repair. Patrick Langford, the manager on duty, offered assistance


after the fall. The following day Langford prepared an incident report describing


the event; the report made no mention of any signs of intoxication.



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      On March 7, 2016, plaintiff filed a complaint alleging the defendants had


allowed a dangerous condition to exist on the premises which caused her


injuries. Additional defendants were added through amendments on April 5,


2016, and March 16, 2018.


      The parties disputed the admissibility of plaintiff's alcohol consumption


on the night of the fall. The defense argued the evidence was relevant to the


narrative of events that took place that night. 2 Plaintiff, on the other hand,


argued the evidence was irrelevant, highly prejudicial, and barred by caselaw.


The trial court ruled evidence of plaintiff's alcohol consumption was admissible


for the sake of a complete narrative:


            [THE COURT]: I may sanction somebody if people

            know information they are not telling me. On the basis

            of what I heard, this not a difficult decision. The fact

            that your client had dinner there and had two cabernets

            is not prejudicial. It's, in effect, for completeness of

            what they were doing there at the time.


            I didnรข€™t see anything in the submitted reports that in any

            way over a period of time when she was in the bathroom

            or got to the bathroom, or being brought out by

            wheelchair to the ambulance or whatever, that anybody


2

   On appeal defendant argues, for the first time, plaintiff's alcohol consumption

was used to impeach her credibility. Defendant suggests the evidence showed

it was unlikely plaintiff did not get up to use the bathroom after consuming two

glasses of wine and remaining seated for such a long time. (Db16). The

argument, however, was not raised below and therefore we do not consider it.

See Nieder v. Royal Indem. Ins. Co.,  62 N.J. 229, 234 (1973).

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            suggested that she was bagged out of her mind or drunk

            or whatever it may be.


            The simple fact that she had two drinks over a three-

            and-a-half[-hour] time period, that is not prejudicial

            enough to remove it from the case. And, I'm going to

            allow it.


      Defense counsel seized the opportunity and referred to plaintiff's alcohol


consumption in his opening statement:


            [DEFENSE COUNSEL]: They sat there for three and

            a half hours, and had dinner. Two glasses of, I believe

            [cabernet]. And for three and half hours, they chatted

            and enjoyed their dinner.


      Plaintiff was the first to testify.   During cross-examination, defense


counsel questioned her about her alcohol consumption prior to the fall:


            Q: Now, you were at the Fire & Oak for approximately

            three and half hours; is that right?


            A: Yes.


            Q: You had something to drink that night?


            A: I had a couple glasses of cabernet.


            Q: All right, did you have anything else; water or

            anything else, beverages?


            A: There was water on the table but รข€“


            Q: How many waters did you have?




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            A: I didn't have any. I don't รข€“ I didn't drink a lot of

            water.


            Q: So the only thing you had to drink were the two

            cabernets, that was it?


            A: Yes.


      Plaintiff then called the manager on duty at Fire & Oak on the night of the


fall, Patrick Langford. 3 Pertinent to this appeal, Langford testified he observed


plaintiff immediately after the fall and did not notice any signs of intoxication.


The day after the fall, he prepared a memo describing the incident and included


all of the information he felt was important; the memo did not indicate plaintiff


had bloodshot eyes, slurred her speech, or exhibited any other signs of


intoxication.


      Defendant called a single witness, the managing partner of South City


Prime, Graeme Dorras. Dorras's testimony related events regarding construction


of the restaurant as well as the safety history of the booths. He also testified


that the commercial landlord played no role in the construction, did not inspect





3

    John Tesoriero, a civil engineer; Dr. Andrew Brief, a board-certified

orthopedic surgeon; and Glenn O'Neill, the friend that accompanied plaintiff on

the night of the fall, also testified on plaintiff's behalf.

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the premises, and has maintained zero control over the restaurant since its


opening.4


      On January 14, 2019, the jury returned a no-cause verdict in favor of


defendant. By vote of five to one, the jury found Fire & Oak was reasonably


safe on the night of the fall. On March 1, 2019, plaintiff moved for a new trial,


based on a number of allegedly incorrect evidentiary rulings. On March 15,


2019, the trial court denied the motion. This appeal ensued.


      An appellate court reviews a trial court's evidentiary rulings fo r abuse of


discretion. Brenman v. Demello,  191 N.J. 18, 31 (2007). Thus, an appellate


court will not disturb a trial court's evidentiary rulings unless they are "so wide


off the mark that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins.


Co.,  160 N.J. 480, 492 (1999) (quoting State v. Carter,  91 N.J. 86, 106 (1982)).


However, an appellate court will review questions of law de novo. Balsamides


v. Protameen Chem., Inc.,  160 N.J. 352, 372 (1999).


      Trial errors that were brought to the attention of the court are reviewed


for harmful error. "Any error or omission shall be disregarded by the appellate


court unless it is of such a nature as to have been clearly capable of producing




4

  At the close of defendants' case-in-chief, defense counsel successfully moved

to dismiss all defendants excluding South City Prime.

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an unjust result . . . ." R. 2:10-2. Thus, if a trial judge is found to have abused


his or her discretion, or otherwise erred, the appellate court must then determine


whether that error amounted to harmful error, provided the alleged error was


brought to the trial judge's attention. See State v. Prall,  231 N.J. 567, 581 (2018)


("Our review of the evidentiary determinations cannot end our analysis when we


find an abuse of discretion; rather, we must then determine whether any error


found is harmless or requires reversal.").


      "The standard governing an appellate tribunal's review of a trial court's


action on a new trial motion is essentially the same as that controlling the trial


judge." Dolson v. Anastasia,  55 N.J. 2, 7 (1969) (citing Hager v. Weber,  7 N.J.

 201, 212 (1951)).


            A new trial may be granted to all or any of the parties

            and as to all or part of the issues on motion made to the

            trial judge. . . . The trial judge shall grant the motion if,

            having given due regard to the opportunity of the jury

            to pass upon the credibility of the witnesses, it clearly

            and convincingly appears that there was a miscarriage

            of justice under the law.


            [R. 4:49-1(a).]


      Plaintiff argues we should reverse the no-cause verdict based on the


court's alleged error in permitting evidence of, among other things, her alcohol


consumption on the night of her fall. Before the trial court, defense counsel



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represented that introduction of the evidence was not to prove plaintiff was


intoxicated. When counsel was questioned how he intended to use the evidence


if not to suggest intoxication, he refused to answer arguing he should not be


forced to reveal his trial strategy. The trial court first referenced the fact there


was no evidence of intoxication in the record, then proceeded to hold two glasses


of wine over a three-and-a-half-hour period was "not prejudicial enough to


remove it from the case."


      In Gustavson v. Gaynor, we held that evidence a defendant consumed


alcoholic beverages prior to his involvement in an automobile accident "is by


itself insufficient to warrant an inference that the [defendant-]driver was


intoxicated and that the intoxication was of such a degree as to render him unfit


to drive at the time of the accident."  206 N.J. Super. 540, 545 (App. Div. 1985).


We held that to admit evidence of drinking alcohol to establish the negligent


operation of a motor vehicle, supporting evidence must be presented "from


which the trier of the fact may reasonably conclude that the drinking affected


the safe operation of the vehicle." Id. at 544-45. We also found applicable the


following "general rule":


            [During a trial,] questions cannot be asked which

            intimate to the jury that a party was intoxicated at the

            time of [an] accident unless there is supporting

            evidence . . . ; in the absence of supporting evidence,


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            testimony concerning the drinking of intoxicants

             should be stricken, and under certain circumstances,

             may constitute reversible error notwithstanding a

             sustained objection.


             [Id. at 545 (quoting Ballard v. Jones,  316 N.E.2d 281,

             286 (Ill. App. Ct. 1974)).]


      Here, defendant sought admission of evidence plaintiff consumed two


glasses of wine prior to the incident, but failed to proffer any other evidence


supporting a finding that plaintiff's alleged consumption of wine resulted in


intoxication or impairment, or that the alleged drinking affected her in any


manner. To the contrary, Langford testified he observed and interacted with


plaintiff shortly after the fall and included all relevant information in his incident


report. Langford testified he did not observe any signs of intoxication and the


report made no reference to alcohol playing any role in the fall. Thus, as


conceded by defendants, there is no evidence in the record that would support


an inference plaintiff was impaired by alcohol at the time of her fall.


      We reject defendant's claim a different result is required by our decision


in Black v. Seabrook Assoc., Ltd., where, in a wrongful death and survivorship


action, we determined the trial court erred by excluding testimony concerning


the decedent's consumption of alcohol in the hours preceding the incident that


resulted in his death.  298 N.J. Super. 630, 635 (App. Div. 1997). In Black, the



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decedent suffered a severed artery when he punched the door to his apartment


to gain entry because the door "was stuck." Id. at 632. Testing at the hospital


where the decedent was treated and died revealed a .143 blood alcohol content,


and a later test revealed a .11 blood alcohol content. Id. at 633. Another test


showed "a trace of cocaine metabolite in [the] decedent's urine." Ibid.


       The trial court excluded testimony concerning the decedent's use of


alcohol based on a finding "there was insufficient supplemental evidence of


alcohol to admit such testimony" as required by Gustavson. Ibid. We reversed


the trial court's decision, and determined evidence establishing the extent to


which the decedent's "judgment and/or coordination were impaired" by his


consumption of alcohol was "a proper subject for the jury to consider," and could


be established by testimony from two witnesses and "the blood alcohol content


results of decedent's blood serum analysis." Id. at 636-37. We further found


that evidence satisfied the Gustavson "supplemental evidence standard." Id. at


637.


       Here, in contrast, defendant offered no supplemental evidence suggesting


plaintiff's intoxication. There was no testimony concerning the volume of the


wine glasses at Fire & Oak. There was no testimony about plaintiff's weight,


nor any testimony to establish when during the three-and-a-half-hour long



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dinner the wine was consumed. There was no evidence of plaintiff's blood


alcohol content, nor expert testimony to establish how under all the foregoing


factors she may have been impaired. There was no lay testimony evidencing


any belligerent or otherwise unusual behavior to suggest plaintiff may have been


impaired. Indeed, defendant's own employee testified that plaintiff showed no


signs of impairment, and he did not include alcohol consumption as a


contributing factor of the accident in his incident report.


        We conclude the court's ruling admitting the alcohol evidence was clearly


mistaken. Gustavsen dictates that in the absence of supplemental evidence of


intoxication, evidence of alcohol consumption is inadmissible.  206 N.J. Super


at 545. That is so because evidence of alcohol consumption prior to an accident


is inherently very prejudicial.    Because other indicia of intoxication were


indisputably absent in this case, the jury was improperly allowed to speculate


about the significance of the evidence that plaintiff consumed two glasses of


wine at some unspecified time before her fall. We are unable to state with any


degree of confidence that the admission of the evidence did not taint the verdict


or otherwise result in a "miscarriage of justice under the law." Dolson,  55 N.J.


at 7.





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    Because we find reversal is warranted based on the admission of the


alcohol evidence, the remaining issues on appeal are moot and will not be


addressed.


     Reversed and remanded for a new trial.





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