ELIZABETH E. HARRINGTON VS. SOUTH CITY PRIME MONTVALE, LLC (L-2127-16, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 17, 2020
• Docket: A-3355-18T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-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 – 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. A-3355-18T3 2 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.

A-3355-18T3 3 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 didn’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). A-3355-18T3 4 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 –

Q: How many waters did you have?

A-3355-18T3 5 A: I didn't have any. I don't – I didn't drink a lot of water.

Q: So the only thing you had to drink were the two cabernets, that was it?

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. A-3355-18T3 6 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. A-3355-18T3 7 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

A-3355-18T3 8 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,

A-3355-18T3 9 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

A-3355-18T3 10 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

A-3355-18T3 11 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.

A-3355-18T3 12 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.

A-3355-18T3 13