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

NOT FOR PUBLICATION WITHOUT THE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.
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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.
A-3355-18T3
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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 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
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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 –
Q: How many waters did you have?
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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?
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.
A-3355-18T3
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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
A-3355-18T3
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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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