ON appeal from the Superior Court, Law Division, Bergen County.
Pressler, Baime and Ashbey. The opinion of the court was delivered by Pressler, P.J.A.D.
The meritorious issue posed by this appeal arises out of the manner in which the trial court responded to inconsistent answers by the jury to the special interrogatories submitted to it in this personal injury action. We conclude that the nature of the judicial response to that inconsistency impermissibly interfered with the jury's performance of its function.
The action arose out of a bowling alley altercation in which defendant Arthur Conklin, Jr., a member of a bowling team who had become intoxicated, struck and injured plaintiff, Robert L. Roland, a member of the opposing team. Plaintiff and his wife Gayle Roland, who sued per quod, brought this action against Conklin and, ultimately, against Brunswick Corporation, the parent company of Brunswick Recreation Centers which operated the bowling alley, and Eileen Corporation, which held the liquor license. The claim against Brunswick was based on its asserted negligence in serving alcoholic beverages to an intoxicated patron and in failing to provide a safe place for its business invitees. Among other defenses asserted by defendants was the claim that plaintiff's negligence in provoking the physical attack upon him was a proximate cause of the injuries he sustained.
Following a seven-day jury trial, the factual issues were submitted to the jury by way of special interrogatories asking the following questions:
1. Was there an assault and battery of plaintiff by Arthur Conklin?
2. Was the assault and battery of plaintiff by Arthur Conklin a proximate cause of plaintiff's injuries?
3. Do you find that the plaintiffs have proved by a preponderance of the evidence that the employees of the Brunswick Lanes were negligent in continuing to serve intoxicating beverages to defendant Arthur Conklin when a reasonably prudent person would have ceased serving beverages to defendant Arthur Conklin because he was in a visibly intoxicated state, "actually or apparently intoxicated"?
4. Was Brunswick Corporation negligent in failing to supervise and control its patrons so as to provide a reasonably safe place for plaintiff to bowl?
5. Was the negligence of Brunswick Corporation a proximate cause of plaintiff's injuries?
6. Was the plaintiff negligent?
7. Was the plaintiff's negligence a proximate cause of ...