On appeal from Superior court, Law Division, Morris County.
Petrella, Gaynor and Scalera. The opinion of the court was delivered by Gaynor, J.A.D.
Plaintiff appeals from a jury determination that the negligence of Rutgers, The State University was not the proximate cause of personal injuries suffered by plaintiff when he vaulted over a four-foot wall and fell approximately 30 feet onto concrete steps while a student patron at a football game at the Rutgers' stadium. It is contended a new trial was mandated by the failure of the trial judge to remove from jury consideration any contributory negligence of plaintiff based on his voluntary intoxication. He further claims the jury's determination defies the facts, the law and common sense and accordingly the trial judge erred in failing to order a new trial. Jury misconduct is also asserted as compelling a reversal and a retrial. We disagree with these contentions and affirm.
On October 18, 1980, plaintiff and a group of his fraternity brothers entered Rutgers Stadium for the purpose of watching an intercollegiate football game and also participating in an annual fraternity frolic known as "Rude Gazer." As a part of that frolic, fraternity members, in costume, would attempt during half-time to enter the running track surrounding the football field and run a quarter-mile race. The members of the group, including plaintiff, were prevented by the security personnel on three occasions from gaining access to the field and the running track.
During the course of the game and prior thereto, plaintiff consumed a quantity of "grain punch," a mixture of fruit
punch/Kool Aid and 180 proof grain alcohol. This beverage was brought into the stadium by the group in a five or ten gallon container. Although the university policy prohibited the consumption of alcoholic beverages during football games, which directive was enforced by the checking of packages and containers as patrons entered the gates and the escorting of visibly intoxicated people out of the stadium, the security personnel made no effort to ascertain the nature of the beverage which plaintiff's group had brought with them. Plaintiff became progressively intoxicated as he continued to drink the punch, even to the extent of falling asleep in the stands. At one point during an encounter with the security officers, plaintiff stumbled into one of the officers which prompted a direction to other members of the group to "get him up in the stands" and back to his seat. One of the ushers observed that plaintiff was drunk and should be taken home.
Being repulsed in their efforts to get onto the running track, plaintiff and two or three of his friends climbed over a wall and continued into a grassy bluff area. There, plaintiff tumbled, rolled and even laid down to sleep. The group then proceeded to the opposite side of the stadium and made another unsuccessful attempt to gain entrance to the track. Plaintiff then rushed back to the walkway at the top of the stands and, with the others in pursuit, darted along the walkway and vaulted over the wall at the far end of the walkway apparently without realizing there was a 30-foot drop to the concrete steps below. Plaintiff sustained severe and permanent injuries as a result of his fall.
At the conclusion of the evidence plaintiff's counsel sought a ruling that plaintiff's own negligence, if any, in voluntarily becoming intoxicated should not be considered by the jury. It was argued that by the adoption of its policies pertaining to alcoholic beverages in the stadium, Rutgers assertedly assumed the duty of protecting a person in plaintiff's condition against subjecting himself to injury and that this self-imposed duty
could not be eradicated by the very conduct it was intended to prevent. The trial judge was unpersuaded and permitted the jury to consider the comparative negligence of plaintiff. The usual negligence interrogatories were propounded for the jury to answer. The first two pertained to defendant's negligence and its causal relationship to the incident, while the third and fourth interrogatories concerned plaintiff's negligence and whether it was a proximate cause of his injuries. The fifth question sought an allocation of the negligence as between defendant and plaintiff and the sixth required an assessment of damages. The jury was properly instructed that the need to answer certain interrogatories was dependent upon the answers to preceding questions.
After the jury had deliberated several hours, it submitted the following question:
If the jury agrees that Tom Allen is more negligent than Rutgers in question number 5, must we ...