On appeal from the Superior Court, Law Division, Middlesex County.
Gaulkin, Muir, Jr., and Landau. The opinion of the court was delivered by Muir, Jr., J.A.D.
In this personal injury action, the trial court denied the request of J.J.A.M.M., Inc., doing business as Club 35 (Club 35), to instruct the jury to compare the negligence of the club, the negligence of the plaintiff, and the intentional conduct of an unknown defendant, John Doe, for the purposes of apportioning liability under the Comparative Negligence Act, N.J.S.A. 2A:15-5.1, et seq. (Act). The jury found Club 35 liable for the failure to protect the plaintiff, a patron of the club, from an assault by the unknown defendant who was also a patron of the club. It awarded plaintiff $40,000 in compensatory damages. Club 35 appeals asserting, among other things, the trial court erred in denying its request. We conclude the jury should not have been instructed to consider the intentional conduct of the unnamed-unknown defendant for the purposes of comparing fault under the Act. We also conclude the record discloses no basis for requiring the jury to consider plaintiff's conduct in its fault allocation. Accordingly, we affirm.
Club 35 provides music, dancing, and a soda bar for persons 18 to 21 years of age on the second floor of a building that has an adult bar on the first floor. The dancing area is approximately 40 feet by 30 feet with a stage on one side. The club has overhead lighting, which includes a rarely used strobe (flashing) light. The switch to the strobe light is in a room with a locked door. Only club employees have keys to the door.
The club employs personnel to maintain order and "provide safety to the patrons." The personnel are essentially young, muscular men dressed in matching outfits that include jackets identifying them as Club 35 staff. The club operator testified these young men (bouncers) are present to intervene if any problems arise. Two are located on the stage and two on opposite sides of the dance floor. These four bouncers sit on bar stools near the dance floor. They are placed, according to
the operator, so "they're visible to watch if anybody's doing anything." The operator testified all the bouncers are specifically responsible for watching the dance floor to stop "fooling around[,] . . . unordinary type dancing or kicking, waving arms around or whatever, what might be damage [sic] to the customer . . . ." All bouncers have the responsibility to walk back and forth across the dance floor to assure crowd control.
On the evening of January 9, 1988, plaintiff, his brother, and three friends went to Club 35.*fn1 After being approved for admission by the underage facility manager, defendant Melvin Meszaros, plaintiff, and his companions paid their admission and began dancing. The dance floor was very crowded -- "packed elbow to elbow."
After dancing for about twenty minutes, plaintiff and his companions went to the soda bar area to cool off. While there, another male patron walked by a female patron and pinched her. The female, who at the time was talking to one of the bouncers, turned and accused plaintiff. Plaintiff denied he had pinched her. Later, the female again made the accusation, and plaintiff responded by saying he was sorry but he had not done it. The same bouncer then "gave [plaintiff] a dirty look" and suggested plaintiff and his friends leave. Plaintiff did not interpret this to mean leave the club but just to leave the vicinity of the female. Plaintiff and his companions returned to their dancing.
A few minutes later, plaintiff sustained the injury that gave rise to the lawsuit. Plaintiff's companions testified that four young men, two coming from the stage and two others from sides of the dance floor, met next to the stage. None of the four wore the dress of the bouncers. The four then began to cross the dance floor. At the same time the strobe light was
turned on making it hard to see. The four proceeded across the floor toward plaintiff with the dancers separating as the men pushed their way through. One of plaintiff's companions testified he was pushed aside. The men left an open path in the dance floor crowd. As the four reached the plaintiff, who had his back to them, one said, "Why'd you pinch my girl's ass?" As plaintiff turned, the speaker punched plaintiff in the face. Plaintiff dropped to the floor bleeding profusely from the nose. Although the bouncers on the stage had a clear view of the floor and the four men crossing it, none interceded before or after the assault and none offered any assistance.
With assistance of his companions, plaintiff went to a bathroom on the first floor of the club. The injury made plaintiff almost unrecognizable. Plaintiff's nose was pushed to the right side of his face. Blood covered plaintiff and areas around him.
Shortly after plaintiff arrived in the bathroom, Melvin Meszaros appeared with three bouncers. Plaintiff's companions asked that a rescue squad and the police be called. They also asked for a towel. Instead of offering assistance, Meszaros took plaintiff by the arm and ushered him out of the building. At the ...