On appeal from Superior Court, Law Division, Union County (see related opinion reported at 237 N.J. Super. 87).
Petrella, Conley and Villanueva. The opinion of the court was delivered by Petrella, P.J.A.D.
Plaintiff Keith Lombardo appeals from a judgment entered after a jury trial that fixed his damages at $200,000, and found him 15% negligent, Adina Green 5% negligent, and defendant Edward M. Hoag 80% negligent. The trial Judge molded the verdict and entered judgment for Lombardo in the amount of $160,000, plus prejudgment interest of $56,834. In addition to finding both Lombardo and Green*fn1 negligent, the jury found no negligence on the part of defendant Ronald Niemeyer.
The allegations of Lombardo's complaint against Niemeyer were essentially of negligent entrustment by returning to Hoag, the owner of the vehicle involved herein, the keys and control of his pickup truck. On pretrial motion by Niemeyer and Lombardo's cross-motion for summary judgment, the Law Division granted
Lombardo's cross-motion and concluded that there was a legal and moral basis to establish a "reasonable conduct" standard. Although that issue is not directly before us (leave to appeal the interlocutory order was denied), we elicited Discussion of it at oral argument because the implications of that ruling bear on the issues presented to the jury. This is so particularly because the trial Judge*fn2 expanded on the "reasonable conduct" standard and imposed it on all passengers in the vehicle, including Lombardo.
At the time of the 1986 accident, Lombardo was eighteen years of age, a resident of Kenilworth, enjoyed sports and worked part-time at U.P.S. He attended Union County College and intended to pursue a career in law enforcement.
At about 9:00 p.m. on May 31, 1986, Lombardo met Hoag, Niemeyer, and Anthony Rehm, as well as other individuals, at Hoag's house for a party. Between 9:00 p.m. and 11:00 p.m., Lombardo consumed approximately four beers and observed Hoag drinking "approximately six to eight beers."
The group decided around 11:00 p.m.*fn3 to drive down to the jetty at the beach in Point Pleasant, where they intended to drink and socialize. Niemeyer drove*fn4 the group of friends to Point Pleasant in Hoag's Isuzu pickup truck after picking up Adina Green (Hoag's then-girlfriend) in Kenilworth. Lombardo characterized Hoag's appearance upon leaving his house as marked by glazed eyes, boisterous behavior, and disheveled clothing.
During the trip south on the Garden State Parkway, Lombardo, who was sitting in the passenger seat, observed Hoag and the others drinking beer and throwing bottles from the truck bed.
Rehm testified that Hoag drank approximately three beers in the course of the ride. Hoag, however, did not recall drinking during the trip.
Between 12:00 and 12:30 a.m., the group arrived at Point Pleasant. Police officers there stopped the truck because Hoag, Green, and Rehm were riding in the pickup's bed. The officers emptied the bottles of beer that they discovered and told the group that they were not permitted to ride in the truck bed.*fn5 After the police left, Niemeyer drove Hoag and Green to purchase more beer, leaving Lombardo and Rehm behind.
At approximately 1:00 a.m., Lombardo and Rehm walked to the jetty and rejoined Hoag, Niemeyer, and Green, who had a case of beer and were already there. The group drank and socialized with other persons. Niemeyer, Rehm, and Lombardo then drove to a convenience store to purchase something to eat and returned to the jetty area about a half hour later.
Lombardo said that he saw Hoag drink about three more beers. According to Lombardo, Niemeyer did not appear impaired, but Hoag appeared "very intoxicated," as his eyes were glazed and bloodshot and he was loud and boisterous. Based on his observations of Hoag, Lombardo believed that Hoag was "unfit to drive." Lombardo, however, did not express this belief to anyone else: "As far as I know, I'm the only one who had that opinion . . . ." Rehm testified that he believed Hoag was "slightly intoxicated." Niemeyer, who estimated that he drank six to eight beers that evening, did not know for certain how much beer Hoag may have had at the beach, but said it might have been one or two beers. Hoag admitted having five or six beers while on the jetty, and a total of about ten beers over the course of that night.
At about 2:30 a.m., the group decided to return to the convenience store before driving north on the parkway. Niemeyer drove while Hoag and his girlfriend Green rode in the front.
Lombardo and Rehm sat in the pickup bed. Hoag testified that he allowed Niemeyer to drive because he "didn't feel like driving," and not because he thought he was intoxicated -- although not sure, Hoag did not believe he was drunk. No one told him that he was unfit to drive.
According to Niemeyer's deposition, which was read at trial, he drove because he did not trust Hoag's driving as he was very careless and drove "like an animal."*fn6 Niemeyer further testified that he drove because Hoag was often a reckless and careless driver, and because Niemeyer always enjoyed driving. Niemeyer described Hoag as "slightly buzzed," meaning that "he was feeling a little bit happy," but not intoxicated. Hoag did not do anything to lead Niemeyer to conclude that he (Hoag) was under the influence of alcohol. In fact, Niemeyer stated at trial that he felt Hoag was "fine," only a little tired, and fit to drive. Niemeyer did not think that Hoag was intoxicated on the way back from Point Pleasant. He had seen Hoag drink on previous occasions and felt that his friend was capable of driving on the night of the accident.
Rehm only remembered Hoag's eyes being bloodshot. He explained that he would not have thought that Hoag was unfit to drive if he had seen Hoag for the first time that evening just as Hoag was about to take over the wheel. Green testified that Hoag did nothing that would lead her to believe that he was intoxicated.
Because Niemeyer's house was the closest to the parkway, he drove himself home first. Hoag would not have let Niemeyer keep his new truck overnight. Upon arriving at his residence in Garwood, Niemeyer exited the truck and Hoag, the owner of the truck, "took over the drive home." Although Green claimed that Hoag simply slid over to the driver's seat, Rehm, who was sitting up in the truck bed, remembered Hoag getting out of the vehicle and walking around to the driver's side. Hoag testified that they
all said goodnight to Niemeyer, and that Niemeyer said goodnight and that he would talk to them the next day. Rehm heard words spoken, but could not recall what was said. According to Hoag, Lombardo asked if he could drive the new truck, but Hoag refused to let him.
At trial, Niemeyer testified that he believed that Hoag was fit to drive, despite being "slightly buzzed"; he testified that out of common courtesy he asked Hoag if he was all right to drive to make sure that he was not too tired because it was late.*fn7 Hoag said that he was all right.
Lombardo testified that he was asleep in the back of the truck during the trip back, with his head pointing towards the cab, and woke up only at Niemeyer's house when he heard a car door slam. Lombardo said that he did not hear any conversation and never asked to take over the driving because it happened quickly and also because he did not have his driver's license on him since he lost his wallet. Rehm also testified that he remained in the truck bed upon arrival at Niemeyer's house.
Some three to five minutes later, in Cranford, and approximately one-quarter of a mile from Niemeyer's house, the accident occurred, with Hoag driving. Lombardo recalls an abrupt right turn accompanied by screeching tires, and then a sudden and forceful impact. Hoag drove the pickup truck into a parked car, pushing that car over the curb and into another vehicle. Rehm described the impact as "pretty heavy." Lombardo's head hit the back of the pickup's cab, bending his neck to the left. He experienced pain in his neck, a numb sensation in the rest of his body, and was unable to move.
A police officer who responded to the accident scene recalled that Hoag was bleeding from the head and knee, was very excited, 0 jumping up and down, and calling for an ambulance. According to the officer, Hoag's eyes were glassy and bloodshot and his breath
smelled of alcohol. These observations led the officer to conclude that Hoag was intoxicated.*fn8
Hoag gave a statement to the officer that the accident happened due to the fact that Green had just reached over and took a cigarette from his mouth and shortly thereafter he reached towards her to take it back and took his eyes off the road. At trial, however, Green denied taking a cigarette from Hoag, and said that she was asleep when the accident ...