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Popow v. Wink Associates

Decided: December 27, 1993.

DANIEL POPOW, PLAINTIFF-RESPONDENT,
v.
WINK ASSOCIATES, T/A THE WAITING ROOM, DEFENDANT-APPELLANT, AND JAMIE HEATH, DEFENDANT



On appeal from Superior Court, Law Division, Union County.

Petrella, Conley and Villanueva, JJ. The opinion of the court was delivered by Petrella, P.J.A.D.

Petrella

[269 NJSuper Page 520] This is an appeal by defendant Wink Associates, trading as The

Waiting Room, a tavern*fn1 in Rahway, New Jersey. More precisely, it is an appeal in which the tavern's general liability insurer seeks in large part to hold the tavern additionally liable on a ground that the jury found it not culpable, i.e., serving intoxicating liquor to plaintiff while he was visibly intoxicated. Viewed thusly it is partly an appeal by the tavern against itself. The purpose of the tavern's liquor law liability aspect of the appeal, which goes so far as to ask for a directed verdict finding itself liable on that point, is to draw in the tavern's liquor liability carrier with the aim of partially shifting and sharing responsibility for the molded damage award to plaintiff Daniel Popow of $50,000. To that extent the appeal involves a dispute between the tavern's two insurers, one of whom seeks to spread the risk.

Thus, we have the anomalous situation in this appeal of the tavern appearing, and being represented, as both an appellant and respondent, and two different insurance companies taking conflicting positions with respect to the viability of that part of the verdict that found the tavern not responsible for what may be called a liquor law connected tort. No party has challenged the damage award. Moreover, it was represented to us at oral argument by the attorney for the tavern provided by the liability insurance carrier, that it does not seek a new trial on the liquor law liability issue or on damages, but rather seeks a determination that as a matter of law a verdict should have been entered against the tavern (the insured client) on the liquor law liability count.*fn2

The tavern also argues as a separate aspect of its appeal that there was an insufficient basis for a verdict of negligent supervision. This was the basis on which the tavern was found negligent.

Wink Associates' motion for a judgment notwithstanding the verdict, and in the alternative for a new trial on liability only, was denied.

Daniel Popow asserted three causes of action against The Waiting Room: (1) liquor law liability in that the tavern's agent (the bartender) served Heath alcohol while Heath was visibly intoxicated; (2) liquor law liability in that the bartender served Popow alcohol while Popow was visibly intoxicated; and (3) an allegation that the tavern had inadequate security to protect its patrons.

I

The facts may be briefly stated. The Waiting Room is a neighborhood tavern in Rahway, New Jersey. On the evening of October 30, 1987, the bartender on duty had then been employed at The Waiting Room for about four years.

At the time of this incident Popow was an admitted alcoholic. He had little memory of the night of the incident, presumably due to the injury received that night.*fn3 Popow contended that when he arrived at the Waiting Room he was sober. Once there, he had a conversation with a woman he knew. Although he does not remember ordering drinks that night at the tavern, he does remember Heath telling him to "step outside" after his conversation with the woman. Heath testified it was Popow who asked him to step outside, and Heath told him: "to leave me alone, to go away." Popow admitted that in his answers to interrogatories and depositions he said he was sober throughout the incident and that Heath was drunk. That theory of liability was initially pled against the tavern in the original complaint.

Heath denied being intoxicated that evening. He testified that he arrived at the tavern around 9:00 p.m. While he waited for his

girlfriend he drank a couple of beers and talked to friends. Heath said that Popow, whom he knew, looked a "little buzzed" and made some rude gestures behind a girl near the bar. According to Heath, he told Popow to stop and Popow responded with an obscenity. The two exchanged unpleasant words and then went to the side door which Heath opened for Popow who left. At this point Heath and the bartender made eye contact and each shrugged their shoulders. Heath remained in the bar about fifteen minutes more until he observed his girlfriend arrive in her car at approximately 10:45 p.m. and went out to meet her. Popow was still outside and followed Heath to the car. Heath testified Popow took his shirt off and provoked a fight. Although Heath tried to walk away, Popow swung at him. Heath said he blocked the punch and hit Popow once in self-defense.

The bartender first learned of the fight when Heath re-entered the tavern and asked for a glass of water. The bartender asked what happened and if Popow was all right. Heath said: "Yeah, he's fine." A couple of days later, on November 1, 1987, the bartender learned from another patron that Popow was hospitalized with severe head injuries as a result of the incident.*fn4

Heath testified that he believed Popow was intoxicated due to the way he was acting, particularly when Popow provoked a fight in the parking lot since this type of behavior was out of character for him.

Other than stating that Popow looked a "little buzzed" Heath could not point to any specific indicia of visible intoxication exhibited by Popow in the tavern. The female patron who spoke to Popow also knew him before this incident. She testified she thought he was drunk because he was "louder than normal" and acting obnoxious. Another patron who knew Popow since high school testified that he was "pretty much drunk" because he saw him "staggering," but could not say if he saw Popow drinking in the tavern. This patron did see the altercation in the parking lot.

The bartender was the only employee on duty that night.*fn5 He knew Popow and Heath prior to this incident and had never seen any problems between them. The bartender testified that he was aware that one's speech, gait, and general behavior were means of telling whether someone was intoxicated; however, he said Popow did not appear intoxicated when he entered the tavern, and he observed nothing that would cause him to anticipate a problem. He denied serving Popow alcohol while Popow was intoxicated, let alone visibly intoxicated:

Q. But, the night of October 30, 1987 Danny was not intoxicated in your judgment?

A. I wouldn't say he was intoxicated. No. He wasn't intoxicated when he came in, and he wasn't there that length of time. It would take -- Danny wasn't a fast drinker, but it would take a good few hours for Danny to get drunk.

Prior to the incident there were about thirty people in the tavern, either at the bar, the tables, or standing around. Although the bartender observed Popow and Heath talking to each other, he said he noticed no argument or anything unusual. He saw Heath open the door for Popow, who left while Heath remained.

Both the bartender and the owner of the tavern, Chris Wenson, testified as to the tavern's policy concerning serving alcohol to persons who appeared intoxicated. Each testified that the tavern's policy, as well as their own, is to refuse service to such persons and to provide them a ride home if necessary.

The jury answered special interrogatories, including the following:

1. Was plaintiff Popow intoxicated while a patron in The Waiting Room on ...


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