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Cellucci v. Bronstein

Decided: December 6, 1994.


On appeal from the Superior Court, Law Division, Morris County.

Before Judges Muir, Jr., D'Annunzio, and Eichen.


The opinion of the court was delivered by


This appeal stems from an order granting defendants' motion for involuntary dismissal of plaintiffs' legal malpractice complaint at the close of all evidence. The underlying theory of plaintiffs' complaint was that defendant Ronald Bronstein not only negligently filed a workers' compensation petition rather than a negligence action against Bud's Bar & Liquor, Inc., thereby diminishing the scope of recoverable damages, but also negligently advised plaintiffs to settle the compensation petition resulting in even greater minimizing of recoverable damages. On appeal, plaintiffs essentially argue their proofs, considered in the context of Dolson

v. Anastasia, 55 N.J. 2, 5-6, 258 A.2d 706 (1969), require reversal of the order. We affirm.

The appeal has two central facets. One focuses on the exclusivity of the Workers' Compensation Act as redress for a claim by an employee and whether plaintiff Carlo Cellucci, Jr., was an employee who sustained his injuries in an accident arising out of and in the course of employment. The other focuses on whether, when viewed in the context of Dolson's dictates, plaintiffs, through their expert, presented a jury issue on whether Bronstein negligently handled the compensation petition settlement.


We begin by noting that while under Dolson we must accept as true all evidence that supports plaintiffs' position, there is no dispute as to the facts.

Plaintiff Carlo Cellucci, Jr. (Carlo) is the son of Carlo Cellucci, Sr. (Mr. Cellucci) and his wife, Marian Cellucci. The senior Celluccis at times pertinent owned all the stock in Bud's Bar & Liquor, Inc., which operated a bar and package liquor store near Branchville, New Jersey. The senior Celluccis acquired the business around 1976. They also own, in their own names, a home at Lake Owassa, a lake community in Sussex County not far from the bar-store location.

When the bar was first purchased by his parents, Carlo, along with his mother, operated the bar full-time for approximately six months until his father took over operation in 1977. Thereafter, Carlo continued to work at the bar on a part-time basis until the time of the accident. During that time Carlo would either stop at the bar or his father would contact him to set hours, if any, to be worked the coming week. For several years prior to the accident, Carlo also operated a landscaping business.

On August 22, 1982, as it had for the prior five years, Bud's Bar hosted for its customers and friends a picnic at the Celluccis' Lake Owassa home. Also, as it had done in the prior five years, Bud's

Bar hired Carlo to assist at the picnic. In 1982, prior to the picnic, Carlo had worked at the bar-store between 100 and 150 hours. His responsibilities at the bar-store included bartending, selecting beer for sale, selling package goods, and stocking shelves. Carlo acknowledged his employment was "regular-irregular" and on occasion while bartending he would drink a beer with a customer.

Mr. Cellucci and Carlo provided the information on the scope of Carlo's work at the picnic. Mr. Cellucci, in a statement given to Bronstein, stated Carlo was employed part-time by Bud's Bar at the time of the accident. As reflected in various proceedings and this proceeding,*fn1 Mr. Cellucci said Bud's Bar hired Carlo at $4 per hour. Mr. Cellucci directed Carlo to bring tables, chairs, beer, whiskey, and soda to the lake; to set up the tables, chairs, beer (at least two kegs), whiskey, other alcoholic beverages, and food; and to act as a host to all the guests, which included directing the guests to the food and drink, but later socializing with the guests, including participating in volleyball, horseshoes, and swimming. During a deposition, Mr. Cellucci answered "Yes" to the question, "Did you consider the fact that he was out swimming in the lake, did you consider that part of the things that you hired him for?" Then in response to a question, "You hired him to swim? Mr. Cellucci answered, "If you want to put it that way, yes. . . . And to mingle with the guests. If that meant swimming or playing horseshoes with a couple of his cronies, fine." Carlo testified that he was responsible for making sure all food and drink was set out and that initially he would serve guests their first drink and show them how to help themselves. Later, plaintiffs' liability expert admitted it was "true" that Carlo "was employed, was in the

course of his employment and was allowed to go swimming as part of his employment." He conceded there was no dispute as to those facts. The proofs also indicated Carlo was free to consume alcoholic beverages if he chose to do so.

Carlo testified to his consumption of alcoholic beverages that August day. He initiated his drinking around 2 p.m. He drank 15 to 20 seven- to eight-ounce containers of beer--the equivalent of a little more than one-half case of twelve-ounce cans of beer. Later in the day, between approximately 4:30 and 6:45 p.m., Carlo also consumed 4 one-ounce shots of "Schnapps."

About fifteen minutes after he drank the last "Schnapps," Carlo went out to a dock fronting on his parents' property and dove into the lake. Carlo described the catastrophic dive as "shallow" followed by "like instant loss of power." Carlo later acknowledged he had successfully accomplished a dive at the same place just two weeks earlier, a dive he admitted he had made hundreds of times when sober. He also acknowledged he was very familiar with the lake. He knew the water was only three and one-half to four feet deep and knew the lake contained rocks "as big as [his] head." Moreover, he was a Red Cross trained senior lifeguard who knew not only that diving into shallow water could be dangerous but that it "makes sense" that consumption of alcohol before swimming could be hazardous.

The local rescue squad took Carlo to the hospital. A blood alcohol test rendered a .322 reading. Subsequent examination disclosed a fractured neck that caused quadriparesis (total paralysis of both legs and extensive paralysis in both arms).

Carlo and his wife and his parents first met with Bronstein September 1, 1982, during Carlo's hospitalization. Carlo testified Bronstein was recommended to him as a "Workman's Comp lawyer" by the bar's insurance agent.

Plaintiffs called Bronstein as a witness for their malpractice claim. Bronstein testified to the events and reasons for filing the compensation petition. All present at the hospital represented

that Carlo was a part-time employee of the bar and that Carlo was permitted to swim as part of his work at the picnic. After listening to the Cellucci family, which did not disclose Carlo's alcohol consumption that day, Bronstein concluded, "we [have] a very, very good Workers' Compensation case." He was satisfied the accident arose out of and occurred during plaintiff's employment by Bud's Bar. At the time Bronstein also was unaware of the .322 blood alcohol reading.

Recognizing the serious need to get mounting medical bills paid, Bronstein immediately filed a claim petition. He did it promptly "to obtain temporary disability and medical treatment in the form of getting the bills paid."

A month after the first meeting with plaintiff, Bronstein learned of the hospital record disclosing the .322 blood alcohol reading. Later in a deposition for use in compensation court, Carlo admitted to the heavy drinking. Confronted with Carlo's alcohol consumption, the .322 reading, and now aware that (1) Carlo had made the same dive hundreds of times without sustaining injury, (2) Carlo knew the lake was 3 1/2 to 4 feet deep with rocks the size of his head on the bottom, and (3) Carlo had Red Cross senior lifesaving training, Bronstein saw the success of the compensation claim made seriously questionable under the compensation law and this court's ruling in Anslinger v. Wallace, 124 N.J. Super. 184, 305 A.2d 797 (App. Div.), certif. denied, 63 N.J. 552 (1973).

N.J.S.A. 34:15-7 excludes otherwise compensable injuries when intoxication is the natural and proximate cause of the injuries for which coverage is sought. See Kulinka v. Flockhart Foundry Co., 9 N.J. Super. 495, 75 A.2d 557 (Cty. Ct. 1950), aff'd sub nom., Bujalski v. Flockhart Foundry Co., (App. Div. 1951), certif. denied, 8 N.J. 505 (1952). In Anslinger we held the bar applied because the employee's voluntary intoxication, demonstrated by, among other things, a .312 blood alcohol reading, was the sole cause of an automobile accident that led to the employee's death. See Anslinger v. Wallace,

supra, 124 N.J. Super. at 186-87; see also ...

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