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Cassanello v. Luddy

June 23, 1997

ALBERT CASSANELLO, PLAINTIFF-APPELLANT,
v.
JOHN LUDDY, DOUGLAS WEITE, TOP SHOTS, INC., TRADING AS HOT SHOTS, JORGE GAMARRA AND LUIS MENDEZ, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County.

Approved for Publication June 24, 1997.

Before Judges Stern and Humphreys. The opinion of the court was delivered by Humphreys, J.A.D.

The opinion of the court was delivered by: Humphreys

The opinion of the court was delivered by

HUMPHREYS, J.A.D.

Plaintiff was a patron of the defendant Hot Shots tavern ("tavern") in North Bergen, New Jersey. One evening he was attacked by two other patrons after he had left the tavern. His skull was fractured with an axe hammer. Plaintiff's suit against the tavern and the tavern's security person was dismissed on defendants' motion at the end of plaintiff's case. The Judge held that the attack was not reasonably foreseeable and therefore that the tavern did not owe the plaintiff a duty of care. We reverse.

I

A motion for dismissal at the close of plaintiff's case must be denied:

if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ. . . . The judicial function here is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion.

[ Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969) (citations omitted).]

Viewed from that perspective, the pertinent evidence can be summarized as follows. Plaintiff entered the tavern near midnight on Saturday, December 28, 1991. The defendant Luddy was the only security person on duty, although the tavern usually had two security persons on weekend evenings. Plaintiff testified that two patrons in the tavern, later identified as the defendants Gamarra and Mendez were "very loud," "very incoherent" and were making a scene in the tavern. They appeared to be intoxicated; nevertheless the bartender continued to serve each of them two bottles of beer and two shots of liquor. The two men continued "their scene making" and were "stumbling" and "incoherent."

They approached plaintiff and struck up a conversation with him. They were "overly excited" and "jumping all over the place." They started to "hug" plaintiff. The two men ordered more drinks for all three of them. Plaintiff refused the drinks they ordered. The two men became annoyed and began to push and shove plaintiff. Luddy then intervened to separate them.

The two men went to the rear of the tavern to play pool. Thereafter, plaintiff saw the bartender serve the two men two more bottles of beer and two more shots of liquor.

A short time later, plaintiff left the premises. He walked across the tavern's parking lot and got into his van which was parked on the street adjacent to the parking lot. He heard loud noises coming from outside the van. When he looked out, he saw the two men "banging, kicking, screaming and going around the van." ...


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