On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-13810-97.
Before Judges Conley, Lefelt and Lisa.*fn1
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2001
Plaintiff Cynthia Martin was drinking with some friends at the Sports Authority Bar in a Ramada Inn owned and operated by defendant Prime Hospitality Corporation. A guest of the Inn, defendant Reginald Harris, sexually assaulted Martin in his room. Martin sued Prime and Harris seeking compensation for her injuries. After Harris defaulted, an Essex County jury found in favor of Martin and against Prime, awarding Martin $300,000. Prime appeals, raising several contentions including one we find persuasive that the jury should have apportioned fault among Martin, Prime and Harris and not restricted its focus to whether only Prime was negligent. This appeal thus presents for resolution the proper interpretation of Blazovic v. Andrich, 124 N.J. 90 (1991), in which the Supreme Court held that the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8, requires fault to be apportioned between a contributorily negligent plaintiff, a negligent co-defendant bar/restaurant and several co-defendants whose alleged fault was based on intentional conduct. Id. at 92-93.
From the record of this seven-day trial, the basic essential facts and relevant procedural history that gave rise to this appeal are as follows. Martin, who was twenty-six years old, met her friends Kathryn Mudry and Pamela Rutherford Sorge at a Montclair bar. After socializing and drinking for a few hours, the three friends then traveled in separate cars to the Sports Authority bar in the Ramada Inn at Fairfield.
Shortly after arriving at the Sports bar, Martin began dancing with Mudry, when they were joined on the dance floor by Reginald Harris. Mudry left, leaving Martin and Harris dancing together. Harris had been staying at the Ramada for several months and normally used the same room. Harris told Martin, while they were dancing, that he had a room at the hotel. Martin interpreted Harris's comment as a come-on and became upset. She left the dance floor and returned to her friends.
Martin and her friends struck up a conversation with Dale Baker and Mike Merainer, other patrons seated nearby. While Sorge played pool with Baker, Martin danced with Merainer. Meanwhile, Harris approached Mudry and their discussion became so heated that Harris accused her of being a racist. Martin then demanded that Harris apologize to her friends. Shortly thereafter, Harris apologized to the three women and bought them a round of drinks.
Around 11:00 P.M. Martin and her friends decided to leave. Mudry and Sorge did. However, upon entering her car, Martin realized she "was just loaded," and in no condition to drive. Both Mudry and Sorge testified that Martin did not appear to be intoxicated. In fact, Sorge testified that she felt certain that Martin was not in any trouble and was capable of driving home. Merainer and Baker both testified, however, that they believed Martin to be intoxicated from the time they first observed her at the Sports bar.
Martin returned to the Inn and attempted to call her boyfriend from a payphone, but could not get through. She decided to go back to the bar and wait there until she sobered up. When Merainer and Baker came over, she explained to them that she could not reach her boyfriend. Martin declined Merainer's and Baker's offer to get a taxi because she did not want to leave her car. Harris then came over and indicated that Martin should get a taxi and that he would help.
Harris took Martin to his table. Harris suggested that she use the phone in his room where "it was very quiet," and where she "could relax." Though she hesitated at first, Harris persuaded her to go to his room to use his phone. Chris Strumolo, the doorman/bouncer at the Sports bar, testified that Martin and Harris walked past him "arm in arm" toward Harris' room.
About fifteen minutes later, Harris returned to the bar to purchase a pack of cigarettes and glass of wine for Martin. Merainer and Baker confronted Harris who told Merainer that he had no intention of taking advantage of Martin and that he was simply calling her a cab. During this period, while Harris was not in the room, Martin made two calls from Harris's room to the front desk asking for instructions on making an outside call.
Later, after Harris had returned to his room, Baker and Merainer remained suspicious and approached the night auditor, Nelson Avilla. They asked Avilla whether a cab had been called for Martin. Hearing that no cab had been called, Merainer and Baker became concerned and indicated to the night manager, Kim Graney, that Martin might be in danger. They asked her to call Harris's room to ensure that she was safe. Chris Strumolo, the doorman/bouncer, who had seen Harris and Martin walk out arm in arm was there "throughout the whole conversation." Sometime during this period, Harris had ordered an adult film for his room.
Graney, after calling her manager on the phone, telephoned Harris "to make sure that everything was ok." Graney testified that Harris told her that everything was fine, though she added that he "seemed to be in a hurry to get off the phone." While on the phone with Harris, Graney heard a "low moaning or crying," but could not tell the character of the sounds or whether they were coming from the television. In any event, Graney testified that she was not alarmed by her conversation with Harris, who she knew from his stay at the Inn.
Meanwhile in Harris's room, which was only three doors from the front desk, Martin had only fragmented memories of what transpired. She remembered Harris pushing her back on his bed, not letting her make the phone call, covering her mouth while penetrating her vaginally, attempting to sodomize her and forcing her to perform oral sex. She remembered running to the door at least twice but being unable to open it. She also remembered screaming, banging on the wall, and hysterically crying, though Graney testified that at the front desk no screaming or banging was heard coming from Harris's room.
Baker and Merainer persisted in their attempts to get Graney to investigate and asked her for Harris's room number so they could look into it on their own. Graney refused, citing hotel policy. She said she could not help any further and suggested that they call the police if they were still concerned. Finally, Baker or Merainer called the police who arrived shortly thereafter to find Martin completely naked lying on top of a white shirt and bra and hysterically crying. Martin testified that she was "repeating over and over, 'I'm so glad you found me. I thought he was going to kill me.'" Martin had a bruise on the top of her right shoulder and two red marks, one on each knee. The police had never before responded to the Ramada or Sports Authority for any type of prior rape or sexual assault incident. Before this incident, during the months that Harris stayed at the Ramada, he never gave either the bar or the Inn any indication that he might cause trouble. In fact, both the doorman/bouncer and Graney believed Harris to be friendly and helpful.
After being arrested and indicted, Harris spent fifteen months in jail awaiting trial on three counts of second-degree sexual assault and one count of third-degree criminal restraint. Harris subsequently plead guilty to fourth-degree sexual contact and ...