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Salemke v. Sarvetnick

June 27, 2002

LUPITA SALEMKE, ADMINISTRATRIX OF THE ESTATE OF GINGER TRUAN AND LUPITA SALEMKE, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
BRIAN SARVETNICK, DEFENDANT, AND NOW MANAGEMENT COMPANY, INC., T/A THE CLUBHOUSE, INC., AND STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L- 691-97.

Before Judges Stern, Lintner and Parker.

The opinion of the court was delivered by: Lintner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 29, 2002

Plaintiff, Lupita Salemke, individually and as Administratrix of the Estate of Ginger Truan, filed a wrongful death action arising out of a fatal automobile accident in which Truan was killed instantly while operating her motor vehicle. The accident occurred at the intersection of Route 22 East and Watchung Avenue in North Plainfield at approximately 1:26 a.m on January 13, 1995. Watchung Avenue in a northerly direction is controlled by a stop sign and forms a "T" intersection with Route 22 East, which is separated from its westbound lanes by a concrete barrier. Northbound traffic on Watchung Avenue cannot pass across Route 22 but must turn right onto Route 22 East. On the night of the accident, plaintiff's decedent approached the intersection, failed to stop at the stop sign, continued as if she was intending to cross Route 22, struck and bounced off the concrete barrier and was struck by another vehicle, operated by Brian Sarvetnick, who was traveling east on Route 22.

Plaintiff's complaint named Sarvetnick as a defendant, along with the State of New Jersey and Now Management Company, Inc., trading as The Clubhouse (The Clubhouse). *fn1 Plaintiff alleged that 1) Sarvetnick negligently operated his motor vehicle, 2) the State was liable for maintaining a dangerous condition at the intersection, and 3) The Clubhouse had negligently served alcoholic beverages to Truan while she was visibly intoxicated, prior to the accident. Summary judgment was granted dismissing plaintiff's complaint against The Clubhouse on June 27, 1997. On July 15, 1997, plaintiff filed a motion for reconsideration, at which time the motion judge withheld ruling and permitted plaintiff to apply again for reconsideration after additional discovery was completed. Thereafter, plaintiff retained Richard Saferstein, Ph.D., and moved for reconsideration seeking to vacate the summary judgment previously entered in favor of The Clubhouse based on Saferstein's report. On February 6, 1998, following oral argument on the motion, the judge denied plaintiff's motion for reconsideration. The matter then proceeded to trial against Sarvetnick and the State on October 17, 2000.

At the beginning of the trial, plaintiff's motion in limine to exclude evidence of the decedent's blood alcohol content as contained in a toxicology report prepared by the State Medical Examiner was denied. Sarvetnick settled with plaintiff during trial and the jury returned a verdict finding that even though the State maintained a dangerous condition, that condition was not a proximate cause of the accident. The trial judge entered judgment of no cause for action.

Plaintiff appeals the order for summary judgment dismissing her complaint against The Clubhouse and the judgment of no cause for action in favor of the State, contending:

POINT I. IT WAS ERROR TO ADMIT EVIDENCE OF PLAINTIFF'S PRE-ACCIDENT ALCOHOL CONSUMPTION.

POINT II. GRANTING SUMMARY JUDGMENT IN FAVOR OF THE CLUBHOUSE WAS IN ERROR.

We reject plaintiff's contentions and affirm.

We restate only those facts necessary for the disposition of this appeal. The following evidence was elicited from Tara Balka, a friend of the decedent who was the passenger in her vehicle at the time of the accident. On January 12, 1995, Truan picked up Balka and drove to The Clubhouse, a nightclub in Plainfield, arriving at 11:30 p.m. The two women, employees of The Clubhouse, were not working that evening but went there because they wanted to "go out." Neither of them had consumed any alcohol prior to arriving at The Clubhouse.

Upon arrival, the two women socialized separately "but ran into each other a few times." Balka observed Truan with a "beer in her hand," and stated that Truan "was drinking beer." However, she also stated that Truan did not appear to be intoxicated. "Last call" at the bar was at 12:45 a.m., and no alcoholic beverages were served after that time. The two women remained at The Clubhouse until the 1:00 a.m. closing time, helping their friends clean up. After spending approximately ten minutes talking with their friends in the parking lot, they left together with Truan driving and Balka in the front seat. Although Balka knew that Truan had been drinking, she was "not at all concerned about her ability to drive" and stated that Truan "did not appear to be intoxicated." However, on cross-examination, Balka acknowledged that she, herself, had been drinking that night ("three beers and a shot") and that as soon as she had one drink she did not believe she was capable of noticing whether someone else was intoxicated.

They proceeded northbound on Watchung Avenue heading toward the intersection of Route 22. At trial, Balka described the intersection, indicating that there were no streetlights or reflectors illuminating the concrete divider nor was there a one-way sign depicting the direction traffic was to proceed on the eastbound lanes of Route 22. On the other side of Route 22, Watchung Avenue continues North. An overpass crosses the highway slightly to the west of Watchung Avenue. Where the overpass rejoins Watchung ...


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