On appeal from Superior Court of New Jersey, Law Division, Union County, L-2653-00.
Before Judges Stern, Payne and
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Karl Kuehn was severely injured when attacked in the men's room of a tavern in the Township of Union known as the Pub Zone by three members of the Pagan motorcycle gang. Following trial, a $300,000 verdict in plaintiff's favor was entered against the Pub Zone. However, the trial judge granted judgment notwithstanding the verdict (JNOV) to it, finding the facts established that no foreseeable danger was posed by the Pagans and that the tavern owed no duty to plaintiff that was breached. Plaintiff has appealed from the JNOV. The Pub Zone has filed a cross-appeal, arguing in the event that the jury's verdict is reinstated that the court committed error in its decisions during trial to bar any claim of comparative negligence on plaintiff's part and to permit testimony by plaintiff's expert. If the JNOV is not sustained, it also seeks a new trial claiming the jury's award of damages to have been so unreasonably high as to shock the judicial conscience. We reverse the trial court's determination to grant a JNOV and deny the relief sought in the Pub Zone's cross appeal.
We view the evidence at trial in the light most favorable to the plaintiff. Dolson v. Anastasia, 55 N.J. 2, 5 (1969). Plaintiff was injured on May 30, 1998 while a patron at the Pub Zone. At the time, Maria Kerkoulas was the Pub Zone's co-owner, having purchased the business with Georgia Tspouras on December 31, 1992. Kerkoulas, who was the only witness offered on the Pub Zone's behalf, was tending the Pub Zone's upstairs bar when plaintiff was attacked. Prior to Kerkoulas's ownership of the bar, it had been taken over as a biker hangout, and frequent incidents had occurred that included destruction of property. During this period, Kerkoulas had served as a bartender. Upon purchasing the establishment, Kerkoulas sought the assistance of the Union police in ridding the bar of its biker clientele. According to Kerkoulas, the police showed her a pamphlet regarding biker gangs, including the Pagans, who were described in it as"a bunch of outlaws." Establishments were warned to be wary of the Pagans, because they were troublemakers and were known to assault people for no reason. In addition to reading the pamphlet, Kerkoulas had knowledge of the Pagans from her conversations at a nearby bar that the Pagans frequented. As a result of those conversations, she felt "negative" about them and knew they were "trouble."
Kerkoulas testified that the Union police advised her to put up a sign stating that persons wearing"colors" (a term meaning gang insignia) were not allowed in the premises. She did so and instructed her doormen to deny entry to persons fitting that description. When asked why she adopted these measures, Kerkoulas testified that if bikers wearing insignia were not present, no disturbances would occur, and people would not get beaten up. Kerkoulas stated that strict enforcement of her policy and calls to the police when insignia-wearing bikers gained entry had eliminated"a lot" of the trouble at the bar, and that the clientele had changed. During her ownership, Rhino, one of plaintiff's attackers whom Kerkoulas knew as a biker but not necessarily as a Pagan, had been present in the Pub Zone while not wearing insignia on one to five occasions without incident. According to plaintiff, approximately siX months prior to the attack on him, a group of Pagans wearing colors had been involved in another incident at the Pub Zone with a bar patron in the bar's men's room. Although plaintiff did not observe the attack, he saw the patron exiting the men's room with a red mark on his cheek.
On the night at issue, three bikers including Rhino and a man known as"Backdraft" had pushed past Petey, the doorman, and had entered the Pub Zone wearing their colors. Plaintiff knew Rhino and Backdraft as patrons of a bar called the Homestead that he also frequented. However, he did not know of their gang affiliation and had never seen them wearing colors. Plaintiff testified that he recognized Pagans as part of a"drifter, criminal element," he was"concerned" by their entry, and he stated to Petey that he didn't think their presence was a"great idea." However, after a discussion with plaintiff and Petey, Kerkoulas permitted the three to remain for one drink. It was Kerkoulas' position at trial that plaintiff had been the one to urge that the Pagans be admitted, and that she had relied on plaintiff's assessment in permitting them to remain. She testified that she would have called the police immediately if plaintiff had not vouched for the three bikers.
All agreed that the Pagans consumed one drink without incident and proceeded toward the stairs leading toward the downstairs bar and men's room and toward the exit. Kerkoulas assumed the three were leaving, but did not witness them doing so. In fact, they did not. Instead, they either entered the men's room with plaintiff or followed him there, and shortly thereafter, they viciously attacked him. Plaintiff has no recollection of the attack and no explanation of its motive, unless, he speculates, it was a reaction to plaintiff's attempt to bar them from entering the establishment.
Plaintiff sustained injuries in the attack including loss of consciousness, traumatic subarachnoid brain hemorrhage, a C-5,6 disc herniation with pressure on the spinal cord and radiculopathy, a right orbital fracture, maxillary fractures, and a basilar skull fracture manifesting as the presence of blood behind the tympanic membrane of the ear. He was hospitalized initially from May 30 to June 2, 1998. He underwent two reconstructive surgeries to his eye socket; one during his initial hospitalization and one in December 1998. An anterior cervical disc fusion has been recommended, but declined. Continuing symptoms remain, but are not disabling. In January 1999, plaintiff opened his own bar, where he occasionally entertains by playing the harmonica.
At the time of the attack, approximately 125 to 130 patrons were present in the bar, with approximately 80 patrons participating in classic disco night upstairs and the remainder at the downstairs bar, where a band was playing. The bar had one doorman, Petey, stationed at the front entrance, which was located at the opposite end of the front façade from the exit by which Kerkoulas assumed the Pagans were leaving. There was one bartender in the downstairs bar and two bartenders, including Kerkoulas, upstairs. No other security was present, no training in security techniques had been provided to bar personnel, and no background in security measures was required for employment.
Plaintiff, an avowed motorcycle enthusiast and maker of custom cycles, was a motorcycle owner and frequent participant in motorcycle rallies. He was not a member of any biker gang, and had no reputation for violence, being described by Kerkoulas as quiet and very friendly. There is no claim that plaintiff was intoxicated at the time of the attack or that he provoked it.
In granting JNOV in this case, the trial judge found no duty to protect plaintiff to exist under the circumstances presented. First, the court found that injury to plaintiff was not foreseeable. He framed plaintiff's position in the following terms:
It's argued here that because the assailants were bikers and because they were wearing colors that there was a foreseeability of an attack or an assault.
However, the court reasoned, it was foreseeable that an attack by bikers wearing colors would occur only when a rival gang was present, and none was at the bar on the night in question. The attack was apparently random; not gang-related. Moreover, the court found that the Pagans could have entered the bar without challenge and committed their attack simply by removing their jackets. The court continued:
The element of foreseeability simply does not exist in this case except if one is to conclude that because of the appearance of the bikers or because of their membership in and of itself that that alone imposed a duty... on the tavern operators to protect the patrons under all circumstances.
The foreseeability would therefore be eliminated from the equation if that were so, and there would be a strict bar against any person entering because they were a member of a particular association or it could be taken further because they looked a particular way because he's bald headed and wears an earring or he had something in his nose or has an appearance that is menacing and threatening. One would be inclined to protect [against] all of these where if nothing else but give any indication at all that the person poses danger or risk to any other person.*fn1
The court found further that, unless the bar were under a duty to monitor the conduct of the Pagans at all times while they were on the premises, there was nothing that ...