On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. BER-L-785-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 18, 2007
Before Judges Winkelstein and Yannotti.
Plaintiffs Ann McGuire and Vincent McGuire appeal from a final judgment entered on December 4, 2006 by Judge Mark M. Russello, in favor of defendant Savini's Restaurant (Savini's) following a trial before a jury. We affirm.
Plaintiffs' claims arise from an incident that occurred on November 25, 2003. On that date, plaintiffs attended a birthday party at Savini's. Plaintiffs drove to the restaurant, arrived there at 7:20 p.m., and turned their automobile over to the valet for parking. Plaintiffs entered and went to the upstairs level of the restaurant where the birthday party was being held. About thirty people were at the party. Mrs. McGuire testified that another party was in progress on the upstairs level of the restaurant and approximately thirty people were at that party. Mrs. McGuire also observed "quite a number of people eating dinner" on the first floor of the restaurant.
Plaintiffs left the party between 9:20 and 9:30 p.m. According to Mrs. McGuire, other persons who attended their party left at the same time. Mrs. McGuire said that attendees at the other party on the upstairs level of the restaurant appeared to be leaving at approximately the same time. Plaintiffs exited the restaurant, descended the steps, and waited at the bottom of the stairs. Photos introduced into evidence show that there is a single door at the exit. The door opens out to a landing, and there are three steps from the landing to the driveway pavement. An awning covers the landing and extends out from the building to the far side of the driveway.
Mrs. McGuire said that she and Mr. McGuire did not wait on the steps because it was "very crowded." Mrs. McGuire testified that there were no signs indicating where patrons were to wait for their automobiles. The McGuires had been waiting a few minutes when Mrs. McGuire turned to her left and saw a car approaching. Mrs. McGuire said that the car "kept coming and coming" and "wouldn't stop." Mrs. McGuire stepped back, made contact with the bottom step, and fell to the ground. She sustained a fractured hip.
On cross-examination, Mrs. McGuire stated that when she exited the restaurant, she came down the middle of the steps. She did not have to push or elbow anyone out of the way in order to descend the steps. Mrs. McGuire asserted that she was standing a few inches from the steps and she was the only person standing on the driveway. According to Mrs. McGuire, there was no one directly behind her on the steps. She maintained, however, that there was no room for her to stand on the steps.
Mrs. McGuire added that the approaching car was "very slow, but very threatening." Mrs. McGuire also said that the car was not "terribly close" to the curb. She testified as follows:
Q: So the car wasn't terribly close to the curb. It was two feet away when you saw it, but it took -- but it was going five miles per hour, and it took five seconds to go passed you, and there was no one standing on the step right behind. And you were the only . . . person who was standing on the pavement, waiting for your car, while everyone else was on the stairs. Does that pretty much fairly summarize everything?
Mr. McGuire stated that he and Mrs. McGuire left the party about 9:15 p.m. He said that persons were leaving the other party on the second floor at the same time. Plaintiffs descended the staircase to the first floor, exited the restaurant, and went down the steps to get their car. Mr. McGuire handed his ticket to the valet and the McGuires waited for their car. Mr. McGuire said that other patrons were standing on the driveway waiting for their vehicles. He estimated that twenty person were waiting in the area at the time. Some were waiting on the stairs.
Mr. McGuire asserted that no one from the restaurant told them to wait inside for their car. There were no signs directing the patrons where to wait for their cars. Mr. McGuire said he was looking to the right and saw two or three cars being delivered to patrons. A black automobile approached from the left. Mr. McGuire asserted that he "was very surprised to see a car coming from that direction." The car came "very, very ...