On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-1839-03 and L-4892-03.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Parrillo and Messano.
This matter arises from an automobile accident wherein John Keenan, while intoxicated, crashed into a car driven by Laurie Riley and occupied by her future husband, Gregory Riley. The Rileys both suffered injuries, hers resulting in permanent disability. In addition to seeking dram shop liability against two taverns, Naylor's Liquor & Bar (Naylor's) and Farrell's American Bistro (Farrell's), the Rileys, along with Laurie's son Cody (plaintiffs), brought an action against Keenan and Keenan's employer, Glenn Habina & Sons, Inc. (Habina), the latter on the theory that Keenan suffered sleep deprivation as a result of the hours Habina required him to work, which in turn was a cause of the accident. Prior to trial, Cody's loss of parental consortium claim was dismissed as were plaintiffs' claims for punitive damages against the two taverns. Following the exclusion of plaintiffs' fatigue expert's opinion as net, the action against Habina was dismissed by way of summary judgment, and a jury subsequently returned a verdict of over $3 million against the remaining defendants, apportioning liability 55% to Keenan and 22.5% to each tavern.
On appeal, plaintiffs argue error in the summary judgment dismissal of their claim against Habina, of their punitive damages claim against Farrell's, and of Cody's loss of parental consortium claim. In its cross-appeal, Farrell's contends the court erred in denying its motion for judgment notwithstanding the verdict because there was no evidence that Keenan was served alcohol at its establishment on the night in question, much less that he was visibly intoxicated at the time. Farrell's also seeks reversal or remittitur of the damages award as excessive, as does Keenan.
According to the proofs at trial, at 8:45 p.m. on August 31, 2001, Keenan, who was driving in the westbound lane of Route 40 in Pittsgrove Township, lost control of his automobile and crashed into the car driven by thirty-seven-year-old Laurie in the eastbound lane. Keenan apparently had fallen asleep and has no memory of the accident or how many beers he had prior to the accident. Toxicology tests revealed that he had a blood alcohol level of.178 at 10:10 p.m., one hour and twenty-five minutes after the accident. Keenan was charged with driving while intoxicated and pled guilty.
Cody, who was nine at the time, was not in the vehicle. Gregory injured his left hand and right knee, but was released from the hospital that night. Laurie was hospitalized for eleven days for injuries to her knee and pelvis. She has since undergone several surgeries on her knee and is in and out of physical therapy. She was unable to return to her sales job and qualified for Social Security disability (SSI) commencing summer 2003.
At the time of the accident, Keenan had been employed as a truck driver by Habina, a truck hauling contractor, since 1998, usually working six days a week and sometimes on Sundays. His typical work day driving a tri-axle truck, as recounted by Habina, would begin at 3:30 to 4:30 a.m., and end between 1:00 and 2:00 p.m., within the ten-hour per day maximum driving time mandated by federal regulation.*fn1 Thereafter, although not required, he would routinely do mechanical work on trucks at the site, sometimes until midnight for which he was paid overtime if he worked as a mechanic more than forty hours per week. According to Keenan, in late August 2001, he was working seven days at 120 to 130 hours per week, although for the week leading up to the accident, he did not work any mechanic hours, and was therefore not in violation of daily off-duty requirements mandated by federal regulation on the day of the accident.*fn2
On the day of the accident, Keenan arrived at Habina between 3:30 and 4:00 a.m., drove a dump truck, and returned to the site at about 1:00 p.m., according to the company's owner, Glenn Habina. Thereafter, Keenan hung out in the parking lot for awhile, but denied drinking any alcohol there, as the company had a "no-drinking" policy. At some point in the afternoon, Keenan went to Naylor's, which he had been frequenting for about a year before the accident, and where he would customarily consume twelve-ounce bottles of Coors Light.
Naylor's is less than a mile from Habina, located on Route 40 in Pittsgrove. Keenan arrived at the bar between 3:00 and 3:30 p.m., according to both a co-worker, Keith Wells, and the bar's owner, Wynne Naylor. By the time Wells left the establishment at 4:30 p.m., he saw Keenan drink at least two beers. Thereafter, Keenan consumed another two twelve-ounce beers between 4:30 and 5:00 p.m., but did not have anything more to drink before he left the tavern at 6:30 p.m., according to Wynne Naylor.
Keenan has no recollection of how much he had to drink at Naylor's that day or when he left. Nor could he recall if he then went to Farrell's, which was about a mile from his home. Around 8:15 that evening, however, his wife, Jeanette, spoke with her husband on his cell phone. Although not sounding intoxicated, Keenan nonetheless reported that he was at Brad's "trying to get laid." Farrell's was known as "Brad's Red Tavern" prior to its purchase in May 2001, and many locals still refer to the establishment as "Brad's." Apparently, Keenan would go to Farrell's "once in a blue moon" to either sit at the bar and have one or two twelve-ounce beers or purchase package goods.
Richard Saferstein, a forensic scientist, opined that Keenan became intoxicated (a blood alcohol level of.10) by 5:45 p.m. on the day of the accident at the earliest, and 6:10 p.m. at the latest, based on his assumption that Keenan began drinking between 1:00 and 2:00 p.m., and stopped at 8:00 p.m. According to Saferstein, there would be visual signs of intoxication at.10, although a frequent drinker would not exhibit such signs until reaching a blood alcohol level of.15. Saferstein also extrapolated Keenan's blood alcohol level at the time of the accident to be.16. In Saferstein's view, Keenan consumed thirteen twelve-ounce beers, and his alcohol intoxication was the major cause of the accident.
Plaintiffs contend that Habina is liable to them for the sleep deprivation suffered by Keenan due to its working hours, and that Keenan's reckless driving, even though outside the scope of his employment, was a foreseeable risk of such work fatigue. Factually, plaintiffs rely on the opinion of their fatigue expert, Merrill Mitler, who opined that Keenan's work conditions caused his sleep deprivation, which combined with his intoxication at the time, caused the automobile accident, and that the confluence of these two conditions worked "to more greatly impair his abilities to sustain attention and drive than could either sleep deprivation or ethanol alone."
Even assuming work-related fatigue to be a cause of an accident, for liability to attach to an employer, there must be a duty owed to a third party injured by conduct of an employee outside the scope of his or her employment and a breach of that duty. Of course, whether a duty exists is a question of law to be decided by the court. Jerkins v. Anderson, 191 N.J. 285, 294 (2007). In determining whether a duty exists, courts must weigh and balance several factors, including the foreseeability and severity of the risk of harm, the opportunity and ability to exercise care to prevent the harm, the comparative interests and relationships between or among the parties and, ultimately, fairness and public policy. J.S. v. R.T.H., 155 N.J. 330, 337, 339 (1998). Foreseeability of the risk of harm is the foundational element in the determination of whether a duty exists, and is based on the defendant's knowledge of the risk of injury. Id. at 337-38.
It needs to be emphasized at this point that the theory of recovery proposed by plaintiff here is not one of vicarious or imputed liability, but rather of primary negligence on the part of the employer. In other words, while the doctrine of respondent superior may work to extend recovery against an employer to third parties injured under circumstances showing a sufficient nexus to the employer -- employee relationship, i.e., where the employee's tortious acts are committed in the course or scope of employment, plaintiff in this instance seeks to impose direct liability on the employer for the negligence of an employee committed outside the workplace and not in the course ...