On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-4645-06 and L-5125-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Ashrafi.
Defendant, Remvac Inc., trading as Moore's Bar and Liquors (Moore's), appeals from a jury verdict of $650,000 in favor of plaintiff Craig Staffa, who drank at defendant's bar and was then severely injured in a motor vehicle accident. Moore's asserts that plaintiff's closing argument contained several prejudicial comments and its motion for a new trial should have been granted for that and other reasons. We affirm the jury's verdict.
On the morning of June 18, 2004, Staffa picked up his friend John Buchalew, and they spent much of the day together drinking at Moore's, located in Keyport, New Jersey. Staffa testified he and Buchalew worked for a few hours at their construction jobs, then arrived at Moore's between 11:00 and 11:30 a.m. and drank there for the next three to four hours. Buchalew testified that they did not work at all that day but went straight to Moore's shortly after 7:00 a.m. and began drinking. Staffa and Buchalew left the bar about 3:00 to 3:15 p.m.
As they left, Staffa felt he was not in a condition to drive, and he let Buchalew drive his van. Their activities for the next hour are mostly unaccounted for, but shortly after 4:00 p.m., Buchalew drove into the rear of a dump truck, severely injuring Staffa. The police officer who investigated the accident testified that Buchalew displayed visible signs of intoxication at the scene.
At about 8:00 p.m. that night, when it appeared that Staffa might not survive, the police questioned Buchalew further at the hospital. Buchalew told the police he had consumed ten to thirteen beers and five or six shots of tequila and had blacked out before the accident. A blood sample drawn from Buchalew at 8:15 p.m. showed blood alcohol content (BAC) of 0.133% at that time. Staffa survived the many broken bones and other injuries he suffered but is paraplegic and blind as a result of the accident.
Staffa filed suit against Moore's, Buchalew, and others. Buchalew defaulted, having been charged and convicted of a criminal offense for driving while intoxicated and causing injury. Other defendants were dismissed from the case. First Trenton Indemnity Company also filed suit as subrogee of Staffa, and its complaint was consolidated with Staffa's. First Trenton did not participate at trial, stipulating to abide by the jury verdict.
At trial, the primary issue was whether Moore's had served alcohol to Buchalew while he was visibly intoxicated. Under N.J.S.A. 2A:22A-5b, which is part of the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-1 to -7, informally referred to as New Jersey's dram shop law, a bar is civilly liable for injuries in a motor vehicle accident only if it served a visibly intoxicated person who then caused the accident.
To prove that Moore's had served Buchalew while he was visibly intoxicated, plaintiff presented the testimony of Staffa and Buchalew to establish their activities on the date of the accident. He also called as witnesses the two police officers who questioned Buchalew on the date of the accident and biological-psychologist John Brick, Ph.D., as an expert witness interpolating from Buchalew's BAC reading of.13% at 8:15 p.m. the likelihood that he showed visible signs of intoxication earlier that afternoon.
Through the testimony of its bartender, Carol Sasso, that she had no recollection of Staffa and Buchalew at the bar on that date, the defense denied serving defendants while visibly intoxicated. The defense did not present its own expert testimony to refute Brick's interpolation and opinions, but defense counsel argued in summation that Brick established at best only a period of about ten minutes of visible intoxication before the last possible service of alcohol to Buchalew at 2:45 p.m. The defense argued that plaintiff had failed to prove Buchalew was served by Moore's during that short time period.
In applying the comparative negligence statute, N.J.S.A. 2A:15-5.2, the jury found Moore's 20%, Buchalew 45%, and plaintiff 35% at fault. The jury awarded $3.25 million in damages. The court molded the verdict in accordance with N.J.S.A. 2A:15-5.3c and entered judgment against Moore's for $650,000 in compensatory damages plus interest and costs.
Moore's moved for a new trial under Rule 4:49-1 asserting prejudice in plaintiff's summation and conflict in the testimony of Staffa and Buchalew. The trial court denied the motion for a new trial.
On appeal, Moore's argues that the verdict is unjust because of prejudicial comments in plaintiff's summation and because of discrepancies in ...