On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-3438-04 and L-517-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Sabatino.
Plaintiffs Vincenzo Valentino and Rosalia Valentino appeal from a February 4, 2009 order dismissing their claims against defendant N.S.A.S. Inc., d/b/a The Scarlet Pub (Scarlet Pub), and from a March 20, 2009 order denying their motion for a new trial.
To summarize, at around 1:30 a.m. on January 30, 2003, Vincenzo Valentino (Valentino or plaintiff) was injured in an automobile accident when his car was struck by a vehicle driven by an intoxicated driver, Erik C. Bohar. After settling with Bohar and several other defendants, Valentino and his wife pursued a dram shop claim against the Scarlet Pub for allegedly serving Bohar when he was underage and visibly intoxicated. Following a nearly two-week trial on the issues of liability and damages, the jury found that the Scarlet Pub did not serve alcoholic beverages to Bohar and returned a no cause verdict on that basis.
Presenting a series of arguments that were not raised in the trial court, plaintiffs first claim that the trial judge erred in giving jury instructions that bolstered the credibility of defense witnesses at the expense of plaintiffs' witnesses. They further argue that defense counsel made unfair and prejudicial remarks about plaintiffs' witnesses, and that the trial judge unduly interjected himself into the trial by questioning witnesses. Plaintiffs also repeat an argument made in the trial court, requesting a liability charge based on Bauer v. Nesbitt, 399 N.J. Super. 71 (App. Div. 2008), even though that decision has since been reversed, 198 N.J. 601 (2009). Finding no merit in any of plaintiffs' challenges to the liability verdict, we affirm.*fn1
These are the most pertinent facts. Plaintiffs' key witness was Eric Bohar, the admittedly underage, drunk driver who caused the accident. Bohar admitted buying a bottle of.151 proof rum at a liquor store at around ten o'clock on the night of January 29, 2003. He claimed that he started drinking the rum straight from the bottle on the way to picking up his friend, Naim Nguyen. Bohar testified that after he picked up Nguyen, they went to the Scarlet Pub to continue drinking and arrived there at about 11:30 p.m. He testified that, in the bar area, they encountered a friend, Tim Lauch, who worked at the pub but was off duty at that time. Bohar testified that he and Nguyen drank rum at the pub and left shortly before the accident, which a police report later noted as occurring at 1:27 a.m. on January 30.
Significantly, on cross-examination, Bohar was confronted with his cell phone records for that evening, which showed that he made multiple calls to Tim Lauch between 10:30 p.m. and 12:48 a.m., a time period when he claimed he was already in the pub with Lauch. He also admitted that when the police arrived at the accident scene he falsely told them that Nguyen was the driver. After further cross-examination, Bohar also equivocated about whether he was even at the pub, stating that "I believe I was there, I don't recall not being there," but admitting that his recollection was "very vague."
Nguyen, Bohar's passenger, testified that Bohar picked him up at Nguyen's house in South Brunswick. Bohar's younger brother was in the car, and they drove the brother home. According to Nguyen, after they dropped off Bohar's brother, he and Bohar drove to New Brunswick and arrived at the Scarlet Pub at about midnight. Nguyen, who was over twenty-one at the time, was "carded at the front door" by "an old man." He did not see whether Bohar was carded also, but they were both permitted to enter the bar. He testified that they stayed at the bar for about two hours but each only bought a beer and a shot of liquor during that time.
According to Nguyen, Lauch arrived at the bar after he and Bohar got there. Lauch joined them and the group stayed at the pub until it was ready to close. On cross-examination, Nyugen stated he had no recollection of Bohar making numerous cell phone calls while they were sitting in the pub, although Bohar's cell phone records showed that he made twenty calls during the time frame that Nguyen testified that they were in the pub.
The owner of the Scarlet Pub, Sami Abisleiman, testified that on the night of January 29, 2003, he was checking I.D.'s at the entrance to the pub. Between 11:00 p.m. and midnight, Bohar and a companion attempted to enter the bar. Abisleiman observed that Bohar appeared to be intoxicated, "from the way he was talking, his eyes [were] red and he was mumbling." He also did not believe that Bohar was twenty-one and thought his I.D. appeared to be a fake. In an effort to convince Abisleiman to let him in, Bohar told him that he knew "T.J.," referring to Tim Lauch, one of the bartenders. However, Abisleiman testified that he would not let Bohar enter the pub.
Although the trial occurred in 2009, Abisleiman gave the following explanation for his ability to remember the incident from 2003. According to Abisleiman, the incident was highlighted for him a couple of days after it occurred, when Officer Starzynski, who had investigated the auto accident, told him that the driver claimed to have been at the Scarlet Pub shortly before the accident. When the officer described the driver's Vietnamese companion, Abisleiman was sure that the person he turned away from the pub on January 29 was the driver to whom Starzynski was referring. That ...