On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6948-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Payne and Koblitz.
Defendant Sandax Inc., d/b/a Wallington Exchange (Exchange), a restaurant for catering private events, appeals a jury verdict of $1,281,755.50 inclusive of prejudgment interest, representing the jury determination that Exchange was seventy-five percent at fault for not properly maintaining the parking lot where plaintiff Debra Olsen injured herself. Plaintiff was found twenty-five percent at fault. Defendant argues that the court erred both in determining that plaintiff was a licensee rather than a trespasser and in precluding defendant from presenting evidence of plaintiff's intoxication at the time of the incident. After reviewing the record in light of the contentions advanced on appeal, we affirm.
In the early morning hours of March 13, 2006, plaintiff, a forty-seven-year-old woman who worked as an accounts payable manager for twenty-eight years, left her home to buy cigarettes at a 7-Eleven store. Before arriving at the 7-Eleven, she thought she hit something with her car or was experiencing a problem with one of its tires, so she drove into the Exchange parking lot, across the street from the 7-Eleven, to look at the tire. After getting out of her car, she tripped on a pothole in the parking lot, twisting and breaking her right ankle so that the bone pierced the skin. She then returned to her car and drove straight ahead a short distance onto some boulders near the river bank.
Wallington Police Officer Thomas Kruk responded and charged plaintiff
with driving while intoxicated in a school zone,
N.J.S.A. 39:4-50(g), and other motor vehicle offenses after detecting
the odor of alcohol on plaintiff's breath. Plaintiff's blood test
ordered by the State Police came back negative for alcohol,*fn1
and all motor vehicle charges were dismissed.
Plaintiff incurred an "acute post-traumatic compound fracture of the tibia and fibula of the right ankle," which required "multiple surgical procedures and [left her with] residual scarification deformity and loss of function." She testified that she underwent six or seven hospitalizations of at least one week each and remained in a wheelchair for the first eighteen months following the accident. By the time of trial, she walked with a cane during the day until the pain caused her to transfer to a wheelchair. She has a permanent limp and cannot bend, twist, or rotate her ankle in any direction because of her reparative "ankle fusion."
At trial, defendant did not contest the severity of plaintiff's injuries. Rather, defendant argued that plaintiff was a trespasser because Exchange is not a restaurant open to the general public, and its lot was posted with a single sign saying "Customer Parking Only," which plaintiff testified she did not see.
On appeal, defendant argues,
POINT I THE COURT BELOW ERRED IN DENYING DEFENDANT/APPELLANT'S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF PLAINTIFF'S TRESPASSER STATUS.
POINT II THE TRIAL COURT ERRED IN CHARGING THE JURY THAT PLAINTIFF WAS A LICENSEE OF DEFENDANT SANDAX. THE JURY SHOULD HAVE BEEN CHARGED THAT SHE WAS A TRESPASSER.
POINT III THE TRIAL COURT ERRED IN BARRING THE DEFENSE FROM MAKING REFERENCE TO PLAINTIFF'S APPARENT INTOXICATION AND CONSUMPTION OF ALCOHOL.
POINT IV THE CUMULATIVE EFFECT OF THE ABOVE ERRORS TOGETHER WITH THE MISSTATEMENT OF THE EVIDENCE REGARDING THE HAPPENING OF ...