March 15, 2011
DEBRA OLSEN, PLAINTIFF-RESPONDENT,
SANDAX, INC., D/B/A WALLINGTON EXCHANGE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 25, 2011
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 THE ACCIDENT WARRANTS A REVERSAL.
Unfortunately, the trial court conducted argument regarding both issues raised by defendant in chambers, which hampers our ability to fully review the record. See Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 1:2-2 (2011). We have previously stated that [w]hile we recognize that it is impractical to require a record, or transcript of mundane, innocuous in-chambers discussions, we hold that when the discussion concerns important subjects such as the procedure to be utilized, a record must be made or a summary placed on the record as to what transpired in chambers. Only then is effective appellate review insured.
[Klier v. Sordoni Skanska Const. Co., 337 N.J. Super. 76, 86 (App. Div. 2001).]
As we stated in Fehnel v. Fehnel, 186 N.J. Super. 209, 217 (App. Div. 1982), both "counsel and the trial judge [have a] joint and mutual obligation to make a record and to request and provide for record notation of events occurring in chambers." These events "should be either transcribed or summarized so that, among other purposes which such record preservation fulfills, a reviewing court will also have the benefit thereof." Ibid. The court did place some reasons on the record for deciding plaintiff was a licensee and that the police evidence of intoxication was inadmissible. The parties also agree to the substance of these in camera hearings, so that we have sufficient information to review the two issues raised by defendant.
Initially, defendant argues that plaintiff was a trespasser, and the court erred in deeming her a licensee. "The question of whether a duty exists is a matter of law properly decided by the court, not the jury, and is largely a question of fairness or policy." Cheng Lin Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991) (citing Strachan v. John F. Kennedy Memorial Hosp., 109 N.J. 523, 529 (1988)). "The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution." Kelly v. Gwinnell, 96 N.J. 538, 544 (1984). "The traditional common-law approach to landowner tort liability toward a party injured because of a dangerous condition on private property is 'predicated on the status of the person on the property at the time of the injury,' i.e. whether the injured party is a 'trespasser,' 'licensee' or 'business invitee.'" Jimenez v. Maisch, 329 N.J. Super. 398, 401 (App. Div. 2000) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993)). In Hopkins, the Court described the different standards, stating that [a]n owner or possessor of property owes a higher degree of care to the business invitee because that person has been invited on the premises for purposes of the owner that often are commercial or business related. A lesser degree of care is owed to a social guest or licensee, whose purposes for being on the land may be personal as well as for the owner's benefit. The owner owes a minimal degree of care to a trespasser, who has no privilege to be on the land. [132 N.J. at 433 (citations omitted).]
Although argument on this issue took place off the record in chambers, with plaintiff arguing that she was an "invitee" and defendant arguing that she was a "trespasser," the court noted on the record that the parking lot "was open to a major thoroughfare, . . . the business took no steps to close off the parking lot from ingress and egress from the public roadway; [and] there was no indication or evidence that [plaintiff] had intended to park or store her vehicle on the premises." We agree with the court that plaintiff is most properly viewed as a licensee.
Defendant's other legal argument is that the court erred in precluding
evidence of plaintiff's intoxication. Plaintiff's blood was drawn by a
technician at Hackensack University Medical Center and sent by the
Wallington Police Department to the State Police laboratory where the
blood tested negative for alcohol. In chambers, defense counsel sought
to introduce Kruk's observation of the odor of alcohol on plaintiff's
breath. Based on the absence of alcohol in the blood sample, the court
found that any other evidence of her intoxication would be more
prejudicial than probative. Defendant did not seek at any time to
introduce hospital records regarding intoxication, not marking these
records for identification nor listing them in pretrial submissions.
Defendant did not dispute the validity of the blood alcohol test
ordered by police, and both counsel
stipulated that the blood alcohol test was negative.*fn2
Defendant did cross-examine plaintiff regarding a prescription pill she thought she might have taken the night of the accident.
We will uphold a trial court's evidentiary rulings "'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted.'" Verdicchio v. Ricca, 179 N.J. 1, 34 (2004) (quoting Green v. New Jersey Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).
It was not an abuse of discretion for the court to prevent the jury from considering the officer's observation of the odor of alcohol in light of the stipulated blood test showing the presence of no alcohol in plaintiff's blood. The court charged the jury:
There was concern that you might speculate because the police officer said that blood was drawn. There was no evidence of alcohol in the blood or anything like that. We wouldn't want you to speculate that. The parties have stipulated that the hospital record shows that. So you can accept that as true in the event that that was important to you.
We find in the context of the proofs presented at trial that neither of the two decisions complained of by defendant constitutes reversible error.