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Jeffrey Buttermark and Nadxelly v. A.J.D. Construction Co.

March 25, 2011

JEFFREY BUTTERMARK AND NADXELLY BUTTERMARK, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
A.J.D. CONSTRUCTION CO., INC., AND POWER ELECTRIC CO., INC., DEFENDANTS-RESPONDENTS, AND APPLIED PROPERTY MANAGEMENT CO., F&G MECHANICAL CORP., AND JENPAUL/GENPAUL, DEFENDANTS, AND A.J.D. CONSTRUCTION CO., INC., THIRD-PARTY PLAINTIFF,
v.
POWER ELECTRIC CO., INC., THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-230-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 7, 2011 - Decided

Before Judges Lisa and Sabatino.

Plaintiff, Jeffrey Buttermark,*fn1 brought this action for injuries he claimed he sustained in a workplace accident. By the time the case was submitted to the jury, the only remaining defendant was the general contractor, A.J.D. Construction Co., Inc. (A.J.D.).*fn2 The jury found that A.J.D. was not negligent, and a no cause for action judgment was entered against plaintiff on April 23, 2010. Plaintiff's new trial motion was denied on May 28, 2010.

Plaintiff appeals from those two orders. He argues that two evidentiary rulings constituted reversible error, namely, (1) allowing A.J.D. to introduce testimony of plaintiff's alcohol consumption for the limited purpose of impeaching his credibility, and (2) denying plaintiff's application to present two rebuttal witnesses. We conclude that the trial court did not err with respect to the rebuttal witnesses. Although we conclude that admission of the alcohol consumption evidence was error, in the overall context of this trial and in light of the result reached by the jury, we deem the error harmless. Accordingly, we affirm.

Plaintiff was a union plumber employed by F&G Mechanical Corp. (F&G). A.J.D. was the general contractor in the construction of a high rise building in Hoboken known as the Independence Building. Plaintiff claims that on January 16, 2003, while leaving the job site at the end of the work day, he fell while descending a stair tower and was injured. Plaintiff contended that A.J.D. was negligent in the manner in which it maintained the stairwell. In particular, he claimed there were no hand rails, the stairwell was poorly lit, and debris was strewn about.

Plaintiff was leaving the jobsite at about 3:00 p.m. He said be began his descent on the eighth floor, and between the seventh and sixth floors he stumbled upon some debris and fell, landing on his back, causing severe back injuries. He said he composed himself, descended the remainder of the stairway, and called his employer and reported the fall. He then got in his car and drove home. Plaintiff contended he was alone when he descended the stairwell and fell.

In addition to other witnesses, A.J.D. presented the videotaped testimony of two witnesses, plaintiff's co-employees with F&G, Martino Hronick and John Grilo, who said they descended the stairwell with plaintiff on January 16, 2003. They said they did not see him fall, and he did not say he fell. In a nutshell, the defense was that this accident never happened, or, alternatively, if plaintiff fell on that day, that was not the cause of any injuries to his back. Plaintiff had suffered a previous worksite injury about ten years earlier, when he fell onto concrete from a ladder, landing on his back.

When plaintiff was deposed, he was asked whether he had consumed any alcohol on January 16, 2003. He responded that he did not. In a subsequent de bene esse deposition, Hronick testified over plaintiff's objection, that he and plaintiff typically had lunch together two or three days a week at a bar near the jobsite, that plaintiff usually had one or two vodka drinks at lunch time, and on January 16, 2003, plaintiff had one vodka drink. Although there was no testimony about the precise time of this alcohol consumption, the parties agree that it was approximately noon. The basis for plaintiff's objection was that there was no evidence that plaintiff was intoxicated or in any way deleteriously affected by alcohol consumption at the time of his alleged fall three hours later.

Prior to trial, plaintiff moved in limine to strike the portion of Hronick's testimony dealing with plaintiff's alleged alcohol consumption. Counsel for A.J.D. and Power Electric Co., Inc. opposed the motion. They conceded that plaintiff exhibited no observable evidence of intoxication at 3:00 p.m. (or any other time) on January 16, 2003. The judge ascertained that on January 16, 2003, plaintiff weighed about 235 to 240 pounds. Defense counsel nevertheless argued that it was "for the jury to decide based upon the fact that he had a drink whether or not it affected him." One defense attorney insisted that "[i]t's in fact the province of the jury to determine whether that glass of Grey Goose [vodka] could have affected him at the time of his alleged accident."

The judge rejected defendants' opposition, concluding that "unless you have something to indicate his [in]sobriety, the prejudicial impact far outweighs any probative value." One of the defense attorneys then responded to the judge that an indication that plaintiff was not sober was "his own allegation . . . that he fell down the stairs."

It is thus clear that defendants sought to introduce evidence of plaintiff's consumption of one drink three hours before the accident in an effort to convince the jury that, if plaintiff fell, it was because he was inebriated. The judge rejected the defense position, commenting that falling down stairs does not equate to inebriation.

Defendants then shifted gears in a continuing effort to get this alcohol consumption evidence into the case. They pointed to plaintiff's deposition testimony in which he denied consuming any alcohol that day. They argued that contrary evidence could be used to impeach plaintiff's credibility. Plaintiff continued to argue that any probative value in that regard was still substantially outweighed by potential prejudice. Indeed, without evidence of a deleterious effect on plaintiff, the evidence had no probative value. However, the court was of the view that when used for attacking plaintiff's credibility, "[i]t's a different analysis [than] when you're looking at the issue of whether the alcohol goes in to show ...


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