On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-906-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2011
Before Judges Axelrad and Ostrer.
Plaintiff Gerard Lombardi appeals from a July 9, 2010 order dismissing on summary judgment his complaint against Pat's Tavern for injuries that he suffered outside the Mount Arlington tavern on April 27, 2007. As there was no cognizable evidence in the record to support a reasonable inference that Pat's Tavern was responsible for plaintiff's injuries, we affirm.
We summarize the facts, viewing them in a light most favorable to plaintiff as the non-moving party. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010) (applying on appeal the same standards for summary judgment governing the trial court under Rule 4:46).
It was undisputed that plaintiff and his girlfriend, Kim Kracke, had gone to Pat's Tavern for drinks late in the evening of Friday, April 27, 2007. At some point that evening, Kracke left the tavern to retrieve her cell phone. When she left, plaintiff was talking to the girlfriend of a bartender, Wally Merring.
The extent of plaintiff's alcohol consumption was disputed. Merring testified in a deposition that plaintiff had four to five mixed drinks of Jack Daniels and cola over the course of an hour. Yet, he did not believe plaintiff was intoxicated. Plaintiff testified in a deposition that he sat at the bar, ate no food, and consumed two or three drinks. He also denied that he was intoxicated. Merring testified that plaintiff left the bar before Kracke returned.
It was undisputed that plaintiff thereafter suffered a head injury. However, the motion record does not disclose the cause. No eyewitness was produced, and plaintiff later could not recall how or why he was injured.
Two days after the incident, Kracke asked police to investigate, reporting that plaintiff may have been assaulted. According to the report of the subsequent investigation, Merring said that just a couple of minutes after plaintiff left the tavern, a patron walked in and told him "there was a guy on the ground outside." The police reported that Merring recounted that plaintiff fell, and did not know why.
In his deposition three years later, Merring offered a different version, stating that plaintiff left the tavern and returned by himself one-and-a-half to two hours later with a serious head injury. Merring testified that when he asked plaintiff what happened to him, plaintiff answered that he did not know. He testified that police misreported his statement and denied that plaintiff acknowledged he fell.
Dave Moran, the tavern's owner, was not present on the night of the incident. He reported to police that his employees had later told him that a patron reported that a man was lying down by the door; the injured man was helped into the bar and said that he fell and wanted to go home; and his girlfriend then came and picked him up.
Kracke told police in a written statement that when she returned to the tavern, an unnamed blonde woman told her that plaintiff had fallen and hurt himself. Other people in the bar also told her that he fell. Kracke also reported that plaintiff was ...