NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 22, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5100-10.
James P. Ricciardi argued the cause for appellants (White Fleischner & Fino, LLP, attorneys; Sheri E. Holland, on the briefs).
Michael A. Gallardo argued the cause for respondent (Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, LLP, attorneys; Mr. Gallardo, of counsel and on the brief; John J. Megjugorac, on the brief).
Before Judges Grall, Simonelli and Accurso.
By leave granted, defendants Olde Queen's Tavern and Namelle Property, LLC appeal from the October 19, 2012 Law Division order, which granted the motion of plaintiff Julian Salazar for a new trial. We affirm, but for reasons other than those expressed by the trial judge. Aquilio v. Cont'1Ins. Co. of N.J., 310 N.J.Super. 558, 561 (App. Div. 1998).
The record reveals the following facts. On January 29, 2009, plaintiff, a twenty-one-year-old college student, met a friend at approximately 9:50 p.m. Plaintiff consumed a large sandwich before driving with his friend to Olde Queen's Tavern located on the corner of Easton Avenue and Mine Street in New Brunswick. Plaintiff, who had never before been to the tavern, parked on Prosper Street, walked with his friend up Mine Street, and entered the tavern at approximately 11:00 p.m. While walking on Mine Street, plaintiff saw "patches of snow" on the outer part of the sidewalk. The sidewalk was not sanded or salted, but there was a cleared path to walk and plaintiff had no trouble traversing the sidewalk.
The two men left the tavern at approximately 11:30 p.m., exiting the same door they had entered but this time turning left to walk down Easton Avenue. After taking five or six steps, plaintiff's right foot slid forward on black ice and struck an upraised portion of the sidewalk in front of the tavern. Plaintiff fell and sustained a displaced bimalleolar ankle fracture that required surgery. Prior to his fall, plaintiff did not see the ice or the upraised portion of the sidewalk. He saw these conditions after he fell, but did not see any salt or sand on the sidewalk.
Plaintiff filed a complaint, alleging negligent maintenance of the sidewalk. Relying on Gustavson v. Gaynor, 206 N.J.Super. 540 (App. Div. 1985), certif. denied, 103 N.J. 476 (1986), plaintiff filed a motion in limine to bar any reference to his presence inside the tavern or that he had consumed alcohol. In response, defense counsel represented she would not present evidence that plaintiff had consumed alcohol. The trial judge denied the motion, holding that because there would be no evidence that plaintiff had consumed alcohol, Gustavson did not require the barring of any reference to plaintiff's presence inside the tavern. The parties then agreed to a limiting instruction informing the jurors that alcohol played no role in this case. Before testimony began, the judge gave the jury the following instruction:
During this trial, you're going to hear testimony that the plaintiff, Julian Salazar, was inside the defendant's establishment for a period of time immediately prior to this accident.
Now, there will be no evidence or allegation in the case that alcohol contributed or played any role in the happening of this accident. And you are not to speculate that alcohol ...