BRIAN FITZHARRIS v. BUTCH KOWAL'S TAVERN, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6620-03T16620-03T1

BRIAN FITZHARRIS,

Plaintiff-Respondent,

v.

BUTCH KOWAL'S TAVERN, MATE JON ENTERPRISES,

JOHN KOWAL, JUDE KOWAL, JOHN KOWAL and

JUDE KOWAL d/b/a BUTCH KOWAL'S TAVERN,

Defendants-Appellants,

and

GERALD T. CONNELL, JR., MICHAEL REINO,

CARMEN REINO, CARMINE CAPPOLA,

Defendants.

________________________________________

 

Submitted September 13, 2005 - Decided:

Before Judges Skillman and Kimmelman.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, MID-L-9574-00.

Bolan, Jahnsen, Ball & Reardon, attorneys for appellants (Robert F. Ball, on the brief.)

Respondent Brian Fitzharris did not file a brief.

PER CURIAM

Defendant Butch Kowals Tavern (Tavern) appeals from a June 24, 2004 final judgment rendered against it and an order entered July 9, 2004 denying its motion for a new trial. Plaintiff has not entered an appearance or filed a brief with respect to this appeal.

The Tavern raises the following arguments in its brief on appeal:

POINT I: THE TRIAL COURT ERRED IN DENYING THE MOTION FOR NEW TRIAL SINCE THE LIABILITY VERDICT WAS THE PRODUCT OF THE IMPROPER COMMENTS MADE DURING PLAINTIFF'S ATTORNEY'S SUMMATION.

POINT II: AS A MATTER OF LAW PLAINTIFF FAILED TO PROVE THAT THE INCIDENT IN QUESTION WAS REASONABLY FORESEEABLE, THEREFORE THE JURY VERDICT AMOUNTS TO A MISCARRIAGE OF JUSTICE.

We find these arguments without merit and briefly comment as follows:

Plaintiff was a patron at the Tavern on August 20, 2000. The place was very crowded, it was noisy, and there was a band playing. Plaintiff was standing near the bar when a fight broke out near the band and moved in the direction where he was standing. He was not a participant in the fight, but when the fight moved towards him, he was injured and his leg was broken.

The Tavern contends that during summation at the conclusion of the trial, plaintiff's counsel made improper comments concerning the need for a bouncer, and pointing, to a place where the bouncer should have been stationed. In fact, there was no bouncer at the bar and no expert testimony was produced that a bouncer should have been present.

Ordinarily, the proprietor of a business owes to the patron a duty of ensuring a reasonably safe business premises. Ivins v. Town Tavern, 335 N.J. Super. 188, 194 (App. Div. 2000). However, after an examination of the record, in our view, the testimony of a security expert was not necessary for a jury to properly conclude as a result of their common knowledge that some form of security was necessary to be present in a bar which was crowded, noisy and had a band performing. The need for crowd control under the circumstances here present was a matter within the common knowledge of the jury. Under the circumstances plaintiff's counsel's remarks during summation were harmless.

There being no appeal as the amount of damages, we are satisfied that the verdict as to liability must be affirmed.

 
Affirmed.

(continued)

(continued)

2

A-6620-03T1

September 30, 2005