WILLIAM DURKAN v. PEGILL, INC. d/b/a BOURBON STREET RESTAURANT, TOJO REALTY CO.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2327-04T32327-04T3

WILLIAM DURKAN,

Plaintiff-Respondent,

v.

PEGILL, INC. d/b/a BOURBON

STREET RESTAURANT, TOJO

REALTY CO.,

Defendants,

and

JOSEPH VITURELLO,

Defendant-Appellant.

 

Argued September 20, 2006 - Decided October 25, 2006

Before Judges Parrillo, Hoens and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5657-02.

Jerald J. Howarth argued the cause for appellant (Hahn & Howarth, attorneys; Mr. Howarth, on the brief).

Michael J. Monaghan argued the cause for respondent.

PER CURIAM

Defendant Joseph Viturello appeals from a jury verdict in favor of plaintiff William Durkan. We reverse in part, modify in part and remand.

The following facts, which we have derived from the record, are relevant to the issues raised in the appeal. On the evening of July 21, 2000, defendant, who was twenty-one years old, had plans to spend the evening with Julia Manna, a classmate of his. Defendant had dated Manna and wanted to have an exclusive dating relationship with her. Manna, however, did not desire an exclusive relationship with defendant and she cancelled the plan to spend the evening with defendant at the last minute. As a result, instead of going out with Manna, defendant went to a friend's house, where he began drinking beer. He and his friend then went to the Bourbon Street Bar and Grill where defendant continued to drink with a group of other friends.

After defendant had been at the bar for a time, Manna arrived, accompanied by plaintiff, who had also dated Manna in the past. The arrival at the bar of plaintiff and Manna was entirely coincidental as they had no prior awareness that defendant had gone there.

According to defendant, while he was at the bar, he consumed four or five alcoholic drinks, during which time he became upset and agitated about the fact that Manna was there with someone else rather than being out with him. At approximately one or two o'clock in the morning on July 22, 2000, defendant got up and approached plaintiff, whom he had never met before. Defendant introduced himself, telling plaintiff that he knew Manna from college, and put his arm around plaintiff's shoulders. Within seconds of that brief exchange, defendant began to strike plaintiff in the face with his fist, eventually punching him three to five times and knocking him to the ground. As a result of defendant's attack, plaintiff was hospitalized for two weeks, undergoing multiple surgeries and other procedures to repair extensive damage to his face. Defendant later entered a plea of guilty to a charge of aggravated assault in connection with the incident.

Plaintiff sued defendant, the bar and the owner of the premises in a seven-count complaint. However, only the allegations of the third and fourth counts are relevant to the appeal. In Count Three, plaintiff asserted that both defendant and the bar were negligent. More specifically, plaintiff asserted that the bar was negligent in permitting defendant to consume an excessive amount of alcohol and that defendant was negligent both in consuming an excessive amount of alcohol and in striking plaintiff. In Count Four of the complaint, plaintiff asserted a cause of action against defendant sounding in intentional tort, contending that defendant intentionally struck and injured him.

Two attorneys, one retained by defendant personally to respond to the intentional tort claim and the other retained by an insurer to defend only against the negligence claim, filed answers on behalf of defendant late in 2002. The discovery end date was extended three times to permit counsel to prepare. In January 2004, First Trenton Indemnity Company, which had issued a homeowners' policy and an umbrella policy to defendant's parents and which had participated in discovery on defendant's behalf pursuant to a reservation of rights, moved to intervene in the litigation in order to assert its right to a declaratory judgment concerning the scope of its coverage. The motion judge denied that motion, concluding that it was untimely and that permitting it would "unduly delay [and] prejudice the adjudication" of the matter. See R. 4:33-2; State v. Lanza, 39 N.J. 595, 600 (1963); Atl. Employers v. Tots & Toddlers Pre-School Day Care Center, Inc., 239 N.J. Super. 276, 280 (App. Div.), certif. denied, 122 N.J. 147 (1990).

While the litigation was pending, defendant filed for the protection of the Bankruptcy Court. On March 30, 2004, that court entered an order lifting the automatic stay, see 11 U.S.C. 362, to permit the Superior Court action to proceed to a conclusion. That order specified that recovery through the state court action would be limited to the extent of any insurance coverage, with any other unsatisfied claim to be resolved thereafter in the bankruptcy proceeding.

In June 2004, the parties filed cross-motions for partial summary judgment and for related relief. By Order dated June 11, 2004, the motion judge addressed each of those motions, appending to his order an explanation of his reasons. In relevant part, he denied plaintiff's motion for summary judgment on Count Three, the negligence count against the bar and premises owner, on the ground that there were genuine issues of material fact relating to the negligence of those entities.

Plaintiff's motion, however, also sought partial summary judgment against defendant on Count Four, the intentional tort claim. One of the arguments defendant raised in opposition to that aspect of plaintiff's motion was his assertion that a jury might conclude that plaintiff had provoked the attack. In rejecting that argument, the motion judge noted that "there is no dispute that . . . [plaintiff's behavior] did not amount to provocation" of defendant. Moreover, in light of defendant's admissions in connection with his guilty plea on the aggravated assault charge, the judge concluded that there was "no question as to the intentional actions" of defendant. The judge therefore granted plaintiff's motion for partial summary judgment, finding defendant liable on Count Four. In explaining his decision, however, the motion judge noted that his order as against defendant was governed by the restrictions in the Bankruptcy Court order.

Shortly thereafter, defendant moved for reconsideration, pointing out that intentional acts were not covered by his insurance policy, and asserting that the Bankruptcy Court order would effectively preclude judgment against defendant. In addition, defendant asserted that because his cross-motion had sought summary judgment on the negligence-based count, it should have been granted in light of the judge's observations about the intentional nature of his act.

By Order dated July 23, 2004, the judge denied the motion for reconsideration, but clarified his prior decision. He reasoned that although the defendant's act of striking plaintiff was intentional, there remained an issue of fact about whether defendant intended to injure plaintiff when he struck him. He therefore concluded that his earlier order did not preclude plaintiff's negligence claim or defendant's assertion at trial about his intent. Following that ruling, First Trenton Indemnity Company again moved for leave to intervene and to consolidate its separately-pending declaratory judgment action with the litigation brought by plaintiff. The judge to whom the matter had been assigned for trial denied that motion and directed that the carrier provide a defense on all of the theories that remained to be tried as against defendant without regard to the question of whether the homeowner's policy provided coverage.

Shortly prior to trial, plaintiff settled with the bar and the premises owner, a result of which the only issues to be tried were the claims set forth against defendant individually in Count Three and Count Four. Defendant moved in limine to preclude plaintiff from asserting at trial that defendant's consumption of alcohol was the negligence that would support relief on Count Three. The trial judge denied that motion, concluding that plaintiff's theory at trial could rest on the negligent consumption of alcohol as well as his "negligence in general." At trial, plaintiff asserted that because of the Bankruptcy Court order, he was precluded from recovery on the intentional tort theory and he therefore pursued only the theory that defendant was negligent in his consumption of alcohol.

As part of the evidence offered at trial, plaintiff was permitted to offer medical bills in the amount of $52,386.95 representing the expenses of the treatment he received for his injuries. It was undisputed that at the time of the incident, plaintiff did not have any medical insurance and the bills were paid either by the Victims of Violent Crime Fund, a state agency, or by the Charity Care Fund. In seeking leave to offer this evidence to the jury as an aspect of damages, plaintiff represented that he is responsible for repaying these sums to the entity that paid them.

Following trial, the jury returned a verdict in favor of plaintiff in the amount of $87,586.95 which the jury apportioned 80% and 20% between defendant and the bar, respectively. Plaintiff moved for additur or, in the alternative, a new trial and defendant moved for judgment notwithstanding the verdict or for remittitur to exclude the sum attributable to the medical bills. Both motions were denied and both parties appealed. In June 2005, plaintiff's appeal was dismissed and the only issues now before the court are those raised on behalf of defendant.

Defendant argues on appeal that the verdict should be reversed and judgment entered in his favor or, in the alternative, that the verdict should be reduced by the amount attributed to plaintiff's medical bills in light of the absence of any demonstration that plaintiff has been or will be responsible to repay those sums. Because of the nature of the arguments, we address them at length.

The heart of defendant's argument is that plaintiff abandoned Count Four, the intentional tort claim, in favor of Count Three, a negligence claim, the sole basis for which was defendant's decision to drink alcohol. He argues further that in rejecting defendant's motion for a directed verdict and in charging the jury as plaintiff requested, the trial judge effectively created a new tort of negligent drinking that is inconsistent with long-established principles of law. Our review of the record persuades us that defendant's analysis of this issue is essentially, although not entirely, correct.

The record demonstrates that the wording of the Bankruptcy Court order lifting the automatic stay and the inclusion of multiple defendants standing in different legal relationships with plaintiff created some confusion among the parties and the two judges who addressed the issues. Careful analysis of the interplay of those confounding factors, however, supports defendant's arguments as to Count Three on appeal.

First, as we understand the wording of the Bankruptcy Court order, the automatic stay was lifted so as to permit the trial of all of the theories against defendant to proceed to a conclusion. That order did not preclude trial of the intentional tort cause of action in favor of a more limited trial on a negligence theory. Rather, the order contemplated that the trial would proceed on all counts as to defendant and, to the extent that there was insurance coverage available, plaintiff could secure payment of damages attributable to the covered claim. The order further directed that if the jury verdict resulted in recovery for an intentional tort claim, which would not be covered by insurance, that aspect of the verdict would be referred back to the Bankruptcy Court for resolution as an unsatisfied claim. The effect of that order, of course, was that although the pleading asserted both intentional tort and negligence theories, only the latter could result in a recovery as against the insurer and that any recovery based on an intentional tort would simply become an unsatisfied claim to be resolved in the subsequent bankruptcy proceeding.

Second, at the time when the cross-motions for partial summary judgment were heard, plaintiff's claims included the theories of liability unique to the bar and premises along with the theories raised as against defendant. That is, plaintiff sought to recover from the bar based on the New Jersey Licensed Alcoholic Beverage Service Fair Liability Act (the Dram Shop Act), N.J.S.A. 2A:22A-1 to -7, a statutory basis for recovery that requires a jury to apportion fault for an injury to a bar patron by another patron that includes considering the actions of the other patron. In particular, the Act does not create strict liability as against the bar for the actions of a patron who has been served alcohol, but permits the bar to reduce its liability to a plaintiff injured by another patron by demonstrating, in part, that the other patron was at fault for his level of intoxication. See Steele v. Kerrigan, 148 N.J. 1, 34 (1997). In cases involving dram-shop liability, therefore, "a patron's negligence may be considered until the patron becomes unable to appreciate the risks of his or her behavior and the tavern becomes aware of that inability by virtue of the patron's visible intoxication." Del Tufo v. Twp. of Old Bridge, 147 N.J. 90, 104 (1996); see Lee v. Kiku Restaurant, 127 N.J. 170, 184 (1992) ("If a tavern serves alcohol to a visibly-intoxicated patron, a court will ordinarily presume the patron's lack of capacity to evaluate the ensuing risks.").

As a result, when the motion judge concluded that defendant's assault on plaintiff was an intentional act and that there was no evidence to suggest that it was provoked, he appropriately entered judgment on Count Four, the intentional tort count, against defendant. When he was thereafter asked to reconsider, the motion judge clarified his earlier order, reasoning that he had only granted summary judgment on the issue of defendant's intent to attack plaintiff and that he had not foreclosed defendant from arguing at trial that the consequence of his intentional act was unintended. At the same time, the motion judge reasoned that the question of the role that alcohol had played and the question of defendant's negligence had not been resolved as part of the motion for summary judgment. Based on those two pretrial rulings, plaintiff could have proceeded to trial against defendant on the theory of intentional tort, in which case plaintiff would have presented his proofs as to his damages and in response to which defendant would have been permitted to argue that he did not intend the consequence of his actions. In that event, the question of defendant's intoxication would have been relevant to his ability to form the requisite intent.

However, the motion judge's comments about defendant's negligence and his related comments about defendant's consumption of alcohol can only be understood in the context of a trial that also included the Dram Shop Act claims against the bar. Certainly, the question of defendant's fault in over-indulging or in continuing to drink when he knew that he was upset at seeing Manna with plaintiff were factors that the bar could have utilized to decrease its own liability to plaintiff for the injuries he suffered at defendant's hands. See Steele, supra, 148 N.J. at 34. Therefore, although it might have been more artfully explained, the motion judge's analysis simply left to the jury the question of attributing fault as between the bar and defendant, in light of the different theories that pertained to each. Nothing in his analysis created a negligence-based theory as against defendant for his alcohol consumption alone that survived plaintiff's settlement with the bar.

After plaintiff settled with the bar and proceeded to trial solely against defendant, plaintiff concluded that he could not pursue the intentional tort theory in light of the language in the Bankruptcy Court's order that only a recovery that would be covered by an insurer, that is, one based on negligence, would be assured of being collected. At the same time, in addressing the issues about the theories as against defendant, the trial judge misperceived the meaning of the motion judge's analysis, concluding incorrectly that the motion judge had ruled that plaintiff had a viable negligence theory against defendant rather than recognizing that the negligence, if any, of defendant would only serve to diminish the bar's responsibility to plaintiff under the Dram Shop Act.

The motion judge, however, had already entered summary judgment in plaintiff's favor on Court Four, the intentional tort claim. That decision, regardless of plaintiff's belief about the meaning of the motion judge's references to negligence, made pursuit of Court Three inappropriate. In general, "'[n]egligence' and 'intentional' are contradictory, 'negligence excludes design' [and] 'negligence excludes the idea of intentional wrong'". Price v. Phillips, 90 N.J. Super. 480, 485-86 (App. Div. 1966) (quoting 65 C.J.S., Negligence, 1(a), 3a); LoRocco v. N.J. Mfrs. Indem. Ins. Co., 82 N.J. Super. 323, 329 (App. Div.), certif. denied, 42 N.J. 144 (1964). Indeed, "there is an incongruity in allowing a plaintiff to prove a negligence action based on a defendant's intentional conduct." Zuidema v. Pedicano, 373 N.J. Super. 135, 146 (App. Div. 2004), certif. denied, 183 N.J. 215 (2005). However, a "count for negligence [can be] tied with a count for an intentional tort", L.C.S., Inc. v. Lexington Ins. Co., 371 N.J. Super. 482, 493 (App. Div. 2004), and a plaintiff may advance alternative theories involving negligence and intentional torts against a defendant. R. 4:5-6; see Shankman v. State, 184 N.J. 187, 205 (2005) ("[I]t is well settled that that plaintiff may plead alternative or inconsistent claims."); State v. Frisby, 174 N.J. 583, 591 (2002).

Notwithstanding these general principles, one can only assert a negligence-based claim if it is supported by a recognized tort. Here, in fact, there was none. When plaintiff rested, the only evidence and testimony were directed to a negligence theory as the basis for a recovery against defendant. The only negligence-based theory, however, was that defendant was negligent in drinking or in continuing to drink. In rejecting defendant's motion for a directed verdict, the trial judge referred back to the reasoning that the motion judge had utilized without, apparently, appreciating that the intervening settlement with the bar removed the Dram Shop Act claim, together with its implications about defendant's fault with respect to drinking. In doing so, she misunderstood the limitation on the motion judge's observations about the role that defendant's potential fault might have played and concluded that the motion judge had recognized the existence of a negligence-based theory supported only by defendant's consumption of alcohol. In doing so, the trial judge erred.

As defendant points out, there is no basis in the law for the conclusion that consumption of alcohol alone supports a cause of action for negligence. Our courts have long recognized that, "[d]runkenness alone, though voluntary, is not negligence." Bageard v. Consol. Traction Co., 64 N.J.L. 316, 322 (E. & A. 1900). This is so because "[a] drunken man may be careful." Ibid.; see Petrone v. Margolis, 20 N.J. Super. 180, 188 (App. Div. 1952) ("[C]arelessness is not to be necessarily inferred merely from proof of the existence of a state of intoxication.").

The sole theory presented by plaintiff to the jury was negligence based on defendant's consumption of alcohol. No other theory was advanced. Under the circumstances, the trial judge erred in denying the motion for a directed verdict on Count Three. That, however, does not end our analysis. Defendant repeatedly moved for, and raises as error on appeal, the dismissal of the intentional tort count, arguing that plaintiff abandoned it. Plaintiff argued, and the trial judge agreed, that because of the Bankruptcy Court order, the only issues to be tried were those that might result in coverage, namely, the negligence count. Here, too, we discern some confusion among the parties. Although the motion judge concluded that defendant acted intentionally and entered summary judgment on Count Four, he also noted on reconsideration that when plaintiff proceeded to trial, defendant could attempt to demonstrate that he did not intend the consequence of his act. This requires us to consider defendant's second argument on appeal, namely, whether Count Four was abandoned and should be dismissed. We note first that at the time of trial, plaintiff already had an order determining defendant's liability on Count Four. Plaintiff could have proceeded with proof as to damages and defendant could have raised the defense preserved by the motion judge. At trial, regardless of his legal theory, plaintiff in fact proved his damages. We therefore need only consider whether, had defendant recognized the significance of the proofs, he could have prevailed on the defense that he did not intend the consequences of his act.

The record at trial is devoid of any evidence that would support such a defense. Defendant himself testified that he approached plaintiff, spoke with him briefly and then struck him, knocking him to the ground and continuing to strike him, a total of three to five times, while he was "defenseless." In light of the undisputed facts about that course of conduct, no reasonable jury could have concluded that defendant did not intend the consequences of his actions.

Both plaintiff and the trial judge contemplated that additional proceedings relating to damages attributable to the intentional tort would take place in the Bankruptcy Court. In particular, plaintiff argued that if the jury were to return a verdict of no cause on the negligence count, it would be appropriate to charge the jury to continue its deliberations so as to calculate damages nonetheless, based on the intentional tort count. In that event, a damage award on Count Four could be evaluated by the Bankruptcy Court judge as an unsatisfied claim. Although our analysis of record and the applicable precedents compels us to conclude that Count Three, the negligence count, should not have been charged to the jury at all, we interpret the jury's damage award in light of plaintiff's alternative, never-abandoned theory of intentional tort as expressed in Count Four. We therefore exercise our original jurisdiction, see R. 2:10-5, to attribute the damages awarded to the intentional tort count, as to which defendant's theory of unintended consequences would afford him no relief, rather than to the negligence count.

This analysis requires us to address the final issue raised on appeal by defendant, namely, the quantum of damages as it related to the medical bills. The facts are not disputed. The trial judge, presuming that plaintiff would, in fact, be required to repay the full amount of the medical bills to the never-identified entity that paid them, permitted the bills to be submitted to the jury. Indeed, the judge charged the jury that plaintiff would be required to repay these sums and that they should be included in any award. Based upon the verdict, it is apparent that the jury awarded these bills in full.

On appeal, defendant argues that it was error to permit the jury to consider these bills and points out that plaintiff has never identified any basis in any statute or in the evidence to support the suggestion that the sums will need to be repaid. In light of that, defendant argues that there is no reason to permit plaintiff to recover these sums and argues that to the extent that these sums are included, the plaintiff has secured a windfall. See Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 587 (App. Div.), certif. denied, 142 N.J. 574 (1995)(construing the collateral source rule, N.J.S.A. 2A:15-97); Fayer v. Keene Corp., 311 N.J. Super. 200, 208 (App. Div. 1998); Parker v. Esposito, 291 N.J. Super. 560, 567 (App. Div.), certif. denied, 146 N.J. 566 (1996).

Plaintiff argues that it would be unjust for this court to disturb the award of the jury and contends that the verdict does not represent a windfall. Notwithstanding that assertion, plaintiff points to no support for the proposition that the sums paid by others for his medical bills will need to be repaid or that there is a lien on any verdict to the extent of these previously-paid medical bills. In light of the absence of any support for plaintiff's assertion, we are compelled to conclude that the verdict represents a windfall to the extent that it included an award for the amount of the medical bills. We therefore conclude that the verdict must be molded to award only such sum as the jury awarded plaintiff exclusive of $52,386.95, the undisputed amount of the medical bills.

The verdict is vacated and the matter is remanded for the entry of a verdict in favor of defendant on Count Three and for entry of a verdict in favor of plaintiff and against defendant on Count Four in accordance with our instructions on molding.

Reversed in part, modified in part and remanded.

 

Technically, the issues raised by defendant were asserted in a cross-appeal filed in response to the appeal filed by plaintiff Durkan arising from the trial judge's denial of an additur motion following the jury verdict in his favor. Inasmuch as plaintiff's appeal has been dismissed, however, the only issues before the court are those raised by defendant in the cross-appeal. For ease of reference, therefore, we have elected to refer to the issues in the cross-appeal as the issues on appeal.

At trial, defendant recalled striking plaintiff three times in the face. During his recitation of the factual basis in support of his guilty plea on a related aggravated assault charge, however, defendant admitted that he struck plaintiff five times.

The complaint named Pegill, Inc., the corporate entity through which the bar is owned and operated, and TOJO Realty, the owner of the premises where the bar business was located, asserting various theories sounding in negligence as to each.

Neither party to this appeal has identified with any specificity which entity actually paid the bills, although it is clear that plaintiff did not do so.

Defendant's insurer suggested at oral argument that there might have been coverage available if the jury had concluded that defendant, while acting intentionally, did not intend the consequence of his act. We need not consider the coverage implications of our analysis in light of our evaluation of the record.

We note that the record does not include a copy of the judgment entered. The parties agree that the verdict included a comparative fault analysis as between defendant and the bar. We discern no ground in the record to permit a diminution of the verdict attributed to defendant's intentional act.

(continued)

(continued)

21

A-2327-04T3

October 25, 2006