ANN McGUIRE et al. v. SAVINI'S RESTAURANT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2304-06T12304-06T1

ANN McGUIRE and

VINCENT McGUIRE,

Plaintiffs-Appellants,

v.

SAVINI'S RESTAURANT,

Defendant-Respondent.

_______________________________________

 

Submitted September 18, 2007 - Decided

Before Judges Winkelstein and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. BER-L-785-05.

Marc L. Winograd, attorney for appellants.

Nowell Amoroso Klein Bierman, attorneys for respondent (Michael J. Palma, of counsel and on the brief).

PER CURIAM

Plaintiffs Ann McGuire and Vincent McGuire appeal from a final judgment entered on December 4, 2006 by Judge Mark M. Russello, in favor of defendant Savini's Restaurant (Savini's) following a trial before a jury. We affirm.

Plaintiffs' claims arise from an incident that occurred on November 25, 2003. On that date, plaintiffs attended a birthday party at Savini's. Plaintiffs drove to the restaurant, arrived there at 7:20 p.m., and turned their automobile over to the valet for parking. Plaintiffs entered and went to the upstairs level of the restaurant where the birthday party was being held. About thirty people were at the party. Mrs. McGuire testified that another party was in progress on the upstairs level of the restaurant and approximately thirty people were at that party. Mrs. McGuire also observed "quite a number of people eating dinner" on the first floor of the restaurant.

Plaintiffs left the party between 9:20 and 9:30 p.m. According to Mrs. McGuire, other persons who attended their party left at the same time. Mrs. McGuire said that attendees at the other party on the upstairs level of the restaurant appeared to be leaving at approximately the same time. Plaintiffs exited the restaurant, descended the steps, and waited at the bottom of the stairs. Photos introduced into evidence show that there is a single door at the exit. The door opens out to a landing, and there are three steps from the landing to the driveway pavement. An awning covers the landing and extends out from the building to the far side of the driveway.

Mrs. McGuire said that she and Mr. McGuire did not wait on the steps because it was "very crowded." Mrs. McGuire testified that there were no signs indicating where patrons were to wait for their automobiles. The McGuires had been waiting a few minutes when Mrs. McGuire turned to her left and saw a car approaching. Mrs. McGuire said that the car "kept coming and coming" and "wouldn't stop." Mrs. McGuire stepped back, made contact with the bottom step, and fell to the ground. She sustained a fractured hip.

On cross-examination, Mrs. McGuire stated that when she exited the restaurant, she came down the middle of the steps. She did not have to push or elbow anyone out of the way in order to descend the steps. Mrs. McGuire asserted that she was standing a few inches from the steps and she was the only person standing on the driveway. According to Mrs. McGuire, there was no one directly behind her on the steps. She maintained, however, that there was no room for her to stand on the steps.

Mrs. McGuire added that the approaching car was "very slow, but very threatening." Mrs. McGuire also said that the car was not "terribly close" to the curb. She testified as follows:

Q. So the car wasn't terribly close to the curb. It was two feet away when you saw it, but it took - but it was going five miles per hour, and it took five seconds to go passed you, and there was no one standing on the step right behind. And you were the only . . . person who was standing on the pavement, waiting for your car, while everyone else was on the stairs. Does that pretty much fairly summarize everything?

A. Yes.

Mr. McGuire stated that he and Mrs. McGuire left the party about 9:15 p.m. He said that persons were leaving the other party on the second floor at the same time. Plaintiffs descended the staircase to the first floor, exited the restaurant, and went down the steps to get their car. Mr. McGuire handed his ticket to the valet and the McGuires waited for their car. Mr. McGuire said that other patrons were standing on the driveway waiting for their vehicles. He estimated that twenty person were waiting in the area at the time. Some were waiting on the stairs.

Mr. McGuire asserted that no one from the restaurant told them to wait inside for their car. There were no signs directing the patrons where to wait for their cars. Mr. McGuire said he was looking to the right and saw two or three cars being delivered to patrons. A black automobile approached from the left. Mr. McGuire asserted that he "was very surprised to see a car coming from that direction." The car came "very, very close." Mr. McGuire was focusing on the black car and heard a commotion. He saw Mrs. McGuire lying on the ground.

Steven Shannon (Shannon) was qualified as an expert in the field of parking. Shannon testified that the parking layout and operation of the valet drop off at Savini's is "very dangerous." Shannon asserted that his "paramount concern" with the exit area was the conflict between vehicles and pedestrians. He stated that persons "walk out the front door of the restaurant directly into the roadway." There were no cautions, no signs warning patrons of any traffic, and no signs telling drivers "to watch for pedestrians coming out." In addition, there were "no barriers to separate vehicles from pedestrians."

Robert Sealy (Sealy) performed valet parking services at Savini's on November 25, 2003. At that time, Sealy had been performing these services at Savini's for about one to two years. Sealy said that when the accident occurred, two persons were handling the valet parking for the restaurant. He stated that when the vehicles are reclaimed, they are brought to the area near the door. Vehicles being reclaimed approach the door from the customers' right side but an arriving car could be coming in from the left. Sealy conceded that there are no signs that warn or direct customers that vehicles could be approaching from both directions.

Sealy additionally testified that the steps by the door can get crowded. He said that at the time of the accident, there was no procedure in place to direct persons on the steps when they are picking up their vehicles. However, on occasion patrons are instructed to either enter the restaurant or move out of the way of oncoming cars. Sealy added that three traffic cones are placed on the driveway to separate the flow of traffic coming to and leaving the restaurant. A sign on the cones directs the incoming traffic to the right of the cones.

On cross-examination, Sealy stated that the distance from the steps to the far side of the driveway is twenty-one feet, six inches. Sealy conceded that there are times when patrons stand on the driveway and wait for their vehicles. Sealy said that when a vehicle enters the area, and he is bringing another vehicle from the parking lot, he will wait until the car passes under the awning before proceeding. Sealy stated it can be "tight" with two cars and people standing on the driveway, but there is "plenty of room" on the driveway for one car and patrons.

After the completion of the evidentiary portion of the trial, plaintiffs moved for a directed verdict on Mrs. McGuire's alleged contributory negligence. Plaintiffs maintained that there was no evidence from which the jury could find that Mrs. McGuire was negligent. The judge denied the motion.

The jury returned a verdict finding that Savini's was negligent and its negligence was a proximate cause of Mrs. McGuire's injury. The jury additionally found that Mrs. McGuire was negligent and her negligence also was a proximate cause of the injury. The jurors apportioned 75% of the responsibility for the injury to Mrs. McGuire and 25% to Savini's. At that point, the jury ceased its deliberations. Judgment was entered in accordance with the jury's verdict and this appeal followed.

Plaintiffs argue that the judge erred by denying their motion to bar the jury from considering Mrs. McGuire's comparative negligence. Plaintiffs maintain that there was "absolutely" no evidence from which the jury could infer that Mrs. McGuire was negligent under the circumstances presented here. Plaintiffs further argue the judgment should be reversed and the matter remanded for a new trial on damages only. We disagree.

The standard that governs motions for a directed verdict is well established. The trial judge must accept "as true all the evidence which supports the position of the party" opposing the motion, give that party "the benefit of all inferences which can reasonably and legitimately be deduced" from the evidence, and deny the motion if "reasonable minds could differ" on the disputed issue. Monoco v. Hartz Mountain Corp., 178 N.J. 401, 413 (2004) (quoting Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969)). We apply the same standard when reviewing an order granting or denying a motion for a directed verdict. Luczak v. Twp. of Evesham, 311 N.J. Super. 103, 108 (App. Div.), certif. denied, 156 N.J. 407 (1998).

Having carefully considered the evidence presented at trial and in light of the applicable standard, we are convinced that the judge did not err in denying plaintiffs' motion for a directed verdict. As Judge Russello aptly observed in his decision on the record:

[Mrs. McGuire] herself chose to stand in the driveway where cars come [to] and from [the parking lot]. She could have . . . stayed on the steps, [but] she didn't. She could have stayed on the platform, [but] she didn't. She could have waited inside the restaurant until the car had arrived[;] she didn't. All choices that . . . Mrs. McGuire made.

[Mrs. McGuire] indicated that she was in that driveway area approximately a foot from the step when a vehicle coming into the restaurant had arrived. The vehicle wasn't speeding. It was going [at] a slow pace. I believe she indicated about five miles an hour. She . . . testified she was looking to her right as her husband had the ticket for the car and he was looking for the valet at that time and she was looking [in] that same direction as her husband was. And when she . . . looked to the left, she indicated she was startled by a vehicle . . . and because [Mrs. McGuire was] startled, she . . . indicated that she stepped backward . . . [and she believed that] she made contact with the step . . .

Based on the evidence presented at trial, reasonable minds could infer that Mrs. McGuire was negligent. That being so, the judge correctly decided to submit the issue of Mrs. McGuire's comparative negligence to the jury.

We therefore reject plaintiffs' contention that a new trial is warranted in this case. In light of that determination, we need not address plaintiffs' contention that a new trial should be limited to the issue of damages.

Affirmed.

 

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A-2304-06T1

October 4, 2007