VINCENZO VALENTINO v. ERIK C. BOHAR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3862-08T1

VINCENZO VALENTINO and

ROSALIA VALENTINO, husband

and wife,

Plaintiffs-Appellants,

v.

ERIK C. BOHAR; CRAIG P. BOHAR;

SAMI ABISLEIMAN; NAIM ABISLEIMAN;

ROBERT WOOD JOHNSON UNIVERSITY

HOSPITAL; UMDNJ; DR. STEPHEN

SCHNEIDER; DR. STEPHEN SCHNEIDER,

P.A.; DR. EDWARD B. KRISILOFF;

DR. TODD CHERTOW; and DR. MARCUS

TALERICO,

Defendants,

and

N.S.A.S. INC., d/b/a THE SCARLET

PUB,

Defendant-Respondent.

_______________________________

ALLSTATE INSURANCE COMPANY,

Plaintiff,

v.

N.S.A.S. INC., d/b/a THE

SCARLET PUB; SAMI ABISLEIMAN;

BUY RITE LIQUORS; ROBERT WOOD

JOHNSON UNIVERSITY HOSPITAL;

UMDNJ; DR. STEPHEN SCHNEIDER;

DR. STEPHEN SCHNEIDER, P.A.;

DR. EDWARD B. KRISILOFF;

DR. TODD CHERTOW; and

DR. MARCUS TALERICO,

Defendants.

______________________________

November 12, 2010

Argued October 25, 2010 - Decided

Before Judges Lisa, Reisner and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-3438-04 and L-517-05.

Phillip B. Linder argued the cause for appellants.

Daniel S. Jahnsen argued the cause for respondent (Bolan Jahnsen Dacey, attorneys; Elizabeth A. Wilson, on the brief).

PER CURIAM

Plaintiffs Vincenzo Valentino and Rosalia Valentino appeal from a February 4, 2009 order dismissing their claims against defendant N.S.A.S. Inc., d/b/a The Scarlet Pub (Scarlet Pub), and from a March 20, 2009 order denying their motion for a new trial.

To summarize, at around 1:30 a.m. on January 30, 2003, Vincenzo Valentino (Valentino or plaintiff) was injured in an automobile accident when his car was struck by a vehicle driven by an intoxicated driver, Erik C. Bohar. After settling with Bohar and several other defendants, Valentino and his wife pursued a dram shop claim against the Scarlet Pub for allegedly serving Bohar when he was underage and visibly intoxicated. Following a nearly two-week trial on the issues of liability and damages, the jury found that the Scarlet Pub did not serve alcoholic beverages to Bohar and returned a no cause verdict on that basis.

Presenting a series of arguments that were not raised in the trial court, plaintiffs first claim that the trial judge erred in giving jury instructions that bolstered the credibility of defense witnesses at the expense of plaintiffs' witnesses. They further argue that defense counsel made unfair and prejudicial remarks about plaintiffs' witnesses, and that the trial judge unduly interjected himself into the trial by questioning witnesses. Plaintiffs also repeat an argument made in the trial court, requesting a liability charge based on Bauer v. Nesbitt, 399 N.J. Super. 71 (App. Div. 2008), even though that decision has since been reversed, 198 N.J. 601 (2009). Finding no merit in any of plaintiffs' challenges to the liability verdict, we affirm.1

I

These are the most pertinent facts. Plaintiffs' key witness was Eric Bohar, the admittedly underage, drunk driver who caused the accident. Bohar admitted buying a bottle of .151 proof rum at a liquor store at around ten o'clock on the night of January 29, 2003. He claimed that he started drinking the rum straight from the bottle on the way to picking up his friend, Naim Nguyen. Bohar testified that after he picked up Nguyen, they went to the Scarlet Pub to continue drinking and arrived there at about 11:30 p.m. He testified that, in the bar area, they encountered a friend, Tim Lauch, who worked at the pub but was off duty at that time. Bohar testified that he and Nguyen drank rum at the pub and left shortly before the accident, which a police report later noted as occurring at 1:27 a.m. on January 30.

Significantly, on cross-examination, Bohar was confronted with his cell phone records for that evening, which showed that he made multiple calls to Tim Lauch between 10:30 p.m. and 12:48 a.m., a time period when he claimed he was already in the pub with Lauch. He also admitted that when the police arrived at the accident scene he falsely told them that Nguyen was the driver. After further cross-examination, Bohar also equivocated about whether he was even at the pub, stating that "I believe I was there, I don't recall not being there," but admitting that his recollection was "very vague."

Nguyen, Bohar s passenger, testified that Bohar picked him up at Nguyen s house in South Brunswick. Bohar s younger brother was in the car, and they drove the brother home. According to Nguyen, after they dropped off Bohar s brother, he and Bohar drove to New Brunswick and arrived at the Scarlet Pub at about midnight. Nguyen, who was over twenty-one at the time, was "carded at the front door" by "an old man." He did not see whether Bohar was carded also, but they were both permitted to enter the bar. He testified that they stayed at the bar for about two hours but each only bought a beer and a shot of liquor during that time.

According to Nguyen, Lauch arrived at the bar after he and Bohar got there. Lauch joined them and the group stayed at the pub until it was ready to close. On cross-examination, Nyugen stated he had no recollection of Bohar making numerous cell phone calls while they were sitting in the pub, although Bohar s cell phone records showed that he made twenty calls during the time frame that Nguyen testified that they were in the pub.

The owner of the Scarlet Pub, Sami Abisleiman, testified that on the night of January 29, 2003, he was checking I.D.'s at the entrance to the pub. Between 11:00 p.m. and midnight, Bohar and a companion attempted to enter the bar. Abisleiman observed that Bohar appeared to be intoxicated, "from the way he was talking, his eyes [were] red and he was mumbling." He also did not believe that Bohar was twenty-one and thought his I.D. appeared to be a fake. In an effort to convince Abisleiman to let him in, Bohar told him that he knew "T.J.," referring to Tim Lauch, one of the bartenders. However, Abisleiman testified that he would not let Bohar enter the pub.

Although the trial occurred in 2009, Abisleiman gave the following explanation for his ability to remember the incident from 2003. According to Abisleiman, the incident was highlighted for him a couple of days after it occurred, when Officer Starzynski, who had investigated the auto accident, told him that the driver claimed to have been at the Scarlet Pub shortly before the accident. When the officer described the driver's Vietnamese companion, Abisleiman was sure that the person he turned away from the pub on January 29 was the driver to whom Starzynski was referring. That is what he told the officer. In his trial testimony, Starzynski also recalled having that conversation with Abisleiman two days after the accident.

Tim Lauch testified that while he worked at the pub, Abisleiman was "at the door every night" checking I.D.'s. Lauch was acquainted with Bohar and Nguyen from high school but was not friends with either of them. According to Lauch, because he was under twenty-one at the time, he could legally work as a bartender at the pub, but he could not be on the premises if he was not working. He had no recollection of socializing with Bohar and Nguyen at the pub when he was off duty. However, Lauch explained why Bohar might have called him several times. Lauch testified that he was a friend of Bohar's former girlfriend, and Bohar would sometimes call Lauch to try to get in touch with the former girlfriend.2

II

On this appeal, plaintiffs contend that the trial judge gave a jury instruction that bolstered the credibility of defense witnesses at the expense of plaintiffs' witnesses. The record does not support plaintiffs' argument. In his opening charge to the jury, Judge Paley commented that many lay people have a fear of public speaking, and that neither Valentino nor "the people who own or operate the Scarlet Pub" were "advocates." The judge then noted that, unlike the lay witnesses in the case, the attorneys were trained advocates, and he emphasized that the attorneys' arguments, however articulate, were not evidence. The judge repeated essentially the same comments in his charge at the end of the trial, except that, in addition to mentioning Valentino by name, he also mentioned Abisleiman.

Plainly, the gist of the judge's remarks was that the jury should not give undue weight to the attorneys' arguments, even though the attorneys might be more articulate than the witnesses. While the judge did not specifically mention plaintiffs' non-party witnesses, Bohar and Nguyen, in his instructions, he clearly was not telling the jurors that they should credit the testimony of defendant's witnesses over plaintiffs' witnesses. Since plaintiffs' attorney did not object to the judge's instructions during the trial, we infer that he also did not perceive that they were unfair or otherwise problematic. See Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573-74 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996). We find no plain error in those instructions. See R. 1:7-2; R. 2:10-2.

We likewise find no merit in plaintiffs' argument that defense counsel made improper statements in his opening and in his summation. Plaintiffs' counsel did not object to defense counsel's remarks, and we find no impropriety in the comments. Both attorneys vigorously argued in summation that the other party's witnesses were not credible. Based on our review of the trial transcript, neither attorney transgressed the bounds of appropriate, zealous advocacy. See Bender v. Adelson, 187 N.J. 411, 431 (2006).

Plaintiffs further contend that the trial judge took too active a role in questioning witnesses. Based on our own review of the record, we find that the judge asked a limited number of questions, properly aimed at clarifying points that may have been unclear to the jury. We find no basis to conclude that the judge's limited questioning of witnesses caused prejudice to either party.

Contrary to plaintiffs' appellate contentions, Judge Paley conducted the trial in a patient and even-handed manner. The jury's verdict in this case was in no way surprising or anomalous. Even on a cold record, plaintiffs' liability witnesses provided testimony that was fraught with inconsistencies. Their version of events was also contradicted by the empirical evidence of Bohar's cell phone records.

Plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 In light of our decision on the liability verdict, we need not address plaintiffs' arguments concerning the damages portion of the trial. However, we make the following observation. Shortly before the trial started, plaintiffs settled with Dr. Schneider, a treating physician whom they had accused of malpractice in treating Valentino's leg injuries from the accident. In its answer to the complaint, and its interrogatory answers, the Scarlet Pub had put plaintiffs on notice that the pub intended to claim that Valentino's injuries were the fault of the co-defendant doctors. See Young v. Latta, 123 N.J. 584, 597-98 (1991). Plaintiffs' orthopedic expert, Dr. Thrower, had issued a report opining that Dr. Schneider's malpractice contributed to permanent limitations on Valentino's use of his right leg. At trial, plaintiffs presented testimony from Dr. Thrower aimed at showing the extent of the leg injuries. The trial judge correctly permitted defense counsel to cross-examine Dr. Thrower about his additional opinion, set forth in his expert report, that Dr. Schneider's negligence caused some of those injuries. See Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 302 (2006).

2 Bohar testified that he wanted to go out and get drunk on the night of January 29, because he and his girlfriend had just broken up.