ERIK LUKMANN v. WENESCO RESTAURANT SYSTEMS, INC d/b/a WENDYS; WENESCO RESTAURANT SYSTEMS, LLC., d/b/a WENDYS WENESECO RESTAURANTS INC., d/b/a WENDYS; WENESCO FORT LEE, LLC d/b/a WENDYS; WENDY'S INTERNATIONAL INC., d/b/a WENDYS -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ERIK LUKMANN,

Plaintiff-Appellant,

v.

WENESCO RESTAURANT SYSTEMS, INC.,

d/b/a WENDYS; WENESCO RESTAURANT

SYSTEMS, LLC., d/b/a WENDYS;

WENESECO RESTAURANTS, INC., d/b/a

WENDYS; WENESCO FORT LEE, LLC,

d/b/a WENDYS; WENDY'S INTERNATIONAL

INC., d/b/a WENDYS,

Defendants-Respondents.

______________________________________

May 12, 2016

Submitted April 12, 2016 Decided

Before Judges Rothstadt and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1267-12.

Michael S. Harwin, attorney for appellant.

Schenck, Price, Smith & King, LLP, attorneys for respondents (Anthony M. Tamburello, of counsel; Valerie A. Vladyka, on the brief).

PER CURIAM

In this personal injury action, plaintiff Erik Lukmann appeals from the jury verdict of no cause of action and the subsequent entry of judgment for defendant, Wenesco Restaurant Systems, Inc., d/b/a Wendy's (defendant). After reviewing plaintiff's arguments in light of a review of the record and applicable legal principles, we affirm.

On April 20, 2011, plaintiff went to a mall to purchase lunch and attend a movie. He bought a salad and an ice cream dessert from defendant's restaurant. The dessert was served in a cup with a plastic dome that had an opening of about two inches in diameter into which a utensil could be inserted. The salad was placed on the front counter in a bag, but plaintiff could not recall whether the dessert was inside or outside the bag when it was given to him. According to plaintiff, if the dessert had been handed to him, he would have put it in the bag containing the salad before entering the movie theater. The manager of the restaurant testified that due to the hole in the container, defendant's employees do not put the ice cream dessert in a bag.

Plaintiff paid for his order in cash and received $1.89 in change. The coins were dispensed from an automatic change machine and plaintiff retrieved them himself. Although plaintiff testified the utensils and napkins were in the bag with the salad when it was handed to him, defendant's manager testified that utensils, napkins, and similar items are kept on a side counter for customers to take themselves.

After picking up his food, plaintiff walked approximately 150 yards and entered the movie theater with the bag containing his food. Plaintiff recalled eating the salad, then crumpling the bag closed, placing it on the seat next to him.

Plaintiff recalls that he ate the dessert towards the end of the movie. As he bit down he "felt an object hit [his] front tooth and slide across the back of [his] teeth, causing a jolt [and] pain."1 He spit out the contents of his mouth into his hand, saw a silver coin, and dumped the contents back into the cup. Upon inspection, he found four coins inside, "three quarters and [one] dime."

Plaintiff's complaint alleging negligence against defendant proceeded to trial and at the close of plaintiff's testimony, his counsel requested the judge include a res ipsa loquitur charge to the jury. After hearing argument and reviewing the applicable case law, the judge denied the request. She stated: "[The] res ipsa rule is not invoked . . . until it is shown that the instrumentality causing the injury was within the control of the defendant at the time of the mishap." After reciting the evidence presented by plaintiff, the judge found the dessert was outside the control of defendant for a significant period of time. She concluded plaintiff had not established the required elements of the res ipsa charge and there was "evidence to establish that it's possible the jury could find an inference that the plaintiff was negligent."

After the jury returned a verdict of no cause of action, the trial judge issued an order dismissing plaintiff's complaint and entering judgment for defendant.

On appeal, plaintiff contends the trial judge erred in not charging the jury with res ipsa loquitur and disagrees with several evidentiary rulings; arguing that he is entitled to a new trial. We disagree.

Whether to include or exclude a jury instruction is a question of law. See Eaton v. Eaton, 119 N.J. 628, 641-42 (1990). Therefore, the trial judge's decision to exclude a jury instruction of res ipsa loquitur is "not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We review the ruling de novo.

To substantiate a claim of negligence, a plaintiff must prove: (1) defendant owed plaintiff a duty of care; (2) defendant breached that duty; (3) defendant's breach was the cause of plaintiff's damages; and (4) plaintiff suffered actual damages. Townsend v. Pierre, 221 N.J. 36, 51 (2015).

The doctrine of res ipsa loquitur provides an exception to these required proofs and allows for an inference of defendant's lack of due care "when the following three conditions have been met: '(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect.'" Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 95 (1999) (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)).

In addressing the "exclusive control" prong, the trial judge noted

[T]he plaintiff had possession for at least an hour, if not two hours, of the . . . dessert . . . . That he was the one who put it in the bag, that he had it . . . for a period of time . . . that there's an intervening extended period of time of going to the movies, sitting down in the movies, having it at the movies, having it opened at some point in the movies, where there are other people and other parties.

She found that these facts clearly depicted the dessert was not in the exclusive control of defendant. "The exclusive control prong does not require that a plaintiff exclude all other possible causes of an accident, only that it is more probable than not that defendant's negligence was a proximate cause of the mishap." Luciano v. Port. Auth. Trans-Hudson Corp., 306 N.J. Super. 310, 313 (App. Div. 1997) (citing Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291-92 (1984)). "The doctrine becomes inapplicable when the circumstances have been so completely elucidated that no inference of defendant's liability can reasonably be made." Brown, supra, 95 N.J. at 292 (quoting Lustine-Nicholson Motor Co. v. Petzal, 268 F.2d 893, 894 (D.C. Cir. 1959)).

As to the third prong, the judge found sufficient evidence had been presented for a jury to infer negligence on the part of plaintiff, noting the undisputed testimony that he had picked up the change from the cash dispenser. Plaintiff received eighty-nine cents as his change and he testified he found three quarters and a dime in his dessert. There was also evidence allowing the inference that plaintiff had placed the dessert in the bag. A reasonable jury could infer negligence from these facts. Where a plaintiff fails to "present evidence to establish all three factors required for the application of" res ipsa loquitur, he is not entitled to have the jury instructed on the doctrine. Saks v. Ng, 383 N.J. Super. 76, 91 (App. Div.), certif. denied, 186 N.J. 605 (2006). Plaintiff was not entitled to the res ipsa loquitur charge as his proofs were insufficient to satisfy the narrow constraints of this doctrine.

Plaintiff also argues the trial judge erred in her rulings on two areas of cross-examination by defense counsel with plaintiff's expert and plaintiff himself. The trial court has broad discretion to determine the scope of cross-examination, and an appellate court will not interfere in the absence of a clear abuse of discretion. Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003). A review of these brief areas of questioning does not reveal a clear abuse of discretion and we therefore find they do not merit further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Plaintiff contends he chipped several veneers on his teeth as a result of biting on the foreign objects in the dessert.