Mason v. Sportsman's Pub
| Decision Date | 19 November 1997 |
| Parties | Charles MASON, Jr., Plaintiff-Respondent/Cross-Appellant, v. SPORTSMAN'S PUB and Bobby Liedtka, Defendants-Appellants/Cross-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
Edward B. Meredith for plaintiff-respondent/cross-appellant (Meredith, Meredith & Chase, attorneys; Mr. Meredith, on the brief).
Daniel S. Jahnsen, Shrewsbury, for defendants-appellants/cross-respondents (Bolan Jahnsen, attorneys; Daniel S. Jahnsen, on the brief).
Before Judges SHEBELL, A.A. RODRIGUEZ and COBURN.
The opinion of the court was delivered by
SHEBELL, P.J.A.D.
Defendants appeal and plaintiff cross-appeals. We affirm on all issues except the denial of plaintiff's motion to amend the judgment to include Sportsman's Pub (Pub). Accordingly, we remand for amendment of the judgment.
On May 14, 1991, plaintiff, Charles Mason, Jr., filed a complaint in the Law Division against the Pub, its owner, James S. Shaw, its "bouncer," Bobby Liedtka, and a number of fictitious defendants. Count One alleged negligence on the part of the Pub and referred to "unknown Corporations or persons" as owners and operators. Count Two alleged that Liedtka "negligently assaulted and beat" plaintiff and Count Three alleged that Liedtka intentionally committed a battery upon the plaintiff.
Plaintiff subsequently amended his complaint to assert in separate counts that Bob Seals "did negligently assault and beat" plaintiff, and did commit an intentional battery upon plaintiff. The complaint further alleged that the Pub, owned by Shaw, negligently continued to serve Seals despite knowledge that he was intoxicated and had a propensity for becoming violent when intoxicated.
The Pub, Shaw, and Liedtka filed answers through the firm of Parker, McCay & Criscuolo, P.A. Seals filed an answer and crossclaim for contribution through separate counsel.
Trial of the case was bifurcated. The liability trial took place from June 20 to June 26, 1995. At the conclusion of plaintiff's case, defense counsel moved for a directed verdict in favor of Shaw and the Pub. Plaintiff urged that there was a jury question as to the Pub's negligence in failing to provide a safe environment. The judge held there was no evidence from which the jury could conclude that the Pub was negligent, and that jury questions existed solely as to the alleged intentional acts of Liedtka and Seals. Although the jury charge included instruction on whether Liedtka was acting within his scope of employment, no interrogatory regarding the vicarious liability of the Pub was given to the jury.
The jury, in responding to interrogatories, answered that Liedtka committed a battery and that Seals did not. It further reported that the battery was not committed in the exercise of self-defense and that the plaintiff's physical conduct was not a proximate cause of his injuries. After the liability verdict was rendered in open court, the court clerk noted that the jury verdict sheet reflected an assessment of fault of 20% against plaintiff and 80% against Liedtka. The judge, therefore, instructed the jury to re-deliberate on the matter, directing the jury not to answer question number six on apportionment of fault unless it found in response to question five that plaintiff's physical actions were a proximate cause of his injuries. The original jury verdict sheet had erroneously instructed the jury to answer question six on apportionment of negligence even if it found plaintiff's physical actions were not a proximate cause of his injuries. After deliberation, the jury reported that plaintiff's physical actions were not a proximate cause of his injuries. The jury attributed fault only to Liedtka, and did not engage in apportioning fault.
On November 22, 1995, before the damages trial began, plaintiff moved to have judgment entered against Liedtka and the Pub jointly, severally, or in the alternative. The motion was opposed by the firm of Grossman & Kruttschnitt, who appeared as substitute counsel for the first time on behalf of the Pub and Shaw.
At this point we note that subsequent to the filing of the answer on behalf of the Pub, Liedtka, and Shaw, a reservation of rights letter purportedly was sent by the Licensed Beverage Insurance Exchange, the Pub's insurance carrier, to Liedtka stating he would not be covered if a verdict was entered against him based on his commission of an intentional tort. However, neither Liedtka nor the Pub were provided with separate counsel. At the commencement of the liability trial, defense counsel told the jury in his opening statement that he represented
the bar, the Sportsman's Pub.... [I]n addition to the Sportsman's Pub, I represent two of their employees.... Bobby Liedtka and ... James Shaw. Mr. Shaw is the manager of the bar at that time. Mr. Liedtka was security at the bar at that time. So, they're the people that I specifically represent in this case.
At the conclusion of the liability trial, confirmation of coverage by the Licensed Beverage Insurance Exchange extending to the three Pub-defendants was reaffirmed in the following exchange:
Counsel:--if they weren't going to cover him.
Counsel: Correct. He would have been entitled to personal counsel.
The Court: You couldn't have represented his interests--
Counsel: That is correct.
The Court:--when they're contrary to the Sportsman's Pub.
Counsel: Absolutely.
The Court: And so, your representation is, in effect, provided through the carrier for both.
Counsel: Yes, sir.
[Emphasis Added.]
On January 11, 1996, the plaintiff moved for an order to correct the judgment so that the liability verdict against Liedtka would extend to the Pub based upon respondeat superior. The judge denied the motion.
The damages trial commenced on January 16, 1996. The jury found plaintiff's damages to be $264,750. On March 20, 1996, Liedtka's motion for a new trial was denied.
A Notice of Appeal was filed on May 31, 1996 by the Grossman firm on behalf of the Pub, Shaw, and Liedtka. A substitution of attorney was subsequently filed by the firm of Bolan Jahnsen asserting representation "for the defendants, Sportsmans [sic] Pub and Robert Liedka [sic]." The brief filed by Jahnsen similarly states it is on behalf of "Sportsman's Pub and Robert Liedtka."
On direct appeal, defendants make the following arguments:
Point I-The Court's Failure to Charge the Comparative Negligence of the Plaintiff Constituted Plain Error
Plaintiff cross-appeals asserting: 1) the defendants are estopped to deny coverage; 2) the Pub is vicariously liable for the tort of its employee, Liedtka; and 3) the amount of the verdict was manifestly insufficient when measured against the damages visited upon the plaintiff.
On the evening of August 11, 1990, plaintiff was a patron of the Sportsman's Pub in Trenton. An argument broke out between two female patrons, and Liedtka attempted to forcibly remove one of the women. Plaintiff commented to Liedtka: "That's no way to treat a lady, that's no guy." Liedtka told plaintiff to leave, and then removed plaintiff from the premises.
The testimony at trial conflicted as to the degree of force Liedtka used to remove plaintiff and whether or not plaintiff initiated the confrontation by physically touching Liedtka. According to plaintiff, Liedtka turned after hearing his remark and said "Out now." Plaintiff responded "What did I do?" Liedtka responded by knocking a beer bottle out of plaintiff's hand and pushing him against the wall, repeating his order to get out. Plaintiff protested: "Wait a minute" and "Give me a chance." Plaintiff also stated he was struck twice by two unidentified men and then punched in the left cheek by Liedtka.
According to plaintiff, Liedtka placed him in a choke-hold and, with another individual, forced him to the door and threw him outside, causing plaintiff to miss the twelve-inch door step, fall, and strike his head on concrete. Plaintiff testified he was repeatedly hit in the head and twice kicked in the groin by unknown individuals. Finally, plaintiff was rolled off the step by someone's foot in order to close the door to the bar, and subsequently left the scene. Plaintiff denied using force of any kind except to try to get Liedtka's arm off of him so he could breathe when he was being held in the choke-hold.
James Gigglio, a person in plaintiff's group that night, testified that he witnessed plaintiff being held against the wall and that he did not see plaintiff punch or kick...
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