Truchan v. Sayreville Bar

• Decision Date: 09 July 1999
• Citation: 731 A.2d 1218,323 N.J. Super. 40
• Parties: Heather TRUCHAN, Plaintiff-Appellant, v. SAYREVILLE BAR AND RESTAURANT, INC., t/a Sayreville Bar and Restaurant, John V. Kelly, and John Doe (1-15) Said Name Being Fictitious, Defendants-Respondents.
• Court: New Jersey Superior Court

731 A.2d 1218

323 N.J. Super. 40

Heather TRUCHAN, Plaintiff-Appellant, v. SAYREVILLE BAR AND RESTAURANT, INC., t/a Sayreville Bar and Restaurant, John V. Kelly, and John Doe (1-15) Said Name Being Fictitious, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued March 23, 1999.

Decided July 9, 1999.

Barry M. Epstein, Newark, for plaintiff-appellant (Sills Cummis Zuckerman Radin Tischman Epstein & Gross, attorneys; Mr. Epstein, Stuart M. Feinblatt and Rhonda Sobral O'Toole, on the brief).

Daniel S. Jahnsen, Shrewsbury, for defendant-respondent Sayreville Bar and Restaurant, Inc., (Bolan Jahnsen, attorneys; Terrence J. Bolan, on the brief).

Defendant-Respondent John V. Kelly did not file a brief.

Before Judges PRESSLER, KLEINER and STEINBERG. The opinion of the court was delivered by STEINBERG, J.A.D

Plaintiff Heather Truchan appeals from a judgment entered, pursuant to a jury verdict, in favor of defendant Sayreville Bar and Restaurant, Inc. (Sayerville Bar), and from an order denying her motion for a new trial. We reverse.

Plaintiff sustained serious personal injuries as a result of an accident that occurred on December 10, 1993, at approximately 5:35 p.m. She was driving on Cheesquake Road in Sayreville, New Jersey at the time of the accident. As she drove around a curve she suddenly saw headlights on her side of the road. There was no time to react and the vehicle, a truck owned and operated by defendant John Kelly, struck her head-on. The impact was severe. It took rescue workers using the "Jaws of Life" an hour to free her.

Peter Danser, a fellow employee of Kelly, testified for plaintiff. He said that he would go out with Kelly "a couple of nights a week" after work and "have some drinks", usually at the Sayreville Bar. He testified that on December 10, he and Kelly were advised that they were being laid off for the slow winter season. They went to a local bar where they each consumed one beer before going to the Sayreville Bar. Danser said that he saw Kelly drink between six and seven mugs of beer while they were there. He further testified that as he was getting ready to leave he observed that Kelly was "loud in conversation and getting boisterous". He also testified that Kelly kept repeating himself in conversation and his eyes were "a little glassy, like glazed over". He explained that Kelly "had that stare, you know, when you get drunk". When Danser left the Sayreville Bar, Kelly was still drinking. Finally, Danser testified that if the bartenders had been paying attention "they would have seen the signs".

Plaintiff also called Patrolman Anthony DonnaMaria as a witness. DonnaMaria was the first officer at the scene. DonnaMaria testified that when he observed Kelly at the scene he was dazed, staggering, mumbling, and leaning on his truck. According to DonnaMaria, Kelly "appeared quite intoxicated". He had a vacant stare in his eyes and an extremely strong odor of alcoholic beverage on his breath. DonnaMaria further testified that Kelly was falling; was on his hands and knees; was swaying and sagging, grasping for support; was unable to stand and was continually leaning for balance when he was upright; that his speech was "slobbering", slurred and slow and his demeanor indifferent; that his eyes were very watery and bloodshot, his clothing was "mussed" and dirty, and his face was pale. Kelly was taken to the hospital where a blood sample was drawn. Subsequent tests revealed his blood alcohol content to be .201.

Plaintiff also produced Dr. Richard Saferstein, an expert in forensic science, toxicology and alcohol. He opined that Kelly's blood alcohol level would have been .10 at 5:05 p.m. and that he would have begun exhibiting signs of visible intoxication at that time. On cross-examination Saferstein conceded that different individuals act differently with the same blood alcohol level and that habitual use of alcohol develops a tolerance requiring larger doses to produce the characteristic effects of intoxication. Thus, if Kelly had developed such a tolerance, he would not have necessarily displayed visible signs of intoxication at a level of .10. However, Saferstein further testified that a perceptive observer of a person who has reached a level of .10 percent should be able to tell that that person is visibly intoxicated and should not be served additional alcohol.

Kelly, who was uninsured, was served with a summons and complaint but did not file an answer. Sayreville Bar called him as a witness. Kelly claimed that the accident occurred because he was distracted while driving. He said he left the Sayreville Bar at approximately 5:30 p.m., five minutes prior to the accident. He gave the following version of the accident: "Prior to the accident a vehicle had stopped rather abruptly in front of me. Pulled off to the side of the road and then made a U-turn right there. And from the maneuvering of the vehicle one of my tools had rolled up from underneath my seat I had stored in the back seat area. So I reached down to get it as I was driving." He said he had to reach pretty far down to get the tool and that led him to take his eyes off the road. According to Kelly his vehicle stayed straight but the road curved and that caused him to go into the on-coming lane and collide head-on with plaintiff, in her lane of travel. Kelly also said he was upset about losing his job that day. He testified that he had three mugs of beer at the Sayreville Bar, and was not intoxicated when he left.

The jury, after a four day trial, found no liability against Sayreville Bar, finding Kelly to be solely responsible for the accident. The jury awarded plaintiff $512,500 in damages against him.

On this appeal plaintiff raises the following arguments: (1) the trial judge incorrectly excluded testimony concerning Kelly's degree of intoxication and erratic driving immediately prior to the accident; (2) the liability verdict was so contrary to the evidence presented that there was a miscarriage of justice under the law entitling her to a new trial; (3) the trial judge incorrectly permitted Sayreville Bar to characterize itself as a family place or family restaurant in order to suggest that it did not serve a visibly intoxicated patron; (4) the trial judge erred in dismissing plaintiff's common law causes of action; (5) the trial judge erred in dismissing plaintiff's claim for punitive damages; (6) the jury's actions showed confusion and a refusal to follow the trial court's instruction necessitating reversal; and (7) a new trial should be granted because the damage verdict was so disproportionate and inadequate under the evidence that to sustain the award would be manifestly unjust.¹

We first consider plaintiff's contention that the trial judge erred in excluding testimony concerning Kelly's driving immediately prior to the accident. At the scene of the accident DonnaMaria interviewed Eric Shemper and Nancy Place, eye witnesses to the collision. Plaintiff sought to introduce what Shemper and Place told him contending, over Sayreville Bar's objection, that their statements were admissible as excited utterances. See N.J.R.E. 803(c)(2). At the N.J.R.E. 104(a) hearing then held to determine the admissibility of the statements, DonnaMaria testified that he spoke to Shemper and Place approximately twenty minutes after he arrived at the scene. He described them as "angry", excited, and in an emotional state. DonnaMaria said that Shemper told him that a vehicle passed him on the left just a few hundred yards before the location of the accident traveling at a very high rate of speed on the wrong side of the road in a no-passing zone when it struck plaintiff's vehicle head-on. DonnaMaria also testified that Place was excited and angry when he spoke to her. He said that Place's version was the same as Shemper's and that she saw defendant's vehicle coming up behind her at a very high rate of speed. She saw it go around the curve on the wrong side of the road and strike plaintiff's vehicle head-on.

In sustaining the objection the trial judge ruled as follows:

I find that the testimony from the police officer indicates that this was a standard investigation. He spoke to these people and took their statements at least 20 minutes after he arrived. And I guess you'd have to add a few minutes to that between the time he—the accident occurred, someone notified the headquarters and headquarters notified him and he arrived at the scene. There's obviously an opportunity to deliberate by the witnesses, an opportunity for them to discuss it among themselves and there's no proof required—there's no proof as required by the rule that these declarants were still under the stress or excitement of seeing the accident. The objection is sustained. Bring the jury in.

We disagree with the judge's conclusion. An excited utterance is "a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate". N.J.R.E. 803(c)(2). In determining whether a statement is admissible as an excited utterance the court must decide the preliminary question of whether the defendant had any opportunity for deliberation, reflection, or misrepresentation before he made the statement or whether the utterance was spontaneous and made solely under the stress of excitement. See State v. Williams, 106 N.J.Super. 170, 172, 254 A.2d 538 (App.Div.),

certif. denied,

55 N.J. 78, 259 A.2d 228 (1969),

cert. denied, 397 U.S. 1057, 90 S.Ct. 1405, 25 L.Ed.2d 675 (1970). The factors to be considered in such a determination include: (1) the amount of time that transpired between the initial observation of the event and the subsequent declaration of the statement; (2) the circumstances of the event; (3) the mental or physical condition of the declarant; (4) the shock produced; (5) nature of the statement; and (6) whether the...