CRAIG STAFFA v. REMVAC INC MOORE BAR LIQUORS (2010)

Defendant, Remvac Inc., trading as Moore's Bar and Liquors (Moore's), appeals from a jury verdict of $650,000 in favor of plaintiff Craig Staffa, who drank at defendant's bar and was then severely injured in a motor vehicle accident.   Moore's asserts that plaintiff's closing argument contained several prejudicial comments and its motion for a new trial should have been granted for that and other reasons.   We affirm the jury's verdict.

On the morning of June 18, 2004, Staffa picked up his friend John Buchalew, and they spent much of the day together drinking at Moore's, located in Keyport, New Jersey.   Staffa testified he and Buchalew worked for a few hours at their construction jobs, then arrived at Moore's between 11:00 and 11:30 a.m. and drank there for the next three to four hours.   Buchalew testified that they did not work at all that day but went straight to Moore's shortly after 7:00 a.m. and began drinking.   Staffa and Buchalew left the bar about 3:00 to 3:15 p.m.

As they left, Staffa felt he was not in a condition to drive, and he let Buchalew drive his van.   Their activities for the next hour are mostly unaccounted for, but shortly after 4:00 p.m., Buchalew drove into the rear of a dump truck, severely injuring Staffa.   The police officer who investigated the accident testified that Buchalew displayed visible signs of intoxication at the scene.

At about 8:00 p.m. that night, when it appeared that Staffa might not survive, the police questioned Buchalew further at the hospital.   Buchalew told the police he had consumed ten to thirteen beers and five or six shots of tequila and had blacked out before the accident.   A blood sample drawn from Buchalew at 8:15 p.m. showed blood alcohol content (BAC) of 0.133% at that time.   Staffa survived the many broken bones and other injuries he suffered but is paraplegic and blind as a result of the accident.

Staffa filed suit against Moore's, Buchalew, and others.   Buchalew defaulted, having been charged and convicted of a criminal offense for driving while intoxicated and causing injury.   Other defendants were dismissed from the case.   First Trenton Indemnity Company also filed suit as subrogee of Staffa, and its complaint was consolidated with Staffa's.   First Trenton did not participate at trial, stipulating to abide by the jury verdict.

At trial, the primary issue was whether Moore's had served alcohol to Buchalew while he was visibly intoxicated.   Under N.J.S.A. 2A:22A-5b, which is part of the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-1 to -7, informally referred to as New Jersey's dram shop law, a bar is civilly liable for injuries in a motor vehicle accident only if it served a visibly intoxicated person who then caused the accident.

To prove that Moore's had served Buchalew while he was visibly intoxicated, plaintiff presented the testimony of Staffa and Buchalew to establish their activities on the date of the accident.   He also called as witnesses the two police officers who questioned Buchalew on the date of the accident and biological-psychologist John Brick, Ph.D., as an expert witness interpolating from Buchalew's BAC reading of .13% at 8:15 p.m. the likelihood that he showed visible signs of intoxication earlier that afternoon.

Through the testimony of its bartender, Carol Sasso, that she had no recollection of Staffa and Buchalew at the bar on that date, the defense denied serving defendants while visibly intoxicated.   The defense did not present its own expert testimony to refute Brick's interpolation and opinions, but defense counsel argued in summation that Brick established at best only a period of about ten minutes of visible intoxication before the last possible service of alcohol to Buchalew at 2:45 p.m. The defense argued that plaintiff had failed to prove Buchalew was served by Moore's during that short time period.

In applying the comparative negligence statute, N.J.S.A. 2A:15-5.2, the jury found Moore's 20%, Buchalew 45%, and plaintiff 35% at fault.   The jury awarded $3.25 million in damages.   The court molded the verdict in accordance with N.J.S.A. 2A:15-5.3c and entered judgment against Moore's for $650,000 in compensatory damages plus interest and costs.

Moore's moved for a new trial under Rule 4:49-1 asserting prejudice in plaintiff's summation and conflict in the testimony of Staffa and Buchalew.   The trial court denied the motion for a new trial.

On appeal, Moore's argues that the verdict is unjust because of prejudicial comments in plaintiff's summation and because of discrepancies in the evidence presented by plaintiff.   We conclude that a few of plaintiff's summation comments were improper, but in the context of the entire summation and trial, those comments did not bring about an unjust verdict.   We also reject Moore's other arguments.

Counsel are afforded “broad latitude in summation.”  Bender v. Adelson, 187 N.J. 411, 431 (2006);  Colucci v. Oppenheim, 326 N.J.Super. 166, 177 (App.Div.1999), certif. denied, 163 N.J. 395 (2000);  Diakamopoulos v. Monmouth Med. Ctr., 312 N.J.Super. 20, 32 (App.Div.1998).   Counsel may ask the jury to make inferences that are “improbable, perhaps illogical, erroneous or even absurd[,]” but “may not misstate the evidence nor distort the factual picture.”  Bender, supra, 187 N.J. at 431 (quoting Colucci, supra, 326 N.J.Super. at 177).

Moore's argues that plaintiff's attorney made prejudicial remarks by:  1) arguing matters not in evidence, namely that Moore's conceded visible intoxication and could not obtain an expert to refute the expert testimony presented by plaintiff;  2) making an impermissible “golden rule” appeal to the jury;  and 3) asking the jury to “send a message” by holding Moore's liable.   Defense counsel did not make any objections during plaintiff's summations, which ended in the late afternoon on a snowy day.   The following morning, before the jury charge, defense counsel requested curative instructions on some comments made in plaintiff's summation, but the trial court ruled that the comments were not improper and curative instructions were not necessary.   At the time defendant's motion for a new trial was heard, defense counsel again argued that improper summation comments entitled defendant to a new trial, and this time referred to all categories of comments now argued on appeal.   The trial court again ruled that plaintiff's summation was not improper and denied the motion.

We review some of the arguments defendant makes on appeal under the plain error standard of review because defense counsel did not object to those particular remarks or ask for a curative instruction regarding them before discharge of the jury.   See Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128 (2008);  Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495 (2001).   With respect to those remarks that were referenced in defense counsel's objection the following morning and for which curative instructions were requested, our standard of review is whether in the context of the entire summation and trial, those remarks were improper and “it clearly and convincingly appears that there was a miscarriage of justice under the law.”   Bender, supra, 187 N.J. at 431 (quoting R. 4:49-1(a) (standard for motion for a new trial)).

In arguing prejudice, Moore's first points to the following comment in the summation of plaintiff's attorney in reference to the defense summation:  “[T]hey conceded visible intoxication, but they want you to think it was only for ten minutes.”   Moore's denies that there was any such concession at trial or in defense counsel's summation but only an appropriate argument from the evidence limiting the meaning and significance of plaintiff's expert evidence.

Plaintiff's expert Brick testified that most people will become visibly intoxicated at about .15% BAC. Brick assumed that Buchalew and Staffa had arrived at Moore's between 11:00 and 11:30 a.m. and could have been last served at 2:45 p.m. before leaving.   Interpolating Buchalew's BAC backward from the time of testing at the hospital, Brick concluded that Buchalew would have had a BAC of .15%, and he would visibly have displayed signs of intoxication between 2:10 and 3:15 p.m. that afternoon, that is, before he left the bar.   He also noted that at 8:15 p.m., when Buchalew's BAC was .13%, his speech was slurred and the police officers described signs of intoxication.   He testified that if Buchalew showed signs of intoxication at .13%, he would have shown signs of intoxication at an even earlier time at the bar, between 1:45 and 2:30 p.m.

In response to this testimony, Moore's attorney's stated in closing:

Visible intoxication, according to Dr. Brick, starts in most people at a .15.   Well, Buchalew would not have reached a .15 until between 2:10 and 3:10 p.m., with the last service of alcohol being at 2:45 p.m.

․ that would leave a maximum window for a normal drinker with a certain level of tolerance of ten minutes where there's visible intoxication, or ten minutes or less because the last service of alcohol, according to Brick and the calculations he used, was 2:45 or earlier․  Now, if this guy is more tolerant, then he won't show signs of visible intoxication at a .15․  [H]e might not have even been a .15 until 3:10, and at which time they're ․ out of the bar.

Although these comments were not a concession that Buchalew was visibly intoxicated at the bar for ten minutes, plaintiff's attorney did not overstep the bounds of permissible argument by claiming the defense was accepting Brick's conclusion that Buchalew was still at the bar when he would have displayed signs of visible intoxication.   The primary theme of plaintiff's argument was to contrast the ten minutes argued by defense counsel with his own claim that Buchalew was visibly intoxicated at the bar for a much longer time.

Looking at the summation as a whole, see State v. Atwater, 400 N.J.Super. 319, 335 (App.Div.2008), and considering that defendant did not object during plaintiff's summation, see State v. Loyal, 386 N.J.Super. 162, 173-74 (App.Div.2006), we conclude that the statement objected to was appropriate argument and certainly did not have the capacity to cause a miscarriage of justice.

Moore's argues next that plaintiff's attorney implied prejudicially in his summation that no expert would support the defense claims in the case.   Plaintiff responds that the comment in dispute was a proper response invited by the following statement in defense counsel's summation:

Now, you may hear a claim that Dr. Brick's testimony was uncontroverted, I didn't have my own expert.   Now, I didn't need my own expert with Dr. Brick's testimony.

After making this statement, defense counsel explained why Brick's testimony could only support a ten-minute window of Buchalew's visible intoxication while at the bar.

Responding in his summation, plaintiff's attorney said:

Now, more service after visibly intoxicated.   And you know what?   This is where I had to get an expert for you.   You don't want an experts [sic].   I'm sorry, I got one.   They didn't.   And why didn't they?   Because they couldn't because the evidence is so overwhelming.

․

Did you hear from anybody from the defendant?   Yeah, he's right, I'm definitely going to go off on this because it's a good law firm, they had unfettered access to hire an expert.   He didn't because he couldn't.   The evidence of visible intoxication is too overwhelming․

We agree with defendant that the comments about defendant being represented by “a good law firm” with “unfettered access to hire an expert” were improper.   They injected the role of the defense attorney and his firm into the trial and implied that experts had been solicited and none would support the defense.   A curative instruction regarding that implication may have been appropriate.

But the gist of plaintiff's remarks was that no expert had testified at trial to support the defense position.   The defense had not presented expert testimony refuting that Buchalew would have shown signs of intoxication while at the bar.   That argument was clearly permissible.   See Bender, supra, 187 N.J. at 433;  Nguyen v. Tama, 298 N.J.Super. 41, 53 (App.Div.1997).

Moore's also argues that a new trial is warranted because plaintiff's counsel made an impermissible “golden rule” argument and because he encouraged the jury to “send a message” by finding Moore's liable for plaintiff's injuries.   Defendant points to the following statements in plaintiff's summation:

When I opened I said they made a-an agreement with the public that in exchange for that liquor license they can make money and there's a check and balance here that they can make money and there's a check and balance here that they can't just serve alcohol wildly without making sure that somebody is not being over served while visibly intoxicated.   Why? Because whoever they serve the alcohol to can get in the car, and this time it's not just Craig, maybe next time it's somebody else, but you know what, ․ that law is there to hold this bar accountable․  [T]his is the only time you will have to hold this bar accountable for serving John Buchalew while visibly intoxicated.

․

Moore's Bar hasn't paid a thing yet.   They're still serving alcohol at a rate buy four, get one free, yet they haven't paid any repercussions from this accident, and today is the only day that they will be called upon to do it.

We agree with the trial judge's ruling that the comment - “whoever they serve the alcohol to can get in the car, and this time it's not just Craig, maybe next time it's somebody else,” - was not an impermissible reference to the “golden rule.”

A “golden rule” argument suggests to jurors that they should “adopt what they would want as compensation for injury, pain and suffering.”  Geler v. Akawie, 358 N.J.Super. 437, 464 (App.Div.), certif. denied, 177 N.J. 223 (2003).   In a more general sense, it asks the jurors to view the case as if they are injured parties themselves.   The quoted remark did not do those things.   Rather, in the context of plaintiff's overall summation theme, it was an attempt to justify recovery of damages by defendant, an individual who had acted irresponsibly and become intoxicated himself, by arguing that the applicable dram shop law is designed to protect the public as a whole.   We detect no violation of the “golden rule” in plaintiff's summation.

Moore's argues further that the last-quoted remarks were improper because they asked the jury to “send a message” by finding defendant liable.   This portion of Moore's argument on appeal is subject to the plain error standard of review because there was no objection or request for a curative instruction concerning these remarks at the time of trial.

“ ‘[S]end a message to the community’ [and] ‘call to arms' comments ․ [are] impermissible because they improperly divert jurors' attention from the facts of the case and intend to promote a sense of partisanship with the jury that is incompatible with the jury's function.”  State v. Neal, 361 N.J.Super. 522, 537 (App.Div.2003) (citations omitted).   A “send a message” argument asks a jury to hold defendant accountable to the community.   See ibid. (asking jury to hold defendant accountable to children of Asbury Park);  State v. Rose, 112 N.J. 454, 520 (1988) (asking jury to send a message to “[e]verybody that lives in this County, everybody that lives in this State”);  State v. Goode, 278 N.J.Super. 85, 89-90 (App.Div.1994) (inviting the jury to “make a difference in your community”).

Plaintiff argues that the comments were appropriate because he had a right to argue to the jury regarding the policies that underlie New Jersey's dram shop liability statute, N.J.S.A. 2A:22A-2.   We disagree with plaintiff's argument and view plaintiff's remarks, fairly understood, as a call to the jury to act as an enforcement body for the dram shop law.   A trial jury in a specific case is not charged with the enforcement of State policy and should not be urged to reach a decision for that purpose.   Its sole function is to determine the facts from the evidence and reach a verdict based upon the evidence and the law.   State policy is best accomplished through case-by-case factual determinations rather than giving a trial jury an incentive to reach a particular result because of policy considerations.

Had defendant requested a curative instruction regarding the comments suggesting that the jury should hold Moore's accountable as a means of enforcing the law, the trial court would have acted appropriately in giving one.   See Bender, supra, 187 N.J. at 433;  City of Linden v. Benedict Motel Corp., 370 N.J.Super. 372, 397-98 (App.Div.), certif. denied, 180 N.J. 356 (2004);  Weed v. Casie Enter., 279 N.J.Super. 517, 528 (App.Div.1995).   But defense counsel's failure to object to the brief improper comments during the summation indicates that the errors were not so egregious in the context of the summation and trial as a whole that they affected the jury's verdict.   See Tartaglia, supra, 197 N.J. at 128;  Fertile, supra, 169 N.J. at 495.

Having reviewed the entire summation in the context of the contested issues at trial, we conclude that the alleged errors, to the extent they overstepped proper argument, did not rise to the level of plain error or otherwise result in a miscarriage of justice.

Finally, Moore's argues that it was entitled to a new trial because the testimony of Staffa and Buchalew was seriously contradictory on the subject of when they arrived at the bar and how long in total they drank there.   We do not view that argument as warranting extensive discussion in a written opinion, Rule 2:11-3(e)(1)(E), and state merely that the discrepancies were a matter to be argued to the jury.   The trial court's determination that a new trial was not warranted “shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.”   R. 2:10-1;  see Caldwell v. Haynes, 136 N.J. 422, 432 (1994).   We discern no such miscarriage of justice on the record here.

Affirmed.

PER CURIAM