BALDOMERO PACHECO SOLANO v. DUCKTOWN TAVERN LIQUOR JOHN EXADAKTILOS NICK EXADAKTILOS SUE EXADAKTILOS ANA FRANGIAS ANDY WELLS (2013)

Plaintiff commenced this action against the defendant-tavern and its owners and employees, alleging he was injured when forcefully ejected from the tavern at approximately 7:30 a.m., on January 1, 2008.   At the conclusion of a two-day trial, the jury determined the tavern was sixty percent negligent and plaintiff was forty percent negligent, and awarded compensatory damages in the amount of $20,000, which was molded to $12,000 based on the jury's allocation of liability.

Plaintiff filed a timely but unsuccessful motion for a new trial.   He now appeals, asserting the right to a new trial on all issues because, in his view, the jury's allocation of liability was against the weight of the evidence and likely generated the low damage award.   We find insufficient merit in plaintiff's arguments to warrant discussion in a written opinion, R. 2:11–3(e)(1)(E), and affirm.   We add only the following brief comments.

A trial judge may grant a new trial only “if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.”   R. 4:49–1(a).   On appeal, we are required to afford substantial deference to the trial judge's “feel of the case.”  Risko v. Thompson Muller Automotive Group, Inc., 206 N.J. 506, 522 (2011).   The trial judge's view is so highly regarded that our court rules preclude appellate consideration of an argument that a verdict was against the weight of the evidence unless the appellant has moved for a new trial.   R. 2:10–1.   And, with the denial of a motion for a new trial, our standard remains deferential.  “[F]rom the weight of the evidence standpoint,” a jury verdict “is impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice.”  Carrino v. Novotny, 78 N.J. 355, 360 (1979);  see also Jastram v. Kruse, 197 N.J. 216, 229 (2008).

Here, plaintiff argues there was no basis for the jury's finding that he was negligent.   Plaintiff testified he had been in the tavern for approximately three hours when he was forcibly pushed out the door by two tavern employees, causing him to suffer a broken ankle.   He claimed that, after being ejected, defendant John Exadaktilos laughed at and insulted him, throwing plaintiff's coat at him and saying “here's your s* *t because that's what you are.”   Plaintiff also testified that when the police arrived, Exadaktilos said in their presence that plaintiff was “pretending – he's a lying Mexican f* *k.”

Exadaktilos testified.   He said that he did not recognize plaintiff and denied forcibly removing him or, for that matter, anyone else from his tavern on the day in question or at any other time.   The deposition of a tavern bartender, no longer within its employ, was also read to the jury.   The former bartender testified that a patron who may have been plaintiff was “banging his bottle on the bar” trying to order another drink when Exadaktilos told the patron he had to leave.   The bartender did not see the patron depart but did realize a few moments later that he was gone.

In arguing that the jury's allocation of liability was against the weight of the evidence, plaintiff contends that defendant provided no direct evidence to refute his version and there was no evidence to suggest or permit a reasonable inference that plaintiff was negligent.   The record, however, does contain evidence, which the jury was entitled to credit, that plaintiff was disruptive and there were grounds for his removal from the premises.   And plaintiff admitted during cross-examination that he consumed eight to ten beers before the incident occurred.   The jury could have inferred from this evidence that plaintiff was unruly and inebriated, circumstances that could have impaired his judgment and coordination and contributed to his fall.   See Black v. Seabrook Assocs.   Ltd., 298 N.J.Super. 630, 636 (App.Div.), certif. denied, 149 N.J. 409 (1997).   As Judge Jayne colorfully explained in speaking for this court in Reilly v. 180 Club, Inc., 14 N.J.Super. 420, 424 (App.Div.1951), “[i]t is a subject of common knowledge that the consumption of a procession of drinks of intoxicating liquors produces a variety of reactions in the deportment of human beings,” which, in this case, could have led the jury to conclude plaintiff was negligent in the course of events that brought about his fractured ankle even though the tavern produced no direct evidence refuting plaintiff's version.

Affirmed.

PER CURIAM