MATTHEW KEEFE VS. XAVIER FERNANDEZ(L-2250-11, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the

parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3760-14T2

MATTHEW KEEFE,

Plaintiff-Appellant/

Cross-Respondent,

v.

XAVIER FERNANDEZ, CHRISTINA A.

IMPELLETIERE, FEDERICO FARIA,

JIMMY D'S BLUES SALOON, ANA

MAYERS, STATE OF NEW JERSEY,

NEW JERSEY DEPARTMENT OF

TRANSPORTATION, COUNTY OF BERGEN,

BOROUGH OF TETERBORO, BOROUGH

OF MOONACHIE, TOWNSHIP OF SOUTH

HACKENSACK, NEW JERSEY MEADOWLANDS

COMMISSION, TAIS HERNANDEZ, and

AMY CHARTOFF,

Defendants,

and

BOROUGH OF RIDGEFIELD, RIDGEFIELD

FIRE DEPARTMENT, TRUSTEES OF

RIDGEFIELD LADDER COMPANY NO. 1,

GARY CHARTOFF, and ANDREW CHARTOFF,

Defendants-Respondents,

and

MELISSA CHARTOFF,

Defendant-Respondent/

Cross-Appellant.

Argued February 1, 2017 – Decided June 30, 2017

Before Judges Alvarez and Manahan.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County, Docket

No. L-2250-11.

Rosemarie Arnold argued the cause for

appellant/cross-respondent (Law Offices of

Rosemarie Arnold, attorneys; Ms. Arnold and

Paige R. Butler, on the briefs).

Ian C. Doris argued the cause for respondents

Borough of Ridgefield, Ridgefield Fire

Department, Trustees of Ridgefield Ladder

Company No. 1, Gary Chartoff, and Andrew

Chartoff (Keenan & Doris, LLC, attorneys;

Thomas A. Keenan, of counsel; Bernadette M.

Peslak, on the brief).

Anthony J. Accardi argued the cause for

respondent/cross-appellant (Accardi & Mirda,

P.C., attorneys; Mr. Accardi, of counsel and

on the brief).

PER CURIAM

Plaintiff Matthew Keefe appeals from a jury verdict finding

no cause of action against the only remaining defendant, Melissa

Chartoff (Chartoff), in his personal injury action against

multiple parties. He also appeals the court's earlier ruling

granting summary judgment to defendants Gary and Andrew Chartoff. 1

Chartoff cross-appeals the court's partial denial of an earlier

1

We will refer to them as Gary and Andrew in order to avoid

confusion with Chartoff, since the three are family members who

share the same last name. We collectively refer to Chartoff,

Gary, and Andrew as "the Chartoffs."

2 A-3760-14T2

motion for summary judgment. That decision left intact for trial

the fifth count of Keefe's third amended complaint. We now affirm.

Briefly, Keefe was severely injured when he was struck by a

drunken driver. The extent and nature of his injuries are not in

dispute. The responsible driver, Xavier Fernandez, allegedly

became intoxicated while attending a baby shower at a fire hall.

The issue in dispute is whether Chartoff's contributions to

the baby shower arrangements caused her to fall within the purview

of the social host statute, N.J.S.A. 2A:15-5.5 to -5.8. The same

question arises as to Gary and Andrew with regard to the motion

for summary judgment.

Chartoff, Maggie Ramirez, and Thais Hernandez were close

friends. Ramirez and her husband Federico Faria were expecting,

and Faria wanted to organize a baby shower, consisting of a large

number of his friends and members of his family. He asked Chartoff

to arrange the use of the Ridgefield Fire Department social hall

through her father, Gary, who is a fireman and member of Ridgefield

Hose Company No. 1. Chartoff was also responsible for printing

the shower invitations, which were distributed by Faria mainly

through his barber shop. She also carried decorations to the hall

before the party. Faria employed the services of a bartender and

a disc jockey for the party.

3 A-3760-14T2

Chartoff's brother Andrew, also a fireman, represented the

Ridgefield Hose Company No. 1 during the party —— which meant he

was responsible for cleanup afterwards and was required to be

present during the party to ensure the premises were not damaged.

The Chartoffs had nothing to do with making up the guest

list, distributing invitations, selecting food or drink, or any

other aspect of hosting the event. Chartoff testified that she

was acquainted with no more than ten people at the shower,

including her mother and the parents-to-be. Neither she nor anyone

in her family were acquainted with Fernandez, and neither Chartoff

nor Gary recalled seeing him during the party.

The trial took place over twenty-one days, ending on January

14, 2015. During her summation, which the trial judge interrupted

four times, Keefe's attorney attacked the truthfulness of the

defense witnesses, including the Chartoffs, and counsel. As the

trial judge described it, Keefe's attorney said that "the defense

case was set up[,]" and that Chartoff's attorney attempted to

confuse or mislead the jury.

Keefe's attorney objected on the record, before

deliberations, to the instruction the judge proposed to give the

jury about her summation. The basis for Keefe's attorney's

objection was twofold, that Chartoff's counsel had attacked her

during his summation, and that although an instruction regarding

4 A-3760-14T2

inappropriate comments by both attorneys might be warranted, she

should not be singled out for criticism. Keefe's counsel was also

concerned that the instruction the judge fashioned would

completely undermine the theory of the case she had argued to the

jury: that the Chartoffs, Faria, and Ramirez had concocted a

false narrative so Chartoff could avoid any legal liability.

Nonetheless, the judge gave the instruction. The events following

summation and the instruction are set forth in detail in the

relevant sections.

After the jury returned its no cause of action decision, the

judge denied Keefe's motion for judgment notwithstanding the

verdict. See R. 2:10-1. Keefe raises the following points for

our consideration:

POINT I

THE TRIAL COURT ERRED IN GRANTING SUMMARY

JUDGMENT TO ANDREW AND GARY CHARTOFF AS AGENTS

OF THE RIDGEFIELD HOSE COMPANY NUMBER ONE,

INC. IN THE FACE OF FACT ISSUES AS TO WHETHER

THEY WERE SOCIAL HOSTS WITHIN THE MEANING OF

N.J.S.A. 2A:15-5.5.

POINT II

THE SUMMARY JUDGMENT IN FAVOR OF ANDREW AND

GARY MANIFESTLY DISTORTED THE TRIAL TO

PLAINTIFF'S DETRIMENT.

POINT III

THE JURY VERDICT IN FAVOR OF MELISSA CHARTOFF

WAS AGAINST THE WEIGHT OF THE EVIDENCE AND

RESULTED IN A MISCARRIAGE OF JUSTICE,

COMPELLING A JNOV OR A NEW TRIAL.

5 A-3760-14T2

A. Melissa Admitted at Trial that she

Expressly Invited People to the Baby

Shower by, inter alia, Designing,

Printing and Putting Labels on the

Invitations, as well as Sending

Invitations.

B. Melissa's Conduct Amounted to an Implied

Invitation.

POINT IV

THE TRIAL COURT'S DECISION TO PERMIT NON-PARTY

FARIA TO APPEAR ON THE JURY VERDICT SHEET FOR

PURPOSES OF APPORTIONMENT OF FAULT, WAS AN

ERROR THAT LED TO AN UNJUST VERDICT.

POINT V

THE TRIAL JUDGE ERRED BY CONTINUOUSLY

INTERRUPTING PLAINTIFF'S SUMMATION AND THEN

GIVING AN INSTRUCTION SUA SPONTE TO THE JURY

AS PART OF ITS CHARGE THAT IMPORTANT ARGUMENTS

IN THE SUMMATION SHOULD BE DISREGARDED,

DESPITE THE LACK OF OBJECTION BY DEFENSE

COUNSEL. THIS RULING DEMEANED COUNSEL AND

QUESTIONED HER CREDIBILITY AND SEVERELY

UNDERMINED THE ENTIRE PRESENTATION OF

PLAINTIFF'S CASE.

A. Summation.

B. Plaintiff's Counsel's Comments during

Summation were Completely Legitimate

Based Upon the Evidence at Trial.

Chartoff's cross-appeal states:

IN THE EVENT THE APPELLATE COURT VACATES THE

JURY VERDICT AND REMANDS FOR A NEW TRIAL, THEN

MELISSA CHARTOFF APPEALS THE DENIAL OF HER

MOTION FOR SUMMARY JUDGMENT ON THE 5TH COUNT

OF THE THIRD-AMENDED COMPLAINT.

A. Standard of Review.

6 A-3760-14T2

B. Melissa Chartoff did not "provide"

alcoholic beverages to Xavier N.

Fernandez; as such, Melissa Chartoff

cannot be held liable for Plaintiff's

injuries under N.J.S.A. 2A:15-5.5, et

seq.

C. Judge Steele erred as a matter of law in

denying Melissa Chartoff's motion, which

error warrants the reversal of her order

and the grant of summary judgment in

Melissa Chartoff's favor.

I.

A.

We review a grant of summary judgment de novo, meaning we

apply the same standard that governed the trial court. Henry v.

N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (citing

Busciglio v. Della Fave, 366 N.J. Super. 135, 139 (App. Div.

2004)). Summary judgment must be granted if "the pleadings,

depositions, answers to interrogatories and admissions on file,

together with affidavits, if any, show that there is no genuine

issue as to any material fact challenged, and that the moving

party is entitled to a judgment or order as a matter of law." R.

4:46-2(c); see Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 529-30 (1995).

In conducting this review, we interpret the facts, and any

inferences therefrom, in the light most favorable to the non-

moving party. See Lippman v. Ethicon, Inc., 222 N.J. 362, 367

7 A-3760-14T2

(2015) (citing Brill, supra, 142 N.J. at 523, 540). If there is

a genuine issue as to any material fact, summary judgment should

be denied. R. 4:46-2(c); Brill, supra, 142 N.J. at 540.

B.

Pursuant to N.J.S.A. 2A:15-5.6, an injured party:

may recover damages from a social host only

if:

(1) The social host willfully and knowingly

provided alcoholic beverages either:

(a) To a person who was visibly

intoxicated in the social host’s

presence; or

(b) To a person who was visibly

intoxicated under circumstances

manifesting reckless disregard of

the consequences as affecting the

life or property of another; and

(2) The social host provided alcoholic

beverages to the visibly intoxicated person

under circumstances which created an

unreasonable risk of foreseeable harm to the

life or property of another, and the social

host failed to exercise reasonable care and

diligence to avoid the foreseeable risk; and

(3) The injury arose out of an accident caused

by the negligent operation of a vehicle by the

visibly intoxicated person who was provided

alcoholic beverages by a social host.

[N.J.S.A. 2A:15-5.6.]

Keefe objects to the grant of summary judgment, contending

that there was a genuine issue of material fact regarding whether

8 A-3760-14T2

or not Andrew and Gary invited guests to the premises, and whether

they were social hosts within the meaning of the statute. In

rendering his decision, the judge found that Gary and Andrew did

not invite any guests to the shower and were otherwise uninvolved

in the arrangements or giving of the party. He also found that

Andrew was present during the event solely to ensure the premises

were not damaged, and as a representative of the fire company.

Accordingly, neither man was a social host within the meaning of

the statute.

A social host is defined as:

a person who, by express or implied

invitation, invites another person onto an

unlicensed premises for purposes of

hospitality and who is not the holder of a

liquor license for the premises and is not

required to hold a liquor license for the

premises . . . , and who legally provides

alcoholic beverages to another person who has

attained the legal age to purchase and consume

alcoholic beverages.

[N.J.S.A. 2A:15-5.5.]

Gary's involvement was limited to approving the use of the

premises. The record is bare of any suggestion that Gary had any

other involvement. Nothing in the record suggests that he even

knew that alcohol would be served. Thus, he could not be found

to have "legally provide[d] alcoholic beverages to another

person[.]"

9 A-3760-14T2

Like his father, Andrew had nothing to do with planning or

preparation for the party. His mere presence at the hall does not

make him a person who "provided" alcohol to the guests. As a

matter of law based on uncontroverted facts, neither was a social

host. Summary judgment was properly granted.

C.

Little needs to be said about Keefe's claim that the grant

of summary judgment to Gary and Andrew "manifestly distorted the

trial to [Keefe's] detriment[.]" Undoubtedly, the case would have

been stronger had Keefe been able to establish that the baby shower

was a "joint Chartoff family event[.]" That would have required

entirely different circumstances than those we see in the record,

however. Hence, the grant of summary judgment to Gary and Andrew

did not in any way prejudice plaintiff's presentation. The point

is so lacking in merit as to not warrant further discussion in a

written opinion. R. 2:11-3(e)(1)(E).

II.

A.

We should not reverse a trial court's denial of a motion for

judgment notwithstanding the verdict (JNOV) unless it "clearly

appears that there was a miscarriage of justice under the law."

R. 2:10-1. In reaching a decision, we focus "on whether the

evidence submitted to the jury, and any legitimate inferences

10 A-3760-14T2

which can be drawn from that evidence, support the jury verdict."

Wade v. Kessler Institute, 343 N.J. Super. 338, 354 (App. Div.

2001) (citing Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396,

415 (1997)). In performing this review, we "must accept as true

all evidence supporting the position of the party defending against

the motion and must accord that party the benefit of all legitimate

inferences which can be [deduced from the evidence]." Besler v.

Board of Educ. of West Windsor-Plainsboro Regional School Dist.,

201 N.J. 544, 572 (2010) (alteration in original) (quoting Lewis

v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998)). The jury's factual

determinations should only be disturbed if the reviewing court

finds that the jury could not have reasonably reached its verdict

on the evidence presented at trial. Sons of Thunder, supra, 148

N.J. at 415.

A trial judge "shall grant" a motion for a new trial "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). We review a trial court order denying a new trial

under essentially the same standard as that applied by the trial

court. Hill v. N.J. Dept. of Corr., 342 N.J. Super. 273, 302

(App. Div. 2001) (citing R. 2:10-1). "This standard applies

whether the motion is based upon a contention that the verdict was

11 A-3760-14T2

against the weight of the evidence, or is based upon a contention

that the judge's initial trial rulings resulted in prejudice to a

party." Ibid. (citing Crawn v. Campo, 136 N.J. 494, 510-12

(1994)). If there was legal error during the trial, we also accord

deference to the trial judge's evaluation of the prejudice that

resulted, and whether that prejudice contributed to an unjust

result. Ibid. (citing Crawn, supra, 136 N.J. at 512).

B.

We simply cannot agree with Keefe that the denial of his

motion for JNOV was a miscarriage of justice under the law. There

was no proof that Chartoff did anything more than print invitations

and help in securing the hall. Chartoff had nothing to do with

the creation of the guest list, the provision of food, or the

provision of drinks. Of the 100 or so partygoers, she knew about

ten of them. To the best of her knowledge, Chartoff never saw the

driver. She did not provide anyone with alcohol at the event.

Accepting Chartoff's evidence as true, and giving her the benefit

of all favorable inferences, it does not appear that the jury

reached an unjust result. There was no evidence to support finding

Chartoff a social host.

Nor was the verdict a miscarriage of justice. A motion for

a new trial "should be granted only where to do otherwise would

result in a miscarriage of justice shocking to the conscience of

12 A-3760-14T2

the court." Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J.

506, 521 (2011). There was no proof that Chartoff was a social

host or that she provided the driver with alcohol. The jury's

verdict was reasonable in light of the evidence.

III.

A.

The jury is entitled to clear and correct charges, and their

absence may constitute plain error. Wade v. Kessler Inst., 172

N.J. 327, 341 (2002). However, we will not disturb a jury's

verdict "where the charge, considered as a whole, adequately

conveys the law and is unlikely to confuse or mislead the jury,

even though part of the charge, standing alone, might be

incorrect." Ibid. (quoting Fischer v. Canario, 143 N.J. 235, 254

(1996)). See also, Sons of Thunder, supra, 148 N.J. at 418. The

same standard of review applies to jury interrogatories and verdict

sheets. Ibid.

The four-page verdict sheet asked in the first question:

1. Has plaintiff Matthew Keefe proven by a

preponderance of the evidence that

Melissa Chartoff was a social host, as

defined by law, by either expressly or

impliedly inviting another person or

persons to the party on January 22, 2011?

Yes________ No √ Vote 8-0

If you answered "yes" to this question,

then proceed to answer question #2; if

13 A-3760-14T2

you answered "no" to this question, then

stop your deliberations, proceed no

further and return your verdict.

The jury decided that Chartoff was not a social host, and

therefore stopped deliberations after the first question. The

argument raised by Keefe that the driver should not have been

included on the later questions is essentially moot as the jury

never reached those questions.

Nonetheless, we briefly reiterate well-established legal

principles. The court was required to include Faria under the

Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8. "[T]he

trier of fact must allocate the percentage of fault among the

settling and non-settling defendants to enable the court to

calculate the percentage attributable to the non-settlers."

Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 112-113 (2004)

(citing Young v. Latta, 123 N.J. 584, 592 (1991)).

It is well established that a defendant who is not protected

by statutory immunity, but was dismissed from the case on some

other grounds, "remains a 'party' to the case for the purpose of

determining the non-settling defendant's percentage of fault."

Town of Kearny, supra, 214 N.J. at 100 (quoting Brodsky, supra,

181 N.J. at 113); see also R. 4:7-5(c); Verni ex rel. Burstein v.

Harry M. Stevens, Inc., 387 N.J. Super. 160, 205, 215 (App. Div.

2006) (reversing grant of motions for summary judgment filed by

14 A-3760-14T2

personal injury plaintiff on behalf of settling defendants in

order to bar allocation of fault to settling defendants), certif.

denied, 189 N.J. 429 (2007).

Likewise, it does not matter that defendants failed to

properly serve their cross-claim for contribution against Faria.

In Young v. Latta, supra, 123 N.J. at 586, the Court held this

credit "is available in every case in which there are multiple

defendants, whether or not a cross-claim for contribution has been

filed."

Accordingly, mention of Faria had no impact on the jury's

verdict because they never reached the pages of the verdict sheet

that mention him, much less the question. In any event, the

judge's decision to include him was correct on the law.

IV.

Finally, we address Keefe's contention that the judge erred

by interrupting her summation and giving the jury instruction

regarding her summation comments. We note that despite identifying

the interruptions, Keefe does not explain how they might have

affected jury deliberations, the jury's perception of his counsel,

or the final verdict. The interruptions, as enumerated by Keefe,

were: (1) the court interrupted counsel to only comment on the

evidence not to testify; (2) the court criticized counsel's

operation of the power point presentation containing slides of

15 A-3760-14T2

trial testimony; (3) the court interrupted counsel and gave a

curative instruction regarding a comment made by Keefe's attorney

as to the nonappearance of a nonparty witness; (4) the court

interrupted counsel, instructing her not to use the names of jurors

when giving hypotheticals. Having considered the entirety of the

trial record, we conclude these interruptions do not have the

potential to have led the jury to an unfair result.

At the close of Keefe's counsel's summation, Chartoff's

attorney moved for a mistrial because of Keefe's attorney's closing

comments regarding the alleged conspiracy to protect Chartoff from

liability, and the alleged dishonesty of the witnesses. Although

she denied the motion, the judge informed counsel that she intended

to draft an instruction advising the jury to ignore the statements.

She later read the instruction, and allowed Keefe's attorney to

fully place her objections to it on the record. The instruction

reads:

The lawyers are here as advocates for

their clients. In their opening statements

and their summations they have given you and

their views of the evidence and their

arguments in favor of their client's position.

While you may consider their comments, nothing

that the attorneys say is evidence. And their

summations or their comments are not binding

on you, any comment from counsel.

And now jurors, I do have an additional

instruction that I wish to give you, that is

not in the submission. At this time I address

16 A-3760-14T2

something with you, the jury, that involves

comment of counsel in the summations that you

heard yesterday, and in particular with regard

to plaintiff's counsel's summation which you

heard yesterday afternoon. In that summation,

you may have heard or remember comment of

plaintiff counsel stating more than once, "the

defense case was setup from the beginning to

mislead you" or words to that effect. You may

have heard or remember other similar or

related comment or argument of plaintiff

counsel in what she characterized as defense

counsel's attempt to confuse you, mislead you,

or to present a rouse to you in the defense

case.

You are instructed that this argument by

plaintiff counsel has no rightful place in

proper commentary on the evidence before you.

In summations counsel are permitted to argue

and comment on the evidence presented and to

comment on the credibility of the witnesses

presented. These comments by plaintiff

counsel were improper and as such you are

instructed to disregard argument or comment

that suggested to you that the defense is

trying to mislead you or rouse you with the

evidence.

The point is . . . that you are to

consider argument of counsel that does comment

on the evidence, and does comment on the

credibility of the testimony presented.

Nothing that the attorneys say is evidence,

either one. And finally, as I've instructed

to you previously nothing that either attorney

has said is binding upon you.

After reviewing Keefe's summation, we find the instruction

was warranted. Impugning the trustworthiness of defense counsel

and the character of the defense witnesses and Chartoff herself

17 A-3760-14T2

when there was no basis in the record to do so required action by

the court.

"In general, we afford counsel broad latitude in closing

arguments." Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128

(2008) (citing Bender v. Adelson, 187 N.J. 411, 431 (2006)).

However, "it is improper for an attorney to make derisive

statements about parties, their counsel, or their witnesses."

Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 178 (App. Div.

2010); see also Henker v. Preybylowski, 216 N.J. Super. 513, 518-

520 (App. Div. 1987) (noting that the cumulative effect of

inappropriate comments by plaintiff's counsel, including remarks

on motives and trustworthiness of defense counsel, "probably"

entitled defendant to a new trial); Rodd v. Raritan Radiologic

Associates, P.A., 373 N.J. Super. 154, 171 (App. Div. 2004)

(citations omitted) ("attorneys . . . may not use disparaging

language to discredit the opposing party, or witness, . . . or

accuse a party's attorney of wanting the jury to evaluate the

evidence unfairly, of trying to deceive the jury, or of

deliberately distorting the evidence."); Tabor v. O'Grady, 59 N.J.

Super. 330, 340-341 (App. Div. 1960) (holding plaintiffs' counsel

"far exceeded the bounds of proper comment and argument" by casting

"unjustified aspersions on defense counsel's motives" and by

describing the defense as "'replete with misleading red herrings'

18 A-3760-14T2

and . . . based on trickery, shameful conduct, and the pulling of

'stunts'").

We cannot agree with Keefe's counsel's characterization of

the trial record. The attacks on Chartoff's attorney and the

defense testimony exceeded the bounds of legitimate disagreement.

Counsel was clearly using disparaging language with the intent of

raising a suspicion in the juror's minds that some unspecified

conspiracy was at play to protect Chartoff from liability. That

suggestion was not supported by the trial record, exceeded the

bounds of proper commentary, and made the issuance of a jury

instruction necessary. We also disagree that Chartoff's

attorney's summation justified the response.

The judge's instruction was prefaced by the standard model

jury charge language regarding the role of attorneys. And although

the judge told the jury that the argument that Chartoff's counsel

was attempting to mislead them had no "rightful place in proper

commentary on the evidence[,]" she went on to discuss the

difference between argument and evidence. The judge reiterated

that nothing "either" attorney said in summation is evidence. The

judge ended with "nothing that either attorney has said is binding

upon you."

The instruction was necessitated by Keefe's counsel's

summation. It underscored that the arguments made by the attorneys

19 A-3760-14T2

are distinct and separate from the evidence, and that only the

jury's independent assessment of that evidence determined the

verdict, not the opinion of the judge or attorneys, or any comments

they may have made.

V.

Finally, we do not address Chartoff's cross-appeal. It is

unnecessary in light of our decision to affirm the jury's verdict.

Affirmed.

20 A-3760-14T2