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Debra Olsen (FACEBOOK photo)
It was before dawn, March 13, 2006, when Olsen drove down to the nearby 7-Eleven for a pack of cigarettes.
On the way, her car either hit something or had tire trouble, records show, so she pulled into the Wallington Exchange parking lot across from the convenience store.
Olsen — then a 47-year-old accounts payable manager — got out of her car and tripped on a pothole in the lot, “twisting and breaking her right ankle so that the bone pierced the skin,” court records show.
“She then returned to her car and drove straight ahead a short distance onto some boulders near the river bank,” the state Appellate Division opinion says.
Wallington Police Officer Thomas Kruk responded, reported detecting the odor of alcohol on her breath and charged Olsen with driving while intoxicated in a school zone, among other motor vehicle offenses, court records show.
However, when results of a blood test came back negative, all of the charges were dismissed.
Olsen sustained an “acute post-traumatic compound fracture of the tibia and fibula of the right ankle,” which required “multiple surgical procedures and [left her with] residual scarification deformity and loss of function,” records show.
Walking into court with a cane before eventually having to use a wheelchair, Olsen testified that she was hospitalized six or seven times for at least a week each and was confined to the wheelchair for 18 months after the incident.
Lawyers for the restaurant didn’t contest the severity of Olsen’s injuries — but they did insist that she trespassed at the facility, which they said operates as a private banquet hall and not a public restaurant. A “Customer Parking Only” sign was posted in the lot, they said.
A Superior Court judge in Hackensack rejected the trespassing claim, noting that the parking lot “was open to a major thoroughfare,” and that the restaurant “took no steps to close off the parking lot from ingress and egress from the public roadway; [and] there was no indication or evidence that [plaintiff] had intended to park or store her vehicle on the premises.”
The local judge also determined that the dismissed drunk driving charge was inadmissible.
“There was no evidence of alcohol in the blood or anything like that,” the judge told jurors in the case. “We wouldn’t want you to speculate that [alcohol played any role in what happened].”
Jurors later determined that the restaurant was 75 percent at fault “for not properly maintaining” the parking lot and Olsen 25 percent liable for her accident. They awarded Olsen $1,281,755.50.
The Exchange appealed, arguing that the judge erred in both findings.
However, given Olsen’s purpose for stopping, the appellate judges ruled, she was a “licensee” and not a trespasser, as defined under state law. The restaurant, in turn, owed some “degree of care” to someone “whose purposes for being on the land may be personal,” they noted.
As for the restaurant’s other argument, the appeals court said its lawyers didn’t introduce any of the blood-test records to the judge or dispute the officer‘s reasons for ordering that a sample be taken.
What’s more, they said, Olsen did mention during the trial that she may have taken a prescription drug before leaving her house that night.
“It was not an abuse of discretion for the court to prevent the jury from considering the officer’s observation of the odor of alcohol in light of the stipulated blood test showing the presence of no alcohol in [Olsen’s] blood,” they wrote.
“We find in the context of the proofs presented at trial that neither of the two decisions complained of by defendant constitutes reversible error,” the appeals court concluded.
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