DANIEL T. GAETA v. V. LAKE OWASSA COMMUNITY ASSOCIATION, ANN R. SORREL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1336-05T51336-05T5

DANIEL T. GAETA,

Plaintiff-Appellant,

V.

LAKE OWASSA COMMUNITY

ASSOCIATION, ANN R. SORREL,

Defendants,

and

KEN FREEDMAN,

Defendant-Respondent.

__________________________

 
Argued Telephonically October 18, 2006 - Decided November 2, 2006

Before Judges S.L. Reisner and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County,

L-5742-03.

Frank Viola argued the cause for appellant (Viola, Benedetti & Azzolini, attorneys; Thomas J. Benedetti, on the brief).

John F. Gaffney argued the cause for respondent (Chase, Kurshan, Herzfeld & Rubin, attorneys; Mr. Gaffney, on the brief).

PER CURIAM

Plaintiff, Daniel T. Gaeta, appeals from a jury verdict of no cause on his personal injury complaint against defendant, Ken Freedman. We reverse and remand for re-trial.

I

These are the most pertinent facts. Plaintiff and two companions were sitting in a rowboat on Lake Owassa on July 4, 2003, while fireworks were being set off along the lake shore. At the time, plaintiff was a guest of defendant Freedman, who had invited plaintiff to his rented lake house for the purpose of viewing the fireworks displays on the lake. There is no dispute that many people, including Freedman, were setting off fireworks along the lake. There is no question that Freedman's firework display was illegal; he had acquired the fireworks out of State and did not have a permit to set them off. While Gaeta sat in the rowboat, he was hit in the eye by a firework and lost vision in that eye.

Gaeta sued the Lake Owassa Community Association, Freedman, and the owner of the lake house that Freedman was renting. The claims against the landlord were dismissed before trial. Plaintiff settled his claim against the Lake Association, although the Association remained a defendant at trial for purposes of the jury's allocation of negligence between the defendants.

The central issue at the trial was whether Freedman was the person who fired the rocket that injured plaintiff. Gaeta claimed that Freedman was negligent and that he was strictly liable for firing the rocket, and the judge agreed to charge the jury on both issues. Gaeta's and Freedman's counsel each submitted proposed jury interrogatories. Both sides included questions concerning whether the Lake Association was negligent and proximately caused plaintiff's injury. But Gaeta's proposed questions also asked the jury whether Freedman had fired the rocket that injured plaintiff, and whether Freedman was strictly liable for the injury. Freedman's proposed interrogatories did not include either of those questions. Instead, his interrogatories only asked the jury to decide whether Freedman was negligent. The trial judge used Freedman's version of the jury interrogatories.

The judge charged the jury on the theory of strict liability, instructing them that "if you find that the use of fireworks was an abnormally dangerous activity, you must find that . . . Freedman is strictly liable for the consequences of his use of the fireworks if his use of fireworks was a proximate cause of the plaintiff's injuries." But there was no jury interrogatory asking the jury whether Freedman's firework proximately caused the injuries.

The court also declined Gaeta's request to charge the jury on the doctrine of res ipsa loquitor with respect to Freedman.

In returning its verdict, the jury first decided that plaintiff was not negligent. It then decided that the Lake Association was negligent and its negligence was a proximate cause of the accident. Finally, the jury answered "no" to the question of whether Freedman was negligent.

II

On this appeal, plaintiff contends that although the trial judge charged the jury on strict liability, including the need to decide whether shooting off fireworks was an abnormally dangerous activity, the judge erred in omitting questions about Freedman's strict liability from the verdict sheet. Plaintiff also contends the judge should have charged the jury on res ipsa loquitor. We address the latter issue first.

The doctrine of res ipsa loquitor allows an "'inference of the defendant's want of due care'" if the elements of a three-part test are satisfied. Szalontai v. Yazbo's Sports Caf , 183 N.J. 386, 398 (2004) (quoting Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288 (1984)). These three elements are: "'(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality [causing the injury] was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect.'" Ibid. (citation omitted). The mere

'possibility of a defendant's responsibility for a plaintiff's injuries is insufficient to impose liability. In the absence of direct evidence, it is incumbent on the plaintiff to prove not only the existence of such possible responsibility, but the existence of such circumstances as would justify the inference . . . and would exclude the idea that it was due to a cause with which the defendant was unconnected.'

[Id. at 399 (citation omitted).]

The doctrine is inapplicable if it is equally likely that the negligence causing the injury "'was that of someone other than the defendant.'" Bornstein v. Metro. Bottling Co., 26 N.J. 263, 273 (1958) (citation omitted).

We conclude that the res ipsa doctrine is inapplicable here, because Freedman was not in exclusive possession of the dangerous instrumentality at issue. Plaintiff admitted "there were fireworks being shot from different points around the lake . . . ." The question was whose firework hit Gaeta. There is no basis in this record to give plaintiff the benefit of a rebuttable presumption that it was Freedman's firework that injured him.

While we disagree with plaintiff on the res ipsa issue, we agree that the court erred with respect to the jury questions relating to strict liability. We recognize that "a trial court's interrogatories to a jury are not grounds for a reversal unless they were misleading, confusing, or ambiguous." Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997). In this case, the jury questions were ambiguous and did not permit the jury to answer clearly a critical factual dispute in the case. See Benson v. Brown, 276 N.J. Super. 553, 562-63 (App. Div. 1994) (The use of a compound question "deprived [the reviewing court] of knowing on what basis the jury answered the question." Id. at 563).

The parties agree that strict liability could be applicable if the jury decided that it was Freedman whose firework hit plaintiff, because shooting off fireworks can be considered to be an abnormally dangerous activity. Defendant thus concedes that the jury was properly instructed as to strict liability and concedes that the verdict sheet should have included a question about strict liability. Defendant argues that this omission was harmless error. We disagree.

In the factual context of this case, however, the most prejudicial error is that the verdict sheet did not contain the critical question as to whether defendant Freedman's rocket was the one that struck plaintiff. Due to the absence of that jury question, as well as the absence of a strict liability question, we cannot determine whether the jury decided that Freedman's rocket hit plaintiff but Freedman was not negligent, or whether the jury decided that it was not Freedman's rocket that hit plaintiff. This is fatal to the verdict, because, if the jury decided that Freedman's rocket hit plaintiff, they might also have concluded that Freedman was strictly liable even if he was not negligent.

For example, the jury may have concluded that the Lake Association was negligent for permitting residents to shoot off illegal fireworks around the lake, but they may also have decided that even though Freedman's rocket hit Gaeta, Freedman was not negligent because it was July 4 and everyone else around the lake was doing the same thing. But if they had been asked, they might have decided that Freedman was strictly liable for shooting the rocket. The point is not that the jury necessarily decided that Freedman's rocket hit plaintiff. Rather, the problem created by the verdict sheet is that we do not know how the jury decided that critical issue, and the absence of proper questions may have unfairly deprived plaintiff of a favorable verdict. See Benson, supra, 276 N.J. Super. at 563 (discussing the importance of tailoring the jury questions to ensure that the jury addresses all of the critical issues in the case). In these circumstances we must reverse the no cause verdict and remand the matter for re-trial.

Finally, we find no merit in defendant's argument that the improper jury questionnaire was harmless error because no reasonable jury could have found that Freedman's rocket hit plaintiff. According to plaintiff's trial testimony, he was sitting in the front of the boat, facing the center of the boat where another passenger, Thomas Giuliano, was seated. The boat itself was facing south, parallel to the western shore where Freedman's property was located. Hence, plaintiff was sitting in profile to Freedman's property. According to plaintiff, he turned to his left, which would have been toward the Freedman property, and was struck in the left eye by a rocket. Giuliano testified that he actually saw a rocket leave Freedman's property, flying "parallel to the water" rather than up in the air, and he saw the rocket hit plaintiff. Giuliano also testified that about two weeks after the accident, Freedman told him that "I can't say that it was me, I can't say that it wasn't me" who shot the firework. Another of plaintiff's witnesses testified that he, likewise, heard Freedman make a similar statement. If the jurors believed the testimony of plaintiff and his witnesses, they could have concluded that Freedman fired the rocket that hit plaintiff.

Reversed and remanded.

 

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A-1336-05T5

November 2, 2006