VITO LANGONE v. FOOD-A-RAMA t/a SHOP RITE OF WEST LONG BRANCH STORE NO. 623, WLB ASSOCIATES, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1562-04T5

VITO LANGONE,

Plaintiff-Appellant,

v.

FOOD-A-RAMA t/a SHOP RITE

OF WEST LONG BRANCH STORE

NO. 623, WLB ASSOCIATES, INC.,

Defendant-Respondent.

___________________________________

 

Argued December 21, 2005 - Decided

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-3472-01.

Stuart S. Ball argued the cause for appellant (Ball Livingston, attorneys; Mr. Ball, on the brief).

James L. McKenna argued the cause for respondent (McKenna, Walker & Capriotti, attorneys; Mr. McKenna, on the brief).

PER CURIAM

Plaintiff appeals a jury verdict in his personal injury, fall-down litigation against commercial tenant Shop Rite, with which plaintiff settled prior to trial, and commercial owner WLB Associates, Inc. (WLB). The jury found all three at fault and apportioned plaintiff's comparative negligence at forty-four percent, Shop Rite's at thirty-four percent, and WLB's at twenty-two percent. At issue in this appeal is the trial judge's submission to the jury of Shop Rite's liability and the molding of the damage award by the judge for Social Security benefits that plaintiff receives. We affirm in part and reverse in part.

We need not recount all of the evidence. Suffice it to say, at the time of the accident, plaintiff was delivering bakery goods to Shop Rite and the loading dock area where plaintiff had to negotiate his delivery was anything but reasonably safe. Further, plaintiff's own negligence was plainly an issue for the jury, as was the respective negligence of Shop Rite and WLB. In this respect, in denying plaintiff's motion for a new trial on this issue, the trial judge said:

This is a notice . . . of a motion for a new trial based on the judgment that's about to be entered based on the jury verdict sheet. The jury deliberated for a rather lengthy period of time, given the length of the testimony.

And the aspect that's being sought for the motion for a new trial is the jury verdict which attributed the liability for the accident 22 percent on the remaining defendant who went to trial, who is opposing this motion, 34 percent to the tenant of the building, Shop Rite, and 44 percent on the plaintiff, Vito Langone, who brought this suit arising out of an accident in August of 1999 when Mr. Langone was employed delivering baked goods to the premises for sale at the Shop Rite.

The jury determined after listening to Mr. Langone's version of how he entered the store, looking at the photographs of the area of where the accident happened, the photographs were quite clear and graphic. It showed the rear of a store with some steps and some metal structures that looked like either loading bins or garbage bins or other structures along there.

So that the plaintiff, somewhat to the rear of the store which was located on Route 36 in West Long Branch, New Jersey in the course of delivery as he described to the jury had to maneuver the baked goods onto some sort of pull trolley and then get to the area of the stairs and then somehow maneuver all of those goods up onto the platform and into the store.

The lease that governed this area between the defendant WLB Associates and defendant Shop Rite, who had settled, provided in article 4 some language that related to this area of the store where the accident happened. It should also be noted that during the course of the trial the evidence presented made it fairly clear that the only egress and ingress to this store was either through the front door or this back door for deliveries. There were no other apparently alternate doors that the plaintiff could have utilized.

And there was evidence, mainly from the plaintiff, that when he appeared with his truck to deliver the goods, that the store tenant, Shop Rite, had a checker, that is to check who was there to deliver and what it was that he was delivering and had various paperwork to be done so that the goods could get inside the store.

In any event, the relevant sections of the lease provided in section 4.02, landlord shall provide an adequate and sufficient area adjacent to and adjoining the tenant service entrance for standing, loading, unloading and otherwise servicing the demise premises.

The very next section is the key section. Landlord agrees to provide and maintain - the copy of - there was evidence that there was several forms of the lease that had been executed years earlier and the copy that went into evidence indicated the next phrase, at its own cost and expense, was omitted. Because at the time of the version of the lease that was in effect at this time, the handwritten language was the one that applied, that is part of the common area charges throughout the term of this lease.

Adequate lighting for the areas marked parking on exhibit A, and to keep said area and drainage and lighting systems and sidewalks, aisles, streets, driveways and service and common areas in the shopping center in good order and repair and to keep said parking areas, sidewalks, aisles, streets, driveways, service and common areas unobstructed, properly drained, free of ice and snow, properly striped and in a clean sanitary condition.

Tenant shall be responsible for cleaning and snow removal for sidewalk directly in front of tenant's premises. The last sentence of that paragraph, which is the key sentence, tenant shall be responsible for garbage removal and for tenant's premises and for cleaning and maintaining rear loading dock area of the tenant's premises.

The plaintiff's position is that that language is unambiguous in favor of the landlord, that the landlord has a non delegable duty to maintain this area and that the reference to maintenance really related to the cleaning of the area from garbage and debris and the like, which is mentioned in the phrase before it. And therefore when the premises fell into the condition such that it was at the time of the plaintiff's fall, that there was no one other than defendant WLB Associates under the terms of this lease that could be held liable for the condition that caused plaintiff's injuries.

There's no question that the jury found that the condition of the premises was the proximate cause in addition to the plaintiff's own negligence and then apportioned between the parties those which the jury viewed as being the proximate cause of the accident, those parties who were negligent.

The response of the defendant is that at the time of trial pursuant to Model Civil Jury Charge 117, the defendant says that it understood that the plaintiff having settled with Shop Rite, the defendant WLB had the burden under Model Civil Jury Charge 117 to demonstrate that the party that settled was partially responsible and proximately caused the accident. And it points to the same exact language and says that it produced a former partner of WLB who asserted that based on this language that it was part of the tenant's duties to maintain the rear loading dock area of the tenant's premises.

One case that was discussed at the time was the McBride case at the time of trial and it must be considered now. That's McBride v. Port Auth. of N.Y. & N.J., 295 N.J. Super. 521 (App. Div. 1996). That point, however, at the time of the trial the purpose of raising that case was brought by the plaintiff.

This citation was brought into the case to demonstrate that the defendant had a non delegable duty of maintenance to this area based on this language of the lease, and that in the situation of McBride, in that respect could not be cited to alleviate this defendant from its responsibility and that is the correct view of the law as it relates to WLB Associates.

But the issue here is whether or not this language also provides a duty to the tenant as well. The Court determined at the time of trial when the same motion was made and determines now that the language that says in the final sentence, tenant shall be responsible for garbage removal for tenant's premises and for cleaning and maintaining the rear loading dock area of the tenant's premises, is unambiguous.

It's unambiguous because the proofs showed that given the layout of the shopping area, there were literally only two areas that could be utilized for the loading of goods into the premises and that's where the plaintiff's accident happened. And the other entrance was for the customers to come through, through the store.

Indeed the plaintiff did make the argument to the jury that if the plaintiff had attempted to enter through the front door, no doubt the store manager would have been most upset and ordered him to go to the rear, which clearly was an inference that he was entitled and did make to the jury and the jury was entitled to consider that evidence properly so because it was a clear inference that could be drawn from the evidence that was produced by plaintiff as to the premises and how it was actually utilized during the lease.

But the lease itself in that respect is, at least to this Court, almost as unambiguous as the lease in McBride because it clearly indicates that not only was the tenant responsible for the garbage removal but also for cleaning and maintenance of the rear loading dock area and that's because, as the jury no doubt heard, that that's where all of the deliveries, that area is where all of the deliveries occurred.

So that that evidence was properly submitted to the jury and that when the jury heard that evidence and considered the lease that was in evidence, it was entitled to find that the tenant was liable under those circumstances.

We agree and do not tally further with this issue.

As to the Social Security award offset issue, the record reveals that an ALJ in the Social Security proceeding determined that plaintiff was totally disabled as of June 30, 2000. An award of total disability payments commenced December 1, 2000. That, of course, encompasses recompense for lost wages. The jury here awarded plaintiff $150,000 for lost wages. There is no contention that this award is for future lost wages and, thus, it represents wages from August 1999, when plaintiff claimed he could no longer work, to the date of the verdict, May 19, 2004. The parties agree that from December 1, 2000, the date Social Security benefits began, to the date of the verdict, is 177 weeks. Thus, plaintiff received total disability benefits from a source other than the tortfeasor from December 2000, to the jury verdict, or 177 weeks.

N.J.S.A. 2A:15-97 provides:

In any civil action brought for personal injury or death, except actions brought pursuant to the provisions of P.L. 1972, c. 70 [Automobile Insurance Cost Reduction Act, N.J.S.A. 39:6A-1 to -35], if a plaintiff receives or is entitled to receive benefits for the injuries allegedly incurred from any other source other than a joint tortfeasor, the benefits, other than workers' compensation benefits or the proceeds from a life insurance policy, shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award recovered by the plaintiff, less any premium paid to an insurer directly by the plaintiff or by any member of the plaintiff's family on behalf of the plaintiff for the policy period during which the benefits are payable. Any party to the action shall be permitted to introduce evidence regarding any of the matters described in this act.

[Emphasis added.]

The statute applies to Social Security benefits. Parker v. Esposito, 291 N.J. Super. 560, 565-66 (App. Div.), certif. denied, 146 N.J. 566 (1996); Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 588 (App. Div.), certif. denied, 142 N.J. 574 (1995). See also Kiss v. Jacob, 138 N.J. 278, 282 (1994) (noting, among others, social legislation such as social security as a benefit contemplated by the common law collateral source rule).

At common law, the collateral source rule prohibited the reduction of a tort judgment by monies received from other sources and precluded a defendant from presenting evidence at trial that plaintiff received payment for any part of his damages from some other source. Perreira v. Rediger, 169 N.J. 399, 406 (2001). Thus, under the common law collateral source rule, "payments made to an injured party by a source other than the tortfeasor are 'not credited against the tortfeasor's liability, although they cover all or a part of the harm for which the tortfeasor is liable.'" Id. at 406-07 (quoting Restatement (Second) of Torts 920A(2) (1977)). Injured plaintiffs, under the rule, could receive double recoveries.

N.J.S.A. 2A:15-97 was enacted primarily to eliminate double recovery by an injured plaintiff and secondarily to effectuate cost containment for the insurance industry. Perreira v. Rediger, supra, 169 N.J. at 403, 410; Kiss v. Jacob, supra, 138 N.J. at 281. As the Court pointed out in Perreira:

The legislative history of the statute is instructive. The Senate Judiciary's Committee statement to the bill, then S. 2708, declared:

The traditional 'collateral source rule' holds that damages awarded in a suit for personal injury or wrongful death should not be reduced because the insured claimant has received insurance proceeds or other compensation covering the same injuries. In effect a claimant is paid twice for the same injury.

[Statement by Senate Judiciary Committee (October 30, 1986).]

The Committee's comments made clear that S. 2708 "would eliminate the collateral source rule and require that awards for personal injury be reduced by any compensating benefits which the plaintiff has received from other sources." Ibid. (emphasis added).

The Assembly Insurance Committee statement to S. 2708 reiterated the Senate statement and noted a separate goal to be achieved by the amendment:

Generally, awards in civil suits are intended to compensate injured persons for such things as loss of wages, medical costs, and other costs which are attendant to the injury. To the extent that the injured party is being compensated for the same things from different sources there is double recovery on the part of the plaintiff. This bill, by requiring that the benefits received from the other sources be offset against the award, is intended to effect cost containment.

[Statement by Assembly Insurance Committee (Sept. 1, 1987) (emphasis added).]

Significantly, the Passed Bill memo prepared by Governor's counsel stated:

This bill attempts to reduce the cost of liability insurance by reducing the likelihood of a 'double recovery' in a liability award for items which were already compensated by insurance or by other 'collateral' sources, other than a tortfeasor.

[Passed Bill Memo to Governor Thomas H. Kean (Dec. 7, 1987) (emphasis added).]

That legislative history reaffirms the plain language of N.J.S.A. 2A:15-97 and underscores that it had more than one purpose. To be sure, its primary purpose was to disallow double recovery to plaintiffs, but a secondary goal was clearly the containment of spiraling insurance costs. The effectuation of no-double-recovery therefore required a separate legislative decision regarding which segment of the insurance industry would be the beneficiary of that disallowance. The Legislature had two choices: to benefit health insurers by allowing repayment of costs expended on a tort plaintiff, or to benefit liability carriers by reducing the tort judgment by the amount of health care benefits received.

As the legislative history reveals, the choice was made to favor liability carriers. See Kiss v. Jacob, [supra,] 138 N.J. [at] 282 (stating that intent of the legislature was to control spiraling automobile-insurance costs); Fayer v. Keene Corp., 311 N.J. Super. 200, 208 (App. Div. 1998) (agreeing that purpose of statute is to shift burden to health industry); Parker v. Esposito, [supra,] 291 N.J. Super. [at] 565 (stating that purpose of collateral source statute is to prevent double recovery thereby giving relief from increasing costs of liability insurance); Lusby v. Hitchner, 273 N.J. Super. 578, 591 (App. Div. 1994) (stating that legislative determination "was apparently not only to prevent plaintiffs from obtaining a double recovery but also, except where PIP payments are involved, to shift the burden, at least to some extent, from the liability and casualty insurance industry to health and disability third-party payers"). That legislative determination took the form of a reduction from the tort judgment of the amount received from collateral sources. By that action, the Legislature eliminated double recovery to plaintiffs, reduced the burden on the tortfeasors' liability carriers and left health insurers in the same position as they were prior to the enactment of N.J.S.A. 2A:15-97.

[169 N.J. at 409-11.]

From this, we discern two effects of N.J.S.A. 2A:15-97 upon tort verdicts subject to its application: 1) the off-set required by the statute is for duplication of "benefits," and 2) the off-set is taken from the part of the jury award that represents a duplication thereof. Here, the Social Security award and the $150,000 lost wage award represent duplicate "benefits" for the total disability. Moreover, it matters not that the jury may have determined plaintiff was totally disabled from the accident whereas the ALJ determined the accident was only partially, albeit substantially, causative. The plain fact is, the lost wage award and the Social Security award provide the same type of recompense.

The trial judge, then, correctly concluded in his October 22, 2004, oral decision:

To the first point, the collateral source statute is N.J.S.A. 2A:15-97. And it reads in pertinent part, if a plaintiff receives benefits for injuries allegedly incurred from any other source, the amount thereof which duplicates any benefit, any benefit contained in the award, shall be deducted from any award. To me that language is unmistakable and not vague.

It means that when the plaintiff received an award from a collateral source, which was the Social Security Administration, for being unable to work at all, which was the claim he made in front of this jury, the 177 weeks that he received that benefit is a collateral source, even if it's the cumulative effect of a subsequent accident.

[I]t's still within the plain meaning of the statute, duplicates that portion of the $150,000 which the jury awarded, because the jury accepted the plaintiff's version that he was in fact unable to work at all, discounted the evidence that was produced by the defendant to dispute that. And therefore the Court finds that the collateral source should apply.

The parties do not dispute the mathematical calculation of the 177 weeks of duplication by the judge, i.e., $53,593. That amount should have been deducted from the $150,000 lost wage verdict before adjustment to reflect the fault apportionment. Furey v. County of Ocean, 273 N.J. Super. 300, 319 (App. Div.), certif. denied, 138 N.J. 272 (1994); Sikes v. Township of Rockaway, 269 N.J. Super. 463, 467 (App. Div.), aff'd o.b., 138 N.J. 41 (1994); Mahoney, New Jersey Personal Injury Recovery 20:4 at 635 (2005). See also Thomas v. Toys "R" Us, Inc., supra, 282 N.J. Super. at 588.

Here, however, the judge deducted the off-set from WLB's twenty-two percent share of the damage award. That was erroneous. Further, the judge reduced the $53,593 by fifty-three percent, representing an effort to parse from the Social Security award that part of it which relates solely to the August 1999 accident. We see no authority for such parsing. As we have said, the award is a total disability award and the benefits represent lost wages. The jury verdict lost wage award is, also, a total disability award. As is the case in Woodger v. Christ Hosp., 364 N.J. Super. 144, 147 (App. Div. 2003), plaintiff is receiving Social Security benefits "on account of [his] disability caused or contributed to by the negligence of" WLB. The full amount of $53,593 must be deducted.

 
We affirm the jury verdict but reverse and remand for a reconsideration of the off-set. The trial judge should first off-set the gross lost wage award by $53,593, calculate prejudgment interest on that amount and, then, calculate WLB's twenty-two percent share. That will be the amount plaintiff is entitled to. We do not retain jurisdiction.

(continued)

(continued)

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A-1562-04T5

January 23, 2006