INTEGRITY MATERIAL HANDLING SYSTEMS, INC. v. M.G. DEMOLITION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4472-03T24472-03T2

INTEGRITY MATERIAL HANDLING SYSTEMS, INC.,

Plaintiff-Appellant,

v.

M.G. DEMOLITION,

Defendant-Respondent,

v.

GUARANTEED RECORDS MANAGEMENT,

COLES STREET REALTY CORP. and ICON,

Third-Party Defendants/

Defendants-Respondents.

____________________________________________

 

Argued: October 12, 2005 - Decided June 20, 2006

Before Judges Kestin, Lefelt and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County, L-1542-01.

Donald J. Maizys argued the cause for appellant (Feitlin, Youngman, Karas & Youngman, attorneys; Mr. Maizys, on the brief).

John M. Bowens argued the cause for respondent M.G. Demolition (Purcell, Ries, Shannon, Mulcahy & O'Neill, attorneys; Mr. Bowens, on the brief).

John T. Sullivan argued the cause for respondents Guaranteed Records Management and Coles Street Realty Corp. (Lamb, Kretzer, Reinman & Roselle, attorneys; Mr. Sullivan, on the brief).

PER CURIAM

Plaintiff, Integrity Material Handling Systems, Inc., appeals from a judgment based upon a jury verdict and from a subsequent order denying its motion for judgment notwithstanding the verdict, for a new trial, and for additur. The jury found damages in the total amount of $460,000 on plaintiff's claims. The jury also found defendants M.G. Demolition (M.G.) and Icon both to have been negligent and both to have been liable to plaintiff "on the legal theory of nuisance." It apportioned their liability as 40% for M.G. and 60% for Icon. The jury found no liability on the part of defendants Coles Street Realty Corp. and Guaranteed Records Management.

In response to plaintiff's post-trial motions, M.G. filed a cross-motion for "reduction [of the] damage award." The trial court denied all motions for reasons stated on the record, and in written form pursuant to Rule 2:5-1(b).

On appeal, plaintiff argues that, "on the legal theory of nuisance, defendants M.G. [] and Icon are each liable to [plaintiff], jointly and severally, for 100% of the damages;" that "the verdict of the jury on the issue of negligence must be molded to reflect that M.G. [] and Icon are each liable to [plaintiff], jointly and severally, for 100% of the . . . damages;" and that "the quantum of damages assessed by the jury was inadequate, warranting an additur." In responding to the arguments raised on appeal, M.G., without having filed a cross-appeal, frames additional affirmative arguments: that "the trial court erred in permitting the jury to consider plaintiff's nuisance cause of action against M.G.;" that "to the extent . . . the . . . verdict was improper, it was excessive as to . . . M.G.;" and that "the trial court erroneously permitted plaintiff's speculative damage claim to go to the jury and erroneously denied M.G.'s motion for remittitur." In the absence of a properly filed cross-appeal, we will not consider the affirmative arguments raised by M.G. See, e.g., Seacoast Builders Corp. v. Jackson Twp. Bd. of Ed., 363 N.J. Super. 373, 381 (App. Div. 2003). See also Morley Const. Co. v. Maryland Cas. Co., 300 U.S. 185, 191, 57 S. Ct. 325, 327-28, 81 L. Ed. 593, 597 (1937); Trecartin Mahony v. Troast Constr. Co., 21 N.J. 1, 5 (1956); Pressler, Current N.J. Court Rules, comment on R. 2:3-4 (2006).

Plaintiff is in the business of designing large material handling systems such as conveyors, pallet racks, flow racks, and the like. It also purchases and sells used systems. It was a tenant in the first-floor warehouse space at issue since 1994. Plaintiff stored equipment in that space.

Ownership of the building by Coles Street Realty Corp. was stipulated at trial. Guaranteed Records Management leased the entire premises and subleased space to plaintiff. Charles Pedrani, plaintiff's principal, testified that he paid rent to Coles Street Realty Corp. and believed both entities were basically the same company as Moishe's Transport (Moishe's). He testified also that most of his dealings regarding his tenancy were with Shacky Cohen.

The owner of M.G., Miguel Ciebella, also testified that, after being summoned to the site by Luis, a representative of Moishe's, he dealt mostly with Cohen in arranging for a demolition subcontract at the site. He, too, was under the impression that all the entities involved were related, including Icon, and that Cohen was "the boss of all these companies." M.G.'s responsibility as a subcontractor retained by Icon, the contractor, was to remove an old ice house on the second floor of the building. Ciebella regarded Icon as the owner of the premises. Icon has, apparently, been dissolved and did not participate in the trial.

In May 1999, plaintiff's equipment was damaged by several weeks of water leakage from above. The leakage caused rust and other effects to the extent, according to Pedrani, that the equipment "became useless. It was destroyed."

Inspection of the floor above disclosed that the water came from the work of M.G. Demolition, which included the removal of a floor. In the course of that work, a thick layer of cork was discovered beneath the flooring. In order to speed up the removal of that layer, Moishe's personnel provided an acetylene torch to deal with the problem as well as a bucket loader to accelerate the work.

Smoldering fires occurred on several dates in late April and early May 1999 as the torch ignited the cork. Those fires were extinguished in each instance by fire department personnel using water. On at least one occasion when water and dirt were running into the first floor space from above, one of plaintiff's employees went upstairs to inspect and saw M.G.'s workmen "pouring water with [a] hose" on "metal that was catching on fire because of the torch[.]"

When Pedrani inquired about the situation, Cohen told him that a fire over the preceding weekend had been the source of the water problem. In several conversations in which Pedrani complained of the continued leaking of water, Cohen gave assurances that he would look into the matter.

The case was tried in a desultory fashion, that is, a coherent focus was lacking from the very outset of the trial. Our analysis of the record discloses sufficient evidence for the jury to have found that personnel connected with the landlord and other companies, including Icon, directed the reconstruction effort, and had at least as much to do with the work choices made that led to plaintiff's damages as M.G.'s personnel did.

Plaintiff, citing Majestic Realty Assocs. v. Toti Contracting Co., 30 N.J. 425, 430-31 (1959), as applied in Mavrikidis v. Petullo, 153 N.J. 117, 134-35 (1998), seeks a determination "that M.G. must be responsible for the entire judgment," characterizing that conclusion as "inescapable, since vicarious liability cannot be apportioned." Plaintiff goes on to argue:

As the liability of Icon is predicated on the liability of M.G., their liability cannot be split and must be joint and several. * * * Tort liability of a principal and agent is both joint and several. Moss v. Jones, 93 N.J. Super. 179, 184 (App. Div. 1966). * * * The principal and agent are treated as one for purposes of joint and several liability. Both are liable to the plaintiff for the entire amount of the judgment."

It seems clear to us, however, that the concept of vicarious liability does not work in two directions. The doctrine has always been designed as a vehicle for imposing responsibility upon a principal for the acts of an agent, not on the agent for the acts of the principal. See Restatement 2d of Torts, Introductory Note to 416 (1965)(defining vicarious liability as "making the employer liable for the negligence of the independent contractor, irrespective of whether the employer has himself been at fault"); see also Wright v. State, 169 N.J. 422, 436 (2001); Prosser and Keeton on Torts 69, at 500-01 (5th ed. 1984). There are no facts in the record that would justify a view of this case inverting the basic relationship between M.G. and Icon, and determining that, for any purpose at any time, M.G. became the principal and Icon the agent regarding the work done that caused plaintiff's loss.

Accordingly, the obvious goal of plaintiff, to shift the major emphasis of fault to the agent, M.G., a viable entity, and away from the principal, Icon, an entity that no longer exists, cannot be accomplished through the notion of vicarious liability, but rather must rest upon the strength of the proofs directly implicating each of those actors. Viewed from that perspective, the jury had ample evidence before it to support the factual determination it made that Icon was more responsible for the events that led to plaintiff's losses than M.G. was.

Arguments regarding the legal niceties of nuisance and negligence, and comparisons and distinctions between them do not alter this result. The jury was well instructed on both concepts and apparently understood there was a difference between them, and that each defendant was seeking to shift responsibility for plaintiff's damage to another. It found that M.G. and Icon were liable on both theories.

It is of no small moment that, as the trial judge noted, if plaintiff ever requested a specific jury charge on the concept of vicarious liability as applied to M.G. and Icon, over and above the standard instructions given, that request came far too late and was accompanied by far too little, lacking even any textual recommendation on the particular charge requested. The outcome of an appeal, i.e., whether reversible error occurred, is largely determined by the way the matter was tried; a theory or claim newly developed for the purposes of appeal can have no bearing. Cf. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). To the extent plaintiff now seeks a reversal of the judgment in favor of Coles Street Realty Corp. and Guaranteed Records Management, based upon the jury's verdict of no liability, plaintiff's failure to make any such argument in its brief on appeal signaled by a point heading constitutes a waiver, see Almog v. Israel Travel Advisory Service, Inc., 298 N.J. Super. 145, 155-56 (App. Div. 1997), that cannot be cured by its untimely effort, in its reply brief, again to broaden the scope of the appeal in its discussion of the issues specifically framed.

We are not moved to tamper with the jury's verdict as to the quantum of damages. In that regard, as well, there was ample evidence in the record to support the jury's conclusion. The jury was not obliged to accept the opinion of plaintiff's expert in that regard or any other. It was free to accept or reject some or all of what the expert offered by way of opinion, see Amaru v. Stratton, 209 N.J. Super. 1, 20 (App. Div. 1985), and base the ultimate findings and conclusions on the facts and fair inferences that the proofs supported, including its own sense of what constituted a just result. See Waterson v. General Motors Corp., 111 N.J. 238, 248-49 (1988). There is no basis in this record for determining that an injustice occurred.

Affirmed.

 

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A-4472-03T2

June 20, 2006