JOHN HERING v. MACY'S, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3422-06T23422-06T2

JOHN HERING and DONNA HERING,

husband and wife,

Plaintiffs-Respondents,

v.

MACY'S, INC., d/b/a MACY'S;

FEDERATED DEPARTMENT STORES,

INC.; WOODBRIDGE CENTER, LLC;

and THE ROUSE COMPANY,

Defendants,

and

STANLY FIXTURES COMPANY, INC.,

Defendant-Respondent,

and

MACY'S EAST, INC. and

FEDERATED DEPARTMENT STORES,

INC.,

Third-Party Plaintiffs-

Respondents,

v.

E.C. PROVINI CO., INC.,

Third-Party Defendant-

Appellant,

and

DEL TURCO BROS. TILE,

Third-Party Defendant.

_____________________________________________

 

Argued February 4, 2008 - Decided

Before Judges Stern, A. A. Rodr guez and

C. S. Fisher.

On appeal from the Superior Court of New

Jersey, Law Division, Middlesex County,

Docket No. L-5286-03.

Timothy P. Smith argued the cause for appellant

E.C. Provini Co., Inc. (Coughlin Duffy, attorneys;

Paul A. Lisovicz, of counsel; Mr. Lisovicz, Mr.

Smith and Cheri DiLascio, on the brief).

Harvey Fruchter argued the cause for respondents

John and Donna Hering (Fruchter & Associates, attorneys; Mr. Fruchter, of counsel; Jared B. Weiss,

on the brief).

Harry Steinberg argued the cause for respondents Macy's East, Inc. and Federated Department Stores, Inc. (Lester Schwab Katz & Dwyer, attorneys; Mr. Steinberg and Robert N. Dunn, on the brief).

Joseph R. Lang argued the cause for respondent

Stanly Fixtures Company, Inc. (Lenox, Socey, Wilgus,

Formidoni, Brown, Giordano & Casey, attorneys;

Mr. Lang, of counsel; Patrick F. Carrigg, on the

brief).

PER CURIAM

Third party-defendant, E.C. Provini, Inc. (Provini), appeals from a judgment entered on February 8, 2007, based on a series of pretrial and post-verdict orders. A jury awarded plaintiff John Hering, an employee of Stanly Fixtures who was injured at a Macy's construction site, and his wife $1,940,000. It allocated 30 percent of the liability to Macy's and 70 percent to appellant, a general contractor, and judgment including prejudgment interest was entered against Macy's and appellant in the amount of $1,981,793.12. The trial judge then held that appellant was contractually obligated to indemnify Macy's and to pay its attorneys fees and costs, and denied the motions of Macy's and Provini for judgment NOV, remittitur or new trial. Thus, final judgment was ultimately entered against Provini on the indemnification claim of $1,981,793.12, plus $139,715.48 for fees and costs.

Provini seeks reversal "because an involuntary dismissal was not granted, the jury was wrongly instructed concerning the governing law, improper evidence was admitted on essential issues, the prosecution of a critical third-party claim was prohibited, and the $2 million verdict shocks the conscience." Specifically, Provini contends there were "inadequate proofs on causation"; the jury instructions were improper "on the issue of a general contractor's duty of care in respect of an independent contractor"; hearsay testimony about Provini's "alleged direction to Stanly Fixtures to move the glass" was erroneously admitted into evidence; motions for leave to proceed with its third-party claim against Stanly and to consolidate this matter and Macy's action against Stanly should have been granted; and "the judgment shocks the conscience" and requires a remittitur or new trial.

Plaintiff, John Hering, an employee of Stanly Fixtures, was injured while working at the site of renovation to the Macy's store in Woodbridge. He was moving a large piece of glass on a dolly when his shoulder popped while he was trying to avoid an accident. Plaintiff attributed the accident to a cracked or broken tile on the floor. He ultimately had arthroscopic surgery on his shoulder four years after the accident. The defense asserted there was no evidence that the labral tear, as opposed to a sprain and tendonitis, was caused by the July 23, 2001, accident. Defendants also asserted that plaintiff's lost and reduced work was attributable to his post-accident heart attack. The proofs included expert testimony of present and future lost wages as a carpenter, and that $550,000 of the verdict was attributable to future wages and $110,000 to lost wages while unable to work after his injury. We reverse the judgment and remand for a new trial by virtue of the conduct of plaintiff's counsel at the trial.

In so concluding, we note that Provini was brought into the case as a third-party defendant by Macy's and, although plaintiff never asserted a direct claim against Provini, the court nevertheless charged the jury as if it were a direct defendant. Moreover, although Stanly was originally named as a defendant, plaintiff never sought any relief against it because of the workers' compensation bar and Stanly was dismissed from the case before Macy's could assert a third-party claim for indemnification against it. The trial court then declined to allow Macy's to reinstate Stanly, either as a direct defendant or as a third-party defendant. Instead, Macy's was forced to bring a separate action against Stanly for indemnification, and the trial court refused to allow Macy's to consolidate the two actions, and declined to allow Stanly to intervene in this action. After the jury found that Macy's was 30% liable for plaintiff's injury, the court ruled in favor of Macy's on its motion for indemnification and entered the full amount of the judgment against Provini. Macy's then voluntarily dismissed its suit against Stanly for indemnification. As a result, the jury did not assess Stanly's share of the liability for plaintiff's injury.

I.

Plaintiffs John and Donna Hering filed an amended complaint against the Macy's defendants, Woodbridge Center, LLC, The Rouse Company, and Stanly, alleging injuries caused by the negligence of defendants (except Stanly) for an unsafe floor condition in a Macy's store in the Woodbridge Center. Plaintiff's wife, Donna, sued per quod. Plaintiffs asserted "no affirmative claim" against Stanly and included Stanly "for discovery purposes only."

Macy's filed an answer and asserted cross-claims for contribution and indemnification against the other defendants, including Stanly. The complaint against Stanly, however, was dismissed without prejudice "for lack of prosecution." Macy's was subsequently permitted to file a third-party complaint against Provini and Del Turco Bros. Tile ("Del Turco") for common law and contractual contribution and indemnification, and they asserted cross-claims for contribution and indemnification against all other defendants. Thereafter, stipulations of dismissal were entered in favor of Woodbridge Center, The Rouse Company, and Del Turco. Del Turco was also granted summary judgment.

Macy's personally served Stanly with its answer and cross-claims, and Stanly answered the cross-claims. However, because Stanly had already been dismissed from the action for lack of prosecution, the answer was deemed "non-conforming," and Stanly did not appear in the action.

On or about December 27, 2005, Macy's moved for extension of discovery, an adjournment of the trial date, and leave to reinstate its cross-claims against Stanly or, alternatively, to institute a third-party action against Stanly, because it had not received notice of Stanly's dismissal from the action until December 21, 2005. Stanly opposed the motion. On January 6, 2006, the motion was denied in its entirety as was a motion for reconsideration, which Provini had joined.

On March 13, 2006, Macy's filed a separate complaint against Stanley for common law and contractual contribution and indemnification. Thereafter, Macy's moved to consolidate the two Law Division actions, and Stanly moved to intervene in plaintiffs' suit against Macy's. Both motions were denied.

The jury rendered its verdict in favor of plaintiff and awarded $1,000,000 for plaintiff's disability and pain and suffering; $115,000 for past lost income; $550,000 for future lost income; and $275,000 for Donna's loss of plaintiff's services. As also previously noted, Macy's was found to be 30% negligent, and Provini was found to be 70% negligent. Although plaintiff was also found to be negligent, his negligence was not found to be a proximate cause of his injuries.

Both Provini and Macy's moved for judgment notwithstanding the verdict or a new trial. After these motions were denied, Macy's moved for full contractual indemnification from Provini. As already noted, that motion was granted, and judgment was entered in favor of plaintiffs and against Provini.

II.

As of July 23, 2001, plaintiff was forty-four years old and had been a union carpenter for twenty-five years. He left high school before finishing the tenth grade. As a union carpenter, he did sheetrock and concrete work and installed doors, hardware, and ceilings. He considered the work "very strenuous."

Several weeks prior to July 23, 2001, plaintiff and Edmond Bedell were working for Stanly at the Macy's store in Woodbridge, in connection with the store's renovation. Stanly made display cases and racks, and plaintiff and Bedell were setting up the new display cases and moving them from the trailer at the loading dock into the store. The store was open for business during the renovation work. Any area that was being worked on was cordoned off from the rest of the store with a curtain that was installed from the ceiling to the floor.

On the morning of July 23, plaintiff and Bedell heard Ralph Seber, who was a foreman for Provini, a general contractor on the job, say to Robert High, Stanly's foreman, that Stanly had to get someone to move a crate of glass that was sitting on a dolly in the work area. Because plaintiff and Bedell were standing right there, High nodded for them to move the crate.

According to Bedell, the crate was about eighteen inches wide and six or seven feet long. Although it was twenty inches high, it stood about twenty-five inches off the ground because it was sitting on a dolly. Plaintiff testified that the crate was about eighteen inches wide, but estimated that it was about eight feet long and thirty-six inches high. The crate, which was an open crate with wood slats, contained panels of tempered glass, stacked horizontally, and weighed about 300 to 400 pounds.

The men had to wheel the crate through the main area of the store, to which customers had access. Plaintiff stood behind the crate and pushed it, while Bedell stood in front and pulled it and did the navigating. As he pushed, plaintiff could not see the wheels of the dolly or the front of the crate. He claimed that he and Bedell wheeled the cart about fourteen feet and then made a right turn, and then wheeled it another thirty feet before making a left turn.

The men did not secure the crate to the dolly in any way, claiming that no one had supplied them with any cord or rope, and that this was the way things were done "in the real world." Bedell maintained that, as the crate was being wheeled, he could see that it was directly centered on the open dolly, which did not have any safety sides. He claimed that the weight of the crate kept it from moving around.

When plaintiff and Bedell came to a curtained-off work area, Bedell "went beyond the curtain" and left plaintiff alone with the crate so that he could look "to see if anybody was coming" from the opposite direction. When Bedell left, plaintiff took his hands off the crate and then noticed, out of the corner of his eye, that "the right front" of the crate started to "tip down." Plaintiff also saw that a woman with a child in a stroller was standing about three to six feet away. He quickly grabbed the crate and "started pushing [it in] the opposite direction" from which it was tipping. The crate then started rolling "until it hit up against [the wall of] the escalator," where plaintiff was able to "stand it upright." As he did so, he "heard like a pop in [his] shoulder and [felt] a sharp pain."

Bedell, who heard a "yelp, like something surprising[,]" from plaintiff, came to assist him in stopping the crate from rolling any further. He saw that "the case was tilted off the dolly and John was pinned up holding it." The two men then continued to move the dolly to where it had to go. They claimed that if it fell, the glass would have shattered into thousands of pieces.

Bedell went back to the area later in the day and found that one of the floor tiles, where the old display cases had been, "had indeed become loose and slid off." However, Bedell testified that the tile merely had a "hairline crack[]" in it, and was not loose. After the accident he reported it was in "pieces," and "figured that's what made the dolly slip and the thing slide off." Although Bedell claimed that each floor tile was six inches by six inches, plaintiff maintained that they were twelve inches by twelve inches.

Later that same day, Bedell heard a conversation between "Ralph Perini" and High, in which they each blamed the other for not cordoning off the area or checking the floor tiles. Bedell also heard someone from Macy's say to Seber and High, "I thought I told you to take care of that area and cord [sic] it off."

Bedell admitted that he did not actually witness the accident and that he did not know "100%" what caused the dolly to skid. However, he was "98% sure" that the cracked tile was the reason for the accident. He admitted that he had walked through that area many times that day and never noticed a cracked tile. He also admitted that it was "possible" that the weight of the crate on the tile might have caused it to crack. No photographs of the area were taken that day.

When asked at trial what he thought caused the crate to tip over, plaintiff replied: "Well, in hearing depositions and from what I know of the accident, yes, it was broken tiles." According to Seber, Provini's work on the job called for it to tear down old walls, erect new walls, do some ceiling work, and install new carpeting, aisles, and shelving. Provini had three subcontractors on the job, Premier Electric; Del Turco (for the tile work); and Caprice Demolition. However, he maintained that Stanly was "not" one of Provini's subcontractors. Rather, he assumed that Stanly was a general contractor, like Provini was, hired by Macy's to do the cabinetry and wall fixture work. He claimed that Provini had no contract with any of Stanly's employees and no authority over them. Rather, they reported directly to Macy's, who had its own project manager on the site.

Seber had no "recollection" of instructing Stanly's foreman, "Robert Hyde," to have one of Stanly's employees move the cart containing the glass. Moreover, even if Seber had given such an instruction, he had "no control" over where or how Stanly's employees carried out the instruction or did their work.

According to Seber, although Provini was responsible for the safety of any area of the store which it closed off and on which it was working, it did not have control over the entire store. Provini was the project manager for Macy's who oversaw the job and who made sure the site was kept clean. However, Seber admitted that neither Macy's nor Provini had a safety supervisor on the project.

Seber also maintained that Provini had no obligation to inspect any area of the store that was open to the public, and that neither Provini nor any of its subcontractors, including Del Turco, did any tile work in the area where plaintiff's accident occurred. However, he admitted that if something was interfering with the work of its tiling subcontractor, Del Turco, then removing that interference would have been beneficial to Provini in performing the work "in a timely fashion."

As part of its defense, Macy's read into the record three specific sub-paragraphs of its contract with Provini, dated April 3, 2001, one of which, 12(a), was entitled "Supervision and Inspections," and read:

The Contractor [Provini] shall supervise and direct the Work both at the site and at the fabricating shops. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work. He shall place a competent superintendent in charge of the Work at the site who shall be acceptable to the Owner [Macy's] and who shall remain until final completion and acceptance of the Work unless removed by reason of sickness, discharged for cause, or replaced by the Contractor, with the written consent of the Owner. The Contractor shall be responsible for all acts and omissions of his superintendent in connection with his Work. The Contractor shall also employ an assistant superintendent, depending upon job requirements, so that all operations can be satisfactorily supervised.

Macy's also read to the jury sub-paragraphs 15(a) and (b), which were part of the paragraph entitled "Protection of Work, Property and Persons." According to these sub-paragraphs:

[a.] The Contractor shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. The Contractor shall provide sufficient, safe and proper facilities and safeguards at all times for the prosecution of the Work and the inspection of the Work by the Owner and for the protection of the public from injury. The Contractor shall, on written notice from the Owner, remove all materials, whether worked or unworked, and all portions of the Work which Architect or the Owner shall determine to be unsound or unsatisfactory. The Contractor shall protect and care for his work from the time of delivery at the site until final acceptance of same by the Architect and the Owner. Any portion of the work liable to injury or soiling shall be carefully boxed or otherwise protected by the Contractor in a manner satisfactory to the Architect and the Owner, and, in like manner, he shall protect the Owner's property and the property of any other contractor having a separate agreement with the Owner from injury or loss arising in connection with the Contract. This protection shall be carefully maintained during the construction of the entire Work, and shall be removed from the premises when requested by the Architect or Owner.

Should the Contractor fail to properly protect his Work, such protection may be installed by the Owner at the Contractor's expense. The Owner will not assume any responsibility for tools, materials or other property of the Contractor left on the premises.

[b.] The Contractor shall take all necessary precautions for the safety of employees on the Work, and shall comply with all applicable provisions of federal, state, county and local safety laws and building codes to prevent accidents or injury to persons on, about or adjacent to the premises where the work is being performed. He shall erect and properly maintain at all times, as required by the conditions and progress of the Work, all necessary safeguards as required by the conditions and progress of the Work, all necessary safeguards for the protection of workers and the public, and shall post danger signs warning against the hazards created by such features of construction as protruding nails, hoists, elevator hatchways, scaffolding, window openings, stairways and falling materials; and he shall designate a responsible member of his organization on the Work whose duty shall be the prevention of accidents. The name and position of the person so designated shall be reported to the Architect and the Owner by the Contractor.

When plaintiff complained to his employer, Stanly, after the accident that his arm was causing him pain, Stanly's worker's compensation carrier sent him to see Dr. Clint Ferenz. Plaintiff first saw Ferenz on August 22, 2001, about one month after the accident. Ferenz diagnosed plaintiff as suffering from shoulder strain. His MRI was suggestive of a possible biceps tendon injury. There was no evidence of a rotator cuff tear or of any dislocation or other instability of the shoulder. Ferenz considered plaintiff capable of working "light duty" at this time, but none was available. Plaintiff received physical therapy, anti-inflammatory medications, and cortisone injections. On October 22, 2001, Dr. Ferenz returned plaintiff "to full work-duty status." He had "excellent range of motion" at that time. When Ferenz discharged plaintiff on January 2, 2002, plaintiff's options were "to live with the condition" and pain he was still experiencing or to undergo diagnostic arthroscopic surgery. The doctor recommended plaintiff "try to live with it." Plaintiff declined surgery, "tried to deal with pain" and continued to take pain medication.

Dr. Ferenz did not see plaintiff again until September 22, 2004. At that time, he was complaining of increased pain and discomfort in his right shoulder. He was working full time as a union carpenter. Ferenz again discussed surgery and plaintiff again decided "to try and live with the pain."

Ferenz saw plaintiff again on May 24, 2005, when he again complained of increased pain and discomfort, and felt that he "could no longer tolerate the symptoms of pain." Arthroscopic surgery was performed on July 15, 2005, and the arthroscopy revealed that plaintiff had a large tear of the labrum, known as a "SLAP" (superior labral anterior posterior) tear.

Dr. Ferenz repaired the tear arthroscopically and performed a decompression, or a shaving of the bone spurs above the tear. He believed that plaintiff's injury was consistent with the type of accident he suffered on July 23, 2001. Although plaintiff had sustained an earlier injury to his shoulder from a scaffolding accident in December 1991, Dr. Ferenz did not believe that the labral tear preexisted the July 2001 accident, because plaintiff would not have been able to work with a tear like that from 1991 to 2001.

After plaintiff's surgery, Dr. Ferenz continued to see him at regular intervals. He was given range-of-motion and strengthening exercises, and eventually his motion and strength improved. Ferenz last saw plaintiff on December 14, 2005. At that time, plaintiff was "unable to perform the normal job duties of a union laborer or carpenter" due to gross strength deficits that remained, especially in his overhead strength and endurance. Ferenz did not "expect" to see "significant improvement" in the future. However, he did not conclude that plaintiff was incapable of doing any work in the "carpentry field."

David Gross, Macy's orthopedic expert, noted that no doctor had made a diagnosis of a labral tear in 2001. Gross stated an MRI in 2001 "did not show a labrum tear," and opined that, as of January 2002, there was no objective evidence of a labral tear, and that plaintiff's July 2001 injury was nothing more than a shoulder strain with biceps tendonitis, which was consistent with his catching something that was falling. Gross also noted that Ferenz himself had called the labral tear "degenerative," which signified that it was from wear and tear, and not from a sudden injury.

Dr. Gross examined plaintiff both before and after his July 2005 surgery. Prior to the surgery, the examination showed that plaintiff had tenderness over the biceps tendon area, good active motion in all planes, and about a twenty-degree loss of overhead motion and of rotation in both directions. Following the surgery, this loss was about twenty to thirty degrees; also, plaintiff was a little weaker, showed some mild atrophy, and complained of greater pain. Specifically, he had pain when he lifted his arms above the horizontal plane. In Gross's opinion, the July 2001 accident was "not the cause of the [July] 2005 surgery," and plaintiff's injuries from the 2001 accident were limited to a shoulder sprain "with some tendonitis," which "got better" with treatment.

Plaintiff claimed that, following his surgery, he "had to turn down" jobs that required heavy work. Because he was right-handed, he was not able to use power tools without suffering a lot of pain. He tried to get supervisory jobs through his union but was not qualified due to his limited ability to read and write. He also tried to find jobs that required work only with doors and hardware, but there were not many of those. However, he admitted that for almost four years following his accident (from approximately October 2001 to July 2005), Stanly was able to find jobs for him that did not require heavy lifting. He claimed that he lived on pain medication during this time period in order to survive. As of the time of trial, he did not feel he could find work as a carpenter because he could use only one hand.

Plaintiff also testified that he could not help his daughters with their cheerleading competitions or do maintenance or work around the house. He also claimed that he had lost about thirty-five or forty pounds, and, as of the trial, he was on an anti-depressant medication. His wife, Donna, confirmed that plaintiff was unable to do a lot of the things around the house that he used to do, and that he often snapped at her and the children. Both plaintiff and his wife admitted that, in August 2001, or just one month after the accident, plaintiff suffered "a mild heart attack," which required surgery and placement of a stint.

Cheryl M. Wong, plaintiff's psychiatric expert, who examined plaintiff on one occasion, testified that plaintiff suffered from "a generalized anxiety disorder, secondary to the problems with his right shoulder" and his heart attack. She noted there was a high correlation between anxiety and depression and chronic pain. Plaintiff's anxiety disorder resulted in his constant worrying, his getting frustrated and irritable, and his poor concentration.

Edmond Provder, plaintiff's expert in rehabilitation counseling, evaluated plaintiff. His review consisted of reviewing plaintiff's medical records, conducting a standard diagnostic vocational interview, and subjecting plaintiff to a battery of vocational tests to determine whether he could return to work as a carpenter or whether his skills could be applied to other work.

Provder noted that plaintiff had been placed in special education classes until the tenth grade, when he left school for good. He scored in the fourth grade level for both reading and arithmetic, and in the first grade level for spelling. On all of the vocational aptitude tests plaintiff performed either at the average or below average levels. His right hand grip strength was only "one-fourth of what you would expect of the average male." He could lift two pounds of weight with his right hand, but had trouble with five pounds or more.

It was Provder's opinion that plaintiff "could not return to his former work as a journeyman carpenter," but that he "had some skills or knowledge that he learned as a carpenter that could be used to perform other . . . semi-skilled work."

According to Paul N. Gazaleh, plaintiff's financial expert, plaintiff was earning about $54,000 per year at the time of the accident and had 16.74 years of work life expectancy and thirty-five years of life expectancy. Gazaleh calculated that plaintiff's past lost wages from the date of his disability through January 31, 2006, were $244,528. His future lost wages, from February 1, 2006, until the end of his work life expectancy, would be $660,356. From the $660,356, Gazaleh subtracted what plaintiff would be able to earn in the future, using the mid-point of Provder's estimated range, or about $26,000 per year. This left a future wage loss of $343,333. Gazaleh then added in the loss of plaintiff's benefits, based on a figure of 47% of his wages, and subtracted those expenses that plaintiff would no longer incur. Gazaleh also subtracted plaintiff's income taxes, using a rate of 11%. Gazaleh then calculated the loss of plaintiff's ability to perform household services. Estimating that such services required about eight hours per week of work at a rate of $15 per hour, Gazaleh calculated plaintiff's past loss at $28,222 and his future loss at $178,678.

In total, Gazaleh opined that plaintiff's total past loss was $111,648 and that his total future loss was $546,968, for a total loss of $658,616. He noted that his calculations assumed that any growth due to inflation would be offset by the discount for present value.

Joseph Pessalano testified for Macy's as the expert in vocational rehabilitation. He met with plaintiff for about forty-five minutes, but did not perform any vocational tests on him because he believed that such tests were too subjective and unreliable. Pessalano opined that plaintiff had a "number of transferable skills in terms of mechanical aptitudes" and could "build up" expertise in jobs considered "sedentary to light" in terms of their physical exertion requirements, and that there were a variety of jobs for which plaintiff was qualified that fell into these categories. These jobs commanded annual salaries of between $21,830 and $53,960.

Pessalano admitted that he did not test plaintiff's reading and writing ability. However, many of the jobs that Provder found plaintiff could perform required some level of reading and writing. Pessalano believed that people with learning disabilities could work in all types of jobs. Also, there were services available to plaintiff that would assist him in improving his reading, and nothing in plaintiff's history indicated that he was not trainable or capable of learning.

III.

We agree that a new trial is required because of trial errors related to the conduct of plaintiffs' counsel. We emphasize that our decision is not based on a single instance of prejudice, but on the aggregate of events at trial.

1. During the cross-examination of Pessalano, Macy's expert in vocational rehabilitation, the witness admitted that his company, Archer Consultants, used to be known as Jordan Rehabilitation Services and that he used to issue reports under that firm's name. The witness denied knowing why the company had changed names because it was not his company. The following colloquy then ensued:

[Plaintiffs' counsel]: Did it have anything to the fact to do [sic] that an administrative judge in Nassau County made a determination to warn that Jordan Rehabilitation Services and its affiliates --

[Macy's counsel]: Objection, Your Honor.

[Court]: Objection sustained. He answered the question. To his knowledge, he doesn't know.

[Plaintiffs' counsel]: Okay. Do you know anything about a judge in Nassau?

[Macy's counsel]: Objection, Your Honor.

[Court]: He answered the question to his knowledge he doesn't know.

[Plaintiffs' counsel]: Sidebar, Judge?

[Court]: No. Ask another question.

[Plaintiff's counsel]: Were you ever part of a litigation against Jordan --

[Macy's counsel]: Objection, Your Honor.

[Court]: Were you a part of that?

[Pessalano]: No, not at all.

[Plaintiffs' counsel]: Were you ever questioned in the litigation against Jordan or by Jordan regarding issuing fraudulent information --

[Macy's counsel]: Objection, Your Honor.

The judge then called a sidebar and directed plaintiffs' counsel to submit reasons to her, before the end of the day, why he should not be held in contempt. She gave the jury a curative instruction that whatever they heard about litigation had "nothing to do with this case" or with the witness's "ability to give an expert opinion."

Provini claims that this colloquy prejudiced the defense expert witness in the eyes of the jury and suggested that he or his company had been involved in fraud. Plaintiffs respond that they were entitled to broad latitude in the cross-examination of a witness in order to impeach his credibility. They claim that their attorney questioned the witness as to why the company he worked for changed names and relocated and that, "[u]pon fraud by the witness becoming apparent," a timely objection was made by Macy's, which the court sustained. According to plaintiffs, the court then "acquiesced to Plaintiff's counsel asking three variations on this line of questioning," and ultimately issued a timely curative instruction to the jury.

We disagree with plaintiffs that fraud by the witness was ever made "apparent" or that the court allowed their attorney to ask three "variations" on this line of questioning. To the contrary, the witness stated that he did not own the company and knew nothing about any litigation concerning it. The court sustained Macy's objection to this line of questioning three separate times, and at no time did the court sanction plaintiffs' counsel to further question Pessalano on the subject.

2. Plaintiffs' counsel argued to the jury in summation that Macy's must have had security videotapes of the area in question and that such a tape "would have shown what happened." Counsel queried why Macy's failed to produce such a tape. Macy's objected to these comments at the end of the summation, claiming that plaintiffs never asked for surveillance tapes and that it had never been "established" that such tapes even "existed."

On appeal, plaintiffs assert that they had served a notice to produce upon Macy's and that, in response thereto, Macy's had stated that it was not in possession of any photographs, motion pictures, or videotapes of the scene. However, plaintiffs claim that this response "did not explicitly state . . . the non-existence of any tapes," and that Macy's failure, without explanation, to offer any evidence regarding what caused the dolly to tip allowed plaintiffs to raise an adverse inference regarding the tapes.

We do not agree. Unless plaintiffs could show that the tapes were in Macy's possession and that they failed to produce them, the comment should not have been made. Macy's response to plaintiffs' notice to produce explicitly stated that "the answering defendants [were] not in possession of any photographs, motion pictures, videotapes, films, drawings, diagrams or sketches." In any event, the trial judge should have been asked for leave to so argue based on the record made. See State v. Velasquez, 391 N.J. Super. 291, 306-307 (App. Div. 2007); see also Wild v. Roman, 91 N.J. Super. 410, 414 (App. Div. 1966) (use of Clawans charge in civil cases).

3. During closing argument, plaintiff improperly impeached the credibility of Pessalano (Macy's vocational rehabilitation expert) by referring to facts that were within counsel's personal knowledge. It was established, both on the direct and cross-examination of Pessalano, that he interviewed and assessed plaintiff in plaintiff's attorney's office. During cross-examination, the witness denied having spent only thirteen minutes with plaintiff; rather, he claimed that he never did an assessment in less than forty to forty-five minutes.

Nevertheless, in his summation, in referring to Pessalano, counsel said the following:

I'm not even going to touch again about the rehab specialist. I think the fact that he didn't do any tests. I know in my heart it was under 15 minutes in my office. What I'm telling you is not testimony. Had I thought he not be [sic] truthful about that, calling my secretary concerning the timing in and out.

That's it. You have a lack of honesty here.

Provini objected to this comment after plaintiffs' attorney finished his summation, on the ground that it constituted the giving of personal testimony. Because counsel also made other comments based on personal knowledge (which will be discussed below), the court agreed to give the jury a curative instruction. Accordingly, the court charged the jury, after the summation was completed, as follows:

During the course of the summations, there were some comments made regarding personal relationships, personal feelings. Ladies and gentlemen, I want to again emphasize to you that your decision is not to be based on sympathy, bias, or prejudice. Your decision is to be based upon the credible evidence during the course of this trial.

And again, that's the reason or one of the reasons why you are constantly told that what the attorneys say is not evidence because the comments that may be made either intentionally or not, that have nothing to do with the evidence.

According to R.P.C. 3.4(e):

A lawyer shall not . . . in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused[.]

Here, the statement made by counsel was improper because it not only impugned the credibility of a witness, but did so based on the assertion of personal knowledge of counsel regarding facts that were not in evidence. The court's curative charge was a cursory one and did not specifically identify the objectionable comments. Combined with other comments made by counsel, we believe they furnish sufficient basis for a reversal. Compare State v. Wakefield, 190 N.J. 397, 439-40 (2007), cert. denied, __ U.S. __, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008) (prompt curative instruction, tenor of the trial, and responsiveness of counsel considered to avoid reversal).

4. During his closing argument, plaintiffs' counsel also made

the following comments regarding plaintiff:

John, my client, I have known him for a long time. I've known him for over maybe 15 years. So I take this personally. I tell you from my own personal feelings, John is a nice well meaning caring buy [sic], somebody who I trust. But he's not the same man that I knew before.

Yes, this picture was before the heart attack and it was roughly before his episode with his arm, but I also know that most of the change between what you see here and this guy here occurred over the last year and a half, not with regard to the heart attack, but with regard to what medication can do, the medication that he had to take and still takes to some extent.

[Emphasis added.]

Both Macy's and Provini objected to these comments, which also prompted the court to give the curative instruction noted above.

These comments were completely improper and had no place in counsel's closing argument. Consideration of what plaintiff was like before the accident should have been produced exclusively by the evidence at trial, not from any reference whatsoever forcing the jury to evaluate the attorney's credibility. The comments could have had a real capacity to affect the verdict, since one of the issues the jury had to consider was whether plaintiff's current condition was due to the accident alone or to the unrelated heart attack which he suffered after the accident. This comment might well warrant reversal by itself.

5. Perhaps the worst comment of all related to David Gross, Macy's orthopedic expert, when plaintiff's counsel said:

Paid witnesses. Who did we talk about? Let's try Dr. Gross. Their wonderful Hasidic or Orthodox Jewish arthropod [sic]. The guy refused to answer any direct question. You saw that. He tried to beat around every time every one of the questions.

[Emphasis added.]

Counsel then discussed the details of Gross's testimony and why it should not be believed. At the end of the summation, Provini objected to the reference to the witness's religion, which resulted in the court's giving the general curative instruction which we have already quoted.

On appeal, plaintiffs claim that the single reference to Gross's religion could not have been prejudicial when it was obvious from the witness's appearance and his attire. They also claim that the statement "was neither intended to be anti-Semitic nor intended to inflame the jury. It was simply a means of identification when the name did not immediately come to mind."

It is beyond dispute that witnesses should not be made "the target of invective and derogation" and that they should not be disparaged "through an unrestricted deluge of epithets." Geler v. Akawie, 358 N.J. Super. 437, 467 (App. Div.), certif. denied, 177 N.J. 223 (2003). It is difficult to tell from the written transcript how this comment was uttered and how it was received by the jury. We note, however, that counsel did refer to Dr. Gross by name, just before he commented on his religion, thus belying his claim that the reference to religion was made as a means of identification.

We will assume, and accept counsel's assurance made at argument before us, that there was no bias or prejudice intended. In any event, it was offensive and the type of comment which a court cannot permit. It, too, might warrant reversal in itself, at least in the absence of a strong and immediate cautionary instruction. But we need not address that because it was only one of the comments which in the aggregate warrant reversal, particularly in the absence of a forceful curative instruction.

IV.

We reverse for a new trial as to liability and damages. The aggregate of error which we identified may well have affected the verdict on both. See Ahm v. Kim, 145 N.J. 423, 434-35 (1996). The impeachment of, and comments regarding, defense experts Pessalano and Gross as well as counsel's statements based on his knowledge of plaintiff might well have combined to affect the amount of damages plaintiff received. In light of the need for a retrial on damages, we need not examine the other attacks on the award.

V.

Provini argues that the court below abused its discretion in denying leave to Macy's to file a third-party complaint against Stanly and in refusing to consolidate Macy's separate action against Stanly with plaintiff's complaint, because Stanly's participation at trial was necessary for a just determination of contractual liability. We need not decide if this contention warrants reversal of the judgment. We hold, however, that Stanly should be joined as a party on the retrial.

Stanly had originally been named as a defendant by plaintiff, for "discovery purposes" only, since plaintiff was barred by the workers' compensation statute from recovering against Stanly. We are advised that plaintiff never formally served Stanly with the complaint, and when Macy's filed its cross-claim against Stanly, it did so by mail which would have been satisfactory had Stanly been an actual defendant in the case. However, the case against Stanly was administratively dismissed because plaintiff failed to prosecute the action against it, and although Macy's later personally served Stanly with its answer and cross-claim, this answer was not accepted by the court due to Stanly's prior dismissal from the action. Macy's then moved for leave to reinstate its cross-claim or, alternatively, to institute a third-party action against Stanly. Stanly opposed the motion, and it was denied without any reasons given or in the record before us. Macy's then moved for reconsideration, which was supported by Provini (who had not taken a position on the original motion), and opposed by Stanly. That motion was also denied.

Macy's then filed a separate complaint against Stanly for contribution and indemnification, and moved to have the two actions consolidated, which Stanly opposed. Stanly, however, instead moved to intervene in plaintiffs' action against Macy's. Those motions were also denied without reasons noted in the record presented to us. After Macy's succeeded in obtaining full indemnification from Provini pursuant to their contract as detailed above, Macy's voluntarily dismissed its separate action against Stanly.

Provini now argues that the motions were improperly denied. Both plaintiff and Stanly argue that the court properly denied Macy's motion to reinstate its claims against Stanly in this action, Macy's motion to consolidate the two actions, and Stanly's motion to intervene. Macy's asks the court to reverse the judgment in favor of plaintiffs "for the reasons stated by Provini," but to affirm the order entitling Macy's to full indemnification from Provini. It does not specifically take any position on the issue of whether Stanly should have been a party to the instant action.

"By virtue of the exclusive remedy provisions of the Workers' Compensation Act (Act) an employer is immune from suit by an employee, and may not be sued for contribution by a third-party tortfeasor." Kane v. Hartz Mountain Indus., Inc., 278 N.J. Super. 129, 145 (App. Div. 1994), aff'd o.b., 143 N.J. 141 (1996); accord Ramos v. Browning Ferris Indus., Inc., 103 N.J. 177, 184 (1986). "However, '[n]othing in the Act precludes an employer from assuming a contractual duty to indemnify a third party through an express agreement,'" Kane, supra, 278 N.J. Super. at 145 (quoting Ramos, supra, 103 N.J. at 191), and such an employer "may be joined as [a] third-party defendant[] in the employee's suit against the indemnitee." Ibid.

Moreover, an employer's negligence may, under certain circumstances, be placed into issue during trial, when, for example, it is relevant on the issue of proximate causation or is needed to judge the reasonableness of the third party's actions. Ibid.; Sanna v. Nat'l Sponge Co., 209 N.J. Super. 60, 66 (App. Div. 1986). A defendant's attempt to "shift[] causal blame to another who is not legally liable in the suit," is sometimes referred to as the "empty chair defense." Fabian v. Minster Mach. Co., Inc., 258 N.J. Super. 261, 276-77 (App. Div.), certif. denied, 130 N.J. 598 (1992); accord Kane, supra, 278 N.J. Super. at 145. Even if the employer's negligence is not submitted to the jury for purposes of assigning a percentage of negligence, the defendant is allowed to develop and argue to the jury that it may consider the employer's conduct as a circumstance when judging the reasonableness of the defendant's actions and its liability. Ramos v. Browning Ferris Indus., Inc., 194 N.J. Super. 96, 105-06 (App. Div. 1984), rev'd on other grounds, supra, 103 N.J. at 177.

Because Macy's and Stanly had a contractual agreement, the terms of which provided that Stanly would indemnify Macy's for its own negligence on the job in question, Macy's ordinarily should have been allowed to either timely assert a cross-claim or file a third-party claim against Stanly even though Stanly was otherwise immune from suit under the Workers' Compensation statute. See R. 4:7-5(c); R. 4:8-1(a). By naming Stanly in the original complaint, plaintiff had led Macy's to believe that it was a defendant against whom a cross-claim could be asserted. Although there was some dispute as to when Macy's discovered that Stanly had not been served with the complaint, there is a real question regarding Macy's entitlement to add Stanly as a third-party defendant, and the related prejudice to Provini because it was not permitted to do so. There may be merit to Provini's argument that, had Stanly been a party at trial, the jury might have concluded that it, instead of Provini, was responsible for the accident, even though Provini, in fact, so argued to the jury.

Moreover, plaintiff never sought to sue Provini directly--even after Macy's tried to implead it as a third-party defendant. See R. 4:8-1(b) (procedure for plaintiff to amend complaint to assert direct claim against third-party defendant). Provini and Stanly were both contractors of Macy's who had expressly agreed to indemnify Macy's for their own negligence on the job site. Yet because Provini was joined in the suit, and Stanly was not, only Provini's negligence went to the jury.

Provini insists Stanley was an "independent contractor retained directly by Macy's" while Stanley states "Provini was the general contractor exercising control over the entire job site, including the work performed by Stanly Fixtures . . . ." This dispute remains to be developed at the trial in which Stanly is a party.

VI.

We need not consider in detail the alleged errors in the charge regarding Provini's duty of care as a general contractor. Provini contends that the court erred in failing to instruct the jury that Provini owed no duty of care to Stanly's employees, since both Provini and Stanly were independent contractors of Macy's. Suffice it to say that at the retrial, the judge must charge on the duty of a contractor to others on the premises as well as the duty of the landowner.

The court must expressly charge the jury regarding an independent contractor's responsibility for the hazards that are inherent to the work it was contracted to perform, except where the landowner participates in and exercises control over the manner and means of the work. The court must also charge the jury regarding an independent contractor's duty for the safety of others and particularly employees of subcontractors who come onto the work site.

Macy's obligation as project manager vis-a-vis the contractors and the relationship between it, the contractors, the subcontractors, and the employees of other contractors and subcontractors has to be explained and related to the factual issues before the jury. Moreover, at the retrial Macy's cannot be allowed to read into evidence provisions of its contract with Provini without the court giving the jury guidance as to how those provisions applied to the case. Since the jury was not instructed on the scope of Provini's contract (or Stanly's) with Macy's, the jury at the trial under review could have been left with the impression that Provini had expressly assumed liability for plaintiff's injuries.

VII.

We find no need to address any other issue, and particularly evidentiary rulings which may well not be presented on the retrial.

Reversed and remanded for a new trial.

 

Defendants Macy's East, s/h/a Macy's, Inc., d/b/a Macy's, and Federated Department Stores are hereinafter called Macy's.

The February 8, 2007 order awarded $139,715.48 in counsel fees to Macy's against Provini. The critical order resulting in the appeal was the second revised judgment, entered on July 27, 2006, which awarded plaintiffs an aggregate of $1,940,000 in losses, exclusive of pre-judgment interest, and declared that Provini was liable to Macy's for "full contractual indemnification" for the award plus pre-judgment interest totaling $1,981,793.12.

The jury found Macy's and Provini both negligent and that their negligence was a proximate cause of his injuries. It also found plaintiff was negligent but that his negligence was not a proximate cause.

The dismissal was "without prejudice" pending the outcome of this appeal.

The motion is not included in the record.

As previously noted, on January 31, 2007, Macy's suit against Stanly was dismissed without prejudice, pending the outcome of the appeal.

Bedell referred to Ralph Seber as "Ralph Perini."

Seber referred to Robert High as "Robert Hyde."

Dr. Ferenz's videotaped depositions were played to the jury. There are also references in the record to a videotape that was played of the testimony of plaintiff's physical therapist. However, it is not clear when, if ever, this videotape was played, and the transcript of this testimony has not been supplied on appeal.

The microphone did not pick up the judge's voice during this sidebar conference. However, it is apparent from what is transcribed that the judge was ready to hold counsel in contempt for having persisted in questioning the witness after the objections were sustained. On appeal, plaintiffs' attorney has included in the record the letter he submitted to the court that day, as well as the materials he had relied on to cross-examine the witness regarding Jordan Rehabilitation Services.

During her ruling on the new trial motion, in response to all of the comments made by plaintiffs' counsel, the trial judge recognized that this was not the "neatest case" she had ever tried, and that plaintiffs' counsel had clearly said things that should not have been said.

We do not preclude any party to this appeal from addressing this issue before the trial court based on some post-judgment development. Our determination is based on the record before us.

Provini's primary defense was that plaintiff alone was responsible for this accident. Alternatively, it argued that Macy's was responsible or that other contractors at the job site, including Stanly, were responsible.

(continued)

(continued)

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A-3422-06T2

August 12, 2008