MARIO JACKSON, ET AL. v. HELEN A. FORT MIDDLE SCHOOL, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5725-04T55725-04T5

MARIO JACKSON and MARIE

JACKSON, his wife,

Plaintiffs-Appellants,

vs.

HELEN A. FORT MIDDLE SCHOOL,

PEMBERTON TOWNSHIP BOARD OF

EDUCATION, and EDWARD H. DION,

Defendants,

and

LEVY CONSTRUCTION COMPANY, INC.

and REGAN, YOUNG, ENGLAND,

BUTERA, P.C.,

Defendants-Respondents.

__________________________________

 

Argued: January 18, 2007 - Decided March 14, 2007

Before Judges Cuff, Winkelstein and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3599-99.

Mark J. Molz argued the cause for appellants (Mark J. Molz, attorney; Stephen Cristal, on the brief).

Walter F. Kawalec, III, argued the cause for respondent Levy Construction Company, Inc. (Marshall, Dennehey, Warner, Coleman and Goggin, attorneys; Robert G. Kelly and Mr. Kawalec, on the brief).

Kevin M. Bothwell argued the cause for respondent Regan, Young, England, Butera, P.C. (Thompson, Becker and Bothwell, attorneys; Mr. Bothwell, on the brief).

PER CURIAM

Plaintiffs Mario and Marie Jackson appeal from a judgment of no cause of action entered in favor of defendants Regan, Young, England, Butera, P.C. (Regan) and Levy Construction Company, Inc. (Levy). In this appeal, plaintiffs contend that a defense attorney's comment during his opening statement and during cross-examination of plaintiff's wife, as well as the use of the professional judgment charge by the trial judge require a new trial. Plaintiffs also argue that the trial judge should have directed a verdict in their favor or granted plaintiffs' motion for a new trial. We disagree and affirm.

In the mid-1990s, defendant Pemberton Township Board of Education (Board) entered into contracts for the renovation of defendant Helen A. Fort Middle School (School). The Board employed Regan as the architect for the project and Levy as the general contractor. Defendant Edward Dion was the Board's construction manager for the project.

In 1995, Regan instructed Levy to install two signs on the exterior of a set of doors to indicate that the doorway was accessible to persons with physical handicaps. However, no access ramp had been installed outside this doorway. The ramp had not been constructed when Levy ended its work on the project in late 1995 or by January 1999 when plaintiff attended an event at the School.

On January 11, 1999, plaintiff, in his wheelchair, exited the doorway bearing the handicap-accessible signs. Plaintiff's wheelchair was being maneuvered by his daughter, who opened one of the doors and backed out of the doorway, pulling plaintiff's wheelchair. Plaintiff's daughter pivoted the wheelchair, expecting to find a ramp. Instead, the wheels of the wheelchair fell over the edge of the pad, the chair fell on its side, and plaintiff sustained serious injuries.

Plaintiffs filed a complaint seeking damages for their injuries against defendants Board, Dion, Regan, and Levy. Prior to trial, the Board and Dion entered into settlement agreements with plaintiffs. Following a lengthy trial against Regan for professional negligence and against Levy for negligence, the jury found that neither had been negligent.

The facts as they pertain to the installation of the signs are as follows. In the mid-1990s, the Board began a multi-phase project to renovate the School. One phase of that project involved extensive changes to the interior of the School building. Regan was the architect selected by the Board for that phase of the project, while Levy was the general contractor chosen to perform the renovation work specified by Regan. Regan's architect in charge of the project was Scott England.

The only renovation work to be performed by Levy on the exterior of the School building during this phase was the placement of two signs near the outside of a doorway of the School. Two doors, each about three feet in width, comprised the doorway. Immediately outside of the doorway was a concrete pad that was raised about three inches above the sidewalk that led to the doorway.

While the renovations were underway, there was no ramp in place to make the doorway accessible to physically handicapped persons who depended upon wheelchairs for mobility. For that reason, England's first set of architectural plans concerning the signs to be placed at the doorway's exterior called for two signs directing affected persons to use the handicap-accessible doors at the main entrance to the School.

Subsequently, England amended the plans to require placement of two handicap-accessible signs at the doorway's exterior. At that time, there was no ramp in place at the pad in front of the doorway when England made the amendment, nor did the then-current architectural plans include any provision for the construction of such a ramp.

According to England, the change in plans concerning the two signs was initiated by a conversation he had during the construction period with the Board's building and grounds supervisor, Dennis Starr. England testified that, during a meeting at the School in the midst of construction, Starr directed him to install the handicap-accessible signs at the exterior of the doorway. Starr noted that the Board would soon build a ramp to facilitate wheelchair travel over the three-inch barrier presented by the concrete pad. England also testified that Dion, the Board's construction manager for the project, may also have been present at the meeting and during the conversation.

According to England, Starr had the authority to make changes to and recommendations on the Board's construction projects and had done so on other such projects in the past. England testified that he made the amendment to the construction plans concerning the sign in reliance on Starr's statement that a ramp was going to be constructed soon as part of the project.

England stated that his architectural firm had "done a lot of work in this [school] district, and any time that client [the Board] had said they were gonna do something, they did it. So I had no reason to not believe that they were not gonna follow up" and build the ramp. The Board had employees who were capable of building such a ramp.

Moreover, while England "knew there was no ramp at the time" he amended the plans, he testified that he "also knew the building was not occupied at that time because the construction was not done. No one was going in and out that entrance" doorway at that time. In fact, that portion of the building was not finished and used until February 1996. Levy finished its work on the premises and left the site in December 1995.

Starr testified that he did not remember any meeting with England in which he stated that the signs should be changed because the Board was going to build a ramp at the doorway as part of the construction project. Starr also testified, however, that such a conversation "could have taken place, I just don't remember anything about it . . . I can't rule it out." Dion testified that the "issue of there being a handicap sign on the same entrance where there wasn't a handicap ramp" never arose when he was reviewing construction plans with "Starr or anybody else."

In any event, Levy installed two signs at the exterior of the doorway that indicated that the doorway was accessible to persons with physical handicaps who required wheelchair access. At trial, Simon Levy testified that the signs were installed in conformance with the architectural plans issued to Levy by Regan.

Simon Levy also testified that he did not install handicap-accessible signs at locations near the interior of the doorway because the architectural plans did not include such signs.

When the project was completed, Starr visited the School and inspected the work done by Regan and Levy. Starr testified that he did not see the handicap-accessible signs at the exterior of the doorway during his inspection or at any time during his numerous visits to the School during the course of the renovation construction. Dion, too, inspected Regan's and Levy's work at the School following the completion of the renovations. Dion testified that he only assured himself that Levy had installed the signs specified in the architectural plans and that he "would not have noticed whether or not there was a step" in front of the doorway that would have conflicted with the message conveyed by the handicap-accessible signs.

Between three and six months after the renovation work was completed in February 1996, Brian Massimi, a Board employee who functioned as the school district's "safety specialist," saw the signs at the exterior of the doorway at the School. Massimi immediately recognized that the signs were improper. Massimi, whose office was at that time "side-by-side" with that of Starr, testified that he reported the erroneous signs to Starr and suggested that something be done about them. According to Massimi, Starr replied that the Board's contract for concrete work had already been awarded and nothing could be done. Massimi did not check the doorway at a later time to see if the condition had been corrected.

Starr testified that he had no memory of any conversation with Massimi concerning improper signs on the exterior of the School. According to Starr, if he had been "notified by somebody that the signs were out there I would have had the maintenance guys take it down immediately." Slightly less than three years after the renovated section of the building was open, plaintiff's daughter used the doorway believing that it was suitable for a wheelchair-bound person. The inaccurate signs were removed the following day. Later, a ramp was installed at the doorway.

I

Plaintiffs argue that the trial judge erred when he denied plaintiffs' request to declare a mistrial due to comments made by Levy's counsel in his opening statement and during the cross-examination of plaintiff Marie Jackson. The general contractor's attorney advised the jury that plaintiffs had settled their dispute with the Board and Dion. Then, during Levy's cross-examination of Marie Jackson, Levy focused on Marie Jackson's earlier deposition testimony that dealt with the Board's allegedly "egregious" conduct, pertinently asking her, "[b]ut you settled your differences with the School Board, correct?" Plaintiffs contend that the information was irrelevant to the jury and that the question on cross-examination regarding the settlement suggested to the jury that Regan and Levy were less culpable than the Board. Plaintiffs argue that, at most, jurors should only be told "that they are not to consider why the other allegedly liable party is not represented at the trial."

Our analysis of the contention requires consideration of all references to the settlement between plaintiffs and the Board. On March 8, 2005, at the beginning of trial and consistent with the rule in Theobold v. Angelos, 40 N.J. 295 (1963), the trial judge informed the jury that the Board and Dion were originally defendants in the case, but had "settled" the claims against them, "reasons for which are irrelevant for your consideration."

The next day, March 9, 2005, the parties gave their opening statements to the jury. For their part, plaintiffs read the case caption to the jury, noting that the Board and Dion were originally named as defendants. Thereafter, plaintiffs indicated that the Board "has resolved its differences with the plaintiffs, as has Mr. Dion, so there won't be any attorneys representing those parties, although they're going to be mentioned."

Thereafter, Levy gave its opening statement, relating certain factual allegations against Regan, the Board, and Dion. Significantly, Levy also commented that "[y]ou [the jurors] were told by the Judge . . . [t]hey [the Board and Dion] settled. It's not for you to speculate why, but you're here. We [Levy] did what we were told. We followed the contract. Whatever happened to Mr. Jackson [plaintiff] - - we'll get into this. There's nothing whatsoever to do with Levy construction." Subsequently, Regan gave its opening statement, pertinently commenting that Dion was "one of the parties who settled out of the case."

At the end of the opening statements, plaintiffs requested a "conference" with the judge. At the untranscribed sidebar conference, we are informed that plaintiffs objected that Levy's opening statement comment was "improper" because it drew unnecessary attention to the settlements and suggested to the jurors that the negligent parties had already been released from the litigation.

Subsequently, plaintiffs submitted jury charge requests for the judge's consideration, including a request that the judge include Model Charge 1.17, which tracks the Theobold rationale concerning the provision of information and certain cautions to the jury about settlements. The judge agreed to give that instruction to the jury.

Immediately following the question to Marie Jackson about the settlement, plaintiffs objected and asked for a mistrial because Levy's question suggested that plaintiffs had settled with the most culpable defendant and because it "create[d] an inference that the guilty party [was] already out" of the case.

The judge determined that a mistrial was not warranted, electing instead to mold Model Charge 1.17 as a curative instruction and to preclude any further mention of the settlements by any witness at trial or by counsel during their closing arguments.

Plaintiffs do not refer to any authority in this State in support of their contention that the jury should only be informed that they should not speculate about the non-participation of some of the originally named defendants at trial. Instead, they rely on case law from other jurisdictions that restrict information about settlement agreements in civil litigation from the jury. One line of case law is based upon a judicially-declared policy that juries are not to be told about a co-defendant's settlement. Brewer v. Payless Stations, Inc., 316 N.W.2d 702, 705 (Mich. 1982); Burger v. Van Severen, 188 N.E.2d 373, 376-77 (Ill. App. 1963). Another line of authority is based upon statutes that impose a similar restriction. Henry v. Beacon Ambulance Serv., Inc., 424 So. 2d 914, 915-16 (Fla. App. 1983), rev. den., 436 So. 2d 97 (Fla. 1983); Webb v. Priest, 413 So. 2d 43, 46 (Fla. App. 1982); Cleere v. United Parcel Serv., Inc., 669 P.2d 785, 789 (Okla. App. 1983).

This State, however, has an explicit judicially-declared public policy that directs a trial judge to inform a jury in a civil case that some of the parties have settled their differences. That public policy arises out of underlying comparative fault principles that seek the fair allocation of responsibility among all negligent parties in proportion to their relative fault in causing injury to a plaintiff. Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 114 (2004). Those underlying principles "are the basis for the requirement that the trier of fact assess the negligence of a joint tortfeasor who has settled." Ibid.

Contrary to plaintiffs' contention, jurors need not be "told merely that they are not to consider why the other allegedly liable party is not represented at trial," in making their required assessment of a settling tortfeasor's negligence. Rather, as set out in Theobold, supra, 40 N.J. at 303-04,

where multiple tort-feasors are or may be jointly responsible for an individual's injuries and losses, and [where] one or more of them effect a settlement in exchange for a covenant not to sue, the fact of the settlement, but not the amount paid, is generally brought to the attention of the jury at the trial.

The Theobold Court reasoned that informing the jurors about the fact that a settlement has been entered into, but not the amount actually paid to settle a claim, was both a "fair" and "wise" policy because, "[w]hen the jury has such knowledge, speculation is avoided as to the reason for the absence from the proceedings of an additional potentially liable person." Id. at 304. Model Jury Charge (Civil), 1.17, the charge delivered in this case, embodies the Theobold Court's direction that the jury be informed about the fact that a party has settled a claim.

The result is that plaintiffs' contention is rejected as contrary to established law in this State. Moreover, plaintiffs did not assert at trial that it was error for the trial court or anyone else to inform the jury that they had settled their claims against the Board and Dion. Plaintiffs failed to raise the precise issue at trial that it advocates on appeal. Therefore, they must establish that the error was clearly capable of producing an unjust result. R. 2:10-2. As noted, they cannot establish any error, much less plain error.

In light of the entire record, there is nothing to support plaintiffs' assertion that Levy's comment and question affected the jury in the way that they contend. Instead, there was substantial evidence, if accepted by the jury, to establish that the Board and Dion may have played roles in causing the conditions at the School that resulted in plaintiff's injuries. Plaintiffs' contention implicitly downplays the evidence presented at trial supporting the jury's verdict and focuses on and speculates about the supposed effect on the jury of the disputed comments and cross-examination question. There was simply no basis for a mistrial.

II

In his charge at the close of the evidence, the trial judge included the professional judgment charge in the professional negligence section of the charge pertaining to the architect. Plaintiffs argue that the placement of the signs at a doorway without a ramp can never be an acceptable practice. Based on the expert testimony presented at trial, we conclude that its inclusion cannot be faulted.

Under the professional judgment rule, a practitioner of a profession does not deviate from the accepted standard of care and commit malpractice if that person elects to follow one or more of the generally accepted courses of action recognized within the profession as appropriate to the situation at hand. Das v. Thani, 171 N.J. 518, 527-28 (2002). In the present case, the rule shields Regan from liability for negligence for directing that the handicap-accessible signs be placed at the doorway, if the jury found that Regan did so after choosing between reasonable alternative courses of actions recognized as such within the profession of architecture.

At trial, the parties elicited conflicting testimony from two experts on the practice of architecture. Plaintiffs' expert, Todd Rosenblum, testified that Regan's architect on site should have observed that no ramp had been constructed at the concrete pad in front of the doorway where the handicap-accessible signs had been installed. Rosenblum also testified that it "would not be good practice [by a professional architect like England] to have a sign saying this is an accessible entrance and . . . a three-inch step." Rosenblum stated that "having a step and putting signs up to indicate that there is an accessible exit is a breach [by England] of the standard of care [applicable to architects] that caused damage to [plaintiff]."

In contrast, Regan's expert, Charles G. Surmonte, testified that, in directing that handicap-accessible signs be placed at a doorway that currently did not have a wheelchair-access ramp, an architect may reasonably rely upon the representation of the building owner that the owner will construct a ramp in the future. Surmonte further testified that, given Starr's representation to England that the ramp would be constructed soon, England did not deviate from the professional standard of care by relying upon that representation and directing that the signs be installed even though there was no ramp then currently in place.

Inclusion of the professional judgment rule in the professional negligence charge was discussed several times during the trial. At the final charge conference, the judge adjusted the wording of the Model Charge 5.38 instruction that he proposed giving to the jury. The judge rejected plaintiffs' argument that England did not follow a reasonable alternative course of action when he had the handicap-accessible signs installed based upon Starr's representation that a ramp would be built. The judge concluded that there was evidence indicating that such a course of action was recognized as acceptable conduct in the profession of architecture.

Over plaintiffs' objection, the judge instructed the jury pursuant to Model Charge 5.38. He stated:

If in the exercise of his judgment, an architect selects one o[f] two or more courses of action, each of which under the circumstances as you find them to be, has adequate support as proper practice in the architectural profession based on the evidence in the case, the architect is not negligent even in the course chosen - - even if the course chosen produces a poor result.

Regan's expert's testimony belies plaintiffs' argument that there is no "professional support" for England's actions. Surmonte, the architect's expert, testified that England exercised his professional judgment concerning the disputed signs when he elected to have those signs posted based on Starr's representations. According to Surmonte, an architect may rely on a representation from a client, particularly a long-standing client, that it will do what it says it will do. These circumstances provided the necessary foundation for the trial court's provision of the professional judgment instruction to the jury.

III

Plaintiffs also argue that the trial judge erred in denying their motion at the end of trial for a directed verdict on liability pursuant to Rule 4:40-2. Plaintiffs argue that there was no question that Regan and Levy breached duties owed by them to plaintiff.

Under the appropriate standard for both deciding and reviewing decisions on motions under Rules 4:40-1 and -2, the trial judge must accept "as true all of the evidence which supports the position of the party defending against the motion" and must accord that party the benefit of all legitimate inferences which can be deduced therefrom and, if reasonable minds could differ, the motion must be denied. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441-42 (2005); Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). Applying this standard, it is plain that the trial court was correct in denying plaintiffs' motion for a directed verdict on liability.

Accepting as true the evidence supporting Regan's and Levy's positions, Starr represented to England that the Board would soon build the ramp at the doorway and that England relied upon that representation in amending the architectural plans and directing that handicap-accessible signs be placed at the doorway. Also, according to the architect's expert, England did not breach any professional duty of care by relying on Starr's representations and Levy did not breach a duty of care by following the directions given by England to install the signs.

Plaintiffs' argument that the trial judge should have granted the motion for a new trial pursuant to Rule 4:49-1 is also without merit. Simply stated, there was an evidential basis for the verdict.

 
Affirmed.

Marie Jackson filed a per quod claim. All references to plaintiff in this opinion refer to Mario Jackson.

The Board and the School it controlled were treated as the same entity for litigation purposes at trial. Reference to the Board in this opinion includes the School.

(continued)

(continued)

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A-5725-04T5

March 14, 2007