LUIS ANALUISA v. DAVID GRATTON WEIR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5309-05T15309-05T1

LUIS ANALUISA AND NORMA

ANALUISA, his wife,

Plaintiffs-Appellants,

v.

DAVID GRATTON WEIR, DAVID G.

WEIR, JR., SEA STRUCTURE, LLC.,

BISA KLEMCO, INC., and KLEMCO,

INC.,

Defendants,

and

J. MICHAEL RICHARDS,

Defendant-Respondent.

_________________________________

 

Argued April 1, 2008 - Decided

Before Judges Skillman, Winkelstein and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2066-02.

James C. Mescall argued the cause for appellants (Mescall & Acosta, attorneys; Mr. Mescall, on the brief).

John P. Gillespie argued the cause for respondent J. Michael Richards (Romando, Tucker, Zirulnik & Sherlock, attorneys; Mr. Gillespie, on the brief).

PER CURIAM

Plaintiffs appeal from a jury verdict finding defendant J. Michael Richards not liable for injuries sustained by plaintiff Luis Analuisa in an accident on a construction job site for which Richards was the general contractor. All other defendants were dismissed by summary judgment; plaintiffs have not appealed those orders. The following background is pertinent to our discussion.

Plaintiff was an employee of Klemco, Inc. (Klemco), an asbestos removal company. On October 10, 2000, plaintiff was injured when he fell from a ladder while removing asbestos siding from a house owned by Sea Structure, LLC. Sea Structure had contracted with Richards to demolish the house and build a new one. Richards subcontracted with Klemco to remove the siding.

Plaintiff had no recollection of how he fell; no witnesses observed the incident. Plaintiff testified that he was standing about four or five rungs from the top of a twenty-five-foot ladder, prying siding off the house with a pitchfork-like tool. His normal practice, when removing siding while standing on a ladder, was to hold the tool with one hand and let the siding fall to the ground.

Carl Brown, an EMT who responded to the scene, testified that plaintiff had landed in the grass. Brown estimated the height of the ladder to be fifteen feet. Ocean City police officer David Rowland, who also responded to the scene, estimated the ladder height to be sixteen feet.

Plaintiff was conscious after the fall, but neither Brown nor Rowland could effectively communicate with him because he spoke Spanish and little English. According to Brown, plaintiff knew his name and responded to it but did not seem to know the time or where he was. At the hospital plaintiff was diagnosed with fractures of both wrists and his right foot and a hip injury.

As of the time of trial plaintiff testified that he was in constant pain, could not use his left hand, and suffered from depression. He stated he took fourteen different medications each day, which made him tired, dizzy and nauseous. His injury left him unable to return to the work force.

Plaintiff's liability theory against Richards was that, as the general contractor, defendant had breached his non-delegable duty to provide a safe work environment. In support of that theory, plaintiff presented Vincent Gallagher, an expert on construction safety and fall hazards.

Gallagher testified that according to industry standards and regulations, it was unsafe to remove asbestos siding from a house while standing on a ladder. He stated, "It's much safer to use a scaffold or a scissors lift. . . ." Since Klemco failed to provide plaintiff with either of those structures, Gallagher concluded that plaintiff had been working in an unsafe environment and Richards should have taken steps to guard against that lack of safety.

Richards acknowledged that he did not address with Klemco the issue of compliance with safety standards and regulations; nor did he discuss safety issues with Klemco. Richards claimed he did not breach any duty of care because he had no personal familiarity with asbestos removal; therefore, he claimed that he appropriately relied upon Klemco to address safety issues. Defendant's liability expert, Henry Naughton, challenged Gallagher's opinion that removing asbestos siding while standing on a ladder was unsafe. Naughton opined that it was not inconsistent with industry standards and regulations to remove asbestos while standing on a ladder.

The jury found that Richards had breached his non-delegable duty to provide a safe work place to plaintiff. However, the jury returned a verdict in defendant's favor by responding in the negative to the following interrogatory: "Did the plaintiff prove by a preponderance of the credible evidence that the negligence of the defendant was a proximate cause of any injury sustained by plaintiff?"

On appeal, plaintiff raises the following issues for our consideration:

POINT I.

As there was no credible evidence to support the jury's conclusion that defendant's failure to provide a safe work place for the plaintiff was not a proximate cause of an injury to the plaintiff, judgment notwithstanding the jury's verdict should be entered in favor of the plaintiff and against the defendant.

POINT II.

As the court improperly charged the jury that the defendant could avoid legal responsibility by relying upon Klemco to comply with OSHA standards, a new trial must be ordered.

POINT III.

The court's failure to strike the net opinion of the defendant's liability expert, Naughton, requires a new trial.

POINT IV.

A directed verdict on liability must be ordered where the jury found defendant failed to provide a safe work place and the Court has determined that the evidence allows for no conclusion but that defendant's negligence was the proximate cause of the accident.

POINT V.

This action should be remanded to the Law Division to permit the trial judge to consider an additur.

Having thoroughly reviewed the record, we affirm the judgment.

Plaintiff contends that he is entitled to judgment notwithstanding the verdict (NOV) because the jury's finding of no proximate cause was not supported by the record.

The judge charged the jury on both liability and damages. In charging the jury as to liability, the trial judge used the terms "accident" and "injury" interchangeably and disjunctively in defining proximate cause:

You've also heard me talk in discussion of negligence of proximate cause. If you find that J. Michael Richard[s] was negligent, you must find that his negligence was a proximate cause of the accident before you can find that J. Michael Richards was responsible for the claimed injuries of Mr. Analuisa. It is the duty of Mr. Analuisa to establish by the preponderance of the evidence that the negligence of J. Michael Richards was a proximate cause of the accident and or the injuries resulting from Mr. Richards' negligence.

The basic question for you to resolve is whether Mr. Analuisa's injuries are so connected with the negligent actions or inactions of Mr. Richards that you decide that it is reasonable in accordance with my instructions that Mr. Richards should be held responsible for the injuries to the plaintiff.

And by proximate cause I refer to a cause that in a natural and continuous sequence produces the accident and the resulting injury and without which the resulting accident or injuries would not have occurred.

A person who is negligent is held responsible for any accident or injury that results in the ordinary course of events from his negligence. This means that you must first find that the resulting accident or injuries to Mr. Analuisa would not have occurred but for the negligent conduct of Mr. Richards.

Second, you must find that . . . Mr. Richards' negligent conduct is a substantial factor in bringing about the resulting accident or injuries. And by substantial I mean that the cause was not remote, trite or inconsequential. If you find that Mr. Richards' negligence was a cause of the accident and that such negligence was a substantial factor in bringing about the injury, then you should find that Mr. Richards' negligence was a proximate cause of Mr. Analuisa's injuries.

[Emphasis added.]

In charging the jury on damages, the judge stated:

I remind you that [plaintiff] has the burden of establishing by a preponderance of the evidence each item of damages that he claims. The plaintiff must also prove that the damages were the natural and proximate consequences of the defendant's negligence. The accident must have been a proximate cause of the damages.

[Emphasis added.]

At the conclusion of her charge, following a sidebar colloquy with counsel, the trial judge further instructed the jury:

[A]ny of [plaintiff's] allegations must be proven . . . to be a proximate cause of the accident.

. . . .

[Defendants] deny that . . . any breach of duty by Mr. Richards was a proximate cause of the accident or of the injuries.

[Emphasis added.]

Counsel raised no objections after the judge's supplemental charge to the jury or to the second jury interrogatory linking proximate cause to "any injury suffered by the plaintiff."

The model jury charge on proximate cause states:

If you find that [defendant] was negligent, you must find that [defendant]'s negligence was a proximate cause of the accident/incident/event before you can find that [defendant] was responsible for [plaintiff]'s claimed injury/loss/harm. It is the duty of [plaintiff] to establish, by the preponderance of evidence, that the negligence of [defendant] was a proximate cause of the accident/incident/event and of the injury/loss/harm allegedly to have resulted from [defendant]'s negligence.

The basic question for you to resolve is whether [plaintiff]'s injury/loss/harm is so connected with the negligent actions or inactions of [defendant] that you decide it is reasonable . . . that [defendant] should be held wholly or partially responsible for the injury/loss/harm.

[Model Jury Charge (Civil), 6.10, "Proximate Cause General Charge to be Given in All Cases" (1998).]

We conclude that the trial judge's use of both "accident" and "injury" in the charge may have been somewhat confusing to the jury but, under the circumstances, it did not have the capacity to lead to an unjust result. As noted, plaintiff could not describe how his accident occurred. No eye witnesses saw plaintiff fall from the ladder. Although the liability experts, Gallagher and Naughton, testified as to safety standards governing asbestos removal practices, neither expert was able to connect his opinion to the specific facts of plaintiff's accident. In the absence of any evidence as to how the accident happened, the jury was left to consider proximate cause only in the context of the resulting injuries to plaintiff.

A jury interrogatory that asked whether plaintiff proved that defendant's negligence was a proximate cause of the accident may well have been more prejudicial to plaintiff. Given the lack of proof as to how the accident occurred, the jury would have had little choice but to answer such an interrogatory in the negative. As worded, the interrogatory at least focused the jury's attention on the issue that was addressed by the evidence, plaintiff's injuries.

In reviewing a trial court's decision on a motion for judgment (NOV) filed pursuant to Rule 4:40-2, an appellate court applies the same standard as the trial court. Estate of Chin v. St. Barnabas Med. Ctr., 312 N.J. Super. 81, 91 (App. Div. 1998), aff'd 160 N.J. 454 (1999). We "'must accept as true all the evidence which supports the position of the party defending against the motion and must accord him the benefit of all legitimate inferences which can be deduced therefrom, and if reasonable minds could differ, the motion must be denied.'" Ibid. (quoting Lanzet v. Greenberg, 126 N.J. 168, 174 (1991)).

Plaintiff argued that the finding of no probable cause was not supported by the evidence. In rejecting that argument and denying the motion for judgment NOV, the trial court held that the issue was one of credibility, which, the judge stated, was "absolutely within the purview of the jury." The judge addressed the credibility issue primarily in relation to the extent of plaintiff's injuries. In the argument on the motion, neither counsel nor the judge raised a question as to whether the phrasing of the second interrogatory had the capacity to mislead or confuse the jury.

On appeal, plaintiff contends that the only logical conclusion was that defendant's negligence was the proximate cause of plaintiff's injuries because: (1) Klemco was not a defendant; (2) defendant "conceded" that Klemco's actions were not a proximate cause; (3) Naughton "conceded" that plaintiff was not negligent; and (4) the court "ruled that plaintiff's actions were not a proximate cause of the accident." Thus, plaintiff argues, the evidence supported no finding other than that defendant was the proximate cause of the accident. However, the fundamental flaw in plaintiff's argument remains his failure to have produced any evidence that defendant's breach of duty was the proximate cause of his fall from the ladder that resulted in his injuries.

Plaintiff contends that the trial judge acknowledged that the jury's finding of no proximate cause was unsupported by the evidence when the judge stated:

This Court finds that the question of proximate cause is indeed the issue here. Plaintiff's counsel has argued in this motion for a new trial or a judgment NOV that there is no way that the jury could properly have found that the defendant was not the proximate cause of the accident. And, indeed, that is accurate.

Plaintiff's reliance on this statement is misplaced, however, because that statement was not a finding. Rather, it was a comment on the gravamen of plaintiffs' argument. The court stated that "all of the issues raised by the plaintiff in asking for reconsideration" were couched in terms of whether defendant "was negligent in breaching his non-delegable duty to plaintiff to provide a safe workplace[.]" The jury had answered that question in plaintiff's favor. Thus, the real issue was whether the evidence supported the jury's finding of no proximate cause. Plaintiff's arguments did not specifically address that issue.

We reject as without merit plaintiff's argument that the court should have instructed the jury that (1) the court had denied defendant's request to give a comparative negligence instruction and (2) Klemco's and plaintiff's actions were not the proximate cause of the accident. R. 2:11-3(e)(1)(E). Such an instruction would have compromised the jury's responsibility to make its own independent factual findings. Moreover, informing the jury that the court declined to instruct on comparative negligence may well have suggested to the jury that it should find plaintiff not negligent.

 
We also reject plaintiff's remaining arguments relating to issues of negligence and damages. The jury found defendant negligent. The jury's finding that such negligence was not the proximate cause of the injuries to plaintiff as a result of his fall from the ladder renders the damages issue moot. We consider these arguments to be "without sufficient merit to warrant discussion in a written opinion[.]: R. 2;11-3(e)(1)(E).

Affirmed.

(continued)

(continued)

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A-5309-05T1

August 28, 2008