CARITZA SOLER TORRES v. KHAMIS SUMREIN
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4887-15T1
CARITZA SOLER TORRES,
Plaintiff-Respondent,
v.
KHAMIS SUMREIN and NAJAH
SUMREIN,
Defendants-Appellants,
and
ALKARAK TRADING, LLC,
Defendant.
__________________________________
Argued November 13, 2017 – Decided December 7, 2017
Before Judges Sabatino and Ostrer.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-5438-
14.
Mark S. Kundla argued the cause for appellants
(Hardin, Kundla, McKeon & Poletto, PA,
attorneys; Mark S. Kundla, of counsel and on
the briefs; Joseph A. DiPisa, on the briefs).
Robert H. Baumgarten argued the cause for
respondent (Ginarte, O'Dwyer, Gonzalez,
Gallardo & Winograd, LLP, attorneys; Robert
H. Baumgarten, on the brief).
PER CURIAM
Following a trial in this premises liability case, a jury
found defendants, the owners of a commercial building, negligent
with respect to the hazardous condition of a stairway on which
plaintiff, a retail customer, fell down as she left the premises.
After the jurors returned their initial verdict reflecting
internal inconsistencies, they received additional instructions
from the court. The jury then deliberated further and issued a
second verdict, finding the owners' negligence the sole proximate
cause of plaintiff's accident. The jury awarded plaintiff
substantial non-economic damages for her pain and suffering, plus
a modest sum for lost wages.
The property owners now appeal the liability portion of the
verdict, principally arguing they were prejudiced by: (1) the
misuse at trial of proof of subsequent remedial measures undertaken
after plaintiff's accident; and (2) confusing errors in the
original verdict form that resulted in the jury returning
inexplicably inconsistent successive verdicts. Because these
contentions have merit and the trial errors were not manifestly
harmless, we remand for a new trial on liability issues only,
leaving the jury's calibration of damages intact.
2 A-4887-15T1
I.
Defendants Khamis Sumrein and Najah Sumrein (collectively,
"the Sumreins") own a one-story commercial building on Orange
Street in the City of Newark. The Sumreins constructed the
building in 1992. At the time of plaintiff's August 2012 accident,
the Sumreins were leasing the premises to co-defendant Alkarak
Trading, LLC ("Alkarak"). Alkarak operated a retail store in the
building.1 The building has a short flight of stairs leading down
from the retail area's entrance and exit door that opens out onto
the public sidewalk.
On the afternoon of August 12, 2012, plaintiff, Caritza Soler
Torres, briefly entered the building and walked up the stairs to
the store. She made a purchase and then began to leave the
1
As clarified to us by defense counsel, he represented all three
defendants (Khamis Sumrein, Najah Sumrein, and Alkarak) at trial.
The lease obligated Alkarak to provide liability coverage and list
the Sumreins as additional insureds on the policy. Alkarak's
insurer has agreed to provide liability coverage for all defendants
up to $1,000,000. In its second verdict, the jury found that
Alkarak was not negligent, a finding that plaintiff has not
provisionally cross-appealed. Defense counsel now solely
represents the Sumreins on the appeal, seeking to set aside the
liability verdict against them, but not contesting the award of
damages, which is within the policy limits. Defense counsel
represents there is no conflict of interest with respect to his
former client Alkarak, in light of these circumstances.
3 A-4887-15T1
building.2 As plaintiff was leaving the store, her cell phone
rang. Plaintiff answered the call, transferred the cell phone to
a different hand, holding a small bag in her other hand, and
continued walking. Upon reaching the door leading outside,
plaintiff opened it, missed the top stair, and fell onto the
sidewalk.
Plaintiff fractured her right ankle as a result of her fall.
She was taken from the scene by an ambulance and treated at a
local hospital. Surgery was performed and plates and screws were
permanently installed in plaintiff's ankle. She was unable to
work for at least six months. Plaintiff presented expert medical
testimony at trial from an orthopedic surgeon, who substantiated
her injuries and course of treatment.
Plaintiff testified that she had not noticed any indication
as she was leaving the building to alert her that there was an
additional step leading from the doorway to the sidewalk.
According to plaintiff, "[e]verything was the same color as the
sidewalk." There were no warning signs posted advising visitors
to watch their step as they traveled through the door, down the
2
Plaintiff's actions in exiting and missing the stair as she left
the building were recorded on a twelve-second surveillance video,
which was played several times for the jurors. The parties have
furnished the video recording, which we have reviewed, as part of
the record on appeal.
4 A-4887-15T1
stairs, and out onto the sidewalk. Plaintiff insisted that she
was not in a hurry as she left the building, that she was looking
straight ahead as she proceeded forward, and that she was paying
attention and was not distracted by the incoming call on her cell
phone.
To support her contention that the configuration of the
entranceway was hazardous at the time of the accident, plaintiff
presented expert testimony from a licensed professional engineer.3
The engineer identified several conditions of the premises that
were dangerous and, in his opinion, non-compliant with the
applicable building code. He asserted that the entrance's
configuration, with the door swinging out beyond the stairs,
violated the code. The expert explained that "[i]n a properly
designed safe structure, when the door opens over a stairway there
should be a landing that allows you to open the door and step
out." Here, there was no such landing that extended beyond the
radius of the door. Instead, the stairs abruptly ended, such that
users would need to go immediately down the steps and then onto
the sidewalk.
3
The expert inspected the accident site and also examined various
discovery materials, including the twelve-second excerpt from the
surveillance video.
5 A-4887-15T1
The engineer further noted that the uniform appearance of the
stairs, which matched the color of the sidewalk, increased the
risk of a visitor falling. He opined that the stairs should have
had yellow-colored striping or markings to signal the change in
elevation, thereby reducing the risks of a patron falling.
The expert supported plaintiff's contention that the
hazardous condition of the stairway configuration and lack of
warnings were factors in causing her accident. On cross-
examination, the expert acknowledged that the video shows that
plaintiff was on her cell phone at the moment she fell, but he
noted that the premises' hazardous conditions were "stronger"
contributing factors in causing the accident.
The record shows that the premises were altered in several
respects after plaintiff's accident. Among other things, Maher
Alqaralleh, the owner of Alkarak, painted the stairway steps yellow
about two years after the incident. According to Alqaralleh, the
stairs were not painted for safety reasons, but rather for
aesthetic reasons – to match the yellow color of the store's sign,
entrance door frame, and security gate. In addition, Alqaralleh
placed a "Watch Your Step" sign, post-accident, on the front door.
He asserted that the sign was not installed to point out any
"particular hazard," but only "to let the customer know this is
the door to enter the store and exit the store." In addition, an
6 A-4887-15T1
ATM sign that had partially blocked a customer's view of the stairs
was removed by an ATM sales representative, allegedly for reasons
unrelated to safety.
Alqaralleh testified that approximately 140 to 150 people
typically enter the store each day. Before plaintiff's accident,
no customer had ever complained about the condition of the stairs
or the doorway. Since the time the store first opened in 2008,
no building inspectors or other governmental bodies had issued any
code violation notices for the premises. Alqaralleh specifically
denied that anyone told him to paint the stairs yellow after
plaintiff's accident.
Khamis Sumrein, the co-owner of the building, testified that
Alkarak, as the tenant, was responsible for the store's entrance
and steps. Sumrein4 noted in this regard that the tenant was the
party who had painted the steps yellow after the accident and who
had posted the "Watch Your Step" sign. Sumrein acknowledged that,
as an owner of the building, he has a shared responsibility for
the "structural integrity" of the building, including the steps.
He denied, however, that any structural changes had been made to
the premises following the accident.
4
All references to "Sumrein" in the singular shall refer to Khamis
Sumrein rather than his wife, co-defendant Najah Sumrein.
7 A-4887-15T1
After considering these and other proofs from the five-day
trial, the jury reported an initial verdict finding: the Sumreins
negligent and a proximate cause of the accident; Alkarak negligent
but not a proximate cause of the accident; and plaintiff
comparatively negligent, but also not a proximate cause of the
accident. Turning to the last liability question on the verdict
form, the jurors allocated 70% fault to the Sumreins, 15% fault
to Alkarak, and 15% comparative fault to plaintiff. By a five to
one vote, the jurors awarded $500,000 for past and future pain and
suffering plus $9,000 in lost wages.
At that point, counsel requested a sidebar and expressed
concerns that the jurors may have been confused, because they
should not have allocated any percentage of fault to Alkarak and
plaintiff, having found neither of those parties a proximate cause
of the accident. After colloquy with counsel concerning this
apparent inconsistency, the court explained the situation to the
jurors and advised them to resume deliberations:
All right, ladies and gentlemen of the
[j]ury, there's, you, apparently, have found
that [Alkarak's owner, Maher Alqaralleh] and
Alkarak Trading, LLC, were negligent, by a 5
to 1 vote; but, in question four, you found
that their negligence, meaning [Maher
Alqaralleh] and Alkarak Trading, LLC, was not
a proximate cause of the accident. So, either
their negligence was a proximate cause of the
accident and you enter a percentage for the
negligence that they contributed to the
8 A-4887-15T1
happening of the accident or they were not,
their negligence was not the proximate cause
of the negligence and therefore, their
percentage should be zero. So, I'm returning
you to the [j]ury room to make the verdict
consistent, meaning question four and question
seven (c) [on the verdict sheet], must be
consistent. Yes?
This instruction spurred a juror to request the court to clarify
the definition of proximate cause. The court did so, and then
sent the jurors back to resume deliberations.
Later that same day, the jurors returned with a second
verdict. This time the jurors found that only the Sumreins were
negligent, and that neither Alkarak nor plaintiff were negligent.
The jurors again determined that the Sumreins were a proximate
cause of the accident. The jurors issued a slightly revised
computation of damages, this time awarding plaintiff $425,000 for
past and future pain and suffering, and the same $9,000 amount for
wage loss. The court entered a final judgment consistent with the
outcome of the second verdict.
The Sumreins now appeal5 the liability aspect of the verdict,
contending that plaintiff's counsel improperly presented and
misused evidence of subsequent remedial measures in violation of
5
As we have noted, Alkarak has not appealed, having been deemed
in the second verdict to not be liable. Defense counsel has
conceded both in correspondence to this court and at oral argument,
that no new trial on damages is warranted.
9 A-4887-15T
1 N.J.R.E. 407, and that the flaws in the verdict sheet clearly
confused the jurors and led to an untenable final verdict.
II.
A.
We first consider defendants' arguments concerning the
subsequent remedial measure doctrine. N.J.R.E. 407 directs that
"[e]vidence of remedial measures taken after an event is not
admissible to prove that the event was caused by negligence or
culpable conduct. However, evidence of such subsequent remedial
conduct may be admitted as to other issues." Rule 407 codifies
our state's "strong public policy encouraging prompt remedial
measures[.]" Szalontai v. Yazbo's Sports Café,
183 N.J. 386, 402
(2005). "The theory behind [Rule 407] is that a person should not
be penalized for correcting a potentially deleterious situation."
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment
1 on N.J.R.E. 407 (2017).
Subject to considerations of unfair prejudice and other
countervailing factors under N.J.R.E. 403, evidence of remedial
conduct may be admitted under N.J.R.E. 407 for other purposes,
including the impeachment of the credibility of a witness, or
issues concerning a defendant's ownership or control of the
instrumentality that produced plaintiff's injury. See Kane v.
Hartz Mountain Indus.,
278 N.J. Super. 129, 148 (App. Div. 1994),
10 A-4887-15T1
aff'd o.b.,
143 N.J. 141 (1996); Lavin v. Fauci,
170 N.J. Super.
403, 407 (App. Div. 1979).
The pertinent chronology of events relating to the Rule 407
issues is as follows. During the course of discovery, defendant
Khamis Sumrein provided certified responses to the standard form
interrogatories for personal injury "fall down" cases. One of
those interrogatories, Question 8, asked defendants to "[s]tate
whether any repairs were made to the premises or property after
plaintiff’s injury. YES ( ) or NO ( )." See Uniform
Interrogatories, Pressler & Verniero, Current N.J. Court Rules,
Form C(2) Uniform Interrogatories to be Answered by Defendant in
Falldown Cases Only: Superior Court, https://www.gannlaw.com/
CourtRules/APPENDIX/App-02-C(2).pdf (2017). Despite the changes
that had been made to the stairway after plaintiff's accident,
Sumrein answered this query "No." On direct examination at trial,
Sumrein asserted that he did not regard the yellow stair-painting
by Alkarak to be a safety-oriented subsequent remedial measure.
Before the start of the jury trial, defendants moved in limine
to bar all testimony and evidence relating to changes made to the
property after the accident comprising subsequent remedial
measures pursuant to N.J.R.E. 407. The court denied the motion,
on the basis that such evidence should be allowed to impeach the
credibility of defendants' testimony. The court agreed with
11 A-4887-15T1
plaintiff that this "line of questioning" can be used to show an
alleged inconsistency between defendant's interrogatory answers
and the actual events that transpired.
Plaintiff's counsel called Khamis Sumrein as part of his case
in chief. During that direct examination, plaintiff's counsel
asked Sumrein if any structural changes had been "made to the
doorway of the step leading into the store" after Alkarak's lease
began in 2008. Sumrein denied that any such structural changes
had been made. Plaintiff's counsel then showed Sumrein a series
of photographs taken of the building in 2012 before the accident
took place. Sumrein acknowledged that those photos fairly and
accurately represented the condition of the property. Plaintiff's
counsel then asked Sumrein if any "repairs" to the property had
been made after the accident. Sumrein responded, "No."
Plaintiff's counsel pressed on further, asking Sumrein to admit
that, after the accident, the steps were "painted bright yellow."
Sumrein responded that the tenant had painted the steps "to match
the frame" of the doorway, and that the painting has "nothing to
do with" the safety of the entryway.
Plaintiff's counsel further confronted Sumrein with the post-
accident addition of the "Watch Your Step" sign. Sumrein responded
that he thought the tenant had put the sign there, and that he had
"no idea" why the tenant had done so. Plaintiff's counsel also
12 A-4887-15T1
got Sumrein to acknowledge that the ATM sign at the bottom of the
door was removed after the accident, which Sumrein attributed to
a decision made solely by the ATM company. He further maintained
that the ATM sign "has nothing to do with the step" involved in
the accident.
On cross-examination by defense counsel, Sumrein repeated
that he had not undertaken any measure involving the "structural
integrity" of the store. He testified that the tenant is
"responsible for what happens in the interior of the store," and
that he never had discussions with the tenant about the signs
within the premises.
Plaintiff's counsel pursued this topic further in examining
Alkarak's principal, Maher Alqaralleh. He got Alqaralleh to admit
that he had painted the stairs yellow after the accident, but
Alqaralleh denied that it was done for a safety reason. In
addition, plaintiff's counsel got Alqaralleh to concede that he
had posted the "Watch Your Step" sign, but Alqaralleh denied that
it was to prevent the "particular hazard" concerning the steps.
During his closing argument, plaintiff's counsel capitalized
on defendants' admissions about these post-accident measures.
However, instead of arguing this evidence was relevant to the
credibility of the defense witnesses, plaintiff advanced a
substantive argument: that the post-accident measures were repairs
13 A-4887-15T1
undertaken to change an unsafe condition to a safe one. As he
told the jury:
This accident occurred on August 12,
2012. Sometime after the accident, we know,
sometime after the accident, we know,
according to defendants, it was two years; but
sometime after the accident, we know they
made, they made some changes, right? They
deny any of the changes relate to safety; but
they did make some changes. So, what did they
do?
These steps, those steps, which were
gray, having trouble finding all of the
exhibits, hang on, one second. Here we go.
Okay, that shows it. They're gray, right?
Same color as the sidewalk up here. So, after
the accident, we know, they painted the steps
yellow, right, but nothing to do with safety,
painted yellow, to the other one. It's
bright, but nothing to do with safety. We
know, after the accident, they removed one of
the signs. I think that's great; because, as
he said, as you're approaching the door,
you're looking. You know, as you're walking,
you don't look. You don't walk like this.
Who walks like this? You walk like that. A
reasonable person walks like that, they're
going to walk into the person ahead of them.
Plaintiff's counsel repeated this substantive line of attack a few
minutes later with regard to the post-accident installation of the
"Watch Your Step" sign:
[Defendants'] got an obligation to keep
it safe. Again, I have to ask you to rely on
your common sense. What makes sense to you?
Should they, on the day of the accident, had
a caution sign? Would that have prevented the
accident? Well, they put one up after the
14 A-4887-15T1
accident, right? But it's got nothing to do
with safety.6
Do you think if the caution sign was
there that day, this accident would've
happened? Do you think that Ms. Soler Torres
would have seen that caution sign? I think
so, right at eye level, as you're approaching.
She'll see it. That accident wouldn't have
happened. They would've had a sign --.
Instead, they got the bottom of the door,
closed up.
On appeal, defendants urge that this use of evidence of post-
accident measures violated N.J.R.E. 407, and is likely to have
unfairly swayed the jurors in imposing liability. We agree.
We review this evidentiary issue mindful that trial judges
must be accorded a substantial degree of discretion on appellate
review of their evidentiary rulings. We generally do not set
aside a trial judge's evidentiary rulings unless the appellant
demonstrated the judge abused his or her discretion. See Hisenaj
v. Kuehner,
194 N.J. 6, 16 (2008). Moreover, a mistaken ruling
on a question of evidence does not compel reversal unless the
error is so harmful that it was "clearly capable of producing an
unjust result[.]" R. 2:10-2.
As a preliminary matter, we do not think the trial court
misapplied its discretion in denying defendants' motion in limine
6
This assertion is obviously sarcastic. Plaintiff's theory is
the opposite: that the measures were undertaken for safety.
15 A-4887-15T1
under N.J.R.E. 407, and in allowing plaintiff to present evidence
of subsequent remedial measures for the limited purpose of witness
impeachment.7 As we have already noted, such impeachment falls
within a recognized exception under Rule 407. Furthermore,
defendants had an obligation to answer the form interrogatories
honestly and forthrightly. R. 4:17-4(a); R. 4:17-1. Sumrein's
certified interrogatory answer – attesting that "no" post-accident
repairs were made to the premises – was fair game for plaintiff
to impeach, by showing the incredibility of his contention that
the subsequent measures had "nothing" to do with safety.
The critical problem here lies not with the court's
justifiable pretrial ruling on the motion in limine, but with what
ensued thereafter. First, the court did not provide any limiting
instruction to the jurors under N.J.R.E. 105, explaining to them
that they could only consider the subsequent measures for
impeachment purposes and not as proof of negligence. Such a
limiting instruction is an important caveat, which will guide the
jurors and prevent misuse of the Rule 407 exception. See Biunno,
7
We need not consider whether the evidence of repairs
alternatively could have been used to establish "ownership or
control" of the condition of the stairway or doorway under that
separate exception to Rule 407. Defense counsel did not advocate
in his closing argument that any of his three clients (the two
Sumreins and Alkarak) lacked such control, and the Sumreins'
ownership of the building was undisputed.
16 A-4887-15T1
Weissbard & Zegas, Current N.J. Rules of Evidence, comment 2 on
N.J.R.E. 407 (2017) ("If subsequent remedial conduct evidence is
properly admissible for some fact in issue other than the existence
of negligence or culpable conduct on a particular occasion, the
trial court should instruct the jury pursuant to [Rule] 105 as to
the limited effect to be given to the evidence of subsequent
conduct."). See also Ryan v. Port of N.Y. Auth.,
116 N.J. Super.
211, 219-20 (App. Div. 1971) (emphasizing the importance of a
trial court's careful instructions to jurors about how to use
evidence correctly, including warning them not to make improper
inferences of negligence based on the admission of a defendant's
answers to interrogatories with respect to post-accident remedial
measures).
We recognize that defense counsel did not request such a
limiting instruction here. Even so, the point remains whether the
absence of an instruction was harmful in the surrounding context
of the trial itself. Cf. Harris v. Peridot Chem. (NJ), Inc.,
313 N.J. Super. 257, 296-97 (App. Div. 1998) (holding, in the
circumstances presented, an unclear limiting instruction under
Rule 407 was not so egregious as to justify a rerun of the trial);
Millison v. E.I. du Pont de Nemours & Co.,
226 N.J. Super. 572,
597-98 (App. Div. 1988) (finding that the absence of a limiting
instruction was harmless since it was compensated for by opposing
17 A-4887-15T1
counsel's presentation of the case), aff'd o.b.,
115 N.J. 252
(1989).
Aside from the lack of an instruction – an omission which
otherwise might be deemed harmless in this case – the fundamental
problem here is that plaintiff's counsel did not follow through
and use the subsequent remedial measure evidence solely for
impeachment or credibility purposes. In fact, plaintiff's counsel
only alluded momentarily and generically to defendant's
interrogatory answers. He did not confront Sumrein on the witness
stand with his response to Form Interrogatory #8. Instead, as we
have shown, plaintiff's counsel repeatedly referred to the post-
accident yellow step-painting, the new warning sign, and the
removal of the ATM display as substantive proof of negligence.
This misuse of the evidence violates N.J.R.E. 407 and the important
public policies that underlie that rule. See, e.g., Szalontai,
supra,
183 N.J. at 402 (2005) (underscoring those public policies);
Dixon v. Jacobsen Mfg. Co.,
270 N.J. Super. 569, 587 (App. Div.)
(same), certif. denied,
136 N.J. 295 (1994).
The tenor of plaintiff's case and her counsel's repeated
comments in summation were plainly aimed at doing exactly what
Rule 407 forbids. Such misuse penalized defendants for taking
remedial measures – even though they did not acknowledge them as
18 A-4887-15T1
such – to make the entrance's configuration safer after plaintiff's
mishap.
We note that defense counsel said nothing about the subsequent
measures in his own summation. Hence, the improper portions of
plaintiff's ensuing summation cannot be justified on the grounds
of fair rebuttal advocacy. Instead, plaintiff's summation was
designed to underscore for the jurors the stark visual contrast
between how the premises looked before the accident and how they
looked after remedial measures were undertaken. That line of
attack had little, if anything, to do with witness impeachment,
except perhaps for the innuendo that defendants were being absurd
in claiming the post-accident changes had nothing to do with
safety. The thrust of the attack was about proving culpability
for the accident itself by focusing on "before-and-after"
comparisons. That is precisely what Rule 407 disallows, and it
easily could have unfairly prejudiced defendants in the jurors'
eyes.
B.
The second troublesome aspect of this case stems from the
wording of the verdict form and the related jury instructions.
19 A-4887-15T1
Before the end of the trial,8 defense counsel requested that the
court reject the verdict sheet that had been proposed by
plaintiff's counsel and adopt his own alternative version that
combined the defendants together. The court rejected defense
counsel's request and used a version of the form that separated
out the findings with respect to each of the defendants
individually.
Unfortunately, the verdict form provided to the jurors had
typographical errors. When those errors came to light during
deliberations through two successive notes from the jury, the
trial court brought the jurors back into the courtroom and made
oral corrections to the form.9 After those errors were corrected,
the jurors issued the first verdict, which we have already
described above, containing internally inconsistent findings.
Specifically, Question #7 of the first verdict illogically
ascribed percentages of fault to co-defendant Alkarak and to
plaintiff, despite the jurors finding respectively in Questions
8
Although this disagreement does not appear to have been recorded
or transcribed from the charge conference, the parties' briefs
each confirm the disagreement was voiced before the court finalized
the verdict form.
9
In all fairness to the trial court, these typographical errors
likewise had not been spotted by either trial counsel before the
jurors noticed them.
20 A-4887-15T1
#4 and #6 that negligence of Alkarak and of plaintiff was not a
proximate cause of the accident.
When counsel called this inconsistency to the court's
attention, the court attempted to fashion an impromptu solution
by explaining the problem to the jurors and instructing them to
resume deliberations. As we have noted, at that point, a juror
asked the court to explain once again the definition of proximate
cause, and the court obliged.
The second verdict returned by the jurors raises substantial
concerns about whether the jurors were still confused by the
verdict form and perhaps by the overall charge. Having initially
found Alkarak 15% at fault and plaintiff 15% at fault in the first
verdict, the jurors allocated no fault to either of those parties
in the second verdict, shifting the entire 100% to the Sumreins,
while at the same time reducing the gross award of damages for
pain and suffering. The jurors rescinded their earlier finding
that both Alkarak and plaintiff were negligent. This sequence of
events is arguably indicative of "reasoning backwards" by the
jurors, in an effort to approximate the net outcome they reached
the first time, since the second damages award would not be subject
to a 15% reduction for plaintiff's comparative fault.
A cardinal principle of our system of civil justice is that
"[a]ppropriate and proper charges to a jury are essential for a
21 A-4887-15T1
fair trial.'" Velazquez v. Portadin,
163 N.J. 677, 688 (2000)
(alteration in original) (quoting State v. Green,
86 N.J. 281, 287
(1981)); see also Washington v. Perez,
219 N.J. 338, 350 (2014)
(noting that "[o]ur law has long recognized the critical importance
of accurate and precise instructions to the jury"). "A charge is
a road map to guide the jury, and without an appropriate charge a
jury can take a wrong turn in its deliberations[.]" Das v. Thani,
171 N.J. 518, 527 (2002) (quoting State v. Martin,
119 N.J. 2, 15
(1990)).
"In examining whether mistakes made in jury instructions
require intervention, a court must determine whether the charge,
'considered as a whole, adequately conveys the law and is unlikely
to confuse or mislead the jury, even though part of the charge,
standing alone, might be incorrect.'" Maleki v. Atlantic
Gastroenterology Assoc., P.A.,
407 N.J. Super. 123, 128 (App. Div.
2009) (quoting Fischer v. Canario,
143 N.J. 235, 254 (1996)).
"This same approach is taken with regard to mistakes in a jury
verdict sheet." Ibid. (citing Mogull v. CB Commercial Real Estate
Group, Inc.,
162 N.J. 449, 467-68 (2000)).
There are substantial grounds here to conclude that the "road
map" provided to the jurors on the verdict form unfortunately was
sufficiently flawed as to have led the deliberations to take a
metaphorical wrong turn. Apart from the typographical errors that
22 A-4887-15T1
prompted notes from the jury seeking clarification, the initial
sequencing of questions and the associated instructions seemingly
led the jurors to issue an internally-inconsistent first verdict,
and then to attempt in the second verdict to rectify their mistake
with new findings essentially replicating their original net
outcome.
That said, we disagree with defendants that the outcome on
liability here is manifestly against the weight of the evidence.
The Sumreins were the owners of the building, and the jurors could
rationally have placed full responsibility upon them rather than
their tenant for the premises' dangerous conditions. Likewise,
the jurors had a rational basis for finding, despite defense
counsel's advocacy, that plaintiff's use of a cell phone as she
walked out of the building played little or no role in causing her
to fall.
Nevertheless, the process by which the jurors utilized an
admittedly-flawed verdict form calls into serious question our
confidence in the ultimate outcome. Because we lack such
confidence, we conclude that the cumulative impact of the misuse
of subsequent remedial measure evidence, coupled with the multiple
problems with the verdict form and the sequential verdicts,
requires this liability verdict to be set aside. See Biruk v.
Wilson,
50 N.J. 253, 263 (1967) (applying principles of cumulative
23 A-4887-15T1
error in setting aside a civil verdict); see also Schueler v.
Strelinger,
43 N.J. 330, 347-50 (1964) (similarly illustrating a
civil instance of cumulative error requiring a reversal). A new
trial on liability as to all parties, including Alkarak,10 shall
accordingly be conducted, with the damages award remaining intact,
unless plaintiff on retrial is determined to be more than 50% at
fault. See
N.J.S.A. 2A:15-5.1 to -5.2.
The balance of defendants' arguments lack sufficient merit
to warrant discussion. R. 2:11-3(e)(1)(E).
Reversed and remanded for a new trial on liability only.
10
Given the jury's initial verdict, finding Alkarak was negligent
and 15% liable, we cannot overlook the realistic possibility that
the ultimate assessment of Alkarak's liability at zero was tainted
by confusion or result-oriented revision.
24 A-4887-15T1
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