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March 14, 1995

Mark Waldorf, Plaintiff,
Borough of Kenilworth, et als., Defendants.

The opinion of the court was delivered by: WILLIAM H. WALLS

 WALLS, District Judge


 At issue is the attempt, by motion, of the defendant, Borough of Kenilworth ("the Borough"), to withdraw its stipulation which was made before the second trial of this case. Then, the Borough stipulated that it would not contest its liability to plaintiff Mark Waldorf ("Waldorf") in this tort case, conditioned upon the trial being bifurcated into damages and liability phases with separate juries; the damages phase being tried first. The Borough argues that it will not so stipulate in this, the third trial, while the plaintiff, Mark Waldorf, argues that the Borough is bound by its prior stipulation. On December 5, 1994, oral argument was held before this Court, which directly informed all counsel that the controversial issue was not the willingness of the Borough to enter a new stipulation for the upcoming trial, but the viability of the stipulation of liability entered at the time of the second trial. For reasons stated below, the motion by defendant Borough of Kenilworth to withdraw its stipulation is denied.


 On November 17, 1982, Waldorf was a passenger in a van which collided with an automobile in an intersection, controlled by a malfunctioning traffic light, in the Borough. The accident left him a quadriplegic. He has brought this lawsuit against the Borough, the drivers and occupants of the vehicles, members of the Borough's police department who allegedly had received notice of the malfunctioning traffic light before the accident and who had failed to take preventive actions, and various elected officials of the Borough. *fn1" Initially, the case was tried before a jury on the issues of liability and damages, and Waldorf awarded a verdict of $ 8.4 million. That verdict was reversed by the Court of Appeals, for reasons not germane to this motion, and remanded for a second trial. Waldorf v. Shuta, 896 F.2d 723 (3d Cir. 1990).

 Before the second trial, when both parties were contemplating dispositive motions, a pretrial hearing was held before a Magistrate Judge. At this proceeding, counsel for the Borough argued that it should be allowed to stipulate that it would not contest its liability to Waldorf, in exchange for concessions regarding the manner of conducting the trial. The Borough prevailed, over Waldorf's objections. The Magistrate Judge, on August 4, 1992, by order, incorporated the stipulation, the ensuing trial to be bifurcated into issues of liability and damages, the defendant Borough agreeing that it would not contest its liability for Waldorf's injuries, upon the prerequisites that the damages phase of the trial would be tried before the liability phase; *fn2" each with a separate jury. The damages phase of the second trial proceeded, resulting in a verdict in Waldorf's favor of $ 16.1 million. This verdict was subsequently vacated by the Court of Appeals, again for reasons unrelated to the treatment of this motion, and remanded for a new trial as to damages. Waldorf v. Shuta, 3 F.3d 705 (3d Cir. 1993).

 The Borough retained new counsel after the second trial. Another Magistrate Judge, to whom this case was assigned for the purpose of pretrial scheduling and non-dispositive motions, was made aware that the Borough's newly-retained counsel had taken the position that the Borough would not be bound in a third trial by its stipulation of liability. On September 20, 1994, that Magistrate Judge ordered that the present status of the Borough's stipulation be decided by the instant motion, upon the submission of briefs and oral argument by the parties. Argument was held on December 5, 1994. This Court ruled that the Borough's stipulation was still viable and that the present motion would be treated as a motion by the Borough for an application to withdraw its prior stipulation of liability.

 Discussion and Analysis

 The Court of Appeals' Reversal of the Second Trial Did Not Render the Borough's Stipulation a Nullity

 The Borough's first argument-that the stipulation entered into before the second trial was rendered a nullity by the appellate reversal and remand to the district court-is unpersuasive.

 The Borough bases its reasoning on inapposite cases. *fn3" The determinations of those treat whether the parties to a trial on remand are bound by the nature or extent of proofs adduced at the earlier trial. Such is not our issue.

 The Borough cites State v. Cooper, 165 N.J. Super. 57, 397 A.2d 702 (App.Div. 1979), a criminal case, to support its argument that the prior stipulation does not bind it because "the parties are returned to their original positions on a new trial and may introduce evidence and assert new defenses not presented at the first trial." The issue before the Cooper court was whether the defendant in an armed robbery case could challenge a pre-trial identification of him at a second trial on remand, when such challenge already had been unsuccessfully raised by him at the first trial. The Appellate Division determined that the defendant could challenge the pre-trial identification at the second trial, even though he had already done so in the first, where it was determined that the procedure used by the police did pass constitutional muster. For obvious reasons this case does not support the Borough's position.

 The holding of Kearney and Trecker v. Master Engraving, 234 N.J. Super. 466, 560 A.2d 1320 (Law Div. 1988), is also advanced. There, a defendant in a breach of contract case, in a counterclaim, had asserted a right to relief based on a breach of warranty theory. Upon review of the trial judgment, the case was reversed and remanded for retrial. On remand, the counterclaiming party sought to recover on a theory not proffered at the first trial, specifically, that it had revoked its acceptance of the plaintiff's offer, thereby entitling it to a judgment. The plaintiff objected to the defendant's advancing a new theory. The trial court held that the defendant could present a new theory, revocation of acceptance, because at that time all parties had an opportunity "to present anew any issues they feel are relevant to a disposition of the matter." Kearney and Trecker at 469. That holding determines that a party, generally, is not limited at a second trial to the same legal theories advanced by it at an earlier one. Kearney and Trecker does not decide, nor pretend to decide, the issue of whether stipulations voluntarily entered into at a first trial by a party will bind it at a subsequent trial.

 Finally, the Borough seeks support for its position from Miller v. Linde, 33 N.J. Super. 41, 109 A.2d 290 (App. Div. 1954), which concluded that where a trial court's charge to a jury is basically and fundamentally in error, a "new trial must be granted and the entire controversy restored to the same status as if no previous trial had been had. " Miller, at 45. Here, the Court of Appeals did not reverse the second trial of this case on the basis of an improper jury charge. Miller v. Linde is not relevant.

 Case Law Precludes the Borough From Withdrawing its Stipulation

 As earlier discussed, the stipulation of the Borough before the second trial was not rendered a nullity by the subsequent reversal of the trial verdict. Thus, it is well-settled by decisonal law in this and other circuits that a stipulation remains in effect unless the trial court finds that such vitality would result in "manifest injustice." See, Wheeler v. John Deere Co., 935 F.2d 1090, 1097 (10th Cir. 1991); Morrison v. Genuine Parts Co., 828 F.2d 708 (11th Cir. 1987), cert. denied, 484 U.S. 1065, 98 L. Ed. 2d 990, 108 S. Ct. 1025 (1988); Hunt v. Marchetti, 824 F.2d 916 (11th Cir. 1987); United States v. Montgomery, 620 F.2d 753 (10th Cir. 1980). See also, Stickler v. C.I.R., 464 F.2d 368 (3d Cir. 1972); In re Ram Manufacturing Inc., 56 Bankr. 769 (E.D.Pa. 1985); 73 Am.Jur.2d Stipulations § 10 (1974).

  A stipulation is an admission which "cannot be disregarded or set aside at will." Wheeler v. John Deere Co., 935 F.2d 1090, 1097 (10th Cir. 1991) (citations omitted). A pre-trial stipulation is analogous to a pre-trial order under Rule 16 of the Federal Rules of Civil Procedure, which can be modified subsequently, "only to prevent manifest injustice." Hunt v. Marchetti, 824 F.2d 916 (11th Cir. 1987). It has been held that stipulations are not absolute, and may be withdrawn whenever necessary to prevent manifest injustice. See, Wheeler, at 1098. (citing United States v. Montgomery, 620 F.2d 753 (10th Cir. 1980)). District courts are vested with broad discretion in determining whether to hold a party to a stipulation or whether the interests of justice require that the stipulation be set aside. See, Wheeler, at 1098. (citing Morrison v. Genuine Parts Co., 828 F.2d 708 (11th Cir. 1987), cert. denied, 484 U.S. 1065, 98 L. Ed. 2d 990, 108 S. Ct. 1025 (1988)). Whether a stipulation entered into for a particular trial should remain binding during a trial on remand depends upon its nature and the circumstances underlying its formulation. Wheeler, at 1098. Relevant to this inquiry is whether the stipulation was expressly limited to a single trial or entered into as the result of fraud or a mistaken interpretation of law. Id.

 Courts have squarely addressed the issue of whether a stipulation entered into before a trial would be binding in a second trial after remand. Wheeler v. John Deere Company, 935 F.2d 1090 (10th Cir. 1991) presents factual circumstances similar to those here. Plaintiff was injured by a product manufactured by the defendant and sued the maker in a products liability action. Before the trial, the defendant stipulated that it would have been technologically and economically feasible for the defendant to have prevented plaintiff's injury by incorporating a different product design, but that it chose not to. The jury returned a verdict for the plaintiff, which the 10th Circuit Court of Appeals reversed and remanded for a new trial. Before the new trial, the district court denied the defendant's application to withdraw its prior stipulation conceding the feasibility of a safer design. The defendant argued that it had entered the stipulation only because it was mistaken in its interpretation of the law of evidence and therefore, it should have been allowed to withdraw the admission. *fn4"

 On review, the Court of Appeals affirmed the district court's denial of the defendant's application. The appeals court opined that the defendant's claim that it entered the stipulation in reliance on a mistaken belief of law, "did not ring true." Wheeler, at 1098. According to the reviewing court, the defendant sought to withdraw its stipulation because it would be "disadvantaged tactically" at the subsequent trial. Id. The Circuit court held that binding the defendant to its prior judicial admissions under such ...

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