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Marinelli v. K-Mart Corp.

February 23, 1999

DOMINIC MARINELLI, A MINOR BY AND THROUGH HIS MOTHER AND GUARDIAN AD LITEM, ANNE MARIE MARINELLI AND ANNE MARIE MARINELLI, INDIVIDUALLY, PLAINTIFFS-APPELLANTS/CROSS-RESPONDENTS,
v.
K-MART CORPORATION AND RAY CLERK, A FICTITIOUS UNKNOWN EMPLOYEE OF K-MART, DEFENDANTS-RESPONDENTS, AND KYLE FORD, JOHN MCDONOUGH AND SEAN MCDONOUGH, J/S/A, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.



Before Judges Stern, Kleiner and Kimmelman.

The opinion of the court was delivered by: Stern, P.j.a.d.

[9]    Argued October 28, 1997

Remanded by the Supreme Court of New Jersey - October 13, 1998

Resubmitted January 26, 1999 - Decided March 9, 1999

On appeal from the Superior Court of New Jersey, Law Division, Burlington County.

The opinion of the court was delivered by

This appeal involves the sale of a pellet gun to a minor in Pennsylvania and his transfer of the gun there to a New Jersey minor who shot out the eye of another New Jersey resident in New Jersey. The case is before us, on remand from the Supreme Court, to consider a choice-of-law issue not addressed in our original opinion.

I.

After a jury returned a verdict in favor of plaintiffs, Dominic Marinelli ("plaintiff") and his mother, against all defendants except K-Mart, the trial Judge granted plaintiff's motion for a new trial as to "pain & suffering and disability damages" (non-economic damages), but denied their motion for a new trial on all issues. Pursuant to leave granted, plaintiffs appealed from the denial of their motion for a new trial in its entirety and from the denial of their subsequent motion for reconsideration. We also granted defendants, other than K-Mart, leave to cross-appeal from the grant of a new trial as to non-economic damages. They claimed that the verdict should be reinstated. K-Mart contended that the judgment in its favor should be affirmed.

We explained the background in our opinion filed on February 23, 1998:

"Plaintiff, Dominic Marinelli, an eleven-year old, was sleeping at the home of his cousin Robert Sean McDonough ("Sean") in Cinnaminson, New Jersey when Sean accidentally shot plaintiff's left eye out with a pellet gun. The gun was bought for Sean by a seventeen-year old friend, defendant Kyle Ford ("Ford"), in Pennsylvania, and brought by Sean to the home of his father John McDonough ("John") in New Jersey. In response to specific interrogatories, the jury found (1) that K-Mart sold the gun to Ford, but that the sale was not "a proximate cause of the accident and injury," (2) that the transfer of the gun by Ford to Sean was a "proximate cause of the accident and in bringing about the injuries to plaintiff," (3) that Sean and John were negligent and that their negligence was "a proximate cause of the accident and injuries," and (4) that Ford was 10% liable, Sean 40% liable, and John 50% liable. Plaintiff was awarded damages in the amount of $206,786.06 -- including economic loss (future wages and medical expenses) in the amount of $127,000, past medical bills amounting to $29,786, and non-economic losses, (including "[p]ain, suffering, disability, impairment, loss of enjoyment of life, inconvenience, mental anguish and emotional distress "), in the amount of $50,000. Plaintiff's mother was awarded $5,000 for her emotional distress. Judgment in favor of K-Mart was entered on January 2, 1996, but on February 2, 1996 the trial Judge ordered a new trial on non-economic damages with respect to the remaining defendants. (Footnotes omitted.)"

After considering the issues raised, we affirmed the denial of plaintiffs' motion for a new trial on liability and the amount of damages awarded to the plaintiff mother for emotional distress. We also affirmed the grant of a new trial on non-economic damages but reversed the denial of a new trial on economic damages.

In our opinion we noted that the trial Judge instructed the jury on Pennsylvania law "concerning the sale or transfer of pellet guns to minors" and "informed the jurors that if they found that K-Mart and/or Ford violated the Pennsylvania statute, [that] defendant must be found negligent as a matter of law." We further noted that, at plaintiff's request, the Judge instructed the jury "that K-Mart and Ford could be held liable if the negligence of either or both was a `substantial factor' in bringing about plaintiff's injury." Accordingly, we found "no basis on which plaintiff can complain about the charge on negligence and proximate cause" with respect to the Pennsylvania defendants' sale and transfer of the gun to Sean McDonough.

In deciding the choice of law issue presented on the appeal, we also held that New Jersey's comparative negligence law was properly applied, notwithstanding plaintiff's claim that Pennsylvania law controlled. We said:

"[A]pplying the appropriate "governmental-interest analysis," Veazey v. Doremus, 103 N.J. 244, 247-48 (1986); accord Gantes v. Kason Corp., 145 N.J. 478, 484 (1996); Butkera v. Hudson River Sloop "Clearwater," Inc., 300 N.J. Super. 550, 553 (App. Div. 1997), New Jersey has the "greatest interest," Veazey, supra, 103 N.J. at 248, in having its comparative negligence law apply because the accident occurred here, and the innocent victim lived here. In any event, employing our comparative negligence law does not affect the distinct issues of liability and recovery of damages. Veazey, supra,; Restatement (Second) of Conflict of Laws §§ 145, 171; see also Grossman v. Club Med Sales, Inc., 273 N.J. Super. 42, 51 (App. Div. 1994); O'Connor v. Busch Gardens, 255 N.J. Super. 545, 547-48 (App. Div. 1992). Moreover, plaintiffs have pointed to no conflict in the law of the two states except for the question of comparative negligence. See Grossman, supra, 273 N.J. Super. at 49 ("It is only after a determination is made that there is indeed an actual conflict between the laws ... that the interests of the respective jurisdictions are analyzed"). And given the finding on liability, any error in the charge as to damages and comparative negligence is irrelevant as to K-Mart. Tindal v. Smith, 299 N.J. Super. 123, 138 (App. Div.), certif. denied, 150 N.J. 28 (1997); Kaplan v. Haines, 96 N.J. Super. 242, 253-55 (App. Div. 1967), aff'd o.b., 51 N.J. 404 (1968)." (Footnotes omitted.)

However, we added in footnote 8:

"Whether plaintiffs can collect the entire judgment from Ford, subject to his ability to obtain contributions from his responsible co-defendants, is an issue not before us and which does not require any new trial or fact-finding."

Following our remand, the trial Judge conducted settlement Discussions and it became apparent that the issue embodied in footnote 8 of our opinion had to be resolved. Plaintiff now explains:

"The Appellate Division issued its opinion on February 23, 1998, and the trial Judge, John A. Sweeney, J.S.C., immediately scheduled a retrial which resulted in multiple requests for a postponement. On May 11, 1998, a settlement conference was held before the Honorable John A. Sweeney, J.S.C. At that time, Judge Sweeney and all parties agreed that the issue framed by the Appellate Division in Footnote 8, "Whether plaintiffs can collect the entire judgment from Ford, subject to his ability to obtain contributions from his responsible co-defendants, is an issue not before us and which does not require any new trial or fact-finding", was a novel issue of general public importance and that it would be in the interest of Justice to have this issue resolved by the Supreme Court as soon as reasonably possible so as this matter could proceed to a settlement or final judgment. All parties agreed to waive any objections regarding timeliness of the Notice of Petition and Petition for Certification and agreed to request that the Court ...


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