On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, ATL-L-4181-97.
Before Judges Ciancia, Parker and R.B. Coleman.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On April 25, 1996, plaintiff Antonio Gonzalez was shot by defendant Ahmid Abdullah while on a public portion of premises known as the Schoolhouse Apartments. The apartments were owned by defendant Atlantic City Housing & Urban Renewal Associates, L.P. (ACHURA). Security for the apartments was supposed to be provided by defendant Safe and Sound Security Corp. (Safe and Sound), including its employee, defendant security officer Raymond Bunn. Defendants Community Realty Management Corporation (Community) and Insignia Management Group (Insignia) were managers of the apartments.
Plaintiff's suit against defendants was essentially a claim that they had failed to provide adequate security at the apartments and, as a result, permitted the shooting that resulted in plaintiff's injuries. Community and Insignia settled with plaintiff before trial. Abdullah defaulted, although he testified at trial.
Following a lengthy trial in July and August 2001, the jury found ACHURA, Community, and Abdullah negligent in a manner that proximately caused plaintiff's injuries. Safe and Sound was found negligent but without proximate cause. Insignia was found not negligent as was plaintiff. The jury specifically found that Community and Insignia were agents of ACHURA. Additional details of the verdict are set forth as needed later in the opinion.
ACHURA appeals raising a variety of issues, but not contesting the underlying finding of liability. Indeed, the evidence was abundant, if not overwhelming, that there had been a failure to provide the necessary level of security in the apartments.
ACHURA's first issue focuses on plaintiff's refusal to testify at trial even though he had been served with a notice in lieu of subpoena, and even though the court had ordered him to testify. As a result of being shot twice by Abdullah, plaintiff was paralyzed from the chest down, subject to spasms and incontinent. Plaintiff did not want to testify because of the spasms and because he stuttered when nervous. He also candidly acknowledged that he did not want his credibility placed in issue. He had been convicted of an armed robbery that had occurred in the apartments about a month before the present incident. That conviction had been reversed on appeal, but plaintiff ultimately pled guilty to a lesser form of robbery and was released after getting credit for two-and-a-half years of time served in prison. Plaintiff's refusal to testify was with the advice of counsel, but the specifics of that advice are unclear.
ACHURA sought dismissal of plaintiff's cause of action as the appropriate sanction for plaintiff's refusal to testify. The trial judge believed a strong adverse inference charge was sufficient under the circumstances. The judge also allowed for the possibility of a contempt hearing following trial, although the record before us does not reflect whether that occurred. The judge also ruled that even if plaintiff testified, his prior robbery conviction would not be admissible to attack his credibility. Defendants were allowed virtually unrestricted use of plaintiff's deposition testimony.
Our review of the record satisfies us that the trial court did not abuse its discretion in choosing a sanction short of dismissal. Precluding the use of plaintiff's prior conviction is a much closer question but essentially moot in light of the absence of testimony from plaintiff.
By all accounts, plaintiff's conduct leading up to the shooting was not such as to lend any assistance to the defendants at trial. Plaintiff and a friend entered the premises with the intent of visiting someone. Their exact purpose was not clear but nothing suggests, including plaintiff's answers to interrogatories or those excerpts from plaintiff's deposition disclosed to the jury, that plaintiff was at the apartments for an illegal purpose. There was no credible evidence that plaintiff possessed a weapon. A friend of Abdullah's initially said plaintiff had fired a gun, but he recanted at trial explaining that he had lied to help Abdullah. Abdullah himself testified that plaintiff did not have a gun. An investigating police detective also said there was no evidence that plaintiff had a gun. Plaintiff was essentially an innocent bystander.
Plaintiff's friend, Antoine Robinson, got into an argument with Abdullah outside the apartments and it escalated into a fistfight. A crowd formed. Abdullah got the worst of the altercation and decided to retaliate by shooting Robinson. As plaintiff and Robinson were walking away from the apartments, they were both shot by Abdullah. Plaintiff and Robinson were attempting to get a pedestrian exit gate open when the shooting occurred. Thus, while it cannot be said that plaintiff's testimony at trial would have been insignificant or merely cumulative, we also cannot perceive any realistic possibility that defendants would have been materially and legitimately assisted by plaintiff's testimony.
A trial court has the discretion to impose a variety of sanctions when a party fails to comply with a court order or violates a court rule. See Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 344-345 (1984). A remedy of dismissal is not favored if lesser sanctions will suffice. Woodward-Clyde Consultants v. Chem. and Pollution Sciences, Inc., 105 N.J. 464, 471 (1987); Crispin, supra, 96 N.J. at 345; Manorcare Health Serv., Inc. v. Osmose Wood Preserving, Inc., 336 N.J. Super. 218, 230-231 (App. Div. 2001); Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 393 (App. Div. 1994). Here, the trial judge chose to give a strong adverse inference charge which, among other things, told the jury that plaintiff had"refused" to testify and it could infer that plaintiff"would have testified adversely, against his interest, on any issue or any fact in this case...." We review the court's determination as an exercise of discretion. We will not interfere in discretionary decisions unless"an injustice appears to have been done." AbtraX Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995); Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 571 (App. Div. 2000); Cunningham v. Rummel, 223 N.J. Super. 15, 19 (App. Div. 1988). We find no such injustice in the present instance. Although reasonable persons might differ, the trial court's approach was a reasonable choice. Other courts have made analogous decisions and not been second-guessed on appeal. Nasrallah v. Davilla, 762 N.E.2d 25, 31-32 (Ill. App. Ct. 2001) (finding adverse inference charge to be appropriate remedy when defendant refused to testify even though subpoenaed by plaintiff); McGinnis v. Aetna Life & Cas. Co., 494 N.E.2d 1322, 1323 (Mass. 1986) (holding that adverse inference was warranted where the plaintiff failed to testify); Ralph M. v. Nancy M., 721 N.Y.S.2d 192, 193 (App. Div. ...