On certification to the Superior Court, Appellate Division, whose opinion is reported at 368 N.J. Super. 203 (2004).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This matter involves a plaintiff, Antonio Gonzalez, who, on his lawyer's advice, refused to testify in his own lawsuit despite being ordered by the court to do so. In 1996, Ahmid Abdullah shot Gonzalez in the Schoolhouse Apartments in Atlantic City. Gonzalez suffered a spinal cord injury that left him paralyzed. He initiated a civil action to recover damages for personal injuries that he suffered when he was shot. His lawsuit alleged that his injuries were caused by the negligence of defendants who failed to provide adequate security to the apartment complex despite their knowledge that the complex was plagued by criminal activities.
Gonzalez named as defendants (1) Atlantic City Housing & Urban Renewal Associates (ACHURA), the owner of the Schoolhouse Apartments; (2) Safe and Sound Security Corporation (Safe and Sound); (3) the security guard on duty the night Gonzalez was shot; (4) Community Realty Management Corporation (Community Realty), and (5) Insignia Management Group (Insignia Management). Safe and Sound filed a third-party complaint against Abdullah. Before trial, Community Realty and Insignia Management both settled with Gonzalez for $100,000 each. Abdullah defaulted.
At trial, Gonzalez and the remaining defendants presented evidence describing the shooting, its aftermath, and the security conditions at the apartment complex during the months leading up to and on the day of the shooting. Gonzalez and Antoine Robinson, a friend who accompanied Gonzalez on the night of the shooting, gave conflicting explanations for their presence at the complex. At trial, defendants served Gonzalez's counsel with notice to produce Gonzalez to give testimony. When Gonzalez expressed reservations about honoring the notice, the court entered an order requiring him to testify. On the advice of counsel, Gonzalez defied the court's order. Rather than threaten Gonzalez with the dismissal of his case if he did not comply with its order, the court chose to charge the jury that it had a right to infer that Gonzalez had been produced, he would have testified against his interest. After Gonzalez openly defied the court's order, defendants moved to dismiss the complaint, asserting that Gonzalez had denied them testimony relevant to their defense. The court denied the dismissal motion and instead instructed the jury that it could draw an adverse inference from Gonzalez' failure to testify.
The jury found that ACHURA and Community Realty were negligent and that Community Realty was acting as ACHURA's agent. The jury also found that Safe and Sound and Insignia Management were not liable and that Gonzalez was not comparatively negligent. The jury awarded $2.36 million in damages. Because the verdict exceeded 120% of Gonzalez's offer of judgment rejected by ACHURA before trial, the court awarded counsel fees, litigation costs, and enhanced interest. Gonzalez's total recovery was $3.5 million. The Appellate Division affirmed the judgment and damages award, concluding that the trial court's adverse inference charge was a reasonable choice among the available options. We granted ACHURA's petition for certification.
HELD: The trial court abused its discretion by not advising Gonzalez that unless he testified, he faced the certain dismissal of his complaint.
1. Defendants have a right to a plaintiff's testimony in presenting their defense. The trial court has an array of available remedies to enforce compliance with a court rule or one of its orders. We must decide whether the trial court abused its discretion in selecting that sanction. (pp. 15-16)
2. In assessing the appropriate sanction for the violation of one of its orders, the court must consider a number of factors, including whether the plaintiff acted willfully and whether the defendant suffered harm, and if so, to what degree. Because the dismissal of a plaintiff's cause of action with prejudice is a drastic remedy, it should be invoked sparingly, such as when the plaintiff's violation of a rule or order evinces a deliberate and contumacious disregard of the court's authority. (pp. 16-17)
3. A plaintiff cannot invoke the jurisdiction and machinery of our civil justice system, openly defy the court's authority to suit his own purposes, and expect to triumph. A plaintiff does not get to present to the jury his evidence while suppressing another party's evidence, or to pick and choose the rules he intends to follow. The defendant, as much as the plaintiff, has a right to his day in court. Because one of the essential purposes of a civil trial is the search for truth, the one who initiates that process by filing a complaint cannot be permitted to obstruct that search when it becomes unpleasant or inconvenient. (pp. 19-20)
4. The trial court bears the ultimate responsibility for ensuring the fairness of the proceedings. Gonzalez and his attorney made a calculated decision that Gonzalez's claim would be better received by the jury if he did not testify, even if he had to bear an adverse inference instruction. As Gonzalez postured for partisan advantage, he engaged in brinksmanship with the court, challenging the court's authority to enforce its own order. A court should not surrender control to manipulative tactics that undermine the basic fairness and integrity of the trial. A plaintiff who refuses to testify in the face of a court order must be told that if he persists in his refusal, his case will be dismissed with prejudice. (p. 20)
5. Gonzalez's defiance of the court's order was flagrant and without justification, undermined the fairness of the trial process, and prejudiced ACHURA's right to put on a defense. ACHURA was entitled to place Gonzalez before the jury to elicit his version of the events. Gonzalez's deliberate refusal to testify was an affront to the court's authority and so fundamentally unfair to ACHURA that Gonzalez should have been advised that he was facing the immediate dismissal of his cause of action. If Gonzalez continued to defy the court's order, the court should have dismissed the case. The court abused its discretion in allowing Gonzalez the benefit of his chosen sanction. (pp. 22-23)
6. We cannot say that there might not be extraordinary circumstances in which a party could reasonably object to complying with a lawfully served notice in lieu of subpoena. We only need say that those circumstances did not present themselves in this case. (p. 23)
7. The jury was charged only on ACHURA's duty to a business invitee. In light of our decision to reverse and remand, the trial court will decide the appropriate charge based on a new record. We offer some observations to guide the court and parties at a new trial. Based on the record before us, the court properly limited its instruction to the duty of care that defendants owed business invitees of the Schoolhouse Apartments. There was no evidence in the record that Gonzalez was a trespasser. That Gonzalez and his friend were buzzed into the apartment complex by the security guard makes it difficult for ACHURA to argue that Gonzalez did not have a right or privilege to be there. (pp. 24-25)
8. In many instances, a landowner's liability for injuries is no longer based exclusively on the status of the injured party. The question of whether a duty to exercise reasonable care to avoid the risk of harm to another exists is one of fairness and policy that implicates many factors. In light of those considerations, the trial court should exercise its sound judgment on a fully developed record and determine the applicable standard of care and the appropriate charge to be given to the jury. (p. 28)
9. ACHURA contends that in light of a bankruptcy court decree limiting any recovery to its insurance coverage, the rejected offer should have been measured against the $900,000 remaining on its policy. By that standard, ACHURA reasons that Gonzalez did not recover more than 120% of the settlement offer and, hence, did not qualify for an award of counsel fees and costs. The fee-shifting provisions of the Offer of Judgment Rule are triggered by a verdict, determination, or money judgment. Here, the verdict in favor of Gonzalez far exceeded 120% of Gonzalez's offer. The trial court properly awarded attorneys' fees and costs by comparing the settlement offer to the jury verdict rather than the available monies under the insurance policy. Nonetheless, the remand for a new trial requires that we vacate that award. (pp. 30-31)
The Appellate Division's decision is REVERSED and the matter is REMANDED to the trial court for proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, WALLACE and RIVERA-SOTO join in JUSTICE ALBIN's opinion.
The opinion of the court was delivered by: Justice Albin
Plaintiff Antonio Gonzalez initiated a civil action against several defendants to recover damages for personal injuries that he suffered when he was shot in an apartment complex in Atlantic City. At trial, plaintiff was called to the stand by defendants but refused to testify. When ordered by the court to testify, he still refused to do so. After plaintiff openly defied the court's order, defendants moved to dismiss the complaint, asserting that plaintiff had denied them testimony relevant to their defense. The court denied the dismissal motion and instead instructed the jury that it could draw an adverse inference from plaintiff's failure to testify.
Plaintiff won a favorable verdict and substantial damage award. On appeal, the sole remaining defendant, the apartment complex owner, claimed that the court erred in not dismissing the complaint after plaintiff willfully refused to give testimony. Defendant also contended that the court erred in charging the jury and in awarding counsel fees to plaintiff. The Appellate Division affirmed the verdict and damages award. Gonzalez v. Safe & Sound Sec. Corp., 368 N.J. Super. 203, 214 (App. Div. 2004). We now reverse and hold that the trial court abused its discretion by not advising plaintiff that unless he testified, he faced the certain dismissal of his complaint.
On April 25, 1996, Ahmid Abdullah shot plaintiff Antonio Gonzalez in the common area of the Schoolhouse Apartments in Atlantic City. As a result of the shooting, plaintiff suffered a spinal cord injury that left him paralyzed from the mid-chest down. In 1997, plaintiff filed a lawsuit alleging that his injuries were caused by the negligence of various defendants who failed to provide adequate security to the apartment complex despite their knowledge that the complex was plagued by criminal activities. Plaintiff named as defendants (1) Atlantic City Housing & Urban Renewal Associates, L.P. (ACHURA), the owner of the Schoolhouse Apartments; (2) Safe and Sound Security Corporation (Safe and Sound), the company retained to provide security for the apartment complex; (3) Raymond Bunn, the Safe and Sound security guard on duty the night plaintiff was shot; (4) Community Realty Management Corporation (Community Realty), the company that provided management services to the apartment complex; and (5) Insignia Management Group (Insignia Management), a management company that succeeded Community Realty several weeks before the shooting. Safe and Sound filed a third-party complaint against Abdullah. Before trial, Community Realty and Insignia Management both settled with plaintiff for $100,000 each. Abdullah defaulted and judgment was entered against him.
At a jury trial in 2001, plaintiff and the remaining defendants presented evidence describing the shooting, its aftermath, and the security conditions at the apartment complex during the months leading up to and on the day of the shooting. On the evening of the shooting, plaintiff and his friend, Antoine Robinson, entered the Schoolhouse Apartments through an electronic gate after identifying themselves to a security guard in a booth. Once inside one of the buildings, Robinson became embroiled in a heated verbal exchange with Abdullah, who apparently had stepped on his sneaker. The war of words lasted three to five minutes and escalated into a fistfight. Plaintiff unsuccessfully attempted to restrain his friend from fighting. After several minutes of slugging each other, Robinson and Abdullah paused and agreed to take the fight outside. They resumed exchanging blows in a breezeway between two buildings, where twenty to twenty-five people gathered to watch. Before the increasingly noisy crowd, the fight continued for five to seven minutes until plaintiff and another man stepped in and separated the combatants.
Plaintiff grabbed Robinson and told him, "come on, let's leave," while the other man held on to Abdullah. As plaintiff pulled him away, Robinson threatened Abdullah, "I'll be back; I'm going to burn you." With Robinson out of earshot, Abdullah asked someone in the crowd for a gun, and within moments, Abdullah was armed with a .38 caliber revolver. He pursued Robinson who, along with plaintiff, had rounded the building's corner and was trying to get the guard to open the locked exit gate. Abdullah fired six rounds in Robinson's direction, ...