On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket Nos. L-491-00 and L-245-01.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2006
Before Judges Cuff, Fuentes and Messano.
Among the legal questions raised by the parties in this appeal, is an issue of first impression in this State. Namely, whether a party who files an offer of settlement for a specified amount pursuant to the Offer of Judgment Rule, Rule 4:58 ("Rule"),*fn1 is entitled to recover from the party not accepting the offer, the sanctions available under Rule 4:58-2, when: (1) defendant did not accept plaintiff's offer within ninety days of its service; (2) the first trial in the underlying litigation was nullified as a mistrial; (3) the jury's verdict in a second trial was set aside by the trial court; (4) a final judgment in plaintiff's favor, awarding him damages greater than 120% of his offer of settlement was not entered until the completion of a third trial; and (5) the initial offer of settlement was not reaffirmed after the first mistrial, or at any time thereafter.
Pursuant to Rule 4:58-2, the trial court held that plaintiff was entitled to recover from defendant all counsel fees incurred in connection with the prosecution of the case following the non-acceptance, including those associated with the second and third trials; enhanced prejudgment interest; and litigation costs. The court reasoned that nothing in the provisions of the Rule rendered the original offer of judgment ineffective or otherwise unenforceable, merely because the first trial resulted in a mistrial. We agree and affirm.
We now hold that the sanctions provided in Rule 4:58-2 are enforceable against the party who fails to accept an offer of judgment "prior to the 10th day before the actual trial date or within 90 days of its service, whichever period first expires," Rule 4:58-1, even if the first trial results in a mistrial. The only requirement for the enforceability of these sanctions is the entry of a final judgment disposing of the case. Rule 4:58-5. It matters not whether the final judgment was entered after the completion of one trial, or, as here, after the completion of the third trial.
The salutary public policy underpinning the Offer of Judgment of Rule is to promote the early settlement of civil disputes. A key aspect of this policy, is the availability of sanctions against the party who fails to accept an offer of settlement that, after the entry of a final judgment, falls within a certain range of the jury's verdict, as established by the Rule. Stated differently, the vitality of the Rule depends upon holding the party who declines to accept an offer of settlement liable for the consequences that flow directly from this strategic decision. Under Rule 4:58-2, those consequences include awarding the party making the offer of settlement counsel fees, enhanced prejudgment interest, and litigation costs, commencing on the date the offer is no longer legally capable of being accepted, until a final judgment is entered in favor of the offeror, regardless of whether it takes multiple trials to reach this outcome.
As part of this appeal, defendant, Eugene's Tavern ("Tavern") also argues that: (1) the jury verdict rendered after the third trial is tainted, requiring a new trial on both liability and damages; (2) the trial court erred in precluding the testimony of a police officer witness concerning statements made to him by an individual who allegedly identified defendant Stokes as Ismael Negron's assailant; (3) the trial court erred in refusing to charge the jury on intervening and superseding causes; and (4) the trial court should have granted its motion for remittitur. After a careful review of the record, and applying prevailing legal standards, we reject these arguments. We are satisfied that the arguments reflected in (3) and (4) lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
All of the issues identified here come before us in the context of a lawsuit filed by plaintiff Ismael Negron against Eugene's Tavern, in connection with injuries Negron sustained in an altercation that occurred in the parking lot of Eugene's Tavern. A proper examination of these issues requires a recitation of the case's unusual procedural history, and the salient facts.
Negron's civil complaint against defendant Eugene's Tavern included a count alleging negligent supervision of the parking lot servicing the bar. The complaint also named Ledaro Stokes as the individual who struck Negron from behind with a bottle. Negron's companion Carlos Lucena filed his own complaint against Eugene's Tavern. The two cases were consolidated for trial purposes.
The matter first came for trial on May 12, 2003. This first trial ended without a verdict. The judge presiding over the proceedings declared a mistrial after noticing that several jurors had fallen asleep during the presentation of videotaped testimony. Neither party sought interlocutory appellate review of this decision.
The second trial began on October 25, 2004, and concluded on November 4, 2004, with a jury verdict finding defendant, Eugene's Tavern, liable for Negron's injuries. The same jury found that Stokes had not assaulted Negron. As to damages, the jury awarded Negron $28,269.35 for medical costs incurred in the treatment of his injuries, and $5,877.02 for lost wages proximately caused by the incident. The jury did not award any damages for "pain and suffering." The jury also found Eugene's Tavern liable for the injuries sustained by Lucena, but again did not award any monetary compensation for pain and suffering.
Immediately following this verdict, both Negron and Lucena moved for a new trial, arguing that the damage awards were indicative of a tainted, compromise verdict. The trial court granted plaintiffs' motion, and ordered a new trial on the issues of liability and damages as to defendant Eugene's Tavern. The court upheld the jury's verdict in favor of Stokes.
The matter reached trial for the third time on March 16, 2005. In this final trial, the jury found Eugene's Tavern negligent. Unlike in the previous trial, this jury was permitted to consider the possible comparative negligence of both Lucena and Negron. Equipped with this analytical tool, the jury found Lucena 35% liable and Eugene's Tavern 65% liable.
With respect to Negron, the jury found Eugene's Tavern 100% liable, and awarded him the sum of $1 million in damages for pain, suffering, disability, impairment and loss of enjoyment of life, medical expenses in the amount of $28,269.35, and lost wages in the amount of $5,841.02.
Thereafter, Eugene's Tavern moved for a new trial or remittitur. The court denied these motions, and entered judgment in favor of Lucena in the amount of $5,272.99. The court also entered judgment in favor of Negron in the amount of $1,429,218.24. This judgment included costs and counsel fees in the amount of $48,884 as a result of the trial court finding that the offer of judgment filed on behalf of Negron in December 2002, remained effective through the 2005 trial.
Eugene's Tavern, located in the City of Vineland, is a social establishment licensed to dispense alcoholic beverages to the public. The Tavern has the capacity to seat a maximum of 140 people, and has approximately 100 parking spaces in an adjacent lot. On the evening of March 19, 1999, the Tavern was sponsoring an event called "Latin Night." This was a particularly popular weekly event that attracted a large number of patrons. On this particular night, despite the fact that the Tavern was very crowded, there were only two security guards on duty. Several witnesses in attendance characterized the parking lot as being quite rowdy, with people arguing and screaming.
Among those in attendance on the night of March 19, 1999, were plaintiffs Ismael Negron and Carlos Lucena. They were there with two other men. In the early morning hours of March 20, 1999, Negron and Lucena left the Tavern and headed for the parking lot to wait for another member of their party to join them. Contemporaneously, a large number of unruly persons had begun to gather in the Tavern's parking lot.
As both Negron and Lucena sat in the car, an unidentified individual walked in front of the vehicle, and began banging on the hood with his fist and shouting obscenities. Lucena first sounded the car's horn, and then got out of the car to confront this man. Almost immediately after leaving his car, Lucena was struck by another person. Although the precise details of what occurred next are disputed, the record is clear that Negron exited from the passenger side of the car with the intention of helping Lucena.*fn2
Ledaro Stokes was also a patron at Eugene's Tavern on the night of March 19, 1999. He testified that he observed only two security guards at the door when he arrived. Stokes described the bar as being "packed," with approximately 150 to 200 people inside. He left the Tavern at around 2:00 a.m., after last call. He did not see any security guards in the parking lot. As he walked to his car, Stokes saw the altercation between Lucena and the unknown assailants. As he approached Lucena to urge him to return to his car, he saw Lucena get struck from behind, ultimately being attacked by six or seven other individuals. Stokes also saw Negron get out of the car, and then get immediately attacked from behind. There were no security guards in the parking lot while this violence was unfolding.
When the police arrived at the scene, they found Negron lying on the pavement. He was unresponsive, unconscious, and bleeding from the ears and the back of his head. He was immediately taken by ambulance to the Trauma Center at Cooper Hospital, where he was examined by several physicians, including a neurologist, a neuro-psychologist and an otolaryngologist.
Dr. Andrea J. Casher, Psy.D., examined Negron soon after his arrival at the hospital. Dr. Casher, one of only three hundred neuro-psychologists practicing in this discipline, described her specialty as a branch of psychology that focuses on brain functions and its relationship to functionality. Initially, she diagnosed Negron as suffering from a subdural hematoma (bleeding into the brain). Negron was unable to breathe on his own when he first arrived at the hospital. The injuries he sustained occur when the brain is jostled and bounces against protrusions in the skull in the area of the temporal lobe. In this case, Negron's injuries were caused when he was hit in the head, and again when his head struck the ground. Dr. Casher testified that Negron was "significantly cognitively impaired," also noting the advent of a sustained post-traumatic amnesia.
Both Negron and his wife reported that he continued to suffer from daily headaches, gait disturbance, decreased hearing, abrupt onset of anger, irritability, fatigue, inactivity and forgetfulness. According to Dr. Chaser, as of April 1999, Negron had suffered a significant injury, rendering him unable to return to work at that time. Dr. Casher recommended cognitive rehabilitation and provided a daily schedule of activities for Negron to follow.
On April 25, 2001, Dr. Casher saw Negron for a follow-up appointment. Both Negron and his wife stated that he still suffered from fatigue and forgetfulness, and that he was unable to perform more than one task at a time. Dr. Casher ordered several tests which eventually revealed that Negron's processing was slow; that he had difficulties with dexterity and speed; and that he had difficulty with executive functioning, the part of the brain that allows an individual to formulate and carry out plans in an organized manner. Dr. Casher ultimately concluded that Negron's injuries were permanent and that he had reached a maximum plateau of recovery. She expressed surprise that Negron was able to return to work and opined that it was only because he had established and learned a fixed routine.
Eric D. Kramer, M.D., also examined and treated Negron. Kramer is a board certified neurologist, who headed the Neurology Division at Cooper Trauma Center at the time Negron was a patient there. He examined Negron on June 29, 1999. Dr. Kramer noted that Negron had suffered a skull fracture, decreased hearing on the left side, and nystagmus affecting the way he moved his eye. He diagnosed Negron as suffering from post-concussion syndrome, which is a derangement in the way the brain uses serotonin. This condition can cause memory problems, fatigue, depression, as well as sleep and emotional problems.
Dr. Dean Drezner, M.D., a board certified otolaryngologist,*fn3 also examined Negron after the assault. He explained that Negron's fracture included the temporal bone of the ear, and that this injury caused conductive hearing ...