On appeal from Superior Court of New Jersey, Law Division, Ocean County, L-11-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Payne and Sapp-Peterson.
Defendants, Anthony and Ashley Bellino, appeal from a judgment entered against them imposing ten percent and eight percent liability, respectively, on a judgment in the total amount of $5.2 million arising from an assault on plaintiff, Michael Markowski. On appeal, they argue that the evidence failed to establish that they "had a duty to foresee the assault or that their actions were a proximate cause of it" and that the damages were so disproportionate to the medical evidence that the verdict cannot stand.
Additionally, Allstate New Jersey Insurance Company, which was defending the Bellinos and defendant John Humphrey under reservations of rights, appeals from the denial, as untimely, of its motion to intervene, heard one week after an arbitration in the matter had taken place. We affirm both the judgment and the court's order denying intervention.
Evidence at trial disclosed that Michael Markowski was injured at approximately 4:00 a.m. on New Years Day, 2003, when defendant Joseph Humphrey attacked him with an aluminum baseball bat, causing contusions of both frontal lobes, the right temporal lobe and the left parietal lobe of the brain; a subdural hematoma; a fracture of the right orbital roof; bilateral nasal bone fractures; a temporal bone fracture; lacerations of his scalp; and other injuries that required an eight-day hospital stay and a lengthy period of recuperation and caused permanent damage to Markowski's short-term memory and other neurological functions. Markowski claims, in addition to his other injuries, to have lost the hearing in his left ear, and to have lost his sense of taste and smell.
At trial, testimony was presented to the jury on plaintiff's behalf by a friend of Markowski, Kevin Cheshire; by Markowski; by his mother Kathleen Markowski; by police officers who responded to the scene of the assault; and by plaintiff's medical expert, Dr. Laurence Eisenstein, M.D., a board-certified expert in psychiatry and neurology. None of the defendants was called to testify during plaintiff's case. However, versions of the events, given by John Humphrey, Ashley Bellino and Anthony Bellino in discovery, were read to the jury. Defendants John Humphrey and the Bellinos testified in their own defense.
Evidence at trial was not consistent, and it provided grounds for the jury to conclude that none of the parties was entirely truthful. Testimony disclosed that Markowski, a resident of Eastern Long Island, had traveled to Seaside Heights, New Jersey, with his friend, Kevin Cheshire, in order to celebrate New Year's Eve with his friend, who was dating a young woman who resided in Toms River. After picking up the girlfriend and several others in Toms River, the group drove to Seaside Heights, arriving no later than 11:00 p.m. They then spent the next few hours at two night clubs, drinking and dancing. At some point between 3:00 and 4:00 a.m., Cheshire and his girlfriend returned to Toms River without Markowski, and they went to bed. Cheshire testified that he assumed Markowski, who was having a good time, "was going to call me or I was going to call him or he was going to take a taxi back, vice versa, and then we were going to meet up in the morning or later on that night."
Markowski, who had seen Cheshire leave and expected him to return to the club with his car, was left in Seaside Heights without a ride. His repeated cell phone calls to Cheshire went unanswered. According to Markowski:
I was trying to call [Cheshire] the whole night. It was cold. There was people leaving the bars and everything. There was people in the street and everything. But that was pretty much all I remember.
Markowski testified that he has no recollection of the attack on him or of the events that preceded it.
In the meantime, Dennis Czarnicki, who lived in Seaside Heights, was having a party at a house that he rented with a friend. Among the attendees, at various times, were Joseph Humphrey, an ironworker of approximately six feet in height, weighing 220 pounds, Joseph's brother John (who was known as Jack), Anthony Bellino, and Anthony's eighteen-year-old sister, Ashley Bellino. In deposition testimony, read to the jury, Ashley stated that she had dated Joseph Humphrey, having gone to dinner with him in November 2002, but in her testimony in her own case, she denied a dating relationship.
Although both Ashley and Anthony Bellino denied in discovery taken in the matter that Joseph appeared to be intoxicated when they encountered him at the party, testimony by Joseph's brother Jack indicated that, by 3:00 or 4:00 a.m., Joseph was so drunk that he could not walk straight. The police officer who first saw Joseph after the incident was of the opinion that he had been fighting earlier in the evening, because bruises on his face did not appear "fresh."
As the party progressed, Joseph got into a loud argument with a female attendee, and either voluntarily left or was asked to leave.*fn2 As Joseph left, he roused Jack, who was passed out on a sofa, and Jack accompanied his brother out of the house. According to Jack, as the two were leaving, Joseph stated to him, "let's get out of here, these guys are losers." Jack admitted that Joseph "wasn't in a happy mood at that point." Anthony Bellino confirmed that a dispute had occurred and that it had resulted in "a lot of tension."
Ashley Bellino recalled that, approximately twenty minutes later, while playing cards in the kitchen of the house, she heard yelling outside, looked out the door, and saw Joseph and John "fighting with a bunch of guys," among whom were Markowski and a number of African-American males. Ashley admitted in her deposition that she had not seen Joseph or Jack getting jumped, that the altercation was underway when she first observed it, and that she did not know how it had started. Nonetheless, upon viewing the scene, she "screamed" "John and Jack are getting jumped." She testified: "I didn't tell it to anybody. I just screamed it." In her deposition, Ashley then stated: "And then like everybody came, rushed to the back door to see what was going on."
In connection with the events provoking the fight, Jack gave a statement to Joseph's criminal defense attorney, in which he stated:
I . . . went to a party with my brother, Joseph Humphrey. . . . We left the party around 3:00 a.m. and were walking on the Boulevard intending to call a cab.
My brother Joseph was walking in front of me. He got into an altercation with one white male and one Black male, which turned quickly into a fist fight. I ran up and pushed the . . . Black male away from Joe. Two other Black males arrived and I started fighting with them.
I heard Joe yell, let's get out of here. I looked over and saw Joe's face was bloody. We ran down a side street and they chased us. Ahead of me, I saw six or seven people I knew from the party heading toward us. They had seen what had happened and had come to help us.
Although Jack later claimed that the people attacking his brother Joseph were attempting to rob him of his money and cell phone, Jack could not explain why he had not mentioned these facts earlier to Joseph's criminal defense attorney.
Evidence at trial disclosed that, before leaving the house to aid Joseph and Jack, Anthony Bellino and Dennis Czarnicki had retrieved a bat from Dennis's bedroom; that Anthony, deeming himself faster, had carried the bat outside; and that Joseph had grabbed the bat from him. In a statement given to Joseph's criminal defense attorney, Ashley admitted to knowing, at the time that she left that house, that Anthony was armed with the bat, stating: "A.J., my brother, was ahead of us with a baseball bat." She later denied knowledge of this fact.
What happened next was also controverted. In her statement to Joseph's attorney, Ashley stated:
When we got there, Joe was stumbling to his feet, his eye was swollen, his lip was cut, and he was bleeding from his mouth.
The guys who had beaten him up were yelling at Joe and Jack and us and we were yelling at them. One of the guys was wearing a white T-shirt and tan-colored pants. He was yelling louder than the rest of them. He came toward us. I told him and his friends to go their way and we would go our way and that the police would come.
He continued to come toward us and raised his fist. Joe pushed me out of the way and hit him with a baseball bat.
In her answers to interrogatories, Ashley omitted the statement that Markowski (allegedly, the person in the white T- shirt) had come toward the group from the house. Additionally, she claimed that she had approached him as a "rescuer," stating:
Markowski, who had been fighting with Joe Humphrey, moved back across the street with the other individuals. I ran up to him and I was ...