On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5286-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A. A. Rodríguez and C. S. Fisher.
Third party-defendant, E.C. Provini, Inc. (Provini), appeals from a judgment entered on February 8, 2007, based on a series of pretrial and post-verdict orders.*fn1 A jury awarded plaintiff John Hering, an employee of Stanly Fixtures who was injured at a Macy's construction site, and his wife $1,940,000.*fn2
It allocated 30 percent of the liability to Macy's and 70 percent to appellant, a general contractor, and judgment including prejudgment interest was entered against Macy's and appellant in the amount of $1,981,793.12.*fn3 The trial judge then held that appellant was contractually obligated to indemnify Macy's and to pay its attorneys fees and costs, and denied the motions of Macy's and Provini for judgment NOV, remittitur or new trial. Thus, final judgment was ultimately entered against Provini on the indemnification claim of $1,981,793.12, plus $139,715.48 for fees and costs.
Provini seeks reversal "because an involuntary dismissal was not granted, the jury was wrongly instructed concerning the governing law, improper evidence was admitted on essential issues, the prosecution of a critical third-party claim was prohibited, and the $2 million verdict shocks the conscience." Specifically, Provini contends there were "inadequate proofs on causation"; the jury instructions were improper "on the issue of a general contractor's duty of care in respect of an independent contractor"; hearsay testimony about Provini's "alleged direction to Stanly Fixtures to move the glass" was erroneously admitted into evidence; motions for leave to proceed with its third-party claim against Stanly and to consolidate this matter and Macy's action against Stanly should have been granted; and "the judgment shocks the conscience" and requires a remittitur or new trial.
Plaintiff, John Hering, an employee of Stanly Fixtures, was injured while working at the site of renovation to the Macy's store in Woodbridge. He was moving a large piece of glass on a dolly when his shoulder popped while he was trying to avoid an accident. Plaintiff attributed the accident to a cracked or broken tile on the floor. He ultimately had arthroscopic surgery on his shoulder four years after the accident. The defense asserted there was no evidence that the labral tear, as opposed to a sprain and tendonitis, was caused by the July 23, 2001, accident. Defendants also asserted that plaintiff's lost and reduced work was attributable to his post-accident heart attack. The proofs included expert testimony of present and future lost wages as a carpenter, and that $550,000 of the verdict was attributable to future wages and $110,000 to lost wages while unable to work after his injury. We reverse the judgment and remand for a new trial by virtue of the conduct of plaintiff's counsel at the trial.
In so concluding, we note that Provini was brought into the case as a third-party defendant by Macy's and, although plaintiff never asserted a direct claim against Provini, the court nevertheless charged the jury as if it were a direct defendant. Moreover, although Stanly was originally named as a defendant, plaintiff never sought any relief against it because of the workers' compensation bar and Stanly was dismissed from the case before Macy's could assert a third-party claim for indemnification against it. The trial court then declined to allow Macy's to reinstate Stanly, either as a direct defendant or as a third-party defendant. Instead, Macy's was forced to bring a separate action against Stanly for indemnification, and the trial court refused to allow Macy's to consolidate the two actions, and declined to allow Stanly to intervene in this action. After the jury found that Macy's was 30% liable for plaintiff's injury, the court ruled in favor of Macy's on its motion for indemnification and entered the full amount of the judgment against Provini. Macy's then voluntarily dismissed its suit against Stanly for indemnification.*fn4 As a result, the jury did not assess Stanly's share of the liability for plaintiff's injury.
Plaintiffs John and Donna Hering filed an amended complaint against the Macy's defendants, Woodbridge Center, LLC, The Rouse Company, and Stanly, alleging injuries caused by the negligence of defendants (except Stanly) for an unsafe floor condition in a Macy's store in the Woodbridge Center. Plaintiff's wife, Donna, sued per quod. Plaintiffs asserted "no affirmative claim" against Stanly and included Stanly "for discovery purposes only."
Macy's filed an answer and asserted cross-claims for contribution and indemnification against the other defendants, including Stanly. The complaint against Stanly, however, was dismissed without prejudice "for lack of prosecution." Macy's was subsequently permitted to file a third-party complaint against Provini and Del Turco Bros. Tile ("Del Turco") for common law and contractual contribution and indemnification, and they asserted cross-claims for contribution and indemnification against all other defendants. Thereafter, stipulations of dismissal were entered in favor of Woodbridge Center, The Rouse Company, and Del Turco. Del Turco was also granted summary judgment.
Macy's personally served Stanly with its answer and cross-claims, and Stanly answered the cross-claims. However, because Stanly had already been dismissed from the action for lack of prosecution, the answer was deemed "non-conforming," and Stanly did not appear in the action.
On or about December 27, 2005, Macy's moved for extension of discovery, an adjournment of the trial date, and leave to reinstate its cross-claims against Stanly or, alternatively, to institute a third-party action against Stanly, because it had not received notice of Stanly's dismissal from the action until December 21, 2005. Stanly opposed the motion. On January 6, 2006, the motion was denied in its entirety as was a motion for reconsideration, which Provini had joined.
On March 13, 2006, Macy's filed a separate complaint against Stanley for common law and contractual contribution and indemnification. Thereafter, Macy's moved to consolidate the two Law Division actions,*fn5 and Stanly moved to intervene in plaintiffs' suit against Macy's. Both motions were denied.
The jury rendered its verdict in favor of plaintiff and awarded $1,000,000 for plaintiff's disability and pain and suffering; $115,000 for past lost income; $550,000 for future lost income; and $275,000 for Donna's loss of plaintiff's services. As also previously noted, Macy's was found to be 30% negligent, and Provini was found to be 70% negligent. Although plaintiff was also found to be negligent, his negligence was not found to be a proximate cause of his injuries.
Both Provini and Macy's moved for judgment notwithstanding the verdict or a new trial. After these motions were denied, Macy's moved for full contractual indemnification from Provini. As already noted, that motion was granted, and judgment was entered in favor of plaintiffs and against Provini.*fn6
As of July 23, 2001, plaintiff was forty-four years old and had been a union carpenter for twenty-five years. He left high school before finishing the tenth grade. As a union carpenter, he did sheetrock and concrete work and installed doors, hardware, and ceilings. He considered the work "very strenuous."
Several weeks prior to July 23, 2001, plaintiff and Edmond Bedell were working for Stanly at the Macy's store in Woodbridge, in connection with the store's renovation. Stanly made display cases and racks, and plaintiff and Bedell were setting up the new display cases and moving them from the trailer at the loading dock into the store. The store was open for business during the renovation work. Any area that was being worked on was cordoned off from the rest of the store with a curtain that was installed from the ceiling to the floor.
On the morning of July 23, plaintiff and Bedell heard Ralph Seber, who was a foreman for Provini, a general contractor on the job, say to Robert High, Stanly's foreman, that Stanly had to get someone to move a crate of glass that was sitting on a dolly in the work area. Because plaintiff and Bedell were standing right there, High nodded for them to move the crate.
According to Bedell, the crate was about eighteen inches wide and six or seven feet long. Although it was twenty inches high, it stood about twenty-five inches off the ground because it was sitting on a dolly. Plaintiff testified that the crate was about eighteen inches wide, but estimated that it was about eight feet long and thirty-six inches high. The crate, which was an open crate with wood slats, contained panels of tempered glass, stacked horizontally, and weighed about 300 to 400 pounds.
The men had to wheel the crate through the main area of the store, to which customers had access. Plaintiff stood behind the crate and pushed it, while Bedell stood in front and pulled it and did the navigating. As he pushed, plaintiff could not see the wheels of the dolly or the front of the crate. He claimed that he and Bedell wheeled the cart about fourteen feet and then made a right turn, and then wheeled it another thirty feet before making a left turn.
The men did not secure the crate to the dolly in any way, claiming that no one had supplied them with any cord or rope, and that this was the way things were done "in the real world." Bedell maintained that, as the crate was being wheeled, he could see that it was directly centered on the open dolly, which did not have any safety sides. He claimed that the weight of the crate kept it from moving around.
When plaintiff and Bedell came to a curtained-off work area, Bedell "went beyond the curtain" and left plaintiff alone with the crate so that he could look "to see if anybody was coming" from the opposite direction. When Bedell left, plaintiff took his hands off the crate and then noticed, out of the corner of his eye, that "the right front" of the crate started to "tip down." Plaintiff also saw that a woman with a child in a stroller was standing about three to six feet away. He quickly grabbed the crate and "started pushing [it in] the opposite direction" from which it was tipping. The crate then started rolling "until it hit up against [the wall of] the escalator," where plaintiff was able to "stand it upright." As he did so, he "heard like a pop in [his] shoulder and [felt] a sharp pain."
Bedell, who heard a "yelp, like something surprising[,]" from plaintiff, came to assist him in stopping the crate from rolling any further. He saw that "the case was tilted off the dolly and John was pinned up holding it." The two men then continued to move the dolly to where it had to go. They claimed that if it fell, the glass would have shattered into thousands of pieces.
Bedell went back to the area later in the day and found that one of the floor tiles, where the old display cases had been, "had indeed become loose and slid off." However, Bedell testified that the tile merely had a "hairline crack" in it, and was not loose. After the accident he reported it was in "pieces," and "figured that's what made the dolly slip and the thing slide off." Although Bedell claimed that each floor tile was six inches by six inches, plaintiff maintained that they were twelve inches by twelve inches.
Later that same day, Bedell heard a conversation between "Ralph Perini"*fn7 and High, in which they each blamed the other for not cordoning off the area or checking the floor tiles. Bedell also heard someone from Macy's say to Seber and High, "I thought I told you to take care of that area and cord [sic] it off."
Bedell admitted that he did not actually witness the accident and that he did not know "100%" what caused the dolly to skid. However, he was "98% sure" that the cracked tile was the reason for the accident. He admitted that he had walked through that area many times that day and never noticed a cracked tile. He also admitted that it was "possible" that the weight of the crate on the tile might have caused it to crack. No photographs of the area were taken that day.
When asked at trial what he thought caused the crate to tip over, plaintiff replied: "Well, in hearing depositions and from what I know of the accident, yes, it was broken tiles."
According to Seber, Provini's work on the job called for it to tear down old walls, erect new walls, do some ceiling work, and install new carpeting, aisles, and shelving. Provini had three subcontractors on the job, Premier Electric; Del Turco (for the tile work); and Caprice Demolition. However, he maintained that Stanly was "not" one of Provini's subcontractors. Rather, he assumed that Stanly was a general contractor, like Provini was, hired by Macy's to do the cabinetry and wall fixture work. He claimed that Provini had no contract with any of Stanly's employees and no authority over them. Rather, they reported directly to Macy's, who had its own project manager on the site.
Seber had no "recollection" of instructing Stanly's foreman, "Robert Hyde,"*fn8 to have one of Stanly's employees move the cart containing the glass. Moreover, even if Seber had given such an instruction, he had "no control" over where or how Stanly's employees carried out the instruction or did their work.
According to Seber, although Provini was responsible for the safety of any area of the store which it closed off and on which it was working, it did not have control over the entire store. Provini was the project manager for Macy's who oversaw the job and who made sure the site was kept clean. However, Seber admitted that neither Macy's nor Provini had a safety supervisor on the project.
Seber also maintained that Provini had no obligation to inspect any area of the store that was open to the public, and that neither Provini nor any of its subcontractors, including Del Turco, did any tile work in the area where plaintiff's accident occurred. However, he admitted that if something was interfering with the work of its tiling subcontractor, Del Turco, then removing that interference would have been beneficial to Provini in performing the work "in a timely fashion."
As part of its defense, Macy's read into the record three specific sub-paragraphs of its contract with Provini, dated April 3, 2001, one of which, ¶ 12(a), was entitled "Supervision and Inspections," and read:
The Contractor [Provini] shall supervise and direct the Work both at the site and at the fabricating shops. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work. He shall place a competent superintendent in charge of the Work at the site who shall be acceptable to the Owner [Macy's] and who shall remain until final completion and acceptance of the Work unless removed by reason of sickness, discharged for cause, or replaced by the Contractor, with the written consent of the Owner. The Contractor shall be responsible for all acts and omissions of his superintendent in connection with his Work. The Contractor shall also employ an assistant superintendent, depending upon job requirements, so that all operations can be satisfactorily supervised.
Macy's also read to the jury sub-paragraphs 15(a) and (b), which were part of the paragraph entitled "Protection of Work, Property and ...