March 30, 2009
ROBIN BLOUNT, PLAINTIFF-APPELLANT,
SALEM COUNTY, SALEM COUNTY COURTHOUSE, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Docket No. L-233-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 11, 2009
Before Judges C.L. Miniman and King.
This is an appeal from a defense verdict in a fall-down case brought against Salem County. The accident occurred on February 5, 2001 in the Salem County Courthouse where plaintiff had been called for jury service. She slipped and fell on a wet marble hallway floor, a hazardous condition allegedly arising from rain and sleet. The case was tried to a defense verdict from February 28 to March 4, 2008. The jury found "no negligence" on the part of the County under the Tort Claims Act standard, N.J.S.A. 59:4-2, requiring notice and palpably unreasonable conduct by the defendant.
The trial was bifurcated and conducted on the liability issue alone. The parties had earlier stipulated and settled the amount of the damage aspect at $350,000. This partial settlement was agreed upon by the parties while plaintiff was represented by other counsel, Mr. Musso, with the Aronberg & Kouser firm, and not by her trial counsel, Mr. Greenberg.
The sole ground of appeal is stated by plaintiff's appellate counsel this way:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PROCEEDING WITH THE TRIAL OF APPELLANT'S CAUSE OF ACTION WHERE CLEAR EVIDENCE OF A CONFLICT OF INTEREST WAS BROUGHT TO THE ATTENTION OF THE COURT PRIOR TO THE COMMENCEMENT OF THE TRIAL.
No other ground of appeal is urged by plaintiff. There is no contention that the verdict was against the weight of the evidence and no such post-trial motion was made by plaintiff.
R. 2:10-1; R. 4:49-1. There is no assertion of any trial error, save the above vague conflict of interest assertion.
Plaintiff asserts that her initial counsel, Mr. Musso, had failed to advise her that damages had been stipulated. On February 28 plaintiff engaged in a discussion on the record in court with the trial judge and Mr. Greenberg, her trial counsel, at his suggestion. At that time, plaintiff expressed that she understood the stipulation about damages which the parties had purportedly agreed to several months before and that she was willing to proceed to trial on that bifurcated basis. She understood that the only issue before the court and jury was "who's at fault, the issue of liability." After plaintiff said: "I'll go on with the case," the judge decided to proceed.
Bifurcation of the trial on liability and damage issues usually rests within the sound discretion of the trial judge. Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 345 (1994); R. 4:38-2. Now that she has lost at trial, plaintiff urges that she is entitled to another chance, relying solely on RPC 1.7, "Conflict of Interest: General Rule," which states in pertinent part that:
[A] lawyer shall not represent a client if . . . there is significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.
Notwithstanding the existence of a concurrent conflict of interest . . . a lawyer may represent a client if each affected client gives informed consent, confirmed in writing, after full disclosure and consultation. . . . [RPC 1.7.]
We think the plaintiff's appellate counsel intends to stress a conflict created by "a personal interest of the lawyer" not a conflict with another client. We see no "personal interest" conflict. Plaintiff also suggests that she was intimidated and unfairly persuaded to agree to proceed to trial on February 28. On review of the total record, we reject this claim.
We find no conflict violation of either the spirit or the letter of RPC 1.7. Plaintiff agreed before the judge in open court to proceed. Our review of the record reveals no legal error in the trial proceeding. Mr. Greenberg pursued his client's cause with zeal and manifest skill. She could not have reasonably expected better representation. His firm had invested about $9,000 in the fees of the consulting safety engineer who examined the scene, performed testing at the site, and testified in Salem County. Mr. Greenberg examined the witnesses artfully and argued to the court and jury with grace and skill. We cannot imagine what more he could have done to advance his client's cause. The incentive to counsel of a substantial contingent fee, if he prevailed on plaintiff's behalf, also motivated counsel.
Where the trial was fair, plaintiff was well-represented, and there was no error in the proceedings, we find no basis to grant a new trial. And, there is no assertion before us that plaintiff was in anyway incompetent to agree to proceed with this liability-only, bifurcated trial on February 28, 2008. See Wolkoff v. Villane, 288 N.J. Super. 282, 287-88 (App. Div. 1996).
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