August 17, 2009
KAREN WOOD AND FREDERICK WOOD, PLAINTIFFS-RESPONDENTS/ CROSS-APPELLANTS,
JOHN CRITTELLI AND ALFONZIA (A/K/A ALFONZINE) CARUSO, DEFENDANTS, AND ALFRED VAIL MUTUAL ASSOCIATION, DEFENDANT-APPELLANT/CROSS-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-465-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 11, 2009
Before Judges Stern, Payne and Waugh.
Defendant Alfred Vail Mutual Association (AVMA) appeals from an amended final judgment against it in the amount of $1,353,092.07 following a jury verdict awarding plaintiffs a total verdict of $2,422,000. The judgment was based on an allocation of forty-nine percent of the fault for plaintiff-wife's injuries to AVMA, following the verdict of $1,400,000 to her for pain and suffering, $782,000 for economic losses, and $240,000 for her husband's per quod claim. Pre-judgment interest was added to the award for pain and suffering, so that the judgment against AVMA was based on an aggregate of $827,973.71 for pain and suffering, $383,820 for economic losses and $141,938.36 for the husband's losses.
Plaintiffs cross appeal from the denial of their motion to have the entire amount of the jury verdict (plus interest) included in the judgment entered against AVMA.
Plaintiff, Karen Wood, was a letter carrier who was injured when she fell after being attacked by a dog, "Max," owned by defendant John Crittelli and maintained for him by his grandmother Alfonzia Caruso, a resident of the AVMA complex. The case resulted from Max's sixth attack on plaintiff. The verdict allocated fifty-one percent of the fault against Crittelli and Caruso jointly.
Defendant AVMA seeks reversal and a new trial. It claims that various prejudicial decisions were made during the trial, including permitting plaintiffs to introduce evidence regarding prior complaints made to AVMA about the dog, particularly without permitting evidence in its defense, and that the verdict sheet improperly treated the dog owner, defendant Crittelli, and his grandmother who cared for the dog, defendant Caruso, as one party so that the jury improperly considered the negligence of the two as one defendant.*fn1 AVMA further asserts that numerous side bar discussions held during the trial were not audible for the purposes of transcription, thereby precluding appellate review of claims made and requiring a new trial. Finally, AVMA argues "the jury verdict was excessive and against the weight of the evidence thereby rendering the court's rulings and resulting judgment on both liability and damages to be a miscarriage of justice under the law."
As to the record, there is no suggestion that anything significant happened at sidebar that is not clear from what was recorded or from the subsequent developments on the record, or that anything actually prejudiced AVMA beyond the legal rulings hereinafter addressed. Moreover, AVMA made no effort to reconstruct the record or supplement it with anything that may be missing. We find no basis for a new trial because of the inaudible portions of the record. See State v. Paduani, 307 N.J. Super. 134, 141-46 (App. Div.), certif. denied, 153 N.J. 216 (1998).
As to the points relating to the prior complaints and the prohibition on AVMA's ability to explain what it did in response to the prior attacks, AVMA proffered little regarding what, if anything, it endeavored to do and its relevance.*fn2 Moreover, the trial judge's rulings were consistent with the partial summary judgment granted plaintiffs as to AVMA's non-delegable landowner liability, and AVMA does not challenge or attack the grant of partial summary judgment relating to its non-delegable duty. The trial judge denied partial summary judgment against AVMA as to breach of that duty, and the evidentiary rulings at trial were consistent with the pretrial rulings on those subjects.*fn3 We find no abuse of discretion regarding the evidentiary rulings. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000); N.J.R.E. 403(b).
Defendant claims that the verdict sheet "did not allow for the jury to apportion fault" between the owner and caretaker separately and each on a different theory. AVMA contends that the liability of Caruso and Crittelli was separate and independent, and should have been so presented to the jury.*fn4
While the argument might have merit in other contexts, it does not in the circumstances before us. The trial judge appropriately denied AVMA's motion for new trial on this issue, stating:
In this case, Crittelli and Caruso were represented by the same attorney and were covered by the same insurance carrier. Alfred Vail was represented by a different attorney who represented a different carrier.
As between Crittelli and Caruso, their carrier had no interest in the percentage of liability between the two because the carrier was responsible for whatever percentage their liability totaled. On the other hand, Alfred Vail can only be responsible for the percentage as determined by the jury.
While there were three defendants in this case, there were only two communities of interest. After a lengthy charge conference, counsel for each group agreed to Interrogatory Number 8. Therefore, when the verdict was rendered, the jury found that Crittelli/Caruso defendants responsible as [a] unit for 51 percent of plaintiff's injuries, and Alfred Vail for 49 percent.
It is the Court's opinion that the provisions of N.J.S.A. 2A:15-[5.3] were followed, since the responsibility for plaintiff's injuries was allocated between two different groups of tort feasors. Since none of the defendants were found responsible for 60 percent, it makes no difference how the 51 percent was allocated between Crittelli and Caruso since those defendants were insured by the same carrier, represented by the same attorney, were responsible for the payment of 50 (sic) percent of the judgment.
The Court does not recall any attempt by any counsel, by direct or cross examination, to allocate the fault between Crittelli and Caruso. So throughout the entire trial, there was no attempt at all to distinguish between the two. In fact, if my memory is correct, the dog's owner and grandson of Mrs. Caruso was barely mentioned at all in the trial.
The dog bite statute imposing strict liability on the dog's owner is not relevant as this was a dog attack ― not a dog bite case. See N.J.S.A. 4:19-16. More importantly for present purposes, there was no request by any party, plaintiff or AVMA, for an allocation as between Crittelli and Caruso, and this was understandable in the context of the trial because there was no focus on Crittelli, independent of his grandmother, who watched and maintained the dog. While the judge charged the jury to determine whether "that the dog had a vicious or dangerous trait or propensity" and that Caruso or Crittelli "knew or in the exercise of reasonable care, should have known of the particular vicious or dangerous trait or propensity in the dog which caused the plaintiff's injuries," there was no distinction made between the two. The change in AVMA's position cannot fairly be raised after the summations, charge, and the verdict premised thereon, which led to the ultimate settlement with Crittelli and Caruso for their policy limits. We add that the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 and -5.3, requires allocation among parties and does not address how many parties there must be or how they must be treated among themselves.
While the verdict may be high, it does not shock the judicial conscience. In the circumstances, we can find no plain error warranting a new trial or remittitur. See Jastrum v. Kruse, 197 N.J. 216 (2008); Fertile v. St. Michael's Hospital, 169 N.J. 481 (2001) (regarding the claim of an excessive verdict); R. 2:11-3(e)(1)(B)(E).
On the cross-appeal, plaintiffs argue that AVMA should be responsible for the entire verdict because "plaintiff's injury was foreseeable and casually connected to the negligence." But all awards based on negligence must be foreseeable and be causally related. Here plaintiffs contend the attack was the same type as in the past and "inevitable," so it would be fair to impose joint and several liability. However, defendant AVMA was found only forty-nine percent liable, and there is no basis under the Comparative Negligence Act to enter a greater allocation. See N.J.S.A. 2A:15-5.3(c). Moreover, there is no support in the cases to impose the entire liability on AVMA even if we considered AVMA's inaction to be the equivalent of an intentional tort. See Blazovic v. Andrich, 124 N.J. 90, 109-10 (1991); Waldron v. Johnson, 368 N.J. Super. 348, 350-53 (App. Div.), certif. denied, 182 N.J. 139 (2004); Martin v. Prime Hospitality Corp., 345 N.J. Super. 278, 284-87 (App. Div. 2001). See also Frugis v. Bracigliano, 177 N.J. 250, 278-80 (2003).
The judgment is affirmed.