On appeal from Superior Court of New Jersey, Law Division, Essex County, No. L-3799-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Messano and LeWinn.
Two actions were filed seeking damages for the death of six-year-old Myrna Altenor, known as "Tootie," in an accident at a Conway's store in Union. One was filed by Monique Williams, Tootie's mother. The other was filed by Myrna Slaughter, the sister of Ms. Williams and Tootie's aunt, with whom Tootie had been living. The two lawsuits were eventually consolidated. At trial, defendant Conway's offered $950,000 to settle the litigation. Ms. Williams appeals from a trial court order enforcing a settlement, directing the payment to her of $50,000 to settle her claims, the payment of $650,000 to Ms. Slaughter to settle her claims and holding the balance pending an allocation hearing. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
Tootie was born on April 10, 2000, and died on October 7, 2006. On that day, she, her seven-year-old cousin Isaiah, Ms. Slaughter, and a friend of Ms. Slaughter's went to a Conway's Department Store in Union. While in the store, the children became separated from the adults. Tootie had been running and she slipped on a garment that had fallen to the floor and fell into a nearby pointed wall rack that punctured her chest. She died shortly thereafter.
Ms. Williams and Ms. Slaughter disputed who was Tootie's parent and thus entitled to pursue a claim for her death. Ms. Slaughter claimed that Ms. Williams, who has struggled with drug addiction, abandoned Tootie shortly after her birth. The two came to reside with Ms. Slaughter when they were discharged from the hospital following Tootie's birth. Ms. Slaughter said that Ms. Williams left when Tootie was approximately two weeks old and never returned. Ms. Williams denied she ever abandoned Tootie, although she acknowledged that the girl lived with Ms. Slaughter. Ms. Williams said she provided financial assistance for her daughter's support and would call her every night and see her every few days. Ms. Slaughter has also cared for other children of Ms. Williams, particularly when Ms. Williams served periods of incarceration. Ms. Slaughter's daughter adopted another of Ms. Williams's children. At the time of the accident, Ms. Slaughter told the store and emergency personnel that she was Tootie's mother. She also told the funeral director that she was Tootie's mother, and the girl's death certificate originally reflected that statement. When Ms. Williams learned this, she had a corrected death certificate issued.
On December 12, 2006, Ms. Williams was appointed administrator and administrator ad prosequendum of Tootie's estate by the Surrogate of Union County. In April 2007, Ms. Slaughter's application for appointment as administrator and administrator ad prosequendum was dismissed in light of the earlier order. In May 2007, Ms. Slaughter, without the benefit of having been appointed to represent Tootie's estate, filed suit in Essex County seeking damages for Tootie's death and under Portee v. Jaffee, 84 N.J. 88 (1980), for her own emotional distress at having observed her death. In August 2007, Ms. Williams filed a wrongful death action in Union County. The two matters were later consolidated in Essex County.
Ms. Slaughter later filed a motion seeking to remove Ms. Williams as a party to this litigation, relying on the decision of this court in New Jersey Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266 (App. Div.), certif. denied, 196 N.J. 347 (2008), in which we upheld the posthumous termination of parental rights to preclude an abusive parent from sharing in the proceeds of a wrongful death action filed following the death of her child. That motion was denied without prejudice; the order which was entered contains the notation that the issue was transferred to the Family Part of the Chancery Division.
By the time the matter was assigned for trial, there had been no resolution in the Family Part, and the civil litigation thus proceeded without any determination of which party was entitled to assert a claim for damages for Tootie's death. Ms. Slaughter and Ms. Williams were each represented by counsel, both of whom appeared for trial. By agreement, Ms. Slaughter's attorney was to try the case on liability, with Ms. Williams's attorney serving as co-counsel.
Before the trial actually got underway, defendant raised the issue of comparative fault, based upon the allegation that Ms. Slaughter had failed to properly supervise Tootie in the store. Ms. Slaughter's attorney argued that she was protected by the doctrine of parental immunity. After argument, the trial court determined that the issue would have to be resolved by the jury.
Following jury selection, three witnesses testified:
Tootie's cousin Isaiah, Ms. Slaughter, and Ms. Slaughter's daughter. The trial transcript indicates that at the conclusion of that testimony, the trial court excused the jury for a recess. The transcript then continues as follows.
THE COURT: This is the matter of SLAUGHTER v. CONWAY'S and WILLIAMS v. CONWAY'S. The case has been reported to the Court as settled for the total sum of $950,000. $250,000 to be allocated pursuant to GREEN v. BITTNER (phonetic). The issue then is the allocation to plaintiff Williams on the pain and suffering claim.
[Defense counsel], tell me what has occurred.
[DEFENSE COUNSEL]: Your Honor, I think the record -- this has been a complicated case, and I was very sympathetic from the beginning as to the family's loss, as we know. But I've been dealing with both Mr. Armour and Ms. -- Mrs. Slaughter. I'm sorry, I mean, Ms. Matheke throughout the negotiations. And the culmination of this afternoon's negotiations were I had asked both Mr. Armour and M[s]. Slaughter for one number that I could bring to my client.
I was in court. Between both of them they said we will give you that number and the number that was given to me at that time was $975,000. I brought that to my client. We had had authorization of $750,000. They told me to come back with an $850,000 offer, but they felt for a number of reasons, that we were in the middle of testimony, that the case was going to go on for another, you know, minimum of ...