PER CURIAM.
After an adverse jury verdict, defendant Seabring Associates — owner of the two-building high-rise apartment complex in Hackensack known as the Excelsior — appeals from the final judgment and several pre- and post-trial orders. We affirm in part and reverse in part, and remand for a new trial limited to the issues of liability and allocation of fault.
On December 27, 2006, while walking his dog two hours before sunrise, plaintiff Henry Y. Lau was struck and seriously injured by an automobile operated by a hit-and-run driver. Later that day, following a rapid investigation by several law enforcement agencies, twenty-year-old co-defendant David A. Figueroa was identified as the driver of the car that struck Lau. Figueroa's blood alcohol concentration at the time was 0.192 percent.
Immediately before striking Lau, Figueroa had been attending an after-hours, private swimming pool party at the Excelsior — located approximately one mile from the accident scene — where he had consumed alcoholic beverages.
Co-defendants Gabriel Ortiz and Edgar Cobos were employed at the Excelsior on December 26 and 27, 2006. Ortiz was a front-desk concierge; Cobos was a lifeguard at the swimming pool. Ortiz permitted the party-goers to enter the Excelsior, facilitated the unlocking of the door to the swimming pool, and allowed them continued access to the facility for their event. He also monitored the Excelsior's closed circuit television surveillance system to ensure that video images of the celebrants were only seen by him. Cobos brought Figueroa to the party.
Ortiz had previously worked as a lifeguard at the Excelsior swimming pool for about five years before being promoted to the front-desk position in the summer of 2006. The Excelsior's management considered the position to be part of the security detail for the apartment complex because a front-desk concierge's duties included the obligation to ensure that only residents and their guests entered and remained in the building. On the night in question, Ortiz was filling in for another front-desk concierge during the midnight-to-eight shift. At that time, Ortiz was the youngest person hired to do such work at the Excelsior.
Joette Mabie, a twenty-two-year Seabring employee was the Excelsior's property manager in December 2006. She testified that during that month, from 7:00 p.m. until the morning, one person was assigned to both work the front desk and act as a doorman. After midnight, anyone who wanted access to the Excelsior would have to be admitted — through either the front entrance or a back door — by the person working the front desk.
To Mabie's knowledge, employees working the front desk were given on-the-job training before they were left alone to do their job. She believed that someone in that position was never left "without knowing all the systems and protocols and what we expected." Mabie believed that the Excelsior's head of security trained Ortiz for the position and had given him manuals and other written instructions appropriate to the task. A memo regarding alcohol consumption was handed out to security personnel when they were hired.
Mabie left her position at the Excelsior in June 2008. Addressing a spoliation of evidence issue, she testified that missing time records for employees, including those for night security officer Gene Fabio for December 26 and 27, 2006, must have been shredded after she left. Fabio typically inspected the grounds, and usually ended his tour of duty around 1:00 a.m. The parties were unable to precisely determine when Fabio left the premises on the night in question due to the absence of time records. The swimming pool party began, however, after Fabio was gone from the apartment complex.
According to Anthony Palmeri, one of Seabring's general partners, people were not permitted to consume alcoholic beverages at the Excelsior except in the restaurant located on site. At trial, Palmeri referred to a security manual for the Excelsior, which he brought with him. This manual, although requested during pretrial discovery, had not previously been produced.
Plaintiffs offered Leslie Cole as an expert in security management. He stated that Seabring's decision to permit Ortiz, a "young, inexperienced, unsupervised, untrained" individual, to be in charge of the front desk was "the sole cause of this accident." As a result of Ortiz's immaturity, Cole believed the accident was reasonably foreseeable. He stated that to prevent it, Seabring should have performed a risk assessment; formulated a security plan; monitored the level of security; and provided a security manual, training and adequate supervision.
Cole thought Ortiz was negligent because "[h]e either invited [people to the party,] or he did not control them" and their drinking in any way. Instead of supervising, Ortiz had become "one of the boys," according to Cole.
Donald Greene testified for Seabring as an expert in security. Greene stated that Ortiz understood that his responsibility was to control access to the buildings. He concluded that Ortiz was given sufficient training to undertake this responsibility, but violated that training by letting people onto the site for a party. Since Ortiz had honorably worked at the Excelsior for nearly five years, Greene opined that Seabring could not have anticipated that Ortiz would act in the manner that he did. In addition, Greene concluded that Seabring had provided sufficient security that evening.
On April 9, 2007, plaintiffs filed their initial complaint seeking compensatory damages. Throughout the next year, several amendments were filed, which added and corrected the names of parties, and inserted additional causes of action. Co-defendant, National Wholesale Liquidators of Lodi (NWL), a retail store that sold alcoholic beverages, successfully moved for summary judgment dismissing plaintiffs' claims on the ground that there was no competent evidence that it sold any alcoholic beverages to anyone involved in the case. Seabring did not oppose the grant of summary judgment. Cobos also filed a motion for summary judgment, which was granted.
In March 2010, Seabring obtained an order granting its motion for summary judgment dismissing count four (negligent hiring, training and/or retention), five (enabling consumption of alcohol) and seven (public nuisance). In addition, the judge wrote, "there is no cause of action based upon respondeat superior." The effect of the order was to leave intact plaintiffs' claims against Seabring for negligent supervision (count three) and "social host" liability under
Figueroa settled before trial for $15,000, and the trial court granted the parties' motion for a directed verdict against him. Ortiz never responded to the complaint.
The ensuing trial was conducted with only plaintiffs and Seabring participating. At its conclusion, the jury was instructed that Figueroa was negligent and that his negligence was "a proximate cause of the accident." The jury responded to interrogatories contained in the verdict summary form by finding that Ortiz's conduct was both negligent and a proximate cause of "the accident, injuries and damages suffered by the [p]laintiffs." Seabring was found "responsible for the negligence" of Ortiz under a respondeat superior theory, and directly "negligent in its hiring, training and/or supervising [] Ortiz and/or in its security procedures." Ultimately, the fault allocation reported on the verdict summary form was as follows:
The jury awarded Lau $5 million, and his wife $350,000, in damages. In addition, pursuant to a stipulation by the parties, it awarded Lau $1,732,193 for "lost future earnings proximately caused by the accident of December 27, 2006."
On December 13, 2010, judgment was entered against Seabring for $7,433,443.70, plus pre-judgment interest of $1,224,105.70, totaling $8,657,549.40. The verdict was molded to add $325,500 for future medical treatment and $40,750.70 for out-of-pocket medical expenses, as stipulated by the parties.
In late December 2010, Seabring moved for a new trial. On March 18, 2011, the court denied the motion and signed an order reflecting that denial. This appeal followed.
Seabring's initial notice of appeal sought review of (1) the judgment, (2) the April 2010 order granting plaintiffs' motion vacating the earlier finding of no cause of action based on respondeat superior, and (3) the March 2011 order denying a new trial. In September 2011, we granted Seabring's motion to amend its notice of appeal to include a challenge to the order granting NWL summary judgment, reserving the question of "whether any new issues raised are otherwise properly before the court."
In March 2012, we granted NWL's motion for a partial remand to permit it to move for enforcement of a settlement with plaintiffs. On April 25, 2012, the Law Division entered an order confirming a $35,000 settlement between plaintiffs and NWL, and which directed plaintiffs to execute a release. No appeal was filed from that order.
Seabring contends that the motion judge, who was not the trial judge, erred in reversing her initial determination that respondeat superior was not in the case because it was not properly pled. It further argues that the record did not support submitting the issue of respondeat superior to the jury, and that the instructions given to the jury on the subject were erroneous. We disagree with Seabring's first argument, but agree with its latter two.
We review a motion court's decision regarding reconsideration under an abuse of discretion standard.
Under respondeat superior principles, "an employer can be found liable for the negligence of an employee causing injur[y] to a third part[y] if, at the time of the occurrence, the employee was acting within the scope of his or her employment."
The motion court did not abuse its discretion in determining that respondeat superior was part of the case at the time she decided the motion. Pleadings are to be given a liberal interpretation.
That having been said, our review of the trial record satisfies us that the factual picture painted during that proceeding was entirely insufficient to present the jury with a viable dispute regarding vicarious liability based upon respondeat superior. Making what he unfortunately called a "pro forma motion" to dismiss at the close of the evidence, Seabring's trial counsel only briefly argued that the issue of respondeat superior should not be considered by the jury because "the proof is [] so far one-sided here." Similarly, albeit ironically, plaintiffs argued that "there's plenty of evidence on both sides to show that the Excelsior was negligent, [and] that Ortiz was acting within the scope of his employment," and moved for a directed verdict in their favor regarding respondeat superior because "[i]t's clear here that Gabriel Ortiz as a matter of law was acting within the course and scope of his employment when he let these people into the pool."
The trial judge expressed strong skepticism about the propriety of Ortiz's actions in allowing "people in that he knew shouldn't be in," and commented, "I'm not buying that." Nevertheless, in denying Seabring's motion, the judge stated:
[B]ecause I sat here and listened to the testimony of the building manager and the building owner who, in the kindest sense of the words, each pointed their finger at the other as who was in charge. So I think that the — there was definitely a question of fact as to — I'm not sure it ever existed, which raises the issue of (A) who's in charge, what kind of procedures they had for training, what kind of procedures they had for supervision, and what kind of... hiring. I mean, I know he was hired as a lifeguard, this young man, and he had apparently the certifications to be a lifeguard at age 16. Moving on up, did he have the qualifications? I don't know. That's for the jury to decide. So I think the jury is... well-suited to decide those questions of fact, so I'm denying your motion.
In denying plaintiffs' motion, the judge stated:
Respondeat superior is a basis for vicarious liability when an employee-actor commits a tort against a third person. It is distinct from whether the employer is subject to direct liability, and is not invoked automatically just because of an employer-employee relationship. As we already noted, "[u]nder respondeat superior, an employer can be found liable for the negligence of an employee causing injuries to third parties, if, at the time of the occurrence, the employee was acting within the scope of his or her employment."
In the present matter, both sides concede that no dispute exists concerning the employer-employee relationship between Seabring and Ortiz. The focus of attention, therefore, is on the scope of Ortiz's employment. In
We recognize that the act of violence involved in
The notion that the contours of Ortiz's conduct on the night in question was limited to merely serving as a gatekeeper, which he performed contrary to the rules of his employer, is both unfortunate and unfounded. Under
Seabring also takes issue with the trial judge's submission of a social host theory of liability to the jury. At the initial charge conference, which was held prior to the end of testimony, the judge stated that he had not heard anything to support a social host theory of liability. Plaintiffs proferred two possibilities: first, they maintained that "Ortiz is the social host acting in the course and scope of his employment at the Excelsior, thereby making the Excelsior the social host"; alternatively, "the Excelsior is negligent on their [sic] own because they [sic] negligently trained and supervised him on that night." The judge declined to make an authoritative decision on the issue at that time.
The next time the social host theory of liability appears in the record was during a brief exchange (late in the afternoon) right after the parties rested. Plaintiffs' counsel remarked to the judge that she had "forgot[ten] to add in the social [host] charge" when submitting her final proposed jury charges, but her "secretary emailed it this morning in its entirety." The judge acknowledged as much, noting he received "all three lines of it." Aside from a cryptic brief exchange right before the instructions were read to the jury two days later, the record is bereft of any further mention of the social host theory of liability.
Ultimately, the judge read the following to the jury, immediately following his instructions concerning Seabring's potential direct (not vicarious) liability based upon its alleged negligent hiring, training, or supervision:
The judge did not define the term social host.
Social host liability is codified in
The present record does not warrant the inclusion of a stand-alone charge on a social host theory of liability because Seabring was not a social host. It was an employer. The swimming pool party was neither sponsored nor condoned by Seabring, and there is no evidence that any of the alcoholic beverages came from the restaurant located on the site or from any other Excelsior-based source. Furthermore, there is no evidence that Ortiz provided or served any alcoholic beverages to anyone. Imposing liability on Seabring in the manner explained by the court was dependent on a finding of respondeat superior which, as we have noted, was not established because there was no evidence that Ortiz was seeking to further Seabring's interests by his conduct on the night in question.
Plaintiffs argue that
The teaching of
Seabring maintains that it is entitled to a new trial because the cause of action for negligent hiring should not have been considered by the jury in light of its dismissal prior to trial. Indeed, during the initial charge conference plaintiffs' attorney conceded, "[n]egligent hiring's out of [the case]." However, Seabring's attorney never objected when the "negligent hiring" nomenclature crept back into discussions and ultimately found its way into the jury charge and verdict summary form.
We are unable to agree with Seabring that the trial court erred when it submitted the issue of negligent hiring to the jury because that theory of liability was, ultimately, supported by evidence in the trial record, and Ortiz's promotion from lifeguard to front-desk attendant is the equivalent of a hiring. The doctrine of invited error — that is, Seabring's failure to object until its post-trial motion practice — also supports the submission of the issue to the jury.
Furthermore, there was nothing absolute about the dismissal of the negligent hiring claim earlier in the proceedings. The grant of partial summary judgment, as here, is an interlocutory order subject to reconsideration in the sound discretion of the trial court at any time prior to the entry of final judgment.
The alleged negligent hiring was not Ortiz's hiring as a lifeguard, but his hiring for the front desk position. "[A]n employer who negligently either hires or retains an individual who is incompetent or unfit for the job may be liable to a third party whose injury was proximately caused by the employer's negligence."
Here, there was sufficient evidence — Ortiz's youth, inexperience and apparent lack of training for the front desk position — and the opinion of plaintiffs' expert, to support a negligent hiring claim. Therefore, the court did not err in submitting negligent hiring to the jury.
Seabring contends that it is entitled to a new trial on liability and fault allocation due to an accumulation of material errors. A motion for a new trial will be granted "`only where to do otherwise would result in a miscarriage of justice shocking to the conscience of the court.'"
Plaintiffs argue, without conceding anything, that even if this were not a perfect trial, "Seabring is still responsible for Ortiz's negligent acts by virtue of the fact that the jury found that Seabring negligently hired, trained and/or supervised him." Although this argument is couched in vicarious liability language, which we have rejected, the jury's verdict conceivably bespeaks Seabring's "primary liability" for its own torts.
A claim based on negligent hiring or negligent supervision is separate from a respondeat superior claim.
From our review of the record, the parties and the court improperly fused disparate theories of liability, to the extent that jurors were presented with two wholly inapposite theories: respondeat superior and social host liability. Additionally, in the context of the court's jury charge and the (opening and closing) arguments of counsel, the jury was never asked to carefully parse the differences between vicarious and primary liability. When viewed under the totality of the circumstances, the material surplusage of issues presented, the trial court's overlapping instructions, and the unnecessarily narrow-focused verdict summary form combined to create a misleading deliberative environment, fully capable of engendering an unjust result.
Notwithstanding the foregoing, a retrial on all issues is not necessary. The "`general rule [is] that issues in negligence cases should be retried together unless the issue unaffected by error is entirely distinct and separable from the other issues.'"
Because this matter will be retried, we address Seabring's argument that the trial court's adverse inference instruction — based on concealment of the security manual and destruction of the time sheets — was improper.
At the first charge conference, Seabring's counsel told the court that "there's absolutely no question, and I'm not arguing with you with regard to an adverse inference from missing records. I have no argument." The court charged the jury as follows:
Since Seabring did not object to the charge, it must demonstrate plain error, namely, legal impropriety in the charge that is sufficiently grievous to convince us that, by itself, it possessed a clear capacity to bring about an unjust result.
The instruction in this case "permit[ted] the jury to infer that the evidence destroyed or concealed would not have been favorable to the spoliator."
The duty to preserve evidence "arises when there is pending or likely litigation between two parties, knowledge of this fact by the alleged spoliating party, evidence relevant to the litigation, and the foreseeability that the opposing party would be prejudiced by the destruction or disposal of this evidence."
As a general matter, an incorrect jury charge "constitutes reversible error only if the jury could have come to a different result had it been correctly instructed."
Here, the security manual was not produced until the day of Palmeri's testimony. Plaintiffs requested it in discovery "for years," but were told that it could not be located. Seabring did not dispute that such a discovery request had been made and said it had no argument that an adverse charge was appropriate. In similar vein, the time records for the night in question were rendered unavailable by Seabring's untoward conduct, and the court did not abuse its discretion in providing appropriate guidance to the jury regarding an adverse inference.
We lastly address Seabring's arguments regarding the grant of summary judgment to NWL. When NWL sought summary judgment, Seabring did not oppose it. Even after Cobos provided contradictory information, outside the presence of the jury, suggesting that Figueroa purchased brandy at NWL before entering the party at the Excelsior, Seabring neither moved to reconsider the grant of summary judgment nor argued for a new trial on the ground of newly discovered evidence.
Plaintiffs claim that this issue was not properly raised because the amended notice of appeal seeking to include the order granting NWL summary judgment was out of time under
We conclude that Seabring waived the right to appeal the grant of summary judgment to NWL. Not only did it not object to NWL's motion for summary judgment,
In summary, we affirm the evidentiary rulings of the trial court and the damages component of the final judgment, but we reverse on liability issues. The matter is remanded to the Law Division for a new trial limited to liability and allocation of fault.
Affirmed in part; reversed in part; and remanded for further proceedings in accordance with this opinion.
Under this formulation, Ortiz's relevant actions were indisputably part of "an independent course of conduct" and "not intended... to serve any purpose of the employer."
