NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1156-14T4
PHILIP VITALE,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
August 22, 2016
v.
APPELLATE DIVISION
SCHERING-PLOUGH CORPORATION,1
Defendant-Appellant.
____________________________
Argued April 27, 2016 — Decided August 22, 2016
Before Judges Fuentes, Koblitz and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
L-6175-11.
Gavin J. Rooney argued the cause for
appellant (Lowenstein Sandler LLP,
attorneys; Douglas S. Eakeley, of counsel;
Mr. Rooney and Joseph A. Fischetti, on the
briefs).
Craig M. Rothenberg argued the cause for
respondent (Rothenberg, Rubenstein, Berliner
& Shinrod, LLC, attorneys; Mr. Rothenberg,
of counsel; Mr. Rothenberg and John D.
Gagnon, on the briefs).
Jay A. Gebauer argued the cause for amicus
curiae Allied Barton Security Services, LLC
(Fowler Hirtzel McNulty & Spaulding, LLP,
1
According to defendant Schering-Plough Corporation, on November
4, 2009, it merged with Merck & Co. to form the entity Merck &
Co., Inc.
attorneys; Mr. Gebauer and Quinn M.
McCusker, on the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
This appeal raises a novel question of law in New Jersey:
whether a provision in an employment contract limiting a
worker's right to sue a third party for negligence is
enforceable. Plaintiff Philip Vitale was employed as a security
guard by Allied Barton Security Services, LLC (Allied Barton),
which contracted with defendant Schering-Plough Corporation to
provide security services at defendant's facilities. At the
commencement of his employment with Allied Barton, plaintiff
signed a disclaimer waiving his right to sue any of Allied
Barton's customers "to which [he] may be assigned, arising from
or related to injuries which are covered under the Workers'
Compensation statutes." In August 2009, plaintiff was injured
while working for Allied Barton at one of defendant's work
sites. Thereafter, he received workers' compensation benefits
from Allied Barton and also filed this personal injury suit
against defendant.
A jury subsequently found defendant's negligence caused
plaintiff's injuries and awarded plaintiff $900,000 in damages,
with additional amounts awarded by the court in prejudgment
interest, counsel fees, and expenses under the offer of judgment
2 A-1156-14T4
rule, R. 4:58-2. Defendant appeals from the denial of summary
judgment, arguing the disclaimer was valid and enforceable. In
the alternative, defendant also appeals from the final judgment,
arguing a new trial is warranted because the court erred both by
refusing to instruct the jury on comparative negligence, and
allowing a lay witness to provide opinion testimony. We affirm
the trial court's determination that the contractual limitation
on plaintiff's ability to sue defendant is unenforceable as
against public policy as expressed in case law and in the
Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -142, but
reverse as to the court's refusal to allow the jury to consider
comparative negligence.
I
Plaintiff began working as a security guard with Allied
Barton in September 2005. Although he was assigned to many of
defendant's work sites, he was never directly employed by
defendant, which had its own in-house security employees. In
2008, plaintiff was promoted to the position of field manager,
supervising Allied Barton security guards who worked at
defendant's sites. One of his duties as field manager was to
ensure that the guards had proper uniforms, and for that purpose
he stored extra uniforms in the basement of the guardhouse at
defendant's Kenilworth facility.
3 A-1156-14T4
Allied Barton did not have exclusive use of the guardhouse
basement. Defendant's security managers had keys to the
basement door, and the basement was used for storage by
defendant's maintenance and information technology employees.
The basement also contained equipment belonging to another of
defendant's contractors.
Defendant was responsible for the maintenance of both the
guardhouse and the stairwell to the basement, which one entered
from outside of the guardhouse. Defendant employed its own
security manager, who managed the guardhouse and was responsible
for inspecting the property and identifying any safety hazards.
Defendant also employed maintenance staff, who were responsible
for cleaning and repairing the guardhouse. The maintenance
staff were required to return items to their original location
after using them for the purpose of preventing safety hazards.
Plaintiff visited the guardhouse basement approximately
once per month. The stairwell had a light fixture, and without
that light, it was pitch black. The light switch was located at
the top of the stairwell, to the left as one opened the door.
Plaintiff's regular practice was to unlock the basement door,
turn on the stairwell light, and proceed down the stairs. At
the time of his accident, the stairwell's heavy, metal door had
a handle on the left, and opened outward to the right, blocking
4 A-1156-14T4
the security camera.
In the early morning of August 31, 2009, plaintiff took the
basement keys from the guardhouse, told his coworker he had to
go downstairs for something, and subsequently fell down the
basement stairs. Plaintiff had no recollection of the accident,
or of the moments immediately before and after his fall.
Plaintiff's coworker, Alec Schaffer, went looking for plaintiff
approximately twenty minutes after plaintiff left with the
basement keys. When Schaffer opened the basement door he
noticed the light was off. After he turned on the light, he saw
plaintiff at the bottom of the stairs, having landed on a brown
paper "cement type" bag. At the top of the stairs, near the
door, Schaffer saw a ladder, crates, an industrial-type
extension cord, and a fifty-pound bag of ice melt that had been
knocked down a few stairs. Based upon the positioning of the
bag of ice melt, Schaffer believed plaintiff had tripped over
the bag, causing him to fall.
According to Schaffer, plaintiff "was in a daze" and was
"out of it." The front of plaintiff's head was red, and his
glasses were off and on the stairs. Plaintiff said, "he fell or
tripped or something."
When emergency services arrived, plaintiff was conscious
and sitting in a chair. He complained of pain in his right
5 A-1156-14T4
ankle and left leg, and did not recall losing consciousness.
Plaintiff testified that since the accident he has suffered from
severe headaches and pain in his neck, shoulder, and lower back,
which radiates down his leg. Notwithstanding his participation
in physical therapy, he continues to have limited mobility and
strength in his shoulder and arm. Plaintiff had eye surgery in
2012 that largely alleviated the headaches, but he continues to
suffer cognitive difficulties, which limit his social and
professional life. Plaintiff's experts opined plaintiff's
symptoms were the result of permanent injuries he suffered in
the fall. Defense experts opined plaintiff likely suffered only
minor, non-permanent injuries from the fall, and his symptoms
were consistent with his age and pre-existing medical
conditions.
II
Defendant moved for summary judgment based upon the waiver
of liability plaintiff signed on September 27, 2005, when he
began his employment at Allied Barton. The waiver stated:
WORKER'S COMP DISCLAIMER
Payment on Work-Related Injuries
I understand that state Workers'
Compensation statutes cover work-related
injuries that may be sustained by me. If I
am injured on the job, I understand that I
am required to notify my manager
immediately. The manager will inform me of
6 A-1156-14T4
my state's Workers' Compensation law as it
pertains to seeking medical treatment. This
is to assure that reasonable medical
treatment for an injury will be paid for by
Allied's Workers' Compensation insurance.
As a result, and in consideration of Allied
Security offering me employment, I hereby
waive and forever release any and all rights
I may have to:
- make a claim, or
- commence a lawsuit, or
- recover damages or losses
from or against any customer (and the
employees of any customer) of Allied
Security to which I may be assigned, arising
from or related to injuries which are
covered under the Workers' Compensation
statutes.
Plaintiff, who has a high school education, had no
recollection of reading or signing the disclaimer, nor did he
"recall ever receiving any explanation or information indicating
that [he] would waive [his] rights to file a lawsuit against
anyone who caused [him] injury in exchange for employment with
Allied-Barton."
Defendant and amicus Allied Barton argue the trial court
erred in denying summary judgment, asserting the disclaimer
plaintiff signed with Allied Barton was valid and enforceable.
They cite out-of-state cases in which the same or similar
disclaimers have been upheld and argue the disclaimer is
consistent with New Jersey law on exculpatory clauses because it
7 A-1156-14T4
does not preclude plaintiff from any remedy for a workplace
injury, but simply limits plaintiff's remedy to workers'
compensation benefits.
Plaintiff responds that the disclaimer violates public
policy because it violates the letter and the spirit of the WCA.
We hold the disclaimer violates public policy both because
plaintiff was asked to waive his right to sue a third party, in
violation of N.J.S.A. 34:15-40, and to the extent the disclaimer
included a waiver of claims for reckless and intentional
conduct.
III
We review the grant of summary judgment de novo, applying
the same legal standard as the trial court. State v. Perini
Corp., 221 N.J. 412, 425 (2015). Summary judgment must be
granted "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." R. 4:46-
2(c). "To the extent that the grant or denial of summary
judgment is based on an issue of law, we owe no deference to an
interpretation of law that flows from established facts."
Perini Corp., supra, 221 N.J. at 425.
8 A-1156-14T4
Not all employment contracts that limit the rights of
employees are contracts of adhesion. See Rodriguez v. Raymours
Furniture Co., 225 N.J. 343, 366-67 (2016). When an employee
has little to no bargaining power and a contract is presented on
"a take-it-or-leave-it" basis, the contract is one of adhesion.
See ibid. Allied Barton's disclaimer constituted a contract of
adhesion similar to the agreement to arbitrate contained in the
employment application in Rodriguez. Plaintiff had no ability
to bargain; he had the choice of either signing the disclaimer
as part of his employment contract or refusing the needed job.
Although a court may enforce a contract of adhesion, such
contracts are unenforceable if unconscionable. See id. at 366.
Whether an employment provision is enforceable depends on an
analysis of the subject of the provision, the sophistication of
the employee, and whether the employee has some bargaining
power. See Martindale v. Sandvik, Inc., 173 N.J. 76, 90 (2002)
(upholding an agreement to arbitrate contained in an adhesion
employment application where the employee was a sophisticated
human resources officer). "When making the determination that a
contract of adhesion is unconscionable and unenforceable,
[courts] consider, using a sliding scale analysis, the way in
which the contract was formed and, further, whether enforcement
of the contract implicates matters of public interest."
9 A-1156-14T4
Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 301 (2010). In
other words, "[t]he unconscionability determination requires
evaluation of both procedure and substance." Rodriguez, supra,
225 N.J. at 366.
Plaintiff does not allege any procedural unconscionability.
He has no recollection of signing the disclaimer, and he has
presented no evidence Allied Barton engaged in "fraud, deceit,
or misrepresentation" in obtaining his signature on the form.
See Stelluti, supra, 203 N.J. at 305. Although the parties were
in an unequal bargaining position, plaintiff was entitled to
reject the disclaimer and seek employment elsewhere. See id. at
302 (finding a gym's contract of adhesion valid because the
plaintiff "could have taken her business to another fitness
club"). Thus, whether the workers' compensation disclaimer is
unenforceable depends on whether the disclaimer violates public
policy.
"As a general and long-standing matter, contracting parties
are afforded the liberty to bind themselves as they see fit.
Out of respect for that very basic freedom, courts are hesitant
to interfere with purely private agreements." Ibid. (citations
omitted). Exculpatory clauses, however, are "disfavored in the
law." Hojnowski v. Vans Skate Park, 187 N.J. 323, 333 (2006).
They "have been subjected to close judicial scrutiny," Stelluti,
10 A-1156-14T4
supra, 203 N.J. at 303, because they undermine the principles of
our tort system by encouraging "a lack of care," Hojnowski,
supra, 187 N.J. at 333.
Nevertheless, exculpatory agreements are enforceable if
they "clearly and unambiguously reflect the 'unequivocal
expression of the party giving up his or her legal rights that
this decision was made voluntarily, intelligently and with the
full knowledge of its legal consequences.'" Marcinczyk v. State
Police Training Comm'n, 203 N.J. 586, 593 (2010) (quoting
Gershon v. Regency Diving Ctr., Inc., 368 N.J. Super. 237, 247
(App. Div. 2004)). "Even if unambiguous, it is well-established
that exculpatory contracts will not be enforced where they are
contrary to public policy." Id. at 594. "[S]ources of public
policy include legislation; administrative rules, regulations or
decisions; and judicial decisions." Hitesman v. Bridgeway Inc.,
430 N.J. Super. 198, 218 (App. Div. 2013) (alteration in
original) (quoting Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72
(1980)), aff'd, 218 N.J. 8 (2014).
For example, one may not contract away the statute of
limitations in a case alleging a violation of the New Jersey Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.
Rodriguez, supra, 225 N.J. at 364-65. Nor may one diminish by
contract "a statutorily imposed duty," nor execute "a pre-injury
11 A-1156-14T4
release from liability for intentional or reckless conduct."
Stelluti, supra, 203 N.J. at 303. Exculpatory agreements for
negligent conduct also "violate public policy in a variety of
settings, such as in residential leases or in connection with
rendering professional services." Hojnowski, supra, 187 N.J. at
333 (citations omitted).
IV
Plaintiff raises public policy concerns in the areas of
premises liability and the WCA. "[P]ublic policy does not
demand a per se ban against enforcement of an exculpatory
agreement based on the mere existence of a duty recognized in
the common law in respect of premises liability." Stelluti,
supra, 203 N.J. at 306. "To properly balance the public-policy
interests implicated . . . one must consider the nature of the
activity and the inherent risks involved." Id. at 310.
In Stelluti, our Supreme Court concluded that exercising at
a health club had inherent risks. Thus, the health club
reasonably limited their liability with respect to negligence
claims arising from exercise-related activities through an
exculpatory agreement. Id. at 311-13. The health club,
however, "could not exculpate itself from . . . reckless or
gross negligence." Id. at 312. Moreover, the Court noted it
was "not address[ing] the validity of the agreement's disclaimer
12 A-1156-14T4
of liability for injuries that occur on the club's sidewalks or
parking lot that are common to any commercial enterprise that
has business invitees." Id. at 313.
The present case does not involve inherently risky
behavior. Plaintiff was injured while attempting to walk down a
flight of stairs, in the normal course of his job duties, on the
premises of his employer's commercial client. This case is thus
distinguishable from Stelluti, and more akin to a typical
premises liability case involving a business invitee.
The applicable legal standard is:
In New Jersey, "[b]usiness owners owe to
invitees a duty of reasonable or due care to
provide a safe environment for doing that
which is in the scope of the invitation."
That is because business owners "are in the
best position to control the risk of harm.
Ownership or control of the premises, for
example, enables a party to prevent the
harm." It follows that . . . the risk of
loss should fall on the party best suited to
avert injury.
[Hojnowski, supra, 187 N.J. at 335
(alteration in original) (citations omitted)
(first quoting Nisivoccia v. Glass Gardens,
Inc., 175 N.J. 559, 563 (2003); and then
quoting Kuzmicz v. Ivy Hill Park Apartments,
Inc., 147 N.J. 510, 517 (1997)).]
Also, unlike Stelluti, this case does not involve an
invitee waiving the right to sue for premises liability directly
with the business owner. Rather, this case arises from an
agreement between plaintiff and his employer, with plaintiff
13 A-1156-14T4
having waived potential negligence claims against unidentified
third parties. As a customer of Allied Barton, defendant is
clearly a third-party beneficiary of the agreement. See
Broadway Maint. Corp. v. Rutgers, State Univ., 90 N.J. 253, 259-
60 (1982). Plaintiff was unaware of the nature of the risks he
was undertaking when he signed the disclaimer because he did not
know who Allied Barton's clients were. He therefore could not
know of the working conditions he might encounter while working
at facilities of clients of Allied Barton.
The disclaimer also creates a disincentive for defendant to
maintain a safe workplace for contractors working on its
premises. Defendant concedes the area in which plaintiff was
injured was accessible by relatively few of its own employees.
Where the company is otherwise insulated from liability through
a disclaimer such as the one at issue, the company has a reduced
incentive to maintain a safe workplace for its contractors.
To the extent plaintiff waived his right to recover for
reckless or intentional conduct, the disclaimer is also invalid
as against public policy. Stelluti, supra, 203 N.J. at 303.
Defendant contends plaintiff did not waive such rights, because
the disclaimer only addresses claims covered by the WCA, and
claims of reckless and intentional misconduct are not covered by
the WCA. We do not construe the WCA's "intentional wrong"
14 A-1156-14T4
exception as broadly as defendant suggests.
Under the "intentional wrong" exception, the remedy
provided by the WCA is exclusive, with the exception of injuries
resulting from an employer's "intentional wrong." N.J.S.A.
34:15-8. This exception "must be interpreted very narrowly"
for the purpose of furthering the "underlying quid pro quo
goals" of the WCA. Mabee v. Borden, Inc., 316 N.J. Super. 218,
226-28 (App. Div. 1998). To satisfy the narrow exception, our
Supreme Court requires "an intentional wrong creating
substantial certainty of bodily injury or death." Van Dunk v.
Reckson Assocs. Realty Corp., 210 N.J. 449, 452 (2012).
Thus, conduct that would be considered reckless or
intentional under general tort law may result in injuries
covered by the WCA and thus unlawfully waived by the disclaimer.
V
The next question presented is whether plaintiff's waiver
is congruent with the WCA. In interpreting a statute, a court's
goal is to effectuate the Legislature's intent. N.J. Div. of
Child Prot. & Permanency v. Y.N., 220 N.J. 165, 178 (2014).
"The starting point of all statutory interpretation must be the
language used in the enactment." Ibid. "An enactment that is
part of a larger statutory framework should not be read in
isolation, but in relation to other constituent parts so that a
15 A-1156-14T4
sensible meaning may be given to the whole of the legislative
scheme." Wilson ex rel. Manzano v. City of Jersey City, 209
N.J. 558, 572 (2012).
"If the statutory language is clear and unambiguous, and
reveals the Legislature's intent, we need look no further."
Farmers Mut. Fire Ins. Co. of Salem v. N.J. Prop.-Liab. Ins.
Guar. Ass'n, 215 N.J. 522, 536 (2013). "Only when faithful
adherence to the words of the statute leads to more than one
plausible interpretation or to an absurd result or to a result
at odds with the objective of the overall legislative scheme do
we look to extrinsic sources, such as legislative history."
Y.N., supra, 220 N.J. at 178.
The WCA was enacted in 19112 "to address the variety of
difficulties workers encountered in attempting to recover in
tort against their employers for work-related injuries," by
creating a no-fault system of compensation for workers injured
in the course of their employment. Estate of Kotsovska ex rel.
Kotsovska v. Liebman, 221 N.J. 568, 583 (2015).
The WCA is "social legislation designed to place the cost
of work-connected injury on the employer who may readily provide
for it as an operating expense." Hersh v. Cty. of Morris, 217
2
Act of Nov. 4, 1911, ch. 95 (codified as amended at N.J.S.A.
34:15-1 to -142).
16 A-1156-14T4
N.J. 236, 243 (2014) (quoting Livingstone v. Abraham & Straus,
Inc., 111 N.J. 89, 94-95 (1988)). As "remedial social
legislation," it "should be given liberal construction in order
that its beneficent purposes may be accomplished." Kotsovska,
supra, 221 N.J. at 584 (quoting Cruz v. Cent. Jersey
Landscaping, Inc., 195 N.J. 33, 42 (2008)).
Our Supreme Court recently held a contract limiting the
statute of limitations in a LAD case was contrary to the public
policy of New Jersey, stating:
And the anti-discrimination public policy to
be fulfilled through LAD claims may not be
contractually curtailed by a limitation on
the time for such actions. The waiver
provision at issue in this matter is
therefore unenforceable as to the LAD.
[Rodriguez, supra, 225 N.J. at 364-65.]
Similar to the WCA, "the LAD is remedial legislation" that
should "be liberally construed 'in order to advance its
beneficial purposes.'" Smith v. Millville Rescue Squad, ___
N.J. ___, ___ (2016) (slip op. at 19) (quoting Nini v. Mercer
Cty. Cmty. Coll., 202 N.J. 98, 115 (2010)).
New Jersey workers' compensation law recognizes that an
employee may have two employers, both of which may be liable for
compensation. Hanisko v. Billy Casper Golf Mgmt., Inc., 437
N.J. Super. 349, 360 (App. Div. 2014); see also Wunschel v. City
of Jersey City, 96 N.J. 651, 663 (1984) (stating the "joint
17 A-1156-14T4
employer doctrine" may be used to establish "employment status
for the purposes of workers' compensation"). In such cases, the
employee is barred from maintaining a negligence action against
either employer. New Amsterdam Cas. Co. v. Popovich, 18 N.J.
218, 225 (1955).
"[I]f a finding of joint employment is made, one joint
employer may sue a co-employer for contribution in the event it
refused to pay its pro rata share." Conway v. Mister Softee,
Inc., 51 N.J. 254, 259 (1968). The co-employers' contractual
relationship, however, may affect any right of indemnification,
Domanoski v. Borough of Fanwood, 237 N.J. Super. 452, 459 (App.
Div. 1989), or subrogation, New Amsterdam Cas. Co., supra, 18
N.J. at 228.
The Division of Workers' Compensation has "exclusive
original jurisdiction of all claims for workers' compensation
benefits." N.J.S.A. 34:15-49(a). Thus, our Supreme Court has
recognized the forum best suited to decide the joint employment
relationship is the workers' compensation court. Wunschel,
supra, 96 N.J. at 664.
"New Jersey has developed its special-employee doctrine by
adopting the three-prong test recommended by Professor Larson
for establishing a special-employment relationship." Volb v.
G.E. Capital Corp., 139 N.J. 110, 116 (1995); see also Arthur
18 A-1156-14T4
Larson et al., Larson's Workers' Compensation Law (2016).
When a general employer lends an employee to
a special employer, the special employer
becomes liable for workers' compensation
only if:
(a) The employee has made a contract of
hire, express or implied, with the special
employer;
(b) The work being done is essentially that
of the special employer; and
(c) The special employer has the right to
control the details of the work.
When all three of the above conditions are
satisfied in relation to both employers,
both employers are liable for workmen's
compensation.
[Hanisko, supra, 437 N.J. Super. at 360
(quoting Blessing v. T. Shriver & Co., 94
N.J. Super. 426, 430 (App. Div. 1967)).]
As to the first factor, "[a]n employee's consent is required
because the employee loses certain rights along with those he
gains when he enters a new employment relationship. Most
important, the worker loses the right to sue the special
employer at common law for negligence." Murin v. Frapaul
Constr. Co., 240 N.J. Super. 600, 608 (App. Div. 1990). Of
these three factors, the most important is whether the special
employer "had the right to control the special employee's work."
Volb, supra, 139 N.J. at 116. Two additional factors may also
be considered: (1) whether the special employer pays the
19 A-1156-14T4
employee's wages; and (2) whether the special employer "has the
power to hire, discharge or recall the employee." Hanisko,
supra, 437 N.J. Super. at 361 (quoting Blessing, supra, 94 N.J.
Super. at 430).
Thus the type of relationship between plaintiff, defendant,
and Allied Barton has been recognized and accommodated within
the WCA for decades, perhaps as far back as 1937. See Wood v.
Market-Arlington Co., Inc., 15 N.J. Misc. 272, 274 (Dep't Labor
1937). In 1967, we discussed the concept of joint employers in
a context similar to this case, where a company hired security
guards and supplied them to work guarding other businesses'
worksites. Blessing, supra, 94 N.J. Super. at 427-28.
We are not persuaded by a decision of the Supreme Court of
Pennsylvania, Bowman v. Sunoco, Inc. 65 A.3d 901, 910 (Pa.
2013), or one from the District of Columbia Court of Appeals,
Brown v. 1301 K St. Ltd. P'ship, 31 A.3d 902, 908 (D.C. Cir.
2011), which found Allied Security's workers' compensation
disclaimer enforceable. These decisions do not reflect a
consideration of our State's history concerning joint employers,
nor the policy underpinning our State's workers' compensation
statute. Both lead us to a different conclusion regarding the
workers' compensation disclaimer.
20 A-1156-14T4
VI
Defendant argues that, if the denial of summary judgment is
not reversed, a new trial is nevertheless required because the
court erred in not charging the jury on plaintiff's comparative
negligence. We agree.
In its answer, defendant asserted a defense of comparative
negligence, and it pursued that theory at trial. In his opening
statement, defense counsel argued plaintiff may have fallen due
to his own negligence in entering the stairwell without turning
on the light. During the charge conference, however, the trial
court granted plaintiff's motion for a directed verdict on that
issue, finding no evidence to support a conclusion that
plaintiff had been negligent. Thus, in his closing, defense
counsel conceded plaintiff was not negligent, contrary to
counsel's opening argument.
Thereafter, the trial court denied defendant's post-trial
motion for a new trial, which was based in part upon the court's
refusal to charge comparative negligence. The court stated:
As to the issue of the inference of
comparative negligence, the only . . . piece
of evidence that is being suggested as the
basis is the fact that the lights were off.
I don't know how that would allow a jury to
infer that he tried to go down the steps in
the dark. You know, even if there had never
been anything on the steps. . . in any of
his other journeys, it just seems illogical
to assume that somebody -- or even infer
21 A-1156-14T4
that somebody would go down into a pitch
black -- what was it three or four o'clock
in the morning. . . , no windows, no lights,
no nothing, without turning the light on.
. . . .
. . . [T]he evidence was that there was
this bag that appeared to have been knocked
over on the step from its position. . . .
There was a ladder. There was an extension
cord.
. . . .
So the single piece of evidence
available to the jury as to . . . how Mr.
Vitale might have fallen down would be,
well, the light was off. Well, I don't know
that that in any way reasonably infers that
he was negligent.
. . . .
. . . [T]he only piece of evidence that
we have in the record is the light switch
being off at the time. There is no way a
jury can . . . reasonably infer that he
attempted to negotiate the steps in the
pitch black. How is he going to find what
he's looking for in the basement if he
doesn't turn the light on? It just doesn't
make any sense.
. . . [Y]ou're asking a jury to infer
that somebody would go down an entire flight
of stairs with a door at the end of it in
the dark. Why would they infer that? Why
would anybody infer that?
. . . .
. . . How would you reasonably infer
someone would be unreasonable? I don't know
that you should or could, but it would be
pure speculation.
22 A-1156-14T4
Under Rule 4:40-1, a party may make a motion for a directed
verdict "either at the close of all the evidence or at the close
of the evidence offered by an opponent." A motion for directed
verdict must be denied if, "accepting as true all the evidence
which supports the position of the party defending against the
motion and according him the benefit of all inferences which can
reasonably and legitimately be deduced therefrom reasonable
minds could differ." Potente v. Cty. of Hudson, 187 N.J. 103,
111 (2006) (quoting Monaco v. Hartz Mountain Corp., 178 N.J.
401, 413 (2004)). "[W]e apply the same standard that governs
the trial courts." Frugis v. Bracigliano, 177 N.J. 250, 269
(2003).
"New Jersey law favors the apportionment of fault among
responsible parties." Boryszewski v. Burke, 380 N.J. Super.
361, 374 (App. Div. 2005), certifs. denied, 186 N.J. 242 (2006).
"[A]n employee's contributory negligence is generally available
as a defense when the employee sues a third person in an
ordinary negligence action." Kane v. Hartz Mountain Indus.,
Inc., 278 N.J. Super. 129, 150 (App. Div. 1994), aff'd o.b., 143
N.J. 141 (1996). Under the Comparative Negligence Act (CNA),
N.J.S.A. 2A:15-5.1 to -5.8,
In all negligence actions . . . in which the
question of liability is in dispute, . . .
for negligence resulting in injury to the
23 A-1156-14T4
person . . . the trier of fact shall make
the following as findings of fact:
(1) The amount of damages which would
be recoverable by the injured party
regardless of any consideration of
negligence or fault, that is, the full
value of the injured party's damages.
(2) The extent, in the form of a
percentage, of each party's negligence
or fault. The percentage of negligence
or fault of each party shall be based
on 100% and the total of all
percentages of negligence or fault of
all the parties to a suit shall be
100%.
[N.J.S.A. 2A:15-5.2(a).]
"The guiding principle of our State's comparative fault system
has been the distribution of loss 'in proportion to the
respective faults of the parties causing that loss.'" Brodsky
v. Grinnell Haulers, Inc., 181 N.J. 102, 114 (2004) (quoting
Blazovic v. Andrich, 124 N.J. 90, 107 (1991)).
To assert a defense of comparative negligence, "there must
be evidence in the record from which a legitimate inference may
be drawn that plaintiff's conduct was negligent and that his [or
her] negligence was a proximate cause" of his injuries. La
Morgese v. Kern-O-Mix, Inc., 82 N.J. Super. 581, 586 (App. Div.
1964). Although a defendant must produce some evidence, "the
quantum of evidence required to qualify for an apportionment
charge is low." Boryszewski, supra, 380 N.J. Super. at 384.
24 A-1156-14T4
Here, plaintiff had an obligation to exercise reasonable
care by using his own faculties to observe and avoid dangerous
conditions. See, e.g., Berger v. Shapiro, 30 N.J. 89, 99 (1959)
("If the guest is aware of the dangerous condition or by a
reasonable use of his [or her] faculties would observe it, the
host is not liable."). Arguably, a slight piece of evidence
supported the conclusion that plaintiff acted negligently by
proceeding in the dark. When Schaffer found plaintiff at the
bottom of the stairs, the stairwell light was off and the
stairwell was pitch black. Schaffer was able to turn on the
light without falling down the stairs. Thus, plaintiff may have
voluntarily negotiated the staircase landing in the dark. From
this slim evidence, the jury could infer plaintiff was negligent
in not immediately turning on the stairwell light, causing him
to trip over a hazard that he otherwise would have been able to
avoid, resulting in his fall down the stairs.
Significant countervailing evidence indicates plaintiff
tripped over an object negligently stored at the top of the
stairwell before he had the opportunity to turn on the light,
and the object was no longer at the top of the stairwell when
Schaffer entered. Further, plaintiff's failure to immediately
turn on the light would have been contrary to his normal
practice. As the trial court noted, an attempt to negotiate the
25 A-1156-14T4
basement steps in complete darkness would have been
unreasonable. This factual dispute, however, should have been
resolved by the jury rather than the court.
Based on the existing evidence of plaintiff's negligence,
albeit slim, the trial court erred in granting plaintiff's
motion for judgment on the issue of comparative negligence, and
the court should have charged the jury on that defense.
We thus reverse the judgment and remand for a new trial on
liability only, at which plaintiff's comparative negligence
should be considered by the jury. The verdict on damages need
not be retried. See Ogborne v. Mercer Cemetery Corp., 197 N.J.
448, 462 (2009) ("When the damages award is not tainted by the
error in the liability portion of the case and is fairly
separable, retrial need not include the issue of damages.").
VII
Defendant argues a new trial is warranted based upon the
trial court's admission of Schaffer's lay opinion testimony as
to the cause of plaintiff's fall. We review evidentiary rulings
for an abuse of discretion, and should not reverse unless "there
has been a clear error of judgment." State v. Nantambu, 221
N.J. 390, 402 (2015) (quoting State v. Harris, 209 N.J. 431, 439
(2012)). Here, Schaffer's testimony was merely a repetition of
what was introduced into evidence, without objection, by way of
26 A-1156-14T4
Schaffer's investigative report. See R. 2:10-2 (stating an
appellate court may "notice plain error not brought to the
attention of the trial" court only if "it is of such a nature as
to have been clearly capable of producing an unjust result").
No abuse of discretion occurred.
At trial, over defense counsel's objection, Schaffer was
permitted to testify as to his belief that plaintiff tripped
over the clutter at the top of the stairs. On direct
examination by plaintiff's counsel, Schaffer was questioned
about the special incident report that he prepared after
plaintiff's accident. In the course of that questioning, the
following testimony was elicited:
Q. Under "Incident Caused By" you wrote
"clutter entrance." What did you mean by
that?
A. That's what I meant, cluttered, meaning
those items that we were talking about
before. Obviously it caused the accident.
MR. GOLD: Objection.
THE COURT: I will overrule it if it's
obvious to him, he's the eyewitness.
. . . .
THE COURT: It's his observation.
BY MR. ROTHENBERG:
Q. -- you can continue.
A. So, . . . that's why I put down clutter
27 A-1156-14T4
incident, okay. I saw that bag and the --
and the stuff up there, you know. You're
trying to get down the stairs and the light
was out.
Q. You then wrote, "Reason for Incident,"
and it says "unknown." What did you mean by
that?
A. . . . . I don't know why it happened. I
didn't know why he went down the stairs,
okay. So, it was unknown why the situation
occurred. Why did he take the keys? Why
did he have to go downstairs? I don't know.
So, that's why I put it down.
Q. But as [to] what caused him to fall you
believe it was the cluttered --
A. Yeah, the clutter --
MR. GOLD: Objection.
THE WITNESS: -- and stuff.
MR. GOLD: -- leading.
THE COURT: Well, I will -- I will overrule
the objection, it has already been asked and
answered. You can continue.
Thereafter, defense counsel cross-examined Schaffer
regarding his opinion, and the subject was covered again on re-
direct and on re-cross, with Schaffer explaining that he
believed plaintiff tripped over the bag of ice melt, because the
bag had been knocked over, down a few stairs.
Post-trial, defendant moved for a new trial, in part based
upon the court's alleged error in admitting Schaffer's lay
opinion as to the cause of plaintiff's fall. The court denied
28 A-1156-14T4
the motion, finding Schaffer had testified only as to his
observations and reasonable inferences from his observations.
Under N.J.R.E. 701, lay opinion is admissible if the
testimony "(a) is rationally based on the perception of the
witness and (b) will assist in understanding the witness'
testimony or in determining a fact in issue." "Pivotal to the
admissibility of N.J.R.E. 701 evidence is perception acquired
through the senses." In re Trust Created by Agreement Dated
Dec. 20, 1961, 194 N.J. 276, 283 (2008).
Schaffer's testimony that plaintiff had tripped and fallen
over a bag of ice melt was rationally based on his perception of
the scene. When Schaffer discovered plaintiff at the bottom of
the stairwell, he saw a bag of ice melt knocked down a few steps
and observed other items stored at the top of the stairwell.
His testimony was not speculative nor did his testimony negate
the possibility that plaintiff stumbled and fell for some other
reason, as argued by defendant. Schaffer's impressions were
significant because he was first on the scene and obligated to
complete a report regarding the incident. See, e.g., State v.
LaBrutto, 114 N.J. 187, 199-202 (1989) (holding the
investigating police officer could testify as a non-expert,
based on his own observations, as to the point of impact of two
cars in an automobile accident case). Significantly, the
29 A-1156-14T4
testimony did not produce an unjust result because Schaffer's
testimony was a repetition of the information contained in his
investigative report.
Affirmed in part, reversed in part and remanded for further
proceedings. We do not retain jurisdiction.
30 A-1156-14T4