Opinion
DOCKET NO. A-3864-10T4
05-06-2013
HENRY Y. LAU AND SIEW Y. LAU, HIS WIFE, Plaintiffs-Respondents, v. KATIUSKA A. LARA, DAVID A. FIGUEROA, GABRIEL ORTIZ AND JOSE COBOS, Defendants, and SEABRING ASSOCIATES T/A THE EXCELSIOR AND EXCELSIOR II s/h/a SEABRING ASSOCIATES-EXCELSIOR I, Defendant-Appellant, and NATIONAL WHOLESALE LIQUIDATORS OF LODI, INC., Defendant-Respondent.
Richard J. Williams, Jr., argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Williams, of counsel and on the brief; Diana M. Hendry, on the brief). Rosemarie Arnold argued the cause for respondents, Henry Y. Lau and Siew Y. Lau, his wife (Law Offices of Rosemarie Arnold, attorneys; Ms. Arnold, Natalie A. Zammitti and Paige R. Butler, on the brief). Douglas V. Sanchez argued the cause for respondent National Wholesale Liquidators of Lodi, Inc. (Cruser, Mitchell & Sanchez, LLC, attorneys; Mr. Sanchez, of counsel; Eric J. Warner, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Harris, and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2481-07.
Richard J. Williams, Jr., argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Williams, of counsel and on the brief; Diana M. Hendry, on the brief).
Rosemarie Arnold argued the cause for respondents, Henry Y. Lau and Siew Y. Lau, his wife (Law Offices of Rosemarie Arnold, attorneys; Ms. Arnold, Natalie A. Zammitti and Paige R. Butler, on the brief).
Douglas V. Sanchez argued the cause for respondent National Wholesale Liquidators of Lodi, Inc. (Cruser, Mitchell & Sanchez, LLC, attorneys; Mr. Sanchez, of counsel; Eric J. Warner, on the brief). 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.
I.
A.
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.
Figueroa pled guilty to third-degree assault by automobile, N.J.S.A. 2C:12-1(c)(2), and fourth-degree leaving the scene of an accident, N.J.S.A. 2C:12-1.1. On May 2, 2008, he was sentenced to an aggregate term of five years probation and 180 hours of community service.
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.
B.
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 N.J.S.A. 2A:15-5.5 (count six). As a result of plaintiffs' motion for reconsideration one month later, the Law Division judge vacated her finding that "there is no cause of action based upon respondeat superior."
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:
David Figueroa 25%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."
[Seabring] 55%
Gabriel Ortiz 20%
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.
II.
A.
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. Davis v. Devereux Found., 414 N.J. Super. 1, 17 (App. Div. 2010), aff'd in part and rev'd in part on other grounds, 209 N.J. 269 (2012). A motion for reconsideration is analyzed in accordance with Rule 4:49-2, which provides, in relevant part, that "[t]he motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." A motion for reconsideration should be granted in the interest of justice, but is appropriate
only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or
2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.
[Dover-Chester Assocs. v. Randolph Twp., 419 N.J. Super. 184, 196 (App. Div.) (quoting Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996)), certif. denied, 208 N.J. 338 (2011).]
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." Carter v. Reynolds, 175 N.J. 402, 408-09 (2003). In order to establish respondeat superior, a plaintiff must prove that a "master-servant" relationship existed and "that the tortious act of the [employee] occurred within the scope of that employment." Id. at 409.
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. Bauer v. Nesbitt, 198 N.J. 601, 610 (2009). Because they are primarily fact-based, the court may submit a legal theory to the jury not expressly alleged in the pleadings, if all of the underlying facts have been proved. Teilhaber v. Greene, 320 N.J. Super. 453, 464 (App. Div. 1999). Thus, even if the motion court erred in conflating respondeat superior and negligent supervision, as Seabring claims, it does not follow that the court erred in ruling that the issue of respondeat superior had been pled. A liberal reading of the second amended complaint shows that plaintiffs sufficiently put Seabring on notice of a respondeat superior theory by dint of their claim that defendant was negligent "through its agents, servants, and/or employees."
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:
Oh, look, I think . . . it's very much a question of fact for a jury. And this one I'm not sure you needed experts for to decide whether or not this young man was acting within the scope of his employment in permitting a[n] . . . afterhours party on the premises, and nobody told me a tenant went to the party, so I'm assuming it excluded residents.
So that's a question the jury — that's what the jury's here for. So I'll deny your motion.
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." Carter, supra, 175 N.J. at 408-09. "The employer, having 'set the whole thing in motion,' should be held 'responsible for what has happened.'" Galvao v. G.R. Robert Constr. Co., 179 N.J. 462, 467 (2004) (quoting W. Page Keeton et al., Prosser and Keeton on Torts § 69, at 500 (5th ed. 1984)). However, "[t]o establish a master's liability for the acts of [the] servant, a plaintiff must prove (1) that a master-servant relationship existed and (2) that the tortious act of the servant occurred within the scope of that employment." Carter, supra, 175 N.J. at 409.
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 Davis, supra, 209 N.J. at 302, the Court analyzed the scope of employment test, recognizing that
Restatement [(Second) of Agency] §228(1) [(1958)] describes four factors that collectively support a finding that an employee's act is within the scope of his or her employment:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master; and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
[Restatement, supra, § 228(1).]
Conversely, an employee's act is outside of the scope of his or her employment "if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master." Id. §228(2)
[Id. at 303.]
We recognize that the act of violence involved in Davis is far afield from Ortiz's acts and omissions at the Excelsior; nevertheless, his more benign conduct was clearly outside the scope of his employment. Ortiz's decisions to allow trespassers to enter his employer's property in the wee hours before dawn, to surreptitiously permit a clandestine party in the otherwise- locked and restricted swimming pool, to allow prohibited alcoholic beverages at that gathering, and to surveil the goings-on from the front desk to ensure that the party-goers not be disturbed, were not only inconsistent with Seabring's purpose in employing him, but directly undermined the security of the building that Ortiz was hired to provide.
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 Restatement §228(2), although Ortiz's acts may have been "substantially within the authorized time and place limits" of his job, it was not by any measure "actuated" by a purpose to serve Seabring. What Ortiz did and did not do on the night in question did not originate in his effort to fulfill his assigned task. Instead, he took advantage of the position his employer placed him in to advance purely personal goals. Cf. Mason v. Sportsman's Pub, 305 N.J. Super. 482, 499 (App. Div. 1997) (respondeat superior appropriate where pub bouncer used aggressive and forceful actions to injure a patron in a misguided effort to carry out his duties and "serve the purpose of his employer in maintaining an orderly establishment").
We note that the Restatement (Third) of Agency §7.07(2) (2006) contains a different iteration of the scope of employment test:
An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer's control. An employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.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." Ibid.
B.
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.
Unfortunately, the record reflects that on the day of closing arguments, the attorneys and the trial judge "spent an hour or so going over the charge and interrogatories, [and] verdict sheet," but those discussions were in the judge's chambers and not the subject of a verbatim record, contrary to Rule 1:8-7(a). We have been unable to reconstruct what, if anything, was debated in chambers concerning 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:
[A] person who sustains bodily injuries as a result of the negligent provision of alcoholic beverages by a social host to a minor may recover damages from the social host. The availability of a self[-]served punch can be considered a negligent provision.The judge did not define the term social host.
In this case, the Plaintiffs allege that the Defendant Gabriel Ortiz while
acting in the course of his employment at the Excelsior was negligent in permitting alcohol to be consumed at the Excelsior by someone who was known or reasonably should have been known to be a minor, namely the Defendant David Figueroa.
. . . .
Now you the Jury must consider the following. That the social host, its agents, servants, or employee wilfully [sic] and knowingly allowed the consumption of alcoholic beverages by a minor, number one.
Number two, that the social host, its agent, servant, or employee allowed alcoholic beverages to be consumed by a minor under circumstances which created an unreasonable risk of foreseeable harm to the life or property of another.
Three, that the social host, its agent, servant, or employee failed to exercise reasonable care and diligence to avoid the foreseeable risk. And four that the injuries and damages sustained by the Plaintiff arose out of an accident caused by the negligent operation of a vehicle, by the minor who was allowed to consume alcoholic beverages by the social host, its agent, servant, or employee.
If you find that the above occurred then you must find that the Defendant, the Excelsior was negligent and liable for the injuries suffered by Dr. Henry Lau, an innocent third party.
Social host liability is codified in N.J.S.A. 2A:15-5.5 to -5.8. The statute provides "the exclusive civil remedy for personal injury or property damage resulting from the negligent provision of alcoholic beverages by a social host to a person who has attained the legal age to purchase and consume alcoholic beverages." N.J.S.A. 2A:15-5.6. Since Figueroa was not of legal age, the social host liability statute was inapplicable. Liability for providing alcohol to an under-aged person is governed by traditional negligence principles of the common law. Dower v. Gamba, 276 N.J. Super. 319, 328 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995).
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 Morella v. Machu, 235 N.J. Super. 604 (App. Div. 1989), governs the applicability of a social host theory of liability. In Morella, we held that absent parents may be held liable for the service of alcoholic beverages to minors by teenaged hosts where an intoxicated minor negligently thereafter operates a motor vehicle. Id. at 611. Relying on common law principles, we concluded
that the . . . parents or their agents had a duty to the public to exercise reasonable care to arrange for competent supervision of their teenagers while they were out of the state on vacation. If they failed to do so, and if that breach of duty was the reasonably foreseeable proximate cause of plaintiff's injuries, they must respond in damages.
[Ibid.]
The teaching of Morella is not that Seabring can be vicariously liable in this case for a special species of negligence called social host negligence. The inclusion of such an extraneous theory served only to create the probability of jury confusion, and constituted a miscarriage of justice. On the other hand, with properly tailored instructions, Seabring arguably could be found to be directly liable for its alleged tort of failing to properly supervise Ortiz, a theory closely aligned with plaintiffs' alternate theories of negligent hiring, training, and supervision.
C.
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. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010) (explicating the principle of invited error).
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. Lombardi v. Masso, 207 N.J. 517, 534 (2011). "[A]lthough a party who obtains summary judgment may believe he is absolutely free of the litigation . . . [the] sense of finality is just that — a feeling unsupported by the notion of what is, in fact, interlocutory." Id. at 535-36. "[C]ases continue to develop after orders have been entered and . . . judges . . . continue to think about them." Id. at 536.
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." DiCosala v. Kay, 91 N.J. 159, 170 (1982). Thus, employers are responsible for exercising a duty of reasonable care in the selection or retention of their employees where the employees are brought into contact with members of the public in the course of their employment. Id. at 169-70.
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.
D.
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.'" Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 456 (1962)). On appeal, our standard of review hews to the same as that governing the trial judge — whether there was a miscarriage of justice under the law. See Bender v. Adelson, 187 N.J. 411, 435 (2006). We defer to the trial judge's assessment of intangible factors, Jastrum v. Kruse, 197 N.J. 216, 230 (2008), but we are obliged to independently determine whether a miscarriage of justice has occurred. Borough of Harvey Cedars v. Karan, 425 N.J. Super. 155, 169 (App. Div.) (citing Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969)), certif. granted, 210 N.J. 478 (2012).
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. Cosgrove v. Lawrence, 215 N.J. Super. 561, 563 (App. Div. 1987).
A claim based on negligent hiring or negligent supervision is separate from a respondeat superior claim. Hoag v. Brown, 397 N.J. Super. 34, 54 (App. Div. 2007). "Unlike respondeat superior, negligent hiring covers [an employee's] acts committed outside the scope of employment." Ibid. An employer will only be held liable "where it knew or had reason to know of the particular unfitness, incompetence or dangerous attributes of the employee and could reasonably have foreseen that such qualities created a risk of harm to other persons." DiCosala, supra, 91 N.J. at 173. "[T]he tort of negligent hiring addresses the risk created by exposing members of the public to a potentially dangerous individual, while the doctrine of respondeat superior is based on the theory that the employee is the agent or is acting for the employer." Id. at 172.
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. R. 2:10-2. Given these errors, we have no confidence that the jury properly evaluated the respective liability of the actors and conscientiously assigned appropriate percentages of fault.
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.'" Henebema v. South Jersey Trans. Auth., ___ N.J. Super. ___, ___ (App. Div. 2013) (slip op. at 36) (quoting Ahn v. Kim, 145 N.J. 423, 434 (1996)). Seabring does not quarrel with the amount of damages awarded, and we see a clear separation of the liability issues from the admeasurement of damages. Moreover, the confounding elements of the case appear to have played no role in the jury's assessment of plaintiffs' injuries. Accordingly, only the liability issues need to be presented to a new trier of fact.
E.
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. The record supports the giving of the instruction, even if it were partially the result of acquiescence by Seabring's attorney.
We do not decide whether a spoliation charge regarding the security manual would be appropriate at a re-trial, in light of the fact that plaintiffs have now had the document and its information for more than two years.
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:
Upon request parties have a duty to provide an adversary with records or documents requested during the litigation. In this case you have heard evidence that Defendant Excelsior concealed or altered their records in the following manner, by concealing or shredding them.
The Court has determined that the Defendant Excelsior had a legal obligation to disclose certain information in this case. That evidence includes a booklet of information on building rules and regulations; the time card [for] Edgar Kobos [sic] for December 26, 2006. The time card for Jean Fabio (phonetic) on December 26th,
2006 and December 27th, the visitor's log book for the Excelsior I and II in connection with this litigation.
The Court has also determined that the evidence was material to the litigation. That the plaintiffs could not reasonably have obtained access to the evidence from another source and that the Defendant Excelsior intentionally withheld, altered or destroyed the evidence with the purpose to disrupt the litigation.
And that the Plaintiffs were damaged in the underlying action by having to rely on an evidential record that did not contain the evidence the Defendant Excelsior concealed . . . .
You have a right to infer that had the documents been produced they would have been adverse to the interest of that party, here the Defendant Excelsior. In other words, the documents would have been unfavorable to the Defendant Excelsior . . . .
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. Mason, supra, 305 N.J. Super. at 495-96. We are not so convinced.
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." Jerista v. Murray, 185 N.J. 175, 202 (2005). Such a charge should only be given if there has been a "threshold showing" that the other party recklessly caused the loss of evidence in spite of a duty to preserve it. Cockerline v. Menendez, 411 N.J. Super. 596, 621 (App. Div.), certif. denied, 201 N.J. 499 (2010). The existence of this duty is a legal issue to be decided by the court. Id. at 620.
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." Ibid. If a judge decides to give the inference, the jury must be charged that it is free to accept or reject it. Id. at 621.
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." Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002). A jury charge is "likely to mislead the jury if the evidence presented at trial does not support the instruction." Davis v. Barkaszi, 424 N.J. Super. 129, 148 (App. Div. 2012) (citing Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 13-14 (2000)).
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.
F.
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 Rule 2:4-3(c) and Rule 2:4-4(a). They argue that there was no good cause to extend the time and that they will be prejudiced because they settled with NWL based on the original notice of appeal.
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, see Infante v. Gottesman, 233 N.J. Super. 310, 319 (App. Div. 1989) (plaintiff could not appeal grant of summary judgment where he offered no objections to the motion below), it acquiesced in the grant when it did not mount a challenge as part of its new trial motion, after it had heard Cobos's testimony.
G.
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.
We reject all of Seabring's other arguments as meritless. R. 2:11-3(e)(1)(E).
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I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION