McDonough v. Jorda

• Decision Date: 28 October 1986
• Docket Number: N-W
• Parties: Dennis McDONOUGH, Plaintiff-Respondent, Cross-Appellant, v. Raymond JORDA, Defendant-Third Party Plaintiff-Appellant. and Mike KNIGHT, Defendant-Third Party Plaintiff, v. Zane GREY, New Brunswick Police Department, City of New Brunswick and Ronald Gatyas and Rohoga, Inc. t/a Ale-ich, Third Party Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 338

214 N.J.Super. 338

519 A.2d 874

Dennis McDONOUGH, Plaintiff-Respondent, Cross-Appellant, v. Raymond JORDA, Defendant-Third Party Plaintiff-Appellant. and Mike KNIGHT, Defendant-Third Party Plaintiff, v. Zane GREY, New Brunswick Police Department, City of New

Brunswick and Ronald Gatyas and Rohoga, Inc. t/a

Ale-N-Wich, Third Party Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Sept. 10, 1986.

Decided Oct. 28, 1986.

Jane B. Cantor, East Brunswick, on behalf of plaintiff-appellant Jorda (Garruto, Galex & Cantor, Bryan D. Garruto, of counsel, Jane B. Cantor and Carol Gerity on the brief, Jane B. Cantor on the reply brief).

John F. Lisowski, Livingston, on behalf of cross-appellant McDonough (Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, John F. Lisowski, of counsel, Robert A. Assuncao, on the brief).

Robert J. Reilly, III, Union, on behalf of defendant-respondent Ale-N-Wich (Haggerty & Donohue, Robert J. Reilly, on the brief).

Linda K. Anderson, New Brunswick, on behalf of defendants-respondents City of New Brunswick and New Brunswick Police Dept. (James M. Cahill, City Atty., Linda K. Anderson, of counsel and on the brief).

John Brady, Eatontown, on behalf of defendants-respondents New Brunswick Police Dept. and City of New Brunswick (Richard A. Amdur, Oakhurst).

No appearance for or brief filed on behalf of defendant-respondent Grey.

Before Judges KING, DEIGHAN and MUIR, Jr.

The opinion of the court was delivered by

MUIR, Jr., J.A.D.

After a jury verdict and the trial judge's rulings on motions for new trials on liability and damages, we granted leave to appeal on the correctness of three rulings by the trial judge: (1) the denial of a motion for a new trial on liability; (2) the granting of a motion for a new trial on damages, and (3) the granting of a directed verdict in favor of the City of New Brunswick.

The action had its genesis in a brawl outside a New Brunswick tavern on the night of July 10, 1981. Plaintiff, a New Brunswick police officer, alleging injuries sustained in the brawl, sought compensatory damages from defendants Raymond Jorda and Mike Knight. Jorda, in several amended pleadings, filed counterclaims and third-party complaints. In those pleadings, he sought compensatory and punitive damages from plaintiff and from third-party defendant Zane Grey, and other individuals not directly involved in this appeal. Jorda asserted claims of negligence and intentional malicious conduct on the part of plaintiff and Grey. He also alleged violation of his civil rights under state and federal law. The third-party complaint named the City of New Brunswick as a defendant. That pleading made no specific allegations of liability against the city. During discovery, trial and this appeal, the theory of city accountability resolved into a claim of negligence in the policies and customs of city officials which placed plaintiff and Grey in a position to conduct their aggressive, wrongful behavior.

Plaintiff and Jorda also asserted claims against the tavern and its bartender for negligent serving of alcoholic beverages. See Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959); Anslinger v. Martinsville Inn, Inc., 121 N.J.Super. 525, 298 A.2d 84 (App.Div.1972). The jury found no cause for action on those claims. There is no appeal from those verdicts. The tavern and bartender have a tangential involvement in this appeal, however, as to the review of the denial of a new trial on liability.

After a five day trial, the trial judge granted a directed verdict in favor of the city, finding no viable claim under either the New Jersey Tort Claims Act or under the Civil Rights Act, 42 U.S.C.A. § 1983 (West 1981). The jury returned a verdict in favor of Jorda against plaintiff and Grey. It found that plaintiff had committed an assault and battery on Jorda and had violated his civil rights. It awarded Jorda $90,000 in compensatory damages, $150,000 in punitive damages and $25,000 in damages for the civil rights violation. It found similar liability against Grey and awarded Jorda $100,000 in compensatory damages, $175,000 in punitive damages and $25,000 in damages for the civil rights violation.

The trial judge concluded the evidence did not support the total $565,000 award and set it aside. He based his determination as to the compensatory damages awarded on the absence of any permanent injury to Jorda. He found the failure of Jorda to prove the wealth of the wrongdoers as an element of his claim fatal to the punitive damage award. (Neither the court nor trial counsel raised this issue prior to or after the jury instructions.) Coterminus with the vacation of all damage verdicts, the trial judge denied a motion for new trial on liability.

The evening of the brawl, plaintiff and several friends came to the tavern after a softball game. Plaintiff wore a softball uniform. He also carried his service revolver pursuant to City Police Department policy. Jorda, Knight and some other college students met at the tavern for a social evening. None of the participants in the brawl showed any reasonably visible signs of intoxication. Only Jorda testified to an effect from his drinking and that related to his coordination in trying to flee the scene of the brawl.

When Jorda and Knight left the tavern, Jorda took a mug of beer. The bartender followed to retrieve the mug. Plaintiff, with some of his friends, followed, ostensibly to assist the bartender. What transpired thereafter is the subject of significant variation.

Jorda and Knight testified that plaintiff and his friends precipitated the brawl. Their version essentially indicated plaintiff went after Jorda, so Knight, a football linebacker, acting to defend Jorda, punched plaintiff and two of his friends, knocking them to the ground. Plaintiff then pulled out his service revolver and badge. He identified himself as a police officer and fired at least one shot into the ground. Jorda's friends fled when the plaintiff fired his revolver. Jorda tried to flee, but plaintiff hit him and Jorda fell to the ground. While he was on the ground, several persons whom Jorda could not identify, kicked him.

Plaintiff's version of the incident identified Jorda and Knight as the aggressors. He claimed Jorda became aggressive when asked to return the beer mug and that Knight initiated the fight. He testified that upon being knocked down by Knight's punch, he stood up, identified himself as a police officer and fired a shot to "get control of the situation." He denied any knowledge of a police regulation prohibiting the firing of warning shots.

Other police officers, including Grey, came to the scene. They handcuffed Jorda and put him in the back seat of a patrol car. Jorda testified they then drove him around while Grey systematically beat him with a nightstick. Photographs were offered into evidence to show Jorda's physical condition after the brawl. Grey denied having the nightstick and denied hitting Jorda.

The emergency room report on Jorda's admission indicated he had two lacerations on the back of his head, which required stitches, and contusions of the nose and lower lip. Jorda testified that he also sustained a lump on his head the size of a grapefruit and soreness all over his body, and that he went to the doctor eight to ten times for a knotted muscle. No medical expert testified on the extent of Jorda's injuries.

The judge, in his charge to the jury, stated the jury could award Jorda damages for pain and suffering but not for any permanent injury. That charge drew no objection from Jorda's counsel.

I.

Plaintiff contends the trial judge erred in denying his motion for a new trial on liability. He argues the exorbitant amount of the damage award is evidence that the verdict was the product of passion and prejudice of the jury which also tainted the liability verdict. He further contends that inconsistencies in the testimony of Jorda's witnesses mandate the need for a new trial.

A trial court's ruling on a motion to set aside a jury verdict as against the weight of the evidence will not be reversed on appeal unless it clearly appears that there was a miscarriage of justice. R. 2:10-1. In making our assessment, we apply the same standard and must defer to the trial judge's evaluation of witness credibility and demeanor and his or her "feel of the case." Dolson v. Anastasia, 55 N.J. 2, 6, 258 A.2d 706 (1969).

The trial judge, while shocked at the magnitude of the damage award, found no basis for granting a new trial on liability. Relying on the recited criteria, we agree. However, we vacate the verdict on civil rights liability against plaintiff due to the insufficiency of the trial court's instructions to the jury.

We find no miscarriage of justice in the verdict finding plaintiff liable for assault and battery. That verdict rested essentially on the credibility of the witnesses. The witnesses gave disparate versions of what transpired. The trial judge's sense for the credibility and demeanor of the witnesses, which the jury evaluated, justified denying an application to vacate the liability determination. We conclude there is nothing in the record to warrant changing that determination.

As to the verdict on civil rights liability, we conclude the insufficiency of the trial judge's charge constituted plain error requiring a new trial on liability for plaintiff.

The entire § 1983 jury instruction, both substantive and damage aspects, came during the trial judge's explanation on the law of damages. His charge provided:

Now, in addition to the punitive damages, there is another element of damage which Mr. Jorda claims and that is damages for violation of his civil rights. This is under our Federal statute, 42 Section 1983 and I'll just read it to you in its pertinent part. 'Each person who under color of any statute, ordinance, regulation, custom, or usage of any state or territory of or the District of Columbia...