Marinelli v. K-Mart Corp.

• Decision Date: 23 February 1998
• Citation: 724 A.2d 806,318 N.J. Super. 554
• Parties: Dominic MARINELLI, a minor By and Through his mother and Guardian Ad Litem, Anne Marie MARINELLI and Anne Marie Marinelli, individually, Plaintiffs-Appellants/Cross-Respondents, v. K-MART CORPORATION and Ray Clerk, a fictitious unknown employee of K-Mart, Defendants-Respondents, Kyle Ford, John McDonough and Sean McDonough, j/s/a, Defendants-Respondents/Cross-Appellants.
• Court: New Jersey Superior Court

724 A.2d 806

318 N.J. Super. 554

Dominic MARINELLI, a minor By and Through his mother and Guardian Ad Litem, Anne Marie MARINELLI and Anne Marie Marinelli, individually, Plaintiffs-Appellants/Cross-Respondents, v. K-MART CORPORATION and Ray Clerk, a fictitious unknown employee of K-Mart, Defendants-Respondents, Kyle Ford, John McDonough and Sean McDonough, j/s/a, Defendants-Respondents/Cross-Appellants.

Superior Court of New Jersey, Appellate Division.

Argued October 28, 1997.

Decided February 23, 1998.

Remanded October 13, 1998.

Resubmitted January 26, 1999.

Decided March 9, 1999.

Vincent J. Ciecka, Pennsauken, for plaintiffs-appellants/cross-respondents (Mr. Ciecka, on the brief).

James D. Butler, Jersey City, for defendant-respondent/cross-appellant Kyle Ford (George Allison, on the brief).

Crawshaw, Mayfield, Turner, O'Mara, Donnelly & McBride, Cherry Hill, for defendant-respondent/cross-appellant John McDonough (Linton W. Turner, Jr., and Tricia E. Habert, on the brief).

Monte, Sachs & Borowsky, Sea Girt, for defendant-respondent K-Mart Corporation (Thomas D. Monte, Jr., on the brief).

Murphy and O'Connor, Haddonfield, for defendant-respondent/cross-appellant Sean McDonough, rely on brief filed on behalf of respondent John McDonough.

Before Judges STERN, KLEINER and KIMMELMAN.

Remanded by the Supreme Court of New Jersey — October 13, 1998.

The opinion of the court was delivered by STERN, P.J.A.D.

This appeal involves the sale of a pellet gun to a minor in Pennsylvania and his transfer of the gun there to a New Jersey minor who shot out the eye of another New Jersey resident in New Jersey. The case is before us, on remand from the Supreme Court, to consider a choice-of-law issue not addressed in our original opinion.

I.

After a jury returned a verdict in favor of plaintiffs, Dominic Marinelli ("plaintiff") and his mother, against all defendants except K-Mart, the trial judge granted plaintiff's motion for a new trial as to "pain & suffering and disability damages" (non-economic damages), but denied their motion for a new trial on all issues. Pursuant to leave granted, plaintiffs appealed from the denial of their motion for a new trial in its entirety and from the denial of their subsequent motion for reconsideration. We also granted defendants, other than K-Mart, leave to cross-appeal from the grant of a new trial as to non-economic damages. They claimed that the verdict should be reinstated. K-Mart contended that the judgment in its favor should be affirmed.

We explained the background in our opinion filed on February 23, 1998:

Plaintiff, Dominic Marinelli, an eleven-year old, was sleeping at the home of his cousin Robert Sean McDonough ("Sean") in Cinnaminson, New Jersey when Sean accidentally shot plaintiff's left eye out with a pellet gun. The gun was bought for Sean by a seventeen-year old friend, defendant Kyle Ford ("Ford"), in Pennsylvania, and brought by Sean to the home of his father John McDonough ("John") in New Jersey. In response to specific interrogatories, the jury found (1) that K-Mart sold the gun to Ford, but that the sale was not "a proximate cause of the accident and injury," (2) that the transfer of the gun by Ford to Sean was a "proximate cause of the accident and in bringing about the injuries to plaintiff," (3) that Sean and John were negligent and that their negligence was "a proximate cause of the accident and injuries," and (4) that Ford was 10% liable, Sean 40% liable, and John 50% liable. Plaintiff was awarded damages in the amount of $206,786.06—including economic loss (future wages and medical expenses) in the amount of $127,000, past medical bills amounting to $29,786, and non-economic losses, (including "[p]ain, suffering, disability, impairment, loss of enjoyment of life, inconvenience, mental anguish and emotional distress "), in the amount of $50,000. Plaintiff's mother was awarded $5,000 for her emotional distress. Judgment in favor of K-Mart was entered on January 2, 1996, but on February 2, 1996 the trial judge ordered a new trial on noneconomic damages with respect to the remaining defendants.

(Footnotes omitted.)

After considering the issues raised, we affirmed the denial of plaintiffs' motion for a new trial on liability and the amount of damages awarded to the plaintiff mother for emotional distress. We also affirmed the grant of a new trial on non-economic damages but reversed the denial of a new trial on economic damages.

In our opinion we noted that the trial judge instructed the jury on Pennsylvania law "concerning the sale or transfer of pellet guns to minors" and "informed the jurors that if they found that K-Mart and/or Ford violated the Pennsylvania statute, [that] defendant must be found negligent as a matter of law." We further noted that, at plaintiff's request, the judge instructed the jury "that K-Mart and Ford could be held liable if the negligence of either or both was a `substantial factor' in bringing about plaintiff's injury." Accordingly, we found "no basis on which plaintiff can complain about the charge on negligence and proximate cause" with respect to the Pennsylvania defendants' sale and transfer of the gun to Sean McDonough.

In deciding the choice of law issue presented on the appeal, we also held that New Jersey's comparative negligence law was properly applied, notwithstanding plaintiff's claim that Pennsylvania law controlled. We said:

[A]pplying the appropriate "governmental-interest analysis," Veazey v. Doremus, 103 N.J. 244, 247-48, 510 A.2d 1187 (1986); accord Gantes v. Kason Corp., 145 N.J. 478, 484, 679 A.2d 106 (1996)

; Butkera v. Hudson River Sloop "Clearwater," Inc., 300 N.J.Super. 550, 553, 693 A.2d 520 (App.Div.1997), New Jersey has the "greatest interest," Veazey, supra, 103 N.J. at 248,

510 A.2d 1187, in having its comparative negligence law apply because the accident occurred here, and the innocent victim lived here. In any event, employing our comparative negligence law does not affect the distinct issues of liability and recovery of damages. Veazey, supra,; Restatement (Second) of Conflict of Laws §§ 145, 171; see also Grossman v. Club Med Sales, Inc., 273 N.J.Super. 42, 51, 640 A.2d 1194 (App.Div.1994); O'Connor v. Busch Gardens, 255 N.J.Super. 545, 547-48, 605 A.2d 773 (App.Div.1992). Moreover, plaintiffs have pointed to no conflict in the law of the two states except for the question of comparative negligence. See Grossman, supra, 273 N.J.Super. at 49,

640 A.2d 1194 ("It is only after a determination is made that there is indeed an actual conflict between the laws ... that the interests of the respective jurisdictions are analyzed"). And given the finding on liability, any error in the charge as to damages and comparative negligence is irrelevant as to K-Mart. Tindal v. Smith, 299 N.J.Super. 123, 138, 690 A.2d 674 (App.Div.),

certif. denied,

150 N.J. 28, 695 A.2d 670 (1997); Kaplan v. Haines, 96 N.J.Super. 242, 253-55, 232 A.2d 840 (App. Div.1967),

aff'd o.b., 51 N.J. 404, 241 A.2d 235 (1968). (Footnotes omitted.)

However, we added in footnote 8:

Whether plaintiffs can collect the entire judgment from Ford, subject to his ability to obtain contributions from his responsible co-defendants, is an issue not before us and which does not require any new trial or fact-finding.

Following our remand, the trial judge conducted settlement discussions and it became apparent that the issue embodied in footnote 8 of our opinion had to be resolved. Plaintiff now explains:

The Appellate Division issued its opinion on February 23, 1998, and the trial judge, John A. Sweeney, J.S.C., immediately scheduled a retrial which resulted in multiple requests for a postponement. On May 11, 1998, a settlement conference was held before the Honorable John A. Sweeney, J.S.C. At that time, Judge Sweeney and all parties agreed that the issue framed by the Appellate Division in Footnote 8, "Whether plaintiffs can collect the entire judgment from Ford, subject to his ability to obtain contributions from his responsible co-defendants, is an issue not before us and which does not require any new trial or fact-finding", was a novel issue of general public importance and that it would be in the interest of justice to have this issue resolved by the Supreme Court as soon as reasonably possible so as this matter could proceed to a settlement or final judgment. All parties agreed to waive any objections regarding timeliness of the Notice of Petition and Petition for Certification and agreed to request that the Court accept the Certification as within time and/or nunc pro tunc and have pledged to cooperate and file all necessary pleadings forthwith so as to expedite the Court's decision of the within issue which is necessary to bring this matter to a full and final completion.

On October 13, 1998, the Supreme Court granted certification and summarily remanded the matter to us "to consider the choice of law issue raised by the parties and not addressed by the Appellate Division." Marinelli v. K-Mart Corp., 156 N.J. 423, 719 A.2d 1021 (1998). Although plaintiffs (petitioners in the Supreme Court) now state that "the issue regarding whether New Jersey's or Pennsylvania's recovery of damages law should apply was never addressed by the trial court," and (even though a component of comparative negligence) was not raised before us, and hence was not raised—at least expressly—in any proceedings before the petition for certification was filed, we must now answer that question in light of the Supreme Court's remand.

A.

In order to understand the issue, we refer to some of the trial proofs as recited in our original opinion:

On the evening of June 18, 1990, plaintiff, who was eleven years old, stayed overnight at the home of defendants John and sixteen-year old Sean McDonough. Sean, whose parents are divorced and who turned sixteen just fifteen days before the accident, resided in Cinnaminson, New Jersey, with his father, John. Ford was

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