On this date in 2005, the Supreme Court decided Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100 (2005). The case involved a plaintiff who was shot in an apartment building in Atlantic City, which left him paralyzed. He brought a negligence suit against a number of defendants, including Atlantic City Housing & Urban Renewal Associates (“ACHURA”), the owner of the apartment building.
Some defendants settled, and the case went to a jury trial against other defendants. When plaintiff had not testified at trial, defendants served a notice in lieu of subpoena calling for him to testify on the defense case. Plaintiff moved to quash the notice, but that motion was denied.
Though plaintiff had attended the entire trial, he told the court, through counsel, that he did not want to testify. The court entered an order compelling him to testify if called to do so. But when defendants called him, he refused to testify. Defendants ought dismissal of the case as a result, but the trial judge chose instead to charge the jury that they could draw an adverse inference from plaintiff’s refusal to testify.
The jury rendered a verdict against ACHURA and two other defendants, awarding plaintiff over $2.3 million in total damages. Defendants appealed, and the Appellate Division affirmed. On further review, however, the Supreme Court reversed in a unanimous opinion by Justice Albin.
“When a plaintiff fails to honor a notice in lieu of subpoena, he subjects himself to the list of sanctions referenced in Rule 1:2-4(a), one of which is ‘dismissal of the complaint.’” After reviewing prior caselaw and factors stated there as to which sanction has been found appropriate in particular circumstances, the Court held that the trial court abused its discretion and should have dismissed the case when plaintiff persisted in his refusal to testify.
“A plaintiff cannot invoke the jurisdiction and machinery of our civil justice system, openly defy the court's authority to suit his own purposes, and expect to triumph. A plaintiff does not get to present to the jury his evidence while suppressing another party's evidence, or to pick and choose the rules he intends to follow. The defendant, as much as the plaintiff, has a right to his day in court. Because one of the essential purposes of a civil trial is the search for truth, the one who initiates that process by filing a complaint cannot be permitted to obstruct that search when it becomes unpleasant or inconvenient.”
Justice Albin stated that “there might … be extraordinary circumstances in which a party could reasonably object to complying with a lawfully served notice in lieu of subpoena.” But that circumstance was not present here. “In this case, plaintiff's defiance of the court's order was flagrant and without justification, undermined the fairness of the trial process, and prejudiced ACHURA's right to put on a defense. ACHURA was entitled to do more than just read plaintiff's deposition to the jury; it was entitled to place plaintiff before the jury to elicit his version of the events--his timeline, his knowledge of the guard's whereabouts, and his account of how his injuries altered his life.”
The Court therefore reversed and remanded for a new trial. Justice Albin’s opinion provided guidance for the retrial as to the applicable standard of care and offer of judgment issues under Rule 4:58.
