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Gonzalez v. Safe and Sound Security Corp.9/19/2005
Argued January 3, 2005
Plaintiff Antonio Gonzalez initiated a civil action against several defendants to recover damages for personal injuries that he suffered when he was shot in an apartment complex in Atlantic City. At trial, plaintiff was called to the stand by defendants but refused to testify. When ordered by the court to testify, he still refused to do so. After plaintiff openly defied the court's order, defendants moved to dismiss the complaint, asserting that plaintiff had denied them testimony relevant to their defense. The court denied the dismissal motion and instead instructed the jury that it could draw an adverse inference from plaintiff's failure to testify.
Plaintiff won a favorable verdict and substantial damage award. On appeal, the sole remaining defendant, the apartment complex owner, claimed that the court erred in not dismissing the complaint after plaintiff willfully refused to give testimony. Defendant also contended that the court erred in charging the jury and in awarding counsel fees to plaintiff. The Appellate Division affirmed the verdict and damages award. Gonzalez v. Safe & Sound Sec. Corp., 368 N.J. Super. 203, 214 (App. Div. 2004). We now reverse and hold that the trial court abused its discretion by not advising plaintiff that unless he testified, he faced the certain dismissal of his complaint.
I.
A.
On April 25, 1996, Ahmid Abdullah shot plaintiff Antonio Gonzalez in the common area of the Schoolhouse Apartments in Atlantic City. As a result of the shooting, plaintiff suffered a spinal cord injury that left him paralyzed from the mid-chest down. In 1997, plaintiff filed a lawsuit alleging that his injuries were caused by the negligence of various defendants who failed to provide adequate security to the apartment complex despite their knowledge that the complex was plagued by criminal activities. Plaintiff named as defendants (1) Atlantic City Housing & Urban Renewal Associates, L.P. (ACHURA), the owner of the Schoolhouse Apartments; (2) Safe and Sound Security Corporation (Safe and Sound), the company retained to provide security for the apartment complex; (3) Raymond Bunn, the Safe and Sound security guard on duty the night plaintiff was shot; (4) Community Realty Management Corporation (Community Realty), the company that provided management services to the apartment complex; and (5) Insignia Management Group (Insignia Management), a management company that succeeded Community Realty several weeks before the shooting. Safe and Sound filed a third-party complaint against Abdullah. Before trial, Community Realty and Insignia Management both settled with plaintiff for $100,000 each. Abdullah defaulted and judgment was entered against him.
At a jury trial in 2001, plaintiff and the remaining defendants presented evidence describing the shooting, its aftermath, and the security conditions at the apartment complex during the months leading up to and on the day of the shooting. On the evening of the shooting, plaintiff and his friend, Antoine Robinson, entered the Schoolhouse Apartments through an electronic gate after identifying themselves to a security guard in a booth. Once inside one of the buildings, Robinson became embroiled in a heated verbal exchange with Abdullah, who apparently had stepped on his sneaker. The war of words lasted three to five minutes and escalated into a fistfight. Plaintiff unsuccessfully attempted to restrain his friend from fighting. After several minutes of slugging each other, Robinson and Abdullah paused and agreed to take the fight outside. They resumed exchanging blows in a breezeway between two buildings, where twenty to twenty-five people gathered to watch. Bef
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