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Gonzalez v. Safe and Sound Security Corp.9/19/2005
r likely to be prejudiced against the party calling him. Id. at 171. By those standards, defendants would have had a reasonable basis for requesting the charge even had they not served a notice in lieu of subpoena on plaintiff's counsel. Unlike the typical setting for a Clawans charge, this case deals with a plaintiff who, despite a court order, refused to testify when called by a defendant.
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.
We understand that the trial court was attempting to balance competing interests by giving relief to ACHURA without treating plaintiff too harshly and scuttling a several-week-old trial. But not every problem lends itself to splitting the difference. Plaintiff's deliberate refusal to testify was an affront to the court's authority and so fundamentally unfair to ACHURA that plaintiff should have been advised that he was facing the immediate dismissal of his cause of action. After such a warning, if plaintiff continued to defy the court's order, then the court should have dismissed plaintiff's case. The court abused its discretion in allowing plaintiff the benefit of his chosen sanction. Plaintiff's attorney candidly acknowledged at oral argument that if this Court were to grant a new trial and his client were given the stark choice of either obeying an order to testify or dismissal of his case, he would testify. We expect other plaintiffs would do likewise. We cannot say that there might not be extraordinary circumstances in which a party could reasonably object to complying with a lawfully served notice in lieu of subpoena. We only need say that those circumstances did not present themselves in this case.
Therefore, we reverse the Appellate Division and the judgment entered in plaintiff's favor, and remand for a new trial.
III.
We next review ACHURA's claim that the trial court erred by removing from the jury's consideration plaintiff's legal status on its property. The jury was charged only on ACHURA's duty to a business invitee. The substance of the business invitee charge is not in issue. ACHURA, however, argues that the jury could have decided from the evidence that plaintiff was either a social guest or trespasser. Because ACHURA contends that a landowner owes a lesser duty of care to a social guest and trespasser than to a business invitee, it reasons that the erroneous charge led to an unjust result.
In light of our decision to reverse and remand, the trial court will decide the appropriate charge based on a new record. Nevertheless, we offer some observations to guide the court and parties at a new trial. We begin by noting that, based on the record before us, the court properly limited its instruction to the duty of care that defendants owed business invitees of the Schoolhouse Apartments.
We agree with both the trial court and the Appellate Division that there was no evidence in the record that plaintiff was a trespasser. That plaintiff and his friend were "buzzed" in to the apartment complex by the security guard makes it difficult for ACHURA to argue that plaintiff did not have a right or privilege to be there. Admittedly, there were discrepancies in plaintiff's and Robinson's accounts of who they were there to visit. That, however, does not detract from the fact
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