Editor’s Note: This story was amended 4/13/15 at 11 a.m.
The lawyer representing the town in the Cole Middle School construction trial that ended last month has filed three motions, including one asking the judge to dismiss the $240,000 award against the town.
On March 25, an eight-person jury found the town liable for creating and maintaining a private nuisance during the construction of the new Cole and the demolition of the old school building from 2009 to 2011. It awarded the six plaintiffs – Chris and Susan Lamendola, Tom Hogan and Cynthia Pelosi, and Keith and Wendy Amelotte, all homeowners on Sarah’s Trace – $80,000 apiece.
The trial lasted three weeks, but much of the case was dismissed by Superior Court Judge Bennett Gallo in the final week of the trial when he accepted the argument made by defendants that the plaintiffs’ damage and negligence claims were not admissible. That meant defendants Gilbane Construction, architect/engineer SMMA, Strategic Building Solutions, Fleet Construction, Manafort Brothers, and Aldinger & Associates were off the hook, leaving only the town and school department (as one entity) to face the public nuisance claim.
Lawyer Michael DeSisto, on behalf of the town, filed the three post-trial motions on April 3. The first asks Gallo for a “remittitur” of the jury’s award – a reduction in the amount:
“Defendant moves for a remittitur on the grounds that, in light of the evidence presented at trial, the jury award is not only speculative but unreasonable, excessive and represents the passion and prejudice of the jury.”
The town argues that the jury did not follow Gallo’s instructions that they “could not award plaintiffs money for the alleged damage to their properties.” Rather, Gallo had told the jury they must confine their decision to award monetary damage to “interference with [the plaintiffs’] physical comfort or use and enjoyment of their real estate during the times of the private nuisance [i.e. the construction].”
The town says by awarding each plaintiff family $80,000, “the jury could not have followed these instructions.”
In the second motion, the town asks Judge Gallo to strike the “prejudgment interest” on the $80,000 awards given to the plaintiffs. When a plaintiff is awarded a sum of money, interested dating to the time the lawsuit was filed is added to it. In this case, the lawsuit was filed in 2011, making the interest per plaintiff $39,600, bringing the total award per couple to $119,800.
In the motion, the town argues prejudgment interest does not apply to judgments rendered against municipalities in tort actions.
In the third motion, the town asks Gallo to grant his earlier motion to dismiss the private nuisance claim just as Gallo had dismissed the damage and negligence claims during the trial.
The town’s argument:
“The Town contends that judgment as a matter of law should enter in its favor because Plaintiffs not only failed to prove the essential elements of private nuisance but the Town is immune based on the public duty doctrine. . . . Plaintiffs failed to prove that the Town acted unreasonably in constructing the new middle school and in using vibratory rollers and large tracked equipment on the project.”
A hearing on the motions will take place in Kent County Superior Court Thursday, April 23.