On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Michels, Skillman and Landau.
The opinion of the court was delivered by MICHELS, P.J.A.D.
Defendant Paul Olson appeals from a portion of a final judgment of the Law Division that awarded plaintiff Katherine Battista, individually, and as Administratrix ad Prosequendum of the Estate of William Battista, III, deceased, compensatory damages in the sum of $30,000.
Plaintiff instituted this wrongful death action under N.J.S.A. 2A:31-1 et seq. seeking: (1) compensatory damages against defendant Borough of Leonia (Leonia); (2) compensatory and punitive damages against defendants Leonia and police officers Carney Cross, Todd Cieslak and Olson; and (3) compensatory damages against defendants John Crawbuck, Marion F. Crawbuck and George Crawbuck, for the death of her son, William Nicholas Battista, III, (Battista) on January 12, 1982. Plaintiff alleged that Battista's death resulted from defendants' negligent failure to summon medical assistance, despite having a duty to aid and knowledge of Battista's perilous condition.
Following trial, the jury found defendants Leonia, Cieslak, Olson and John Crawbuck negligent. However, because they determined that proximate causation had not been established as to defendant John Crawbuck, the jury apportioned 33% of the fault for decedent's death to Leonia, 17% to Cieslak and 50% to Olson. In addition, the jury fixed full compensatory damages to be awarded plaintiff at $60,000. Finally, Olson's negligence was found to be intentional, willful, wanton and/or malicious, and, accordingly, he was assessed punitive damages of $1,000,000.
After various challenges to the propriety of the jury verdict were made by Olson, final judgment was entered: (1) approving a settlement agreement entered into by plaintiff and Olson accepting the jury verdict in the amount of $1,000,000 for punitive damages; and (2) finalizing judgment in favor of plaintiff and against Olson in the amount of $30,000, together with interest thereon, for compensatory damages.
Olson now appeals solely from the compensatory damage award. He contends that the jury's award of compensatory damages was the result of passion, prejudice and mistake and was contrary to the weight of the evidence. He also argues that the trial court erred (1) in refusing to grant a mistrial which had been sought because of the appearance during trial of two newspaper articles discussing the case and because of the alleged misconduct of the jurors, and (2) in submitting the issue of damages to the jury.
We have carefully considered the record in light of the arguments presented and are satisfied that the evidence in support of the jury verdict with respect to compensatory damages is not insufficient, that the trial court's ruling on the motion for a new trial does not constitute a manifest denial of justice and that all issues of law raised are clearly without merit. R. 2:11-3(e)(1)(B)(C) and (E). However, further comment may be helpful with respect to some of defendant's contentions.
Preliminarily, we note that Olson has raised the issue of the impropriety of the jury's compensatory damage verdict for the first time on appeal. Although motions seeking a judgment notwithstanding the verdict or, in the alternative, a new trial on behalf of Cieslak and Olson were made after the jury verdict, no allegation was made therein that the jury's award of compensatory damages was against the weight of the evidence. Rather, the motions alleged that the trial court had erred in submitting the issue of punitive damages to the jury and that the jury's award of punitive damages was against the weight of the evidence. The issue of punitive damages is not, however, a ground raised in this appeal.
With respect to the appeal and review of matters dealing with jury verdicts, our court rules specifically provide:
In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law. [R. 2:10-1 (Emphasis supplied)].
This rule has been reaffirmed by this court which has recognized that a contention "that the verdict was against the weight of the evidence is not cognizable on appeal [where] no motion for a new trial on that ground was made in the trial court." State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). Clearly, R. 2:10-1 applies here. Since Olson failed to petition the trial court for a new trial on the ground that the jury's compensatory damage verdict was against the weight of the evidence, we are precluded from considering this argument on appeal.
Moreover, even if the issue of whether the jury's compensatory damage verdict was against the weight of the evidence were cognizable on appeal, it lacks merit. The evidence presented to the jury was more than adequate to support the jury's findings that Olson was 50% negligent and that he was liable for $30,000 of the $60,000 award of compensatory damages.
Olson's failure to act, despite being present at the Crawbuck residence during the first emergency call and having received Mrs. Crawbuck's second call for an ambulance, justified the jury in finding Olson primarily negligent in causing Battista's death. The jury was warranted in assessing the specified damages against him.
We turn next to the question of whether the compensatory damage award against defendant necessitated the granting of a new trial. R. 4:49-1(a) provides that in considering a motion for a new trial, the trial judge shall grant the relief sought if "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." Because reasonable minds could accept the evidence presented at trial as adequate to support the jury's verdict, Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962); Hacker v. Statman, 105 N.J. Super. 385, 391 (App. Div. 1969), certif. den., 54 N.J. 245 (1969), the exacting standard set forth in R. 4:49-1(a) was not met in this case. There was no clear and convincing proof of a miscarriage of justice. Accordingly, even if this issue were cognizable on appeal, when the record is viewed in its entirety, the jury's compensatory damage verdict cannot be considered to be distorted or improper, in an objective sense, so as to manifest a plain miscarriage of justice. Carrino v. Novotny, 78 N.J. 355, 360 (1979); Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969).
We also reject Olson's claim that the trial court's repeated refusal to grant a mistrial constituted a mistaken exercise of judicial discretion and amounted to a manifest denial of justice under the law. Our case law has recognized that a motion for mistrial is addressed to the sound discretion of the trial court. Wright v. Bernstein, 23 N.J. 284, 296 (1957); Wyatt v. Curry, 77 N.J. Super. 1, 11 (App. Div. 1962). As the Supreme Court of
New Jersey has observed, "[t]he exercise of judicial discretion in ruling on a motion for mistrial involves the appraisal by the trial court of the probable effect of the objectionable [occurrence] on a fair trial." Runnacles v. Doddrell, 59 N.J. Super. 363, 367 (App. Div. 1960). However, the trial court must ...