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. Landau, J.s.c. (temporarily assigned), dissenting.
Plaintiffs Paul Philip Lesniak, an infant, by his parents and guardians ad litem Zbigniew Lesniak and Barbara Lesniak, and Zbigniew Lesniak and Barbara Lesniak, individually, appeal from a judgment of the Law Division entered on a jury verdict against defendant County of Bergen that awarded the infant plaintiff $150,000 and his parents $20,000.
Plaintiffs seek a reversal of the judgment and a remand for a new trial limited to the issue of the damages awarded the infant plaintiff. They contend that: (1) the jury instructions concerning the infant plaintiff's future pain, suffering and disability were erroneous; (2) the trial court erred in failing to charge the jury with respect to the infant plaintiff's loss of future earning capacity, and (3) the damages awarded were insufficient and against the weight of the evidence. 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 the compensatory damages awarded 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 plaintiffs' contentions.
Plaintiffs argue that the charge with respect to the infant plaintiff's future pain, suffering and disability was erroneous and that, as a result, the jury rendered a verdict which was
grossly inadequate. Plaintiffs ground this claim of error on the basis of two passages taken from the entire charge. One passage provides:
Now, as I've told you, you're not to speculate. You can't -- you can determine that there was permanent injury based on the evidence in this case. For example, if a doctor testifies that based on medical probability something will not get any better and will stay the same, then you may determine based on that evidence that that's permanent injury or disability. Do not speculate as to permanent injury as distinguished from finding permanent injury based on evidence in this case.
The other portion of the charge cited by plaintiffs deals not with the issue of permanency, but rather with speculation. This passage states:
It's not enough for a plaintiff to prove a mere possibility that a particular injury or claimed item of damage resulted from the accident. Speculation is not enough. It must be shown that the injury and damages were the natural and probable consequences of the accident. In any event, the damages to be awarded in this case are compensatory damages as distinguished from punitive damages. You cannot consider anything by way of punishment in awarding compensatory damages.
Plaintiffs argue that, taken together, these two instructions "heighten[ed] the jury's sensitivity about the speculative nature of an infant's future damages [and] served to link permanency to speculation, thereby undermining the jury's task of evaluating medical prognosis which is inherently less than certain." Additionally, plaintiffs maintain that the trial court's definition of permanent injury as one which "will not get any better and will stay the same" confused the jury. According to plaintiffs, defining permanent injury in this manner was tantamount to having told the jury "not to award damages for [the infant plaintiff's] injury or any of his resulting disabilities unless medical experts testified they were to remain for the rest of his life fully as debilitating as at the time of trial." Plaintiffs also allege error because, in their view, the trial court's definition would preclude a recovery for permanent injury for any condition for which future medical expenses were allowed. Plaintiffs' argument is that if a jury awarded damages for future medical expenses, they must have believed that the proposed treatment would improve the infant plaintiff's condition and,
therefore, that the condition did not constitute a permanent injury as defined by the trial court.
Initially, it should be noted that a finding of error cannot be predicated on an isolated segment of a charge as plaintiffs urge here. Rather, "the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). See State v. Council 49 N.J. 341, 342 (1967); Jurman v. Samuel Braen, Inc., 47 N.J. 586, 592 (1966). Our review of the charge shows that, on several occasions, the trial court alluded to the notion of permanency. It specifically instructed the jury to consider whether plaintiff's "future ability to function physically and mentally" would be impaired by a permanent injury. Moreover, the trial court indicated that any award must compensate the infant plaintiff for any damages which "can reasonably be expected to continue into the future." Thus, even if, contrary to our findings, the passages quoted by plaintiffs are susceptible of the interpretation they espouse, the remainder of the charge would lead an ordinary juror to believe that injuries which continue into the future are compensable even though they will improve with treatment. See Ellis v. Caprice, 96 N.J. Super. 539, 546 (App.Div.1967), certif. den. 50 N.J. 409 (1967) ("the ultimate test of the soundness of the instructions to the jury is not what the ingenuity of counsel can, at leisure, work out the instructions to mean, but how and in what sense, under the evidence and the circumstances of the trial, ordinary jurors would understand the instructions as a whole").
Moreover, plaintiffs' contention that the trial court intended to supply the jury with a formal, binding definition of "permanent injury" is untenable. When the trial court felt it necessary to define certain concepts for the jury, it did so in clear and unambiguous language. Thus, when using the terms "disability" and "impairment," the trial court noted, "Disability or impairment means worsening, weakening, or loss of faculties, health, or ability to participate in activities." (Emphasis
supplied). Furthermore, the trial court's choice of words makes clear that in addition to defining the concept of permanency in broad terms, it was trying to explain, by way of example, what type of ...