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Petitto v. Sands Hotel & Casino

March 14, 1996

NALDY PETITTO, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
SANDS HOTEL & CASINO, INC., DEFENDANT-RESPONDENT/CROSS-APPELLANT, AND LYNN KORN, LISA WILLIAMS AND JOHN DOES 1-10, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.

Approved for Publication March 14, 1996.

Before Judges Pressler, Keefe and A.a. Rodriguez. The opinion of the court was delivered by Keefe, J.A.D.

The opinion of the court was delivered by: Keefe

The opinion of the court was delivered by

KEEFE, J.A.D.

Plaintiff Naldy Petitto was involved in a one car motor vehicle accident in the evening hours of January 21, 1989. A chemical analysis of her blood performed shortly after the accident revealed a .215 blood alcohol content. Plaintiff instituted suit against defendant Sands Hotel & Casino (Sands), claiming that Sands was liable for her injuries because it allegedly served her alcoholic beverages after she became visibly intoxicated. *fn1 Sands denied liability for plaintiff's injuries. It claimed that it did not serve plaintiff when she was visibly intoxicated, and that plaintiff became intoxicated after she left Sands. Alternatively, Sands claimed that, if it was found liable to plaintiff, her damages should be diminished due to her negligence in failing to wear a seat belt.

In response to special interrogatories, the jury found that Sands did serve alcoholic beverages to plaintiff when she was visibly intoxicated, and that its doing so was a proximate cause of the auto accident. The jury also found that plaintiff was negligent in becoming intoxicated, and that such negligence was a proximate cause of the auto accident. Comparative fault for the accident was allocated at 50% each. Without regard to the apportionment of fault, the jury awarded plaintiff $50,000 for her pain, suffering and disability.

As to the seat belt damage defense, the jury found that plaintiff was not wearing a seat belt and was negligent in failing to do so. It assessed 60% as the plaintiff's fault for that negligence, and further found that plaintiff's damages would have been only $20,000 had she been wearing the seat belt. Thereafter, the Judge molded the verdict and entered judgment in favor of plaintiff in the amount of $16,000 plus interest. *fn2 Plaintiff moved for a new trial on the issue of damages, or an additur. Defendant moved for a new trial on all issues if the trial court was inclined to grant any relief to plaintiff. Both motions were denied, and this appeal followed.

On appeal, plaintiff contends that she is entitled to a new trial on the issue of general damages on the ground that the award was so shockingly disproportionate to the injuries sustained that a miscarriage of Justice occurred. Plaintiff also contends that the trial Judge erroneously instructed the jury on the seat belt damage issue and that she was prejudiced by that error. Defendant cross-appeals from the denial of its motion for a new trial on all issues, but presses its appeal as to a new trial on liability only if we grant a new trial on damages.

We reverse the general money damage award as being grossly insufficient and a miscarriage of Justice. We also find that the Judge erred on the seat belt defense under the circumstances of this case. Additionally, we deny Sands' cross-appeal seeking a new trial on general liability. Suffice it to say that while there were many factual disputes concerning where plaintiff drank, how long she drank, and how much she drank, there was sufficient evidence in the record from which the jury could find that plaintiff was served alcohol at Sands after she became visibly intoxicated and that such conduct was a proximate cause of plaintiff's injuries. Dolson v. Anastasia, 55 N.J. 2, 6-8, 258 A.2d 706 (1969). As to the other issues raised by Sands alleging that a new trial on liability is warranted, we find them to be without merit and conclude that a written opinion on those issues would have no precedential value. R. 2:11-3(e)(1)(E). Therefore, we shall discuss only those issues which require reversal.

I

A new trial on damages should not be granted "unless it is so disproportionate to the injury and resulting disability as to shock the court's conscience and convince it that to sustain the award would be manifestly unjust." Tronolone v. Palmer, 224 N.J. Super. 92, 97, 539 A.2d 1224 (App. Div. 1988) (citing Baxter v. Fairmont Food Co., 74 N.J. 588, 596, 379 A.2d 225 (1977)). Although an appellate court must defer to the trial Judge on witness credibility, demeanor, and "feel of the case," it determines for itself whether the record shows that there was a miscarriage of Justice. Dolson, supra, 55 N.J. at 7. We are charged with the responsibility of diligently scrutinizing and carefully weighing the record, mindful of the caution not to become the "thirteenth and decisive juror." Id. at 6. Having observed these principles, we are clearly convinced that an award of $50,000 for the injuries sustained by plaintiff is so grossly inadequate that a miscarriage of Justice occurred. R. 2:10-1.

Dr. Iliff, one of plaintiff's treating physicians, testified by videotape. He is a specialist in oculoplastic surgery, the Director of the Division of Oculoplastic Surgery at Johns Hopkins Medical Center and an Associate Professor of Plastic Surgery and Ophthalmology.

Dr. Iliff first saw plaintiff approximately six months after the accident. She reported that she had been in an auto accident, and that she had fracture repairs to her left orbit and skull with the insertion of a plate, as well as some plastic surgery to her nose. Dr. Iliff confirmed the presence of the fractures and the presence of the plate through subsequent X-ray studies prior to performing surgery on her. He was also later able to see that the plate inserted to repair her orbit fracture had caused scar tissue, thereby complicating his attempt to correct an abnormality in plaintiff's left lower eyelid. ...


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