November 8, 2007
LINDA ANGELO AND RONALD ANGELO, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
GAJANAND CORPORATION, INDIVIDUALLY AND T/A ENGLISHTOWN LIQUORS & CONVENIENCE, ENGLISHTOWN LIQUORS AND SIMPLY SUBS & SALADS, ENGLISHTOWN LIQUORS AND CONVENIENCE, INDIVIDUALLY, A CORPORATION OR OTHER BUSINESS ENTITY, AND SIMPLY SUBS & SALADS, INDIVIDUALLY, A CORPORATION OR OTHER BUSINESS ENTITY, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-0014-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 10, 2007
Before Judges Coburn, Fuentes and Chambers.
In this personal injury case, which arose when plaintiff Linda Angelo fell on the raised, side edge of a ramp leading into defendant's store, the jury found both sides equally at fault for the happening of the accident. Without regard to the apportionment of fault, the jury awarded Mrs. Angelo $50,000 for her pain, suffering and disability, and awarded Mr. Angelo no damages for his loss of services and marital relations. The judge rejected both plaintiffs' motion for additur or a new trial on damages and defendant's motion for judgment notwithstanding the verdict. Judgment was entered for $25,000 plus interest.
Plaintiffs appeal, arguing for a new trial on damages, but no longer seeking an additur, and defendant cross-appeals, arguing (1) it was entitled to judgment because plaintiffs' engineering expert's opinion on liability was a net opinion; (2) a new trial on damages is not warranted; and (3) if plaintiffs are entitled to a new trial on damages, defendant is entitled to a new trial on liability as well.
On January 19, 2002, Mrs. Angelo, who was in her mid-fifties at the time, drove to Englishtown Liquors, where she had been a customer for many years. A small ramp leads to the front of the store. The ramp was described in detail by plaintiffs' liability expert, a civil engineer. He noted that the paving on the left side of the ramp was flared to meet the ramp at the same elevation. The purpose of the flaring is to create a gradual change in elevation to avoid a tripping hazard. The engineer observed that the right side of the ramp was not flared, which resulted in a lip. The difference in elevation between the paving and the right side of the ramp was about four and one-half inches. He also described the right edge of the ramp as rough and worn from abrasion. With reference to various engineering standards, he opined that the difference in elevation and the non-uniform edge created a tripping hazard. The expert's opinions were received in evidence without any objection.
Although Mrs. Angelo usually approached the ramp from the front, on this occasion cars impeded that path. Consequently, she approached the ramp from the right side. As she attempted to step on to the ramp, her foot caught on the lip, and she fell to the ground. The fall caused a fracture of her right hip and multiple fractures of her wrist. An ambulance transported Mrs. Angelo to Centrastate Medical Center in Freehold.
Dr. Preschel, an orthopedic surgeon, described the hip injury as involving a displaced subcapital fracture, which means that the ball of the hip, where it joins the pelvis, was cracked and separated. He described the injury to Mrs. Angelo's right wrist as a comminuted fracture, meaning that it was fractured into multiple pieces. He also noted that the wrist had an intraarticular fracture, explaining that this fracture "went into the joint surface where the radius bone meets the multiple bones of the wrist and hand." He also noted that the fractures of the hip and wrist were displaced, which predisposes the patient to the development of arthritis in the affected areas.
Dr. Preschel delayed surgery for three days because Mrs. Angelo had a fever. He then performed a hemiarthroplasty, which involved "replacing half the surface of the joint" of the hip, and a closed reduction of the comminuted fracture. The surgeries were done at the same time under general anesthesia, after which a cast and sling were applied to her right arm and her thigh was bandaged from the top of her hip to just above her knee. After a ten-day hospitalization, Mrs. Angelo went home, where she lived with her husband and two daughters.
Mrs. Angelo was confined to bed for six to eight weeks. During that time, she had to sleep sitting up, with a foam rubber wedge, attached by velcro, between her legs to prevent her hip from dislocating. She could not get in or out of bed, bathe or change clothes without assistance. The right-arm cast was removed after about eight weeks and replaced by a smaller cast. During this period of time, Mr. Angelo cleaned his wife's hip wound daily and iced and massaged the wound to help reduce swelling.
About three months after leaving the hospital, Mrs. Angelo began a six-month course of physical therapy for both injuries. There were three sessions a week, each lasting about three hours. Mrs. Angelo described the therapy on her wrist as excruciating and the therapy for her hip as painful. After three months of therapy, Mrs. Angelo was able to walk on her own with a cane. In February 2003, Dr. Preschel found that the hip injury had left Mrs. Angelo with what he described as a "waddling-type" gate, and he noted that the movement of her right wrist was limited and that she was unable to make a full grip. In 2004, Dr. Preschel found that Mrs. Angelo's hip joint had become arthritic and that the range of motion of the hip had decreased. He expected that the restrictions in motion would increase over time as scarring progressed. In his opinion, Mrs. Angelo was likely to require a full hip replacement in about ten years. After noting the risks of surgery, he explained that this surgery would require hospitalization for about three days to a week, after which she would probably spend three weeks in a rehabilitation center, followed by several months of physical therapy and rehabilitation.
Mrs. Angelo testified that she continued to feel pain in her wrist, that she sometimes dropped things because she had difficulty gripping them tightly, that she still suffered pain in her hip and limped, especially after sitting for too long. Both she and her husband described the adverse affect of the injuries on their sexual relations and Mrs. Angelo's ability to perform household duties. On the other hand, as defendant notes, on August 15, 2002, Mrs. Angelo advised Dr. Preschel that she was walking fairly well and had started to jog without pain, a statement which was inconsistent with her testimony that she was no longer able to jog.
First we will consider defendant's arguments on the cross-appeal, beginning with its claim that the testimony of plaintiffs' liability expert should have been stricken as a net opinion. Defendant did not move for that relief until it had rested its case. After carefully considering the record and briefs, we are satisfied that this argument is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm on this point substantially for the reasons given by Judge Mullaney in his oral opinion of May 4, 2004. Nonetheless, we add the following comments.
The thrust of defendant's argument is that when its building was erected, the New Jersey administrative codes governing ramps did not require the flaring that plaintiffs' liability expert deemed necessary. However, it is well-settled that the fact that a standard is not legally binding goes to the weight of the expert's testimony and not to the standard's admissibility. Smith v. Kris-Bal Realty, Inc., 242 N.J. Super. 346, 353 (App. Div. 1990). Since the expert relied on other engineering standards, which he explained in detail and applied to the ramp in question, there was no basis on which the judge could have ruled that this was a net opinion. See, e.g., McComish v. DeSoi, 42 N.J. 274, 282 (1964). Furthermore, a trial judges decision on the admissibility of evidence, including expert opinion evidence, is entitled to deference, and is reviewed under the abuse of discretion standard. Denike v. Cupo, 394 N.J. Super. 357, 381 (App. Div. 2007).
In light of this ruling, we need not consider whether expert testimony was required to establish the defective condition of the ramp. However, we note that the answer in the circumstances of this case would appear to be no. See Berger v. Shapiro, 30 N.J. 89, 101-102 (1959). Consequently, we turn to the main issues in this case, whether the judge erred in denying plaintiffs' motion for a new trial on damages, and if he did, whether defendant is entitled to retry liability, considering first the adequacy of the damage awards.
The legal principle is well-settled:
In essence, it is that a judge should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injury and resulting disability shown as to shock his [or her] conscience and to convince him [or her] that to sustain the award would be manifestly unjust. [Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977) (citation omitted).]
Furthermore, the judgment of a jury "is entitled to very considerable respect, id. at 597, and the verdict may be upset only in a clear case, id. at 596. In reviewing a judge's refusal to grant a new trial, we are also required to respect the judge's "feel of the case," when the judge has expressed his reasons in detail. Id. at 600-601. When the judge has not discussed the evidence in detail, which is the situation here, we consider the record essentially de novo. Ibid. But in carrying out our function, we must view the evidence in the light most favorable to the party opposing the application for a new trial. Caldwell v. Haynes, 136 N.J. 422, 432 (1994).
In light of the last proposition, we must acknowledge that the jury could well have found that plaintiffs' descriptions of the amount of resulting pain, discomfort, and disability were overstated. However, defendant provided no medical evidence contrary to the opinions expressed by Dr. Preschel, and concedes that the injuries were as the doctor described them, required the surgery employed and the ensuing course of physical therapy, and that it is medically probable that Mrs. Angelo will require a complete hip replacement in about ten years.
Although the jury did not have to fully credit Mrs. Angelo's description of her pain and suffering, in light of the nature of the injuries, the course of treatment, and the future medical procedures she faces, we conclude that the damage award to Mrs. Angelo was a manifest injustice, so shocking to the judicial conscience that a new trial on her damages is warranted.
As to Mr. Angelo, we perceive no rational basis whatsoever for the failure to award him damages on his per quod claim, which the trial judge described as persuasive. We have observed that our "corrective function is more easily discharged when the jury verdict omits to make an award in a discrete category of damages where some award is manifestly appropriate . . . ." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 533 (App. Div. 2004). That is surely the situation here since Mr. Angelo was unquestionably denied his wife's services and consortium for a substantial period of time. Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 580 (App. Div. 1995), on which defendant relies, is clearly distinguishable since it involved a per quod claim of doubtful validity.
Therefore, we conclude that both plaintiffs are entitled to a new trial on damages and we turn to the last question, whether defendant is entitled to a new trial on liability as well.
In a case involving an excessive jury verdict on damages, the Court observed that there is no logical reason why the size of a damages award, standing alone, should invalidate an otherwise sound liability verdict. A "feeling" that something is amiss is an inadequate basis to upend an otherwise untainted verdict.
To justify a new trial on all issues, what is required is trial error, attorney misconduct or some other indicia of bias, passion or prejudice, impacting on the liability verdict. In the absence of such indicia, a trial court faced with an excessive damages award can only order a new damages trial, whether or not conditioned on remittitur. [footnote omitted] [Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 498-99 (2001).]
Defendant contends that Fertile only applies when the damage award was excessive. Although Fertile itself contains no such limitation, it is well-settled that when the issue of liability is close, a grossly inadequate verdict creates a "strong suspicion that the jury's determination of liability was a compromise in consideration of the reduced damage award." Rommell v. U.S. Steel Corp., 66 N.J. Super. 30, 49 (App. Div. 1961). But we have also observed that an unjustly low damages verdict does not require retrial of liability when "the court is sure the lowness of the verdict is not part of a compromise upon liability." Purpura v. Public Serv. Elec. & Gas Co., 53 N.J. Super. 475, 478 (App. Div. 1959). Furthermore, while remanding a case for retrial on damages because the award was unjustly low, we rejected defendant's request for a new trial on liability where the jury found both sides equally at fault for the happening of the accident. Petitto v. Sands Hotel & Casino, 288 N.J. Super. 304, 312 (App. Div. 1996). Since that is the situation here, and since no error occurred respecting the liability verdict, which was clearly reasonable, a new trial on liability is unwarranted.*fn1
Reversed and remanded for a new trial on damages only.