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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...