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Lube v. Clemens

June 11, 2008

ROBERT ERVING LUBE, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
JACQUELINE CLEMENS, DEFENDANT-RESPONDENT/CROSS-APPELLANT, AND NATURALLY GREEN LANDSCAPING, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6505-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 30, 2008

Before Judges Wefing and Parker.

Plaintiff Robert Erving Lube appeals from a judgment entered on February 16, 2007 dismissing the complaint after a jury found no cause for action; and from an order entered on March 2, 2007 denying plaintiff's motion for a new trial.

A summary of the facts relevant to this appeal are as follows. On February 8, 2004, plaintiff was asked to pick up a guitar case and CDs at the home of defendant Jacqueline Clemens by a friend of Clemens' son. Plaintiff slipped and fell on ice in Clemens' driveway while walking back to his car after retrieving the guitar case and CDs from the back porch. Plaintiff went to the hospital, where he was diagnosed with a fractured dislocation of his left ankle. He remained hospitalized for five days after surgery installing a plate and screws in his ankle. Plaintiff underwent a second surgery to remove the hardware. He subsequently developed post-traumatic arthritis in the ankle.

During the trial, Clemens testified by videotape because she suffers from Parkinson's Disease and her health prevented her from appearing in the courtroom. During her videotaped testimony, her counsel asked if she had difficulty walking and she responded that she had Parkinson's "so I can't walk up that hill [on the driveway] or, if it's ice." She was asked if she knew there was ice on her driveway on the day plaintiff fell and she responded that she did not. Clemens testified that when the driveway was icy, she threw salt on it. Although Clemens was at home at the time of the accident, she did not know that plaintiff was coming to her home, nor did she know that he was there and had fallen. She further testified that there was a motion sensor light on the driveway.

Defendant Naturally Green Landscaping (Naturally Green) provided snow removal services for Clemens until 2002. During the winter of 2003-04, however, Naturally Green did not provide snow removal services because Clemens had an unpaid balance from 2002.

During summation, defense counsel stated:

What plaintiff's going to indicate to you is that he needs the same level of physical therapy that he's been having since this accident for the rest of his life and that my client should have to pay for it. That's what's being presented to you, that's the argument that's going to be made to you. [Emphasis added.]

In this appeal, plaintiff argues that (1) Clemens' counsel's remarks during summation had the capacity to cause an unjust result; and (2) the verdict was against the weight of the evidence and the trial court erred in denying plaintiff's motion for a new trial.

Plaintiff argues that counsel's remark in summation inferred that Clemens was uninsured and would have to pay plaintiff's medical bills personally. He maintains that counsel's remarks, in conjunction with Clemens' testimony that she was disabled with Parkinson's Disease and Naturally Green's testimony that Clemens was unable to pay for snow removal, was prejudicial to plaintiff and caused the jury to be unduly sympathetic to her.

Initially, we note that plaintiff did not object to counsel's remark during or after summation or Clemens' or Naturally Green's testimony. Nor did he request that the remarks be struck or curative instructions be given to the jury. Consequently, the plain error standard applies. R. 2:10-2. Under the plain error standard, "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." Ibid. Not just any possibility of an unjust result will suffice. Stated in terms of its effect on a jury, the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Moreover, plaintiff's failure to object to counsel's remark during summation implies that counsel did not perceive the remark as prejudicial at the time. State v. Frost, 158 N.J. 76, 84 (1999). Failure to make timely objections deprived the trial court of the opportunity to take curative measures. State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997).

Plaintiff argues that Tomeo v. N. Valley Swim Club, 201 N.J. Super. 416 (App. Div. 1985), and Haid v. Loderstedt, 45 N.J. Super. 547 (App. Div. 1957), require reversal and remand for a new trial. In Tomeo, plaintiff was injured when she tripped and fell at a privately owned swim club. Id. at 418. When the jury returned a no cause verdict, plaintiff appealed and ...


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