June 11, 2008
ROBERT ERVING LUBE, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 argued that defense counsel invoked the jury's sympathy in his closing argument when he stated:
[T]he mere happening of an accident, the mere occurrence where someone is injured, is not, in and of itself, an establishment or a proof that someone else was negligent, and that's a very important concept to understand, because when someone comes up to anyone and says, "I've been injured and I want you [sic] money. I want your possessions. I want to take your house," they must back up the allegations to establish that. [Id. at 419 (emphasis added).]
Plaintiff's counsel immediately objected and defense counsel responded that it was "an analogy." Id. at 419. The court then stated before the jury: "As long as the jury knows that it was being used as an analogy as opposed to something that would probably happen." Ibid. The court then indicated to the jury that it would give further instructions on the law of damages and what should be considered in assessing damages. Ibid. We reversed and remanded for a new trial after finding that defense counsel attempted to create a false impression that defendants were uninsured. Id. at 421.
In Haid, plaintiff was a pedestrian struck by an automobile as she was crossing a street in a crosswalk. 45 N.J. Super. at 549. There, we found that defense counsel repeatedly engaged in questions and practices that "were so improper and so pervaded the proceedings to the probable detriment of plaintiffs, that the verdict should not be allowed to stand." Id. at 549. Defense counsel's most egregious comment during summation was as follows:
The only person here, I might add, who can possibly get anything out of this case is the plaintiff. The defendant can't get a dime. He loses whether you help him or not. He has already been put to the expense of bringing me in here, coming here himself -- [Ibid.]
Plaintiff's counsel immediately objected and defense counsel stated, "Very well, then. I will refrain from going into that element." Ibid. The trial judge did not, however, instruct the jury to disregard the statement or give a curative charge. There, again, we reversed and remanded for a new trial, finding that defense counsel intentionally misled the jury into believing that defendant was uninsured. Id. at 554.
Neither Tomeo nor Haid is reflective of what occurred here. First, opposing counsel objected immediately in both cases. Here he did not. Second, in both Tomeo and Haid, it was determined that defense counsel was intentionally misleading the jurors, and in Haid, defense counsel's remark in summation was one incident in a course of improper conduct throughout the trial. Here, there was no course of improper conduct, nor is there anything in the record to suggest that defense counsel was intentionally misleading the jury or the court.
Defendant was disabled. If she had appeared at trial, the jury would have readily observed her disability. Naturally Green's testimony that it did not provide snow removal services in February 2004 because Clemens had an unpaid balance was necessary for Naturally Green's defense. Defense counsel's remark in summation that defendant would have to pay for plaintiff's physical therapy was harmless error. R. 2:10-2.
Plaintiff next argues that the verdict was against the weight of the evidence and that the trial court should have granted his motion for a new trial. In determining whether the trial court erred in denying plaintiff's motion for a new trial, our standard of review is articulated in Rule 2:10-1. That rule provides that, "[t]he trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. We must give due deference to the trial court's "feel of the case," that is, its regard for "the jury to pass upon the credibility of the witnesses" and whether "it clearly and convincingly appears that there was a miscarriage of justice under the law." Carrino v. Novotny, 78 N.J. 355, 360-61 (1979) (quoting R. 4:49-1(a)); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969) (holding that in reviewing the trial court's denial of a motion for a new trial, "the appellate court must give deference to the views of the trial judge").
Here, in denying plaintiff's motion for a new trial, the trial court found that defense counsel's remark in summation was fair comment and defendant's testimony regarding her disability was not unduly prejudicial to the plaintiff in this case.
We have carefully considered the record in light of plaintiff's argument on this issue, and we are satisfied that there was sufficient credible evidence presented to the jury to support the verdict. Moreover, the jury was adequately instructed to disregard any "sympathy, passion, bias or prejudice." Plaintiff has presented nothing to suggest that the jury disregarded that instruction.
Finally, Clemens has cross-appealed, arguing that, in the event the matter is remanded for a new trial, the ruling of the trial court that plaintiff was an "invitee," rather than a "social guest," should be reversed. Given our disposition here, we need not address that issue.
Affirmed. The cross-appeal is dismissed as moot.
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