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Perry v. New Jersey Sports & Exposition Authority

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 12, 2008

RANDY PERRY, PLAINTIFF-RESPONDENT,
v.
NEW JERSEY SPORTS & EXPOSITION AUTHORITY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-13703-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 14, 2008

Before Judges A. A. Rodríguez, Collester and C. S. Fisher.

Plaintiff Randy Perry, a horse trainer, was injured when he slipped and fell on an accumulation of ice in front of a door to one of the barns in the stable area of the Meadowlands Racetrack complex. Perry sued a public entity, the New Jersey Sports and Exposition Authority (Authority), the owner and operator of the track. Perry alleged that the Authority had improperly maintained the barn drainage system, thereby causing a "dangerous condition" pursuant to N.J.S.A. 59:4-2, a section of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. The jury returned a verdict in Perry's favor and awarded him $1.7 million in damages. On appeal, the Authority raises challenges to several pretrial and trial rulings, and the denial of its motion for a new trial. We affirm.

Prior to trial, Judge Daniel P. Mecca denied the Authority's motion for summary judgment. Trial was conducted before Judge Brian R. Martinotti and a jury.

The evidence can be summarized as follows. Perry, who was sixty-two years old at the time of the trial, was a career Standardbred horse trainer for more than forty years. In order to obtain stall space at the complex, the Authority required trainers to fill out and sign annually a "Standardbred Racing Stall Application" listing, among other information, the names of all the horses in the care of the trainer. The agreement required trainers to enter and race the horses listed, which are "assigned free stall space," in all races for which they qualify and are eligible. Paragraph ten of the agreement provided, in part, that "[i]t is clearly understood and agreed that this is not a lease of any space, but is merely a revocable license granted by the Meadowlands only on the terms and conditions set forth." Paragraph fourteen of the agreement provided, in part, that "[t]he Applicant undertakes to keep the stabling accommodation and caretaker's quarters (including toilets) allocated to him in good and clean condition." It is undisputed that Perry completed his stall application for the 2003 to 2004 racing season.

It is also undisputed that from January 14 to 18, 2004, approximately 9.7 inches of snow fell in the Meadowlands area; that 2.3 inches of snow fell on January 18, 2004; and that during this period it was very cold, with temperatures barely rising above freezing. No snow fell on January 19, 2004.

At approximately 7:50 a.m. on January 19, 2004, Perry drove to the Meadowlands Racetrack. The roads were not icy and he had no difficulty getting to work that morning. However, Arthur Unger, another trainer, testified that the backstretch parking lot in the area of barn 4E, where he kept his horses, was icy and, as a result, he decided not to take the horses to the track that day.

Perry walked toward the trainers' or pedestrian door, which was located under a small overhang. Perry had never used this door to enter the barn because his horses were stabled on the other side of the barn. As Perry attempted to open the trainers' door, it jammed on an accumulation of ice. Perry "flew back" and fell to the ground. When Perry hit the ground, he heard a "crack" and was immediately in "a lot of pain." As Perry lay on the ice waiting for the ambulance to arrive, he looked up and noticed icicles hanging from the gutters above him.

Perry, who had been working out of barn 5E only since November 2003, testified that he had never noticed ice in front of the trainers' door, or noticed any problems with the gutters.

Several witnesses confirmed Perry's observation. Fellow trainer, Unger, testified that he saw an approximately three-and-a-half-foot-wide and three-inch-deep slab of ice blocking the door. Unger also saw icicles hanging from the overhang. According to Unger, he saw Perry "grab the [door] handle" and then "went flying in the air." Unger complained to the maintenance department that water overflowed the gutters in front of the trainers' door, like a "waterfall." He often got "soaking wet" when he entered the door.

Fellow trainer, John Brennan, testified that he arrived at the barn shortly after Perry was injured. He also saw a large slab of ice in front of the trainers' door and icicles hanging from the gutter. Brennan had complained to the maintenance department that water came out of the downspout, overflowed the gutters, and pooled in front of the door. In fact, Brennan testified that in the winter he often saw icicles hanging from the gutter above the door.

When Brennan complained about the ice accumulation by the stable door, John "Red" Fazekas, foreman of the maintenance department, would give him one or two boxes of rock salt to throw on the ice. Brennan admitted that he had, on occasion, shoveled snow from under the overhang. In response to a jury question, Brennan testified that the problem of pooled water was a problem before the accident.

Richard Balmer, an equine veterinarian, also testified that he saw a large area of "exceptionally thick" ice in front of the door to barn 5E. According to Balmer, he often saw ice in front of the barn door, describing that area as one of the two "iciest" areas of the backstretch, where water often pooled in the warm weather and froze in the winter.

Donna Perry, Perry's wife, arrived at the scene approximately forty-five minutes after the accident. She saw Perry lying on a "chunk" of ice, screaming in pain.

At approximately 12:00 p.m. that afternoon, Donna left the hospital and returned to the accident scene to take photographs. The photographs, which were admitted into evidence, depicted icicles hanging from the overhang and garbage in the cans.

Donna did not take a photograph of the ground in front of the door, although she testified that she had observed a five-to-six inches thick, large slab of ice blocking the door.

Michael Natoli, a civil engineer, testified for Perry. He claimed experience in designing drainage systems for buildings. He opined that the lack of proper maintenance of the drainage system at the stable resulted in the overflowing gutters that caused a dangerous condition, i.e., accumulation of ice blocking the door. In forming that opinion, Natoli reviewed weather reports from the time of Perry's injury and found that the conditions were favorable for the development of water runoff from the roof of the stable. He noted that from January 14 to 18, 2004, about 9.7 inches of snow had fallen in the area of the accident, and of that amount-despite the cold weather conditions due to direct sunlight hitting the snow on the roof-approximately eight inches had melted from the roof. This melting snow was channeled into the drainage system.

Natoli also visited the site and concluded that the one-story stable had a "primitive drainage system," which drained water from the roof into gutters that flowed into vertical leaders or downspouts. He explained that:

[b]y not having those systems capable of properly draining the water, all this water that melted and came off the roof then came onto the ground surface, with flows accumulating in front of the door, which built up to a point that the door was unable to be opened and, as a result, [Perry] was caused to be injured.

When Natoli visited the site in May 2004, he saw that the area in front of the stable door was wet. Natoli also reviewed several photographs of the barn, taken in the winter, that showed icicles hanging from the gutters and icy conditions in the walkway areas. He opined that the presence of the icicles indicated "a leakage condition within the gutter."

Natoli testified that there were "a multitude of codes that talk about [that allowing] icy conditions is dangerous." All the codes "basically talk about [the fact that] the area should be maintained." He opined that, "[i]t's a common knowledge thing. Certainly most property owners understand that."

According to Natoli, it would have taken "a great deal of time" for the ice to build-up to the point that it blocked the door. Furthermore, Natoli opined that the dangerous condition could not have been caused by freezing rain, because freezing rain generally creates a "glaze over an area," and not a buildup of ice. Additionally, he noted that the "overhang [above the door] is pretty much shielded," and therefore very little, if any, ice in the form of precipitation would accumulate in front of the door as a result of inclement weather.

The Authority did not present any expert testimony at trial. Instead, it relied upon the testimony of two of its employees, Louis Lombardi and John Chevalier, who were responsible for maintenance in the backstretch area. Lombardi testified that he reported to the complex at approximately 5:00 a.m. on January 19, 2004, to salt the grounds. He drove a spreader dump truck and salted the area in front of the barn at approximately 5:40 a.m.

Chevalier, a vice president of the racetrack area properties, testified that the trainers, not the maintenance department, were expected to remove any snow or ice that had accumulated under the overhangs and in front of the stable doors. He explained that the maintenance department did not clear the ice and snow from underneath the overhangs because it had "to be done simultaneously." Once the track opened, all the trainers wanted to get the horses out at the same time, creating "just too much" work for maintenance to handle. Chevalier also testified that he had never received any complaints about gutter leaks or water conditions causing ice to build up in the area near barn 5E. He admitted, however, that the maintenance department was responsible for replacing downspouts.

Ira Esformes, M.D., Perry's treating physician and expert in the field of orthopedics and orthopedic surgery, opined that Perry sustained "a significant permanent disability," namely the full use of his right leg and knee, as a result of his fall on January 19, 2004. Perry suffered a compound fracture of his right femur, along with injuries to his right knee. Both injuries required surgical repair. Thirty-five years earlier, Perry had suffered a fracture of his hip, requiring surgical installation of a plate and screws into his right femur to hold the bones in place. The hardware, which was still in place at the time of the accident, had to be removed prior to repairing Perry's fractured femur. Esformes removed the old hardware from Perry's right femur, placed a bone graft in the holes, and then installed a new plate with wires and screws.

Esformes opined that Perry had sustained a "pathological fracture," which he explained simply means "that something else is going on in the bone besides the normal type of fracture." In this case, that "something else" was a cystic lesion at the site of the fracture, which comprised approximately twenty-five percent of Perry's bone. Esformes concluded that the fracture was caused by the fall, not the cystic lesion.

After the surgery, Perry remained in the hospital for approximately one week. Esformes described the surgical procedure as an "extensive operation," noting that there is a "tremendous amount of trauma[,] . . . pain, [and] bleeding" associated with it. He testified that a fractured femur generally results in "exquisite" or a "horrible type of pain."

After Perry was released, he was instructed not to place any weight on his leg for three months. Perry had to walk with the aid of crutches, and underwent months of physical therapy.

In June 2004, Perry was examined by Esformes. Esformes observed that Perry's right leg was approximately one inch shorter than his left leg. He discovered that Perry had torn some cartilage in his right knee when he fell. Esformes performed arthroscopic surgery on Perry's knee to repair the cartilage and to remove scar tissue. The surgery was only partially successful. Esformes concluded that Perry would never regain full use of his knee.

In July 2005, Esformes examined Perry and observed that the patient had suffered "more shortening of his leg," because his right leg was one-and-a-half inches shorter than his left. This caused Perry to suffer an altered gait, which exacerbated his prior back injury. Esformes also discovered that the plate and screw installed in January 2004 had shifted away from Perry's bone, thereby requiring additional surgeries.

Perry testified that after the accident, he walked with a limp; was only able to walk short distances; and could not participate in many of the activities he had previously enjoyed, including training horses, gardening, shopping with his wife, and deep sea fishing.

Charles Kincaid, Perry's expert in vocational rehabilitation, opined that Perry, who had left school in the eleventh grade, was not employable due to the nature of his injuries. Perry had earned approximately $1,000 per week prior to the accident.

Following the verdict, the Authority moved for a new trial or a judgment notwithstanding the verdict (JNOV). Judge Martinotti denied the motion in a written opinion. The Authority appealed. While the appeal was pending, the Authority moved for a temporary remand to enable the trial court to consider testimony Perry gave in a related Workers' Compensation Claim. We denied this request. No. M-6888-06 (App. Div. August 20, 2007).

On appeal, the Authority contends that the judge should have granted a new trial or granted a JNOV because Perry "failed to establish that any actionable defect existed with respect to the gutter system." Specifically, it argues that the testimony of expert Natoli constituted an impermissible net opinion; that Perry did not establish a breach of a legal standard or duty of care with respect to the roof drainage; and that "there is no legal liability for icicles upon, or caused by the presence of, a building or structure." We disagree.

In determining both a motion for an involuntary dismissal and a motion for a JNOV, the trial court must accept as true all evidence that supports plaintiff's position and must accord plaintiff the benefits of all legitimate inferences which can be deduced therefrom. If reasonable minds could differ, the motion must be denied. Dolson v. Anastasia, 55 N.J. 2, 5 (1969). See also Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441 (2005); Verdicchio v. Ricca, 179 N.J. 1, 30 (2004); Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 415 (1997). "The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Dolson, supra, 55 N.J. at 5-6.

We apply the same standard. Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000); Sons of Thunder, supra, 148 N.J. at 415. Thus, we will disturb a jury's verdict only upon a finding that "the jury could not have reasonably used the evidence to reach its verdict." Sons of Thunder, supra, 148 N.J. at 415.

An exception to the general rule of public entity immunity is found in N.J.S.A. 59:4-2, which concerns dangerous conditions on public property. Thus, in order to recover pursuant to the TCA, Perry had to prove: (1) the area in front of the trainers' door was in a dangerous condition that caused a foreseeable risk of injury and actual injury to him; (2) the Authority created the risk of injury by negligently maintaining the drainage system, or had notice of the dangerous condition and failed to prevent it; and (3) the Authority's conduct was palpably unreasonable. Coyne v. DOT, 182 N.J. 481, 489 (2005); Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 125 (2001). Perry had the burden of proving each of these elements. Muhammad v. N.J. Transit, 176 N.J. 185, 194 (2003).

After a careful review of the record, we conclude that Perry presented ample evidence from which a reasonable jury could have found that the area in front of the trainers' door was in a dangerous condition, i.e., a "condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1a. The "used with due care" standard "refers not to the conduct of the injured party, but to the objectively reasonable use by the public generally." Garrison v. Twp. of Middletown, 154 N.J. 282, 291 (1998).

We also conclude that Perry established that the Authority created the risk of injury by negligently maintaining the drainage system, or had actual or constructive notice of the dangerous condition and failed to prevent it. N.J.S.A. 59:4-2a and b. He did this by presenting opinion testimony by Natoli and fact testimony from three fellow trainers. The latter recounted complaints to the Authority about accumulation of ice in front of the trainers' door on several occasions prior to Perry's fall.

Natoli, a civil engineer who had designed drainage systems, was clearly competent to testify and offer an opinion as to the Authority's maintenance of the drainage system. Natoli's unrebutted testimony was supported by the evidence provided by fact witnesses, photographs of the site shortly after the accident, and his own field observation. His testimony supported a finding of negligent maintenance.

The case of Felter v. Hasbrouck Heights Bldg. Loan & Sav. Ass'n, 135 N.J.L. 129, 130 (E. & A. 1947), cited by the Authority, is distinguishable. In that case,

The complaint was grounded on alleged negligence in permitting a certain gutter or leader to become and remain stopped up and in a state of disrepair and as a result thereof, water flowed over the sidewalk, froze and the female plaintiff slipped and fell as a result thereof. It is settled law, needing no citation of authority, that the burden is upon the plaintiff to establish facts from which negligence may be inferred. The record in this case discloses no evidence of disrepair. The undisputed testimony is to the contrary. The complaint was not grounded on the theory of faulty construction, nor was there any proof thereof. The evidence was that the leader was clogged up with ice and there was no evidence as to how long that condition had existed. In this state of the evidence, it was error for the trial court to submit the question of negligence to the jury. [Id. at 130.]

In contrast, here there was evidence presented by Perry that the Authority had negligently maintained the drainage system, and this condition had existed for a long period. If credited by the jury, this would establish that the Authority had created a dangerous condition by negligently maintaining the drainage system. N.J.S.A. 59:4-2a.

Alternatively, Perry also presented sufficient evidence to establish that the defendant had actual or constructive notice of the dangerous condition and failed to prevent it. N.J.S.A. 59:4-2b. In McGowan v. Borough of Eatontown, 151 N.J. Super. 440, 448 (App. Div. 1977), the plaintiff alleged that water accumulated on the highway because of improper drainage and froze, causing him to crash. A police officer testified that the State had been notified of icy conditions on a number of occasions, and that the condition would occur whenever the road was wet and cold enough to freeze. Ibid. We held that these facts created a legitimate inference of constructive notice in that "the condition would re-occur under predictable circumstances," thereby giving the State sufficient time to correct the defect that permitted it to occur. Ibid. See also Milacci v. Mato Realty Co., 217 N.J. Super. 297, 302 (App. Div. 1987) (holding that the jury could infer constructive notice when conditions described as "accumulation of sand and dirt" on floor indicated that condition existed for some time).

Here, Balmer testified that he often saw ice in front of the barn door, describing that area as one of the two "iciest" areas of the backstretch, where water often pooled in the warm weather and froze in the winter. Brennan had also lodged complaints with the maintenance department about the ice buildup in front of the barn door. Likewise, Unger had complained to maintenance that water would overflow the gutters like a "waterfall." Thus, there was ample evidence that the dangerous condition "had existed for such a period of time and was of such an obvious nature that [the Authority], in the exercise of due care, should have discovered the condition and its dangerous character." N.J.S.A. 59:4-3b.

Perry produced evidence that, if credited by the jury, would result in a finding that the Authority's conduct was palpably unreasonable. The term "palpably unreasonable" has been defined by our Supreme Court as "behavior that is patently unacceptable under any given circumstance." Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985). For conduct to be palpably unreasonable, "it must be manifest and obvious that no prudent person would approve of its course of action or inaction."

Ibid. Palpable unreasonableness is a question of fact, and therefore is generally left for the jury to determine. Vincitore, supra, 169 N.J. at 130.

Next, we reject the Authority's argument that the court erred in denying its motions for an involuntary dismissal and JNOV because Perry failed to establish that defendant owed it a legal duty. The issue of whether a duty exists is generally a question of law for the court to decide, and is largely a question of fairness or policy. Jerkins v. Anderson, 191 N.J. 285, 294 (2007); Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 401 (2006); Lewis v. Am. Cyanamid Co., 155 N.J. 544, 578 (1998); Carvalho v. Toll Bros. & Developers., 143 N.J. 565, 572 (1996). The TCA establishes the elements of a public entity's duty with respect to a dangerous condition on its property, which Perry satisfied.

The Authority also contends that the motion judge and the trial judge improperly focused upon potential negligence or fault, instead of immunity. Specifically, it argues that, "[i]n New Jersey, immunity will 'trump' public entity liability" and "the claim that responsibility for precipitation on a roof is not within the common law immunity constitutes a novel cause of action." The Authority further contends that "[t]he common law immunity with respect to snow and ice claims requires judgment on behalf of the Authority."

We disagree. The motion and trial judge applied the statutory law correctly.

It is true that the TCA re-established sovereign immunity after common law immunity had been abrogated by the Supreme Court in Willis v. Dep't of Conserv. & Econ. Dev., 55 N.J. 534, 540-41 (1970). See Velez v. City of Jersey City, 180 N.J. 284, 289 (2004); Smith v. Fireworks by Girone, Inc., 180 N.J. 199, 207 (2004); Rossi v. Borough of Haddonfield, 297 N.J. Super. 494, 498 (App. Div.), aff'd o.b., 152 N.J. 43 (1997). The "dominant theme" of the TCA is to re-establish the immunity of all governmental bodies in New Jersey, subject only to the TCA's specific liability provisions. Smith, supra, 180 N.J. at 207; Fielder v. Stonack, 141 N.J. 101, 117 (1995). In balancing the liability and immunity provisions of the TCA, "immunity is the rule and liability the exception." Posey v. Bordentown Sewerage Auth., 171 N.J. 172, 181 (2002). The burden of proof for establishing immunity rests with the public entity. Bligen v. Jersey City Hous. Auth., 131 N.J. 124, 128 (1993).

Dangerous conditions of public property is an exception to the general grant of immunity. We are mindful that the TCA follows the principle that "[n]either a public entity nor a public employee is liable for an injury caused solely by the effect on the use of streets and highways of weather conditions." N.J.S.A. 59:4-7. That section was inapplicable here, however, because the accident did not occur on the street or highway, nor was the condition caused solely by the weather. Bligen, supra, 131 N.J. at 129; Lathers v. Twp. of W. Windsor, 308 N.J. Super. 301, 303 (App. Div.), certif. denied, 154 N.J. 609 (1998); Meta v. Cherry Hill, 152 N.J. Super. 228, 232 (App. Div.), certif. denied, 75 N.J. 587 (1977); McGowan, supra, 151 N.J. Super. at 447.

Nonetheless, a public entity is also entitled to common law immunity for negligent snow removal activities, as established in Miehl v. Darpino, 53 N.J. 49, 54 (1968). That immunity was not abrogated by the TCA. Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 414 (1988). See also O'Connell v. N.J. Sports & Exposition Auth., 337 N.J. Super. 122, 132 (App. Div.) (common law immunity for snow removal activities of public entities has long been recognized and exists even though TCA immunities may not apply), certif. denied, 168 N.J. 293 (2001).

Here, in denying defendant's motion for a JNOV, Judge Martinotti correctly applied the second Bligen exception, finding that because defendant was a commercial landlord it was not entitled to common law immunity for snow removal activities. Moreover, consistent with other Appellate Division case law, we recognize Bligen as a narrow exception to the snow removal immunity established by Miehl. See O'Connell, supra, 337 N.J. Super. at 133; Lathers, supra, 308 N.J. Super. at 305.

Additionally, in denying the Authority's motion for summary judgment, the court accepted Perry's argument that his injuries were caused by the Authority's negligent maintenance of the drainage and not negligent snow removal activities, thereby removing its conduct from the common law immunity exemption. As stated in Rochinsky, supra, 110 N.J. at 415 n.7, the Supreme Court held that a cause of action "unrelated to snow removal activity," might be maintained under N.J.S.A. 59:4-4, if the public entity's conduct amounted to a "palpably unreasonable failure to warn of a dangerous condition."

A helpful example illustrative of this point is the recent unpublished Appellate Division decision in Chambers v. Twp. of Howell, No. L-102-05, 2007 WL 2005032, (App. Div. July 12, 2007). In that case, the plaintiff, a school bus driver, slipped and fell on ice while walking in the school bus parking lot. Id. at *1. The trial court granted the defendants' motion for summary judgment, determining that they were protected by the common law immunity for public entities for snow removal. Id. at *4. We held that the plaintiff's expert had failed to establish a "causal connection between the parking lot drainage and [plaintiff's] fall." Ibid. We noted that the expert had testified that the application of salt to ice caused a heating action, which when combined with the low temperatures and lack of a drainage system, refroze the melting substance and caused a dangerous condition. Ibid. However, the expert failed to evaluate the area in terms of drainage or water retention, and made no attempt to establish drainage parameters. Ibid. Moreover, the plaintiff had admitted that the parking lot was covered in a thin layer of black ice. Id. at *4. Thus, the conditions about which plaintiff complained could not be separated from the icy condition produced by the inclement weather. Ibid.

In contrast, here no snow had fallen on the date of the accident, and Perry claimed that the roads were not icy and he had no difficulty getting to work that morning.

The Authority also contends that "[t]he agreement between the parties contains a valid exculpatory clause with respect to the preclusion of the present cause of action." We are not persuaded.

Paragraph twelve of the stall agreement provides:

The Meadowlands shall not be liable or responsible for any injury or loss caused or suffered in any manner by or to the horse or horses or equipment or personnel of the Applicant, while the said horses are on or off the premises or while being transported in any manner on or off the premises, whether caused by the conditions of the premises, by the negligence of any agent of the Meadowlands or otherwise.

Perry argued the Authority was responsible for injuries he sustained, as he was the "applicant," and not personnel of the applicant. Judge Mecca agreed and found that the stall agreement did not absolve the Authority of liability for injuries to Perry.

Contracts are generally given their plain and ordinary meaning. Highland Lakes Country Club & Cmty. Ass'n v. Franzino, 186 N.J. 99, 122 (2006). When the terms of an agreement are susceptible to at least two reasonable alternative interpretations, the language is ambiguous. Id. at 122. "Whether a term is clear or ambiguous is . . . a question of law." Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997) (quoting Kaufman v. Provident Life & Cas. Ins. Co., 828 F. Supp. 275, 282 (D.N.J. 1992), aff'd, 993 F.2d 877 (3d Cir. 1993)). "When a contract term is ambiguous, th[e] rule of contract interpretation requires a court to adopt the meaning that is most favorable to the non-drafting party." Pacifico v. Pacifico, 190 N.J. 258, 267 (2007).

Here, the Authority drafted the stall agreement. It limited its non-liability to claims of injury or loss "to the horse or horses or equipment or personnel of the Applicant." If the Authority had intended to exclude liability for damages or losses caused or suffered by an applicant, it should have included such a provision. Thus, the plain language of the contract amply supports Judge Mecca's legal conclusion.

Finally, the Authority contends that "[t]he jury verdict was against the weight of the evidence and constituted a miscarriage of justice; alternatively, the court should order remittitur."

We disagree. The evidence did support the verdict on liability. As for damages, the Authority argues that the $1.7 million verdict for a "broken leg" was excessive. However, in denying the motion for a new trial on damages, Judge Martinotti found that:

[d]espite the fact that this verdict may have been higher than anticipated, in light of the facts unique to this case, Plaintiff's demeanor and credibility while testifying (in fact plaintiff almost came to tears during cross-examination) and the unrebutted liability, medical, and employability evidence, the Court cannot say that the verdict is "so disproportionate to the injury and resulting disability shown as to shock [the] conscience and to convince [the Court] that to sustain the award would be manifestly unjust."

We should not interfere with jury damage awards unless so disproportionate to the injury as to shock the conscience. Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977). See also Mahoney v. Podolnick, 168 N.J. 202, 229 (2001); Carey v. Lovett, 132 N.J. 44, 66 (1993); Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). "A trial court should set aside excessive verdicts only in 'clear cases.'" Caldwell v. Haynes, 136 N.J. 422, 431-32 (1994) (quoting Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970)). "In assessing whether the quantum of damages assessed by the jury is excessive, a trial court must consider the evidence in the light most favorable to the prevailing party in the verdict." Caldwell, supra, 136 N.J. at 432. On appeal, we give due regard to the trial court's feel for the case. Boryszewski, supra, 380 N.J. Super. at 391.

Finally, the Authority argues that the jury may have been improperly influenced by allegedly improper testimony by Esformes that the newly installed hardware had shifted away from the bone. However, Esformes's testimony was admitted without objection after he indicated that he made a mistake by referring to the July 2006 x-ray report. Esformes testified that a July 21, 2006 x-ray, taken just five days earlier, revealed that the hardware was pulling away from the bone. Defendant objected on the basis that Esformes did not refer to the 2006 x-ray in his report, and because "there's nothing in his report about hardware pulling away."

The judge sustained the objection and gave the jury a curative instruction, advising them that the testimony had been stricken and that they could not consider it in their deliberations. However, immediately thereafter, Esformes explained that he had chosen the wrong x-ray, and testified, without objection, that the August 2004 x-ray revealed that the plate was "migrating off the bone." Thus, there was no indication that the jury had been improperly influenced by admission of this evidence.

Affirmed.

20080812

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