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Roper v. Pessar

October 9, 2008

PAMELA ROPER, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
SAM PESSAR, INDIVIDUALLY AND/OR T/A TLC REALTY, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-507-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: September 17, 2008

Before Judges Lihotz and Messano.

Plaintiff Pamela Roper appeals from an order denying her motion for a new trial following entry of a jury verdict in this negligence action against defendant TLC Realty, L.L.C. (TLC).*fn1

The jury determined liability, apportioned fault between defendant (sixty-five percent) and plaintiff (thirty-five percent), and fixed damages for reasonable medical expenses proximately caused by the accident in the amount of $48,378.70. The jury awarded no money for plaintiff's non-economic damages claim.

Plaintiff moved for a new trial maintaining the verdict was inconsistent. The motion was denied and plaintiff filed this appeal arguing she is entitled to a new trial on all issues. Defendant disputes that the verdict is inconsistent. However, in its cross-appeal, defendant suggests if a new trial is awarded, retrial of liability and damages must be allowed. We affirm.

A jury verdict is entitled to a presumption of correctness, Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977), and a jury's evaluation of factual issues must be afforded "the utmost regard." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004). Thus, "[t]he standard for our setting aside a verdict already sustained by the trial judge is high." Horn v. Village Supermarkets, Inc., 260 N.J. Super. 165, 178 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993).

A trial court may grant a motion for a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a); Johnson v. Scaccetti, 192 N.J. 256, 280 (2007); Caldwell v. Haynes, 136 N.J. 422, 431 (1994); Baxter, supra 74 N.J. at 596. In this regard, reversal is warranted if the jury's verdict is "clearly the product of mistake, passion, prejudice, or partiality." Lanzet v. Greenberg, 126 N.J. 168, 175 (1991); Aiello v. Myzie, 88 N.J. Super. 187, 194, (App. Div.), certif. denied, 45 N.J. 594 (1965).

In correcting any clear error or mistake of the jury, the trial court may not substitute its own judgment for that of the jury merely because it would have reached the opposite conclusion. Dolson v. Anastasia, 55 N.J. 2, 6 (1969). A trial judge must "'canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict.'" Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)); Baxter, supra, 74 N.J. at 597-98.

We review a trial judge's decision on a new trial motion using the same standard. Dolson, supra, 55 N.J. at 7; R. 2:10-1. We must make our own determination as to whether there was a miscarriage of justice and defer to the trial judge only with respect to "intangible aspects of the case not transmitted by the written record[,]" namely, "witness credibility and demeanor and the 'feel of the case.'" (Pressler, Current N.J. Court Rules, comment 4 to R. 2:10-1 (2008); Baxter, supra, 74 N.J. at 597-98; Dolson, supra, 55 N.J. at 7. Beyond these "intangibles," this court is to make its own independent determination of whether a miscarriage of justice occurred. "[A]n appellate court must make allowance for factors which were evident to the trial court and jury but which cannot be gleaned from the written record." Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970); Dolson, supra, 55 N.J. at 7. Also, the verdict must be considered in the light most favorable to the prevailing party. Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971).

Additionally, "a trial 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 the conscience and to convince him that to sustain the award would be manifestly unjust." Baxter, supra, 74 N.J. at 596. The presumption of correctness of a verdict by a jury is based upon centuries of common law wisdom merged into our constitutional framework. Id. at 598. Armed with these principles, we review the evidence presented at trial.

Plaintiff lived in a second-floor apartment located in a rooming house, which defendant T.L.C. Realty, L.L.C. (TLC) had recently purchased. On September 29, 2003, while ascending the central stairway in the rooming house, between the second and third floors, plaintiff was struck on the head and hand by falling ceiling plaster. A roof leak had been patched prior to plaintiff's accident. It was undisputed that the falling ceiling plaster resulted from a leaking skylight.

After the plaster struck plaintiff, she slipped on the stairs and began to fall backward. She grabbed the banister to steady herself and struck her back against the railing. Plaintiff swept the fallen plaster and placed it into a bag. Then, she called for help. The ...


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