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Nessler-O'Neill v. E & M Associates

April 13, 2009


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0384-04.

Per curiam.


Argued November 10, 2008

Before Judges Lisa, Sapp-Peterson and Alvarez.

This is an appeal and cross-appeal in which plaintiff appeals from a $200,000 verdict following a bench trial arising out of a slip and fall on premises (the property) owned by defendant, E & M Associates, and leased by defendant, Marty Sussman, Inc., d/b/a Marty Sussman BMW/Honda (collectively defendants). Defendants cross-appeal the trial court's calculation of prejudgment interest. Defendants, in their cross-appeal, urge that the court misapplied the prejudgment interest rule. We affirm the judgment awarded to plaintiff as well as the court's award of $25,969.22 in prejudgment interest.


The events giving rise to the trial court's verdict occurred on February 15, 2002, when plaintiff fell on the property located in Egg Harbor. On February 5, 2004, plaintiff filed a complaint against defendants in which she alleged that as a result of the fall, she sustained injuries to her back, ankle and foot. At trial, the primary factual dispute related to the causal connection between plaintiff's claimed injury to her back and the fall.

Three days after the accident, plaintiff presented to the Atlantic Shore Orthopaedic Associates (Orthopaedic Associates) and was treated by Dr. Daniel Dalzell, who prescribed a right ankle brace, a left knee brace and crutches. He also prescribed physical therapy three times per week for two weeks. According to Orthopaedic Associates' records, plaintiff's next visit to the office was on July 31, 2002, at which time plaintiff was seen by Dr. Daniel DeMeo, another orthopaedic surgeon in the practice. Dr. DeMeo testified that he diagnosed tarsal tunnel syndrome in plaintiff's right foot and performed surgery on plaintiff for this condition on October 31, 2002. During plaintiff's post-operative visits, plaintiff continued to complain of pain in her right leg, ankle and foot that also radiated into her buttocks and lower back. Dr. DeMeo ordered an MRI of plaintiff's lumbosacral spine that was performed on November 5, 2003. The MRI revealed "disk bulge" with "moderate to severe bilateral neural foramen narrowing" at L3-4, an "annular fissure resulting in severe left neural foramen narrowing and moderate to severe right neural foramen narrowing" at L4-5, and a herniation at L5-S1.

Plaintiff, based upon her consultation with her regular physician and in consultation with Dr. DeMeo, came under the care of Dr. Robert A. Sabo, a neurosurgeon. At Dr. Sabo's recommendation, plaintiff twice underwent epidural steroid injections that provided no relief to her. On February 23, 2004, Dr. Sabo performed an L3-S1 "posterior lumbar interbody fusion with laminectomy and instrument arthrodesis" -- rods and screws. Despite continued physical therapy, plaintiff's complaints were not alleviated and her symptoms increased.

Plaintiff next underwent re-operative fusion, during which the existing hardware was removed and replaced with new and larger hardware, along with additional bone from her hip. This second surgery also failed to alleviate plaintiff's pain in her lower back. Additionally, she developed gait dysfunction secondary to foot drop of her right foot. She testified that she continues to experience sensitivity in both her right foot and the portion of her spine where the fusion surgery was performed. As a result of the surgery, she also sustained permanent scarring, three on her back and one on her ankle. Although plaintiff, prior to the accident, had been declared totally disabled due to a pulmonary condition, she led an active life that included performing her own home repairs, landscaping, re-shingling her roof, stained glass art and wood crafts projects, running, walking, hiking, biking, rowing, kayaking, Tai Bo, kickboxing, caring for her dogs and fishing. According to plaintiff and the several witnesses who testified on her behalf and with whom plaintiff maintained long-standing relationships, the residuals of the accident and two surgeries left her essentially housebound.

The medical experts, including defense experts, who testified, agreed that plaintiff's injuries to her right foot and ankle were causally related to the accident. They also agreed that plaintiff's disk herniation at L5-S1 was causally related to the accident. Dr. Greenwood, the defense expert who also testified on behalf of plaintiff, disagreed that the bulging disks at L3-4 and L4-5, with moderate spinal stenosis, were causally related to the February 15, 2002 accident. In his opinion, these bulges were consistent with pre-existing degenerative disk disease.

At the conclusion of the trial, the court rendered an oral opinion. On the question of liability, the court found that defendant was 100 percent liable for the resulting accident, but that plaintiff had failed to prove defendant's actions were wanton and willful. As to damages, while the court was satisfied that plaintiff had met her burden in establishing that she sustained injuries that were causally related to the accident, the court concluded that plaintiff had "not met her burden by a preponderance of the evidence that all her current ailments are attributable to the fall . . . ." The court determined that "the sum of $200,000 will fairly and reasonably compensate the plaintiff for injuries and damages she sustained at the defendant's property . . . ."

Plaintiff moved for reconsideration. During oral argument, plaintiff's counsel argued:

There was no testimony anywhere that any of her complaints now are not related to the surgery. The surgery, both surgeries in this case are causally related to one or two herniated dis[k]s, and I believe Your Honor found there were two dis[k]s that were, that were caused by the fall. So, again, just using legal logic, if you have the injury that is then treated, and the treatment doesn't cure the problem, it doesn't - if you want to say, well, she had to have a second surgery, yeah; but the treatment didn't cure the problem, and her present problems are from what she got ...

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