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Kozma v. Starbucks Coffee Co.

March 19, 2010

PHILIP KOZMA, PLAINTIFF-APPELLANT,
v.
STARBUCKS COFFEE COMPANY, LIONETTI ENTERPRISES, LLC, PAVERS PLUS LANDSCAPING, INC., DEFENDANTS-RESPONDENTS, AND LIONETTI ENTERPRISES, LLC, DEFENDANT/THIRD-PARTY PLAINTIFF,
v.
PAVERS PLUS LANDSCAPING, INC., THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4132-05.

The opinion of the court was delivered by: J.N. Harris, J.S.C. (temporarily assigned)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted February 11, 2010

Before Judges Stern, J.N. Harris, and Newman.

On March 2, 2005, plaintiff slipped and fell on ice outside of a Starbucks coffee shop in Matawan, allegedly suffering serious and permanent personal injuries. He proceeded to trial--utilizing a conventional theory of negligence--against the owner of the premises, Lionetti Enterprises, LLC; a maintenance contractor, Pavers Plus Landscaping, Inc.; and Starbucks Corporation. The jury allocated sixty percent of the negligence and proximate cause to Starbucks and the balance of forty percent to plaintiff. Lionetti and Pavers Plus were exonerated of fault for the happening of the incident. Notwithstanding that the liability scale had tipped in favor of plaintiff, the jury nevertheless unanimously declined to award plaintiff any compensatory damages.

Plaintiff's appellate brief proposes that the "only issue on appeal is whether or not appellant is entitled to a new trial on damages in view of the jury's disregard of the undisputed evidence that as a result of the accident appellant suffered [an] injury to his left knee." Furthermore, plaintiff asserts that under the posture of all the evidence presented, "the jury was not authorized to return a verdict of no damages" and "the verdict amounted to an imperious abdication of the jury's responsibility."

We disagree with all of plaintiff's contentions and recognize that because juries infuse community notions of justice into their verdicts, there is no sound basis upon which to disturb the judgment of the Law Division. Satisfied that the jury was properly instructed, we should trust its judgment. See also He v. Miller, 411 N.J. Super. 15, 35 (App. Div. 2009) (reinstating a jury verdict notwithstanding that it was "not unreasonable to conclude that the pain and suffering award missed the mark").

I.

On the date of the incident, plaintiff was fifty years of age. He was employed as a contractor, having started his construction career as a framing carpenter. In 1997, plaintiff reportedly suffered a work-related injury to his left knee. He underwent arthroscopic surgery to repair the left knee, which was later followed by a similar surgery to the right knee a few years later. From time to time, plaintiff's knees required either aspiration or injection with therapeutic fluids. He endured several years of knee problems associated with arthritis, and further suffered related neck and lower back problems, plus "some headaches behind my eye" for which he sought additional chiropractic and medical treatment.

On the day in question, after purchasing a Starbucks coffee, plaintiff walked "straight out the door which I guess led me down towards the handicap ramp. And proceeded to slip and fall on my back, twisted my leg, you know, kind of to the, straight out to the side." Moments later the police arrived, whereupon plaintiff declined an ambulance even though "I knew I was hurt." He explained that he did not want to endure a long wait in an emergency room, and that he would instead call his personal physician, which "would be to my benefit." Indeed, within an hour or two, plaintiff went to the office of Dr. Mulholland, complaining of difficulty in walking and pain in the left knee. Dr. Mulholland prescribed a knee brace, which plaintiff wore for "six weeks maybe."

For some time after the incident, plaintiff complained of pain and numbness in other areas of his body. Eventually, he sought the services of a pain management physician, Dr. Metzger, because, among other reasons, "I have, well, to put it bluntly, every waking hour I know I have a pair of testicles." Dr. Metzger prescribed a series of epidural injections "into my lower spine which dulls the nerves going to that groin area."

On cross-examination, it was revealed that after the incident, plaintiff was able to go on a fifteen-hour automobile trip to Florida and frequently drove from New Jersey to his home in the Poconos. Plaintiff also conceded that after the fall, on at least one occasion, he played two consecutive eighteen-hole rounds of golf.

At the conclusion of the testimony and closing arguments of the attorneys, the trial judge instructed the jury on the numerous issues in dispute, including compensatory damages. Approximately forty-five minutes after commencing its ...


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