On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9234-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued April 8, 2010
Before Judges Axelrad, Fisher and Sapp-Peterson.
On August 19, 2006, plaintiff Lisa Payne was dancing with friends at Bogart's, a nightclub in the Woodbridge Hilton Hotel. Late that evening, plaintiff walked outside and, while crossing the parking lot, stepped into a pothole and fell. She commenced this personal injury suit for damages against Inn at Woodbridge d/b/a Hilton Woodbridge and Hemisphere Hotel Management (the hotel), which thereafter filed a third-party complaint against Allen Contracting, LLC (Allen), with which the hotel contracted to maintain the parking lot.
At the conclusion of a six-day trial, the jury found plaintiff and the hotel to be equally responsible; Allen was exonerated. The jury awarded nothing for plaintiff's pain and suffering, causing the judge to immediately declare that this was an "illegal verdict." Following further rebuke, the judge directed the jury to continue deliberations. The jury then awarded plaintiff $10,000 for pain and suffering and $50,000 for medical expenses. All post-verdict motions were denied and plaintiff appealed.
Plaintiff argues on appeal that the trial judge erred: (1) in instructing the jury on both plaintiff's claim for future medical expenses and comparative negligence; (2) in declining to grant a mistrial when the jury returned its initial verdict; (3) in denying plaintiff's motion for a new trial; (4) in precluding the testimony of two of plaintiff's witnesses; (5) in refusing to permit oral argument on the motion for a new trial; (6) in crafting the judgment; (7) in denying plaintiff's motion for reconsideration; and (8) in failing to remedy juror inattentiveness. In a ninth point, plaintiff argues that the cumulative effect of the other claimed errors requires a new trial. In ruling on the first three of these arguments, we conclude that a new trial is required. As a result, we need not reach plaintiff's remaining six arguments.
At trial, plaintiff claimed that the hotel and Allen had negligently maintained the parking lot. Plaintiff testified she was walking through the parking lot when she stepped in a pothole and "fell forward and [her] knees slammed the ground," causing injuries to her hands, elbows, knees, back, and neck. She was accompanied into the hotel and met with a security officer, who administered preliminary first aid and prepared an incident report. Plaintiff then went home.
The day after her fall, plaintiff was examined at a walk-in clinic. On September 18, 2006, approximately one month after the fall, plaintiff was examined by her regular physician, Dr. Allen Tiedrich, who testified that plaintiff had neck and back sprains and strains, pinched nerves in her lower back, knee sprains and strains, and internal derangement in both knees. He started plaintiff on a course of physical therapy and ordered magnetic-resonance imaging studies (MRIs) of plaintiff's knees.*fn1
When therapy provided no relief, plaintiff was referred to Dr. Matthew Garfinkel, an orthopedic surgeon, who first examined plaintiff on December 5, 2006. He determined that plaintiff had torn cartilage in both knees and irregular bone structures on the outside and inside of her right kneecap. Because plaintiff had responded poorly to therapy, Dr. Garfinkel operated first on the right knee and a few months later on the left. He also testified that these surgeries were ineffective in alleviating plaintiff's knee pain, leading to the administering of a steroid injection and the prescribing of anti-inflammatory drugs.
The forty-six-year-old plaintiff also testified about the limitations on her life caused by her injuries, including her inability to dance, one of her favorite pastimes. Her husband also testified about the impact plaintiff's injuries have had on her life.
Plaintiff also called a liability expert, who testified, based upon his review of photographs and his examination of the parking lot, that the pothole was a "longstanding condition" at the hotel that existed months before the accident.
In addition, plaintiff called two other witnesses, Alex Valcourt and Ted Garris, offered as plaintiff's occasional dance partners. When defendants objected, the judge prohibited both from testifying because Valcourt was not mentioned in answers to interrogatories and because Garris, although mentioned in answers to interrogatories, was not included in plaintiff's pretrial witness list.
The only defense witness was Dr. David Greifinger, an orthopedic expert, who testified he examined plaintiff in July 2007 and found no evidence of muscle spasms in her neck and no serious problems with her back. He also claimed MRIs revealed no tear in the meniscus of either knee, and plaintiff's ...