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Suliga v. Sorrentino

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 20, 2010

ANNMARIE PAKULSKI SULIGA, ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF JOSEPH S. SULIGA, DECEASED AND ANNMARIE PAKULSKI SULIGA, INDIVIDUALLY, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
NICHOLAS J. SORRENTINO, DEFENDANT-RESPONDENT/CROSS-APPELLANT, AND OMAR S. BEEKS, DEFENDANT-RESPONDENT, AND LASHUN SCOTT, JAMES S. CECIRE CORP., INC. D/B/A CHEEQUES, PWJM, LLC, AND CMG FOOD SERVICES, INC. D/B/A LOOKERS SKYLINE DINER, DEFENDANTS.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-0184-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 1, 2010

Before Judges Lihotz and Ashrafi.

Plaintiff Annmarie Pakulski Suliga, individually and on behalf of decedent's estate, appeals from the court's denial of her motion for a new trial following a jury verdict awarding damages of $621,410, along with pre-judgment interest, for the wrongful death of her husband, Joseph S. Suliga (decedent). Suliga argues the trial judge erred in denying her motion as the wrongful death award was grossly inadequate, and the jury disregarded the court's instructions concerning the elements of damages. She asserts the verdict is significantly less than the proven economic loss as it recognized a future work life expectancy of only 6.4 years and ignored claims for lost pension benefits or household services.

Defendant Nicholas J. Sorrentino filed a cross-appeal from the denial of his motion for entry of judgment notwithstanding the verdict (J.N.O.V.) or, in the alternative, for a new trial. Sorrentino seeks a judgment against defendant Omar S. Beeks, who the jury found not liable in decedent's death, and challenges the calculation of pre-judgment interest.

We have considered the arguments presented on appeal in light of the record and applicable law. We affirm the damage award to Suliga, including the court's calculation of prejudgment interest. However, we reverse and remand for a new trial regarding Beeks's liability.

I.

Sorrentino owns a corrugated packaging business on East Linden Avenue in Linden. He sought to develop a business relationship with decedent, who at the time was Finance Director for the City of Linden and custodian of school funds for the Linden Board of Education. On February 18, 2005, Joan Hannon, who worked for Sorrentino, accompanied decedent to Cheeques, a "go-go bar." Cheeques is located on the eastbound side of East Linden Avenue, a relatively straight stretch of road which has a posted twenty-five mile-per-hour speed limit. The area is "fairly well-lit," so someone traveling westbound at night has visibility of the entirety of the roadway for approximately 200 feet.

Decedent and Hannon had only been in the bar for a few minutes when Sorrentino arrived at approximately 10:00 p.m. Rather than utilizing a designated parking space, Sorrentino pulled his Infinity G-35 coupe almost perpendicular to the main entrance. Approximately six feet from the building's entrance, two concrete poles were fixed to prevent a car from blocking the door. Sorrentino's Infinity was parked on the other side of those poles, causing six feet of his car to sit in the roadway. Sorrentino exited his car and ran inside Cheeques to retrieve Hannon and decedent.

Cheeques' General Manager, Joseph Altomare, noticed Sorrentino's car via the establishment's security camera. Altomare also observed several cars traveling eastbound on East Linden Avenue swerving into the westbound lane to avoid hitting the vehicle. Sorrentino returned to the driver's seat and Altomare observed the Infinity's rear lights come on as if Sorrentino was about to back-up. Decedent entered Sorrentino's vehicle, taking a seat in the rear driver's side. Hannon briefly remained standing, as she was about to enter the Infinity.

Beeks was driving a friend's white Chrysler Sebring westbound on East Linden Avenue. He estimated his speed at approximately twenty-five to thirty miles per hour. Suddenly, he noticed lights on his right-hand side "coming close to him," and believed a vehicle was exiting from a gated area parking lot, near the roadway. He never saw a car, only headlights. Reacting, Beeks swerved his car to the left, crossed the center line of East Linden Avenue and plowed head-on into the rear driver's-side panel of the Infinity. Beeks's car came to a stop inside the eastbound lane after impact.

From his office, Altomare watched the collision on a security video monitor, although the impact was not actually recorded on the surveillance videotape. He observed Beeks's car headed westbound, but traveling in the eastbound lane approximately "three car widths," before it collided with Sorrentino's parked Infinity.

Beeks gave two statements to the police immediately after the accident consistent with the above facts. Four days later, he viewed the accident scene and realized there were no parking lots directly across from Cheeques. During his deposition, he asserted that after he saw the sudden headlights, he swerved "a little to the left," then completely returned to the westbound lane prior to the impact. At trial, Beeks admitted Sorrentino's lights were on, although he never saw the Infinity before the collision and did not apply his brakes. At trial, he asserted, for the first time, the Infinity had backed into his car.

As a result of the accident, Sorrentino suffered bruised ribs and required several stitches for lacerations. Hannon was trapped, "lying underneath . . . a F250 Ford pickup truck" and "bleeding throughout her head and arm area" as she broke her right tibia, fibula and ankle, two vertebrae in her lower back, one rib, and her pelvis.*fn1 Police found decedent "unresponsive" with a "wound to the left side of his head." He died before medics arrived.

The police safeguarded the security video and interviewed Beeks, who looked "confused" and admitted he struck the Infinity, which he said "came out of nowhere." Officers from the Accident Investigation Unit arrived and took over the investigation.*fn2

Investigator Andrew Haszko was given initial responsibility for examining and reconstructing the accident.*fn3 Haszko's measurements taken at the scene revealed each lane of East Linden Avenue was fifteen feet wide, and the distance from the poles guarding the entrance to Cheeques to the eastbound lane of the roadway was nine feet. Further research revealed the length of the Infinity was 15.15 feet. Thus, when Sorrentino parked the car as he did, 6.15 feet of the vehicle jutted into the roadway.

Haszko also testified that the trail of radiator fluid left by Beeks's car, and the position of the vehicles after the accident, showed Beeks had been driving "fully in the wrong lane . . . in the middle of the lane and traveling for some distance in a straight line, as opposed to having swerved . . . from the [correct] lane" to the left. Haszko also found damage to the front and rear sides of both vehicles, suggesting that "[a]fter collision when they were spinning, [] the Beeks vehicle continued forward [and] the Infinity was being turned around.

[A]s it was being turned around, it slapped into Beeks' vehicle . . . . The two vehicles became parallel with each other, but facing in opposite directions."

At trial, Suliga testified regarding her husband's financial circumstances and their life together. At the time of his death, decedent served as Finance Director for the City of Linden and custodian of funds for the Linden Board of Education, earning approximately $135,000 to $140,000 per year. The Suligas had no children, and owned homes in Linden and Barnegat.

Suliga's expert, Dr. Matityahu Marcus, testified to quantify the economic loss suffered as a result of decedent's death. Utilizing decedent's pay stubs, his public retirement plan documentation, and noting decedent's educational history, age, and health, Dr. Marcus concluded net annual income for the benefit of Suliga was $62,141.*fn4 As 3.6 years had passed since decedent's death, the loss to date was $223,780. Dr. Marcus also opined on Suliga's future loss, estimating decedent would have worked until a little past age sixty-five, or an additional 14.9 years. Dr. Marcus concluded decedent's "total future wage loss" was $925,901.

Additionally, Dr. Marcus attributed a value of $594,418 to decedent's lost public pension benefits, $55,627 representing lost spousal services (calculated at nineteen dollars per hour for seventeen hours per week) and $687,720 of future lost spousal services (calculated at nineteen dollars per hour for thirty-five hours per week after retirement). Dr. Marcus stated Suliga's economic loss due to the wrongful death of her husband was $2,271,522.

On cross-examination, Dr. Marcus admitted he had not reviewed decedent's 2004 income tax returns or requested information regarding his finances and investments. Dr. Marcus also acknowledged his opinion assumed decedent would continue working both jobs until retirement. Acknowledging this was unlikely, Dr. Marcus nevertheless believed "people with long experience in administrative and government function and finance . . . if they lose a job . . . find another job and usually at comparable pay." With the acceptance of all parties, the jury was asked to provide a single lump-sum award.

The jury commenced deliberations on October 6, 2008. As the day neared its close, the following colloquy occurred between the trial judge and the jury foreperson:

THE COURT: Ladies and Gentlemen, we have to call it a night. We['re] not permitted to keep jurors past 4:30. So we're going to have to ask you to come back tomorrow . . . . As soon as all eight of you are in the room, you can begin your deliberations. The exhibits will be there. Everything will be there for you to get started, and that way, you don't have to wait . . . . If you have questions or a verdict, we can get back, you know, within a matter of minutes. So we, our schedule won't prove any impediment to your continuing with your deliberations. And, then we'll just take it from there, all right. So thank you very much. Have a good evening. Yes.

JURY FOREPERSON: Well, we only have a few more, we're there. We only have a few minutes, and we can -

THE COURT: You think you can -

JURY FOREPERSON: Yes.

THE COURT: All right. Go ahead.

Shortly thereafter, the jury returned with its verdict. By unanimous votes, it found Sorrentino negligent and the proximate cause of the accident. By a seven-to-one vote, it found Beeks negligent but, by unanimous vote, held he was not a proximate cause of the accident. Finally, after setting Hannon's award, it determined - by unanimous vote - the sum of $621,410 would "fairly and reasonably compensate" Suliga for her loss.

Suliga moved for a new trial on the issue of damages. Sorrentino moved for an entry of judgment J.N.O.V. or, in the alternative, for a new trial on the issue of liability. The trial judge denied both motions and a final order of judgment was entered on January 9, 2009. In addition to the damage award, the court set pre-judgment interest at $25,806.02. The appeal and cross-appeal were filed.

II.

A jury verdict is entitled to a presumption of correctness, Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977), and the 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). "Once the jury is discharged, both trial and appellate courts are generally bound to respect its decision, lest they act as an additional and decisive juror." Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 135-36 (1990) (citing Dolson v. Anastasia, 55 N.J. 2, 6 (1969)).

Thus, jury verdicts should be set aside in favor of new trials only with reluctance and, even then, only in the cases of clear injustice. Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006); R. 4:49-1(a). See also Dolson, supra, 55 N.J. at 6-7 (holding that a jury verdict must not be set aside "unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses," it clearly appears that there was a miscarriage of justice under the law). A "miscarriage of justice" has been described as a "'pervading sense of 'wrongness' needed to justify [an] appellate or trial judge undoing of a jury verdict . . . [which] can arise . . . from manifest lack of inherently credible evidence to support the finding, obvious overlooking or underevaluation of crucial evidence, [or] a clearly unjust result. . . .'" Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996) (quoting Baxter, supra, 74 N.J. at 599).

"[T]he standard for authorizing a new trial is one that requires a determination that the jury's verdict is 'contrary to the weight of the evidence or clearly the product of mistake, passion, prejudice or partiality.'" Crawn v. Campo, 136 N.J. 494, 512 (1994) (quoting Lanzet v. Greenberg, 126 N.J. 168, 175 (1991)). When correcting a clear error or mistake, a trial judge may not substitute his or her judgment for that of the jury merely because he or she would have reached the opposite conclusion. Dolson, supra, 55 N.J. at 6. Instead, 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.

"'The standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to [the trial court's] 'feel of the case,' including credibility.'" Caldwell v. Haynes, 136 N.J. 422, 431-32 (1994) (quoting Feldman v. Lederle Lab., 97 N.J. 429, 463 (1984)); Jastram v. Kruse, 197 N.J. 216, 230-31 (2008); Johnson, supra, 192 N.J. at 280; Dolson, supra, 55 N.J. at 6-7; Carrino v. Novotny, 78 N.J. 355, 360-61 (1979); Giantonnio v. Taccard, 291 N.J. Super. 31, 44-45 (App. Div. 1996). See also Pressler, Current N.J. Court Rules, comment 4 on R. 2:10-1 (2010). Beyond these "intangibles," we make an independent determination of whether a miscarriage of justice occurred. Carrino, supra, 78 N.J. at 360-61; Baxter, supra, 74 N.J. at 596.

Additionally, a jury's allocation of damages should be upheld "unless it is so disproportionate to the injury and resulting disability shown as to shock [the] conscience and to convince [one] that to sustain the award would be manifestly unjust." Baxter, supra, 74 N.J. at 596 (citing Sweeney v. Pruyne, 67 N.J. 314, 315 (1975)). This inquiry requires that record evidence be viewed in the light most favorable to the opposing party. Jastram, supra, 197 N.J. at 220 n. 2. The court's "corrective function is more easily discharged when the jury verdict entirely omits to make an award in a discrete category of damages where some award is manifestly appropriate, than when the claim is that an amount awarded is inadequate[.]" Love, supra, 366 N.J. Super. at 533.

It is within this context that we consider the parties' arguments.

III.

A.

Suliga labels the jury's damage award as "an ill-considered rush to judgment." Referencing the court's colloquy with the jury foreman as 4:30 p.m. approached, following submittal of the case to the jury, she suggests the verdict was "hasty" to avoid continued deliberations the next morning.

Additionally, Suliga suggests the only evidence of damages was presented by Dr. Marcus, as the defendants did not present an expert. In light of his testimony, she maintains the "aberrant nature" of the verdict reflects that the jury ignored the five discrete categories of damages that were presented. Instead they computed a lump-sum of $621,410, which she suggests reflects ten times decedent's lost annual wage income. Thus, they ignored decedent's lost pension benefits and Suliga's claims for spousal services.

The trial judge rejected these contentions. First, as to the suggestion that the jury ignored its responsibility and rushed through deliberations, she identified how careful the jury was with [ ] their respect for the process throughout the trial . . . . They were always attentive, they were always here on time. We did not have a single problem with this jury at all. They clearly manifested . . . their commitment to discharging their function in the way we all would hope they do in every case.

Rejecting Suliga's rationalization that the amount was inappropriately computed, the court stated:

[I]t may be that the number that was picked happened to coincide with the amount calculated for future income. But I don't think that necessarily makes it an inescapable conclusion that the jury ignored all of the possible elements that they could consider in granting an award here.

It's certainly not an insulting amount of money. It's not an indication that they rejected any meaningful award based upon any bias or prejudice or dislike for [Suliga], who certainly was a likeable witness on the stand. There was nothing about her that would cause the jury to wish to put some kind of discount on the amount of money that they thought she was entitled to have[.]

Unlike the jury in Love, supra, 366 N.J. Super. at 527, this jury was not asked to apportion damages among various discrete categories. Suliga sought only one lump sum. She identifies no error in the court's instruction or in the conduct of the trial. Instead, she assumes the jury "obviously overlook[ed]" the evidence and only awarded lost income. We disagree.

The rigorous cross-examination of Dr. Marcus raised significant questions as to his calculation of future income and loss of future household services, the two largest components of the estimated loss. His credibility was affected by his failure to review decedent's income tax returns and to consider any losses from decedent's other business ventures, simply assuming his income would remain steady for decades. Moreover, Dr. Marcus utilized assumptions squarely challenged by the defense, which the jury was free to reject as unsupported.

Reasonable people may disagree about inferences drawn from the same testimony. Kulbacki, supra, 38 N.J. at 444. Applying this principle, along with our deference to a trained trial judge's sense that this damage award was not the result of bias or prejudice, we determine Suliga's mere disagreement with the jury's decision is insufficient to set it aside. Battista v. Olson, 213 N.J. Super. 137, 142 (App. Div. 1986). From our review of the record, we have no hesitancy in concluding the jury's verdict was not a miscarriage of justice under the law. The amount awarded was not so disproportionate to the claims presented to shock our judicial conscience. Tronolone v. Palmer, 224 N.J. Super. 92, 97 (App. Div. 1988).

B.

Sorrentino's cross-appeal seeks a new trial on liability or, alternatively, a motion for judgment J.N.O.V. By a seven-to-one vote, the jury found Beeks negligent but, by unanimous vote, also concluded his conduct was not a proximate cause of the accident. Sorrentino argues the jury's finding warrants reversal or a directed verdict.

In denying Sorrentino's motions, the trial judge stated:

The fact of the matter is that . . . Mr. Sorrentino's testimony was not a model of clarity with respect to the events. He did have problems with his recollection and often it seemed as though his memory of events was substantially dependent on what he saw on the videotape[.]

The undisputed evidence was that the Sorrentino vehicle was parked perpendicular to the curb in an area where it was not lawful to park. And . . . it appears that, at a minimum, it extended six feet into the lane.

Now there was also some evidence to support the conclusion, if the jury chose to reach that, that Mr. Sorrentino could've been moving backward at the time of the impact. There was testimony from Mr. Altomare regarding what he was able to observe, and this testimony was not disputed by Officer Haszko.

Again . . . Mr. Sorrentino's recollection of the event was poor. He gave inconsistent testimony [ ] in this regard. He stated that he turned the ignition on when he returned to the car. And then, he also testified that he didn't recall if he started the car. He stated that he had planned to back the car up at that point and indicated that the taillights were on. But he said he didn't remember whether or not he had put the car into reverse.

[W]hen he was asked during his deposition which was brought out during the course of the trial, he testified based upon an inference. He said that Ms. Hannon was going to be getting into the car, and so it wouldn't have been logical [ ] for him to back up or be in the process of moving the car while she was . . . getting into the car.

Mr. Sorrentino did plead guilty to obstructing the roadway. That evidence was in before the jury. In contrast, Mr. Beeks testified that there was nothing he could've done to avoid the motor vehicle accident when he swerved to the left and he believed, he testified, that Mr. Sorrentino had backed into him.

So the jury had the ultimate responsibility of [ ] making credibility determinations here and there were credibility issues with regards to the parties. They reached the decision that Mr. Sorrentino was 100 percent liable for the accident. [U]nder the circumstances, I cannot say there's no evidence here to support that[.]

Sorrentino claims error as the trial judge's focus was on his negligence and failed to properly examine whether the jury's conclusion is supportable or is "'so inconsistent with the evidence as to bespeak confusion or mistake[.]'" Neno v. Clinton, 167 N.J. 573, 587 (2001) (quoting Menza v. Diamond Jim's, Inc., 145 N.J. Super. 40, 45 (App. Div. 1976)). "Although ordinarily questions of proximate cause are factual ones left to the jury for its determination," a review of precedential decisions "irresistibly leads to the conclusion that a new trial is required in this case." Giantonnio, supra, 291 N.J. Super. at 45 (internal citations omitted) .

In Neno, supra, the plaintiffs, pedestrians, were hit by a truck as they crossed Route 1 in Plainsboro. The plaintiffs sued the truck's owner and its driver, Clinton. 167 N.J. at 577. After finding both defendants negligent, the jury determined Clinton's negligence was not a proximate cause of the accident. Ibid. The Court noted that, under the described circumstances, it could not conceive of a negligent act by Clinton that would not also be a proximate cause of the accident. Id. at 588. Therefore, "[a]ssuming that [the] defendant acted negligently, [his] conduct would have contributed to at least some of [the] plaintiff's damages," the court ordered "[a]pportionment of liability [to] take place on retrial, pursuant to our Comparative Fault Act." Ibid.

In Pappas v. Santiago, 66 N.J. 140 (1974), cited with approval in Neno, supra, two vehicles collided at an intersection, injuring the passengers in each vehicle. The jury found both defendant drivers negligent, but only the male driver's actions or omissions the proximate cause of the accident. Id. at 142. The Court concluded the jury verdict was inconsistent and ordered a retrial on liability, as there was no negligent act or omission by the non-culpable driver that could be negligent operation, yet not also a proximate cause of the plaintiff's injuries. Id. at 143.

Here, Beeks's uncontradicted testimony was that he collided with Sorrentino after crossing the center line, drove on the wrong side of the road, never applied his brakes, and never saw Sorrentino's car. All of these acts of negligence contributed in some way to the accident.

Perhaps the jury may have been confused by plaintiff's counsel's remarks during closing, strongly advocating Sorrentino was solely responsible. Likewise, when discussing Beeks's liability, counsel stated:

Then, the question will be, what about Omar Beeks? Does he bear any responsibility for this accident? Did he act negligent in any way? And you're going to have to be satisfied not, if you're unsure, but more that 50 percent, in terms of did he play any role in this accident, in the happening of this accident? [Emphasis added.]

This comment misstates the law. The standard of "more than fifty percent" responsibility governs issues of comparative negligence between plaintiff and defendant, not the allocation of liability between defendants. See N.J.S.A. 2A:15-5.1. Comparative negligence was not an issue in this matter.

Following our review of the evidence regarding the circumstances of this accident, we cannot reconcile the jury's determination that there was an act or omission by Beeks that was negligent, yet not a proximate cause of this accident. Whether Beeks failed to make reasonable observations when he crossed the center line and drove in the oncoming traffic lane, failed to observe Sorrentino's car jutting into the street, or failed to travel at a speed, which allowed him to maintain control over his vehicle, and stop for the object blocking the roadway, all contributed to the collision that resulted in decedent's death.

We conclude the jury's finding that Beeks was negligent but not a proximate cause of the accident and resultant injuries is "patently inconsistent." Pappas, supra, 66 N.J. at 143; Giantonnio, supra, 291 N.J. Super. at 45. Accordingly, we reverse and remand for a new trial on the issue of liability.

C.

Sorrentino also challenges the award of pre-judgment interest in the amount of $25,806.02. An award of pre-judgment interest is generally committed to the broad discretion of the trial court. This court will "defer to the trial judge's exercise of discretion involving prejudgment interest unless it represents a manifest denial of justice." Musto v. Vidas, 333 N.J. Super. 52, 74 (2000) (citing A.J. Tenwood Assocs. v. Orange Senior Citizens Hous. Co., 200 N.J. Super. 515, 525 (App. Div.), certif. denied, 101 N.J. 325 (1985)). The trial judge allocated a portion of the award to decedent's lost wages over the 3.6 years since his death. The determination does not "represent[] a manifest denial of justice." Ibid.

IV.

In conclusion, we affirm the trial court's denial of Suliga's motion for a new trial and the determination of pre- judgment interest. We affirm the final award of $621,410.00 plus $25,806.02, or $657,216.02. We reverse that portion of the order, which denied Sorrentino's motion for a new trial regarding the comparative negligence as between defendants and remand for further proceedings on that issue.


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