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Fusco v. Pyl

May 25, 2010


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7548-06.

Per curiam.


Argued January 26, 2010

Before Judges Wefing, Grall and LeWinn.

Plaintiff appeals from three orders entered by the trial court: an order dated August 15, 2008, denying her motion for partial summary judgment with respect to liability; an order dated January 6, 2009, entered following trial, granting her an additur; and a subsequent order dated January 29, 2009, entering judgment in her favor for $55,372.71. After reviewing the record in light of the contentions advanced on appeal, we affirm the first order, reverse the latter two, and remand this matter to the trial court for further proceedings.

Together with her three children, plaintiff occupied a one-family home in Midland Park that she leased from defendants. She filed suit for damages after she was severely injured when she was struck by a limb that fell from a tree in the backyard. Following three days of testimony, the jury returned a verdict in which it awarded plaintiff $12,500 for her pain and suffering, $7,500 for her medical expenses, and found her to be twenty-five percent comparatively at fault. Plaintiff moved for a new trial. The trial court agreed that the jury's award was inadequate and granted her an additur of $50,000. Deeming that amount inadequate in light of the injuries she received, plaintiff appealed.

Plaintiff raises the following contentions for our consideration: that the trial court erred when it denied her motion for partial summary judgment on liability, that the trial court erred when it instructed the jury to consider whether plaintiff was comparatively at fault, that the trial court abused its discretion by granting an inadequate additur, and that the trial court abused its discretion by not granting a new trial based on the jury having considered the question of insurance coverage.

The lease the parties executed was a pre-printed form which contained the following pertinent provisions and insertions. On the first page, in a space denominated "Additional agreements" the words "Lawn care and snow removal by Landlord" were typed in.

Paragraph 10 of the preprinted portion of the lease was headed "Tenant's Repairs and Maintenance." Pursuant to subparagraph (b), plaintiff was responsible to "[k]eep and maintain the House and grounds in a neat, clean, safe and sanitary condition . . . [and] not allow injury to the landscaping." Under subparagraph (g), plaintiff was obligated to "[p]romptly notify the Landlord when there are conditions which need repair."

After discovery was complete, both parties moved for summary judgment. Plaintiff argued that the landlord's duty to care for the lawn encompassed trimming the trees on the property while defendant argued that plaintiff had the duty to trim the trees in light of her responsibility to keep the grounds "neat, clean [and] safe." Based upon a factual dispute as to whether plaintiff had ever notified defendants of tree limbs falling, the trial court denied both motions and the matter proceeded to trial.

The trial court was correct in this regard. There was a clear dispute as to a material factual issue, making summary judgment inappropriate. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).

Plaintiff testified at trial that she had, on several occasions prior to the accident, called defendants to complain that large limbs were falling from trees on the premises. She testified that defendants did not trim the trees in response to these complaints and never told her that they considered it to be her responsibility to have the trees trimmed. The rear of the property was in a wooded condition. Plaintiff testified that the landscape company that would come to mow the lawn would pick up fallen tree limbs and discard them in this wooded area.

Plaintiff's oldest child is a son, approximately fourteen years of age in May 2006, when the accident occurred. He is autistic; his intelligence is limited, and he is non-verbal and requires help with the chores of everyday living. On May 20, 2006, the children had visited with their father, from whom plaintiff is divorced, and he dropped them at home in the afternoon. The day was somewhat windy and cloudy, and it appeared as if it were about to rain. Plaintiff's youngest child, then about five years of age, told plaintiff that her older brother was in the backyard. Concerned that it was about to rain, she went outside to persuade him to come in; her young daughter accompanied her. She was talking to her son, trying to persuade him to come inside when she saw what appeared to be a piece of broken glass in the grass. She said she bent over to pick it up and heard a cracking sound. She yelled at her daughter to run, but she herself could not move quickly enough. She was struck by a falling limb that knocked her to the ground; she suffered a severely fractured left leg.

She was taken to the hospital, and underwent surgery the following day in which a titanium rod was inserted into her lower leg and held in place by screws in her ankle and below her knee. She was hospitalized for three days. When she was discharged, she was unable perform any of her regular household chores for a significant period of time. She developed an open sore on her leg, which did not heal for nearly nine months. The sore finally resolved after she underwent a second surgery to have the screws in her ankle removed. She testified that she was unable to walk without pain, could no longer wear high heels, and could no longer engage in any physical activities with her children. She was forty-six years old and had a projected life expectancy of thirty-one years.

Plaintiff presented three expert witnesses: a certified arborist and two medical doctors. The arborist, Michael LaMana, testified that he went to the premises approximately one month after the accident. LaMana measured the limb which had fallen; he testified it was twenty-seven feet in length and seven inches in diameter. He identified the tree from which it fell and said the tree had been dead for some period of time. He said other trees on the property were in a similar condition and were dangerous. He also testified that certain of the problems were visible and obvious to a lay person--trees that were missing bark, trees leaning, trees from which branches had obviously broken.

John M. Lord, M.D., a board-certified orthopedic surgeon, explained to the jury the fractures to plaintiff's tibia and fibula and the nature of the surgical repair that plaintiff had undergone. He also explained that she suffered fat necrosis, death of the fatty tissue, in her shin area, making it vulnerable to future damage. He also testified that the bill plaintiff had received from the orthopedic surgeon for $7154 appeared reasonable. Loka Reddy, M.D., a board-certified plastic surgeon, also testified about the skin damage plaintiff had suffered ...

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