February 28, 2011
CHERYL JOYCE AND RICHARD JOYCE, HER HUSBAND, PLAINTIFFS-APPELLANTS,
A. C. MOORE ARTS & CRAFTS, DEFENDANT-RESPONDENT, AND VORNADO REALTY TRUST AND MANALAPAN VF L.L.C.,*FN1 DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2732-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 16, 2011 - Decided Before Judges Lihotz and J. N. Harris.
This is a premises liability case. Plaintiff Cheryl Joyce*fn2
was seriously injured when she slipped and fell in a puddle of water on the retail floor of defendant A. C. Moore Arts & Crafts
(A. C. Moore) in Manalapan. Tried to a jury on all issues, the verdict determined that A. C. Moore was not negligent. Joyce appeals, claiming that the jury's unanimous verdict was against the weight of the evidence.*fn3 We affirm.
On August 3, 2007, Joyce was lawfully on the retail premises of A. C. Moore shopping for party favors when "right by a candle display on the way out there was a puddle of water which [she] did not see. As [she] was walking, [her] front foot went fo rward, [her] left foot went behind [her], and [she] went down very hard on [her] right side." While awaiting help, Joyce observed water dripping from a pipe above her, which was wrapped in duct tape.*fn4 Joyce's then fifteen-year old daughter, Christina Joyce, who was present, testified, "I noticed right above where the puddle was there was a pipe with duct tape around it so it looked like it was leaking." In the vicinity of the standing water was "a yellowish brown stain," which Joyce contended was residue from former water leaks.
Joyce's mother, Arlene Garito, also testified about the premises. Although she was not present at the time her daughter fell, Garito was dispatched to the store the same day to procure a copy of the accident report. Garito reported that she met with A. C. Moore's store manager and was shown the area where Joyce had fallen. She testified, "I noticed there was a pipe hanging from the ceiling, a wrapped pipe that was dripping, and they had placed a plastic garbage can underneath it to catch the drip." Garito mentioned that the store manager had told her that on that morning he did not notice any water on the floor, and was only aware of its presence after the fall had occurred.
A. C. Moore presented the testimony of its store manager, Frank Izzo, who had been assigned to the Manalapan premises one month before Joyce's incident. He testified that on the date of the incident, which he did not witness, he had conducted a walkthrough of the premises in the early morning, and did not observe water in the area where Joyce fell. In his one-month stint at the premises, he had not been alerted to the presence of water on the floor.
On the date in question, Izzo was called to the scene of Joyce's fall. He observed her condition and noticed the collected water. He offered to call an ambulance but Joyce declined. Izzo further confirmed that he briefly met with Garito later in the day and gave her a copy of the accident report. At that time, he confirmed that a bucket had been placed on the floor, but denied that it contained any water. In fact, Izzo specifically stated that he neither saw water dripping from the pipe nor observed any accumulation of water in the bucket. From that date until a date in December 2007, when he was again transferred, Izzo indicated that he neither saw water on the floor at the subject location nor observed water dripping from above.
Plaintiffs commenced this action in June 2008. The matter was tried before Judge John R. Tassini and a jury over a three day period in June 2010. The jury deliberated for less than forty minutes -- including the time necessary for the court to answer a question concerning whether there was any testimony explaining why the duct tape was being used on the overhead pipe (there was no such testimony) -- before reaching its unanimous verdict that plaintiffs had not demonstrated negligence on the part of A. C. Moore.
Plaintiffs' motion for a new trial was denied on August 13, 2010. This appeal ensued.
We note at the outset that plaintiffs do not challenge the jury charge. Their primary argument is summarized in plaintiffs' brief as follows:
The jury disregarded the evidence and concluded that the defendant was not negligent in any way for the plaintiff's fall in the large puddle on the floor of its store. This verdict was clearly shocking and against the weight of the evidence and uncontested material facts presented at trial.
We disagree that there were "uncontested material facts," which suggests that a finding of liability against A. C. Moore should have been inevitable.
Our review of the entire record convinces us that there was ample evidence to sustain the result reached by the jury. The evidence supported the dueling conclusions that on the date in question the source of the water was either from the duct-taped overhead pipe or from an unknown source, perhaps spilled by a customer. If the jury believed A. C. Moore's store manager, Izzo, who the trial court described as "a nice man," it could readily place into question Joyce's and her family members' version of the dripping pipe.
Pursuant to Rule 4:49-1(a), a party is entitled to a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." The role of a judge in determining whether a verdict constitutes a miscarriage of justice involves "'canvass[ing] 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.'" Dolson v. Anastasia, 55 N.J. 2, 6 (1969) (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)). Moreover, "in reviewing a jury's verdict, a judge must view the evidence in the light most favorable to the party opposing the motion for relief." Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 325 (App. Div. 2010). In that context, it cannot fairly be said that the evidence was so one-sided as to compel the conclusion that the verdict was clearly erroneous. The verdict in favor of A.C. Moore did not suffer from evidential insufficiency, but rather was reasonable in light of the conflicting evidence.
Based on the totality of the circumstances, the jury could have concluded there was no known leak of the pipe fixtures above the area where Joyce fell. Accordingly, it was within its province to conclude that A. C. Moore had neither actual nor constructive notice of the liquid risk on its premises on August 3, 2007.
We have an exceedingly narrow scope of review of jury verdicts, and we should not set them aside and order a new trial unless we are firmly convinced that there has been a manifest injustice. See Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006); see also Kozma, supra, 412 N.J. Super. at 324-25. We find no clear indication that such an injustice occurred here.