April 11, 2011
CARMEN SANTANA AND JOSE L. SANTANA, PLAINTIFFS-APPELLANTS,
PAULO E. PEREIRA AND MICHELLE D. MUNIZ, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1036-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 28, 2011
Before Judges Lisa and Ostrer.
Plaintiff, Carmen Santana, claimed she suffered personal injuries when
the vehicle she was driving was struck in the rear
by a vehicle driven by defendant, Paulo E. Pereira.*fn1
Plaintiff sued defendant for her alleged injuries. By consent
of the parties, an expedited jury trial was conducted, at which
plaintiff, her husband, and defendant provided live testimony, and the
police accident investigation report and the report of plaintiff's
chiropractor were admitted in evidence. The jury found both drivers
negligent, and allocated sixty percent of the fault in causing the
accident against plaintiff, and forty percent against defendant. The
jury also found that plaintiff did not sustain an injury that was
proximately caused by the accident. Plaintiff's motion for a new trial
was denied, and this appeal followed.
Plaintiff argues that (1) the court erred in denying her motion for directed findings of negligence and proximate cause against defendant, (2) the court committed plain error by failing to sua sponte charge the jury regarding the obligations of motorists at stop or yield intersections and in following another vehicle at a reasonably safe distance, and (3) the jury's verdicts as to liability and damages were against the weight of the evidence and should have been set aside. Our review of the record persuades us that the trial court did not err in refusing to set aside the jury's verdict finding that plaintiff did not sustain an injury that was proximately caused by the accident. For this reason, there is no basis to reverse the judgment of no cause of action entered on May 26, 2010, or the orders denying plaintiff's motion for a new trial entered on June 8, 2010 and June 23, 2010. Therefore, we affirm.
Because our disposition is based on the jury's finding that plaintiff did not suffer an injury that was proximately caused by the accident, we need not address plaintiff's arguments pertaining to liability. We nevertheless briefly set forth the circumstances of the underlying accident, as described by each party, to give context to our discussion.
On the morning of August 17, 2007, plaintiff was driving an automobile eastbound on Route 440 in Perth Amboy. Defendant was then driving a sport utility vehicle on the same roadway and in the same direction, following plaintiff's vehicle. Both parties were alone in their vehicles. Both parties took the exit ramp leading them onto Pfeiffer Boulevard. A yield sign was posted on the exit ramp, and it was necessary for vehicles exiting Route 440 to merge with traffic on Pfeiffer Boulevard, which was to their right.
As they proceeded down the exit ramp, both parties were traveling at about fifteen miles per hour. Defendant said he was maintaining a distance of twenty-five to thirty feet behind plaintiff. According to plaintiff, after she passed through the yield sign and was merging with traffic, she gradually slowed her vehicle and, while still moving at about fifteen miles per hour, was suddenly struck in the rear by defendant's vehicle. According to defendant, both driver's slowed down to about fifteen miles per hour as they proceeded through the yield sign. They were both "flowing" into the traffic with which they had to merge. Defendant was "checking traffic," presumably glancing to his right, and then noticed that plaintiff had jammed on her brakes and suddenly stopped about one hundred feet past the yield sign. He believed she had either been "cut off" or "spooked" by another vehicle. In any event, defendant immediately jammed on his brakes, but was unable to avoid the collision.
Plaintiff called her husband, who arrived at the scene within minutes. Both parties gave statements to the investigating police officer. Plaintiff said she was not injured and declined any medical treatment. Although her car sustained rear-end damage, it was operable, and her husband drove it to their home. Defendant's vehicle sustained front-end damage, including damage to the radiator, which caused the coolant fluid to leak. Accordingly, it was inoperable and was towed from the scene.
Plaintiff contended that she began to experience pain in her back and neck the next day. Many years prior to this accident, plaintiff had undergone open-heart surgery. Within a relatively short time before this accident, plaintiff had a pacemaker implanted. As a result of her heart condition, plaintiff had been on disability status for many years and was somewhat debilitated. At the time of the accident, plaintiff was fifty-two years old.
The day after the accident, plaintiff visited her cardiologist. He explained to her that because of her heart condition and the medications she was taking for it, she could not take pain medication or other medications. He suggested she see a chiropractor.
Eighteen days after the accident, on September 4, 2007, plaintiff first consulted with a chiropractor, Dr. James C. Wolff. Plaintiff treated with Dr. Wolff for about six-and-one-half months, until she was discharged on March 18, 2008. She reported to Dr. Wolff that she experienced pain in her neck, upper and lower back, and shoulders, as well as headaches. Dr. Wolff did not order x-rays, an MRI, or any other diagnostic tests. Based upon plaintiff's history and his clinical examination, he concluded that plaintiff suffered post-traumatic sprain and strain to her cervical and lumbar spine, thoracic intersegmental dysfunction, cervicobrachil syndrome, myofascitis, and muscle spasm. He provided conservative treatment, "consisting of specific chiropractic spinal adjustments, adjunctive physiotherapeutic, electric muscle stimulation, and exercise rehabilitation." In his report, he opined that plaintiff would be predisposed to future pain and could expect to experience future spinal dysfunction in the form of accelerated degenerative joint disease. He opined that the injuries were caused by the August 17, 2007 accident and were permanent in nature.
Plaintiff was never evaluated or treated by any other physician. She told the jury that her complaints of pain and the limitations on her activities continued to be about the same as during the time she was treating with Dr. Wolff. Yet, she never sought any further treatment. She said she continues to use, on an as-needed basis, a heating pad, a hand massaging device, Ben-Gay, aspirin, and ice packs.
Plaintiff argues that this unrebutted evidence, provided by her testimony (which was corroborated by her husband's testimony) and Dr. Wolff's report, conclusively proved that she suffered injuries as a result of this accident, and that the jury's contrary finding is unsustainable.
In considering plaintiff's new trial motion, the trial court declined to interfere with the jury's factfinding in this regard. Relying on Rule 4:49-1 and Dolson v. Anastasia, 55 N.J. 2, 7 (1969), the court was satisfied that, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it did not clearly and convincingly appear that there was a miscarriage of justice under the law. The court noted that "[t]he proofs in this case required the jury to consider and evaluate the credibility of the witnesses presented and the medical evidence submitted for their consideration." The court was satisfied that all issues in the case, including whether plaintiff suffered an injury proximately caused by the accident, were properly submitted to the jury because they were disputed by the evidence. The court was also satisfied that the jury's finding on that issue was not so wide of the mark that it constituted a miscarriage of justice.
By moving for a new trial on the ground that the verdict was against the weight of the evidence, plaintiff has preserved the right to present the issue on appeal. R. 2:10-1; Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 362-63 (App. Div. 1998). Trial courts are directed to grant a new trial after a jury verdict only 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." R. 4:49-1(a).
We will not reverse the trial court's decision on such a motion unless it clearly appears to us that there was a miscarriage of justice under the law. R. 2:10-1. In our analysis, we defer to the trial court with respect to "intangibles" not transmitted by the record, such as credibility and demeanor of witnesses, and the "feel of the case," but otherwise make our own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360-61 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson, supra, 55 N.J. at 6-8 (1969).
Applying these principles, we do not find error in the trial court's determination that the jury's finding that plaintiff did not suffer an injury proximately caused by the accident did not constitute a miscarriage of justice. Under the totality of the evidence relating to damages, it was within the province of the jury to reject plaintiff's claim of injuries emanating from this accident. The jury certainly could have found that plaintiff was injured in the accident, but it was not required to do so. The jury was not required to believe that she experienced the aches and pains she described, or, if she did, that they were caused by the accident. Plaintiff declined medical treatment immediately after the accident, and did not begin treatment until eighteen days later. Likewise, the jury was under no compulsion to accept Dr. Wolff's findings, as described in his written report, which were essentially premised on plaintiff's subjective complaints and not corroborated by any objective tests. Such tests were not required, but the jury had the right to consider their absence.
The jury was permitted to consider plaintiff's age and prior medical condition in evaluating whether her alleged discomfort in her back, neck and shoulders, if they existed, and any limitations on her activities were caused by this accident. The jury had the opportunity to observe plaintiff as she testified, consider her demeanor and various inconsistencies in her testimony, and assess her credibility. Based upon all of this information, the jury was asked to make a finding as to whether the aches and pains of which plaintiff complained did in fact exist, and, if so, whether they were caused by this accident.
In the circumstances of this case and the evidence presented to the jury, the finding on this issue was premised, to a very large extent, on credibility determinations. In this regard, we defer to the assessment of the trial judge, who observed the testimony of the witnesses and was in a position to evaluate their demeanor and credibility. Indeed, the "feel of the case" concept reflects that "it is the trial judge who sees and hears the witnesses and the attorneys, and who has a firsthand opportunity to assess their believability and their effect on the jury." Jastram v. Kruse, 197 N.J. 216, 230 (2008). It is to those personal observations by the trial judge that a reviewing court is obliged to defer. Ibid. Combining that deference with our independent review of the complete record, we conclude that the jury's determination on damages should not be disturbed.