On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9549-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued July 27, 2011
Before Judges R. B. Coleman and Ashrafi.
Plaintiff Wade Quinton appeals as insufficient a jury's verdict, which when molded by the trial court, awarded him damages of $476,856, including prejudgment interest, for injuries he suffered after a slip and fall on ice in the driveway of defendants' home. We reject the appeal and affirm the jury's verdict.
The evidence at trial was that plaintiff, an employee of a telephone company, was dispatched to defendants' home on the morning of March 9, 2005, to check and repair noise in defendants' telephone line. There was a dusting of snow on the ground, and the temperature at 8:30 a.m. when plaintiff arrived was well below freezing. Plaintiff parked his vehicle in the street and walked over the lawn to the side of defendants' house and then to the front door. A housekeeper let him into the house, where he checked telephone equipment and connections. He then went back outside and walked down the driveway toward his vehicle. He slipped on ice underneath the dusting of snow, fell, and injured his back.
Plaintiff suffered disc herniation at L5-S1 with compromise and displacement of the L5 nerve root and radiculopathy. Treatment over time included epidural steroid injections, a microdiscectomy, a fluoroscopic guided provocative discogram, and left transformational fusion surgery. Plaintiff missed six months of work. He was diagnosed with failed back syndrome, and his doctor anticipated significant additional treatment will be necessary. At the time of trial, plaintiff was taking narcotic pain medication every day. His medical bills were stipulated by the parties to have totaled $360,650.
Plaintiff presented the testimony of an expert meteorologist about the weather conditions in the days preceding his accident. Two days earlier, on March 7, 2005, about twoand-a-half inches of snow had fallen, but the afternoon temperature had risen to sixty-seven degrees and all the snow had melted. After midnight on March 8 and through the morning of the accident, March 9, the temperature had dropped from fifty-three to fourteen. Some rain and snow had fallen intermittently during that time period, the last of the precipitation ending about 4:45 p.m. on March 8. Thus, plaintiff's allegation of negligence against defendants was essentially that they had failed to inspect their property and prevent slippery areas from about 5:00 p.m. on March 8 through the time of plaintiff's fall at about 8:30 a.m. on March 9, 2005.
Defendants did not testify at trial. Plaintiff read into evidence a portion of the deposition of defendant William Greenblatt in which he said he had not done anything to inspect the condition of his driveway between 5:00 p.m. on March 8 and 5:00 a.m. the next morning when he went to work. Judy Greenblatt's deposition testimony also confirmed that no steps had been taken to inspect or clear the driveway.
Defense counsel's cross-examination of plaintiff elicited testimony that he was aware of the weather conditions and dusting of snow on the morning that he traveled to defendants' home for repair work. He had not seen any snow plows or sanding trucks on the roadway that morning, the snow on the ground being only about one-fourth of an inch deep.
Additional cross-examination established that, after treatment for his back injury, plaintiff returned to his job at the telephone company and would perform more physically demanding tasks than he was performing before the accident. He also testified he would seek overtime work when available. Furthermore, plaintiff testified that, unrelated to his accident, he suffered from Crohn's disease and had been hospitalized for that condition since the time of the accident.
At the conclusion of all evidence, plaintiff moved for a directed verdict dismissing the affirmative defense of comparative negligence. He argued that he had walked toward his vehicle in a normal gait and was wearing shoes approved by the Occupational Health and Safety Administration (OSHA), and thus, there was no evidence that he had been negligent. The trial court denied plaintiff's motion and allowed the jury to consider whether plaintiff was comparatively negligent.
The jury's verdict determined that defendants and plaintiff were both negligent and a proximate cause of the accident. The jury attributed fifty percent responsibility to each for the accident. Damages of $360,650 for past medical expenses were stipulated and did not require determination by the jury. The jury awarded $68,125 for future medical expenses, $7,730 for lost income, and $30,000 for pain, suffering, disability, and loss of enjoyment of life. Plaintiff moved for judgment notwithstanding the verdict seeking to vacate the jury's finding of his fifty percent comparative negligence, a new trial on damages, or an additur. The trial court denied his motions.
On November 9, 2010, the court entered judgment in the total amount of $413,579 damages and $63,277 in prejudgment interest, for a total of $476,856. The jury's damage awards for future medical expenses, lost income, and pain and suffering were reduced by the fifty percent ...