August 23, 2011
WADE QUINTON, PLAINTIFF-APPELLANT,
WILLIAM GREENBLATT AND JUDY GREENBLATT, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 finding of plaintiff's comparative negligence.*fn1 See N.J.S.A. 2A:15-5.1.
On appeal, plaintiff argues that the court erred in allowing the jury to attribute comparative negligence to him since defendants did not present any affirmative evidence to prove he was negligent. We disagree. Defendants were not required to present specific evidence that plaintiff was walking too fast or wearing unsafe shoes in order to demonstrate his comparative negligence. Just as an owner of land has a duty to a business invitee such as plaintiff to inspect the land for concealed hazards, see Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 441 (1993), a pedestrian has a mutual duty to watch where he is walking and to avoid hazards that are discoverable through ordinary care. See Milstrey v. City of Hackensack, 6 N.J. 400, 414 (1951) ("One's right to protection from the negligence of others carries with it the duty of reasonable care for one's own safety. The inquiry is whether the traveler, by the exercise of ordinary or reasonable care, would have discovered the danger and avoided it.").
The evidence allowed the jury to infer that plaintiff had not taken adequate care for his own safety as he walked down a sloped driveway covered by a dusting of snow. Plaintiff was certainly aware that he could not see the ground surface as he walked because of the thin layer of snow, and he so testified. He was looking forward and did not look down toward the ground as he walked. Furthermore, as a telephone technician who visited customers' properties on a regular basis, plaintiff must have known that the fluctuating temperatures and intermittent precipitation could create hazardous conditions.
The jury could reasonably infer that plaintiff was negligent in failing to observe for unsafe conditions. In the daylight conditions, he had as much opportunity to observe for icy conditions and to take precautions to avoid injuring himself as defendants had to inspect their driveway overnight and to salt or remove the ice. Whether or not plaintiff should have taken a safer route, such as walking on the grass to avoid the sleek condition of the sloped driveway, or otherwise walked more cautiously, was a question of fact for the jury to consider. There was no error in allowing the jury to make that factual determination.
Plaintiff also argues that the jury's award of $30,000 in non-economic pain and suffering damages was a manifest denial of justice in light of his injuries, continuing pain and disability, and need for future medical treatment. The Supreme Court has repeatedly held that our system of civil justice depends on the jury's evaluation of particular facts in an individual case and its subjective, unscientific assessment of a fair amount of compensation for non-economic damages. See, e.g., Jastram v. Kruse, 197 N.J. 216, 229 (2008) ("the evaluation of damages is a matter uniquely reposed in the jury's good judgment"); Johnson v. Scaccetti, 192 N.J. 256, 281 (2007) (to set aside a jury's damages award, "[t]he verdict must be 'wide of the mark' and pervaded by a sense of 'wrongness'") (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (in assessing the amount of damages awarded, the evidence must be viewed in the light most favorable to the party that opposes a motion for a new trial); Baxter v. Fairmont Food Co., 74 N.J. 588, 597 (1977) ("The judgment of the initial factfinder . . . is entitled to very considerable respect."). For the court to set aside a jury's award, the verdict must "constitute a manifest injustice that shocks the judicial conscience." Carey v. Lovett, 132 N.J. 44, 66 (1993).
The Court recently returned to the subject in He v. Miller, ___ N.J. ___ (2011), in the context of a trial court's authority to grant a remittitur of a jury's verdict. It said: "The trial court should not disturb the jury's award unless it is 'so disproportionate to the injury and resulting disability as to shock the conscience and [convince the court] that to sustain the award would be manifestly unjust.'" Id. at ___ (slip op. at 34-35) (quoting Baxter, supra, 74 N.J. at 604).
Not only must the trial court defer to the jury's findings and conclusions, an appellate court must defer to the trial court's "first-hand 'feel of the case' as it bears on an analysis of whether the jury's verdict was motivated by improper influences." He, supra, ___ N.J. at ___ (slip op. at 36) (quoting Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 58 (2009)).
Recently in Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319 (App. Div. 2010), we declined to set aside a jury's verdict of zero damages for a slip on ice despite the jury's finding that defendant was sixty percent negligent and responsible for the accident. We also affirmed the trial court's denial of a motion for a new trial or an additur.
Here, we see no abuse of discretion in denial of plaintiff's motion for a new trial on non-economic damages or for an additur. The jury observed plaintiff in the courtroom and was aware that he was again working at his job as a telephone technician, accepting overtime and more arduous tasks than previously. It was also aware that other medical conditions not attributable to the slip and fall afflicted plaintiff. The award of $30,000 is not so far out of an acceptable range for his slip and fall that it shocks the judicial conscience.