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Rita Vitale v. Mary Cimera

January 31, 2012

RITA VITALE, PLAINTIFF-APPELLANT,
v.
MARY CIMERA, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10198-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 20, 2011

Before Judges Yannotti and Kennedy.

Plaintiff Rita Vitale brought suit against defendant Mary Cimera for injuries arising from a two-car accident. Plaintiff appeals from the judgment entered on October 27, 2010, which awarded her damages of $48,888, plus costs, and an order entered by the trial court on November 10, 2010, denying her motion for a new trial. We affirm.

We briefly summarize the relevant facts, drawn from the testimony presented at trial. On the evening of February 14, 2006, at about 7:00 p.m., plaintiff was traveling westbound on West Greenbrook Road in North Caldwell. Defendant was traveling eastbound on the same road. Defendant made a left turn into the entrance to West Essex High School. Plaintiff's vehicle struck defendant's vehicle as it was making the turn.

Plaintiff testified that, as she was traveling down West Greenbrook Road, she observed defendant's car approach and then suddenly turn left into her lane of travel without first stopping or signaling. Defendant testified, however, that she came to a complete stop in the left-turn lane before turning. Defendant said that, as she pulled up to the turning point, she made sure that no cars were coming in the opposite direction and then made the turn.

Dina Costanza (Costanza) was a witness to the accident, and her deposition testimony was read into the record at trial. Costanza testified that she was waiting in her car to turn from the high school onto West Greenbrook Road. She observed defendant stop her car in the turning lane to make a left turn to the high school. According to Costanza, defendant had her headlights on. Costanza said that she did not see any cars approaching from her left. She then adjusted her radio and when she looked back up, she saw plaintiff's car "plow into" defendant's car.

Plaintiff sustained a "pilon fracture" of the left ankle in the accident. Dr. Tobenna Okezie testified that he performed two surgeries to restore the ankle. Dr. Okezie recommended that plaintiff begin physical therapy on April 14, 2006. However, as of April 28, 2006, plaintiff had not made an appointment for therapy.

Dr. Okezie told plaintiff on May 19, 2006, that she had to "take an active role in her care." She began physical therapy on May 25, 2006, but stopped therapy on July 6, 2006, when she went "down the shore" for the summer. Plaintiff did not resume therapy until September or October 2006.

Dr. Okezie further testified that he had imposed no restrictions on plaintiff as of her last visit in September 2006. He opined that plaintiff's prognosis was "poor or fair to poor" because six months after the second surgery, plaintiff had limitations in her range of motion, and she was experiencing pain.

Dr. Arthur Tiger, plaintiff's orthopedic expert, testified that, in his opinion, plaintiff has "a permanent condition to her left ankle" of the type that "never gets better; [and] tends to get worse." Dr. Tiger identified three options for future treatment: an ankle brace, ankle joint replacement surgery, or fusion surgery.

Defendant's orthopedic expert, Dr. Douglas Chalmers, testified that he examined plaintiff on March 28, 2007, and reviewed plaintiff's x-rays and history. Dr. Chalmers stated that plaintiff's long-term outlook appeared to be "distinctly favorable." He noted that plaintiff "had not developed or demonstrated any post-traumatic or post-injury changes in the ankle that would be detrimental."

Dr. Chalmers further testified that plaintiff demonstrated a "distinct failure of rehabilitation." He said that plaintiff's failure to adequately participate in rehabilitation had a "distinctly detrimental" impact upon her ...


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