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Rita Vitale v. Mary Cimera

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ability to return to "normal routine functional activities[.]"

Plaintiff's dentist, Dr. John C. Minichetti, testified that he first saw plaintiff on June 12, 2006. He diagnosed several fractured teeth, which he said were caused by the accident. His treatment plan called for various root canals, implants, bridges, and crowns. He started treatment in April 2008.

Defendant's dental expert, Dr. Frederick Meiselman, testified, however, that he examined plaintiff before Dr. Minichetti began his treatment and found no evidence of any dental fractures. He stated that, in his view, Dr. Minichetti's treatment plan was not warranted.

The jury found that plaintiff and defendant were negligent and the negligence of both parties proximately caused the accident. The jury apportioned sixty percent of fault to defendant and forty percent of fault to plaintiff.

The jury additionally found that plaintiff contributed to thirty percent of her injuries because she failed to follow the advice of her doctors and therapist. The jury awarded plaintiff $100,000 for disability, impairment, pain, suffering and loss of the enjoyment of life, which was reduced to reflect the jury's findings, resulting in a net award of $42,000.

The trial court added prejudgment interest of $6,888 and entered a judgment dated October 27, 2010, awarding plaintiff $48,888, plus costs. Thereafter, plaintiff filed a motion for a new trial. The court entered an order dated November 10, 2010, denying the motion. This appeal followed.

Plaintiff argues that: 1) the trial court grossly abused its discretion by refusing to permit her to be recalled to rebut defendant's "surprise assertion" that she was driving without her headlights illuminated; and 2) the court erred by denying her motion for a new trial on liability and damages because the jury's verdict was a miscarriage of justice.

As stated previously, at trial, defendant testified that she came to a complete stop on West Greenbrook Road before making the left turn into the entrance to the high school. Defendant said that she did not see any cars coming and proceeded to make the turn. She stated that she did not see any headlights.

On cross-examination, defendant testified that, based on her observations, she believed it was safe to make the turn. She said that if plaintiff "had her headlights on or if [she had] seen the car," she would not have made the turn. The cross-examination continued:

Q. So are you saying that [plaintiff] didn't have her headlights on?

A. I didn't see the car, I didn't see any headlights. I have to assume she had no headlights on.

Q. So you're not stating that as a fact, you just think that's something that --

A. I can't say it as a fact, I didn't see the car.

Plaintiff's attorney requested the opportunity to recall plaintiff to rebut defendant's testimony regarding the headlights, stating that this was the first time the issue had come up. The trial court denied the request, but decided to instruct the jury to ignore the comment. At the close of the evidence portion of the trial, the court told the jury that defendant had testified that she did not see . . . the plaintiff's car coming and that's her testimony. I think she added at the very end of her comment, which I'd ask you to ignore, which is, perhaps if she had her headlights on I would have seen her. . . . [T]hat was

[a] presumptive sort of a throwaway remark and I'd appreciate [it if you would] ignore it. But you can [consider] that she did say that she did not see the car. I just don't want you to think that she was making an affirmative statement about the headlights .

Plaintiff argues that the court abused its discretion by refusing to permit her to be recalled to rebut defendant's statements regarding the headlights. We disagree.

A decision on whether to permit a party to present rebuttal evidence is committed to the discretion of the trial court and the court's decision will not be disturbed absent a gross abuse of that discretion. State v. James, 144 N.J. 538, 552-53 (1996). "Rebuttal evidence is permissible when . . . [a] new subject[] [is] introduced on direct or cross-examination of [a] defense witness[]." State v. Cook, 330 N.J. Super. 395, 418 (App. Div.) certif. denied, 165 N.J. 486 (2000) (citing State v. Provoid, 110 N.J. Super. 547, 557 (App. Div. 1970)).

We are satisfied that the trial court did not abuse its discretion by refusing to permit plaintiff to present rebuttal testimony and instead instructing the jury to ignore defendant's statement suggesting that plaintiff may have been driving without her headlights on. While plaintiff says that she was surprised by defendant's trial testimony, the record shows that this issue arose at defendant's deposition.

At her deposition, defendant testified that she "saw no vehicle" approaching and "saw no headlights" when she made the left turn into the entrance to the high school. Defendant was asked whether she knew if plaintiff's vehicle had its headlights on, she stated that she "never saw the vehicle."

In any event, at trial, defendant testified that she could not "say" as a "fact" that plaintiff was driving without her headlights on. Moreover, the trial court instructed the jury to disregard defendant's statements, which it characterized as a "throwaway" remark. We have no reason to assume that the jury did not follow the court's instruction. Williams v. James, 113 N.J. 619, 632 (1989).

Plaintiff additionally argues that the court erred by denying her motion for a new trial. Rule 4:49-1(a) provides that a trial court shall grant 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." A jury verdict should be set aside only in cases of clear injustice. Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).

Plaintiff argues that the court should grant a new trial on the issue of liability and damages. She asserts that the jury's determination apportioning forty percent of the fault to her was against the weight of the evidence. Plaintiff additionally argues that the court should have granted a new trial on damages. She contends that the gross award of $100,000 was "shockingly low and disproportionate" to the injuries she sustained. Again, we disagree.

"A jury verdict is entitled to considerable deference and 'should not be overthrown except on the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" Risko v. Thompson Muller Auto. Group, Inc., 206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)). In reviewing a trial court's decision on a motion for a new trial, we are required to "afford 'due deference' to the trial court's 'feel of the case,' with regard to the assessment of intangibles, such as witness credibility." Jastram v. Kruse, 197 N.J. 216, 230 (2008) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)).

We are satisfied from our review of the record that there was sufficient evidence to support the jury's findings that plaintiff operated her vehicle negligently and her negligence was a proximate cause of the accident. Based on the evidence, the jury could reasonably infer that plaintiff was driving at an excessive speed and, consequently, could not avoid the collision. The evidence also supports the jury's apportionment of forty percent of fault to plaintiff, and the finding that plaintiff contributed to thirty percent of her injuries. In addition, the jury's award of $100,000 was not so disproportionate to the claimed injuries as to shock the judicial conscience. Baxter, supra, 74 N.J. at 596.

Affirmed.

20120131

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