On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-7188-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2012 -
Before Judges Reisner, Simonelli and Accurso.
Plaintiff Mark Schiavi appeals from a December 8, 2010 judgment on his personal injury complaint against defendants, and from the trial court's December 17, 2010 order denying his motion for a new trial or for additur.
Plaintiff claimed that he fell and injured his ankle while boarding a ferry. Immediately after the incident, an emergency room physician diagnosed him as having a sprained ankle, but three days later another doctor found that plaintiff had a ruptured Achilles tendon that required surgery. On this appeal, plaintiff contends that the $5000 verdict returned by the jury for pain and suffering was against the weight of the evidence. He also contends that the defense was improperly permitted to argue that the rupture occurred some time after the ferry incident and was caused by defendant's gout or obesity, although the defense did not present expert testimony to support that theory. He contends that there was no proof that his gout or weight, or some later incident, caused the ruptured tendon. In a related argument, he contends there was no proof that later surgery, performed after he suffered complications from the first surgery, was unnecessary or improperly performed. Finally, he argues that the $5000 verdict was shockingly inadequate, contrary to the evidence, and justified additur or a new trial.
Having reviewed the entire record, we agree with the trial judge's conclusions that the jury could reasonably have found that plaintiff suffered only a sprained ankle in the ferry incident, and that the damage award was commensurate with that finding. We are unable to agree with any of plaintiff's additional claims of trial error. Consequently, we affirm.
Plaintiff, an attorney employed by an insurance company, had commuted by ferry from Hoboken to his job in Manhattan for nine years without incident. However, on September 25, 2006, he injured his left ankle while attempting to board the ferry LAGUARDIA at the Hoboken terminal. To board a waiting ferry, passengers cross a flat floating barge and step from the barge onto the ferry. Plaintiff claimed that as he stepped off the barge onto the ferry, the ferry suddenly dipped several inches below the level of the barge, and as a result, his left foot was caught between the ferry and the barge.*fn1 He claimed this incident caused his Achilles tendon to rupture.
At trial, plaintiff recalled the incident:
I was stepping on the boat with my left foot and I had a visual where I was going to step. As I was stepping, I stepped on the boat, I didn't feel it there anymore, it dipped down. The boat then came back up. I was moving my right foot trying to get onto the boat. Something grabbed the back of my foot and I believe that I tugged once, it didn't come out. I tugged twice, and I think at that time felt a little twinge and was able to dislodge my foot and I went over and stopped myself, like, my hands hit the deck so I wouldn't fall. Then I felt my foot dangling. I felt like pins and needles.
And I tried to put pressure on it, I couldn't. I flopped over to the front row of seats and, again, I tried to -- even put pressure on it from sitting down and I couldn't do that.
Plaintiff testified that after his injury one of the deck hands came over and asked if he required medical help. Plaintiff replied that he did not know but observed that he could not put "any pressure" on his foot. Plaintiff explained that he did not ask for immediate medical attention because "[a]t that point I didn't know what was wrong with me." He said that neither of the deckhands on the ferry assisted him.
Plaintiff recalled that he "hopped off the boat" before it departed to Manhattan and "went over to a bench that was sitting on the barge." He "felt a lot of pain." About ten to fifteen minutes later, a deckhand named Albert from another vessel asked plaintiff what happened. Plaintiff told him about his fall and said he was unsure if he needed help. The deckhand "went up to his captain" and "explained what happened." The captain "came down, shut his boat down and then went and he got . . . assistance." A representative from New York Waterway arrived and asked plaintiff "should we get an ambulance," and plaintiff agreed.
Plaintiff testified that he was taken by ambulance to St. Mary's Hospital in Hoboken, where an emergency room doctor diagnosed him as having a sprained ankle. While plaintiff told the doctor he had experienced a "flare-up" of gout prior to the accident, at the trial plaintiff insisted that he only had that one prior episode of gout. When asked on cross-examination if he had been taking a medication called Allopurinol "for years," plaintiff admitted that he had; asked if that medication was for gout, plaintiff claimed he took a lot of medications and had no idea why he was taking the Allopurinol.
Plaintiff testified that he was released from the hospital, and rested at home for two days before seeking additional medical care. He denied having any additional mishaps to his ankle while at home during that period.
The defense presented several witnesses who contradicted plaintiff's version of the accident. Deckhand Gerald Torres testified that not only was he present when plaintiff fell but that Schiavi, who weighed 295 pounds, fell on Torres and injured Torres' back. According to Torres
. . . I was keeping a count, and reminding people to watch their step as they board the vessel, and we were towards . . . the end of our boarding process when Mr. Schiavi came on the boat, and took a few steps onto the bow, and the next thing you know, he's falling -- it happened in a flash. Falling onto me. I caught him . . . he didn't trip . . . over anything. It was just pretty much he stumbled.
Torres was certain that Schiavi was "already on the boat" when he either tripped or stumbled. He recalled that Schiavi did not yell or scream, or make any sound of pain when he fell. Plaintiff did not respond to Torres' offer to summon medical assistance and refused to provide his name when asked. Torres testified that he saw plaintiff leave the ferry without assistance. Torres assumed that "he was okay" and "perhaps embarrassed" by the incident.
Torres then "went ahead and closed up the gates, finished up with a few passengers" as "it was rush hour." After his shift finished for the day, at approximately 10:00 a.m. that morning, Torres filled out an incident report pursuant "to company policy." He wrote the following:
Boat named LaGuardia, Terminal Hoboken, location of accident, Hoboken Terminal, New Jersey, Captain and crew, Ray Perez, Harvey Colon, Gerald Torres.
At 7:20, a gentlemen lost his balance, and tripped on the bow of the [boat] . . . I reached out and caught him before he fell to the ground . . . At the time, I asked him twice if he required medical attention, and both times he responded that he wasn't sure . . . Since ...