On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5200-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Espinosa.
Plaintiff William Carr sued defendants Evergreen Equities, LLC (Evergreen), Allstate Realty Associates (Allstate) and Harden Urban Development Corporation (Harden) alleging personal injuries as a result of a fall on ice in a parking lot in East Orange owned, operated, maintained or controlled by defendants.*fn1
At trial, the jury concluded that the negligence of Evergreen and plaintiff were proximate causes of the accident and apportioned their respective responsibility -- sixty percent to Evergreen and forty percent to plaintiff. In considering the damages proximately suffered by plaintiff as a result of the accident, the jury awarded him $6250 in past lost wages, but made no award for past medical expenses or pain and suffering. The judge molded the verdict and entered judgment in favor of plaintiff in the amount of $3750, plus pre-judgment interest in the amount of $316.36.
Plaintiff moved for a new trial on damages. R. 4:49-1. Following oral argument, the trial judge denied the motion and this appeal followed. We have considered plaintiff's arguments in light of the record and applicable legal standards. We affirm.
The testimony at trial revealed that plaintiff arrived at work on the morning of March 21, 2007 at approximately 8:00 a.m. The parking lot had been plowed, but there was "a lot of ice and . . . residual snow on it." After exiting his car, he "took a couple of steps and fell." Plaintiff's knee struck the pavement, he immediately felt pain, and his knee became swollen. After going home to change his torn pants, plaintiff returned to work. The following day, plaintiff saw a doctor who x-rayed the knee, told him that "she [saw] problems" and advised plaintiff to return if the pain continued.
Plaintiff next saw a doctor eleven months later in February 2008 after experiencing pain on a regular basis whenever he "use[d] [his] knee extensively." An MRI was conducted and arthroscopic surgery was performed by Dr. Alan R. Miller in June 2008.
Plaintiff used accumulated sick time to cover the twenty-five days of work he missed following surgery. Plaintiff had retired since the surgery, and testified that he would have been compensated for unused sick days upon retirement at a "[n]et" rate of $250 per day.
Plaintiff's expert at trial, Dr. Andrew Carollo, a board-certified orthopedic surgeon, examined plaintiff, the MRI studies, Miller's operative report, inter-operative photos from the arthroscopy and other medical records. Carollo noted that the MRI demonstrated a "tear through the degenerative lateral meniscus as well as [a] tear of the medial meniscus," and "degenerative changes on the lateral tibial plateau on the MRI." Carollo opined that as a result of the fall, plaintiff suffered a "severe contusion dash sprain of the right knee," "tears of [the] medial and lateral menisci," and "aggravation of pre-existing degenerative changes of the right knee." Carollo reviewed various medical bills and further opined that the total amount, $18,106.44, represented "treatment" that "was both reasonable and necessary in light of the injuries" plaintiff suffered in the fall.
Evergreen's expert, Dr. Edward Decter, also a board-certified orthopedic surgeon, testified that after examining plaintiff, his initial opinion was plaintiff suffered tears of the medial and lateral meniscus "as a result of the fall." However, Decter changed his opinion after reviewing the "inter-operative photographs" taken during the surgery. Decter agreed that plaintiff's knee revealed two torn menisci; however, he disputed Corollo's conclusion that only one was degenerative. Reading from his final report, Decter testified,
These are obviously degenerative changes in the knee, degenerative meniscal tears. These are not acute in nature, meaning they didn't happen right away.
These are not caused by the accident in question. They are chronic and longstanding. They are diffuse, degenerative meniscal changes which in ...