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Vito R. Nigro v. New Jersey American Water Company


June 20, 2012


On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7265-08.

Per curiam.


Argued April 25, 2012 -

Before Judges Fuentes, J. N. Harris and Koblitz.

The matter on appeal concerns a jury award of $900,000 in non-economic damages in favor of plaintiff Vito R. Nigro for injuries sustained on June 2, 2008, when his motorcycle hit a sinkhole in Westfield. Defendant New Jersey American Water Company (Water Company) appeals the denial during trial of its motion for a mistrial based on plaintiff counsel's remarks during summation about the cost of various items thirty-four years ago, alleging the comments "infringed on the jury's damages valuation." Defendant further contends that it was denied a fair trial when the judge failed to instruct the jury to consider the impact of shadows on plaintiff's visibility when evaluating his comparative liability. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The trial testimony revealed the following facts. Plaintiff's head injury rendered him incapable of remembering the accident. On the day of the accident, a sunny day in June, Emanuel Carlino*fn2 was driving in the opposite direction of plaintiff on Westfield Avenue. Carlino observed plaintiff, who was driving within the 25 miles per hour (mph) speed limit, lose control of his motorcycle and crash. Carlino did not witness plaintiff's motorcycle actually strike the sinkhole, but he observed the sinkhole immediately after the accident.

The sinkhole was located on an asphalt patch installed on the road by defendant in February 2008 when it removed a service line. The patch began to disintegrate approximately one month later. Although defendant customarily contacted a paving contractor to perform permanent repairs shortly after installing a temporary roadway patch, it did not do so on this occasion. When neighborhood residents complained about the failed patch, defendant installed another temporary patch. This second temporary patch also failed and another sinkhole formed.

Plaintiff's liability expert Ronald Saxon, P.E., opined that defendant installed three courses of pavement during, at a minimum, two separate installations. Saxon further observed that the cracks suggested that the sinkhole occurred because of a lack of support below the asphalt. Saxon added:

If [plaintiff] saw the [old asphalt] patch itself, he was led to expectations that there was a reasonably safe roadway in front of him. And because of the configuration, the shape of the sinkhole, which I described with respect to [an eyewitness and plaintiff's testimony,] [plaintiff] was denied the opportunity until the very last moment to see that there was something far more severe than just a patched roadway, but there was a sinkhole of -- well, I don't know if he would have thought it was a sinkhole, but there was a hole of significant size right in his path.

Saxon concluded that the sinkhole would not have formed had defendant permanently repaired the patch by excavating and correcting the sub-surface condition.

Saxon also opined that shadows on the roadway likely obscured the hazardous condition in plaintiff's path. No evidence indicated that plaintiff took any action to slow his vehicle or otherwise avoid the hazard.

Plaintiff's life expectancy was established to be thirty-four years from the time of the accident. In summation, plaintiff's counsel referred to the historical cost of three items:

Now, keep in mind that your verdict has to last until the year 2042. [Thirty-four] years. 1977 going backwards, to give you some sense of how long that is, gas was 62 cents a gallon. Jimmy Carter had just been sworn in as president. The average median income in this country was $15,000. The average house cost $49,000. That's how long ago [thirty-four] years is.

Defendant urges that "[p]laintiff's use of non-evidential [thirty-four][-]year[-]old price information unquestionably implied a value of plaintiff's damages." When defense counsel objected, the judge ordered plaintiff's counsel to stop his argument. Defense counsel sought a mistrial, but did not request a curative instruction to the jury. Defendant asserts that the trial court denied it "a fair trial by taking no action to eliminate the prejudice from plaintiff's [counsel's] improper infringement on the jury's exclusive damages valuation."


The first issue on appeal is whether the trial court erred in denying defendant's motion for a mistrial and subsequent motion for a new trial based on plaintiff counsel's comments in summation. We begin by recognizing that our scope of review of a trial court's decision to grant defendant a new trial is narrow. "A motion for a new trial is addressed to the sound discretion of the trial court." Baumann v. Marinaro, 95 N.J. 380, 389 (1984); see also Hill v. N.J. Dep't of Corrs., 342 N.J. Super. 273, 302 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). A trial court's grant or denial of a motion for a new trial should not be disturbed on appeal unless there was an abuse of that discretion. Hill, supra, 342 N.J. Super. at 302; see also R. 2:10-1.

Rule 4:49-1 obligates a trial judge to grant a motion for 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." That obligation arises when the motion is based either upon a contention that the verdict was against the weight of the evidence or, as here, "based upon a contention that the judge's initial trial rulings resulted in prejudice to a party." Hill, supra, 342 N.J. Super. at 302 (citing Crawn v. Campo, 136 N.J. 494, 510-12 (1994)).

The review of a mistrial motion ruling depends "largely on the 'feel' of the case which the trial judge has at the time and his [or her] first-hand judgment in denying such a motion" should not be reversed by "a reviewing tribunal on a cold record." Greenberg v. Stanley, 30 N.J. 485, 503 (1959). The lone exception arises where "it so clearly appears from the printed page . . . that the happening on which the motion was based was so striking that because of it one of the parties could not thereafter have a fair trial." Ibid.

Defendant claims that plaintiff counsel's remarks during summation had a prejudicial effect on the jury's deliberation, which required a mistrial or, at least, a curative instruction. A trial court "has broad discretion in the conduct of the trial, including the scope of counsel's summation." Litton Indus. v. IMO Indus., 200 N.J. 372, 392 (2009).

Defendant relies on the Supreme Court's recent holding in Risko v. Thompson Muller Automotive Group, Inc., 206 N.J. 506, 523-24 (2011), in which the Court affirmed the trial court's grant of a new trial as to damages based on plaintiff counsel's improper summation. The facts in Risko, however, are clearly distinguishable.

In Risko, supra, the Court noted plaintiff counsel's remarks:

[If] someone goes into the jury room and says . . . I don't believe in damages of over a million dollars, because there are people that believe that, you can never have a million dollar case. Well why? Because I don't believe that, it's what's called an arbitrary cap on damages. If someone says that in the jury room please knock, tell [the jury attendant], ask for the judge.

Because what they're doing is ignoring the law. [206 N.J. at 513.]

Here, plaintiff counsel's remarks during summation were in no way equally offensive. When placed in their proper context, the comments appear unlikely to have the effect of hindering the jury's independent assessment of damages. The comments neither suggested a damage amount nor a method of computation. Accordingly, the trial court properly ruled that these comments did not lead "to an unjust result" and that "the jury verdict was [not] tainted by them." The court reasoned:

In this case, plaintiff's counsel did not suggest a floor on damages, suggest any damages, or encourage jurors to interfere with other jurors, who refuse to award a large verdict. He didn't assess the value of pain and suffering in 1977, he asked the jury at the end to assess the value of pain and suffering now. He was not asking them to inflate, or compare, monetary values, he was just giving examples of how long ago [thirty-four] years was, to put in into context.

Any potential for prejudice that may have resulted from plaintiff counsel's remarks could have been addressed by a curative instruction. See City of Linden v. Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div. 2004) ("[A] clear and firm jury charge may cure any prejudice created by counsel's improper remarks during opening or closing argument."). The record reveals, however, that defense counsel made a strategic decision not to request such an instruction.

Defense counsel argued at trial:

And I don't see any way for this Court to ameliorate the prejudice associated with that. There can be, obviously, an instruction given that it's not appropriate for the jury to do so. But how do you unring the bell? It - I can't conceive that an instruction would even do that. It is what it is, in that regard, Judge. You know, the statements were made.

But, you know, I made my application, Your Honor has ruled. I have made my record. I don't think there is anything else that can be done - I'm not going to belabor the point.

Defense counsel further explained his strategy at the hearing on his motion for a new trial, explaining that he did not request a curative instruction in part because it would hinder his chances on appeal:

I maintained, as I maintained then I maintain now, that no instruction would have been adequate, and frankly, look, Your Honor, here's the situation, in a nutshell;

I'm not suggesting that there would have been an instruction that could have been given that would have ameliorated the prejudice. Had an instruction been given, [plaintiff's counsel] could argue, and the Appellate Division has recognized that the general tenor is that we assume juries follow instructions.

Defendant now argues that the judge should have issued a curative instruction even though one was not requested. As such, this purported oversight must rise to the level of plain error. See R. 2:10-2 (explaining that the error must be "of such a nature as to have been clearly capable of producing an unjust result").

Moreover, defense counsel explicitly elected to pursue a mistrial rather than request a curative instruction. This tactical choice implicates the invited error doctrine. "'The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.'" N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 113-14 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010)).

The trial judge did not abuse her discretion in denying defendant's request for a mistrial. The challenged seven-line statement from a forty-eight page summation, though describing facts not judicially noticed or otherwise in evidence, was fleeting and hardly prejudicial to defendant's case. We are guided by our decision in Dolan v. Sea Transfer Corporation, 398 N.J. Super. 313, 332 (App. Div. 2008), where we held that much more egregious comments made during summation did not require a mistrial.


Defendant's final contention on appeal is that the trial court deprived it of its right to a fair trial by failing to charge the jury on a relevant theory of comparative fault. Defendant adds that, if properly charged, "[t]he jury could have concluded that plaintiff breached his duty to account for dangerous conditions that were obscured by shadows on the roadway."

"[A] jury charge 'should set forth an understandable and clear exposition of the issues.'" Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 464 (2000) (quoting Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 210 (1984)), certif. denied, 165 N.J. 607 (2000). Jury charges "'must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them . . . .'" Velazquez v. Portadin, 163 N.J. 677, 688 (2000) (citations omitted). A claim of error in the jury instructions is a claim of legal error and therefore appellate review is de novo. See, e.g., Restaurant Enters., Inc. v. Sussex Mut. Ins. Co., 96 N.J. Super. 26, 32 (App. Div. 1967), rev'd on other grounds, 52 N.J. 73 (1968) ("We find the instruction as given erroneous as a matter of law and as not justified by the evidence.").

"Reversible error will not be found where the charge, considered as a whole, adequately conveys the law and would not confuse or mislead the jury, even though part, standing alone, might be incorrect." Latta v. Caulfield, 79 N.J. 128, 135 (1979). Therefore, when we review jury instructions, we should "consider the overall effect of the charge and look at the language in context to see whether the jury was misled, confused or inadequately informed." Jefferson v. Freeman, 296 N.J. Super. 54, 65 (App. Div. 1996); see also State v. Baker, 400 N.J. Super. 28, 46-50 (App. Div. 2008), aff'd, 198 N.J. 189 (2009) (allegation of error must be judged in context of totality of the entire charge).

Nothing here suggests that the jury instruction given either misled or misinformed the jury as to plaintiff's duty. Defendant specifically sought that the jury hear Model Jury Charge (Civil), § 5.30G(4), which addresses a driver's impaired view with regard to shadows on the roadway. That charge provides in pertinent part:

Where the view of the roadway ahead is impaired by obstructions to view caused by darkness, fog, rain on glass or other such obstruction, there is a duty to exercise care commensurate with the risk of the hazard presented. The operator of a motor vehicle in such a situation is required to exercise reasonable care, that is, such care as the existing conditions require, to have his/her vehicle under such control as to be able to stop, if necessary, to avoid harm to others on the highway.

Carlino's testimony indicated that plaintiff was driving within the 25 mph speed limit in a straight line until the area of the sinkhole, where "the motorcycle just began to shake and wobble and go out of control." The trial judge properly deduced that our jurisprudential duties of care do not impose any special duty on a motorist traveling within the speed limit on a sunny day to scour the roadway because shadows cast by the trees might make it difficult to see a pothole in a patched area of road. The judge charged the jury in pertinent part:

[T]he driver of a . . . motorcycle upon a public highway, is under the duty to exercise for his own safety, that degree of care, precaution, and vigilance in the operation of his motorcycle, which a reasonably prudent person would exercise under similar circumstances.

And he's required to make observation for traffic, and for road conditions . . . .

The law does not impose upon a motorist an absolute duty to observe and avoid obstacles in a street or highway. The operator of a vehicle has the right to place reasonable reliance upon proper preservation of a street or highway in a reasonably safe condition. But where a defect or obstacle is obvious, or clearly visible, or where reasonable observation would disclose it in time to avoid or prepare for it, the operator of a vehicle is liable for failure to exercise reasonable care to avoid that defect.

In the context of the rest of the jury instructions, this charge fully informed the jury of the duty owed by plaintiff.

Defendant's contention on appeal that a particular instruction was required is unpersuasive. A party "is only entitled to an adequate instruction of the law." State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998) (citing State v. Manley, 54 N.J. 259, 271 (1969)), aff'd, 158 N.J. 149 (1999); see also Berberian v. Lynn, 355 N.J. Super. 210, 219 (App. Div. 2002), aff'd, 179 N.J. 290 (2004) ("No party is entitled to have the jury charged in his or her own words. All that is necessary is that the charge as a whole be accurate.") (citing State v. Thompson, 59 N.J. 396, 411 (1971)).


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