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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 ...

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