June 26, 2013
ANNMARIE TERMYNA, Plaintiff-Appellant,
JONAS SALK MIDDLE SCHOOL, OLD BRIDGE TOWNSHIP BOARD OF EDUCATION, DEFINO CONTRACTING, Defendants-Respondents, and MEDINA CONSULTANTS,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2049-09.
Drazin & Warshaw, P.C., attorneys for appellant (Brian D. Drazin, on the brief).
Weston, Stierli, McFadden & Capotorto, attorneys for respondents Jonas Salk Middle School and Old Bridge Township Board of Education (John Goworek, on the brief).
Law Offices of Joseph Carolan, attorneys for respondent DeFino Contracting (Joseph Carolan and George H. Sly, Jr., on the brief).
Before Judges Koblitz and Accurso.
Plaintiff Annmarie Termyna appeals from summary judgment in favor of Jonas Salk Middle School (JSMS) and Old Bridge Township Board of Education (BOE) entered on April 15, 2011, a judgment of no cause in favor of DeFino Contracting (DeFino) entered after a jury verdict on January 20, 2012, and a March 2, 2012 order denying a new trial. Plaintiff argues that she suffered a significant permanent disability within the meaning of N.J.S.A. 59:9-2(d) and that the verdict was against the weight of the evidence and based on an impermissible argument by defense counsel. After reviewing the record in light of the contentions advanced on appeal, we affirm.
In the summer of 2007, DeFino was hired to expand the JSMS' parking lot. Although a utility pole located in the original lot was not yet removed, DeFino paved around the pole to complete the lot's expansion. On November 29, 2007, plaintiff, who was employed as a school bus driver, fell into a pothole in the parking lot of JSMS. The hole had been created by the relocation of the utility pole after construction by DeFino ended in early August 2007. Jersey Central Power and Light (JCP&L) moved the pole no earlier than August 31. Thereafter, DeFino returned with hand tools to complete a punch list with tasks needed to complete the parking lot. The punch list was prepared August 23, prior to the removal of the pole. Hector DeFino, the president of DeFino, who oversaw the school project, testified that he was never asked to fill the hole left by the removal of the utility pole and was not aware of it.
The Director of Plant Services of the BOE, Frank Frazzitta, testified that he asked DeFino to repair the hole and it refused. Frazzitta stated that the utility pole left behind a hole approximately three feet deep. Plaintiff testified that at the time she fell the hole was about two to three inches deep.
Plaintiff suffered a non-displaced fracture at the base of the right fifth metatarsal bone, which connects to the little toe on the foot. An X-ray noted that she also had inflammatory arthritis in that foot. She was placed in a splint and then a fracture boot. Her treating doctor, Dr. Michael Cunningham, told her that the foot was healing properly and no physical therapy was needed.
A follow-up evaluation in May 2010 revealed persistent pain and EMG testing conducted in August 2010 revealed right-sided L-5 radiculopathy. Her orthopedist, Dr. Nasser Ani, indicated that ambulation relating to the fracture caused her right-sided radiculopathy with pain down her leg. He opined in his report that she suffered "a certain degree of permanency."
Plaintiff testified at deposition that her pain was weather-related. She has pain when standing for long periods, cannot wear shoes with elevated heels and has difficulty climbing into trucks. She was able to continue her job as a bus driver after the fall, and she is able to perform her current job as a car salesperson.
The defense doctor, Dr. Michael H. Gordon, concluded in April 2010 that there was no permanency associated with the healing of the fracture.
We review a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46-2. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010); see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).
Plaintiff argues that the motion judge used the incorrect test in analyzing plaintiff's disability when granting summary judgment to the public entities pursuant to the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3. The judge, however, correctly referred to the Supreme Court case of Brooks v. Odom, 150 N.J. 395, 402-03 (1997), in which the Court set forth the test as follows:
To recover under the Act for pain and suffering, a plaintiff must prove by objective medical evidence that the injury is permanent. Temporary injuries, no matter how painful and debilitating, are not recoverable. Further, a plaintiff may not recover under the Tort Claims Act for mere subjective feelings of discomfort.
[(Citations and internal quotation marks omitted).]
In Brooks, the Supreme Court reinstated the trial court's dismissal of a plaintiff's claims under N.J.S.A. 59:9-2(d) because the plaintiff could still function in both her employment and as a homemaker. Id . at 406, 407. The Court reached that conclusion even though the plaintiff was still experiencing post-accident pain and had permanent restrictions of her motion in her neck and back. Id . at 406.
"[T]he Legislature intended that a plaintiff must sustain a permanent loss of the use of a bodily function that is substantial." Ibid.; see also Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324 (2003) (plaintiff's injury met the permanent loss threshold allowing the question to go before the jury, even though he was still able to teach, but could no longer stand, sit or walk comfortably for substantial amounts of time, engage in athletics or complete household chores); Ponte v. Overeem, 171 N.J. 46 (2002) (plaintiff's knee injury, which required surgery, did not meet the permanent loss threshold, in part because the record was lacking as to the extent and permanency of his impairments); Heenan v. Greene, 355 N.J.Super. 162 (App. Div. 2002) (plaintiff's cervical disc herniation, which led to a less strenuous teaching job and more breaks in household chores, did not meet the permanent loss threshold).
The motion judge also referred at length to Newsham v. Cumberland Reg'l High Sch., 351 N.J.Super. 186, 194 (App. Div. 2002), in which we reviewed recent cases and "conclude[d] that the underlying principles set forth in Brooks still control." The facts in Newsham are indeed similar to this case in that the plaintiff continued to experience some pain and discomfort after a vertebra compression fracture while cheerleading, although the permanent limitations on her activities were relatively minor. Id . at 187, 195. The motion judge determined that "the limitations on [plaintiff's] activities are minor." The judge noted that plaintiff does not experience problems with her foot when the weather is dry, she can wear shoes, she can get in and out of vehicles other than trucks, she can still perform her job even though she is often on her feet, and she takes her children to their sporting events and watches them, albeit seated rather than standing.
We agree with the motion judge's analysis of the extent of plaintiff's injuries and his grant of summary judgment under the Act.
Plaintiff argues that the verdict of no cause was against the weight of the evidence. A court may set aside a jury verdict where the verdict is against the weight of the evidence. R. 3:20-1. The jury verdict should only be set aside by the trial judge where it clearly and convincingly appears there was a miscarriage of justice. R. 2:10-1; State v. Sims, 65 N.J. 359, 373-74 (1974); State v. Gaikwad, 349 N.J.Super. 62, 82 (App. Div. 2002). On review, we apply essentially the same standard. Dolson v. Anastasia, 55 N.J. 2, 7 (1969). Our Court explained that "where certain aspects are important — witness credibility, 'demeanor', 'feel of the case', or other criteria which are not transmitted by the written record —, the appellate court must give deference to the views of the trial judge thereon." Ibid. The trial judge also has a limited role. "The object is to correct clear error or mistake by the jury. Of course, the judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a thirteenth and decisive juror." Id . at 6. "[T]he verdict must be considered in the light most favorable to the prevailing party." Crego v. Carp, 295 N.J.Super. 565, 578 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997).
Plaintiff argues that the verdict was against the weight of the evidence because DeFino improperly blamed JCP&L and the BOE for not repairing the hole in the parking lot. Plaintiff argued that the contract between DeFino and the BOE required DeFino to make all repairs to the parking lot until the project received final approval. Hector Defino testified that the contract refers to damages during construction, such as someone walking on wet concrete or a car driving on warm asphalt. The contract provision states, "Until its final acceptance, the [c]ontractor shall be responsible for damage to or destruction of the [p]roject, or to any part thereof, due to any cause whatsoever."
Plaintiff argued to the jury that DeFino knew the hole was there and did not fulfill his contractual obligation to fill it
Plaintiff argues on appeal that defense counsel improperly blamed JCP&L the "empty chair" while indicating in answers to interrogatories that no other entity was at fault and not filing a third-party complaint against JCP&L Although the judge charged the jury to disregard that argument plaintiff argues that the judge's corrective instructions were insufficient Plaintiff does not specify in what way the instructions were lacking
DeFino argued that it was not its responsibility to repair the hole made by the removal of the utility pole and that in fact someone else must have filled in the three-foot-deep hole leaving a dangerous two-inch depression This argument is entirely consistent with the evidence
Plaintiff has not sustained her heavy burden to demonstrate that the verdict was a miscarriage of justice