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Montalbano v. Coan

Superior Court of New Jersey, Appellate Division

October 9, 2013

ADELE MONTALBANO, Plaintiff-Appellant,
ANGELA COAN and DANNY COAN, Defendants-Respondents.


Submitted September 9, 2013

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2918-09.

Michael Wiseberg, attorney for appellant.

Zimmerer, Murray, Conyngham & Kunzier, attorneys for respondents (Robert Zimmerer, of counsel and on the brief).

Before Judges Ashrafi and Leone.


In this slip-and-fall case, plaintiff Adele Montalbano appeals from the jury's verdict granting her net damages of $13, 000 and from the trial court's denial of her motion for a new trial on damages or an additur. We affirm.

Plaintiff was injured on Christmas day 2008 while at a family gathering at the home of defendants Angela and Danny Coan, her sister and brother-in-law. She fell on an outdoor deck and suffered a laceration to her head and injury to her knee. She was driven to the emergency room of a hospital. A physician used about thirty staples to close the bleeding wound in the back of plaintiff's head. Plaintiff was discharged from the hospital with a prescription for pain medication. She returned to defendants' home and rejoined the family meal. Family members observed her to be walking carefully and feeling substantial pain. She spent the night at defendants' home.

Two days later, plaintiff visited a primary care physician. The doctor ordered a CAT scan of her head and prescribed more pain medication. In early January 2009, the primary care physician ordered an MRI of the brain because plaintiff was still complaining of headaches. At that time, plaintiff also complained of pain in her left hand and in her left knee, and x-rays were taken. The x-rays of her left knee were normal except for mild degenerative changes. Subsequently, neither the CAT scan nor the MRI of the head revealed the cause of plaintiff's headaches. A few months later, plaintiff also complained of pain in her shoulder.

Plaintiff first saw an orthopedist in the latter part of January 2009. In February 2009, an MRI of the knee revealed a tear of the medial meniscus. In March 2009, arthroscopic surgery was performed to repair the torn meniscus. Plaintiff then underwent six weeks of physical therapy on the knee. The surgery also left small scars around the knee. Plaintiff was out of work a total of six weeks around the time of the accident and after the surgery. In September 2009, plaintiff saw the orthopedic surgeon for a follow-up examination, and x-rays revealed mild or moderate osteoarthritic changes in the knee.

At the jury trial in July 2011, plaintiff testified about her fall, her medical treatments, and her headaches and knee pain. She testified about limitations on her usual activities that she attributed to the injuries, including pain when she kneeled at church and inability to do household chores such as cleaning the bathtub. Although these limitations had lasted for some time after plaintiff was injured, they were resolved by the time of trial, and plaintiff could kneel again. She testified that she was all right except that she still suffered headaches periodically, sometimes once a week, sometime more often.

Plaintiff's primary care physician and the orthopedic surgeon testified about the conditions they diagnosed and their treatment of plaintiff's injuries. The orthopedic surgeon testified as an expert witness for plaintiff that her knee injury was caused by the Christmas day fall.

In the defense case, defendants testified that snow had been cleared from the deck before the Christmas gathering but they had not salted the deck or put down sand to treat its icy condition. A defense medical expert who had examined plaintiff about one year before the trial testified about his analysis of plaintiff's injuries and condition.

The jury deliberated for about two hours. A separate question on the verdict sheet asked whether plaintiff had proven her knee injury was caused by the slip and fall, but the jury was also instructed to consider all of plaintiff's proven injuries in determining its award of monetary damages.[1] The jury asked several questions during its deliberations, indicating that it was split on the issue of causation of the knee injury. It requested a transcript of the testimony of the orthopedic surgeon pertaining to causation of the knee injury. The court had a portion of the doctor's testimony read back for the jury. Shortly after the read-back, the jury returned with a five to one verdict that the knee injury was caused by the Christmas day fall. It also reached a comparative negligence verdict of sixty-five percent liability of defendants and thirty-five percent responsibility of plaintiff, and total damages of $20, 000 for plaintiff's pain and suffering and related damages.

Plaintiff moved for a new trial on damages or an additur, which the trial court denied.

On appeal, plaintiff argues that the jury's damages verdict was a miscarriage of justice because the net award of $13, 000 was too low for the injuries she suffered. We reject that argument as contrary to our standard of review under longstanding Supreme Court precedent, which requires that we not disturb a jury's verdict on damages "unless it is 'so disproportionate to the injury and resulting disability as to shock the conscience and [convince the court] that to sustain the award would be manifestly unjust.'" Ming Yu He v. Miller, 207 N.J. 230, 249-50 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 604 (1977) (alteration in original)); accord Mahoney v. Podolnick, 168 N.J. 202, 229-30 (2001); Carrino v. Novotny, 78 N.J. 355, 360 (1979); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).

As an illustration of our deference to the jury's verdict on damages, in Kozma v. Starbucks Coffee Co., 412 N.J.Super. 319, 321 (App. Div. 2010), we declined to set aside a jury's verdict of zero damages for slip-and-fall injuries at a Starbucks restaurant, even though the jury had concluded Starbucks was sixty percent at fault. "[A] jury verdict, from the weight of evidence standpoint, is impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice." Carrino, supra, 78 N.J. at 360.

Here, the trial judge concluded that plaintiff had not presented substantial evidence of continuing effects of her injuries, and that the jury's verdict was not a miscarriage of justice. We have no reason on this record to disagree with the jury's determination of the quantum of money damages that will fairly compensate plaintiff, or the trial judge's conclusion that an additur or a new trial is not warranted under the appropriate standard of review.

In addition, we reject plaintiff's contention that the trial judge erred in barring summation argument by plaintiff's attorney that the jury should consider the pain of a dental procedure without Novocain in applying a time-unit analysis, see R. 1:7-1(b), to assess an appropriate award of damages. Plaintiff mistakenly interprets an unpublished decision of this court as approving such an argument. Not only are unpublished opinions without precedential authority, R. 1:36-3, but the decision upon which plaintiff relies only held that the defendant in that case had not demonstrated plain error. The argument that plaintiff sought to make was contrary to the Supreme Court's holding in Cox v. Valley Fair Corp., 83 N.J. 381, 385 (1980), and the trial court correctly prohibited it.

Finally, we view as without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), plaintiff's argument that the trial court erred in including a separate question on the jury verdict form pertaining to causation of plaintiff's knee injury.


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