NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3473-08.
Anna P. Pereira, City of Newark Corporation Counsel, attorney for appellant (Gary S. Lipshutz, Assistant Corporation Counsel, on the brief).
Eichen, Crutchlow, Zaslow & McElroy, LLP, and The Maglione Firm, P.C., attorneys for respondent (Barry R. Eichen and Dean Maglione, of counsel; M. Anthony Barsimanto, on the brief).
Before Judges Simonelli, Koblitz and Accurso.
Defendant City of Newark appeals a judgment following a $3, 000, 000 jury verdict in this Tort Claims Act case contending that multiple errors deprived it of a fair trial. We agree and reverse.
Plaintiff Paul Roura was riding a motorcycle on June 30, 2007 along Joseph Street, a two-block thoroughfare in a largely industrial section of the Ironbound, when he slid on gravel while attempting to brake and fell into a pothole resulting in a comminuted fracture of his left leg. He was riding in formation with two other riders and although he saw the pothole, he was unable to avoid it without colliding with one or the other of his companions.
Plaintiff, sixty at the time of trial, required six surgeries to repair his leg, including a total knee replacement which his doctor causally related to the accident. The parties stipulated to past medical expenses of $199, 756.87. Plaintiff presented no lost wage claim. The only testimony regarding future medical expenses was offered by plaintiff's surgeon who testified that plaintiff would likely require another knee replacement at a cost of $50, 000. The jury apportioned liability of eight percent to plaintiff and awarded him $3, 000, 000 consisting of $199, 756.87 in past medical expenses, $500, 000 in future medical expenses, and $2, 300, 243.13 for pain and suffering. The trial judge denied defendant's motion for new trial or remittitur and, after reducing the verdict to reflect the jury's apportionment of liability and medical expenses paid by insurance, entered judgment for plaintiff in the sum of $2, 696, 497.90.
The central issues in the case were whether the City had actual or constructive notice of the existence of the potholeand, if so, whether its failure to protect against that defect in the road was palpably unreasonable. The testimony regarding the City's notice of the condition centered around the testimony of the proprietor of the motorcycle club the riders were leaving at the time of the accident, the City's records of repairs performed on Joseph Street eleven months before the accident, and the testimony of plaintiff's expert.
The proprietor of the motorcycle club testified that he had complained to City employees on a garbage truck at some unspecified time about the general condition of the street, but conceded that he had not called the City to complain about the road's condition and had not complained to anyone about the pothole at issue. The City produced documents in discovery noting that it had received a complaint about Joseph Street on July 28, 2006, eleven months before the accident, and had repaired "12 holes" three days later, on July 31, 2006.
Plaintiff's engineering expert testified at trial that there were "hundreds of depressions" along the two-block length of Joseph Street "and so many repairs, that . . . [t]here's nothing about this [pothole] that makes it stand out, it's just one among many." The expert also testified on the basis of photographs taken shortly after the accident, showing road aggregate in the pothole, that the pothole had existed for more than eleven months. That testimony led to the following exchange:
Q: - on July 31, 2006, [a pothole repair crew] should have [seen] that pothole, true?
A: Yeah, that was number 13. That – that was there to be seen.
Q: - [or] number 100.
A: Or number 100, but I mean, that – that was there for them to see, there's no question about that.
Q: - that represent a dangerous condition?
A: This is a dangerous condition, there's no question about that.
Q: Do you believe the City of Newark was palpably unreasonable in failing to ...