MELISSA HENNEBERRY v. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3017-05T53017-05T5

MELISSA HENNEBERRY,

Plaintiff-Respondent,

v.

MASSACHUSETTS MUTUAL LIFE

INSURANCE COMPANY,

Defendant-Appellant,

and

DELOITTE & TOUCHE, LLP, MASS

MUTUAL, METRO FIRE and SAFETY CO.,

Defendants.

__________________________________

MASSACHUSETTS MUTUAL LIFE

INSURANCE COMPANY,

Third-Party Plaintiff,

v.

GENERAL SEWER SERVICE and

MONSEN ENGINEERING,

Third-Party Defendants.

______________________________________

 

Submitted May 15, 2007 - Decided

Before Judges Graves and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2700-03.

Skrod & Baumann, attorneys for appellant Massachusetts Mutual Life Insurance Company (Anthony Grossi, on the brief).

Fricke & Solomon, attorneys for respondent Melissa Henneberry (Richard M. Fricke, on the brief).

PER CURIAM

Plaintiff Melissa Henneberry filed this personal injury action against defendant Massachusetts Mutual Life Insurance Company on April 16, 2003. A four-day jury trial commenced on October 31, 2005. The jury returned a verdict in favor of plaintiff and awarded her $333,158.74 for pain and suffering, past medical expenses, and lost wages. Pre-judgment interest of $16,438.85 was added by the trial court.

Defendant filed a motion for a new trial or, in the alternative, remittitur. Plaintiff cross-moved for addition of post-arbitration costs. On January 6, 2006, defendant's application was denied and plaintiff's application was granted. An amended judgment was entered on January 6, 2006, which included a post-arbitration award of $1,250, thereby adjusting the total award to plaintiff to $350,847.59. Defendant appeals from the entry of judgment after verdict, and the denial of its motion for new trial. We affirm.

These facts are taken from the trial record. Defendant owns the buildings and land composing the Woodcliff Lake Hilton, a hotel in Woodcliff Lake, New Jersey. Defendant engaged New Castle Hotels to manage the day-to-day hotel operations. Plaintiff was employed as New Castle's hotel banquet captain.

On February 2, 2002, beginning at 3:30 pm, plaintiff was managing a party in the hotel's "Crystal Room." Adjacent to that room is an outdoor area referred to as the "staging area," where chairs and other supplies associated with banquet operations were stored. The staging area is surrounded by an exterior hotel wall on one side, and a six-foot wooden fence on the other three sides. One fence-wall contains a gate, with a latch that did not lock. The side of the fence containing the gate separated the staging area from the "HVAC area," which contained a metal grate covering the HVAC "pit." The grate-covered HVAC pit is one step from the gate's threshold. In both of these areas, the only artificial light is limited to the staging area. No signage exists stating that entry into the HVAC area was hazardous or prohibited.

On the date in question, Philip Colon, a banquet employee, entered the HVAC area for a cigarette break, around noon. When he first entered the HVAC area, Colon noticed that the grate covering the HVAC pit was open and he stepped over the open pit. Later that evening, at approximately 9:00 p.m., plaintiff saw Colon walk outside and through the staging area gate. She followed him, as his assistance was necessary for the ongoing event. Plaintiff opened the gate to enter the HVAC area, walked straight through, and fell directly into the HVAC pit, landing on her back.

Colon shouted into the pit to see who was there, as he could not see. Colon testified that the staging area was dark, explaining he had had to search for the cigarette he had hidden earlier that afternoon in the HVAC area. He then went to the manager's office to get help. Colon and the manager went to the basement engineering room, and used a door which accessed the HVAC pit. They helped plaintiff and summoned medical aid.

Plaintiff was ambulanced to Hackensack University Medical Center, where X-rays and CAT scans were taken. She was treated, given pain medication and admitted to the hospital for further treatment. Following her hospital discharge, plaintiff began treatment with Dr. Mitchell S. Garden, who made a preliminary diagnosis of lumbar and cervical strain. Dr. Garden sent plaintiff for MRI's, after which he diagnosed an acute compression fracture at the T12 vertebrae, and identified displaced fractures of the third and ninth ribs on the left side. Dr. Garden prescribed physical therapy, and also referred plaintiff to a pain-management provider, who gave her lidocaine injections. At trial, Dr. Garden testified that based upon reasonable medical certainty, plaintiff's sixteen-foot fall into the HVAC pit was the cause of her injuries.

Plaintiff's various medical expenses totaled $25,217.54. She was unable to work from February 2, 2002 until August 2002, during which time she would have earned approximately $420 to $430 per week. Additionally, her injuries prevented her from completing a final semester of student teaching at SUNY-New Paltz. For this reason, she did not, as planned, complete her degree by the end of the spring 2002 semester, and that in turn precluded her from taking a teaching position with the Children's Country Day School (CCDS), for which she had already contracted. Her salary at CCDS was to be $22,000 for the 2002-2003 academic year. Including her wages from working for New Castle on weekends, plaintiff calculated her income loss, as a result of her injuries, was approximately $29,784. During trial, plaintiff testified she continued to experience pain and is wholly or partially restricted from performing a number of everyday and recreational activities.

Defendant raises the following issues for review on appeal:

POINT I

A NEW TRIAL AS TO ALL ISSUES MUST BE ORDERED AS THE JURY VERDICT REGARDING THE APPORTIONMENT OF LIABILITY BETWEEN PLAINTIFF AND DEFENDANT IS FLAWED AND A MISCARRIAGE OF JUSTICE UNDER THE LAW[.]

POINT II

A NEW TRIAL AS TO ALL ISSUES MUST BE ORDERED AS THE COURT ERRED IN DENYING THE MOTION OF DEFENDANT FOR INVOLUNTARY DISMISSAL CONTRARY TO THE WEIGHT OF THE EVIDENCE.

POINT III

THE COURT ERRED IN ALLOWING THE PLAINTIFF TO INTRODUCE PHOTOGRAPHS WHICH SHOWED A SUBSEQUENT REMEDIAL MEASURE[.]

POINT IV

THE COURT ERRED IN NOT DISMISSING PLAINTIFF'S CASE FOR FAILURE TO PROVIDE EXPERT TESTIMONY REGARDING THE ISSUE OF LIABILTY[.]

POINT V

THE COURT ERRED IN INITIALLY GRANTING [DEFENDANT'S] MOTION TO BAR PLAINTIFF'S EXPERT AND BARRING ANY OF PLAINTIFF'S WITNESSES FROM MENTIONING PERMANENCY AND THEN REVERSING ITSELF PRIOR TO THE END OF TRIAL AS WELL AS CHARGING THE JURY ON THE ISSUES OF PERMANENCY AND LIFE EXPECTANCY[.]

POINT VI

THE COURT ERRED IN PERMITTING DR. MITCHELL GARDEN TO TESTIFY AS TO PLAINTIFF'S MEDICAL TREATMENT UPON WHICH HE DID NOT RELY IN RENDERING HIS OPINION AS WELL AS THE MEDICAL BILLS FOR SUCH TREATMENT AND IN PERMITTING PLAINTIFF TO TESTIFY AS TO TREATMENT RENDERED WHICH WAS UNSUPPORTED BY HER EXPERT[.]

POINT VII

THE COURT ERRED IN PERMITTING PLAINTIFF TO TESTIFY AS TO LOST WAGES, LOST JOBS OR LOST JOB OPPORTUNITIES WITHOUT EXPERT TESTIMONY[.]

POINT VIII

A NEW TRIAL MUST BE ORDERED AS TO ALL ISSUES ON THE GROUNDS THAT THE DAMAGE AWARD WAS SO GROSSLY EXCESSIVE AS TO DEMONSTRATE PASSION, PREJUDICE AND PARTIALITY WHICH TAINTED THE ENTIRE VERDICT AND ON THE GROUNDS THAT THE VERDICT WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE[.]

After considering defendant's contentions in light of the record, the written and oral arguments of the parties, and the applicable law, we conclude that the arguments presented in Points II and VI are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We discuss the remaining issues.

I.

Defendant first argues for a new trial, suggesting a "pervading sense of wrongness" permeates the jury's determination of defendant's liability as to create a miscarriage of justice under the law. See Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977); see also R. 4:49-1. Defendant argues plaintiff "was the primary cause for the happening [of] this accident" as she should have exercised more prudence when following Colon to the staging area as she admits she had familiarity with the HVAC area gate. Also, defendant challenges the credibility of plaintiff's testimony that she never looked past the gate's threshold to view the open grated HVAC pit, and that she could not see the open HVAV pit due to darkness.

A jury verdict is entitled to a presumption of correctness. Baxter, supra, 74 N.J. at 598. "The standard for . . . setting aside a verdict already sustained by the trial judge is high." Horn v. Village Supermarkets, Inc., 260 N.J. Super. 165, 178 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993). A jury verdict will not be set aside "unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses," it clearly appears that there was a miscarriage of justice under the law. Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969) (quoting R. 4:49-1(a)). "[T]he standard for authorizing a new trial is one that requires a determination that the jury's verdict is 'contrary to the weight of the evidence or clearly the product of mistake, passion, prejudice or partiality,'" Crawn v. Campo, 136 N.J. 494, 512 (1994) (quoting Lanzet v. Greenberg, 126 N.J. 168, 175 (1991)), none of which is found in this record. Our review of the record discerns no basis to disturb the jury's verdict.

In denying defendant's motion for a new trial, Judge Conte stated:

One of the big issues in this case on the motion and the appeal, of course, is the lighting. Before this jury, there is testimony by Philip Colon who said that he was working [at the Hilton]. He was the banquet server. That the plaintiff was the captain. And the area was described to him by photographs and testimony.

He said the area had a gate and a fence. That he had gone into that gated [HVAC] area earlier in the day. That it was not a closed area. Even though there was a fence, the gate was open. There was a [metal] grate coming out of the area. . . . [H]e went into the area to smoke.

He testified that it was not a restricted area. He was never told it was a restricted area. They actually stored chairs in that area. He says the gate was open. There were no padlocks of any kind on it. At least twice he went into that gated area. And he went back there later in the evening to smoke again.

His testimony -- I wrote down his remarks -- is that there was no other lights. It was dark. He was searching for a cigarette. He heard someone coming through the gate. Then he heard the scream. Did not eve know who she was, but he look[ed] down in the hole and asked if she was okay. So the jury did have that information.

[The jury] also had the information through Ms. Henneberry that she had never been in that area before. Never had any instructions to that gated area. That there was never any training. That no one talked about it.

And she went to that area because she saw Phil go in there. That was approximately 9:00 or 10:00 o'clock [in the evening]. She did see him. She was focusing on him. She went into the area and fell in the hole that was open. She did describe the lighting [in the] area as dimly lit. Low lights by [the] grate area. Took steps in to fall.

. . . .

Defense put their witnesses in. The Court was a little bit surprised with Rosa [Mondeja]'s testimony[,] as she was the one in charge of the investigation. But she didn't even investigate it until Monday. That surprised me in a way. I don't know what effect that had on the jury. I don't know how her testimony at all helped anybody as to what happened that evening.

She said the area above . . . the [kitchen] door was [lit]. There were no other lights in the area close to the gate, she said. So I don't know if her testimony helped or hurt [the defense].

So based upon all the evidence in this case[,] [the court is going] to deny the motion for a new trial.

As found by the trial court on defendant's motion for a new trial, the jury verdict was grounded in the evidence, and it did not constitute a miscarriage of justice.

II.

Defendant maintains error by the trial court in admitting into evidence, over defendant's objection, a photograph of the gate evidencing subsequent remedial measures. The staging area gate was photographed the day after the accident. In addition to the gate and lock as it existed prior to plaintiff's accident, the picture included two metal brackets which had been applied to the gate to prevent its opening. Defendant argues the metal brackets led the jury to believe that if these brackets had been present on the day of the accident, the accident would have been prevented.

We review a trial court's evidentiary rulings under an abuse of discretion standard, Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). "In general, a trial court is afforded 'considerable latitude regarding the admission of evidence,' and is to be reversed only if the court abused its discretion." State v. Nelson, 173 N.J. 417, 470 (2002) (quoting State v. Feaster, 156 N.J. 1, 82 (1998)). Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless "the trial court's ruling 'was so wide of the mark that a manifest denial of justice resulted.'" State v. Marrero, 148 N.J. 469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

Photographic evidence is usually admissible as demonstrative proof, assuming it is relevant, N.J.R.E. 401; fairly and accurately depicts the subject matter at the time of the event in question, Spedick v. Murphy, 266 N.J. Super. 573, 590 (App. Div.), certif. denied, 134 N.J. 567 (1993); is properly authenticated or verified as a true representation, Garafola v. Rosecliff Realty Co., 24 N.J. Super. 28, 42 (App. Div. 1952); and is not otherwise unduly prejudicial, confusing, misleading or wasteful of time. N.J.R.E. 403.
N.J.R.E. 407 states that: "Evidence of remedial measures taken after an event is not admissible to prove that the event was caused by negligence or culpable conduct. However, evidence of such subsequent remedial conduct may be admitted as to other issues." Ibid. "[W]here such evidence is offered for relevant purposes other than negligence or culpable conduct, it is admissible." Brown v. Brown, 86 N.J. 565, 581 (1981).

No attention was drawn to the remedial metal brackets

and no reference was made that their addition evinced defendant's negligence. We determine no misapplication of discretion in the admission of the photographs which provided the jury with an overview of the HVAC area gate.

III.

Defendant asserts that plaintiff's failure to present expert testimony as to the adequacy of outdoor lighting prevents sufficient evidence for a jury determination on whether defendant breached its duty of care. In defendant's view, an expert would have made clear what "standard or code by which the lighting [level] could be judged."

A similar argument is posed in Point VII: defendant contends plaintiff should not have been permitted to testify as to her lost wages without expert testimony from either "an employability and/or vocation expert."

N.J.R.E. 702 states that "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert . . . may testify thereto." Conversely, "some hazards are relatively commonplace and ordinary and do not require the explanation of experts in order for their danger to be understood by average persons." See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 450 (1993).

Whether the lighting behind the hotel staging and HVAC areas was sufficient or the total amount of wages forgone during plaintiff's recovery were questions that were not "so esoteric that jurors of common judgment and experience [could] not form a valid conclusion . . . without the aid of an expert opinion." Wyatt by Caldwell v. Wyatt, 217 N.J. Super. 580, 591 (App. Div. 1987) (citing Butler v. Acme Markets, Inc., 89 N.J. 270, 283 (1982)). The relevant circumstances surrounding each of these issues can easily be understood by average jurors who had the benefit of witness testimony and who "utilize[ed] common judgment and experience" in making an acceptable determination. See Campbell v. Hastings, 348 N.J. Super. 264, 270 (App. Div. 2002). Plaintiff additionally supplied documentary evidence, including her tax documents and her teaching contract, as proof of income. We do not agree that the jury was asked to speculate on these issues.

IV.

Defendant next contends that the trial court "erred in initially granting its motion to bar plaintiff's expert and bar[] any of plaintiff's witnesses from mentioning permanency . . . as well as charging the jury on the issues of permanency and life expectancy." Defendant, however, is mistaken; the trial court never limited Dr. Garden's testimony, nor did it bar his discussion about the permanency of plaintiff's injuries. Defendant's objection was denied. The only restriction on mentioning "permanency" was confined to counsel's opening and summation.

V.

Finally, defendant challenges the damage award as being grossly excessive, unsupported by the evidence produced at trial, and "plainly result[ing] from deliberations infected by sympathy, passion, prejudice, and partiality." See Aiello v. Myzie, 88 N.J. Super. 187, 194 (App. Div.), certif. denied, 45 N.J. 594, (1965). Judge Conte found that "the evidence adduced at trial was sufficient for the jury to find that defendant was negligent" and that the amount of the verdict "did not strike the conscience of this court as being too excessive." See Tawell v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971) (citing Fritsche v. Westinghouse Electric Corp., 55 N.J. 322 (1970)). We agree and conclude there was sufficient credible evidence present in the record as a whole to support all aspects of the jury's verdict. See Crego v. Carp, 295 N.J. Super. 565, 577-79 (App. Div. 1996).

Affirm.

 

Plaintiff filed an amended complaint adding Metro Fire and Safety Co. ("Metro") as a defendant, and defendant filed a third-party complaint naming General Sewer Service and Video ("General") as a third-party defendant. Defendant then amended its third-party complaint to also add Monsen Engineering Company ("Monsen") as a third-party defendant. Metro filed a motion for summary judgment against plaintiff, and General filed a motion for summary judgment against defendant-third party plaintiff. The requests were both granted on April 15, 2005. On August 19, 2005, Monsen's motion for summary judgment against defendant was granted.

(continued)

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A-3017-05T5

July 12, 2007