GEORGE SVARC v. L & A FORWARDING, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1073-04T21073-04T2

GEORGE SVARC,

Plaintiff-Appellant,

v.

L & A FORWARDING, INC.,

Defendant-Respondent.

__________________________________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Wecker and Graves.

On appeal from Superior Court of New Jersey, Law

Division, Bergen County, L-1822-03.

Riley E. Horton, Jr., attorney for appellant.

Harwood Lloyd, attorneys for respondent (Russell A.

Pepe, of counsel and on the brief).

PER CURIAM

Plaintiff George Svarc appeals from an order for judgment in favor of defendant following a jury trial. Plaintiff alleges that defendant negligently damaged his tractor-trailer while it was being loaded with a pallet of steel ingots at defendant's warehouse facility. We affirm.

Plaintiff presents the following argument:

THE JURY'S VERDICT CLEARLY AND CONVINCINGLY CONSTITUTES A MISCARRIAGE OF JUSTICE UNDER THE LAW AND THUS MUST BE SET ASIDE.

Preliminarily, we note that plaintiff failed to seek a new trial from the trial court as a prerequisite to his present claim, and defendant argues that plaintiff's appeal is procedurally barred. R. 2:10-1 states:

In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.

Although we perceive no sound reason for relaxing this rule, we have, nevertheless, reviewed the evidence adduced at trial, and we are satisfied that the jury's verdict does not constitute a miscarriage of justice.

The only persons to testify during the trial were the plaintiff and Larry Cohen, the forklift operator employed by defendant L&A Forwarding, Inc., who was attempting to load plaintiff's trailer when it was damaged. Plaintiff testified that on March 28, 2001, he drove his truck to defendant's warehouse where he learned that four pallets of steel, which weighed approximately 40,700 pounds, were scheduled to be transported to the State of Washington. After observing the material that was to be transported, plaintiff "accepted the load." He then backed his trailer up to a loading dock. Plaintiff acknowledged that during the loading process, he was inside his trailer talking to the forklift operator and "waving him in."

Cohen testified that he heard "creaking" and "excessive noise" when he started to load plaintiff's trailer:

The [gentleman] was in the truck waiving me in. I said, "Are you sure you want me to come further?" And he said, "Yes." So I went maybe about three and a half feet forward and I said, "I'm not doing this." And I backed out and didn't give him the load.

During closing arguments, plaintiff's attorney told the jury "we all agree that this was a legal load." But he also told the jury:

Something went seriously wrong here. And George was not operating the forklift which loaded this material. He was really the innocent trucker. The Judge will instruct you on the law. The bottom line is that the defendant owed a duty to George to prevent his truck from sustaining this damage. We believe that the defendant breached that duty. We also believe that, if you look at all the evidence, you will agree that defendant L&A was negligent.

Defendant's attorney, on the other hand, emphasized during his summation that the load was not illegal, plaintiff knew the condition of his truck, and plaintiff was giving directions to the forklift operator:

Now, let's talk just a little bit, because I'm sure it's fresh in your mind about how this happened. There's no question from either side that this was a legal size load. Again, apparently, it's the plaintiff's argument that we should have had a better appreciation then he who owned this, who drove it probably close to a million miles, thousands of loads.

We should have had a greater appreciation that, as he is waiving us in and telling us it's okay, that we should have known that it wasn't okay. That his truck didn't have the ability to bear the legal weight that we both agreed was attempting to be loaded.

The verdict of a jury should 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); Baxter v. Fairmont Food Co., 74 N.J. 588, 599 (1977); Law v. Newark Bd. of Educ., 175 N.J. Super. 26, 37 (App. Div. 1980); see also R. 2:10-1. In this case, there is ample evidence to support the jury's verdict. Plaintiff failed to offer any expert testimony regarding defendant's standard of care, and plaintiff was in an ideal position to prevent any damage to his trailer. The jury heard testimony that plaintiff observed the freight and knew the weight of the load prior to Cohen's attempt to load the cargo onto plaintiff's trailer. Plaintiff concedes that he was inside the trailer waiving Cohen into the trailer when Cohen drove the forklift onto the trailer. Yet, if plaintiff expressed any concern at all about the weight of the load it was only after the forklift was already inside his trailer. Finally, plaintiff, rather than defendant, was more likely to know the specific limitations of his own trailer. Given these circumstances, a jury could reasonably conclude that if the damage to the trailer resulted from either party's negligence, it was attributable to plaintiff's rather than defendant's negligence.

 
Affirmed.

(continued)

(continued)

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A-1073-04T2

October 3, 2005