MARGARET FORREST v. ALBERT E. FORREST

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2167-04T12167-04T1

MARGARET FORREST,

Plaintiff-Appellant,

v.

ALBERT E. FORREST,

Defendant-Respondent.

____________________________

 

Submitted November 29, 2005 - Decided

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

L-1629-03.

McHugh and Imbornone, attorneys for

appellant (Salvatore Imbornone, Jr.,

on the brief).

Soriano, Henkel, Biehl and Matthews,

attorneys for respondent (Peter DeSalvo,

Jr., on the brief).

PER CURIAM

Plaintiff was injured in an automobile accident. Her suit for damages resulted in a jury verdict of $3,000, to which was added stipulated lost wages of $7,500. Unsatisfied, she sought a new trial or, alternatively, an additur, both of which were denied. Plaintiff appeals from the denial, and we affirm.

On May 13, 2001, plaintiff was a passenger in a vehicle operated by her husband, defendant Albert E. Forrest. She sustained a bruise of her right knee and a fracture of the surgical neck of the left humerus. At the time of the injury, plaintiff was subject to the so-called verbal threshold contained in the Automobile Insurance Cost Reduction Act of 1988 (AICRA), N.J.S.A. 39:6a-8(a). That statute prohibits suits for non-economic damages unless the injury sustained falls into one of six categories. Plaintiff alleged that her injury fell into category four: "displaced fractures."

At trial, plaintiff produced an expert who testified that the fracture was displaced; defendant produced an expert who testified that the fracture was not displaced. With respect to her damages, a reasonable jury could have concluded that plaintiff's left arm was immobilized in a sling but without any casting; that she received pain medication for no more than some six weeks after the accident; and that, by the time of the trial, she was able to attend to her own activities of daily living and to assist her husband as she had before the accident, although there was some discomfort. Approximately three months after the accident, plaintiff was "comfortably back to work" and she was discharged from her doctor's care four months after the accident. The parties stipulated that plaintiff had lost wages of $7,500.

The trial court submitted the contested issue of the nature of the fracture and the issue of non-economic damages to the jury in the event they determined the fracture was displaced. The judge withheld from the jury the amount of lost wages. When the jury returned a verdict finding that the fracture was, in fact, displaced and awarding damages of $3,000 for plaintiff's pain and suffering, the judge molded the verdict by adding the lost wage claim. Defendant's motion for a new trial, or alternatively, an additur was, as we have noted, denied and this appeal followed. On appeal, plaintiff asserts

POINT I

THE COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR A NEW TRIAL, OR, IN THE ALTERNATIVE GRANTING AN ADDITUR AS THE JURY VERDICT WAS UNREASONABLE, AGAINST THE WEIGHT OF EVIDENCE, SHOCKING TO THE CONSCIENCE AND A MISCARRIAGE OF JUSTICE UNDER THE LAW.

POINT II

THE COURT ERRED IN NOT ENTERING A DIRECTED VERDICT ON THE VERBAL THRESHOLD ISSUE, i.e., DISPLACED FRACTURE. THE COURT INCORRECTLY ALLOWED THE ISSUE AS TO WHETHER PLAINTIFF MET AND SURPASSED THE REQUIREMENTS OF THE VERBAL THRESHOLD TO BE SUBMITTED TO THE JURY.

POINT III

THE COURT ERRED IN EXCLUDING EVIDENCE OF PLAINTIFF'S UNDISPUTED LOSS WAGE CLAIM WHICH WAS CLEARLY ADMISSIBLE.

The latter two points do not require lengthy analysis. We believe that the judge, confronted with conflicting expert opinion and no statutory definition of the term "displaced," properly submitted the issue of whether the fracture was displaced to the jury. Any error that might be alleged, however, was rendered moot, when the jury found that plaintiff had crossed the threshold. Similarly, no prejudice could have been sustained by plaintiff by withholding the amount of her lost wages from the jury, so long as the verdict was molded, as it was, to include those amounts and so long as she was permitted, as she was, to produce evidence that she was incapable of working and describing the discomforts that kept her from attending her work.

Plaintiff's first argument, respecting the adequacy of damages, is somewhat closer. The standard by which a request for a new trial must be judged is contained in R. 4:49-1: "A new trial may be granted . . . . if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law."
Given this standard, there should be no interference with ". . . the quantum of damages assessed by a jury unless it is so disproportionate to the injuries and resulting disabilities shown as to shock . . . [the judicial] . . . conscience and to convince . . . [the court] . . . that to sustain the award would be manifestly unjust." Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971).

We cannot say that this verdict, although somewhat low, is shockingly so. As we have indicated, a rational jury could have viewed the evidence respecting plaintiff's injuries as demonstrating minimal interference with her daily activities and medical treatment lasting no more than four months. Under these circumstances, the award of $3,000 for pain and suffering is within permissible bounds and we will not disturb it.

Plaintiff's inability to obtain a new damages trial defeats her claim for an additur. Additur is used when there is a finding that the inadequacy of damages requires a new damages trial. In such a case, a trial court ". . . may order an increase in the verdict giving the option to the defendant of accepting the verdict as increased or submitting to a new trial on the issue of damages only." Bitting v. Willett, 89 N.J. Super. 196, 200-201 (App. Div. 1965), remanded on other grounds, 47 N.J. 6 (1966). Here, we have determined that the award of damages is not so inadequate as to warrant a new trial and there is, perforce, no ability to award a new trial if defendant refuses to accept an increase in the damage award.

 
Affirmed.

The judge also charged category six: "a permanent injury within a reasonable degree of medical probability, other than scarring or disfiguring." A non-displaced fracture might fall within that category. See Kennelly-Murray v. Megill, ____

N.J. Super. ____ (App. Div. 2005).

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A-2167-04T1

December 21, 2005