SUSAN SCHWEMMER et al. v. STICKLE INVESTMENTS, HAMPTON MANOR APARTMENTS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3969-04T33969-04T3

SUSAN SCHWEMMER and CRAIG SCHWEMMER,

her husband,

Plaintiffs-Respondents,

v.

STICKLE INVESTMENTS, HAMPTON

MANOR APARTMENTS,

Defendants-Appellants,

and

ROLLING HILLS LANDSCAPING, HOWARD

PEPPI, SUPERIOR FENCING AND

HOLE DWELLING, SCOTT M. RUBAN,

Defendants

 

Argued March 22, 2006 - Decided April 5, 2006

Before Judges Conley, Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, L-545-01.

Stephen G. Sweet argued the cause for appellants (Sweet Pasquarelli, attorneys; Mr. Sweet, on the brief).

James J. Dunn argued the cause for respondents (Levinson Axelrod, attorneys; Mr. Dunn, on the brief).

PER CURIAM

Defendant Stickel Investments (defendant) is the owner of the Hampton Manor Apartments in Hampton, New Jersey. It appeals from a jury verdict awarding plaintiff Susan Schwemmer $575,000 in damages after she fell and injured her shoulder on defendant's property. On appeal, defendant raises two primary arguments: first, the court improperly permitted plaintiff to admit evidence of post-accident repairs; and second, the jury verdict was against the weight of the evidence. We conclude that defendant's arguments are without merit and, consequently, affirm.

Michael Stickel (Stickel) is the principal of defendant. He formed the company to purchase, own and operate investment properties, which include the Hampton Manor Apartments. Hampton Manor consists of a three-building complex that was twenty-five years old when defendant purchased it in December 2000; Stickel planned to initiate repairs to the property immediately following the purchase.

In February 2001, plaintiff's nephew and his family moved into building sixty-nine of the apartment complex. To access that building, tenants and visitors were required to walk through the driveway, up a grassy slope and along a path to the front door. To avoid the slope, plaintiff typically parked on Foss Avenue and proceeded along a walkway to her nephew's apartment.

Sometime in April 2001, Stickel had a fence installed around the apartment complex. He planned to install steps where the slope was located before or contemporaneously with construction of the fence, but he did not do so. The fence blocked the front walkway that permitted access to building sixty-nine from Foss Avenue.

On July 10, 2001, plaintiff was required to navigate the grassy slope to get from her nephew's building to the street. The path did not have a uniform pitch; the top of the hill had a fourteen percent gradation that increased abruptly to fifty-eight percent at the bottom. Upon leaving her nephew's apartment on that day, plaintiff slipped on the slope and fell backwards, striking her elbow on the ground. Upon learning of plaintiff's fall, Stickel ordered his contractor, Howard Peppi, to install steps where the slope was located. He did so the day after the accident.

As a result of the fall, plaintiff was eventually diagnosed with a torn right rotator cuff. Dr. Robert D'Agostini, a board certified orthopedist, performed open surgery on plaintiff's right shoulder on January 22, 2002. Following a regimen of physical therapy, Dr. D'Agostini discharged plaintiff from his care in April 2002.

The following November, plaintiff re-injured her shoulder while doing housework. An MRI revealed that the rotator cuff was again torn it had pulled off of the bone. Plaintiff underwent a second open surgery the following month. The doctor "took the tendon, put a trench in the bone, made drill holes in the bone and pulled the tendon back into the bone." He said: "I kind of crossed myself and said I hope this works."

One month after that surgery, plaintiff re-injured the shoulder while lying supine in bed. She said: "I was laying in bed and just laying there and it felt like when you wind a rubber band up too tight and it snaps, and felt like an unwinding and a pop. . . ." Dr. D'Agostini said that another surgery would be ineffective. Plaintiff continues to experience pain, as well as loss of strength in and usage of her right arm.

At trial, Stickel testified that he intended to have the steps installed either before or contemporaneously with the erection of the fence so as to provide an alternate route to the parking area once the walkway to the street was blocked off. He said he had discussed this project with the contractor, Peppi, several times; that he called Peppi numerous times to expedite the process, and asked him when the steps would be complete. Nevertheless, Peppi did not install the steps prior to the accident.

Peppi contradicted Stickel's testimony. He testified that before plaintiff's accident, Stickel never ordered him to install the steps. The first time Stickel asked him to install the steps came on the day of the accident. Peppi had been installing a new lawn at Stickel's house, when Stickel approached him and told him he needed a favor because a woman had just fallen on his property. Stickel asked Peppi to install a reconfigured sidewalk and steps, which would allow a person to walk from the apartments to the street. Peppi claimed the installation of the steps required only five hours of work.

In light of these facts, we first turn to whether the judge properly permitted the jury to hear that the steps were installed the day after the accident. A trial court's evidentiary ruling will be reversed only where "it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, sub nom., Kenney v. N.J., 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). The ruling is accorded substantial deference, Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000); a reviewing court may not substitute its own judgment for the evidentiary ruling save when, "the trial court's ruling 'was so wide of the mark that a manifest denial of justice resulted.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

N.J.R.E. 407 reads:

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.

This exclusionary rule is founded on a desire to encourage individuals to ameliorate existing dangerous conditions without penalty. Kane v. Hartz Mountain Indus., Inc., 278 N.J. Super. 129, 147 (App. Div. 1994) (citing Brown v. Brown, 86 N.J. 565, 580 (1981)), aff'd, 143 N.J. 141 (1996). Nevertheless, New Jersey courts have consistently recognized exceptions to this rule. Evidence of subsequent remedial repairs is permissible: (1) to show control over the injuring instrumentality; (2) to impeach a witness's credibility; (3) to prove the condition existed when the accident occurred; and (4) to show that a feasible alternative for avoiding the danger existed at the time. Id. at 147-48.

Here, the trial judge admitted the evidence for the limited purposes of impeaching Stickel's credibility and to show that it was feasible for the contractor to install the steps at any time between the fence installation and plaintiff's accident. We first examine whether evidence of the subsequent repairs was admissible to attack Stickel's credibility. It was.

In an effort to show that he acted reasonably, Stickel claimed he discussed the placement of the steps with his contractor on multiple occasions in an attempt to expedite their installation. He argued that his plan was to install the steps in April, before or at the same time the fence was built across the walkway, but the contractor could not find time to complete the installation. Peppi contradicted that testimony. Thus, Stickel's credibility was directly at issue. The jury had to decide who to believe, Stickel or Peppi. Peppi's testimony that he was not told by Stickel to install the steps until after plaintiff's accident was a factor for the jury to consider to determine whether Stickel was untruthful; whether Stickel failed to act reasonably to remedy what he knew was a dangerous condition. The judge was therefore correct when he permitted evidence of the subsequent remedial repair for purposes of credibility. See State v. Johnson, 216 N.J. Super. 588, 603 (App. Div.), (party may use extrinsic evidence to affect the credibility of a witness), certif. denied, 107 N.J. 647 (1987); see also N.J.R.E. 607.

The judge was also correct when he concluded that installation of the steps the day after the accident was evidence that a feasible alternative existed to avoid the danger that caused plaintiff to fall. It took Peppi approximately five hours to complete the work. That evidence bears directly upon the feasibility of installing the steps before the accident, which would have eliminated the condition that caused plaintiff to fall. Said another way, because installation of the steps was not time-consuming, Stickel's claim that he insisted Peppi install the steps sooner was put in question.

We next turn to defendant's argument that plaintiff's counsel improperly used the remedial repair evidence in his opening statement. Defendant claims the trial court should have granted its motion for a mistrial. We are not convinced.

A trial court's ruling on a motion for a mistrial should not be reversed absent a clear showing of an abuse of discretion. Greenberg v. Stanley, 30 N.J. 485, 503 (1959); Amaru v. Stratton, 209 N.J. Super. 1, 15 (App. Div. 1985). Here, in response to plaintiff's in limine request that the court include evidence of Stickel's decision to install the steps after the accident, the court stated:

[D]espite the Court's concerns about the efficacy of a limiting instruction, under all the circumstances, the Court will permit the testimony as relevant to the issue of credibility.

. . . .

Also with respect to feasibility, to the extent that there's testimony that the repair was not available, there's statements in deposition that the repair was not available and, presumably, there will be testimony to that effect.

. . . .

The other thing, Mr. Dunn [plaintiff's counsel], the testimony will go in and you will be permitted to mention that in your opening. But if it's hammered at in a way which is clearly trying to - which would clearly undercut the efficacy of any instruction - and I would expect your opening to reflect the limited purposes we're talking about here.

Defendant claims that in plaintiff's counsel's opening statement, he failed to abide this admonition. Defendant complains that the statements did not reference credibility; that they went beyond the trial judge's instruction not to "hammer" the evidence in such a way that undercuts the efficacy of the curative instruction.

The challenged remarks made by plaintiff's counsel in his opening are:

And around the side there's a steep slope. You'll see the pictures of it. And you have to put steps there. So you either have to find a way so somebody can walk out this walkway or put a slope - you got to put steps so people don't fall. That was his choice.

And defendant will tell you that it was his plan - his desire in April 2001, three months before this, to do that. His desire was to put up a fence and to put up steps. And the key is it was his desire to put in the steps before he put the fence up because otherwise, people can't walk anywhere. They have nowhere to go. If you don't put the steps in and you put a fence in with no door, you got a problem. Okay. And it was his desire to put in the steps first - or at the very least, at the same exact time. That's what defendant tells us.

. . . .

They never put in the steps like they were supposed to do before this.

. . . .

I'm going to show you what is P-3. You see steps there. They were not there when the accident occurred. People were forced to go down the slope next to the steps, but there were no steps.

. . . .

So under oath, Mr. Stickel tells us also which is interesting - that the steps were put in right after she fell, the day after she fell, but it didn't have anything to do with her falling. What he tells us.

Fence goes up in April. April, May, June, July and it just so happened, by coincidence, that the steps go in right after she falls.

. . . .

He came to his own house where I was working and said, hey, [Peppi], somebody just fell on my premises and you got to get over there and put in a set of steps right away.

. . . .

By the way, if you start to hear one of the defenses is that we didn't put in steps, it's not so bad to walk down a slope - you know, walking down a grassy slope, an incline, come on, you know, don't blame us. We probably should have put the steps in, but we don't think it's a bad condition.

. . . .

Because there's no doubt that this accident, if the steps were put in as they should of at the same time as the fence, this accident would never have occurred.

In addressing defendant's objections to plaintiff's remarks, the trial judge said:

My perception -- and I was taking careful notes on this because of the sensitivity of the subject - was that Mr. Dunn [plaintiff's counsel] stayed quite within the bounds of the Court's direction, did not put the jury in the position where their reaction to curative instructions would be overwhelmed.

He put it in the context, first, of the feasibility, that this could have been done at any time according to Peppi's view of the testimony. It was not done.

We agree with the judge that the challenged remarks did not violate the limitations the trial judge imposed on plaintiff's counsel. All of the statements in plaintiff's counsel's opening, when read in context, had a bearing either upon Stickel's credibility or the feasibility of installing the steps before the accident.

The trial judge provided a limiting instruction guarding against improper use of the evidence. Prior to opening statements, the judge explained the following to the jury:

Ordinarily, evidence of repairs after the accident is not admissible. However, our Evidence Rules generally bar testimony about subsequent remedial conduct - in other words, repairs - because such evidence may tend to penalize a person who acts to improve the conditions where the accident happened.

So when you hear evidence in this case - that Mr. Stickel built stairs after the accident, you cannot use that evidence to prove he was negligent. The evidence of the subsequent construction in this case is only to be used by you in judging Mr. Stickel's credibility - that is whether he's being truthful, not for the purpose of concluding Mr. Stickel was negligent.

I don't give this particular point of detail on a piece of evidence, but I think it's important when you hear that evidence, it's important that you hear the context in which it's being given.

Thus, the trial court fulfilled its obligation to prevent improper use of the evidence. See Lavin v. Fauci, 170 N.J. Super. 403, 408 (App. Div. 1979) (instruction from trial judge could have guarded against improper use of the evidence).

Finally, we turn to defendant's argument that the jury verdict of $575,000 was against the weight of the evidence. That argument is similarly without merit.

A trial court cannot reverse a jury verdict unless there is "a miscarriage of justice." R. 4:49-1(a). An appellate court is bound by the same standard. R. 2:10-1. Accordingly, a jury's verdict may not be set aside merely because a court might have arrived at a different result. See Kovacs v. Everett, 37 N.J. Super. 133, 138 (App. Div. 1955), certif. denied, 20 N.J. 466 (1956); see also Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977) (jury verdict entitled to considerable respect; it should not be disturbed in the absence of a manifest denial of justice). In completing its review, an appellate court must defer to the trial court's findings on intangibles, including credibility, demeanor, and the trial judge's "feel of the case." Dolson v. Anastasia, 55 N.J. 2, 7-8 (1969).

Here, defendant argues that the medical testimony suggests that plaintiff substantially recovered from her second surgery. Dr. D'Agostini stated that from an objective medical standpoint:

[Plaintiff] had full abduction and flexion. I talked to her about her expectation. She was again - she was raring to go. I pointed out that this is only four months and on a primary repair, this would be more than satisfactory, and on a rerepair, it is nothing short of miraculous.

While the cited testimony may have supported a lesser verdict, the jury also heard testimony from plaintiff that one month after the second surgery she reinjured her shoulder while lying in bed. Dr. D'Agostini indicated that recurring injuries of that type were generally incurable. Plaintiff went into substantial detail about how the injury has negatively impacted her life. She said:

I don't have the strength, I can't do a lot . . . . I can't reach up in a cabinet and grab a couple of plates . . . . I don't have strength to reach up into a cabinet and grab plates and like let them down slowly, or reach up in my laundry cabinet to grab a bottle of bleach. Just a million things that I can't do that I used to be able to do. [I]t's a mental - I just can't do a lot of things that I used to be able to do.

Plaintiff's problems have been persistent. Both Dr. D'Agostini and defendant's medical expert agreed that plaintiff's injuries are permanent; she sustained a permanent injury in the accident and will suffer from some degree of disability for the rest of her life.

A "motion for a new trial on damages should not be granted unless the damage verdict is so disproportionate to the injury and resulting disability as to shock the court's conscience and convince it that to sustain the award would be manifestly unjust . . . ." Tronolone v. Palmer, 224 N.J. Super. 92, 97 (App. Div. 1988) (citing Baxter, supra, 74 N.J. at 596); see also Carey v. Lovett, 132 N.J. 44, 66 (1993) (trial court should not disturb the amount of a verdict unless it constitutes a manifest injustice that shocks the judicial conscience). In making its determination, the reviewing court must view the evidence in the light most favorable to the nonmoving party. Spragg v. Shore Care, 293 N.J. Super. 33, 63 (App. Div. 1996).

Here, the jury verdict may have been generous, but it was not so excessive as to constitute a manifest injustice. Plaintiff suffered two surgeries, is not a candidate for a third, and has lost substantial use of her dominant arm. The experts agree that she will suffer a disability for the rest of her life; at the time of trial, she had a life expectancy of 26.28 years. Under these circumstances, the verdict does not shock our judicial conscience.

 
Affirmed.

Also spelled "Stickel" in the appendix.

Plaintiff Craig Schwemmer's per quod claim was voluntarily dismissed at trial. All references in this opinion to plaintiff are to Susan Schwemmer.

(continued)

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A-3969-04T3

April 5, 2006