NANCY PONTER v. KAREN ACCARDI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3093-06T23093-06T2

NANCY PONTER,

Plaintiff-Appellant,

v.

KAREN ACCARDI,

Defendant-Respondent.

________________________________________________________________

 

Argued December 12, 2007 - Decided

Before Judges Wefing and Parker.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-394-04.

Richard Del Vacchio argued the cause for appellant (Levinson Axelrod, attorneys; Mr. Del Vacchio, on the brief).

William H. Mergner, Jr., argued the cause for respondent (Leary, Bride, Tinker & Moran, attorneys; Mr. Mergner, of counsel and on the brief).

PER CURIAM

In this auto accident case, plaintiff Nancy Ponter appeals from a judgment entered on January 31, 2007 dismissing her complaint after a jury rendered a verdict of no cause for action. We affirm.

On November 20, 2004, plaintiff was driving on Route 78 in slow-moving, bumper-to-bumper traffic when defendant's car struck her from behind. Liability was admitted by defendant and the case was tried on damages only. The evidence indicated that there was virtually no damage to plaintiff's vehicle. Nevertheless, plaintiff claimed that she suffered a severe cervical spinal injury when her head jerked forward and then back into the headrest. The experts for both parties testified, however, that a rear-end hit would cause the head to be flung back and then forward. Plaintiff also testified that she had no prior neck injuries, but her medical records indicated that she had previously been diagnosed with and treated for arthritis of the cervical spine.

In this appeal, plaintiff argues that (1) the matter should be remanded for a new trial because the single jury interrogatory was improper; and (2) the matter should be remanded for a new trial because the verdict was against the weight of the evidence.

During the charge conference, the parties had an extensive discussion about the jury interrogatory and each submitted her own proposal. Defendant wanted two questions, one addressing proximate cause and the other, damages. Plaintiff wanted one question asking what amount of money would compensate plaintiff for her injury. After conferencing with counsel, the court drafted a single interrogatory incorporating both proximate cause and damages:

What amount of money, if any, will fairly and reasonably compensate plaintiff Nancy Ponter for the injuries proximately caused by the accident?

The trial court read the question to the jurors and then instructed them to "fill in the amount, whatever you determine to be fair, and then you'll indicate what your vote is, six zero or five to one."

Plaintiff now argues that "[b]y including the 'if any' language in the single damages interrogatory the question became confusing and misleading." We disagree. On its face, the interrogatory is clear and unambiguous. It asks simply, if the jury found plaintiff entitled to damages, how much would they award.

Plaintiff contends that the jury indicated its confusion when it sent a note stating:

Please re-read section covering those components to determine verdict. 1) preexisting condition further aggravated by accident, 2) asymptomatic with all pain caused by accident? . . . . 3) no preexisting condition, an accident caused all pain and suffering.

After some discussion with the attorneys, the court determined that the most appropriate response was to re-read the charges on burden of proof, preponderance of the evidence, proximate cause and aggravation. The jury then resumed its deliberations, and shortly thereafter, returned with a verdict. When the jurors were polled, they all agreed.

We see nothing in the jury's request to have the charges re-read to indicate they were confused as to the jury interrogatory. Rather, it appears that the jurors were just clarifying their instructions before rendering the final verdict. Plaintiff does not cite any case law to support her position; and we find nothing in the record to indicate that the interrogatory was confusing or misleading.

Plaintiff next argues that the verdict is against the weight of the evidence and the denial of her motion for a new trial resulted in the miscarriage of justice.

On a motion for a new trial, the judge's function is not mechanical; rather, the court is to consider both credibility factors and the feel of the case to determine if the jury's verdict was a clear error or mistake. Kita v. Borough of Lindenwold, 305 N.J. Super. 43, 49 (App. Div. 1997). "The trial judge shall grant the motion [for a new trial] 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." R. 4:49-1(a). Jury verdicts should be set aside sparingly, however, and only in cases of clear injustice. Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006); Baboghlian v. Swift Elec. Supply, 393 N.J. Super. 187, 200 (App. Div. 2007).

Here, plaintiff's own testimony raised significant credibility issues as to her injuries. Her description of how her head jerked forward and then back into the headrest was contradicted by her own expert as well as defendant's, both of whom indicated that the biomechanics of a rear-end hit would cause the head to be flung back and then forward. Plaintiff's testimony that she had no prior neck injuries was also contradicted by the medical records which indicated that she had been diagnosed with and treated for cervical arthritis prior to the accident.

While the jury may have accepted that plaintiff had a preexisting injury, apparently they did not accept that this accident either aggravated the preexisting injury or caused additional injury. In short, the verdict is supported by the evidence. We have carefully considered the record and we find no basis for disturbing the trial court's denial of plaintiff's motion for a new trial.

Affirmed.

We note that plaintiff's notice of appeal does not include the order denying her motion for a new trial. We will, nevertheless, address her argument on this issue.

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A-3093-06T2

March 24, 2008