LILLIAN B. INGRAM-SERNOFF v. DOLLAR RENT A CAR, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0043-08T30043-08T3

LILLIAN B. INGRAM-SERNOFF,

Plaintiff-Appellant,

v.

DOLLAR RENT A CAR, INC.,

Defendant,

and

WILLIAM C. OWENS, and JOSEPH M.

RIBECCA,

Defendants-Respondents.

_______________________________

 

Argued May 11, 2009 Decided

Before Judges Reisner and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Camden County, L-9018-05.

Gary F. Piserchia argued the cause for appellant Lillian B. Ingram-Sernoff (Parker McCay P.A., attorneys; Mr. Piserchia, of counsel; Stacy L. Moore, Jr., on the brief).

William R. Hopkin, Jr., argued the cause for respondent William C. Owens (Law Offices of William R. Hopkin, Jr., LLC, attorneys; Mr. Hopkin, of counsel and on the brief).

Neal A. Thakkar argued the cause for respondent Joseph M. Ribecca (Sweeney & Sheehan, P.C., attorneys; Mr. Thakkar, on the brief).

PER CURIAM

This is an appeal from a jury verdict finding that plaintiff Lillian B. Ingram-Sernoff had no cause of action for damages against defendants William C. Owens and Joseph M. Ribecca for personal injuries suffered as a result of a motor vehicle accident. We affirm.

The trial of this matter ended on June 12, 2008, with the jury's verdict that plaintiff's injuries were not "proximately caused by the October 14, 2003 motor vehicle accident." Because plaintiff's vehicle was rear-ended by Ribecca's vehicle, which was rear-ended by Owens' vehicle, liability was stipulated. The matter was tried solely as to damages. On July 21, 2008, the trial judge denied plaintiff's motion for a new trial. This appeal followed.

When the accident occurred on October 14, 2003, plaintiff declined medical treatment at the scene. Her vehicle suffered only slight damage. She was wearing her seatbelt at the time. At trial, plaintiff testified that she attempted to see her family doctor the day after the accident because she felt generalized soreness and was suffering from a headache, but was unable to obtain an appointment. On October 16, 2003, she went to a hospital emergency room complaining of a headache and generalized body pain.

Approximately one month later, plaintiff consulted with an orthopedist due to pain in both knees and her left shoulder. She was prescribed physical therapy for several months, which, she testified, slightly improved her range of motion.

On May 16, 2006, plaintiff consulted with another orthopedist, Dr. Barry S. Gleimer, who performed arthroscopic surgery on her left shoulder and administered pain-relieving injections to both knees. It was his opinion that plaintiff suffered chondromalacia patella in both knees and impingement of the rotator cuff of the left shoulder caused by trauma during the accident.

In contrast to Dr. Gleimer's deposition and expert opinion, Dr. Marc L. Kahn, Owen's orthopedic expert, opined that the medical conditions from which plaintiff suffered actually resolved after the accident, and that her subsequent shoulder problems were a product of degenerative disease unrelated to the accident. The jury was shown the videotaped depositions of both experts.

During the trial, defendants called into question plaintiff's credibility by emphasizing to the jury the significant differences in expert opinions, and the "timeline," including plaintiff's initial delay in obtaining medical treatment and the two-year lapse between May 2004 and May 2006, in which she received no medical treatment.

Plaintiff, a trained nurse and part-time aerobics instructor, had actually been captured on film teaching a water aerobics class by an insurance investigator playing the part of a potential gym member. The activities depicted on film did not appear to be limited by plaintiff's claimed injuries, even though the filming occurred prior to her shoulder surgery. When deposed prior to becoming aware of the existence of this film, plaintiff testified that her movements in the aerobics classes were restricted by her pain. The jury was shown the video.

Plaintiff's contentions on appeal are:

POINT I

THERE WAS NO SUPPORT IN THE RECORD FOR THE JURY'S CONCLUSION THAT THERE WAS NO PROXIMATE CAUSE BETWEEN THE MOTOR VEHICLE ACCIDENT OF OCTOBER 14, 2003 AND ANY OF PLAINTIFF'S INJURIES, AND IT WAS A MISTAKEN EXERCISE OF DISCRETION FOR THE TRIAL COURT TO DENY PLAINTIFF'S MOTION FOR NEW TRIAL SINCE THERE OCCURRED A CLEAR AND CONVINCING MISCARRIAGE OF JUSTICE.

POINT II

THE TRIAL COURT WAS MISTAKEN WHEN IT ALLOWED THE SURVEILLANCE VIDEOTAPE OF PLAINTIFF TO BE PRESENTED AS EVIDENCE TO THE JURY BECAUSE THE VIDEOTAPE/DVDS WERE NOT PROPERLY AUTHENTICATED AND THE METHOD OF OBTAINING THAT EVIDENCE WAS UNREASONABLE AND AN INVASION OF PRIVACY WHICH OFFENDS PUBLIC POLICY; THE TAINTED EVIDENCE MAY WELL HAVE ENFLAMED (SIC) OR MISLED THE JURY INTO RENDERING A VERDICT WHICH WAS TOTALLY UNSUPPORTABLE BY THE RECORD AT TRIAL.

I.

The trial court is obliged to grant a 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). We adhere to the same standard on appeal, giving deference only to "the trial court's feel of the case as to matters such as the demeanor and credibility of witnesses." D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div.), certif. denied, 196 N.J. 346, cert. denied, 129 S. Ct. 776, 172 L. Ed. 2d 756 (2008). Our task is to determine, based on our own independent review of the record, "the fairness of the result." Id. at 26-27. The question, simply stated, is whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360 (1979); R. 2:10-1.

Plaintiff argued to the trial court on the motion for a new trial that it was error for the jury not to award damages in light of the medical testimony. In similar fashion, plaintiff argues here that there was nothing in the record from which the jury could conclude that plaintiff sustained no compensable injury from the motor vehicle accident. In addition, plaintiff complains that the trial judge's analysis did not adequately explain his view that plaintiff's delay in obtaining treatment, the case's factual timeline, and credibility issues justified his conclusion that no clear and convincing miscarriage occurred such as would warrant a new trial.

As an initial matter, we do not agree with plaintiff's characterization of the defense expert's testimony. Dr. Kahn acknowledged, based on plaintiff's reported history, that her medical condition could have been caused by the accident. But, he also asserted that the injuries were more likely caused by degenerative disease and the presence of spurring at her shoulder, which was removed during surgery.

Furthermore, the record supports the trial court's determination that the jury's verdict was not a miscarriage of justice. As the trial judge said, there was an initial delay followed by a significant two-year lapse in treatment from 2004 to 2006. Additionally, the judge relied upon the highly effective attack on plaintiff's claimed restrictions, allegedly due to pain and permanency, when her deposition statements were contrasted with the water aerobics class video showing her moving unremarkably, seemingly free of pain. To the trial judge, the question for the jury was not whether plaintiff had injuries, but rather, whether the accident was the proximate cause of those injuries. And on that question, the video obviously carried the day for the seven jurors who voted that there was no proximate cause and, therefore, no basis to award plaintiff damages. Giving due deference, as we must, to the intangibles not transmitted by the record on issues such as credibility, no miscarriage occurred here. The jury's verdict was supported by the evidence.

II.

"It is well settled that properly authenticated films or videotapes are admissible." Velazquez v. Jiminez, 336 N.J. Super. 10, 42 (App. Div. 2000), aff'd, 172 N.J. 240 (2002). Here, defendant provided the necessary foundation for the introduction of the video of plaintiff conducting her water aerobics class before it was shown to the jury.

Our standard of review for the court's admission of evidence is whether in doing so, the trial judge abused his discretion. See Ocasio v. Amtrak, 299 N.J. Super. 139, 154-55 (App. Div. 1997). As with all evidence, the trial judge has the discretion to exclude otherwise admissible evidence pursuant to N.J.R.E. 403 under specified circumstances. Plaintiff urges that the judge should have exercised that discretion because the filming of plaintiff was an unreasonable invasion of privacy, and that the use of that tainted evidence may have inflamed the jury into rendering an unjust verdict against her. We do not agree.

 
An aerobics class at a gym is a public activity, not a private one. The investigator gained admission for himself and his girlfriend to observe plaintiff teaching under the guise of being potential gym members who wanted to observe gym activities. The observation and even photographing of another while he or she is out in public is not an invasion of that individual's privacy. See Figured v. Paralegal Technical Servs., Inc., 231 N.J. Super. 251, 256 (App. Div. 1989), appeal dismissed, 121 N.J. 666 (1990). The investigator had as much right to be present at the class as any other prospective member or class participant, and, therefore, no violations of anyone's right to privacy occurred. Accordingly, no public interest would have been advanced by the trial judge's exclusion of the tape, and he did not abuse his discretion by admitting it. Although the video undoubtedly played a significant role in the jury's decision-making process, it cannot be said that its admission was in any way improper. There is no basis from which we can conclude that it improperly inflamed the jury.

Affirmed.

Summary judgment was granted to defendant Dollar Rent A Car on December 15, 2006, and no appeal is taken therefrom.

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A-0043-08T3

 

July 23, 2009