JOANN CAPPELLUCCI v. ACME MARKETS, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2754-08T32754-08T3

JOANN CAPPELLUCCI,

Plaintiff-Respondent,

v.

ACME MARKETS, INC. and

ALBERTSONS, INC., t/a ACME,

Defendants-Appellants.

______________________________

 

Argued July 7, 2009 - Decided

Before Judges Fisher and Grall.

On appeal from Superior Court of

New Jersey, Law Division, Cumberland

County, Docket No. L-1002-05.

Thomas A. Shovlin argued the cause for appellants (Riley & Shovlin, attorneys;

Mr. Shovlin, on the brief).

Lee J. Hughes argued the cause for respondent (Rone, Hughes & Kowalski, attorneys; Henry J. Kowalski, III, on the brief).

PER CURIAM

On September 27, 2003, plaintiff Joann Cappellucci slipped on cooking oil spilt on the floor of an aisle in a supermarket operated by defendant Acme Markets, Inc. Plaintiff fell against the shelving and banged her head on the separate shelves before landing on the floor and hitting her head again. Defendant acknowledged its negligence. The question of damages, however, was tried to a jury, which awarded plaintiff $86,000 for injuries she sustained as a consequence of this slip and fall. Thereafter, final judgment was entered in the amount of $95,937.11, which includes pre-judgment interest. Defendant appeals from that judgment.

On appeal, defendant asserts that because plaintiff did not "apportion damages" between her pre-existing condition and injuries sustained as a consequence of its negligence, the court should have granted defendant's motion for involuntary dismissal at the close of plaintiff's case. R. 4:37-2(b). The argument warrants no discussion beyond the brief comments that follow. R. 2:11-3(e)(1)(E).

Plaintiff's slip and fall at the Acme was her third accident in 2003. On January 25, 2003, she was involved in an automobile accident and x-rays were taken in a hospital emergency room. On January 30, 2003, plaintiff sought treatment from Dr. Thomas A. Dwyer, M.D. Her complaints were for pain in her right shoulder, right knee and cervical spine. Dr. Dwyer drained plaintiff's swollen right knee, which had been treated in the past for both injury and for osteoporosis, and prescribed a course of physical therapy.

After the office visit on January 30, 2003, plaintiff slipped on ice outside a restaurant. She returned to Dr. Dwyer on February 13, 2003, seeking treatment for her right knee, wrist and shoulder. Subsequent magnetic resonance imaging (MRI) studies revealed a tear in the meniscus of plaintiff's right knee and her right shoulder rotator cuff. In August 2003, Dr. Dwyer surgically repaired plaintiff's rotator cuff. After the surgery, plaintiff had physical therapy and was "doing fairly well." With physical therapy, her new complaints about her knee had resolved.

Plaintiff fell in the Acme on September 27, 2003, and she returned to Dr. Dwyer on October 9, 2003 with complaints of pain in her right shoulder, elbow, cervical spine and right knee. The doctor prescribed physical therapy and pain management to address the conditions he diagnosed "exacerbation" of the condition of plaintiff's knee and an "exacerbation or acceleration of pre-existing degenerative disc disease" of the neck area. In Dr. Dwyer's view the most significant injury plaintiff sustained as a result of the slip and fall in the Acme was the one to her cervical spine, because plaintiff had not required any treatment for her cervical spine before that trauma. With respect to plaintiff's knee, the doctor emphasized that its condition had been restored to "baseline" "[n]ot perfect but not bad" prior to her fall in the Acme and required additional treatment after that accident. In Dr. Dwyer's opinion, because he had treated plaintiff over the course of these several accidents he was able to identify exacerbations and acceleration of pre-existing conditions attributable to plaintiff's various accidents and was "medically very certain about" his conclusions.

Dr. Edward T. Soriano, D.O. treated plaintiff from April 12, 2005 through July 2, 2005. He treated her for a disc protrusion in her cervical spine, disclosed by a MRI, that he attributed to her fall in the Acme based on his review of the MRI and plaintiff's medical records.

"[T]o prevail against a negligent defendant, plaintiff must prove not only that defendant was negligent but also that defendant's negligence was a proximate cause of the injuries and damages suffered." Reichert v. Vegholm, 366 N.J. Super. 209, 213 (App. Div. 2004). Accordingly, "plaintiffs must separate those damages caused by a particular defendant's negligence from any prior or post injuries or conditions." Id. at 214. In order to withstand a motion for involuntary dismissal, plaintiff's evidence and reasonable inferences, viewed in the light most favorable to plaintiff, must be sufficient to permit a reasonable jury to find "a proximate causal relation between defendant's negligence . . . and the resulting injury." Davidson v. Slater, 189 N.J. 166, 185 (2007) (internal quotations omitted) (quoting Reynolds v. Gonzalez, 172 N.J. 266, 284 (2002); see Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 183 (2008) (stating the standard for involuntary dismissal pursuant to Rule 4:37-2(b)). Measured against these standards, the evidence recited above was adequate.

Defendant also contends that the trial judge erred when it refused to strike testimony elicited from plaintiff on cross-examination. Asked about her report of neck injury following her automobile accident in January 2003, plaintiff said, "[y]es, my head was thrown forward but I didn't have blown dis[c]s after that accident." Asked about her inability to ride horses after breaking her wrist in January 2003, plaintiff, whose wrist had healed, gave this response: "I can't ride a horse with blown dis[c]s." In both case, the judge overruled defendant's objection.

We have no doubt that any error in denying defense counsel's applications to strike plaintiff's plain language description of a condition of her cervical spine about which she was not competent to testify, was clearly incapable of producing an unjust result. R. 2:10-2. The jury had competent medical testimony from Dr. Soriano that described her protruding disc.

Affirmed.

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A-2754-08T3

September 29, 2009