JOANNE BOWERS v. CLARK'S GYM, GLENN CLARK -

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3586-07T23586-07T2

JOANNE BOWERS,

Plaintiff-Appellant,

v.

CLARK'S GYM, GLENN CLARK,

Defendants-Respondents.

_________________________________

 

Submitted May 28, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3324-04.

Thomas J. Goss , attorney for appellant.

Respondents have not filed a brief.

PER CURIAM

Plaintiff Joanne Bowers appeals from a verdict of no cause of action following a bench trial. We affirm.

We glean the following facts from the record. On July 3, 2002, Bowers was walking along Broadway in Camden, after leaving a hair salon located there. As she was walking down Broadway, she noticed Clark's Gym and peered into the window. When she did this, she recognized someone named "Troy" who was working out. This individual came out and the two had a brief conversation. After this conversation, Bowers turned around and began walking toward her car. According to Bowers, while still in front of Clark's Gym, her foot slipped and twisted, and she fell on the pavement. She testified that she looked down and examined the area underneath her and found that her foot was actually in a hole that was located in an area where the sidewalk was uneven and sinking. Bowers contends that, as a result of the fall, she suffered a severe fracture to her ankle which required two surgeries.

Shortly after the fall, Bowers went back to the scene to take pictures of where she had fallen. She testified that she found that the area was already repaired. Bowers took pictures, which she offered at trial, arguing that they show that there was new cement where she had fallen.

At the trial, Glenn Clark, the owner of Clark's Gym, who did not witness the incident, either stipulated or testified to the following facts: (1) Bowers fell on pavement in front of his gym; (2) Bowers was injured as a result of the fall; (3) at the time of the fall, the pavement in front of his gym was in disrepair at least to the degree that it was uneven; and (4) after Bowers fell and was injured, Clark put a mat over the area so that no one else would fall.

Sherie Nance, who was doing some carpentry work for Clark at the time, testified on his behalf. She witnessed the entire episode. She testified that she was standing at the front door of the gym when Bowers "stumble-stepped." She specifically testified that the "stumble-step[]" did not result in a fall or any apparent injury to Bowers. Nance also testified that Bowers said to her that she was in a hurry and that she always had trouble walking in the shoes she was wearing at the time, which Nance described as high heels. Nance also testified that she had fixed the broken area of the sidewalk by re-cementing it prior to Bowers's "stumble-step[]."

After hearing the testimony and brief summations, the trial judge delivered the following oral opinion:

THE COURT: Now, the Court has had [an] opportunity to hear the testimony of the plaintiff and the defendant and also the Court has had [an] opportunity to hear the testimony of a witness called by the defendant, a Miss Nance.

The Court unfortunately ha[s] not had the opportunity to hear the testimony of a Mr. Troy [because] he is unavailable who would have also been an independent witness with respect to the incident of which Miss Bowers has filed a complaint.

Now, the Court -- the standard that the plaintiff has is that the plaintiff must prove their case by a preponderance of the evidence.

And the Court has also had the opportunity to hear the testimony of an independent witness, Miss Nance, who testified that she observed the plaintiff and she appeared to have stumble[d] or misstepped as Miss Nance has described. But . . . she testifies that she did not observe that the plaintiff had fallen.

Now, Miss Nance testified that Miss Bowers had high heels on. Indeed, Miss Nance testified that Miss Bowers complained about the high heels that she was wearing at the time that Miss Nance observed Miss Bowers.

Now, Miss Nance says that Miss Bowers was in a hurry and that she had some errands that she had to perform, but she was in a hurry at the time this alleged incident occurred.

Now, Miss Bowers testified that she was walking and she's walking in front of the gym, Clark's Gym, and there was a hole or some depression in the pavement which caused her to fall.

Indeed, she testified that she was on the ground and her foot was in what she described as a hole in the pavement where she had fallen. But then she got up and then she also testified that she went onto work -- well, not work.

She drove herself home but then she was feeling some discomfort and then decided to seek medical treatment and she went to the hospital emergency room for the medical treatment . . . .

Now, . . . as the rules require that I must weigh the credibility of all the witnesses testifying with those proceedings. I've had the chance to hear the testimony of the plaintiff and I found her testimony credible.

I also heard the testimony of Mr. -- Mr. Clark who indicated that he did not see -- he didn't see her fall. He challenges her position that while he did not see her fall -- it was his position that while she may have fallen it was his position that her fall was either a result of her own negligence or she stumbled and fell and the injuries were sustained as a result of her falling and not contributed to by any conduct on Mr. Clark's part.

However, the Court has heard the testimony of Miss Nance. Miss Nance testified that she was standing there when she saw the plaintiff stumble but she also testified that she did not observe the plaintiff fall to the ground.

She also, as I indicated a moment ago, testified that . . . the plaintiff told her that, you know, these high heels that she was wearing [were] causing some problem for her, it's difficult wearing high heels, that she complained about [the] high heels that she was wearing.

Now, Miss Bowers says she didn't have high heels on. She testified that she had -- I believe she called them flip-flops on and she didn't have high heels on contradicting the testimony of Miss Nance.

The Court finds that the burden of proof in this Court's opinion has . . . reached equipoise. I've heard the testimony of the plaintiff. I've also heard the testimony of this independent witness who has no basis to not be forthright.

. . . [A]s a result thereof, the Court has determined that the plaintiff has not met the burden of proof . . . by a preponderance of the evidence. As a result thereof, . . . the Court finds no cause and the complaint will therefore be dismissed. Thank you.

On appeal, Bowers contends that the trial judge's verdict was not supported by "adequate, competent evidence in the record."

Under Rova Farms Resort, Inc. v. Investors Insurance Co. of America, 65 N.J. 474, 484 (1974), the findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Appellate judges "are not in a good position to judge credibility and, ordinarily, should not make new credibility findings," unless we are "'thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction.'" Mountain Hill, L.L.C. v. Twp. Comm. of Middleton, 403 N.J. Super. 146, 193 (App. Div. 2008), certif. denied, 197 N.J. 475 (2009) (quoting Ridley v. Dennison, 298 N.J. Super. 373, 378 (App. Div. 1997)).

Only two people who actually witnessed the incident, Bowers and Nance, testified at the trial. Clark was not present at the time, but came out of the gym after the incident had taken place. Bowers testified that she fell because of a problem with the sidewalk. Nance testified that she saw Bowers "stumble-step[]" and that, at the time, Bowers attributed the cause of her "stumble-step[]" to the high-heeled shoes she was wearing. Having heard both witnesses, the trial judge concluded that: "the burden of proof has reached a level of equipoise -- as a result thereof, the Court has determined that the plaintiff has not met the burden of proof . . . by a preponderance of the evidence." Stated another way, the trial court determined that there were facts in the record to support both versions and that Bowers had not convinced him that it was "more likely than not" that the event took place as she described. Model Jury Charge (Civil) 1:12I ("However, if you find that the evidence is equal in weight . . ., then the burden of proof has not been carried and the party with the burden is not entitled to your decision. . . .").

Having reviewed the record, we are not "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Mountain Hill, supra, 403 N.J. Super. at 193. Consequently, we affirm the judgment.

Affirmed.

 

(continued)

(continued)

7

A-3586-07T2

June 10, 2009