DORENE FUSCO v. ROBERT VANDER PYL, JR.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2734-08T12734-08T1

DORENE FUSCO,

Plaintiff-Appellant,

v.

ROBERT VANDER PYL, JR. and

SUSAN VANDER PYL,

Defendants-Respondents.

____________________________________

Argued January 26, 2010 - Decided May 25, 2010

Before Judges Wefing, Grall and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Docket No. L-7548-06.

Paul E. Kiel argued the cause for appellant

(Harwood Lloyd, attorneys; Roosevelt Jean

and Mr. Kiel, of counsel and on the briefs).

Sean F. Colquhoun argued the cause for respondent (Colquhoun & Colquhoun, attorneys; Mr. Colquhoun

and Moira E. Colquhoun, on the brief).

PER CURIAM

Plaintiff appeals from three orders entered by the trial court: an order dated August 15, 2008, denying her motion for partial summary judgment with respect to liability; an order dated January 6, 2009, entered following trial, granting her an additur; and a subsequent order dated January 29, 2009, entering judgment in her favor for $55,372.71. After reviewing the record in light of the contentions advanced on appeal, we affirm the first order, reverse the latter two, and remand this matter to the trial court for further proceedings.

Together with her three children, plaintiff occupied a one-family home in Midland Park that she leased from defendants. She filed suit for damages after she was severely injured when she was struck by a limb that fell from a tree in the backyard. Following three days of testimony, the jury returned a verdict in which it awarded plaintiff $12,500 for her pain and suffering, $7,500 for her medical expenses, and found her to be twenty-five percent comparatively at fault. Plaintiff moved for a new trial. The trial court agreed that the jury's award was inadequate and granted her an additur of $50,000. Deeming that amount inadequate in light of the injuries she received, plaintiff appealed.

Plaintiff raises the following contentions for our consideration: that the trial court erred when it denied her motion for partial summary judgment on liability, that the trial court erred when it instructed the jury to consider whether plaintiff was comparatively at fault, that the trial court abused its discretion by granting an inadequate additur, and that the trial court abused its discretion by not granting a new trial based on the jury having considered the question of insurance coverage.

The lease the parties executed was a pre-printed form which contained the following pertinent provisions and insertions. On the first page, in a space denominated "Additional agreements" the words "Lawn care and snow removal by Landlord" were typed in.

Paragraph 10 of the preprinted portion of the lease was headed "Tenant's Repairs and Maintenance." Pursuant to subparagraph (b), plaintiff was responsible to "[k]eep and maintain the House and grounds in a neat, clean, safe and sanitary condition . . . [and] not allow injury to the landscaping." Under subparagraph (g), plaintiff was obligated to "[p]romptly notify the Landlord when there are conditions which need repair."

After discovery was complete, both parties moved for summary judgment. Plaintiff argued that the landlord's duty to care for the lawn encompassed trimming the trees on the property while defendant argued that plaintiff had the duty to trim the trees in light of her responsibility to keep the grounds "neat, clean [and] safe." Based upon a factual dispute as to whether plaintiff had ever notified defendants of tree limbs falling, the trial court denied both motions and the matter proceeded to trial.

The trial court was correct in this regard. There was a clear dispute as to a material factual issue, making summary judgment inappropriate. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).

Plaintiff testified at trial that she had, on several occasions prior to the accident, called defendants to complain that large limbs were falling from trees on the premises. She testified that defendants did not trim the trees in response to these complaints and never told her that they considered it to be her responsibility to have the trees trimmed. The rear of the property was in a wooded condition. Plaintiff testified that the landscape company that would come to mow the lawn would pick up fallen tree limbs and discard them in this wooded area.

Plaintiff's oldest child is a son, approximately fourteen years of age in May 2006, when the accident occurred. He is autistic; his intelligence is limited, and he is non-verbal and requires help with the chores of everyday living. On May 20, 2006, the children had visited with their father, from whom plaintiff is divorced, and he dropped them at home in the afternoon. The day was somewhat windy and cloudy, and it appeared as if it were about to rain. Plaintiff's youngest child, then about five years of age, told plaintiff that her older brother was in the backyard. Concerned that it was about to rain, she went outside to persuade him to come in; her young daughter accompanied her. She was talking to her son, trying to persuade him to come inside when she saw what appeared to be a piece of broken glass in the grass. She said she bent over to pick it up and heard a cracking sound. She yelled at her daughter to run, but she herself could not move quickly enough. She was struck by a falling limb that knocked her to the ground; she suffered a severely fractured left leg.

She was taken to the hospital, and underwent surgery the following day in which a titanium rod was inserted into her lower leg and held in place by screws in her ankle and below her knee. She was hospitalized for three days. When she was discharged, she was unable perform any of her regular household chores for a significant period of time. She developed an open sore on her leg, which did not heal for nearly nine months. The sore finally resolved after she underwent a second surgery to have the screws in her ankle removed. She testified that she was unable to walk without pain, could no longer wear high heels, and could no longer engage in any physical activities with her children. She was forty-six years old and had a projected life expectancy of thirty-one years.

Plaintiff presented three expert witnesses: a certified arborist and two medical doctors. The arborist, Michael LaMana, testified that he went to the premises approximately one month after the accident. LaMana measured the limb which had fallen; he testified it was twenty-seven feet in length and seven inches in diameter. He identified the tree from which it fell and said the tree had been dead for some period of time. He said other trees on the property were in a similar condition and were dangerous. He also testified that certain of the problems were visible and obvious to a lay person--trees that were missing bark, trees leaning, trees from which branches had obviously broken.

John M. Lord, M.D., a board-certified orthopedic surgeon, explained to the jury the fractures to plaintiff's tibia and fibula and the nature of the surgical repair that plaintiff had undergone. He also explained that she suffered fat necrosis, death of the fatty tissue, in her shin area, making it vulnerable to future damage. He also testified that the bill plaintiff had received from the orthopedic surgeon for $7154 appeared reasonable. Loka Reddy, M.D., a board-certified plastic surgeon, also testified about the skin damage plaintiff had suffered and the possibility of future surgical repair of the scars on her left leg. He estimated the cost of such surgery to be approximately $9500.

Both defendants testified. They each denied that plaintiff had ever contacted them to complain about the condition of the trees on the property or limbs falling from the trees. Defendants also presented Joel Weinstein, M.D., an orthopedic surgeon who examined plaintiff. Dr. Weinstein testified that in his opinion plaintiff had made a good recovery from her injury.

The trial court did not hold a charge conference with counsel prior to their summations or its instructions to the jury. Although Rule 1:8-7(b) only requires a charge conference in a criminal matter, at least one of the attorneys at trial asked for the opportunity to discuss the charge before summations. Although the trial court responded it would give the attorney "a few minutes," it never reviewed with counsel what the charge would contain.

In its instructions, the trial court included a charge on comparative negligence, telling the jury that defendant contended that "plaintiff was negligent in terms of the conditions that existed at the time the incident happened. That's called comparative negligence." The trial court never elucidated further what conduct on the part of plaintiff it was referring to and, from our review of the transcripts, it appears defendants made no contention, either in opening remarks or in summation, that plaintiff had been negligent. We recognize that plaintiff's counsel, at the conclusion of the court's instructions, responded that he had no objections to the instructions as given. He did, however, while the jury was still deliberating, argue to the trial court that comparative negligence should not have been charged.

Even if trial counsel had not made this belated objection, however, we would be constrained to conclude that on the record presented to the jury, there was no basis for a finding that plaintiff had been negligent in any respect. After reviewing the record presented to us, we are at a loss to determine what conduct on plaintiff's part the jury could have found to be negligent.

The jury attributed a percentage of twenty-five percent fault to plaintiff. In certain contexts, the appropriate remedy might simply be to strike that percentage. We can have no confidence here, however, that such a result would be fair for there are other indications in the record that the jury's verdict is not otherwise reliable, as well as other deficiencies in the court's instructions. As to the latter, the trial court never gave an ultimate outcome charge, explaining to the jury the significance of the percentages of fault. Such a charge was mandatory in a matter such as this. Roman v. Mitchell, 82 N.J. 336, 346 (1980). The jury itself during deliberations asked about the significance of the percentage allocations and the trial court simply responded that it would adjust any damages award "depending upon the percentage of liability found against each party . . . ."

Later, the jury asked if it could have a copy of the bill plaintiff had received from her orthopedic surgeon. The trial court properly responded that the bill was not in evidence but that there had been testimony that the amount was $7154. It then continued along the following lines:

[H]is bill is $7,154 would be a fixed amount and I would adjust whatever award you should give the plaintiff, if you decide to give the plaintiff an award by including that $7,154 in the amount. That's an amount which we don't take a percentage of. That's a fixed amount.

Neither trial counsel responded to this supplemental instruction. Nor do the briefs on appeal mention it. We are, however, unaware of any authority for the proposition that an assessment of comparative fault reduces only an award for pain and suffering, as opposed to an award for economic loss.

After some period of deliberations, the jury returned its initial verdict sheet to the trial court. This did not occur on the record for the trial court had instructed the jury that when it had completed its deliberations, it was to deliver the signed verdict sheet to the attendant who would then give it to the trial court, which would "look at it and make sure it conforms to what it should say." Neither party challenges that procedure or questions whether it conforms to the requirements of Rule 1:8-9.

The initial verdict sheet, however, displayed evident confusion on the part of the panel for it found plaintiff to have been negligent, that her negligence was not a proximate cause of the accident, and yet attributed to her twenty-five percent of the overall fault. The verdict sheet contained in the appendix indicates that the jurors answered seven to nothing that plaintiff's negligence was not a proximate cause of the accident. After conferring with the attorneys, the trial court brought out the jury, instructed them as to the inconsistency in its verdict, and asked them to retire and continue their deliberations. This procedure, of explaining to the jury the nature of the inconsistency in its verdict and asking it to continue its deliberations, was entirely correct. Dubak v. Burdette Tomlin Mem'l Hosp., 233 N.J. Super 441, 454-55 (App. Div.), certif. denied, 117 N.J. 48 (1989).

The record does not disclose how much longer the jury deliberated, but it later returned a second verdict sheet upon which it indicated that plaintiff was negligent, that her negligence was a proximate cause of the incident and found her again to be twenty-five percent at fault. This time, the vote as to whether plaintiff's negligence was a proximate cause of the accident was six to one.

After receiving this verdict, the trial court discharged the jury, with thanks for its service and had a brief colloquy with counsel and, according to the transcript, went off the record. The transcript then resumes with the following exchange with counsel:

THE COURT: The jury asked me if there's insurance to cover this. So, I just said to them that's not something for you to concern yourselves with, it was not part of this case.

[PLAINTIFF'S COUNSEL]: Okay.

[DEFENSE COUNSEL]: Okay.

THE COURT: All right?

[PLAINTIFF'S COUNSEL]: Can we put that on the record, that they asked that question?

THE COURT: Sure, you can put it on the record.

[PLAINTIFF'S COUNSEL]: Can we ask whether or not that affected their decision?

THE COURT: They're not going to answer, they're discharged. They're discharged. I only did that as a courtesy to them, but I told them I wasn't going to answer the question.

[DEFENSE COUNSEL]: Yeah.

[PLAINTIFF'S COUNSEL]: Well, can we put that question on the record.

THE COURT: All right. Dee? All right, let's go back on the record.

COURT CLERK: Coming back out.

THE COURT: Outside the presence of counsel, the jurors asked me as to whether or not there's any insurance that affects this particular matter. My response to them was that's not something for them to concern themselves with. Insurance was not an issue in this case and they were not--and apparently--I don't know whether they considered it or not, but there was no indication that they did. Anything else?

[DEFENSE COUNSEL]: No, Your Honor.

[PLAINTIFF'S COUNSEL]: Can Your Honor ask them whether or not that was a consideration--

THE COURT: I will not ask them that.

[PLAINTIFF'S COUNSEL]: --in their decision?

THE COURT: I will not ask them any questions. I let them ask me that one question and that was my response. And I said goodbye to them and I thanked them.

[PLAINTIFF'S COUNSEL]: Thank you, Judge.

[DEFENSE COUNSEL]: No, Your Honor, thank you.

[PLAINTIFF'S COUNSEL]: Thank you, Judge.

THE COURT: All right. Take it easy guys.

We can only infer from this that the trial court engaged in a private discussion with the members of the jury after they were discharged. We have in the past commented upon the dangers inherent in such conduct. See Ertle v. Starkey, 292 N.J. Super. 1, 7 (App. Div. 1996). Further, we think it is entirely reasonable to conclude from this colloquy that the panel's deliberations could have been influenced by inappropriate factors. Whether defendants carried insurance was entirely immaterial to the questions the jurors were called upon to answer. N.J.R.E. 411.

Plaintiff moved for a new trial or additur, contending that the juror's question about insurance indicated the panel's deliberations were tainted, that the trial court erred in submitting the question of comparative fault to the jury, and that the damage award was inadequate. The trial court rejected the first two arguments but agreed with the last. As to the question of insurance, it noted that the juror's question may have been prompted by plaintiff's testimony that she did not have medical insurance to cover her doctors' bills. In discussing the second, the trial court indicated that there was a question where plaintiff was located on the property at the time of the accident, that is, that she may have entered into the wooded area, as opposed to the grassy lawn. We note, however, that even if such conduct could be deemed negligent, defendant never made that argument to the jury. The trial court then turned to plaintiff's final argument, whether the verdict was adequate. At this juncture, it merely stated that it considered the verdict low and that it was granting an additur to amend the verdict to $50,000.

The trial court's handling of this last question was inadequate. The complementary remedies of additur and remittitur may be invoked when a jury's award of damages is so disproportionate to the injury received that the parties would otherwise face the delay and expense attendant to a new trial. Tronolone v. Palmer, 224 N.J. Super. 92, 97 (App. Div. 1988). It is critical, however, that a trial court, once it determines that additur is appropriate, give "[d]etailed findings in support of the additur amount." Id. at 104. Here, the trial court made no findings but simply announced a gross amount. Such an approach makes it impossible for either the parties or this court to determine how it selected that sum. Ibid.

Additionally, it is unclear how the court's announced additur of $50,000 can be reconciled with the subsequent order of January 29, 2009, entering judgment for $55,372.71. Finally, it is not possible to determine how the trial court's January 29, 2009, order accounted for the jury's award of $7,500 for plaintiff's medical expenses.

The orders of January 6, 2009 and January 29, 2009 are reversed, and the matter is remanded to the trial court for further proceedings.

 

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