KATHERINE LEGGIO v. CURTIS LANES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3350-09T4

KATHERINE LEGGIO and

GEORGE LEGGIO,

 

Plaintiffs-Appellants,

 

v.

 

CURTIS LANES,

 

Defendant-Respondent.

 

_____________________________________

 

November 16, 2010

Argued October 19, 2010 - Decided

 

Before Judges Skillman and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1019-07.

Gerald R. Stockman argued the cause for appellants (Kalavruzos, Mumola & Hartman, LLC, attorneys; Mr. Stockman, of counsel; Anthony J. Monaco, on the brief).

Philip J. Degnan argued the cause for respondent (Marks, O'Neill, O'Brien & Courtney, P.C., attorneys; Mr. Degnan, of counsel and on the brief; Rachel Mandell, on the brief).

PER CURIAM

In this personal injury negligence action, plaintiff Katherine Leggio appeals from entry of judgment, following a jury verdict, in favor of defendant Curtis Lanes, and from denial of her motion for a new trial.1 We affirm.

Curtis Lanes is a bowling alley in Ewing, owned and operated by Bucks Mercer Management Corporation and doing business as Curtis Lanes (Curtis Lanes), whose principal is Charles Dimick, Jr. Plaintiff has worked at Curtis Lanes since approximately 2000, primarily in the kitchen, which services the facility's restaurant and bar operation.

On October 25, 2006, after working the afternoon shift, plaintiff remained on the premises, socializing with her co-workers and bowling three games. Afterwards, she went to her locker to retrieve her personal possessions. When she realized she did not have the key to open her locker, plaintiff approached the customer service counter where a master key is stored and where Curtis Lanes employee David Popp was working at the time. Plaintiff asked Popp for the master key.

This much is undisputed. Plaintiff and Popp, however, differ as to what occurred next. According to plaintiff:

. . . I told [Popp] somebody shut my locker and I need the key to open my locker.

 

And he was laughing and we were joking. He picked up the key and he said you want this key and I said yeah and he slammed it down on the desk and I went down on my knee and I covered by eye because something hit me. It hurt.

 

And when I lifted my head I heard my daughter screaming for my husband and other people around me saying that my blood was -- I was oozing and what not.

 

Popp offered a different version:

 

[Plaintiff] asked me, Dave, can you hand me the key, somebody shut my locker. And I said okay. I turned to my right where the keys were sitting on the desk, grabbed the keys, turned, handed her the keys, and she held her eye and fell to the ground.

Popp also "remember[ed] quite vividly holding the keys while her daughter was helping [plaintiff] on the ground[,] wondering what happened."

Officer Michael Flynn of the Ewing Police Department was dispatched to Curtis Lanes. Upon his arrival, he saw plaintiff, who complained that her left eye was burning and that she felt something was in it. She was unable to open her eye, which was "tearing heavily." When Officer Flynn inquired as to what happened, plaintiff explained that, after bowling, she went to the counter to get the master key to open her locker. Officer Flynn's police report summed up plaintiff's version of what happened next:

David grabbed the key off the counter and handed it to Kathy. All of a sudden she felt something hit her in the eye and that[']s when the pain started.

 

Flynn's report also reiterated Popp's account:

I spoke to David who stated that the keys were on top of the counter and he handed them right to Kathy. He believed that the keys did not strike or hit anything.

 

Officer Flynn inspected the keys, which were attached to a piece of plastic. One of the keys had a small chip missing, but Flynn reported that "it is unsure at this time if that chip was missing prior to this incident."

Plaintiff was transported by ambulance to Mercer Hospital. The triage nurse's report states: "pt reports key was slammed on desk and pt felt something strike her in eye, pt denies ability to see, pupil darkened, filled with blood, pt unable to see out of eye at all, back to [emergency department] for immediate eval." After being examined by a doctor, plaintiff was transported by ambulance to Wills Eye in Philadelphia for treatment.

Plaintiff was treated by Dr. Kristin Hammersmith, an opthalmologist and cornea specialist at Wills Eye. According to Dr. Hammersmith, plaintiff's cornea was lacerated, the iris pulled in to that laceration, and the chamber filled with blood. She opined that these injuries were consistent with the description that plaintiff gave as to the cause of her injury, namely that "something had hit her with a good amount of velocity and that it had caused both a sharp laceration as well as a good amount of blunt trauma to create that amount of hemorrhaging." In this regard, Dr. Hammersmith's records indicate that a "46 year-old white female was at a bowling alley. Key attached to a plastic flashlight was slammed onto the table and the tooth of the key or flashlight ? hit the left eye." Dr. Hammersmith operated on plaintiff's eye the following day. Plaintiff had six additional surgeries on her eye over the next twenty-nine months.

Plaintiff sued defendant, alleging that she was struck in the eye with a sharp object as the result of the negligence of defendant's employee. Defendant answered. At the conclusion of a three-day trial, the jury returned a verdict in favor of defendant, finding plaintiff did not prove by a preponderance of the evidence that defendant, through its employee, acted negligently.

Plaintiff subsequently moved for a new trial, arguing that the jury's verdict was a "miscarriage of justice" and "against the weight of the evidence." The trial judge denied the motion, reasoning:

. . . I'm going to deny your motion. This is governed by Rule 4:49-1 which permits a Court to order a new trial where "it clearly and convincingly appears that there is a miscarriage of justice under the law." Here I don t find that there was a miscarriage of justice. The first question that was given to the jury asked them whether there was negligence on the part of the defendant and their answer was no. And I think the issue with that went to credibility.

 

. . . .

With respect to the issue of negligence, we had Mr. Pop[p] say that he handed her the key and we had the statement of the police officer which is not crystal clear, but indicates that plaintiff said to him I handed or the key was handed to me. So, given that evidence, I think what the jury concluded is not in the realm of what under the law a Court has the discretion to overturn.

 

On appeal, plaintiff reiterates that the jury verdict was a "miscarriage of justice" because it was against the weight of the evidence and the result of cumulative errors, including the prejudicial reference to plaintiff's consumption of beer on the evening at issue and the admission of plaintiff's statement to the triage nurse "out of sequence," which diluted the probative value of this item of corroborative evidence. We disagree with these contentions.

Jury verdicts carry a "presumption of correctness." Romano v. Galaxy Toyota, 399 N.J. Super. 470, 477 (App. Div.), certif. denied, 196 N.J. 344 (2008). As such, they "should be set aside in favor of new trials only with great reluctance, 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); see also Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (noting that a verdict may only be interfered with if it is clearly against the weight of the evidence and "shock[s] the judicial conscience").

Rule 4:49-1(a) requires that the trial judge 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." A "miscarriage of justice" has been described as a "pervading sense of 'wrongness.'" Baxter v. Fairmont Food Co., 74 N.J. 588, 599 (1977) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

While this feeling of "wrongness" is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge [the jury] went so wide of the mark, a mistake must have been made. This sense of "wrongness" can arise in numerous ways -- from manifest lack of inherently credible evidence to support the finding, obvious overlooking or underevaluation of crucial evidence, a clearly unjust result, and many others.

 

[Ibid.]

 

See also Carrino v. Novotny, 78 N.J. 355, 360 (1979) ("[A] jury verdict, from the weight of evidence standpoint, is impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice.").

In evaluating a motion for a new trial, the trial court must undertake a "process of evidence evaluation" or "weighing." Dolson v. Anastasia, 55 N.J. 2, 6 (1969). "The object is to correct clear error or mistake by the jury." Ibid. The trial judge considers "not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility," particularly those generally considered by the jury. Ibid.

When reviewing the trial court s action on a new trial motion, the appellate court is governed by "essentially the same" standard as the trial court. Id. at 7. See R. 2:10-1. While deference must be given to the trial court with respect to "intangibles" not transmitted by the record, such as credibility, demeanor, and the "feel of the case," the appellate court makes its own independent determination of whether a miscarriage of justice has occurred. Dolson, supra, 55 N.J. at 7; see also Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 579 (App. Div.) ("[T]he initial factfinder's judgment is entitled to considerable respect and should be overturned only after the reviewing judge has carefully scrutinized the record and determined that to uphold the judgment would result in a manifest denial of justice."), certif. denied, 142 N.J. 574 (1995).

Governed by this standard, we discern no reason to interfere with the trial court's denial of plaintiff's motion for a new trial. The jury evidently resolved the conflicting accounts of the incident by crediting Popp's version, which was corroborated by his earlier consistent statement to Officer Flynn immediately after the incident and by plaintiff's own statement to the officer rendered at the very same time. Not only was the jury's verdict consistent with the evidence, it was based on the jury's credibility determination, to which both the trial judge and this court defer.

Even if the jury had found otherwise - namely that Popp did slam the keys on the counter - the jury could nevertheless have reasonably concluded that such conduct, under all the circumstances, was not negligent since the chipping of the metal key and the resultant injury to plaintiff were simply not reasonably foreseeable consequences of the employee's action. Trentacost v. Brussel, 82 N.J. 214, 222 (1980) ("Negligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others."); see also Scully v. Fitzgerald, 179 N.J. 114, 125-26 (2004); Jensen v. Schooley's Mountain Inn, Inc., 216 N.J. Super. 79, 81 (App. Div.), certif. denied, 108 N.J. 181 (1987). For these reasons, we conclude that the jury's verdict was neither so distorted nor wrong as to shock the judicial conscience.

Nor was it the result of any error alleged by plaintiff. In this regard, plaintiff argues that evidence of her consumption of four or five beers on the evening of the incident was unduly prejudicial and irrelevant, as there was no proof of her intoxication. We find no merit to this contention because evidence of plaintiff's alcohol consumption was first admitted during her direct examination and, in any event, was relevant because it affected her ability to recollect the events in question and, therefore, her credibility.

The following colloquy occurred between plaintiff and her counsel on direct-examination:

A: When I got done [with] work I went into the bar and sat in there with a couple of the other workers, had a few drinks, and then went out to bowl.

 

. . . .

 

Q: Were the police or the paramedics there yet?

 

A: I believe the police were there.

 

. . . .

 

Q: Oh, I m sorry. And do you recall whether you said anything to the police?

 

A: I might have. I don t remember. I don t remember. I did have a few beers.

 

Q: All right. You had a few beers.

Later, on cross-examination, before counsel objected, plaintiff

testified:

Q: The night of the incident[,] am I correct you don t recall what you said to the police officer?

 

A: No, I don t.

 

. . . .

 

Q: Well you remember talking to the police in general, correct?

 

A: I remember seeing them there but I don t remember talking to them like one on one basis.

 

Q: Well do you or do you not remember having a conversation with a police officer?

 

A: No, I don t. I don t remember a whole lot about that night.

 

Q: All right. And you said earlier because you had alcohol earlier today, right?

 

A: Yeah, I had a couple beers.

 

Q: And that affects your ability today to remember exactly what happened that night?

 

A: I was in so much pain and I don t, I don t remember. I don t remember. I mean

 

Q: Well beers didn t put you in any pain.

 

A: No. Whatever hit my eye sobered me up

. . . .

 

Following this exchange, plaintiff's counsel requested a sidebar, wherein the trial judge overruled counsel s objection, stating:

The Court: I don t see how this is I think this is completely normal cross examination on an issue that s in dispute. I mean I don t

 

[Plaintiff's counsel]: It s not in dispute that apparently she had some beers.

 

The Court: Yes, I know. But it goes to the core issue of her factual recollection of whether the keys were slammed down or not.

 

[Plaintiff's counsel]: Oh.

 

The Court: It goes to her recollection[,] that s all.

 

A trial court's evidentiary rulings are accorded substantial deference and will not be disturbed on appeal absent a finding that the court abused its discretion in admitting or excluding evidence. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). We perceive no abuse of discretion - much less prejudicial error - in the admission of evidence of plaintiff's alcohol consumption on the evening in question.

Clearly, cross-examination of a witness "should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness." N.J.R.E. 611(b). Here, plaintiff herself introduced proof of her alcohol consumption. Moreover, the factual conflict focused on whether, according to plaintiff, Popp slammed the keys, or, according to Popp, he simply handed them over to plaintiff. Thus, whether plaintiff's ability to accurately remember the incident was affected by her consumption of alcohol is clearly relevant to the jury's determination of her credibility, and of the facts generally.

We also find no error in the delay in admitting plaintiff's statement to the triage nurse that the keys were slammed down, which the trial judge at first excluded, but later reversed himself and admitted. In this regard, plaintiff argues that the initial exclusion precluded counsel from referencing the statement in his opening to the jury and prevented plaintiff from discussing it on her direct examination, thus diluting this evidence of its probative value and significance. We disagree.

Plaintiff's counsel, in fact, specifically referenced the statement in his opening:

The triage nurse asks her, you know, what happened? And [plaintiff] tells the triage nurse. Keys were slammed on a counter and a piece went into my eye. She tells that right at the hospital.

 

. . . .

 

But I want to point out, at the very hospital where she s seeking help, blood oozing out of her eye, she tells them that these keys were slammed on the counter and a piece apparently lacerated her eye.

And although the original exclusion prevented plaintiff from discussing the statement on her direct, the hospital record, inclusive of plaintiff's statement to the triage nurse, was admitted into evidence prior to plaintiff's cross-examination. Plaintiff's counsel, therefore, had the opportunity on redirect to examine his client as to its substance and content.

While its initial exclusion may have been unfounded, plaintiff suffered no prejudice from the delayed admission of this statement. As noted, plaintiff's counsel referenced the statement in his opening. He also read the entire statement into the record. Moreover, the hospital record was admitted and provided to the jury. Furthermore, Dr. Hammersmith also testified as to plaintiff's statement to her that the keys were "slammed." And lastly, plaintiff's counsel extensively addressed the statement in his closing argument to the jury. Under the circumstances, the admission of plaintiff's statement to the triage nurse "out-of-sequence" provides no basis to disturb the jury verdict.

We have considered plaintiff's remaining argument complaining of defense counsel's cross-examination of plaintiff about the key chain and find it without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). Suffice it to say, the alleged errors raised by plaintiff, considered singly or cumulatively, offer no reason to disturb the jury's verdict.

A

ffirmed.

1 Plaintiff's husband, George Leggio, sued per quod.