Bobbie K. Quick v. equity residential management corporation

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4829-08T3

Bobbie K. Quick,

Plaintiff-Respondent,

v.

equity residential management

corporation AND ravens crest

apartments,

Defendants-Appellants,

and

brickman landscapers,

Defendant-Respondent.

__________________________________

Argued May 18, 2010 Decided August 23, 2010

Before Judges Fuentes, Gilroy and Simonelli.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Docket No.

L-8538-06.

Brian W. McAlindin argued the cause for appellants

(Bathgate, Wegener & Wolf, attorneys; Mr. McAlindin

and Christopher B. Healy, on the brief).

Michael G. Donahue argued the cause for respondent

Bobbie K. Quick (Stark & Stark, attorneys;

Mr. Donahue, of counsel and on the brief).

Jared P. DuVoisin argued the cause for respondent

Brickman Landscapers (Tompkins, McGuire, Wachenfeld &

Barry, attorneys; Joseph K. Cobuzio, of counsel;

Mr. DuVoisin, on the brief).

PER CURIAM

Defendants EQR-Ravens Crest Vistas, Inc. and Equity Residential Properties Management Corporation (collectively "Equity") appeal from a jury verdict awarding plaintiff Bobbie K. Quick $75,000 in compensatory damages for injuries she sustained when she slipped and fell on defendants' property.1 This was the second jury that considered the question of damages in this case. The first time this case was tried, a different jury considered both liability and damages. That jury found defendants liable, but it awarded plaintiff only $15,000 in compensatory damages.

Thereafter, plaintiff moved for a new trial as to damages only pursuant to Rule 4:49-1, or in the alternative, for an additur. After considering the arguments of counsel, the trial court granted plaintiff's motion for a new trial on the issue of damages without addressing the alternative relief of an additur.

We now reverse the trial court's ruling granting plaintiff's motion for a new trial on damages, vacate the second jury's award of $75,000, and reinstate the original award of $15,000, as augmented by post-judgment interest pursuant to Rule 4:42-11. Giving due deference to the trial judge's "feel of the case" and acknowledging that this figure is at the lower end of the spectrum of what reasonable minds would consider to be adequate compensation, we are satisfied that the trial court erred in setting aside the original award of $15,000. We reach this conclusion because the original award, although low, is supported by the evidence presented at trial. As such, it does not shock our collective judicial conscience.

Because the only question properly before us concerns the quantum of damages, we will primarily limit our recitation to facts that relate solely to this issue.

I

On March 2, 2005, at approximately 5:00 a.m., plaintiff was walking her dog when she fell on a stairway landing at the Ravens Crest Apartment complex. According to plaintiff, she

went down the steps and after [she] got to the bottom step, stepping off the bottom step, [she] put [her] right foot on the landing quickly [and] it slipped out from under [her] and [she] went up and then landed on [her] left ankle under [her] butt and the top of [her] thighs.

She testified that ice caused her to slip and fall to the ground. By contrast, according to plaintiff's daughter, Pamela Miller Capra, although there was ice on the landing, when she went to assist her mother immediately after the fall, she did not see ice or snow on the steps.

From the scene of the accident, plaintiff was transported by ambulance to a hospital. Dr. Stuart Levine was the emergency room physician who first treated plaintiff. After reviewing x-rays taken of plaintiff's ankle, Dr. Levine diagnosed her with a "bimalleolar equivalent ankle fracture." He recommended surgery to treat the injury, scheduled the operation for March 9, 2005, and discharged plaintiff with interim instructions to ameliorate her discomfort until the date of the surgery.

Plaintiff was fifty-six years old at the time of the accident. She was unable to walk during the week between the accident and the surgery. She was anxious, fearful, and suffered "a lot of pain," that she described as "lightening bolts . . . running up your leg." In addition, the medication prescribed2 to alleviate her pain gave plaintiff nightmares.

Dr. Levine performed the surgery on plaintiff as scheduled on March 9, 2005. He inserted "a number of screws and a plate" into her ankle. The surgery was successful and plaintiff returned to work twelve days thereafter. She underwent physical therapy and saw Dr. Levine for post-surgical care. According to Dr. Levine, when he saw plaintiff on May 16, 2005, "the wound was healed and the range of . . . the ankle was great, and she had [] good strength."

Despite this progress, plaintiff returned to Dr. Levine on December 8, 2005, complaining of redness in her leg. Dr. Levine opined that an infection in the wound may have occurred and recommended surgery to remove the "hardware" he had previously implanted. This operation occurred on December 15, 2005; plaintiff was hospitalized due to this procedure for a total of five days. Dr. Levine last treated plaintiff for her accident related injuries on January 5, 2006. He testified that at that time the "wound looked very good."

Dr. James Aragona also examined plaintiff in connection with this suit. He indicated that she had "some residual swelling of about a half an inch," had a "small loss of dorsiflexion,"3 had "[n]ormal plantar flexion,"4 had "a slightly thickened ankle," "walk[ed] without a limp barefoot," could "rise on her toes," and "ha[d] no atrophy."

Plaintiff testified that she continued to experience pain in her ankle and hip that limited her ability to stand for long periods of time at work. She was also very careful when climbing stairs, could no longer wear high heels, and was concerned about her future ability to work as a medical assistant.

The first jury deliberated for approximately thirty-three minutes before returning a verdict. The jury found Equity liable for plaintiff's injury and awarded her $15,000 in compensatory damages for pain and suffering.

In deciding plaintiff's motion for a new trial on damages, the trial judge began his analysis by properly noting that the court had to determine "whether or not the jury's conclusion is sustainable given the evidence in the most favorable light for the prevailing party." With this principle as a guide, the judge then articulated what he considered was the relevant standard of review:

[t]he test that the court must apply is whether the jury verdict is so far removed from the indisputable evidence that it shocks [the] judicial conscience . . . If it does so, and when the sole conclusion for the court is that the verdict is a product of passion or partially . . . or prejudice[], a mistake, such that a constitutional office of this court cannot sustain it, that is the only circumstance under which the court should interfere and substitute its judgment for that of a jury.

He thereafter made the following findings:

What the court is about to do is a first for this court. This is a leg fracture or ankle fracture. The x-rays clearly show, and the testimony clearly was that there [were] medical plates, bolts. Subsequent to that, there was a second operation which required that hardware to be removed. Accepting all of the testimony that the results were excellent, the results were favorable, the results were as good as possibly one could expect, the court simply cannot sustain a $15,000 verdict for this type of injury period.

It did and does shock this court. Now, over the course of time since this verdict was rendered this court has considered what verdict would not shock the conscious of the court, what is the lowest possible reasonable verdict and while there [have] been various numbers that . . . the court has considered, this court's feeling is [that] this is a jury decision . . .

It is an ultimate last resort and should be done in only the rarest, rarest situations. For better or for worse, this court believes this is one of those situations. But because it believes that it should not be interfering with the jury verdict, it will not set an amount as to what is an appropriate amount; rather it will remand this matter back to the status of a decision on compensation only, the liability aspect will stand and the matter will be retried by a jury who will hopefully . . . be rational in their decision making, whatever that might be.

And if they come back with the same number, then this court will frankly stand humbled and be in error, but it cannot sustain the verdict that's been set forth by this panel. I believe it to be a product of a -- and I don t mean any disrespect to plaintiff, I truly don t but she was not a likeable person and I do believe it was more a product of passion [and] prejudice than rational, objective thinking.

(Emphasis added.)

Based on these findings, the trial court granted plaintiff's motion for a new trial limited to the issue of damages. It is important to note that although defendants' argument in opposition to the motion also included an attack on the jury's liability verdict, defendants did not appeal to set aside the verdict on those grounds.

II

Rule 4:49-1(a) authorizes a trial court 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." (Emphasis added.) With this admonition in mind, we have long held that "[a] trial court should not interfere with a jury's damage award unless the award is so disproportionate as to 'shock the conscience' and the result therefore [is] 'manifestly unjust.'" London v. Lederle Lab., 290 N.J. Super. 318, 332 (App. Div. 1996) (quoting Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 297 (1990)). We employ the same standard of review on appeal "except that the trial court's opportunity to develop a 'feel of the case' is entitled to deference." Ibid.

Our Supreme Court has cautioned trial judges that this type of relief should be sparingly used so that the judge is not converted into a super juror, usurping the jury's fact-finding function.

While sometimes difficult of application to a given factual base, these rules recognize that all judges, whether trial or appellate, are human and that the judgment of each is inevitably affected by subjective prejudices or predispositions relating to properties or specific tendencies of the individual mind, as distinguished from general or universal experience. These natural subjective inclinations derive from the particular background or experience of the individual judge, whether from tenure on the bench in examining or recalling other cases, from previous activity in law practice in diverse fields or, for that matter, from any human experience, such as a youthful background of poverty or wealth or the like. Such individuality of approach extends of course to the field of admeasuring damages flowing from injuries caused by negligence, as in the present case, or other wrong. It is for the merging of such individualized propensities of mind into an amalgam of common judicial experience related to the doing of justice that judges are admonished to resist the natural temptation to substitute their judgment for that of the jury.

[Baxter v. Fairmont Food Co., 74 N.J. 588, 596-97 (1977).]

The Court thus gave the following instructions to guide judges when deciding motions for new trials:

The judgment of the initial factfinder then, whether it be a jury, as here, or a judge as in a non-jury case is entitled to very considerable respect. It should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice. The process of weighing the evidence is not to encourage the judge to evaluate the evidence as would a jury to ascertain in whose favor the evidence preponderates and on that basis to decide upon disruption of the jury's finding. The judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a thirteenth and decisive juror. Nevertheless, the process of evidence evaluation called weighing is not a pro forma exercise, but calls for a high degree of conscientious effort and diligent scrutiny. The object is to correct clear error or mistake by the jury. It is only upon the predicate of a determination that there has been a manifest miscarriage of justice, that corrective judicial action is warranted.

[Id. at 597-98 (internal citations and quotations omitted).]

Although the trial court began its analysis by noting that, in deciding whether the damage award should stand, the evidence presented should be viewed in the light most favorable to the prevailing party, the court's subsequent analysis did not adhere to this guiding principle. Specifically, the motion judge did not give due deference to the medical testimony given by both plaintiff's and defendants' experts. Both of these physicians testified that plaintiffs' injuries were successfully treated and that she made a complete recovery. Although plaintiff testified that she continues to endure pain, limited function, and general anxiety, the jury was free to reject her testimony in favor of the physicians' opinions.

We share the concern expressed by the trial judge that the award of $15,000 appears to devalue the pain and general dysfunction suffered by plaintiff during the week between the accident and her first surgery. Likewise, this sum is arguably paltry in light of the second surgery plaintiff needed to remove the surgical hardware implanted during the first surgery. Although we would have probably awarded plaintiff a higher monetary recovery, we cannot, in good conscience, conclude that an award of $15,000 is so patently unreasonable that permitting it to stand would constitute a gross miscarriage of justice. Indeed, the motion judge recognized this fact by noting that if a second panel of jurors returned the same verdict, he would "stand humbled and be in error." If this monetary award is in fact fatally defective as a miscarriage of justice, it cannot be subsequently validated by a second jury panel.

The first jury reviewed the evidence presented, evaluated the credibility of the witnesses, and rendered a verdict that reflected their collective assessment of the monetary value of plaintiff's injuries. Our Model Civil Jury Charges inform jurors that the amount of compensation is left to their "sound discretion." As judges, we are bound to respect the exercise of that discretion unless the verdict clearly shows there has been a manifest miscarriage of justice warranting corrective judicial action. Under the circumstances presented here, the award of $15,000, although low, does not warrant judicial correction.

Finally, we note that defendants have also raised certain arguments attacking the jury's verdict on the question of liability. We decline to address these arguments because defendants did not move for a new trial on the question of liability before the trial court. Gebroe-Hammer Assocs. v. Sebbag, 385 N.J. Super. 291, 295 (App. Div.), certif. denied, 188 N.J. 219 (2006); R. 2:10-1.

III

We reverse the trial court's ruling granting plaintiff's motion for a new trial on damages, vacate the second jury's award of $75,000, and reinstate the original award of $15,000. The trial court shall determine the amount of post-judgment interest plaintiff is entitled to receive pursuant to Rule 4:42-11 and enter final judgment accordingly.

1 Although Brickman Landscapers was also named as a defendant, the jury that considered the question of liability did not find that its role in this case was a proximate cause of plaintiff's injuries. The complaint against this defendant was thus dismissed by the court.

2 She could not definitively state whether this medication was Percocet or codeine.

3 The ability to turn one's foot or toes upwards. Stedman's Medical Dictionary 464 (25th ed. 1990).

4 Bending movement related to the sole of one's foot. Stedman's Medical Dictionary 595, 1210 (25th ed. 1990).