ANTHONY CONTINO v. ALICIA GONZALEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3971-11T4

ANTHONY CONTINO,

Plaintiff-Respondent,

v.

ALICIA GONZALEZ,

Defendant-Appellant,

and

WILLIAM CORVELLI,

Defendant-Respondent,

and

JOEY HARRISON'S SURF

CLUB, IFA INSURANCE COMPANY,

Defendants,

___________________________

ALICIA GONZALEZ,

Third Party Plaintiff-

Appellant,

v.

STATE FARM INDEMNITY COMPANY,

Third Party Defendant-

Respondent.

____________________________

A

December 24, 2012

rgued December 4, 2012 - Decided

 

Before Judges Reisner, Yannotti and Hoffman.

 

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3038-08.

 

Edward J. DePascale argued the cause for appellant (McElroy, Deutsch, Milvaney & Carpenter, L.L.P., attorneys; Mr. DePascale of counsel and on the brief; Sandra D. Lovell, on the brief).

 

David T. Wheaton argued the cause for respondent Anthony Contino (Levinson Axelrod, P.A., attorneys; Mr. Wheaton and Matthew P. Pietrowski, of counsel and on the brief).

 

Michael A. Malia argued the cause for respondent William Corvelli (King, Kitrick & Jackson, L.L.C., attorneys; Mr. Malia, on the brief).

 

Ronald S. Yuro argued the cause for respondent State Farm Indemnity Company (Connell, Connell, Camassa & Yuro, P.C., attorneys; Mr. Yuro of counsel and on the brief; Christopher M. Brady, on the brief).

PER CURIAM

Defendant Alicia Gonzalez (Gonzalez or defendant) appeals from a January 25, 2012 jury verdict in favor of plaintiff Anthony Contino, and from a March 16, 2012 order denying her motion for a new trial or for remittitur.

To briefly summarize, Gonzalez became intoxicated while drinking at a bar in Seaside Heights. Upon leaving the bar, she entered a car belonging to William Corvelli and drove the wrong way down Route 35, causing a head-on collision with a car driven by Anthony Contino (Contino or plaintiff).1 Plaintiff suffered severe injuries in the accident. After a ten-day trial, a jury determined that Gonzalez did not have Corvelli's permission to drive his vehicle and that plaintiff did not act unreasonably in refusing to undergo additional surgery. The jury awarded plaintiff six million dollars for pain and suffering. The trial judge denied defendant's new trial motion. The judge also declined to remit the verdict, finding that plaintiff suffered serious and "life-changing" injuries and the verdict was neither excessive nor shocking to the conscience.

On this appeal, defendant argues that the use at trial of her first deposition was unfair; the jury's finding on the issue of permissive use was against the weight of the evidence; the trial judge should not have admitted photographs of the damaged vehicles; the verdict was excessive; and the trial judge should have granted remittitur.2 Based on our review of the entire trial record, we find no merit in any of these arguments, and we affirm.

I

We begin by reviewing the trial evidence most pertinent to the issues on appeal.

i. The Accident

Over Labor Day weekend, on Sunday, September 3, 2006, defendant left her home in Totowa at around 10:30 a.m. and rode down to Seaside Heights with several female coworkers.3 After stopping at McDonalds, they headed to Joey Harrison's Surf Club (Joey's or the bar) on the beach. After spending some time at the bar, defendant's coworkers left with "some guys" and told her they would come back. She stayed at the bar almost all day, drinking Red Bull and vodka, and became extremely intoxicated.

Sometime in the evening, defendant decided that she wanted to go home. After wandering around the bar's parking lot, she entered a car owned by William Corvelli, started the engine, and drove down Route 35. She drove on the wrong side of the road and crashed head-on into plaintiff's vehicle, which was traveling northbound in the center lane.

Plaintiff, age forty-one at the time, was driving from the gym to his father's house for a Labor Day family get-together. As a result of the accident, he was pinned and trapped in his car until being rescued by the fire department and flown by helicopter to the Jersey Shore Medical Center. He did not lose consciousness during or after the accident.

ii. Plaintiff's Injuries

Plaintiff s injuries from the accident included a displaced fracture of the right ring finger, bruising throughout his body, and, most severe and lasting, fractures to his right ankle and foot. Medical testimony established that the bones in plaintiff's right shin and heel were crushed, deformed, and shattered into innumerable fragments, destroying the cartilage and joint below the ankle. The deformed heelbone put pressure on the main nerve traveling on the inside of the ankle, causing numbness on the bottom of plaintiff s foot.

The morning after the accident, plaintiff developed painful and large fracture blisters on his right ankle, filled with fluid from the bone. The blisters have left visible scarring.

Plaintiff was hospitalized, immobilized and prescribed heavy doses of pain medication in the hospital for nine days. Thereafter, he was discharged to the Laurelton Nursing Home where he received some physical therapy and remained on high doses of pain medication. Eventually, he was discharged in a wheelchair to his second-floor apartment where he was dependent on extensive assistance from his friends and family. A home care nurse attended to him three times a week and he also received physical therapy at home.

For a number of weeks after returning home, plaintiff could not shower, instead washing himself with a wet cloth, because he could not bear the pain of any weight on his right foot; it was a month and a half before he could walk on it with tolerable pain. It was December 31, 2006 before he left the house other than for a doctor s appointment.

At the time of trial, plaintiff was still taking pain medication every four hours daily, and a medical expert who evaluated him, Dr. Markbreiter, predicted he would be on pain medication for the rest of his life.4 Plaintiff testified that he is constantly aware of the pain, has to frequently re-adjust his position due to discomfort from the tender heel, and wakes up at night every two hours. He also testified that, due to his physical limitations, he had trouble maintaining social relationships.

Dr. Markbreiter described the original fractures as "horrible" and "devastating." The ankle deformity and the nerve damage at the heel are permanent, as is the deformity of the right ring finger, which has healed as a "mallet" finger, or permanently bent down.

Dr. Markbreiter testified that the ankle and foot injury have resulted in end-stage post-traumatic arthritis because the cartilage cushioning between the joints has completely eroded. The prognosis for the ankle and foot injuries is poor: they will only get worse, not better, and will lead to further damage to plaintiff s knee, hip and spine.

If the debilitation continues, plaintiff may require fusion surgery to stabilize the ankle; the surgery involves replacing the ankle joint with a rod, causing the ankle bone to grow together with the heel into an immovable "peg" leg. Plaintiff testified at trial that he does not know whether he will choose the fusion surgery in the future, depending on his pain levels, because he does not want to have a "club" foot.

Plaintiff opted not to undergo reconstructive surgery after the accident because the risks of complications outweighed the corrective benefits; would not have improved his current condition; and would not have eliminated the need for a fusion surgery in the future. In his testimony, Dr. Markbreiter confirmed that he would not recommend the surgery, because of the high rate of failure and the risk of infection and other complications, including a possible need to amputate the limb.

Before the accident, plaintiff was very physically active. He took pride in staying fit and healthy and being an active father to his young daughter. He is no longer able to engage in sports, which were an extremely important part of his lifestyle before the accident. According to plaintiff, before the accident, he had worked out at the gym every day; after the accident he did not return for three years due to his physical disabilities and his depression, and he continues to be quite limited in his range of exercise.

In addition, although plaintiff returned to work on April 1, 2007, as the sole owner of a window-washing business which was his primary source of income, he can now only work a few hours a day before his ankle swells. He feels pain while working and relies on paid helpers to assist him. Plaintiff also testified that he feels pain and starts limping after doing any kind of activity, including simple walking, and walking in the sand barefoot or walking on gravel on the sea shore are intolerable to him.

 

 

Defendant did not present any expert medical testimony.

iii. Corvelli's Report of Theft

Corvelli, the owner of the car Gonzalez took and crashed, testified that he was staying in a rented house in Seaside Heights with his wife and two children for a week through Labor Day weekend. They had driven down from Whippany in one car, normally used by his wife, which had a keyless entry pad on it. Because they shared the car in Seaside, they left the keys under the mat and used the entry pad to access the car.

On September 3, 2006, Corvelli's wife took the car to go shopping and returned in the afternoon. Corvelli then moved the car from their driveway to the street in anticipation of family guests arriving. Corvelli's wife later went out to the car to get a toy for the children. Without objection, Corvelli testified that his wife later told him she could not remember if she had locked the car at that time. He also testified that his wife had a habit of not locking the car.

Around 7:00 or 8:00 p.m. that evening, Corvelli, his wife, his wife's cousin and her husband went next door to Joey's bar while other relatives watched the children and cooked dinner at the beach house. Corvelli did not pay attention to whether his car was there when they left and came back. Around 9:00 a.m. the next morning, September 4, 2006, Corvelli discovered the car was missing and reported to the local police that it was stolen.5

Officer Bachonski from the Toms River police department interviewed Corvelli and his wife and concluded that the vehicle had been stolen. Corvelli conceded at trial that the police never found any evidence of a break-in: no broken glass, discarded pry tools, or other indication of forced entry.

Corvelli found Gonzalez's cell phone in the wrecked vehicle when he visited the police impound lot. He testified that while he was retrieving some of his possessions from the car, the cell phone rang and he answered it. The caller was one of defendant's friends, a school nurse. He spoke with her more than once to try to find out defendant's whereabouts the night of the accident and to figure out how she could have gained access to his car. After using the cell phone, Corvelli turned it in to the police.

iv. Defendant's Lack of Memory

Defendant testified that she sustained a head injury and lost consciousness during the accident. She was flown by helicopter to the Jersey Shore Medical Center, was prescribed heavy pain medication, including morphine, hydrocodone and oxycodone. She remained in the hospital for eight days and stayed on pain medication for two and a half months after the accident. She testified that she could not remember details from before, during and after the accident, including talking to the police at the hospital.

According to the police, defendant denied that she had stolen the car, said a friend6gave her permission to drive it and the information about how to access it, but she could not remember the friend, the information, or where the vehicle had been parked.

At her second deposition and at trial, defendant maintained she had met Corvelli at the bar and he gave her permission to drive his car, but claimed she did not remember how she met him, what he looked like, or what conversation they may have had. She could not remember how she found the car, how she entered it, how she started it, or what route she took upon driving. She also could not remember her own conduct at the bar, only that she had been wandering around the bar for some unknown time before entering Corvelli s car. She said if she remembered she would explain it, but she could not recall.

It was clear from defendant's trial testimony that her claims that she met Corvelli and that he permitted her to use his car were not based on her own recollection. Rather, her contentions were based on inferences she drew from what other people told her and on her belief that she would never have taken someone else's car without permission.

Defendant s mother and stepfather both testified that, from the time of the accident to the time of the trial, defendant had consistently told them that she had no recol lection of ever meeting Corvelli and had no recollection of how she gained entry to his car.

II

On this appeal, defendant first contends that the trial judge erred in denying her motion for a new trial. In making that argument, she bears a heavy burden:

A trial judge may only 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." R. 4:49-1(a). This standard applies whether the motion is based upon a contention that the verdict was against the weight of the evidence, or is based upon a contention that the judge's initial trial rulings resulted in prejudice to a party. Crawn v. Campo, 136 N.J. 494, 510-12 (1994). Whether to grant the motion is within the trial court's discretion. Id. at 511. On appeal, we consider essentially the same standard. R. 2:10-1.

 

[Hill v. N.J. Dep't of Corr. Comm'r, 342 N.J. Super. 273, 302 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).]

 

In reviewing the trial judge's discretionary decision, we must give due regard to the judge's "feel" for the case:

The "feel of the case" is not just an empty shibboleth--it is the trial judge who sees and hears the witnesses and the attorneys, and who has a first-hand opportunity to assess their believability and their effect on the jury. It is the judge who sees the jurors wince, weep, snicker, avert their eyes, or shake their heads in disbelief. Those personal observations of all of the players is "the feel of the case" to which an appellate court defers.

 

[Jastram v. Kruse, 197 N.J.216, 230 (2008).]

In light of those principles, and our own review of the record, we find defendant's appellate arguments unconvincing.

Without citing a single case, defendant argues that the trial court should not have permitted the other parties to introduce portions of her first deposition in evidence at the trial. We cannot agree. Defendant failed to retain counsel for over a year after she was served with the complaint, and she refused to cooperate with discovery. Eventually, she was subpoenaed to a deposition, at which she appeared without an attorney. Later in the case, she retained counsel and the parties took her deposition a second time, this time with her attorney present.

We review the judge's evidentiary rulings for abuse of discretion. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). We find none here. A party who chooses not to retain counsel in a civil case is not thereby immunized from providing discovery. Moreover, defendant's testimony was highly relevant, because she admitted under oath during the first deposition that she did not know Corvelli. She also admitted that she had no idea how she gained entry to his car. Those statements were admissible under Rule 4:16-1(b) (use of party depositions) and N.J.R.E. 803(b)(1) (statement by a party opponent).

Defendant next contends that the jury's finding on the permissive use of the vehicle was against the weight of the evidence. This argument requires little discussion. R. 2:11-3(e)(1)(E). There was ample evidence that defendant took Corvelli's car without his permission.

The car was parked in front of Corvelli's rented vacation house, which was right next to the bar's parking lot. Corvelli testified that the car had a "keypad" entry system, that he and his wife left the car keys under the floor mat of the car, that his wife was the last person in the family to enter the car before its disappearance, and that his wife habitually failed to lock the car. See N.J.R.E. 406(a) ("Evidence of "habit . . . is admissible to prove that on a specific occasion a person . . . acted in conformity with the habit."). Moreover, as Corvelli's attorney cogently noted in summation, it would be almost inconceivable that Corvelli would have given his car keys to a stranger he met in a bar and authorized her to drive the car home to North Jersey, leaving him and his family stranded in Seaside Heights.

Turning to defendant's arguments concerning the damage award, we find no merit in her contention that the court should have excluded several photographs of the damaged vehicles. In the trial court's discretion, such photographs are admissible when "the cause or extent of a plaintiff's injuries are at issue." Brenman v. Demello, 191 N.J. 18, 21 (2007). We find no abuse of the judge's discretion in admitting the photographs, which were relevant both to the extent of defendant's physical injuries and his terror while waiting to be extricated from the wreckage.

Finally, defendant argues that the verdict was excessive, warranting either a new trial or remittitur. We disagree. On reviewing a verdict, the trial court should not alter the award unless it is "so disproportionate to the injury and resulting disability as to shock [the judge's] conscience and [convince the court] that to sustain the award would be manifestly unjust." Baxter v. Fairmont Food Co., 74 N.J.588, 596 (1977) (citation omitted). The verdict may only be set aside if it is "'wide of the mark' and pervaded by a sense of 'wrongness.'" Johnson v. Scaccetti, 192 N.J.256, 281 (2007) (quoting Baxter, supra, 74 N.J.at 598-99). The trial court must view the evidence in the light most favorable to the plaintiff. Id.at 281.

The purpose of remittitur

is not to bring a generous, but manifestly supportable, verdict down into a range more to the liking of the trial or appellate court. Instead, it is a device to which a court may resort to reduce a verdict that is ''shocking'' and award in its place ''the highest figure that could be supported by the evidence.''

 

[He v. Miller, 207 N.J. 230, 250 (2011) (quoting Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 500 (2001)).]

 

As the Court noted in He, "[t]he power of remittitur is not to be exercised lightly . . . because we repose enormous faith in the ability of juries to equate damages with dollars to "make the plaintiff whole, so far as money can do." Id. at 248 (quoting Model Jury Charge (Civil) 8.11E). And, in reviewing the trial court's decision on a remittitur motion, we owe deference to the trial judge's feel for the case. Id. at 250; Jastram, supra, 197 N.J. at 230.

Defendant bears a particularly heavy burden here, because she is asking us to second-guess the trial judge, who declined to second-guess the jury. We find no basis in this record to accept defendant's invitation. Plaintiff presented un-rebutted medical evidence of his terrible injuries, and his own testimony about what the trial judge fairly described as the "life changing" impact of those injuries.

At the time of the accident plaintiff was a forty-one-year- old blue collar worker, in the prime of life and in the peak of good health. His social life revolved around exercise and sports, including surfing, skiing and snowboarding. The accident destroyed his ability to pursue those interests, limited his social life and limited his ability to work. His injuries also left him in permanent, lifelong pain and left him dependent on prescription pain medication. Further, plaintiff's medical expert testified that he will suffer increasing debilitative effects on his legs and spine over time.

Clearly, the jurors found plaintiff and his medical expert to be credible witnesses and unanimously awarded a verdict they believed was commensurate with plaintiff's injuries and his past, present, and future suffering. The verdict did not shock the trial judge's conscience, for reasons he explained at length on the record. We find no basis to disturb his decision.

Affirmed.

 

1 Plaintiff sued Corvelli, alleging that he negligently entrusted his vehicle to Gonzalez. He also sued the bar, Joey Harrison's Surf Club. Gonzalez sued Corvelli's insurer, State Farm Indemnity Company, seeking defense and indemnification as an alleged permissive user of the car. Before the trial started, plaintiff reached a settlement with the bar.

2 At oral argument of this appeal, defendant's counsel withdrew one additional issue concerning plaintiff's alleged failure to mitigate damages by cooperating with proposed rehabilitation therapy.

3 At the trial, defendant testified that she did not know these coworkers well, and she could not remember their names.

4 A videotape of Dr. Markbreiter's de bene esse deposition was played to the jury at trial.

5 Corvelli also contacted his hometown police because the keys to his house had been under the mat along with the car keys.

6 According to police witnesses, defendant told them that the "friend" was female.