ANGELA K. LASH v. ULTIMATE HAND CAR WASH AND DETAIL CENTER, LLC

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2807-19

ANGELA K. LASH and
WAYNE LASH, JR.
(her husband),

          Plaintiffs-Appellants,

v.

ULTIMATE HAND CAR WASH
AND DETAIL CENTER, LLC,
and CARPEL RT. 46
ASSOCIATES, LLC,

     Defendants-Respondents.
_____________________________

                   Argued October 21, 2021 – Decided November 5, 2021

                   Before Judges Haas and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Morris County, Docket No. L-0723-18.

                   Herbert M. Korn argued the cause for appellant.

                   Richard J. Williams, Jr., argued the cause for
                   respondents (McElroy, Deutsch, Mulvaney &
                   Carpenter, LLP, and The Law Offices of Gerald F.
                   Strachan, attorneys; Richard J. Williams, Jr., and
             Richard B. Smith, of counsel; Tina DiFranco, on the
             brief).

PER CURIAM

       In this personal injury action, plaintiff Angela K. Lash appeals from the

Law Division's February 10, 2020 order denying her motion for a new trial,

following the December 10, 2019 jury verdict in favor of defendants Ultimate

Hand Car Wash & Detail Center, LLC and Carpel Rt. 46 Associates, LLC. We

affirm.

       On May 18, 2016, plaintiff drove her car to defendants' car wash shop.

After she exited her car, plaintiff told the attendant what services she needed.

The attendant gave plaintiff an order slip and plaintiff then walked along a line

of orange traffic cones toward the shop's office. In order to gain access to the

office, plaintiff had to step onto a sidewalk, which was framed by a bright yellow

curb. Plaintiff fell while attempting to step onto the sidewalk and broke her left

leg.

       Plaintiff gave inconsistent accounts of her fall. She told the police officer

who came to the scene that she might have missed the ledge of the sidewalk with

her left foot. However, plaintiff reported to the paramedics that she stepped on

the curb and then slipped. When she later completed a questionnaire at her

physical therapist's office, plaintiff again stated she slipped. Plaintiff did not

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claim that she fell because she stepped on an uneven surface on the curb, or into

a crack or hole in the curb.

      At trial, however, plaintiff claimed she stepped onto "the uneven surface"

of the curb with her right leg and fell. Plaintiff presented photographs of the

accident scene that showed a crack on the side of the curb. Plaintiff's expert, a

professional engineer, testified "there[] [was] a pretty substantial crack" in the

curb that he stated in his report was "in the vicinity" of where plaintiff fell.

      Defendants presented the testimony of the attendant, who stated that

plaintiff had her cellphone out as she began walking toward the office door.

Defendants' owner testified that he inspected the area around the car wash on a

weekly basis and painted the curb with "safety yellow" paint two or three times

a year "so people know . . . there's a curb here and [to] be aware of it, pay

attention . . . ." The owner stated that the township never cited his business for

any municipal code violations and he did not consider the curb a "slipping

hazard" or a "tripping hazard."

      At the conclusion of the trial, the jury unanimously found that defendants

were not negligent in maintaining their business premises, and the court entered

judgment in their favor. Plaintiff thereafter filed a motion for a new trial,

arguing that the jury's verdict was against the weight of the evidence.


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      Following oral argument, the trial judge rendered a written decision

denying plaintiff's motion. In explaining his ruling, the judge stated:

            [T]here is considerable support in the record for the
            jury to have concluded that defendant[s] met [their]
            duty of reasonable care in maintaining [their] property
            as well as warning [their] invitees of any conditions that
            required the customers' attention.

            The defendants testified that they painted the entire
            curb a bright yellow, yearly, so that it warned of the
            curb rising from the pavement. They testified they were
            never advised of non-compliance with any local
            building codes. They further stated, and the photos
            confirmed, that closer to the building's office door, the
            curb was cut out to be level with the pavement.

            Plaintiff relied on . . . a professional civil engineer, who
            testified that the curb was broken and had indentations.
            He opined that the yellow painting may have
            camouflaged the broken surface. The jury was free to
            disagree with this expert's testimony. Indeed, viewing
            the bright yellow-painted curb on the photos could just
            as readily suggest to any reasonable person that the
            yellow paint enhanced and highlighted the unevenness
            of the curb's imperfections which stood out as a non-
            painted darker area even to the naked eye many feet
            away. The photos also provided a basis for the jury to
            weigh the degree of brokenness in the curb. Whether it
            was "crumbling" as plaintiff suggests or in a reasonably
            safe condition as defendant argued. . . . Furthermore,
            plaintiff's testimony was not consistent with her prior
            statements which differed in how and where she fell.

This appeal followed.



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      On appeal, plaintiff again argues that "the verdict was against the weight

of the evidence" and that the trial judge erred by denying her motion for a new

trial. We disagree.

      In addressing plaintiff's contentions, we recognize the fundamental

principle that jury trials are a bedrock part of our system of civil justice and that

the factfinding functions of a jury deserve a high degree of respect and judicial

deference. See, e.g., Caldwell v. Haynes,  136 N.J. 422, 431-32 (1994). In terms

of its assessment of the relative strength of the proofs, a jury verdict 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." Doe v. Arts,  360 N.J. Super. 492, 502-03 (App. Div. 2003) (quoting

Carrino v. Novotny,  78 N.J. 355, 360 (1979)).

      Rule 4:49-1(a) provides that a trial judge shall only grant a motion for a

new trial if a verdict 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." Jury verdicts are thus

"entitled to considerable deference and '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


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continued viability of the judgment would constitute a manifest denial of

justice.'" Risko v. Thompson Muller Auto. Grp., Inc.,  206 N.J. 506, 521 (2011)

(quoting Baxter v. Fairmont Food Co.,  74 N.J. 588, 597-98 (1977)).

      In reviewing a trial judge's decision on a motion for a new trial, we view

the evidence in the light most favorable to the party opposing the new trial

motion. Caldwell,  136 N.J. at 432. Moreover, we give substantial deference to

the trial judge, who observed the same witnesses as the jurors, and who

developed a "feel of the case." See, e.g., Carrino,  78 N.J. at 361; Baxter,  74 N.J.

at 600; Dolson v. Anastasia,  55 N.J. 2, 6 (1969).

      Applying these principles, we discern no basis to disturb the trial judge's

denial of plaintiff's motion for a new trial. Contrary to plaintiff's assertions, the

jury was free to reject both her and her expert's claim that defendants were

negligent in maintaining the curb. The crack was clearly visible in plaintiff's

photos and the jurors were therefore able to judge for themselves whether

defendants exercised reasonable care by painting the curb bright yellow and

inspecting the area on a weekly basis. Moreover, plaintiff was not even sure

that she stepped on or into the crack in the curb because she gave different

accounts of the accident throughout these proceedings.




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      Under these circumstances, we are unable to conclude that the jury verdict

resulted in a miscarriage of justice as required by Rule 4:49-1(a). Therefore, we

reject plaintiff's contentions on this point.

      Affirmed.




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