WILLIAM B. SHECK v. ARTHUR DALCORSO AND MARY PHIPPS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4468-03T54468-03T5

WILLIAM B. SHECK,

Plaintiff-Appellant,

v.

ARTHUR DALCORSO AND

MARY PHIPPS,

Defendants-Respondents.

 

Argued December 7, 2005 - Decided

Before Judges Weissbard, Winkelstein and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, BUR-L-932-02.

Richard J. Shackleton argued the cause for appellant (Shackleton & Hazeltine, attorneys; Mr. Shackleton and Robert E. Rue, on the brief).

Anthony Young argued the cause for respondents (Parker, McCay & Criscuolo, attorneys; Stacy L. Moore, Jr., on the brief).

PER CURIAM

In this personal injury action, plaintiff appeals from the Law Division's involuntary dismissal of his complaint following the presentation of his proofs to a jury. He also challenges the Law Division's decision not to provide the jury with a res ipsa charge, and to preclude the testimony of plaintiff's expert on the value of hedonic damages (loss of life's pleasures). We reverse the order dismissing plaintiff's complaint; that renders moot the trial judge's decision not to charge res ipsa to the jury. If the case is retried, the appropriate jury charges will be dependent upon the proofs presented. On the issue of whether an expert may testify on the value of hedonic damages, we remand for an N.J.R.E. 104 hearing.

The trial testimony reveals the following. Plaintiff claims he was injured in an accident on September 19, 2001. He and his wife were visiting friends, Don and Marylou Williams, who lived in New Jersey. The Shecks, Williams and his wife, and Billie Marie Lohr, were traveling in an automobile driven by Don Williams. They stopped in Stone Harbor for lunch.

As the group readied to leave Stone Harbor, they approached the parked car from the right side. It was angle parked next to a car in which defendant Arthur Dalcorso was in the driver's seat and his wife, defendant Mary Phipps, was in the passenger seat. Don Williams went to the driver's side of his car and unlocked the doors. Plaintiff then opened the rear passenger door for his wife and Lohr. Plaintiff was standing on the front side of the door, meaning the exterior side of the door when open, and Lohr and plaintiff's wife were on the interior side. Plaintiff testified that while standing still holding the door, as his wife climbed into the vehicle, he felt a "tremendous pain to [his] left heel, and felt [him]self going down, fell down."

Lohr testified that the accident occurred as follows: plaintiff was holding the rear passenger side door for her, and was standing on the front side (outer side) of the door when his injury occurred. She saw defendants' car start to move "rather quickly for backing out"; she yelled "stop" at the vehicle. She said that as plaintiff was holding the door for her and she was about to get into the car, "suddenly the car to our right pulled backward and the next thing I knew Mr. Sheck was down on the ground and his head was toward the rear of our car." Lohr did not recall plaintiff moving as he held the door. She confirmed that Williams had parked diagonally in the middle of the parking lane, with a foot and a half of space between his car and the line on each side. She admitted on cross-examination that she was not focused on plaintiff when he fell and she could not remember if he moved before he fell.

The passenger in the other vehicle, Phipps, got out and said she was the wife of the driver. Phipps told Lohr that she had a problem with colitis and needed to go to the restroom but preferred not to use public restrooms, so her husband was taking her home.

Patrolman James Bailey from the Stone Harbor Police Department responded to the accident. He found plaintiff on the ground between two vehicles; plaintiff told him he had hurt his shoulder, neck and left ankle. Bailey noticed a tire mark on plaintiff's left ankle, though he could not recall where on the ankle the mark appeared. Bailey confirmed that the incident occurred where angled parking was permitted, and no traffic summonses were issued. He observed defendants' vehicle was parked within the white lines.

Plaintiff offered Phipps's testimony by reading portions of her deposition transcript. She contended that she and Dalcorso were leaving because she had an attack of a condition that required bathroom use and she preferred a private bathroom. Phipps saw plaintiff shut the car door after he let "a lady" in the car's back seat. She then told her husband, "we can go now."

When she got out of her car, she saw plaintiff on the ground yelling that he had been hit. She testified: "[a]nd then I looked to see my car and I couldn't figure out how because we were still about a foot over into our own parking space. The car was straight and there was at least a foot between the parking space line and our car."

Plaintiff offered Dalcorso's testimony by reading portions of his deposition transcript. He testified about his wife's troubles with colitis that lead them to leave Stone Harbor on the date of the incident. He said they were in the car with the engine on when he saw plaintiff "stationary," not "in motion," letting a woman into the car parked next to his car. As he was backing out of his parking spot, he saw plaintiff thrown off balance; he stopped his car. He would have been turning his wheel clockwise.

Barbara Sheck testified that at the time of the incident she, plaintiff and Lohr were on the passenger side of William's car. When plaintiff opened the door, she started to get into the vehicle; the next thing she knew plaintiff was on the ground. She did not see what happened, but she and Lohr, who was behind her toward the rear of the car, yelled at defendant to stop. Defendant "looked over" and stopped, then pulled forward; they yelled stop a second time before he did so. Defendant had backed more than halfway out of the eight-foot parking spot before he stopped, and then went forward two to three feet and stopped again. When defendant pulled forward, his car was inside of his parking space lines.

At the scene, plaintiff told her that the car ran over his foot. She never saw plaintiff fall, she only saw him on the ground.

Plaintiff was taken by ambulance to the Burdette-Tomlin Hospital emergency room where x-rays of his neck, left shoulder and left foot were negative. The emergency room doctor gave plaintiff a collar for his neck, a sling for his shoulder, a brace for his ankle, crutches, and a prescription for pain medication. Plaintiff's orthopedist diagnosed a large tear in his rotator cuff and recommended physical therapy. After four months of physical therapy, plaintiff underwent arthroscopic surgery on his left shoulder.

Plaintiff offered the testimony of Stan V. Smith, Ph.D., an economist. His testimony was offered on two issues: the value of the loss of plaintiff's household services; and the value of plaintiff's loss of life's pleasures hedonic damages. The trial judge barred Smith's testimony as to hedonic damages, but permitted him to testify as to the value of plaintiff's household services. In his report and his trial testimony, Smith calculated plaintiff's life expectancy to be 9.3 years, and his economic loss due to his loss of ability to provide household services at $75,532. Had Smith been permitted to testify on plaintiff's loss of life's pleasures, according to his report, he would have estimated plaintiff's hedonic damages to be $1,643,107. His report also said that for purposes of hedonic damages his figures were "illustrative;" he would give the jury a "range of what may happen." He arrived at his figures after interviewing plaintiff for between a half hour and forty-five minutes, and he reviewed "some medical records" to help him determine what services plaintiff could perform. Although he estimated plaintiff's disability at fifty percent, that was an "informal estimate"; it would be the jury's job to determine the actual percentage of plaintiff's disability.

After plaintiff rested, defendant moved for a judgment of involuntary dismissal pursuant to Rule 4:37-2(b) on the grounds that plaintiff failed to demonstrate negligence on the part of Dalcorso. The trial judge found insufficient evidence for the jury to infer that Dalcorso was negligent; consequently, the court dismissed plaintiff's case.

We turn first to the court's decision to grant defendant's motion for involuntary dismissal. The standard of review is:

[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. The point is that the judicial function here is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion.

[Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).]

Against this standard, we conclude that the evidence in plaintiff's case was sufficient for the jury to infer that Dalcorso was negligent and struck plaintiff's ankle with his car. Patrolman Bailey testified that plaintiff's left ankle had a tire mark on it. Plaintiff testified that he was standing still, holding the door to the vehicle, when suddenly he felt pain and fell to the ground. Lohr testified that the car next to theirs suddenly pulled backward and plaintiff was down on the ground. Dalcorso observed that plaintiff was stationary as he began to back out of his parking spot. When defendant saw plaintiff being thrown off balance, he stopped his car. Phipps heard plaintiff yelling he had been hit. Barbara Sheck testified that her husband said defendant's car ran over his foot. The jury could infer that Dalcorso was in a hurry to leave because his wife needed to go to the bathroom. This evidence, taken in its entirety, is sufficient to allow a reasonable jury to conclude that as Dalcorso was moving his vehicle out of the parking spot, his car tire struck plaintiff's ankle, knocking him to the ground.

"[T]he driver of an automobile . . . is under a duty of exercising for the safety of others that degree of care, precaution and vigilance in the operation of his/her car which a reasonably prudent person would exercise under similar circumstances." Model Jury Charge (Civil) 5.20A, "Negligence - Automobile, General Duty Owing" (August 1999). The law further imposes upon the driver of an automobile a duty to "make such observations for pedestrians who are, or may come into his/her path of travel, as a reasonably prudent person would make." Model Jury Charge (Civil) 5.20G.2, "Duty of Automobile Driver to Make Observations for Pedestrians" (pre-1983); Poole v. Twentieth Century Operating Co., Inc., 121 N.J.L. 244, 246 (E. & A. 1938). That duty to make observations applies, even assuming, as defense counsel stresses, the accident occurred within the lines demarcating Dalcorso's parking space and Sheck was comparatively at fault for straying into that space. Under the facts here, a jury could have concluded that Dalcorso did not make reasonable observations when he attempted to drive his vehicle out of the parking space; that as a result, his vehicle struck plaintiff's ankle, causing him to fall down and injure his shoulder. Sheck's comparative fault, if any, remains a question for the jury.

In addressing defendant's motion for involuntary dismissal, the trial court stated: "[t]he accident simply could not have happened from a . . . physical evidence point of view and from a mechanics of accident point of view, or an accident reconstructionist's point of view the way Mr. Sheck suggests that it did." We respectfully disagree. Whether the accident could have happened from a physical or mechanical point of view was for the jury to decide, not the court.

Finally, we turn to whether the court properly precluded Dr. Smith from testifying on the issue of hedonic damages. Hedonic damages are "'those damages which flow from physical impairments which limit plaintiff's capacity to share in the amenities of life.'" Eyoma v. Falco, 247 N.J. Super. 435, 446 (App. Div. 1991) (quoting Comment, Loss of Enjoyment of Life as a Separate Element of Damages, 12 Pac. L. J. 965, 966-67 (1981)); see also Montalvo v. Lapez, 884 P.2d 345, 347 (Haw. 1994) (hedonic damages defined as "damages arising from loss of the enjoyment of life, as measured separately from the economic productive value that an injured person would have had") (quoting Black's Law Dictionary 391 (6th ed. 1990)); Anderson v. Neb. Dep't of Soc. Servs., 538 N.W.2d 732, 739 (Neb. 1995) (same).

In New Jersey, damages for loss of enjoyment of life are nonpecuniary damages. Eyoma, supra, 247 N.J. Super. at 450. These damages are encompassed within an injured party's disability and impairment. Id. at 452. Actual loss of enjoyment of life is not a function of pain and suffering. Ibid. "Rather, it is an element of the permanent injury plaintiff has suffered." Ibid. We concluded in Eyoma that the concept of diminished loss of enjoyment of life was "not a concept that is too esoteric for a jury to understand and evaluate." Id. at 453.

Given that hedonic damages are generally available to an injured plaintiff in New Jersey, the issue properly framed then is whether the trial judge abused her discretion in excluding expert testimony pertaining to those damages. While that issue has not previously been addressed in a published decision in this State, it has been addressed elsewhere, both by State and Federal courts and has also been the subject of multiple law review articles.

Courts that have permitted expert testimony to assist the jury on hedonic damages include: Smith v. Ingersoll-Rand Co., 214 F.3d 1235 (10th Cir. 2000); Banks v. Sunrise Hotel, 102 P.3d 52 (Nev. 2004); Couch v. Astec Indus., Inc., 53 P.3d 398 (N.M. Ct. App.), cert. denied, 132 N.M. 551 (2002); Lewis v. Alfa Laval Separation, Inc., 714 N.E.2d 426 (Ohio Ct. App. 1998); see also Sherrod v. Berry, 827 F.2d 195 (7th Cir. 1987), vacated and remanded on other grounds, 856 F.2d 802 (7th Cir. 1988) (en banc).

On the other hand, the majority of courts that have examined the issue have rejected the use of expert testimony to assist a jury on hedonic damages. See, inter alia, Mercado v. Ahmed, 974 F.2d 863 (7th Cir. 1992); Saia v. Sears Roebuck & Co., Inc., 47 F. Supp. 2d 141 (D. Mass. 1999); Ayers v. Robinson, 887 F. Supp. 1049 (N.D. Ill. 1995); Hein v. Merck & Co., Inc., 868 F. Supp. 230 (M.D. Tenn. 1994); Montalvo, supra, 884 P.2d 345; Patch v. Glover, 618 N.E.2d 583 (Ill. App. Ct. 1993); Fetzer v. Wood, 569 N.E.2d 1237 (Ill. App. Ct. 1991); South Lake Limousine & Coach, Inc. v. Brock, 578 N.E.2d 677 (Ind. Ct. App. 1991); Foster, Jr. v. Trafalgar House Oil & Gas, 603 So. 2d 284 (La. Ct. App. 1992); Anderson, supra, 538 N.W.2d 732; Wilt v. Buracker, 443 S.E.2d 196 (W. Va. 1993).

The issue has also been addressed in various articles, the majority of which have questioned the science behind the expert testimony as well as whether that testimony would aid the jury. See, inter alia, Andrew J. McClurg, It's a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases, 66 Notre Dame L. Rev. 57 (1990); Ted R. Miller, Public Policy: Willingness to Pay Comes of Age: Will the System Survive?, 83 N. U.L. Rev. 876 (1989); Victor E. Schwartz & Cary Silverman, Hedonic Damages, the Rapidly Bubbling Cauldron, 69 Brooklyn L. Rev. 1037 (2004); Joseph I. Kuiper, Note, The Courts, Daubert, and Willingness-to-Pay: The Doubtful Future of Hedonic Damages Testimony Under the Federal Rules of Evidence, 1996 U. Ill. L. Rev. 1197; Erin A. O'Hara, Note, Hedonic Damages for Wrongful Death: Are Tortfeasors Getting Away With Murder?, 78 Geo. L.J. 1687 (1990); Dennis C. Taylor, Note, Your Money or Your Life?: Thinking About the Use of Willingness-to-Pay Studies to Calculate Hedonic Damages, 51 Wash. & Lee L. Rev. 1519 (1994).

Here, the trial judge precluded the expert testimony of Dr. Smith on the issue of hedonic damages. Smith was, in fact, the expert in many of the court decisions that we have cited. In fact, Smith literally wrote the book on the use of expert testimony in hedonic damages. See Michael L. Brookshire & Stan V. Smith, Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys (1992/1993 Cum. Supp.).

Expert testimony is only permitted in this state if "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702. When the qualifications of a witness or the admissibility of evidence is in question, the trial court may conduct a hearing pursuant to N.J.R.E. 104 to resolve the disputed issues. N.J.R.E. 104(a) ("[w]hen the qualification of a person to be a witness, or the admissibility of evidence, or the existence of a privilege is subject to a condition, and the fulfillment of the condition is in issue, that issue is to be determined by the judge"). While whether to hold an N.J.R.E. 104 hearing rests in the sound discretion of the trial court, when the scientific reliability of an expert's opinion is challenged and the court's ruling on admissibility may be dispositive of the merits of the case, "the sounder practice is to afford the proponent of the expert's opinion an opportunity to prove its admissibility at a Rule 104 hearing." Kemp v. State of N.J., 174 N.J. 412, 428, 432-33 (2002).

In support of his testimony in this case, Smith prepared a report dated October 20, 2003, and was deposed prior to trial. The trial judge did not, however, conduct an N.J.R.E. 104 hearing before barring Smith's testimony. Nor was the court informed by counsel of the extensive case law and law review articles that have examined the issue of the propriety of the use of an expert's opinion on hedonic damages. Indeed, in the briefs filed on appeal, plaintiff's counsel refers to only one case, Sherrod, supra, 827 F.2d 195 (7th Cir. 1987), which in fact was later vacated, 856 F.2d 802 (7th Cir. 1988) (en banc); and, defense counsel failed to refer to any cases on point.

The record does not show, therefore, that the trial judge was in an informed position to rule on the issue. Thus, because we are in any event remanding the case for a new trial, we direct that the issue of whether an expert may be permitted in this State to testify before a jury on the issue of hedonic damages, and, if he can, whether Dr. Smith's testimony in this particular case would aid the jury or amount to anything more than a net opinion, be reconsidered. The court shall conduct an N.J.R.E. 104 hearing. We also direct that before Dr. Smith testifies, the judge shall be provided with a copy of his book, Economic/Hedonic Damages. Our determination should not be considered as either an affirmance of or a rejection of the judge's decision to bar Dr. Smith's hedonic damage testimony. We simply conclude that a more complete record is necessary before that decision can be made. We also do not address on this limited record whether, as defendant contends, Dr. Smith's calculations of hedonic loss amount to inadmissible net opinion.

In sum, we reverse the involuntary dismissal of plaintiff's case and remand it to the Law Division for trial. We direct the trial court to reevaluate whether Dr. Smith's testimony on hedonic damages may be presented to the jury. While we do not retain jurisdiction, should either party take issue with the trial judge's decision on the admissibility of Dr. Smith's testimony, that party may file a motion for interlocutory relief, which we will view favorably so as to resolve the issue prior to trial.

 
Reversed in part and remanded for further proceedings consistent with this opinion.

Judge Weissbard, not originally assigned to hear this case, has joined in its consideration and in this opinion. Judge Sabatino was not present for oral argument, but has reviewed the tape recording of the session.

Smith's co-author, Michael Brookshire, was the proposed expert in many of the other decisions we have listed.

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A-4468-03T5

December 29, 2005