CHERYL BELL v. ALOE VILLAGE, LLP, ALOE VILLAGE APARTMENTS et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3203-04T23203-04T2

CHERYL BELL,

Plaintiff-Respondent,

v.

ALOE VILLAGE, LLP, ALOE

VILLAGE APARTMENTS and ALOE

VILLAGE APARTMENTS, INC.,

Defendants-Appellants.

_________________________________

 

Argued December 19, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey,

Law Division, Atlantic County, Docket No.

ATL-L-2547-01.

James S. Taylor argued the cause for appellants,

Aloe Village, LLP, Aloe Village Apartments, and

Aloe Village Apartments, Inc. (Chance & McCann, attorneys; Kevin P. McCann, Mr. Taylor, Michael J. Fioretti and Shirley Naylor, of counsel and on

the brief).

Mitchell J. Makowicz, Jr. argued the cause for

respondent (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys; Mr. Makowicz, on the brief).

PER CURIAM

In this negligence action, defendants, Aloe Village, LLP, Aloe Village Apartments, and Aloe Village Apartments, Inc. (collectively Aloe Village), appeal from entry of judgment in favor of plaintiff, Cheryl Bell, in the net amount of $550,197.96, after a jury verdict finding defendants seventy percent liable and plaintiff only thirty percent comparatively negligent, and from denial of their motions for a new trial and directed verdict. We affirm.

The facts may be briefly stated. On August 12, 1999, plaintiff, who was fifty-one years old at the time, went to the apartment of her boyfriend, Joseph Murphy, at his request, to clean the premises because he had been out of town for several weeks. The apartment is located on the second floor of the Aloe Village apartment complex in South Egg Harbor Township, and is owned by defendants. After arrival, plaintiff stepped out onto the second floor balcony to wash the exterior glass of the two panels of the sliding door. Upon doing so, a hinged security bar that had been installed by defendants' employees one year earlier fell down and locked plaintiff out of the apartment.

There was no dispute that the security bar had been installed with the hinged bracket fixed to the door itself, rather than onto the door frame. It was also not installed plumb vertical, but rather in contact with the door, angled towards the glass panels at two degrees, causing greater friction and a greater likelihood of inadvertent engagement. According to plaintiff's expert, because of the manner of installation, it was practically certain that the security bar would inadvertently fall into the locked position every time the door was closed. Murphy, the apartment lessee, confirmed this fact based on his own experience, as did two of defendants' own employees.

Plaintiff attempted to attract attention by first yelling, and then throwing objects from the balcony. When these efforts to summon help proved unsuccessful, plaintiff attempted to climb down from the balcony to the ground, approximately nine feet below. During this attempt, plaintiff lost her grip and fell, sustaining serious spinal injuries.

Plaintiff sued defendants, as the property owners and installers of the security bar, in negligence, and the purported manufacturer, Harney Manufacturing, in product liability. At trial, Harney was granted a directed verdict based on the absence of proof that it was the actual manufacturer of the security bar. At the conclusion of evidence, the jury returned a unanimous verdict against defendants, finding them seventy percent negligent and awarding plaintiff $825,295.14 in damages, which was reduced to $691,039.27, inclusive of pre-judgment interest, to reflect the jury's assessment of plaintiff's comparative negligence.

Defendants moved for a new trial, alleging that the verdict was against the weight of the evidence, the product of sympathy and bias, and a miscarriage of justice. In denying defendants' motion for a new trial, the judge reasoned in part:

[This] ended up being a case limited to the duty of a residential landlord to tenants and guests and the Court had charged 5.23 on the duty of the landlord to inspect and maintain and repair the property and indicating to the jury that while it was not absolute and that while the landlord was not an insurer, the landlord did have a duty to exercise reasonable care which meant that the landlord would maintain the property in a reasonably safe condition for the use and enjoyment of the tenants and their guests. So it really, it became a comparison of the reasonable care of the unit versus the reasonable care of the plaintiff, and the jury made a comparison of the two.

. . . .

[I]t appears there wasn't any issue of negligence, the issue is whether it's foreseeable. Well, is it foreseeable that if you force somebody to stay out of the balcony at the first floor, that second floor level with the first floor not too far below, that somebody may forget they're in their fifties and think, well, I can still do that and climb over, and she probably didn't put her hands down . . . .

. . . .

And while it probably wouldn't have been a choice that I would have made to climb over the balcony and to try to climb down, this is not a situation where we're eight stories up and she ties sheets together and tries to come down or throws a mattress down from eight floors and thinks, well, if I throw down the mattress down I can jump and land on the mattress, and does something that would be patently outrageous in terms of trying to get down from an excessive height.

. . . .

[A]nd so generally in looking through this I found that perhaps surprising, the Court doesn't find it as a miscarriage of justice under the law.

. . . .

As I indicated, you go up - I talked about eight floors, you maybe - maybe even go up one more flight and the Court would find that it wouldn't be foreseeable that somebody would attempt an escape in that situation, but this height, while it may have been unreasonable to do it, that's what a jury is to determine, whether it's unreasonable and how much and they said it's 30 percent unreasonable, and 70 percent unreasonable for the landlord to have left that in that condition for that period of time resulting in that.

The essence of defendants' argument on appeal is that the jury verdict was a miscarriage of justice because the evidence admits of only one conclusion, namely that plaintiff, not defendants, caused her own injuries. We disagree.

As a threshold matter, we note that the standard that controls our disposition is well-settled. We do not reverse a trial court's ruling on a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; Baxter v. Fairmont Food Co., 74 N.J. 588, 599 (1977). We defer to the trial court's determination of a witness's credibility and demeanor. Dolson v. Anastasia, 55 N.J. 2, 7 (1969); see also Carey v. Lovett, 132 N.J. 44, 66 (1993) (noting that "an appellate court should . . . defer[] to the trial court's 'feel of the case'") (quoting Baxter, supra, 74 N.J. at 600). As do trial courts, we also defer to the "quantum of damages" that a jury assesses "unless it is so disproportionate to the injur[y] and resulting disabilit[y] shown as to shock [the] conscience and to convince [the judge] that to sustain the award would be manifestly unjust." Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971); see also Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 297 (1990); Baxter, supra, 74 N.J. at 596; Sweeney v. Pruyne, 67 N.J. 314, 315 (1975); Tonelli v. Khanna, 238 N.J. Super. 121, 130 (App. Div.), certif. denied, 121 N.J. 657 (1990); Tronolone v. Palmer, 224 N.J. Super. 92, 97 (App. Div. 1988).

There was no miscarriage of justice in this case. As a property owner, defendants had a general "'obligation to exercise reasonable care against foreseeable harm to others.'" Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 435 (1993) (quoting Butler v. Acme Mkt., Inc., 89 N.J. 270, 277 (1982)); see also Sussman v. Mermer, 373 N.J. Super. 501, 505 (App. Div. 2004); Campbell v. Hastings, 348 N.J. Super. 264, 268 (App. Div. 2002). Here, the expert proof was undisputed that defendants improperly installed and maintained the security bar that fell down and locked plaintiff outside, stranding her on the second floor balcony. There was also sufficient evidence for the jury to have reasonably found both that the resultant accident was foreseeable and that defendants' conduct was a substantial factor in bringing it about. As to the latter, the installation of the security bar obviously placed plaintiff in the situation from which she needed to escape. As to the former, it was rational to conclude that an individual in such a predicament as plaintiff, after having exhausted all other measures, would expectedly attempt to climb down from a balcony less than ten feet from the ground as the only available means to extricate herself from the situation.

Nevertheless, defendants contend that by climbing down the balcony, plaintiff assumed the risk of her actions which then became the exclusive cause of her injuries. The short answer is "'that a plaintiff does not assume a risk defendant[s] negligently created'", McGrath v. Am. Cyanamid Co., 41 N.J. 272, 276 (1963) (quoting Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 55 (1959)), and, in any event, "[t]he law of negligence [has for some time now] recognize[d] that there may be two or more concurrent and . . . efficient proximate causes of an injury." Menth v. Breeze Corp., Inc., 4 N.J. 428, 442 (1950); see also Reynolds v. Gonzalez, 172 N.J. 266, 280 (2002); Daniel v. Gielty Trucking Co., 116 N.J.L. 172 (E. & A. 1935). It is, of course, for the jury to decide issues of proximate cause and foreseeability, Goldberg v. Hous. Auth. of Newark, 38 N.J. 578, 581 (1962); see Smith v. Fireworks by Girone, Inc., 180 N.J. 199, 205, modified on clarification, 182 N.J. 138 (2004), and the jury's findings in this case are well-founded in the evidence. Correspondingly, we find no basis whatsoever for the contrary suggestion that the jury's verdict was based on passion, prejudice or sympathy for plaintiff.

 
Affirmed.

(continued)

(continued)

8

A-3203-04T2

 

January 6, 2006