ANTHONY P. PIRRELLO, JR. et al. v. DEBORAH L. PIRRELLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5097-04T25097-04T2

ANTHONY P. PIRRELLO, JR. and

DEBORAH L. PIRRELLO,

Plaintiffs-Appellants,

v.

PETER MOORE,

Defendant-Respondent.

______________________________

 

Submitted March 14, 2006 - Decided July 26, 2006

Before Judges Kestin and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Warren County,

L-25-03.

Soprano, Henkel, Biehl and Matthews,

attorneys for appellant (William J.

Soriano, on the brief).

DiFrancesco, Bateman, Coley, Yospin,

Kunzman, Davis and Lehrer, attorneys

for respondent (Sandra Belli, on the

brief).

PER CURIAM

Plaintiff, Anthony P. Pirrello, Jr., appeals from the denial of his motion for a new trial after a jury verdict that awarded him medical expenses for injuries proximately caused by defendant but that also failed to award any compensation for pain, suffering and loss of enjoyment of life. We reverse and remand for a new trial on all issues.

The record reveals that plaintiff filed suit against his landlord, defendant Peter Moore, seeking compensation for injuries plaintiff alleged were sustained on October 31, 2000, when he fell into a hole located in the rear of property rented to him by defendant. After an eleven-day trial, a jury returned a verdict that awarded plaintiff $19,641.35, representing the reasonable medical bills for services necessary to treat his injuries proximately caused by the accident, and $75,000 representing future lost income proximately caused by the accident. The jury awarded no compensation for plaintiff's claimed disability, impairment, loss of enjoyment of life, and pain and suffering. The total verdict was molded to reflect the jury's allocation of fault between plaintiff and defendant. Plaintiff moved for a new trial or, alternatively, an additur. That motion was denied and plaintiff appeals.

Given the nature of the issues before us, we need not recount the evidence adduced at trial in any great detail. Plaintiff rented property in Blairstown from defendant. It housed a restaurant business which plaintiff had purchased from defendant some six months before the incident giving rise to the suit. Plaintiff testified that on October 31, 2000, he fell while walking in an area near the cesspool holding tank that serviced the property. He claimed that his right foot "plunged" into a hole. There was substantial, and sharply conflicting, testimony concerning the relative knowledge of plaintiff and defendant of the danger posed by the condition of the property. The jury ultimately resolved the liability issue by finding defendant fifty-one percent responsible and plaintiff forty-nine percent responsible.

Plaintiff claimed both psychiatric and orthopedic damages, while defendant denied that any injuries resulted from the accident. Defendant's brief accurately describes the nature of the conflicting damage testimony: "It was hotly contested as to whether plaintiff's herniated discs, anxiety and depression were proximately caused by defendant's negligence, or [were] of a long standing, pre-existing nature, unrelated to the accident, or were entirely psychosomatic."

Plaintiff's presentation did not include testimony with respect to the cost of his treatment. At the conclusion of plaintiff's case, the defense sought to make a motion with respect to the lack of any testimony respecting the reasonableness of the cost of plaintiff's medical treatment, but that motion was never made formally. Instead, the judge announced that he had reviewed information concerning a Workers' Compensation lien and that plaintiff would not be required to produce any proofs with respect to medical bills. He said:

Counsel. . . . You have a letter, showed it to me. It has been marked as an exhibit. I don't intend to allow that exhibit to go to the jury. I don't think it's necessary, but on that exhibit there is an amount of medical bills paid by the workers' comp carrier, it's $19,000 and change, and I'm going to allow you to stand up and I'm going to allow you to say to the jury that there were $19,000 and change, whatever that amount of money is, that were medicals that were expended on his behalf, okay. And you are asking that you be reimbursed for those medicals. I will instruct the jury that I have ruled that that is the amount of the medicals involved in this and I will also explain to the jury that that's the maximum amount that they can -- they can award anything, if they don't want to award anything, but that's the maximum amount.

Consistent with that determination, the judge instructed the jury, with respect to medical expenses, as follows:

All right. Medical bills. The person who is awarded the verdict is entitled to payment for his medical bills, which were reasonably required for the examination, treatment, and care of injuries proximately caused by the defendant's negligence. The plaintiff, in this case, has submitted medical bills in the amount of $19,641.35. Okay? And I have ruled that you can put that amount of money in. There are other monies that were expended that I didn't think were to be included in this figure, and I did not include them.

There was a lot of information and medical bills, which I thought -- in fact, it had to do with his insurance company and whatever, and I didn't think that it was necessary for you to have that, so that's why you didn't get medical bills. Okay? So any recovery can be made only -- except any recovery can only be made in that amount. You can't award -- you can award him zero if you want to. So your range would be zero to $19,641.35. You can't award him more than $19,641.35.

After the verdict, the judge denied plaintiff's motion for a new trial or, alternatively, an additur. On appeal, plaintiff claims that the failure of the jury to award compensation for pain and suffering is fatally inconsistent with its award of medical expenses that it found to be reasonable and necessary to treat injuries proximately caused by defendant's negligence. He claims that inconsistency required judicial intervention.

The trial judge recognized that a new trial is properly awarded when the verdict represents a "miscarriage of justice under the law." See R. 4:49-1(a). The judge saw no such miscarriage. He said that, although the "verdict could arguably be said to be inconsistent, and I accept that," it was not "an improper verdict." Specifically, the judge opined that "the jury could have found from the evidence that the plaintiff suffered from a pre-existing condition and that he voluntarily closed the restaurant and he did not seek to mitigate his damages."

Inconsistent verdicts are fatally defective. Brendel v. Public Service Electric and Gas Co., 28 N.J. Super. 500, 507 (App. Div. 1953). "The grounds customarily assigned as the reason therefor is that the jury failed to comprehend the issues involved in the trial and, by their verdicts, demonstrated their unfitness to determine the rights and obligations of the respective parties." Ibid. See also Williams v. James, 113 N.J. 619, 631 (1989); Rich v. Central Electrotype Foundry Corp., 121 N.J.L. 481, 485 (Sup. Ct. 1939).

The inconsistency here is apparent. The jury was told that the award of medical expenses was appropriate only to the extent medical services were reasonable and necessary to treat injuries proximately caused by the accident. The verdict awarding damages for medical treatment necessarily required the jury to have found injuries, whether orthopedic or psychiatric, sustained by plaintiff as a proximate result of the accident.

Defendant has not cross-appealed from the award of medical expenses.

Nevertheless, despite finding injuries that required more than $19,000 in medical services for treatment, the jury declined to award any damages for pain, suffering, or loss of enjoyment of life. Although it may be possible to conceive of situations in which the award of medical expenses need not be accompanied by the award of pain-and-suffering damages, this is not one of them. Plaintiff testified to orthopedic and psychiatric insults. As evidenced by the award of treatment damages, the jury accepted the testimony. Some pain-and-suffering or loss of enjoyment damages were required. See Todd R. Smyth, Annotation, Validity of Verdict Awarding Medical Expenses to Personal Injury Plaintiff but Failing to Award Damages for Pain and Suffering, 55 ALR4th, 186 (1987); Lehner v. Interstate Motor Lines, Inc., 70 N.J. Super. 215 (App. Div. 1961); Justice v. Weise, 14 N.J. Super. 9 (App. Div. 1951).

None of the explanations advanced to save the verdict are sufficient. The judge's suggestion that the jury found plaintiff's condition to have pre-existed the accident does not explain the award of expenses necessary to treat injuries proximately caused by the accident. Either injuries, requiring medical treatment, were caused by the accident and plaintiff was entitled to pain-and-suffering damages for those injuries or plaintiff's condition pre-existed the accident so that he was entitled to neither medical nor pain-and-suffering damages. No jury verdict could award the one and not the other.

Defendant argues that plaintiff failed to produce any "objective credible medical evidence" of a "physical injury as a result of the accident." Defendant argues, further, that there was overwhelming evidence that the condition was purely psychosomatic and that, therefore, the jury "was entitled to conclude that plaintiff's 'belief' that he was 'injured' without any change in his physical condition was not worthy of an award of damages for pain and suffering." Defendant takes this as entirely consistent with the jury's belief that "plaintiff was entitled to reimbursement for the medical expenses incurred as a result of plaintiff's 'belief', whether valid or not, that he sustained injury and sought medical care." The difficulty with this argument, of course, is that the jury necessarily found the existence of physical injury because it awarded fees for services to treat physical injuries.

Finally, it is possible that the jury simply awarded the lump sum of the medical bills even though they believed some were not reasonably necessary, intending that the excess represent an appropriate award for pain and suffering. Such a verdict has been explicitly prohibited. Lehner v. Interstate Motor Lines, Inc., supra, 70 N.J. Super. at 218-19.

Under all of the circumstances here, we conclude that the inconsistent awards constitute a "miscarriage of justice." See R. 4:49-1(a). We turn, then, to the appropriate remedy. Two cases have considered this issue in this context. Lehner, supra, involved an award of medical expenses to a passenger without an accompanying award of pain-and-suffering damages. Liability was clear and an additur was awarded. On the other hand Justice, supra, involved sharply contested liability. The award of medical expenses without an award of pain-and-suffering damages was reversed and the matter returned for trial as to all issues on the following reasoning:

Where the evidence, as here, is in such sharp conflict, it offers the jury the temptation to reach a conclusion that does not represent their conscientious judgment. The language of Justice Heher in Juliano v. Abeles, 114 N.J.L. 510, 513, 514 (Sup. Ct. 1935), an analagous case, is appropriate:
 

"This issue was keenly contested; and it is impossible to reconcile the quantum of damages with the conclusion that the question of liability was received against the defendant by the conscientious judgment of all the jurors.

. . .

It may well be that the particular circumstances of a given case will justify in the exercise of a sound discretion, the denial of the plaintiff's application for a new trial where the award is inadequate; but the proofs here disclose no reason why the rendered verdict should stand."
 

See also Elvin v. Public Service Coordinated Transport, 4 N.J. Super. 491 (App. Div. 1949); Stalter v. Schuyler, 135 N.J.L. 228 (Sup. Ct. 1947). On a retrial, the issue should not be limited to damages unless it is clear that the question of damages is entirely distinct and separable from the issue of liability. The smallness of the verdicts gives rise to a serious suspicion that the jury had doubts of the defendant Weise's liability, which prompted a reduction in the amount of damages. It is reasonably inferable that the verdicts were the result of a compromise and, therefore, invalid under the principles declared in Esposito v. Lazar, [ 2 N.J. 57 (1949)], and Juliano v. Abeles, supra.
 
[Justice v. Weise, 14 N.J. Super. 9, 14 (App. Div. 1951).]

That analysis applies equally here. We have no confidence that the damage award resulted from confusion unrelated to a consideration of the sharply contested liability issues. Accordingly, we order a new trial on all issues.

We add that at the new trial, plaintiff must produce proof with respect to the reasonableness and necessity of his medical expenses. The judge here excused plaintiff from that obligation because he felt the reasonableness of the bills had already been considered by the Workers' Compensation carrier. Absent a stipulation with respect to the medical bills, the jury's determination cannot be replaced by the judgment of some third party. See Hempstead v. Robinson, 1 N.J. 32,34 ("It is the province of the jury to determine the facts . . . .").

The denial of a new trial for Deborah L. Pirrello is affirmed. The judgment denying a new trial for Anthony P. Pirrello is reversed and the matter remanded for a new trial on all issues.

 

The jury did not award Deborah L. Pirrello any damages on her per quod claim. She also filed a notice of appeal from the denial of her motion for a new trial, but she has not briefed the propriety of the refusal of the jury to award damages to her. We, therefore, deem her appeal to be abandoned. See Liebling v. Garden State Idemn., 337 N.J. Super. 447, 465-66 (App. Div), certif. denied, 169 N.J. 606 (2001).

The record does not reveal by what means plaintiff benefited from the Workers' Compensation statute.

(continued)

(continued)

11

A-5097-04T2

July 26, 2006