FRANK MAZZEI v. NEW JERSEY TRANSIT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6740-04T26740-04t2

FRANK MAZZEI,

Plaintiff-Appellant,

v.

NEW JERSEY TRANSIT

RAIL OPERATIONS, INC.,

Defendant-Respondent.

__________________________________

 

Submitted May 22, 2006 - Decided July 31, 2006

Before Judges C.S. Fisher and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5038-03.

Fox Rothschild, attorneys for appellant (David J. Stutman, on the brief).

DeCotiis, Fitzpatrick, Cole & Wisler, attorneys for respondent (Alex J. Keoskey, of counsel; Chryzanta K. Hentisz, on the brief).

PER CURIAM

Plaintiff, an employee of defendant New Jersey Transit Rail Operations, Inc. (NJTRO), was burned on December 10, 2000, as the result of a flash of electricity that hit him while he was performing repairs. He brought this action pursuant to the Federal Employees Liability Act, 45 U.S.C. 51-60 (FELA) and, after a trial, was found to be 55% at fault. The jury awarded $20,000 in damages, which was molded by the trial judge. Judgment was entered in plaintiff's favor in the amount of $10,549.11. His motion for a new trial or, in the alternative, for additur was denied. He appeals, arguing that the trial judge incorrectly charged the jury or, in the alternative, that the award was patently insufficient. We affirm.

I.

On December 10, 2000, plaintiff and his partner, Ed Stangl, both electricians employed by NJTRO, were working at the Grove Street substation. Plaintiff was plugging load plugs into a transformer as part of re-energizing a section of electrical power to the Bergen Tunnel under Jersey City. It was plaintiff's understanding that the power coming through the cable was turned off while he was performing his duties. While plaintiff was in the process of plugging in a load plug with his hands, an electrical current arced from the plug to the outside casing of the transformer, causing plaintiff to sustain second-degree burns to the left side of his face.

James Pentland, a supervisor of substations employed by NJTRO, testified that his job was to maintain the electrical substations and one of his responsibilities was turning power off and on at the substations. On December 10, 2000, Pentland was working as the substation switchman. Pentland was given instructions by Nigel Graham, the power dispatcher, to close the disconnects, which re-energized the line on which plaintiff was still working. Graham "called up, said that the electricians had released their clearance, and to remove their red tag, and close the line -- disconnects." Pentland testified that he was not aware of, or in communication with, the two electricians working on the line at the time he closed the disconnects. Pentland further testified that the proper way of plugging the load plugs back into the transformer is with hotline tools.

Graham, a power dispatcher for NJTRO responsible for maintaining high voltage and distribution of circuits throughout the electrical system, testified that on December 10, 2000, plaintiff and Stangl called in and gave clearance to "make the circuit normal." There are three types of clearance; red tag, blue tag and yellow tag.

Red tag means that -- red and blue you own the lines. You can do what you want to do with the line, the line is your's. I cannot energize that line until you release your clearance, until you give me back the wire, until you say I'm done working on the circuit, now it's your's. Once you give up that clearance I can now energize it at any time.

After receiving clearance, Graham gave Pentland orders to energize the line. Graham testified that it was his understanding that, once a person gives up clearance on a piece of equipment, they should no longer touch it and for safety reasons, safety equipment such as a hot stick is used: "all switching after [] clearance being given up will be dealt with some sort of safety tool . . . ."

At the time of the accident, NJTRO had in place safety procedures, contained in the TRO3 operating instructions. At trial, Sal Conte, chief electrical engineer at NJTRO, identified the electrical operating instructions with which employees at NJTRO are required to become familiar. Plaintiff admitted that he was given a rule book or operating instructions when he was hired and was to have a thorough understanding of and obey the rules. Plaintiff also acknowledged that he knew hot sticks existed, but claims he was never trained to use a hot stick.

Conte testified that he has people that investigate happenings on the job sites to see if there have been any rules violated according to the electrical operating instructions. NJTRO charged plaintiff with a safety violation of Rule 405, which required plaintiff to maintain two feet and four inches between the energized lines or equipment while work was being performed. Plaintiff was also found in violation of the rules for not using a hot stick.

NJTRO also filed disciplinary charges against Graham as a result of this accident pursuant to Rule 410. Rule 410 of the operating instructions states: "Under no circumstances shall any equipment line, or section of line between red tags be energized." Graham went to Washington, D.C., for arbitration and was exonerated of all charges.

Plaintiff sustained injuries to the left side of his face, from the hairline to the tip of the nose including his left ear. Stangl compared plaintiff's injury to that of a "bad sunburn."

After the accident, plaintiff was taken to St. Barnabas Medical Center. Dr. Esber Hani Mansour, medical director at the Burn Center, admitted plaintiff to the step-down unit. The step-down unit is used for treating patients with burns that "are not very severe, not very critical . . . ."

Dr. Mansour testified that plaintiff's treatment consisted mostly of pain management and wound care as his burn was not "extensive for him to require intravenous fluids or any other treatment except for pain management and wound care." Plaintiff remained in the hospital for three days and was discharged with instructions for wound care and a visiting nurse was arranged to change the dressings for him at home.

As a result of his injuries, plaintiff was out of work from December 10, 2000, until March 15, 2001. Dr. Mansour testified that plaintiff made normal progress but was out of work at the direction of his doctor because "burn patients, they usually have discomfort in the burn scars and they have intolerance to heat and cold."

Plaintiff offered testimony regarding the extent of his injuries and the pain and discomfort he had undergone as well as evidence of salary and loss of income resulting from the accident. Plaintiff contends he lost approximately $10,000 in straight time and $3,000 in overtime as a result of his injuries.

At the end of trial, plaintiff requested that the judge charge the jury that "[w]hen the evidence shows that the railroad customarily does not enforce a safety rule, the jury is entitled to consider whether that custom constituted negligence, and whether it caused, in whole or in part, the plaintiff's injury," quoting Ybarra v. Burlington Northern, Inc., 689 F.2d 147, 150 (8th Cir. 1982). The trial judge declined to use plaintiff's suggested language in the jury charge.

After deliberation, the jury returned a verdict in which they allocated negligence for the accident finding plaintiff 55% negligent and defendant 45% negligent and awarded $20,000 in damages. The trial judge entered an order of judgment in favor of plaintiff in the amount of $10,549,11. Plaintiff filed a motion for a new trial and for additur, alleging that the trial court erred in failing to charge the jury with plaintiff's supplemental point of charge and that the jury verdict was inadequate and against the weight of the evidence.

In ruling on plaintiff's new trial motion, the judge distinguished the facts in Ybarra from the instant case, and held:

There was substantial evidence that the railroad in the [Ybarra] case did not enforce the safety rule . . . . The court there found that there was evidence from which a jury could find that the railroad failed to enforce its safety rule . . . .

In our case, there was not similar evidence of custom during trial.

The judge next addressed the adequacy of the jury verdict based on the evidence and held:

Given the evidence in the case, I believe the verdict was low at $20,000, but I'm not in a position where I can substitute my opinion for that of the jury.

I don't find that the $20,000 figure is a shocking to the conscience such as to constitute a miscarriage of judgment.

In denying plaintiff's motion for new trial and for additur, the judge reviewed the evidence before the jury:

While the pain and suffering was testified to at great length and in exquisite detail by both the plaintiff and his wife, including the videotape, the plaintiff does appear to have made a fine recovery.

I was not able to see any permanent scarring or discoloration on his face.

Plaintiff argues on appeal that (1) the trial court erred in failing to charge the jury with plaintiff's supplemental point of charge, and (2) the jury verdict was inadequate and against the weight of the evidence.

II.

Plaintiff asserts that the trial court erred in failing to charge the jury as plaintiff requested. When an appellant raises error in the jury charge, "[a]ppellate courts should review jury instructions as a whole, and may not reverse if the charge adequately conveys the law and is unlikely to confuse or mislead the jury." Boryszewski v. Burke, 380 N.J. Super. 361, 374 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006); see also Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997); Berberian v. Lynn, 355 N.J. Super. 210, 219 (App. Div. 2002), aff'd as modified, 179 N.J. 290 (2004). "Even erroneous jury instructions will be upheld if they are 'incapable of producing an unjust result or prejudicing substantial rights'." Boryszewski, supra, 380 N.J. Super. at 374 (quoting Sons of Thunder, supra, 148 N.J. at 418).

Plaintiff contends that the evidence presented at trial clearly established a basis to charge the jury with plaintiff's supplemental request to charge. Specifically, plaintiff highlights evidence pertaining to injuries sustained, but offers no evidence that defendant failed to customarily enforce safety rules.

No party is entitled to have a jury charge in his or her own words. All that is necessary is that the charge as a whole be accurate. Kaplan v. Haines, 96 N.J. Super. 242, 251 (App. Div. 1967), aff'd, 51 N.J. 404 (1968), overruled on other grounds, Largey v. Rothman, 110 N.J 204, 206 (1988). In considering a jury charge, plain error is:

legal impropriety in the charge prejudicially affecting the substantial rights of [a party] and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.

[State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).]

The possibility of error must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

In the instant matter, plaintiff has failed to cite to any evidence in the record to substantiate the claim that defendant did not customarily enforce safety rules. The record shows that defendant made persistent efforts to enforce safety rules. At the time of the accident, NJTRO had in place safety procedures, contained in the TRO3 operating instructions. Sal Conte, chief electrical engineer at NJTRO, identified the electrical operating instructions with which employees at NJTRO are required to become familiar. Conte further testified that he has people that investigate happenings on the job site to see if there are any rules violated according to the electrical operating instructions.

There is ample evidence in the record to support the trial judge's decision not to include plaintiff's supplemental charge to the jury. Furthermore, plaintiff has failed to demonstrate that, if the judge did err, said error is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, at 336. We find no error in the charge give to the jury.

III.

In order for the appellate court to consider on appeal that a jury verdict is against the weight of the evidence, the appellant must move for a new trial on that ground at the trial level. R. 2:10-1; Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 362-62 (App. Div. 1998). R. 2:10-1 establishes the scope of appellate review:

In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.

"The standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to its 'feel of the case,' including credibility." Caldwell v. Haynes, 136 N.J. 422, 432 (1994). The appellate court defers to the trial court with respect to "intangibles" not transmitted by the record to decide if there was a miscarriage, but otherwise makes its own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360 (1979).

"[A] jury verdict, from the weight of evidence standpoint, 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." Carrino, supra, 78 N.J. at 360; Baxter v. Fairmount Food Co., 74 N.J. 588, 597-98 (1977). "A trial judge should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injury and resulting disability shown as to shock his conscience and to convince him that to sustain the award would be manifestly unjust." Baxter, supra, at 596, citing Sweeney v. Pruyne, 67 N.J. 314, 315 (1975). Put in another way, the judge cannot validly intrude unless "it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a).

On appeal, plaintiff claims entitlement to a new trial based on the assertion that the jury verdict on damages was a contrary to the weight of the evidence, constituting a clear miscarriage of justice. Included in plaintiff's argument is a claim that there was extensive evidence in the record regarding plaintiff's injuries and the pain and discomfort he had undergone as well as evidence of salary and loss of income resulting from the accident. Plaintiff contends he lost approximately $10,000.00 in straight time and $3,000.00 in overtime as a result of his injuries.

Although burns are very painful, plaintiff's burn was moderate enough to be treated in the step-down unit and he had excellent healing. Although $20,000 may seem modest as a total sum for lost wages and pain and suffering, it is simply not so low as to shock the conscience of the court. This is especially so when there is not detectable scarring, as here. Applying the principles set forth in Carrino and Baxter, there is ample evidence in the record to support the judge's decision to deny plaintiff's motion for a new trial and for additur. Plaintiff has failed to demonstrate that the jury verdict constitutes a miscarriage of justice, warranting a new trial.

Affirmed.

 

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A-6740-04t2

July 31, 2006