TINA L. COLMAN v. NORBERT I. FUCHS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2826-06T52826-06T5

TINA L. COLMAN,

Plaintiff-Appellant,

and

MARK A. STINE,

Plaintiff,

v.

NORBERT I. FUCHS,

Defendant-Respondent.

________________________________________________________________

 

Submitted October 17, 2007 - Decided October 25, 2007

Before Judges Lisa and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4139-04.

M. Mark Mendel, LTD, attorney for appellant (John J. Del Casale, on the brief).

Law Offices of Edward Hoagland, Jr., attorney for respondent (John N. Kaelin, III, on the brief).

PER CURIAM

After a partial summary judgment was granted in favor of plaintiff on the issue of liability, the jury in the damages-only trial awarded plaintiff $20,000 for noneconomic damages for injuries she sustained in an automobile collision with defendant. Prior to trial, the parties stipulated that plaintiff's economic damages, consisting of medical expenses, were $11,414. The judge molded the verdict to include that sum, and after adding pre-judgment interest, entered judgment for $33,435.41.

At the commencement of trial, the court granted defendant's in limine motion to preclude plaintiff from introducing in evidence photographs of the two damaged vehicles. Plaintiff sought to introduce the photographs to demonstrate the severity of the impact, which she contended would be evidence of the severity and permanency of her injuries. The trial occurred in November 2006. Relying upon this court's decision in Brenman v. Demello, 383 N.J. Super. 521 (App. Div. 2006), issued on March 8, 2006, the judge granted defendant's motion.

In the course of the trial, both sides presented medical experts, and the dispute focused on the severity of the injuries plaintiff suffered in the accident.

Plaintiff moved for a new trial. Among her arguments were that the judge erred in barring the photographs from evidence and that the amount of the jury's verdict was against the weight of the evidence. The judge denied the motion. He acknowledged that the verdict was conservative, but it did not shock his judicial conscience. As to the photographs, the judge reiterated that their preclusion was barred by this court's decision in Brenman. The judge further commented that even if the Supreme Court were to reverse our decision in Brenman "the exclusion of this evidence would not be prejudicial because [plaintiff] got through other means to express the same thing that the photographs would have expressed" in that "her description of the accident was rather thorough."

On May 30, 2007, during the pendency of this appeal, the Supreme Court reversed our decision in Brenman. Brenman v. Demello, 191 N.J. 18 (2007). The Court noted that "in most cases, there is a relationship between the force of impact and the resultant injury, and the extent of that relationship remains in the province of the factfinder." Id. at 32. Thus, "[j]uries are entitled to infer that which resides squarely in the center of everyday knowledge: the certainty of proportion, and the resulting recognition that slight force most often results in slight injury, and great force most often is accompanied by great injury." Ibid.

Applying these principles, it is clear that plaintiff was entitled to present the photographs of the damaged vehicles as part of her case. Their relevance can hardly be disputed. Indeed, in ruling on the new trial motion, the judge acknowledged the relevance of what they depicted by pointing out that plaintiff was able to describe the severity of the impact through her testimony. And, no countervailing circumstance as set forth in N.J.R.E. 403 substantially outweighs the probative value of the photographs, including the "needless presentation of cumulative evidence." Although the photographic evidence could be characterized as cumulative of plaintiff's description of the impact and resulting damage to the vehicles, the presentation of the photographs is not "needless." They corroborate plaintiff's testimony, which the jury might otherwise disbelieve or discount as self-serving exaggeration. For this reason, and because the amount of the verdict was admittedly "conservative," we decline to conclude that the error was harmless. It had the capacity to bring about an unjust result. R. 2:10-2.

We certainly find no fault with the trial judge, who relied upon and complied with the controlling authority at the time of his ruling on the photographs. However, in light of the subsequent change in the law, and our conclusion that the error was not harmless, we are constrained to reverse and remand for a new trial.

Plaintiff also argues on appeal that the judge erred in instructing the jury on the issue of proximate causation. Plaintiff argues that except for some unrelated foot pain and preexistent but asymptomatic knee condition, all of her physical complaints were related to the injuries arising from the accident and no reasonable basis existed on which to present a proximate cause question to the jury. In light of our disposition of this appeal on the photograph issue, we need not address this argument. We trust that the issue will be appropriately dealt with in the retrial based upon the evidence there presented.

However, we offer this brief comment. From our review of the record, it appears that plaintiff's medical expert, Dr. Maslow, testified that plaintiff's injuries were directly related to the accident and were separate and distinct from the asymptomatic preexisting condition. On the other hand, defendant's medical expert, Dr. O'Dowd, while conceding that plaintiff sustained injuries in the accident, opined that with respect to at least some of her injuries, she had an underlying preexisting condition. With this conflicting medical evidence, we find no error in the inclusion of proximate cause principles in the jury instruction.

 
Reversed and remanded for a new trial.

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A-2826-06T5

October 25, 2007