LISA PAYNE v. INN AT WOODBRIDGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4249-08T24249-08T2

LISA PAYNE,

Plaintiff-Appellant,

v.

INN AT WOODBRIDGE d/b/a HILTON

WOODBRIDGE, HEMISPHERE HOTEL

MANAGEMENT, INC. and ALLEN

CONTRACTING, LLC,

Defendants-Respondents.

______________________________________________

Telephonically argued April 8, 2010 - Decided May 4, 2010

Before Judges Axelrad, Fisher and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9234-06.

Joanna L. Crosby argued the cause for appellant (Tressler, Soderstrom, Maloney & Priess, attorneys; Ms. Crosby, of counsel and on the brief; Peter Choy, on the brief).

Thomas A. Zammatore argued the cause for respondents Inn at Woodbridge d/b/a Hilton Woodbridge and Hemisphere Hotel Management, Inc. (Weston, Stierli, McFadden & Capotorto, attorneys; Mr. Zammatore, of counsel and on the brief).

Karen Quinn Sopko argued the cause for respondent Allen Contracting, LLC (Baumann, Lynes & Viscomi, attorneys, join in the brief of respondents Inn at Woodbridge d/b/a

Hilton Woodbridge and Hemisphere Hotel Management, Inc.

PER CURIAM

On August 19, 2006, plaintiff Lisa Payne was dancing with friends at Bogart's, a nightclub in the Woodbridge Hilton Hotel. Late that evening, plaintiff walked outside and, while crossing the parking lot, stepped into a pothole and fell. She commenced this personal injury suit for damages against Inn at Woodbridge d/b/a Hilton Woodbridge and Hemisphere Hotel Management (the hotel), which thereafter filed a third-party complaint against Allen Contracting, LLC (Allen), with which the hotel contracted to maintain the parking lot.

At the conclusion of a six-day trial, the jury found plaintiff and the hotel to be equally responsible; Allen was exonerated. The jury awarded nothing for plaintiff's pain and suffering, causing the judge to immediately declare that this was an "illegal verdict." Following further rebuke, the judge directed the jury to continue deliberations. The jury then awarded plaintiff $10,000 for pain and suffering and $50,000 for medical expenses. All post-verdict motions were denied and plaintiff appealed.

Plaintiff argues on appeal that the trial judge erred: (1) in instructing the jury on both plaintiff's claim for future medical expenses and comparative negligence; (2) in declining to grant a mistrial when the jury returned its initial verdict; (3) in denying plaintiff's motion for a new trial; (4) in precluding the testimony of two of plaintiff's witnesses; (5) in refusing to permit oral argument on the motion for a new trial; (6) in crafting the judgment; (7) in denying plaintiff's motion for reconsideration; and (8) in failing to remedy juror inattentiveness. In a ninth point, plaintiff argues that the cumulative effect of the other claimed errors requires a new trial. In ruling on the first three of these arguments, we conclude that a new trial is required. As a result, we need not reach plaintiff's remaining six arguments.

At trial, plaintiff claimed that the hotel and Allen had negligently maintained the parking lot. Plaintiff testified she was walking through the parking lot when she stepped in a pothole and "fell forward and [her] knees slammed the ground," causing injuries to her hands, elbows, knees, back, and neck. She was accompanied into the hotel and met with a security officer, who administered preliminary first aid and prepared an incident report. Plaintiff then went home.

The day after her fall, plaintiff was examined at a walk-in clinic. On September 18, 2006, approximately one month after the fall, plaintiff was examined by her regular physician, Dr. Allen Tiedrich, who testified that plaintiff had neck and back sprains and strains, pinched nerves in her lower back, knee sprains and strains, and internal derangement in both knees. He started plaintiff on a course of physical therapy and ordered magnetic-resonance imaging studies (MRIs) of plaintiff's knees.

When therapy provided no relief, plaintiff was referred to Dr. Matthew Garfinkel, an orthopedic surgeon, who first examined plaintiff on December 5, 2006. He determined that plaintiff had torn cartilage in both knees and irregular bone structures on the outside and inside of her right kneecap. Because plaintiff had responded poorly to therapy, Dr. Garfinkel operated first on the right knee and a few months later on the left. He also testified that these surgeries were ineffective in alleviating plaintiff's knee pain, leading to the administering of a steroid injection and the prescribing of anti-inflammatory drugs.

The forty-six-year-old plaintiff also testified about the limitations on her life caused by her injuries, including her inability to dance, one of her favorite pastimes. Her husband also testified about the impact plaintiff's injuries have had on her life.

Plaintiff also called a liability expert, who testified, based upon his review of photographs and his examination of the parking lot, that the pothole was a "longstanding condition" at the hotel that existed months before the accident.

In addition, plaintiff called two other witnesses, Alex Valcourt and Ted Garris, offered as plaintiff's occasional dance partners. When defendants objected, the judge prohibited both from testifying because Valcourt was not mentioned in answers to interrogatories and because Garris, although mentioned in answers to interrogatories, was not included in plaintiff's pretrial witness list.

The only defense witness was Dr. David Greifinger, an orthopedic expert, who testified he examined plaintiff in July 2007 and found no evidence of muscle spasms in her neck and no serious problems with her back. He also claimed MRIs revealed no tear in the meniscus of either knee, and plaintiff's injuries were the result of degenerative conditions and not caused by her fall.

The jury ultimately determined Allen was not negligent, and both plaintiff and the hotel were negligent. In apportioning responsibility, the jury found plaintiff and the hotel equally responsible, and, after initially awarding no damages, later rendered a verdict in favor of plaintiff for $10,000 for her pain and suffering and $50,000 to compensate for her medical expenses. The verdict was molded and judgment entered in favor of plaintiff and against the hotel for $30,000.

In her first point, plaintiff argues the judge's charge was erroneous because it lacked any instructions on plaintiff's claim to future medical expenses and was confusing with respect to comparative negligence. We find insufficient merit in the latter aspect of this point to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), except to note that the inadequacy in the initial instructions on comparative negligence was repaired by instructions the judge gave after the jury posed a question after deliberations commenced but prior to its initial verdict. We agree, however, that the judge erred by failing to provide instructions regarding plaintiff's claim to future medical expenses.

The significance of this error can only be understood in light of the evidence. Dr. Garfinkel testified about the "long-term" consequences of the problems around plaintiff's kneecaps "because she . . . lost some cartilage, some shock absorbing cushion in both knees." In addition, Dr. Tiedrich, provided the following testimony:

Q. Did you recommend at that time any additional treatment for her?

A. I discussed with her the inevitability that she would require knee replacements for both knees. I made it clear that she did not need that on the day that I saw her, and I didn't foresee it certainly in the immediate future, but ultimately over time as these knees wore out, she would definitely be a candidate for knee replacements.

Q. Is there any doubt in your mind that she would need knee replacement surgery at some time in the future?

A. None at all.

. . . .

Q. What are the costs associated with such treatment?

A. The acute cost, the initial cost will be well into the six figures, $100,000 certainly between the surgeons and the hospital and the rehabilitation cost can amount to another $100,000.

The judge overruled defendants' objections regarding Dr. Tiedrich's capacity to give such testimony. The jury thus heard and was entitled to consider this element of plaintiff's damage claim.

During the charge conference, the judge indicated he would instruct the jury that it could provide, in awarding damages, the amount that would compensate plaintiff for both her past and future medical expenses. However, when the judge eventually charged the jury he provided only the following instructions, which omitted any mention of future medical expenses as an element of damages:

Now, a plaintiff who is awarded a ver-dict is entitled to payment for medical ex-penses which were reasonably required for the examination, the treatment, and the care of injuries proximately caused by the defen-dant's negligence.

Medical expenses are the cost of doc-tor's services, hospital services, medi-cines, medical supplies and medical tests and any other charges for medical services. The amount of payment is a fair and reason-able value of such medical expense. You have heard testimony on whether these medi-cal expenses were fair and reasonable in amount and whether they were reasonably necessary for the examination, the care, and the treatment of [plaintiff].

If you determine that any of these bills were not fair and reasonable to any extent or that any of these services were not reasonably necessary to any extent, you need not award the full amount claimed. However, it is your decision as to what medical expenses will be reasonable or are reasonable and necessary.

Plaintiff's counsel objected, to which the judge responded, "Yeah, I didn't put in a future medical expense charge . . . . I'm trying to soft pedal that one."

We might imagine from this otherwise unexplained comment that the judge may have had second thoughts about the decision to permit Dr. Tiedrich to testify about the future need for and cost of knee replacement surgery. But, if the judge felt he had previously erred on that point, he should have taken other steps, such as advising counsel that he was thinking of reversing himself, providing an opportunity to be heard, and, if necessary, striking the testimony. Because, however, the judge did not strike the testimony or direct the jury to disregard it, the parties were entitled to have the judge provide guidance to the jury about it. Here, the judge took neither step, but instead allowed the jury to consider the evidence about future medical expenses without giving guidance on what to do with it.

Appropriate jury instructions are essential to a fair trial. Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 160 (App. Div. 1999), aff'd, 164 N.J. 1 (2000). Trial judges are under an obligation to give comprehensible explanations of the relevant questions the jury must decide. Myrlak v. Port Auth. of N.Y. & N.J., 302 N.J. Super. 1, 19 (App. Div. 1997), rev'd in part, 157 N.J. 84 (1999). A proper charge explains "'the function of the jury, set[s] forth the issues, correctly state[s] the applicable law in understandable language, and plainly spell[s] out how the jury should apply the legal principles to the facts as it may find them.'" Velaquez v. Portadin, 163 N.J. 677, 688 (2000) (quoting Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591-92 (1966)); Sun Coast Merch. Corp. v. Myron Corp., 393 N.J. Super. 55, 82-83 (App. Div. 2007), certif. denied, 194 N.J. 270 (2008). The judge's failure to instruct the jury regarding plaintiff's claim for future medical expenses necessitates a new trial on damages.

The new trial we mandate, however, will not be limited to damages for the following reasons. In returning the jury's initial verdict, the foreperson -- in responding sequentially to each question in the verdict sheet -- announced that the jury had found both plaintiff and the hotel negligent, that their conduct proximately caused plaintiff's injuries, and that plaintiff and the hotel were equally responsible. The clerk then asked what amount of money the jury had found would compensate plaintiff for her pain and suffering, and the jury foreperson said "nothing," which instantly prompted the following colloquy:

THE COURT: Illegal verdict.

[JURY FOREPERSON]: Zero.

THE COURT: I explained that to you, ladies and gentlemen. What didn't you understand when I said to you if you find that there's negligence, you can't come back with a verdict of no award. It's not a legal verdict. You've got to go back and continue your deliberation.

. . . .[]

THE COURT: Maybe you guys were sleeping when I said all of that, but I thought I explained that very well. If you remember, I said to you you shall return a verdict and I said what that means not that you have to return a verdict for the plaintiff, but that if you find that the plaintiff is entitled to a recovery, you have to award her a sum of money, otherwise it's illegal. You can't say someone was injured, but they're not entitled to any damages. You've got to go back and continue your deliberations.

The jurors, of course, did nothing "illegal," and it was improper for the judge to so suggest. In upbraiding the jury in this fashion, the judge was not only inaccurate but insensitive to the difficult task we ask of jurors. Here, although the case was by no means complex, the jury was expected to assimilate and apply the judge's oral legal instructions in rendering a multi-faceted verdict in this hotly disputed case. Perhaps the jury misinterpreted the instructions or misunderstood how to complete the jury interrogatory. But such a mistake did not warrant the accusation that the jurors had acted "illegal[ly]" or in any manner other than good faith. In assessing what followed, we are unable to dismiss the likelihood that the jury ultimately rendered a monetary verdict merely to avoid further rebuke. As a result, we have no confidence in the award of damages that followed the judge's admonishment of the jurors.

In contemplating the jury's intentions in rendering its initial verdict, we are not convinced that it was simply mistaken as to how to apply the instructions on damages. It is quite possible the jury might have found the injuries of which plaintiff complained were, as urged by defendant, preexisting and not sufficiently aggravated by the fall to warrant an award of damages. Contrary to the judge's determination that a jury may not render such a verdict, in fact that is not always true. Compare Kozma v. Starbucks Coffee Co., __ N.J. Super. __, __ (App. Div. 2010) (holding that a jury may properly refuse to award damages despite finding negligence and proximate cause if the proofs "were susceptible to an interpretation that minimized the monetary equivalent of the value of plaintiff's pain and suffering to its vanishing point"), with Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 534 (App. Div.) (finding an inconsistency in a verdict that awarded damages for medical expenses but no award for pain and suffering), certif. denied, 180 N.J. 355 (2004), and Chamberlain v. Sturma, 94 N.J. Super. 1, 4 (App. Div. 1966) (holding the jury could not "reasonably have found . . . plaintiff suffered no compensable injuries whatever . . . [when] defendants' only medical witness acknowledged that plaintiff sustained a back injury which was causally related to the incident"), aff'd, 48 N.J. 556 (1967). These decisions demonstrate there is no blanket rule that renders erroneous all verdicts in which negligence and proximate cause are found but no damages for pain and suffering awarded. In addition, we cannot foreclose the possibility that the decision not to award damages for pain and suffering could be interpreted as the jurors' mistaken or inarticulate expression that they did not believe plaintiff's fall was a proximate cause of the claimed injuries. The judge's visceral reaction to the verdict -- and abrupt direction that deliberations continue --precluded the opportunity to determine whether the jury's verdict on pain and suffering was based on findings that would make it permissible despite the liability findings, as in Kozma, or that the jury had made findings favorable to defendant on proximate cause and had only mistakenly expressed it in the manner in which it completed the verdict sheet.

What we have said leads us to conclude there must be a new trial on both proximate cause and damages. Theoretically, our mandate could be limited to those issues, leaving the negligence findings untouched. But, because negligence and proximate cause are closely related, we conclude the fair adjudication of the parties' disputes requires a new trial on all issues. We reach this conclusion because the Supreme Court has held that the "general rule [is] that issues in negligence cases should be retried together unless the issue unaffected by error is entirely distinct and separable from the other issues." Ahn v. Kim, 145 N.J. 424, 434 (1998); see also Negron v. Melchiorre, Inc., 389 N.J. Super. 70, 85 (App. Div. 2006), certif. denied, 190 N.J. 256 (2007); Corridon v. City of Bayonne, 129 N.J. Super. 393, 397-98 (App. Div. 1974). Considering also that in a trial on less than all the issues a jury would likely have trouble understanding how to decide the proximate cause questions without a full understanding of why an earlier determination was made on negligence, we do not believe the interests of justice would be served by a new trial on only some of the issues previously tried. Rather than unnecessarily conflating the future proceedings and generating the potential for new disputes about what evidence does or does not relate to the limited issues to be tried, we deem it appropriate to require a new trial on all issues.

We lastly conclude, however, that what we have said about the need for a new trial on all issues, does not encompass the claims against Allen. The jury found Allen was not negligent and there is no reason to conclude the jury may have mistakenly expressed itself on that point.

 
Reversed and remanded for a new trial on all issues as to the claims asserted against the hotel only. We do not retain jurisdiction.

During cross-examination, Dr. Tiedrich acknowledged the MRIs revealed degenerative problems that predated the fall, and that EMG and nerve conduction velocity tests revealed plaintiff was not experiencing some of the pain of which she complained.

At trial, defense counsel also argued they were surprised by this testimony. The judge correctly rejected that contention, observing that Dr. Tiedrich's written report expressed his "professional opinion that within a reasonable degree of medical certainty and probability, the patient will continue to require further medical and/or surgical care (bilateral total knee replacements) for acute flare-ups and chronic sequelae of these injuries."

The hotel argues that instructions on future medical expenses can actually be found in the charge, referring to the last sentence of the instructions quoted above, i.e.: "However, it is your decision as to what medical expenses will be reasonable or are reasonable and necessary" (emphasis added). We reject this. The jury could not have been expected to interpret from these few emphasized and ambiguous words that an award of future medical expenses was permitted.

At this point in the transcript, it is indicated that the "jury exits the courtroom." However, the judge's statements quoted above, which immediately followed the reporter's indication that the jury had departed, demonstrate that the judge was still addressing the jury.

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