MARY HENDERSON v. BPO ELKS LODGE #1583-UNION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4939-09T4

MARY HENDERSON,

Plaintiff-Respondent,

v.

BPO ELKS LODGE #1583-UNION,

Defendant-Appellant,

and

THE ELKS CLUB,

Defendant.

________________________________

BPO ELKS LODGE #1583 UNION,

Third-Party Plaintiff,

v.

JAMES HENDERSON,

Third-Party Defendant.

________________________________

Argued March 28, 2011 Decided May 19, 2011

Before Judges A.A. Rodr guez and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2982-08.

Thomas A. Wester argued the cause for appellant (McDermott & McGee, LLP, attorneys; Mr. Wester, on the brief).

Richard P. Krueger argued the cause for respondent (Krueger & Krueger, attorneys; Mr. Krueger, on the brief).

PER CURIAM

Defendant BPO Elks Lodge #1583-Union appeals from an order entered on April 30, 2010, denying its motion for a new trial or remittitur of the $150,000 the jury awarded to plaintiff Mary Henderson for injuries she sustained falling from her wheelchair as a result of a defect in the pavement on defendant's property.1 We affirm.

Plaintiff, who was seventy-nine years old at the time of the accident, sustained a fracture of her fifth metacarpal, which healed with a deformity causing angulation of her pinkie finger. Plaintiff was an author who was working on a book at the time of her fall. She can no longer type without difficulty due to the deformity and has not been able to finish her book or write any other books since her accident, in part because her Parkinson's disease precludes dictation.

In its motion for a new trial, defendant argued simply that the verdict was so excessive that it was a clear and convincing miscarriage of justice under the law. Defendant contended that plaintiff lost no wages and did not suffer any pain at the time of trial. It urged that damages were meant to compensate the plaintiff, not punish the defendant.

Plaintiff urged that she suffered a significant injury because she has difficulty using her left hand and was appropriately compensated for her inability to type, which was essential to her career as an author. She pointed out that the verdict was unanimous and should not be disturbed.

The judge noted that he was required to determine whether the award was excessive based on the totality of the circumstances in the light most favorable to the plaintiff, citing Jastram v. Kruse, 197 N.J. 216, 229 (2008). Further, "[t]he standard to be applied is 'whether the quantum is plainly wrong or shocking to the conscience of the court,'" quoting Pressler, Current N.J. Court Rules, comment 1.2.1 on R. 4:49-1 (2010). He also noted that he could not "substitute his judgment for that of the jury," citing Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977). He found that "plaintiff has put forth evidence to show that she is severely limited with respect to the movement of her hand" and, as a result, there was no miscarriage of justice. Thus, neither a new trial nor remittitur were warranted.

On appeal, defendant reiterates the arguments it advanced before the trial judge. After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant discussion in this opinion, Rule 2:11-3(e)(1)(B), (C), (E), and we affirm substantially for the reasons expressed by the trial judge in his written opinion dated April 30, 2010. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "'Verdicts should be upset for excessiveness only in clear cases.'" Jastram, supra, 197 N.J. at 228 (quoting Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970)). This is not such a clear case.

1 Defendant The Elks Club and third-party defendant James Henderson did not participate in this appeal.