EDWARD GREEN v. JOHN PECORARO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3105-11T1

EDWARD GREEN and YVETTE GREEN,

his wife,

Plaintiffs-Respondents,

v.

JOHN PECORARO,

Defendant-Appellant,

and

MEI LANDSCAPING MAINTENANCE

COMPANY,

Defendant.

___________________________________

June 14, 2013

Argued November 8, 2012 - Decided

Before Judges Sapp-Peterson and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3902-08.

Bernard F. Boglioli argued the cause for appellant (Hoagland, Longo, Moran, Dunst & Doukas, L.L.P., attorneys; Richard J. Mirra, of counsel and on the brief).

Jack Wurgaft argued the cause for respondents (Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins, P.C., attorneys; Mr. Wurgaft, on the brief).

PER CURIAM

Defendant John Pecoraro appeals from three Law Division orders that denied his summary judgment motion, denied his motion for a new trial, and entered judgment on a jury verdict in favor of plaintiff Edward Green.1 We affirm.

At trial, in addition to plaintiff, plaintiff's spouse, plaintiff's damages experts, Dr. Lynette McKeon, qualified in the field of cognitive mediation therapy for brain injury treatment and neuropsychology, and Dr. Michael Sananman, qualified in the field of neurology, testified on behalf of plaintiff. Defendant testified and also presented Gerard T. Dolan, Jr. (Dolan), owner and principal of MEI Landscaping Maintenance Company ("MEI"),2 and his expert, Frank P. Lombardo, a meteorologist.

Plaintiff testified he was employed by Linders French Cleaners as a delivery driver. Defendant was a customer, and plaintiff had made deliveries to defendant's house "many times," but had never met him. On the day of the accident, the weather was cold and he believed there were "flurries and stuff." He stated defendant's lawn "seemed as though it was covered with snow and ice[,]" and the driveway "was covered with . . . a lot of snow and ice on it," but was not completely covered. He did not see piles of snow alongside the driveway and he "couldn't tell if it was plowed or not."

Plaintiff testified that on the day of the accident, he was wearing work boots with rubber grip soles. When he arrived at defendant's house, he parked and then walked up the driveway and around the side of the house to the front door. There was no walkway from the street, where he had parked his vehicle, to defendant's house. After completing his dry cleaning delivery, he began walking back to the truck, slipped on the ice and snow, and fell to the pavement, injuring his head and back. His mouth started bleeding because his dental bridge had cut his mouth.

Following his fall, plaintiff got up and went back to his truck. He was dazed but contacted his supervisor via cell phone to tell her he had fallen at defendant's home. He then continued to his next customer's home but was not able to finish his route because he had pain in his back and head and he felt dazed. After realizing he could not continue, he went back to the plant, unloaded the truck, wrote his report, took pictures of his injuries, and went home. He sought medical treatment at Plainfield Clinic the following day and was referred to the hospital. He underwent an MRI on January 18, 2008, which revealed findings consistent with the presence of "subacute chronic subdural hematomas within the cerebral hemispheres bilaterally." One month later, he underwent both a left and right "craniotomy evacuation of hematoma." After the procedure, he was transferred to JFK-Johnson Rehabilitation Institute, Brain Trauma Unit, where he remained until March 6, 2008. He testified that he has continued out-patient rehabilitation therapy.

Defendant testified he first learned that plaintiff allegedly fell on his property in May 2008. According to defendant, on the day of the accident, he was at work in Morristown until approximately 5:30 p.m. and his wife was also at work until approximately 6:10 p.m. He testified he had a contract with MEI that was limited to plowing. Therefore, when it snowed, he shoveled the steps and the area in front of his garage door. He would then apply a de-icer to the rest of the driveway if he felt it was necessary based upon his inspection, but rarely felt he had to do the "runway area." He explained that prior to leaving for work, he would inspect the driveway daily as he walked its length to retrieve the paper. He also inspected the driveway again when he put out and retrieved trash cans each week. In this way, he was able to make sure there was no ice or snow on the ground.

Dolan testified that he plowed defendant's driveway after the December 13 and December 16 snowstorms. In accordance with MEI's contract with defendant, he plowed only when there was at least three inches of snow, and he would probably not plow if there was an inch or an inch and one-half, but if it was close, he would err on the side of caution. He did not salt the driveway. He explained that when MEI plowed defendant's property, the snow was pushed into the corner between the house and the garage, onto the grass "between the side of the house and the bush[,]" and out of the driveway across the street. He described defendant's driveway as a "piece of cake" to plow because the driveway is flat, so the blade sits directly on it, allowing a good scrape. However, he admitted he was unable to completely remove all of the snow and ice on the driveway after every storm.

Lombardo testified that he applied industry standard methods to reconstruct the weather relevant to the accident period. According to him, between 3:00 p.m. and 5:00 p.m. on December 18, 2007, the weather was dry, the sky was sunny, the temperature was above freezing, and there was an inch of snow on undisturbed ground surfaces. He testified that treated areas would have less snow and there was no freezing during the relevant time period.

The jury returned a verdict in favor of plaintiff, awarding $675,000. The present appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT I

THE VERDICT AS TO LIABILITY WAS CONTRARY TO THE CREDIBLE EVIDENCE AND INCONSISTENT WITH THE TESTIMONY OF EVERY WITNESS IN THE CASE.

POINT II

PLAINTIFF'S ANSWERS TO INTERROGATORIES AND DEPOSITION TESTIMONY SHOULD HAVE BEEN BINDING UPON HIM AT TRIAL.

POINT III

PLAINTIFF SHOULD HAVE BEEN ESTOPPED TO DEVIATE FROM THE VERSION OF THE FACTS SET FORTH IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.

POINT IV

THE TRIAL COURT FAILED TO PROPERLY CHARGE THE JURY REGARDING THE ISSUE OF NOTICE.

"On a motion for a new trial, all evidence supporting the verdict must be accepted as true, and all reasonable inferences must be drawn in favor of upholding the verdict." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006) (citation omitted). A trial court's decision on such a motion will not be reversed unless it clearly appears that there was a miscarriage of justice under the law. R. 2:10-1. To decide if there has been a miscarriage, we defer to the trial court with respect to intangibles not transmitted by the record (e.g., credibility, demeanor, "feel of the case") but we otherwise make our own independent determination of whether a miscarriage of justice has occurred. Carrino v. Novotny, 78 N.J. 355, 360-61 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).

The crux of defendant's argument is one of weight because defendant's witnesses testified contrary to plaintiff's witnesses as to the condition of defendant's property when plaintiff allegedly fell. The fact that there is competing evidence does not render the verdict a miscarriage of justice. Risko v. Thompson Muller Auto Grp., Inc., 206 N.J. 506, 521-22 (2011) (A miscarriage of justice occurs when there is a "pervading sense of wrongness needed to justify . . . undoing of a jury verdict" arising "from manifest lack of inherently credible evidence to support the finding, obvious overlooking or under-valuation of crucial evidence, [or] a clearly unjust result" (alteration in original)). This simply becomes an issue for the jury to resolve based upon findings of credibility, which is always for the fact-finder to determine. Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 492 (1956).

"A jury has the power to accept or reject, in whole or in part, a witness's testimony . . . ." Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 13 (App. Div. 2007) (citing State v. Scelfo, 58 N.J. Super. 472, 478 (App. Div. 1959), certif. denied, 31 N.J. 555 (1960). "A trier of fact may reject testimony because it is inherently incredible, or because it is inconsistent with other testimony or with common experience, or because it is overborne by other testimony." Congleton v. Pura-Tex Stone Corp., 53 N.J. Super. 282, 287 (App. Div. 1958) (citation omitted). And "[a] case may present credibility issues requiring resolution by the trier of fact even though a party's allegations are uncontradicted." D'Amato by McPherson v. D'Amado, 305 N.J. Super. 109, 115 (App. Div. 1997). The same legal principles apply to expert witnesses and it is for the jury to determine the weight given to the expert's testimony. City of Long Branch v. Jui Yung Liu, 203 N.J. 464, 491-92 (2010). "Jury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice." Boryszewski, supra, 380 N.J. Super. at 391.

Guided by these principles, it was within the jury's discretion to accept or reject the testimony of each witness who testified. City of Long Branch, supra, 203 N.J. at 491-92. We defer to the jury's credibility assessments, as did the trial judge, and discern no miscarriage of justice in the underlying verdict.

The remaining arguments advanced in Points II through IV are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Although Yvette Green is a plaintiff insofar as her per quod claim, reference to plaintiff throughout this opinion refers solely to Edward Green. In doing so, we intend no disrespect.

2

Plaintiff settled his claims against MEI prior to trial.