PATRICIA NEWTON v. SAM'S CLUB

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PATRICIA NEWTON,

Plaintiff-Respondent,

 

v.

 

SAM'S CLUB,

 

Defendant-Appellant,

 

and

 

YINTAK CHONG,

 

Defendant.

 

 

Argued April 8, 2013 - Decided

 

Before Judges Parrillo, Sabatino and Carroll.

 

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-97-10.

 

Michael K. Furey argued the cause for appellant (Riker Danzig Scherer Hyland & Perretti, attorneys; Mr. Furey, of counsel and on the briefs; Stephanie R. Wolfe, on the brief).

 

Edward Harrington Heyburn argued the cause for respondent.

 

PER CURIAM

Defendant Sam's Club appeals from a jury verdict finding it seventy percent liable for injuries sustained by plaintiff Patricia Newton and from a subsequent order denying its motion for a new trial on damages or for remittitur.

To briefly summarize, on April 27, 2009, plaintiff, a seventy-two-year-old woman, was shopping at a Sam's Club store in West Windsor when another customer, Yintak Chong, who is not part of this appeal, accidentally struck her with a flatbed cart loaded with boxes of chicken wings. The boxes were stacked so high that Chong could not see in front of him as he pushed the cart to the check-out counter. A Sam's Club employee had retrieved the merchandise for Chong and helped him load the cart.

As a result of the incident, plaintiff suffered a laceration to her left leg, which left a thirteen-centimeter horseshoe-shaped scar. She was taken by ambulance to the emergency room at Robert Wood Johnson Hospital. The tendons in plaintiff's wound were visible but at that time apparently not damaged. After the wound was cleansed and sutured, plaintiff was discharged from the hospital, about three or four hours after she had been admitted. The following day, plaintiff followed up with her primary care physician, who sent her to a

wound care center that same day. Because her wound was still not healing properly, plaintiff saw a plastic surgeon from June to July 2009, and her wound eventually healed in response to the Silvadene he prescribed for her.

Plaintiff's expert, Dr. David Lessing, an orthopedic surgeon, had not treated plaintiff but examined her and reviewed the medical reports of her treating physicians. Dr. Lessing observed that plaintiff walked with a limp and that the nerve supply had been cut off to the wounded part of her leg by surrounding scar tissue. He diagnosed her with a "laceration to the posterior left calf or leg with altered sensation and a defect of the muscle tendon junction."

Dr. Lessing's prognosis was "poor," opining that

none of these conditions are going to get better. The nerves are not going to penetrate the scar tissue. The area within that "u" or horseshoe is always going to feel abnormal.

 

The damage to the muscle that has healed with that contracted scar making that little defect when you feel the area is always going to be scar tissue. It's not going to turn into muscle over time.

 

So the deficits in the muscle and the deficits in the nerve supply to that area are forever so it's not going to get better over time.

 

According to Dr. Lessing, plaintiff's injury was permanent and her scar would not disappear. As to the impact of this injury on plaintiff's day-to-day life, Dr. Lessing opined that

the sensory problems will be there all the time. Every time water hits it in the shower or you dry the area with a towel, it's going to be a problem.

 

If you wear anything that rubs up against it, possibly, you know, maybe some nylon stockings or knee socks, calf-high boots, all of these will be a problem. There's a cosmetic concern in the summertime when people wear shorts and like knee-length clothing.

 

The muscle on that side has been compromised so the leg is likely to tire out sooner than it would have ordinarily and sooner than the other leg will tire. This in turn will produce a limp at least towards the end of the day if not sooner.

 

According to plaintiff, she experiences constant pain and if she "[stands] on [her] leg for any length of time [she gets] excruciating pains in that area and a tightness." Plaintiff also described a "numbing, throbbing" sensation in her leg that has been somewhat ameliorated by over-the-counter medication. She can no longer wear heels or boots. She ceased going to the gym and has limited her activities with her grandchildren, such as attending their soccer games. Although her scar is still visible, plaintiff is "happy the way the outside [of her leg] turned out." Plaintiff's husband himself has difficulty walking

and with mobility generally, but it is unclear whether plaintiff's leg injury has affected in any way her ability to assist him on a daily basis.

Plaintiff sued Sam's Club and Chong in negligence and following a trial, the jury awarded her $1,000,000 in damages, apportioning liability seventy percent to Sam's Club and thirty percent to Chong. Thereafter, Sam's Club moved for a new trial on both liability and damages, and as to the latter, alternatively, for remittitur. In denying the motion in its entirety, the court reasoned on the damages issue:

The plaintiff's injury had every appearance of being serious and painful to anyone viewing the photographs in evidence. I, myself, saw the photographs as they were being introduced. They were in color, and to describe them as gory is being charitable.

 

. . . .

 

The testimony was clear. [Plaintiff]'s leg tires more quickly now as a result of the injury. I saw the injury, the jury saw the injury at trial. Regardless of the fact that it was stitched, regardless of the fact that the injury had occurred some time ago, the one thing remains clear [plaintiff] has a deformed leg. Plain and simple. It required twenty-six stitches. And even as she walked from her chair at plaintiff's table, to the witness stand, she walked with a noticeable limp. The jury saw what they saw. They ultimately came to the determination that . . . this injury was significant enough to warrant the verdict that it did, because apparently there was no

common sense exercised by Mr. Chong or Sam's Club in stacking these boxes the way they did.

This appeal follows, in which plaintiff raises the following issues:

I. THE TRIAL COURT ERRED IN DENYING SAM'S CLUB'S MOTION FOR A NEW TRIAL ON DAMAGES.

 

A. The $1,000,000.00 Jury Verdict Clearly Shocks the Judicial Conscience.

 

B. The $1,000,000.00 Jury Verdict Contradicts The Weight Of The Evidence Presented At Trial.

 

C. The Jury's Verdict Resulted From Sympathy, Prejudice And Partiality.

 

II. THE TRIAL COURT ERRED IN DENYING SAM'S CLUB'S MOTION FOR REMITTITUR.

 

III. THE TRIAL COURT ERRED IN DENYING SAM'S CLUB'S MOTION FOR A NEW TRIAL ON LIABILITY.

I

 

Defendant first argues that the $1 million verdict was excessive, warranting either a new trial or remittitur, and cites as specific error the judge's failure to perform the analysis in He v. Miller, 207 N.J. 230 (2011), by considering comparable case verdicts.

The principal goal of damages awards in personal injury actions is to compensate fairly the injured party. Deemer v.

Silk City Textile Mach. Co., 193 N.J. Super. 643, 651 (App. Div. 1984). Fair compensatory damages make the plaintiff whole. He, supra, 207 N.J. at 249.

Assigning a monetary award to pain and suffering, however, is difficult because that kind of harm is not easily quantified. Caldwell v. Haynes, 136 N.J. 422, 442 (1994). Nonetheless, our system of justice presumes the correctness of a jury verdict, Baxter v. Fairmount Food Co., 74 N.J. 588, 598 (1977), which is only overcome when there is clear and convincing evidence of a miscarriage of justice, Rule 4:49-1(a). In other words, juries are "given wide latitude in which to operate." Johnson v. Scaccetti, 192 N.J. 256, 280 (2007).

Thus, a trial court should only disturb a jury's damage award when it is "so disproportionate to the injury and resulting disability as to shock the conscience" and when to sustain the award would be "manifestly unjust." Baxter, supra, 74 N.J. at 604 (internal quotation marks omitted). The trial judge should not substitute his or her judgment for that of the jury, Johnson, supra, 192 N.J. at 281, and the verdict is to be set aside only when it is "wide of the mark" and pervaded by a sense of "wrongness," ibid. (internal quotation marks omitted).

As pertains to damage awards, where there appears to be a miscarriage of justice, trial courts are encouraged to use an

additur or remittitur when warranted so as to avoid the unnecessary expense of a new trial. Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 84 (App. Div. 2007) (citing Verdicchio v. Ricca, 179 N.J. 1, 38-39 (2004)); see also Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 491-92 (2001). In the case of a remittitur, if the plaintiff does not consent, the court may order a new damages trial. Johnson, supra, 192 N.J. at 280-81.

The purpose of remittitur
 

is not to bring a generous, but manifestly supportable, verdict down into a range more to the liking of the trial or appellate court. Instead, it is a device to which a court may resort to reduce a verdict that is "shocking" and award in its place "the highest figure that could be supported by the evidence."

 

[He, supra, 207 N.J. at 250 (quoting Fertile, supra, 169 N.J. at 500).]

 

As the Court noted in He, "[t]he power of remittitur is not to be exercised lightly . . . because we repose enormous faith in the ability of juries to equate damages with dollars to 'make the plaintiff whole, so far as money can do.'" Id. at 248 (quoting Model Jury Charge (Civil) 8.11E). Rather, "the decision to order a remittitur must spring from an overriding sense of injustice, a shock to the court's conscience, a certain and abiding belief that the award, in light of the facts and the

evidence, falls outside the relatively wide range of one that is acceptable and appropriate." Id. at 252. The determination should be made by viewing the totality of the evidence in the light most favorable to the party opposing the motion for relief. Jastram v. Kruse, 197 N.J. 216, 220 n.2 (2008).

In particular, the judge is to evaluate the nature and extent of the injury, the medical treatment that the plaintiff underwent and may be required to undergo in the future, the impact of the injury on the plaintiff's life from the date of injury through the date of trial, and the projected impact of the injury on the plaintiff in the future.

 

[Id. at 229.]

 

The standard of review on appeal is "'substantially similar to that used at the trial level, except that the appellate court must afford 'due deference' to the trial court's 'feel of the case,' with regard to the assessment of intangibles.'" He, supra, 207 N.J. at 255 (quoting Jastram, supra, 197 N.J. at 230).

Of course, to know whether an award does or does not shock its conscience, it is necessary for the trial court to have

an appreciation for where the boundaries of the "wide range of acceptable" are found; it presumes that the court has a pre-existing "conscience" that can be shocked in the sense of being able to recognize an award that falls well outside of the ordinary.

[Id. at 252-53.]

To this end, a trial court may look beyond the record to jury verdicts in other cases, Johnson, supra, 192 N.J. at 281 and, in fact, "must give each party the chance to bring to the court's attention relevant precedents that advance that party's view of the propriety of remittitur." He, supra, 207 N.J. at 254. When this occurs, the court "must give a factual analysis of how the award is different or similar to others to which it is compared." Johnson, supra, 192 N.J. at 281.

In He, the plaintiff was injured in an automobile accident; underwent months of "conservative" treatment, including physical therapy, chiropractic sessions and pain killer prescriptions; and was diagnosed with two herniated discs and three herniations in the lumbar spine. Id. at 237-38. Because of the risks, she never underwent surgery and was not able to return to work as a housekeeper. Id. at 238. She spoke limited English, had a lack of education, and had no other marketable skills. Ibid. As a result of the pain, she was dependent on family members, limited in her ability to perform household chores and could not engage in sexual relations with her husband. Id. at 239. The jury awarded her $1 million for non-economic damages, and $100,000 for her husband's per quod claim. Ibid.

The trial court granted remittitur, reducing the non-economic award to $200,000 and the per quod award to $20,000.

Ibid. We reversed, but the Supreme Court remanded and instructed the trial court to make a "complete and searching analysis" of how the award is different or similar to those in other cases. Id. at 240-41.

On remand, the trial court compared the verdict to six similar cases which had resulted in much lower damages, and again granted remittitur. Id. at 242-44. The trial judge referenced verdicts with which he was familiar from his significant experience with spinal cord injuries, including twenty-two years as a certified civil trial attorney focusing on personal injury matters. Id. at 244. He noted that he had observed plaintiff's sitting for long periods in court seemingly without pain, and that this had affected his "feel of the case." Id. at 244. On appeal for the second time, we again reversed the trial court's grant of remittitur. Id. at 245.

The Supreme Court disagreed and found that the trial judge, whose personal experiences gave him an appreciation for the relatively wide range of verdicts considered acceptable, had sufficiently explained his decision ordering remittitur. Id. at 255-57. In so ruling, the Court provided guidance for how trial judges should make determinations regarding remittitur. Id. at 254-55. First, they must provide litigants with an opportunity to educate the court regarding other verdicts which indicate

that the award is wide of the mark. Id. at 254. This also facilitates the creation of a record for appellate review. Ibid. Next, the court must precisely identify which aspects of the record influenced the court to determine whether the cases offered for comparison were similar. Ibid. Third, the court's feel of the case is entitled to deference. Id. at 254-55. Feel of the case includes details that the court observes and which others might not notice, such as observations of the plaintiff entering and leaving the courtroom every day, and his or her behavior when the jury was absent. Ibid.

Although the Court approved of the trial judge's analysis of comparable cases in He, that case did not change the preexisting analytical framework, wherein the Court has stated that a trial court may rely on its knowledge of other injury verdicts, and if it does so, it must provide a factual analysis of how the award is different or similar to others to which it is comparable. See Johnson, supra, 192 N.J. at 281.

Regardless of whether a comparative analysis is required whenever a damage award is challenged as either excessive or insufficient, see ibid., it is incumbent upon the trial court to create a careful record for determining the propriety of its decision and to state those cases, experiences or views that inform its consideration, He, supra, 207 N.J. at 254. Merely

stating a personal opinion or feeling without a basis for recognizing when a damages award falls outside the normal range is insufficient.

Here, the judge expressed no appreciation for the wide range of verdicts considered acceptable and appropriate in comparable cases. And instead of stating those cases, experiences and views that informed its consideration, He, supra, 207 N.J. at 254, the court failed to address the jury verdicts offered by the parties to show that, by comparison, the $1 million damage award at issue here was either grossly excessive or within the normal range.1

Rather, the trial judge largely justified his conclusion that "reasonable minds could differ" as to whether the damages award was excessive on his own impression of the seriousness of plaintiff's injury and its consequences. The judge stated that plaintiff's injury "had every appearance of being serious and painful to anyone viewing the photographs in evidence[,]" adding that "to describe [the photographs] as gory is being charitable." The judge also referenced testimony that plaintiff's leg tires more quickly now as a result of the injury; that the injury required twenty-six stitches; that she has a deformed leg "regardless of the fact that the injury had occurred some time ago[;]" and that he and the jury saw the injury and plaintiff's noticeable limp when she walked to the

witness stand. Having described the nature of plaintiff's injury and the ways it has physically affected her, the court gave no further justification for its determination that, given these facts, the damages award was not "so wide of the mark" as to demand remittitur.

Equally absent from this ruling is any indication that the judge was "generally cognizant of the parameters of similar cases and similar claims." He, supra, 207 N.J. at 252-53. Besides failing to address the cases raised by Sam's Club, there is also no indication that the trial judge's determination was rooted in his own experience with personal injury cases, which might have endowed him with an understanding of a reasonable range of potential damages awards in this case. And to the extent that the court was made "generally cognizant" by the parties' submission of similar cases and verdicts and relied on these in its decision, it failed to "give a factual analysis of how the award is different or similar to others to which it is compared." Johnson, supra, 192 N.J. at 281.

We recognize, of course, the deference due the trial judge's "feel of the case." But observing plaintiff's limp first-hand is no substitute for the need to engage in He's comparative analysis of cases the judge is personally aware of or brought to its attention by the parties challenging or

supporting the verdict. Such a comparative calculus will not only give content to its decision, but will facilitate meaningful appellate review as well. He, supra, 207 N.J. at 254. Because this necessarily-detailed examination was not performed here, despite the parties' proffer, we are constrained to remand the matter of damages to the Law Division for a complete and searching analysis, including "'a factual analysis of how the award is different or similar to others to which it is compared.'" He, supra, 207 N.J. at 251 (quoting Johnson, supra, 192 N.J. at 281). In doing so, the trial court should state those cases, experiences or views that informed its decision.2

II

Defendant next argues that it is entitled to a new trial on liability as well, maintaining that the jury unreasonably allocated seventy percent of responsibility for plaintiff's injury to Sam's Club and thirty percent to Chong, inasmuch as there was no credible evidence permitting the jury to conclude Sam's Club's negligence was greater than Chong's. Subsumed within this argument are the added contentions that plaintiff

should have been barred from arguing that it was negligent for Sam's Club not to supervise Chong's use of a flatbed cart, and that the trial court did not properly instruct the jury on allocation of liability among the defendants, causing confusion. We find these arguments to be without merit.

In denying defendant's post-trial motion for judgment notwithstanding the verdict, the judge found that

[r]easonable minds could differ as to whether this award and allocation are appropriate, which is all that is necessary to sustain it.

 

[D]efense counsel did little to challenge the evidence presented. In fact, as claimed by the plaintiff's counsel, the only witness called by Sam's Club established that Sam's Club employees should never help, or even allow a customer to over stack a cart because it is dangerous. . . .

 

[I] think that the jury did make a common sense evaluation as to how liability is to be allocated, given the situation where the pictures that they saw as to how the chicken wings were stacked in this particular case, they were stacked in single file, six or four boxes one way, six boxes high. The testimony had come out that the Sam's Club representative assisted Mr. Chong in stacking the boxes that way. And, in fact, those boxes would have never been had by Mr. Chong if the Sam's Club representative didn't go into the back and bring them out by way of a pallet.

 

The inference to be made from the testimony as I recall it, is also that once the stacking was completed, where Mr. Chong was assisted by the Sam's Club

representative, the Sam's Club representative did not, under any circumstances, tell Mr. Chong that he could not leave, that it was unsafe to move the cart in the manner in which he had it stacked. Apparently, it seems that after the stacking was completed, both individuals parted ways and Mr. Chong was left, then, to push the cart on his own.

 

The jury found that Sam's Club had a duty to ensure some level of safety, but failed to provide such. That much is obvious.

Deferring to the trial court's "feel of the case[,]" Jastram, supra, 197 N.J. at 230, we will not disturb a trial court's ruling on a motion for a new trial involving "the issue of whether a jury verdict was against the weight of the evidence

. . . unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. Pertinent here, the determination "which parties were at fault and the degree of their negligence must be grounded in the evidence presented at trial." Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 125 (2004). Fault should be apportioned "based on all of the evidence pertaining to each party's role in the incident." Steele v. Kerrigan, 148 N.J. 1, 35 (1997).

Here, there was sufficient credible evidence for a reasonable jury to apportion seventy percent of the liability for plaintiff's injury to Sam's Club. Granted, Chong actually pushed the cart into plaintiff. However, the evidence also

established that a Sam's Club employee retrieved the boxes of chicken wings for Chong and helped him stack the boxes onto his flatbed cart. While Chong could not recall whether the employee himself loaded any of the boxes on the top row, he nevertheless confirmed that the employee was present when all the boxes were loaded, and neither he nor any other Sam's Club employee advised Chong not to push the cart with the boxes stacked so high.

In addition, the Sam's Club manager established that defendant did not have any formal policies prohibiting the overloading of carts or instructing employees how to assist customers in loading their carts. Another Sam's Club employee admitted it was dangerous to stack carts too high and that she would never load a cart above a customer's head level because it would be unsafe. In fact, if she saw a customer pushing such a cart, she would probably ask him to pull it instead or get another cart so he could see in front of him. Under the circumstances, the jury could reasonably have found that, particularly in light of its employee's direct involvement in loading Chong's cart, Sam's Club was in a greater position to protect against the harm that occurred here.

Defendant also argues, relying on Znoski v. Shop-Rite Supermarkets, Inc., 122 N.J. Super. 243 (App. Div. 1973), that plaintiff should not have been allowed to argue that it was

negligence for Sam's Club not to supervise Chong's use of a cart because there was no such duty as a matter of law. In Znoski, somebody struck the plaintiff with a shopping cart at a Shop-Rite supermarket. Id. at 246. We held that the supermarket's provision of shopping carts to its customers did not create an inherent and substantial risk of injury sufficient to impose a duty on the supermarket to protect against harm from their use. Id. at 247-48. We stated that "[e]very human activity involves some risk of harm, but the reasonable probability of having other than a minor accident from the use of carts in [the defendant's] operation does not give rise to a duty to take measures against it." Id. at 248. We further noted that "it is difficult to visualize how an incident such as here involved could have been prevented even if reasonable precautions had been taken." Ibid.

Notwithstanding Znoski, it "is well recognized that the common law imposes a duty of care on business owners to maintain a safe premises for their business invitees because the law recognizes that an owner is in the best position to prevent harm." Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 306 (2010).

In any event, Znoski is distinguishable because here, Chong did not act alone. A Sam's Club employee helped him load his

cart in a way that created a hazard to other customers in the store. Ordinarily, pushing the cart, as Chong chose to do rather than pulling it, would not have been so dangerous if Chong, with the assistance of a Sam's Club employee, had not stacked the boxes so high. Because Sam's Club employees retrieve large amounts of merchandise for customers and help them load the merchandise onto their carts, it is likely reasonable to impose a duty on defendant to protect against the risk of harm from the use of such carts. Such a duty may not require direct supervision of customers as they use the carts. But here, as plaintiff argued, a Sam's Club employee participated in loading the cart and did not even warn Chong that it would be unsafe to push rather than pull it, or advise him to use two carts, and Sam's Club had no policy instructing its employees on the safe loading and movement of flatbed carts. We discern no error in allowing plaintiff to make this argument as the facts of record give rise to a duty of care on defendant's part.

Finally, defendant, though it made no objection at trial, argues that the trial court did not properly instruct the jury on the allocation of responsibility between the defendants. Jury instructions, of course, must clearly present the applicable law to the jurors without confusing or misleading

them. Das v. Thani, 171 N.J. 518, 530 (2002). Here, concerning allocation of fault, the trial court instructed the jury:

What I need you to do . . . is, head over to Question 5 because then what I need you to do is, taking the combined negligence of the two of them in this lawsuit as 100 percent, tell me what percentage of negligence they were. For example, were they both fifty percent negligent based on the facts? Was one 80/20, was one 70/30, you know, was one 67/33, whatever the math is? You have to decide that, okay?

 

Defendant argues this instruction likely confused the jury because the court did not explain what identifying the "percentage of negligence" meant. We disagree. The court had already thoroughly instructed the jury on negligence. We deem the instruction on allocation of fault sufficient and there is no support for the claim that the jury was confused.

Accordingly, we affirm the judgment as to defendant's liability. We remand the matter as to damages for further proceedings consistent with this opinion.

Affirmed in part; remanded in part. We do not retain jurisdiction.

1 In support of its remittitur motion, defendant submitted several verdicts for comparison that were significantly lower than the $1 million damage award returned by the jury in this case. Among those were DiLello v. Six Flags Great Adventure, No. MID-L-5507-09 (Law Div. May 26, 2011), where the jury awarded $25,000 to the plaintiff, a sixteen-year old boy, who cut himself on an amusement park ride and sustained serious lacerations on the inside of his right leg, a permanent injury that left scars; Hamilton v. Academy Bus Tours, Inc., No. A-6128-04T1 (App. Div. December 29, 2006), certif. denied, 190 N.J. 257 (2007), where the jury awarded $68,000 to the plaintiff, a flight attendant, who had injured her ankle and foot stepping off a shuttle bus, leaving her with a limp and continued pain and discomfort that required surgery, and resulted in plaintiff missing one year of work, giving up athletic activities she previously participated in, and experiencing a significant weight gain; and Gonzalez v. Martinez, No. A-5109-04T1 (App. Div. May 23, 2006), where a jury awarded $200,000 to a plaintiff who slipped and broke her right arm, requiring an open reduction of the fracture with a plate and six screws, leaving the plaintiff with a permanent ten- to thirteen-centimeter scar and a loss of motion and decreased sensation in her arm.

Defendant also proffered cases involving damages awards in the $1 million range where the plaintiffs' injuries were much more severe than plaintiff's in this case, representative of which is Mohr v. Yamaha Motor Co., No. MRS-L-2068-07 (Law Div. June 30, 2010), where the jury awarded $1,107,000 to a plaintiff whose leg was amputated above the knee when the track of a snow mobile broke off, and flew into his leg.

 

In opposition to defendant's motion, plaintiff also submitted verdicts for comparison, all but two of which were out-of-state cases and, which defendant contends, involved more serious injuries, resulting in severe disabilities, substantial medical expenses, and claims for loss of income.

2 We recognize that this painstaking exercise can be time-consuming, particularly if counsel proffer numerous comparable verdicts for comparison, but it is nonetheless required under the governing case law.

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