YURY SEMENIKEN v. TOWN SPORTS INTERNATIONAL, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

YURY SEMENIKEN,

Plaintiff-Appellant,

and

LANA SEMENIKEN,

Plaintiff,

v.

TOWN SPORTS INTERNATIONAL, INC.,

t/a NEW YORK SPORTS CLUBS SPA

PARTNERS, INC.,

Defendant-Respondent.

_____________________________________

July 9, 2014

Submitted November 14, 2013 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket

No. L-2008-09.

Yury Semeniken, appellant pro se.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys for respondent (Matthew S. Mahoney, of counsel and on the brief).

PER CURIAM

In this personal injury action, plaintiff Yury Semeniken1 appeals from the denial of his motion for additur or new trial following a jury verdict in his favor against defendant Town Sports International, Inc. (TSI).2 Because we conclude that the trial court did not err in denying the motion, we affirm.

The facts giving rise to plaintiff's accident are easily summarized. Plaintiff was using the sauna after swimming at TSI, his health club, on his lunch hour. Plaintiff regularly used the sauna at TSI and had regularly used other saunas for thirty years. Entering the sauna, plaintiff went in search of a spray bottle of eucalyptus oil, which TSI regularly made available to members. TSI purchased the eucalyptus oil from ChemSpa, which described it as "fragrance and air freshener" for saunas and steam rooms. ChemSpa supplied the oil to TSI in labeled gallon jugs along with a material safety data sheet. ChemSpa also supplied TSI with empty labeled spray bottles in which the eucalyptus oil could be dispensed.

Plaintiff located an unlabeled, white spray bottle of eucalyptus oil in the steam room and returned with it to the sauna. He climbed up on one of the benches in the sauna and sprayed the oil on top of the heater element to allow the heat to push the fumes upward and disperse the aroma throughout the sauna. When he repeated the process a second time about five minutes later, the spray caught fire, causing a flashback that engulfed plaintiff in flames and hurled him to the floor.

Plaintiff suffered first and second degree burns on his face, hands, arms, and back. He was treated in the emergency room at Saint Barnabas and released. Plaintiff then walked from the hospital, almost two miles up a hill, to the health club to retrieve his car, and drove himself back to work.

At trial, the parties vigorously contested both liability and damages. Plaintiff contended that TSI's negligent dispensing of the flammable eucalyptus oil into the unlabeled spray bottle caused his injuries. In addition to the pain from the burns, he claimed damages for scarring, a persistent cough resulting from a damaged airway, and an osteochondral lesion on his ankle suffered either when he was thrown from the bench by the flashback or pushed to the floor of the shower by another member who came to his aid.

TSI contended that the lack of a label on the spray bottle was a "red herring," as plaintiff had been using eucalyptus oil in saunas for thirty years and was well aware that it was flammable. TSI maintained that plaintiff negligently sprayed the oil directly onto the heating element in an attempt to make the heater "cycle on," thus making the sauna hotter, and it was therefore not responsible for his accident. It further contended that if plaintiff had not sprayed the oil on the heater element, but above it as he maintained, then the health club could not be responsible as plaintiff was using the product as intended. TSI contended that plaintiff had no scarring, and that he was trying to recover for bags under his eyes that even his expert acknowledged were a result of age and not the fire. It claimed that there was no support in plaintiff's medical records for any injury to his airway. Although conceding that plaintiff had an osteochondral lesion, TSI maintained that it could not have occurred in the accident as no one suffering such an injury could thereafter immediately walk almost two miles uphill as plaintiff had done.

During the presentation of his case, plaintiff called the former managing director of ChemSpa to testify about the eucalyptus oil supplied to TSI. The witness testified that the material data safety sheet ChemSpa provided to TSI for the eucalyptus oil stated "Do not spray or otherwise dispense product near the sauna heater or onto the sauna rocks, as this may result in a flashback." At plaintiff's counsel's request, the witness authenticated the document as having been sent to TSI, and it was admitted in evidence. Only later did the court and counsel realize that the material safety data sheet admitted in evidence was not the one in effect at the time of the accident. The material safety data sheet in effect at the time of the accident stated "Do not pour undiluted product directly onto the sauna rocks as this may result in a flashback." The material safety data sheet erroneously admitted had obviously been updated in response to plaintiff's accident.

The trial judge addressed the issue with the jury as follows

Ladies and gentlemen, when [the ChemSpa witness] testified last week, we . . . all moved into evidence - when I say 'all,' [plaintiffs' counsel], [defense counsel], and myself, this . . . document which was dated [after the accident]. And that was basically what I would call a mutual mistake by both counsel and the court, because . . . none of us, and I think [the witness] included, realized that the document post-dated the accident. And had any of the four of us . . . realized that, that document would have never been allowed into evidence. So it was only after [the witness] left and we took a look at some other evidence in the case, that we all came to the conclusion that document should not have been put into evidence.

Therefore, I guess, we're going to take it out of evidence, mutually take it out of evidence, because it's really - it's [not] relevant what [TSI] was told after the accident, only what they were told, if anything, before the accident.

Defendant's counsel thereafter moved into evidence the material data sheet in effect at the time of the accident without objection by plaintiff's counsel.

The jury returned a verdict for plaintiff in the sum of $25,000, but determined that plaintiff and defendant were equally responsible for the happening of the accident. The judge molded the verdict accordingly and entered judgment for plaintiff in the sum of $12,500. Plaintiff moved for additur or, in the alternative, a new trial on damages. TSI cross-moved for judgment notwithstanding the verdict.

Plaintiff's counsel conceded that plaintiff's burns had healed well with no "disfiguring residuals." He argued, however, that even leaving aside the "more controversial claims" of the respiratory and orthopedic injuries, the jury's verdict was "shockingly low" given the extensive first and second degree burns plaintiff suffered to his face, hands, and arm. In the course of the argument, the judge asked defense counsel

what is a court required to do if the jury enters what trial lawyers and judges like to call a compromise verdict, because although [plaintiff's counsel] is reluctant to use that term, that's basically what one could argue happened here, that they were the jury may have been influenced by some compelling evidence that was entered on your client's behalf against the plaintiff as to not only his credibility but to the liability in general, and they used that compelling liability evidence and credibility evidence to somehow arguably reduce the pain and suffering award because it's not a stretch of the imagination to say that [plaintiff's counsel] is correct in that one would think if they were going to award liability of any kind to the plaintiff in this case, and then they were going to put aside any feelings they may have had, once that they answered the liability question that the value of the claim, the pain and suffering claim, probably was worth more than $25,000.

Defense counsel argued that the jury heard all of the testimony, there was no scarring, and plaintiff's own expert testified that the bags under plaintiff's eyes, which were "one of [his] biggest concerns," were due to aging and not the burns. After hearing argument, the trial judge denied the motions. The judge noted that he

had an opportunity to watch this case, listen to the testimony, observe the plaintiff and [finds] there is some credence to [plaintiff's counsel's] argument. Clearly one could argue, at least, that $25,000 was low in terms of a gross award, given that they cleared the hurdle of liability, which was a very, very difficult hurdle to clear in this case under the facts as the jury heard them[.] [H]owever, having said that, looking at this case in totality and looking at the case law and [Rule 4:49-1(a)] that govern[] this, the court cannot say that the verdict in this case shocks the conscience, nor can the court substitute itself as a juror in this matter. This was a hotly contested case, both on liability and damages and although it's clear that the plaintiff suffered some type of personal injury in this case, some of which may have been believed to be substantial, not only was the credibility of the liability claims attacked vigorously by the defense but the damages claims were also vigorously contested and argued against by defense counsel in this case.

Accordingly, this court will deny plaintiff's motion for additur or for a new trial.

Plaintiff appeals.3 He contends that the trial court erred when it admitted "false evidence," failed to cure "gross misconduct" on the part of defense counsel, failed to admit other evidence that plaintiff maintains is probative, and that his counsel was ineffective. He frames the issues as follows

1. Admission of False Product;

2. False Admissions of Prejudicial Evidences;

3. Failure to Admit the Highly Probative Evidences;

4. Gross Misconducts that had not Be[en] Cured;

5. Plaintiff['s] Injuries Have a Permanent

Significant Impact upon his Life;

6. Inadequate Jury Verdict.

We review the denial of a motion for new trial using the same standard as the trial judge. Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 522 (2011). Thus, we can reverse such a decision only where "it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). Although we must make our own determination of whether the jury's verdict resulted in a miscarriage of justice, we do not write on a clean slate. Dolson v. Anastasia, 55 N.J. 2, 7 (1969). Instead, we rely heavily on the trial judge's "feel of the case," that is, the trial judge's "personal observations of all of the players." Jastram ex rel. Jastram v. Kruse, 197 N.J. 216, 230 (2008); see also R. 2:10-2. The trial judge "sees and hears the witnesses and the attorneys, and . . . has a first-hand opportunity to assess their believability and their effect on the jury." Jastram, supra, 197 N.J. at 230.

Because jury verdicts are entitled to considerable deference, they "'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" Risko, supra, 206 N.J. at 521 (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)). Applying those standards here, we discern no basis to disturb the jury's verdict or the trial judge's decision denying plaintiff's motion for additur, or new trial.

The main thrust of plaintiff's argument on appeal is that the material safety data sheet in effect after the accident, and erroneously admitted into evidence at trial, was not simply updated after the accident, but is for a different product, the "false product" all focused upon at trial. He maintains that the eucalyptus oil he regularly used at the health club was supplied by ChemSpa in a concentrated form, which TSI employees diluted with water when transferring it to spray bottles for use in the club's steam rooms and saunas. He contends that he safely sprayed the diluted product in the sauna at TSI for many years in the same manner he did on the day of the accident.

Plaintiff believes that an employee of TSI failed to dilute the oil when transferring it into the bottle plaintiff used on that day. Plaintiff contends that it was this failure to dilute the eucalyptus oil that resulted in the flashback that injured him. He maintains, based on the safety material data sheet in effect after the accident, that the eucalyptus oil supplied by ChemSpa after the accident was designed not to be diluted and thus that the two products were substantially different.

There are two problems with this argument. First, no witness testified that these products were different, that the eucalyptus oil TSI was using at the time of the accident was supposed to be diluted, or that employees of TSI ordinarily diluted the oil. Second, this was not the theory of negligence plaintiff proceeded upon at trial.

Plaintiff's theory at trial was that it was TSI's transfer of the flammable eucalyptus oil into a plain, unlabeled spray bottle that caused plaintiff's injuries. Plaintiff's counsel requested that the judge charge the jury on that theory, the judge did so, and that was the only theory of liability against TSI the jury considered.

Plaintiff now argues that his counsel "miss[ed] the point in this case: [the] accident occurred not because the spray bottle had no warning label, but because the combustible solution was in [a] spray bottle in [a] heat[ed] facility for clients, which negligent defendant [TSI] failed to dilute."

Plaintiff's new claim is barred by the doctrine of invited error. The doctrine prevents a party from "'beseech[ing] and request[ing] the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.'" Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)). As we have noted previously, "[w]here parties without objection try and submit the question at issue upon a theory satisfactory to themselves, and suffer the case to go to the jury on that basis, it is too late to question [on appeal] the legal propriety of the course thus pursued." McKenney ex rel. McKenney v. Jersey City Med. Ctr., 330 N.J. Super. 568, 595-96 (App. Div. 2000), rev'd on other grounds, 167 N.J. 359 (2001).

In determining whether the jury's verdict was against the weight of the evidence so as to constitute a miscarriage of justice, we cannot consider proofs not presented to that jury or a theory of negligence never offered for its consideration. Ibid. Accordingly, we likewise reject plaintiff's claim that the judge erred in failing to admit evidence never offered that plaintiff claims is probative of TSI's negligence under his new theory that it was TSI's failure to dilute the eucalyptus oil that caused the flashback.

Plaintiff's claim that he was prejudiced by the improper admission of the material safety data sheet initially offered by his counsel is without merit. Plaintiff's counsel agreed with his adversary and the court that the material safety data sheet he initially offered into evidence was not in effect at the time of the accident and that it needed to be withdrawn and the earlier document substituted. The error was remedied and the trial judge issued a curative instruction explaining the error to the jury. Plaintiff fails to explain his reasons for contending that the instruction was insufficient or what effect that error produced in the jury's consideration of the theory of liability he presented at trial.

We also reject plaintiff's argument that defense counsel engaged in gross misconduct. Plaintiff bases this argument, like his others, on his new theory of liability. He contends that defense counsel improperly cross-examined him about how he sprayed the eucalyptus oil in the sauna. Plaintiff claims that because the spray he was provided was undiluted, making it highly flammable, where he sprayed the product was irrelevant. He also claims defense counsel improperly argued in closing that plaintiff was trying to make the sauna hotter and in highlighting various discrepancies in plaintiff's statements as to how the accident happened.

Our review of the record convinces us that the trial judge did not err in his control of plaintiff's cross-examination. See Daisey v. Keene Corp., 268 N.J. Super. 325, 334 (App. Div. 1993). Defense counsel's theory was that plaintiff knew the oil was flammable and he failed to exercise due care for his own safety by spraying the oil directly on the heater element. Defense counsel was free to develop evidence to support that theory through cross-examination and to ask the jury to draw a conclusion of comparative negligence on the basis of the evidence in the record. Spedick v. Murphy, 266 N.J. Super. 573, 590-91 (App. Div.), certif. denied, 134 N.J. 567 (1993). That the evidence was unfavorable to plaintiff is not grounds for excluding it.

Plaintiff's claims that his trial counsel was ineffective for failing "to discover the product substitution and all false documents and statements related to that product before trial," by not admitting "highly probative evidence[]" that would prove TSI failed to dilute the product, by "incorrectly charg[ing] the jury by missing the point in this case," by failing to evaluate the "doctor's reports for possible errors and mistakes and didn't fix[] it before the trial, which caused the gross misconduct in court," and by not opposing ChemSpa's motion for summary judgment, are not properly before us. Ineffective assistance of counsel is premised on an accused's Sixth Amendment right to an attorney in a criminal prosecution, it has no applicability to plaintiff's civil personal injury action. See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 307 (2007).

We have considered plaintiff's arguments that the jury's award was inadequate because his injuries have had a "permanent significant impact upon his life." Having carefully reviewed the entire trial record and giving due regard to Judge Carey's ability to see and hear the witnesses and counsel and to assess their believability and their effect on the jury, we cannot find the jury's verdict constituted a manifest injustice. As Judge Carey noted, this was an extremely hard fought case on both liability and damages. There was certainly adequate evidence in the record to support the jury's award. We will not disturb it.

Affirmed.

1 Plaintiff Lana Semeniken's consortium claim was voluntarily dismissed at trial.

2 Defendant Spa Partners, Inc., doing business as ChemSpa, Inc., the manufacturer of the eucalyptus oil at issue, obtained summary judgment on an unopposed motion prior to trial. Although not addressed in a point heading, see R. 2:6-2(a)(5), plaintiff asserts in several sentences of his brief that the motion was based on the "wrong product" and should not have been granted. Plaintiff did not appeal that summary judgment and we do not consider it, as it is not properly before us. See Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994); Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2014).

3 Although represented by counsel throughout the trial proceedings, plaintiff is self-represented on this appeal.