QUEEN ROBERTS v. DISCOUNT LIQUOR WORLD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

QUEEN ROBERTS,

Plaintiff-Appellant,

v.

DISCOUNT LIQUOR WORLD,

Defendant-Respondent.

_______________________________

August 14, 2014

Before Judges Lihotz and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3248-10.

Queen Roberts, appellant pro se.

Law Offices of William E. Staehle, attorneys for respondent (Suzanne Montgomery, on the brief).

PER CURIAM

Plaintiff Queen Roberts appeals from the dismissal of her slip and fall complaint against defendant Discount Liquor World following the jury's defense verdict. She seeks a new trial, arguing her witness misunderstood questions posed on cross-examination, which resulted in incorrect answers that misled the jury. She also suggests the jury was denied the opportunity to review the surveillance video capturing her accident. Following our review, we discern no basis exists to interfere with the jury's verdict, as plaintiff failed to move for a new trial. Consequently, her appeal is dismissed.

On January 31, 2009, plaintiff, accompanied by her daughter, Cardeia Roberts1 and another, entered defendant's store. After making a purchase, plaintiff left the store. As she walked in defendant's parking lot toward her vehicle, she stepped over the curb and fell. Plaintiff asserted she slipped on black ice and testified there was no evidence the ice had been treated by rock salt or calcium chloride. Cardeia also testified. She did not witness her mother's fall. When she learned of the accident, she exited the store and went to plaintiff's aid. She took photographs of the area where plaintiff said she fell, which were introduced into evidence. Cardeia then returned to the store to get assistance.

On cross-examination Cardeia was asked whether she noticed "Ice Melt," an ice melting salt, "in the parking lot." She stated: "Yes. There was some." On redirect, she was asked whether she saw "Ice Melt or ice pellets in the area where your mother fell." She responded, "When I came back outside with either someone from the store management or the cashier . . . but I did after." When asked she affirmed: "Afterwards . . . . But not at the time."

Defendant's store owner, Henry Maderich testified the sidewalk in front of the store was clear and Ice Melt pellets were on the sidewalk and on the parking spots in front of the store. Further, the parking lot was clear of snow and ice. A surveillance video capturing plaintiff's fall was also shown to the jury. Maderich identified Ice Melt pellets, as shown on the video.

After deliberating, the jury issued a defense verdict, concluding there was no cause of action. Plaintiff's appeal ensued.2 She moved for a stay, which was denied.

On appeal, plaintiff argues Cardeia misunderstood the questions posed, suggesting she believed the reference was to melted ice, not to the product known as "Ice Melt." Plaintiff also maintains the jury was not given sufficient opportunity to review the video evidence.

"Our civil system of justice places trust in ordinary men and women of varying experiences and backgrounds, who serve as jurors, to render judgments concerning liability and damages." Johnson v. Scaccetti, 192 N.J.256, 279 (2007). See also N.J. Const. art. I, 9 ("The right of trial by jury shall remain inviolate."). Accordingly, a jury verdict is entitled to a presumption of correctness, Baxter v. Fairmont Food Co., 74 N.J. 588, 597 (1977), and the jury's evaluation of factual issues must be afforded "the utmost regard." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004).

"Once the jury is discharged, both trial and appellate courts are generally bound to respect its decision, lest they act as an additional and decisive juror." Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 135-36 (1990) (citing Dolson v. Anastasia, 55 N.J. 2, 6 (1969)). A jury verdict will be set aside in favor of granting a new trial only in instances of "clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). See also Dolson, supra, 55 N.J. at 6-7 (holding that a jury verdict must not be set aside "unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses," it clearly appears that there was a miscarriage of justice under the law). A "miscarriage of justice" has been described as a "'pervading sense of 'wrongness' needed to justify [an] appellate or trial judge undoing of a jury verdict . . . [which] can arise . . . from manifest lack of inherently credible evidence to support the finding, obvious overlooking or underevaluation of crucial evidence, [or] a clearly unjust result. . . .'" Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996) (alteration in original) (quoting Baxter, supra, 74 N.J. at 599), certif. denied, 149 N.J. 34 (1997).

Importantly, except in rare instances inapplicable here, we will not consider claims not previously reviewed by a trial court. "In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R. 2:10-1. Accordingly, plaintiff's appeal must be dismissed as she failed to comply with this procedural prerequisite, prior to seeking this court's review. Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 462 (2009).

Finally, for completeness, we determine plaintiff's claim of error regarding the jury's insufficient consideration of the surveillance video lacks merit. R. 2:11-3(e)(1)(E). The video was played twice during trial and the jury posed no additional request for review.

Appeal dismissed.

1 Because she and plaintiff share the same surname, we have chosen to identify Cardeia Roberts by her first name.

2 Delay in our review was caused by plaintiff's failure to serve her notice of appeal upon defendant until July 10, 2013. See R. 2:5-1 (requiring a party to serve the notice of appeal and request for transcript upon all parties appearing in the action). We note defendant argues the appeal was untimely because of the delay in perfecting service. However, we will not address this issue because it was neither presented in a motion to dismiss, R. 2:8-2, or by filing a cross appeal, R. 2:34.