Dinter v. Sears, Roebuck & Co.

• Decision Date: 14 November 1991
• Citation: 599 A.2d 528,252 N.J.Super. 84
• Parties: Riki DINTER and Elliott Dinter, Plaintiffs-Appellants, v. SEARS, ROEBUCK & COMPANY, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 84

252 N.J.Super. 84

599 A.2d 528

Riki DINTER and Elliott Dinter, Plaintiffs-Appellants, v. SEARS, ROEBUCK & COMPANY, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Sept. 23, 1991.

Decided Nov. 14, 1991.

Marc J. Friedman, Morristown, for plaintiffs-appellants (Rich & Friedman, attorneys; Marc J. Friedman, of counsel and on the brief).

Frank P. Addas, Jersey City, for defendant-respondent (Addas & Potenza, attorneys; Frank P. Addas, on the brief).

Before Judges PETRELLA, ASHBEY and ARNOLD M. STEIN.

The opinion of the court was delivered by

PETRELLA, P.J.A.D.

Plaintiffs Riki Dinter and Elliott Dinter appeal from the entry of a judgment dismissing their complaint after a jury verdict of no cause of action. ¹ Plaintiffs' post-trial motion to set aside the jury verdict or for a new trial was denied.

The jury trial consumed 22 days in April and May 1990. The underlying incident occurred on February 17, 1987, when Dinter went to the Sears, Roebuck & Co. (Sears) parts supply facility on Route 17 in Maywood shortly after 9:30 a.m. to pick up parts for her dishwasher in a car she borrowed from a neighbor. Upon driving into the parking lot, Dinter "felt" bumps as she parked the car. Dinter testified she was wearing flat boots with rubber soles and that the sequence of events thereafter was as follows:

I opened the door. Before I turn around--when I turn around, when I put my feet outside, I looked around me. I didn't understand what this bump was.

When I was looking around, I saw ice around the car. Then I got up. I looked again around me to find a safe place to walk. When I was looking down, I find this puddle of water. I thought it's puddle of water. It was early in the morning. The sun was hitting the area. I gave a few steps and I decide I was any way with boots, it will be safe for me to walk on water instead of ice. The time that I put my feet on this puddle of water that turn out to be ice, I slipped. That's my first slip.

On cross-examination, Dinter said that she noticed snow and ice on the ground "automatically" before she stepped out of the car with her left foot. She then took a few steps before she closed the door. When she stepped into the "puddle" with her left foot, her "foot went up in the air," and she landed on her back and the back of her head.

Dinter was uncertain how long she remained on the ground or whether she lost consciousness. She said she screamed for help, but no one heard her, and finally crawled around the car to the ramp leading to the entrance of the store and got to her feet with the help of the door. Dinter said on cross-examination that prior to this incident she suffered from fainting and dizzy spells.

Dinter related what happened to the cashier, Ruth Bross. She further testified that her coat was soaking wet and dirty, her hair was wet and bloody, and she was slumped over in pain. However, Bross did not recall anything out of the ordinary about Dinter's appearance. According to Dinter, the cashier told her to take a number and give her complaint to the guy who serves her. When her number was called, Dinter informed the employee, Richard Blog, that she fell and was in a great deal of pain. Blog interrupted her, asking what he could do for her. He repeated his inquiry and Dinter gave him her order for dishwasher racks and tray. Blog promised that "they will take care of it. They will clean it." He then asked another employee, John Cincotta, to help Dinter carry the parts to the car. Blog did not notice anything out of the ordinary as he observed Dinter exit the store.

Dinter said that Cincotta carried her boxes to the car and then returned, took her arm and escorted her to the car. Cincotta denied this and testified that Dinter walked down the ramp and to the car without his assistance. He did not observe anything out of the ordinary about her walk as he carried the parts to her car. He also testified that he did not notice any ice or snow in the area of her car. However, Cincotta's statement to his employer, not furnished to plaintiff's attorney for cross-examination, ² regarding the customer that fell on Tuesday, February 17, 1987, stated: "[c]arried parts to her car for her dishwasher. There was ice around her car, and she said it was slippery and somebody should do something about it. I agreed."

Dinter said she rested in the car for a few minutes then drove home. She parked the car in her driveway and stepped out. Dinter called her neighbor's son to help her with the boxes and to pick up the car which belonged to the boy's parents. As Dinter entered her house, her friend telephoned and she told her what had happened.

Dinter said she then crawled upstairs to take a hot bath, and thereafter laid down on the bed with a heating pad. She also said she later called her physician, Dr. Fioretti, who had previously treated her for various conditions, including a fractured pelvis in an automobile accident, a sacroiliac sprain; tenderness in the left lumbosacral area, and injuries from a series of fall down accidents. Dinter made an appointment for the following day. Later that afternoon, Dinter called Sears to ask if she had to fill out an accident report. When she informed the employee of the accident and that she had a doctor's appointment the next day, the employee asked Dinter to return to the store and file a report before her appointment.

Dinter returned to Sears to fill out the accident report on February 19, 1987. ³ She went to Dr. Fioretti's office that day. He described her injuries as multiple bruises of her back, sprain of the lumbosacral area and a bruise over the occipital area of the head. He prescribed an anti-inflammatory agent, pain medication, and whirlpool therapy.

Despite therapy, Dinter continued to experience back pain radiating down her left leg. Dr. Fioretti ordered a CAT scan of her lumbar spine which revealed a disk displacement. He referred Dinter to Dr. Megibow, an orthopedic surgeon. Prior to Dinter's fall in February 1987, Dr. Fioretti had prescribed anti-vertigo medication for her, and had referred her to a neurologist for a severe vertigo condition in October 1986. Dinter's 1986 complaints were loss of balance, dizziness, and intermittent episodes when her left leg would give way. However, Dinter testified that on the day of the accident in the Sears lot in February 1987 she was not dizzy and slipped on the ice.

There was extensive testimony about Dinter's injuries and condition. Due to depression and mounting feelings of suicide which assertedly resulted from constant pain, Dinter was referred to a psychiatrist. The psychiatrist said that Dinter was severely depressed. A neighbor of Dinter testified as to Dinter's ability to drive a car and carry bags of groceries while supposedly disabled from the fall at Sears.

There was also testimony regarding Dinter's prior medical problems and about Dinter's subsequent move to Oklahoma, and later Florida.

Apparently primarily on credibility grounds, the jury rejected plaintiffs' allegations that Sears was negligent. In denying plaintiffs' post-trial motion, the judge concluded that the verdict was not contrary to the weight of the evidence and stated:

[I]n order to overturn the verdict of the jury I would have to find that in weighing the testimony and the credibility of the witnesses, the opportunity of the jury to pass thereon, that it clearly and convincingly appears that there was a miscarriage of justice, and whatever adjectives you use, miscarriage of justice, manifest denial of justice, which was the old standard, shocking to the conscience, I could not find that the jury verdict form that, jury verdict was a miscarriage of justice under the law.

* * * * * *

But looking at the totality of the testimony in this case the jury could easily conclude, and I use that term understanding the significance of this case and the magnitude of this case, could easily conclude that the testimony of the plaintiff or the plaintiff's witnesses was just not believable with respect to the manner in which this fall occurred.

On appeal, the Dinters argue: (1) the cause of the accident should not have been deleted from medical records or precluded from the testimony of experts; (2) the trial judge should have allowed Elliott Dinter to testify about his conversation with his wife after the accident; (3) the judge should have directed discovery of defense witnesses' written statements; and (4) Dinter should have been permitted to testify about the condition of the parking lot two days after the accident.

I.

Plaintiffs argue that in precluding Dinter's statements to physicians the judge failed to consider whether her description of the cause of her fall was relevant to diagnosis or treatment, thus making it an exception to the hearsay rule. See Evid.R. 63(12).

Sears argues that Dinter's statements to her treating physicians regarding the cause of the accident are not innately trustworthy because they were not made for purposes of diagnosis and treatment. It also argues that various witnesses testified to the icy condition causing the fall, and hence, the jury heard fully about her version of her fall. Thus, it argues there was no negative presumption that the fall occurred because of Dinter's instability due to her previous medical problems and condition which were unrelated to this incident.

As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion. State v. Wise, 19 N.J. 59, 98, 115 A.2d 62 (1955); Purdy v. Nationwide Mutual Insurance Co., 184 N.J.Super. 123, 130, 445 A.2d 424 (App.Div.1982); Schweizer v. Mac Phee, 130 N.J.Super. 123, 127, 325 A.2d 828 (App.Div.1974). Even where there may have been error, reversal is required only when an unjust result occurred. Purdy v. Nationwide Mutual Insurance Co., supra (184 N.J.Super. at 130, 445...