Jacobs v. Jersey Cent. Power & Light Co.

• Decision Date: 07 December 2017
• Docket Number: DOCKET NO. A–0255–16T3
• Citation: 452 N.J.Super. 494,176 A.3d 827
• Parties: Nancy JACOBS, Plaintiff–Respondent, v. JERSEY CENTRAL POWER & LIGHT COMPANY, Defendant–Appellant.
• Court: New Jersey Superior Court — Appellate Division

452 N.J.Super. 494

176 A.3d 827

Nancy JACOBS, Plaintiff–Respondent,

v.JERSEY CENTRAL POWER & LIGHT COMPANY, Defendant–Appellant.

DOCKET NO. A–0255–16T3

Superior Court of New Jersey, Appellate Division.

Argued November 13, 2017

Decided December 7, 2017

Stephen A. Rudolph argued the cause for appellant (Rudolph & Kayal, attorneys; Stephen A. Rudolph, on the briefs).

Roy D. Curnow argued the cause for respondent (Law Offices of Roy D. Curnow, attorneys; Roy D. Curnow and Randall J. Peach, on the brief).

Before Judges Sabatino, Ostrer and Whipple.

The opinion of the court was delivered by

SABATINO, P.J.A.D.

In this personal injury case, defendant Jersey Central Power & Light Company ("JCP & L") appeals on multiple grounds from the jury verdict in favor of plaintiff and the trial judge's denial of its motion for a new trial.

Plaintiff, a homeowner, tripped over or stepped in a hole left behind by a JCP & L employee, who removed a street light that had fallen at the corner by her home. The employee disconnected the light, took the pole out of the ground, and rolled up and placed the leftover wires in the hole containing the base of the light. He covered the wires with soil, still leaving an indentation in the ground. He placed an orange safety cone over the hole, but the cone disappeared within a few days. JCP & L did not return promptly to repair the light or the hole.

Almost two months later, plaintiff walked out of her home to get her mail. As she walked on the grassy area, she fell over or into the hole, injuring her knee and lower back. After treatments failed to abate her symptoms, plaintiff eventually had lumbar surgery and knee replacement surgery. She did not resume employment.

Plaintiff sued JCP & L for medical expenses, lost wages, and pain and suffering. After a five-day trial in May 2016, the jury found JCP & L eighty percent negligent and plaintiff twenty percent negligent. The jury awarded plaintiff $650,000 in damages, a sum the court molded to take into account her comparative fault. JCP & L moved for a new trial, which the trial judge denied in a detailed written opinion.

On appeal, JCP & L raises multiple claims of trial error. Among other things, defendant argues that the court should have issued a directed verdict for JCP & L on liability because plaintiff did not present a liability expert on utility industry standards; plaintiff's orthopedic expert gave improper testimony; the court incorrectly excluded proof favorable to the defense; the jury charge was flawed; and the court should have granted the new trial motion. For reasons that follow, we affirm.

I.

We summarize the evidence and procedural history pertinent to the issues raised on appeal. The facts, although disputed in several respects, are relatively uncomplicated.

The Downed Light Pole and The Resultant Hole

During the evening of April 21, 2012, plaintiff Nancy Jacobs and Sebastian DeCandia¹ were returning to their home in Barnegat, when they noticed a streetlight pole had fallen down on the corner of their property. Plaintiff reported the downed pole to the local police department. The police dispatcher contacted the public utility responsible for the streetlight, JCP & L, to inform it of the situation.

A line troubleshooter employed by JCP & L responded to the scene the following day, April 22. He disconnected the light, tested the wires, and removed the pole from the ground. He rolled up the remaining wire and placed it in the hole. He used some of the soil around the hole to cover the wires, but without filling the hole completely. He placed an orange safety cone temporarily over the hole. The employee testified that he did not mark the area with white or other paint. According to his testimony, he does not carry spray paint in his truck. Nevertheless, according to the homeowners' testimony, the spot was marked at some point with white paint in the surrounding grass.

Two days later, when DeCandia and plaintiff were leaving their home, he noticed that wires were sticking out from under the cone. DeCandia used a yardstick or ruler to push the wires back into the hole. With plaintiff's help, he took photographs of the wires and the hole, using the yardstick or ruler to measure dimensions.² The photos showed the safety cone and the grass perimeter around a dirt hole marked with white paint.

DeCandia testified, "a couple of days later," the orange cone "disappeared" from their property. In addition, DeCandia stated the white paint by the hole had faded about ten days after it was marked on the grass. According to DeCandia, the fading of the paint was due both to rain and the mowing of the lawn.

DeCandia estimated he cut the grass about eight times between the time the pole fell in April 2012 and plaintiff's injury in June 2012. When cutting the grass, DeCandia treated the hole³ the same as the rest of the lawn. He noticed "[a] little grass fell in the hole, and the hole kept getting smaller, and the grass around it kept shrinking in. The hole kept getting smaller and smaller ... almost invisible."

A JCP & L employee, known as a Distribution Technical Supervisor, was responsible for scheduling streetlight repairs and installations. The supervisor testified that such repair jobs are scheduled "on a date basis and an area basis," with priority given to areas that need emergency power restoration. The supervisor noted that although this particular downed light was located within the geographic area of another JCP & L office, his own office accepted the repair assignment since it had more resources available at the time. The supervisor stated that his office was busy with other projects during that period, although he acknowledged that plaintiff's property was not "a low priority job[.]"

The Accident and Plaintiff's Injuries

Nearly two months after the light pole had fallen and still had not been replaced, plaintiff returned home from work at approximately 6:30 p.m. on Monday, June 18, 2012. She went outside to get the mail. She went through the garage, because the lawn sprinklers were on in the front yard. Still wearing sneakers from her job in a medical office, plaintiff walked down the driveway to the sidewalk. She noticed a discarded water bottle in the grass, and bent down to pick it up.

After plaintiff stood up and took a few steps, her right foot became stuck in the hole. According to plaintiff, by that time the grass had "completely grown over the hole," and she did not notice the hole before stepping into it. As she described the incident at trial, plaintiff "tried to catch [her] balance ... teeter-tottered back and forth, and then [ ] fell back" onto her buttocks and back.

Plaintiff felt discomfort, and walked back into the house. DeCandia, who had not seen the accident, went inside and saw plaintiff sitting in a chair. He asked her, "[W]hat's going on[?]," to which plaintiff replied, "I fell in that damn hole out there getting the mail." Plaintiff took a hot bath and applied ice packs to her back. The couple did not report the fall to the police, nor to JCP & L.

Plaintiff returned to work the following Monday, June 25. However, according to plaintiff's testimony, her back began "hurting more and more. Sitting was getting harder, standing, everything. It was just ... getting hard to function. ... The pain ... was increasing."

About a day or so after plaintiff's fall, a JCP & L repair crew arrived to perform work at the site. The crew discovered the location was not "mark[ed] out."⁴ After ordering a new mark-out from the subcontractor, JCP & L placed another cone over the hole on June 28 and sprayed the area with white paint.

Plaintiff's Course of Treatment and Surgery

[At the direction of the court, the published version of this opinion omits this portion discussing plaintiff's course of treatment and surgery. See R. 1:36–3.]

The Trial and Related Motions

After the close of plaintiff's case in chief, JCP & L moved for a directed verdict. The defense argued plaintiff's claims must be dismissed because she had not presented expert opinion addressing whether JCP & L had adequately secured the location of the fallen streetlight and whether its delay in repairing the hole was reasonable. In addition, JCP & L argued that because plaintiff had problems with her knee predating the accident, and had not pled aggravation of a knee injury

in her complaint, her knee-related claims must be dismissed.

The court denied defendant's motion, ruling that a liability expert was not necessary in this case, deeming the reasonableness of defendant's conduct to be a proper subject of common knowledge. The judge further ruled plaintiff's medical expert had properly testified regarding an aggravated injury to her knee

.

At the end of the trial, the jury found defendant eighty percent negligent and plaintiff twenty percent comparatively negligent, and that both parties were a proximate cause of the accident. The jury awarded plaintiff $70,000 for medical expenses, $80,000 for lost income, and $500,000 for pain and suffering, resulting in a $650,000 total gross verdict for plaintiff. The verdict was reduced, upon factoring in plaintiff's comparative negligence.

Defendant filed a motion for a new trial, which the court denied in a twenty-six-page written opinion. Final judgment was entered for plaintiff in the sum of $482,487.51, reflecting a deduction for collateral source income and the addition of prejudgment interest. This appeal ensued.

II.

On appeal, JCP & L variously argues: (1) plaintiff needed a liability expert to comment on industry standards for securing downed streetlight locations and about the acceptable time frames for repairing light pole holes; (2) the court erred in excluding an office note of a treating physician containing a description of the accident that allegedly varied materially from plaintiff's other narratives of the accident; (3) Dr. Skolnick impermissibly speculated about plaintiff's undocumented pre-accident injuries; (4) Dr. Skolnick improperly testified...