Thomas v. Toys R Us, Inc.

• Decision Date: 10 July 1995
• Citation: 660 A.2d 1236,282 N.J.Super. 569
• Parties: Teresa THOMAS and William Thomas, Plaintiffs-Appellants, v. TOYS "R" US, INC., Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 569

282 N.J.Super. 569

660 A.2d 1236

Teresa THOMAS and William Thomas, Plaintiffs-Appellants, v. TOYS "R" US, INC., Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued May 31, 1995.

Decided July 10, 1995.

Michael D. Schottland, Freehold, for appellants (Schottland, Aaron & Manning, attorneys; Mr. Schottland, Nicholas C. Caliendo & Chryssa Yaccarino, on the brief).

Chris E. Piasecki, Middlesex, for respondent (Psak & Parker, attorneys).

Before Judges MICHELS, KEEFE and HUMPHREYS.

The opinion of the court was delivered by

KEEFE, J.A.D.

Plaintiff Teresa Thomas (Teresa) fell while shopping at defendant Toys "R" Us. She and her husband, William, instituted suit against defendant for damages resulting from that fall. A jury returned a verdict finding defendant 75% negligent and Teresa 25% contributorily negligent. The jury awarded damages as follows: $10,887 for medical expenses; $42,504 for lost wages; $11,012 for future lost income; $12,500 for pain and suffering; and $0 for William's per quod claim. The total judgment in favor of Teresa was $76,903. The judge molded the verdict in accord with N.J.S.A. 2A:15-97 as follows: $1,642 for medical expenses; $6,334 for lost wages; $0 for future lost wages; and $9,375 for pain and suffering.

Plaintiffs' motion for an additur or a new trial was denied. Plaintiffs now appeal and present the following issues for resolution.

POINT I THE TRIAL COURT IMPROPERLY DENIED PLAINTIFFS A NEW TRIAL AND/OR ADDITUR ON BOTH THE ISSUES OF DAMAGES AND LIABILITY

POINT II THE TRIAL COURT MADE TWO ERRONEOUS EVIDENTIAL RULINGS RESULTING IN A MANIFEST DENIAL OF JUSTICE

POINT III THE COURT'S TREATMENT OF THE COLLATERAL SOURCE RULE WAS IMPROPER

A. The Trial Court Committed Reversible Error By Not Having An Evidentiary Hearing Before Molding The Verdict as to Collateral Sources.

B. The Court Miscalculated Plaintiff's Medical Benefits Resulting in an Improper Application of the Collateral Source Rule.

C. The Trial Court Improperly Reduced Plaintiff's Lost Wage Award.

D. The Trial Court Erroneously Used Plaintiff's Social Security Benefits as a Set-off in Violation of Federal Preemption.

We have carefully reviewed the record in light of plaintiffs' contentions which were thoroughly and articulately presented in their appellate briefs and at oral argument. However, we are satisfied, for the reasons stated herein, that there is no warrant for our intervention, and that the judgment under review must be affirmed.

I

In order to preserve a "weight of the evidence" issue for appellate review, the party seeking to advance the issue must make a timely motion for a new trial. In this case, the trial judge ruled that plaintiffs' motion for a new trial was not filed and served in a timely fashion. However, he addressed the merits of plaintiffs' motion. Although the trial judge ruled on the merits of the motion, the procedural issue has been preserved for appellate review. Defendant urges that the trial judge was correct in his ruling on the motion, and that we need not address the merits of the weight of the evidence issue now presented by plaintiffs. Plaintiffs, on the other hand, maintain that they substantially complied with R. 4:49-1(b), and are not procedurally barred. We agree with plaintiffs' contention.

A motion for a new trial "shall be served not later than 10 days after ... the return of the verdict of the jury." R. 4:49-1(b). The period begins to run from the date the verdict is received in open court, and it is a non-relaxable rule, even in extenuating circumstances, R. 1:3-4(c). Spedick v. Murphy, 266 N.J.Super. 573, 587-588, 630 A.2d 355 (App.Div.), certif. denied, 134 N.J. 567, 636 A.2d 524 (1993). However, we have recognized that the requirements of the rule are met in situations where there is "substantial compliance" with its terms. Stegmeier v. Saint Elizabeth Hosp., 239 N.J.Super. 475, 571 A.2d 1006 (App.Div.1990) (finding substantial compliance with the rule where the motion papers were delivered to an independent carrier within the ten day time period). In this case, substantial compliance occurred when plaintiffs attempted to deposit the motion papers at the Freehold post office on a business day during normal business hours, but were prevented from doing so because of an unforeseen incident that required the post office to be closed. ¹ Thus, where there has been substantial compliance with the rule, and the opposing party has not been prejudiced by the non-literal compliance, we hold that R. 4:49-1(b) was not violated.

We now turn to the merits of the issue, and the appropriate standard of review. This court must defer to the trial court in those areas where the trial court has expertise, or a "feel of the case," e.g., the credibility or demeanor of the witnesses. Outside such areas, an appellate court is permitted to make an independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360, 396 A.2d 561 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-598, 379 A.2d 225 (1977). "[A] jury verdict, from the weight of the evidence standpoint, is impregnable unless so distorted and wrong, in the objective and articulated view of the judge, as to manifest with utmost certainty a plain miscarriage of justice." Carrino, supra, 78 N.J. at 360, 396 A.2d 561. Further, judges are admonished not to readily substitute their own judgment for that of the initial factfinder. Baxter, supra, 74 N.J. at 597-598, 379 A.2d 225. Thus, the initial factfinder's judgment is entitled to considerable respect and should be overturned only after the reviewing judge has carefully scrutinized the record and determined that to uphold the judgment would result in a manifest denial of justice. Ibid. It is only when the judgment is accompanied by a sense of "wrongness" that it should be disturbed on review. Id. at 599, 379 A.2d 225 (quoting State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964)).

Applying those standards to this case, we are satisfied that there was sufficient, credible evidence in the record to justify the jury's conclusion that Teresa was 25% negligent. Notwithstanding the defect in the floor caused by the missing tile, the jury could have concluded that defendant placed a yellow warning sign on the floor marking the place where the tile was missing, and that a reasonable shopper, such as Teresa, could have and should have observed it.

As to the quantum of damages awarded to Teresa for her injuries, the record reveals credibility issues that are traditionally the exclusive province of a jury to resolve. A significant aspect of the case, and a factor that the trial judge relied upon in analyzing the issue, was the video tape of Teresa's activities, which belied her assertion that she could not perform ordinary functions, such as carrying her child or driving a vehicle. Further, her doctor never articulated that her injuries were such that they would prevent her from driving, doing laundry, or other such activities. Moreover, the medical evidence presented to the jury did not demonstrate any objective findings of injury.

We reach the same result with respect to the jury's verdict on William's per quod claim. The video tape of Teresa's activities clearly affected the weight to be given his testimony concerning how her allegedly diminished ability to function impacted on his life. Further, William's testimony contained inconsistencies concerning his employment, an issue properly developed and explored by defense counsel on cross-examination.

II

Plaintiffs argue here that the trial judge made two erroneous evidentiary rulings. The first centers on an X-ray that Teresa's doctor had in his file that was discovered by plaintiffs' counsel for the first time at trial. The second ruling was permitting defense counsel to question Teresa about when she hired an attorney.

Plaintiffs' counsel first discovered the X-ray report at trial, on June 14, 1994, while preparing the doctor for his testimony. The X-ray was taken on January 31, 1994. The radiologist reported that the X-ray revealed a straightening of Teresa's lumbar lordosis. It was the only objective finding of injury that plaintiff had. Defense counsel objected based on surprise and prejudice, and the trial court did not admit the X-ray report. The judge explained that the rules of discovery demanded full and fair disclosure, and the admission of an X-ray on the day of trial would prejudice defendant. However, the judge prohibited defense counsel from cross-examining Teresa's doctor on the fact that X-rays were negative so the jury would not be given a false impression. During cross-examination, defense counsel covered other objective tests that Teresa underwent, the EMG, a neurological exam, a bone scan and MRIs, and the fact that they were all negative.

The discovery rules are to be construed liberally and broadly to facilitate the search for the truth during litigation. However, "[c]oncealment or surprise are not to be tolerated in a modern judicial system." Lang v. Morgan's Home Equipment Corp., 6 N.J. 333, 338, 78 A.2d 705 (1951). A trial judge can suspend the imposition of sanctions in three scenarios:

(1) absence of a design to mislead or conceal--as, for example, mistake, inadvertence, excusable neglect, or honest misunderstanding; (2) absence of the element of surprise if the evidence is admitted; and (3) absence of prejudice which would result from the admission of the evidence.

[Branch v. Emery Transportation Co., 53 N.J.Super. 367, 376, 147 A.2d 556 (App.Div.1958).]

The trial court is vested with discretion in resolving such an issue and can impose the sanction of exclusion if such an outcome is just and reasonable. Westphal v. Guarino, 163 N.J.Super. 139, 145-146, 394 A.2d 377 (App.Div.), aff'd o.b., 78 N.J. 308, 394 A.2d 354 (1978). Not every failure to apprise opposing counsel of additional information or witnesses results in...