Opinion
DOCKET NO. A-2050-12T4
08-06-2014
KEVIN PEEBLES, Plaintiff-Appellant, v. ANTHONY FARMER, JR., Defendant-Respondent.
Dean R. Maglione argued the cause for appellant (The Maglione Firm, P.C., attorneys; Mr. Maglione, of counsel; Lora B. Glick, on the brief). Aldo J. Russo argued the cause for respondent (Lamb Kretzer, L.L.C., attorneys; Robert D. Kretzer, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Ashrafi. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1370-09. Dean R. Maglione argued the cause for appellant (The Maglione Firm, P.C., attorneys; Mr. Maglione, of counsel; Lora B. Glick, on the brief). Aldo J. Russo argued the cause for respondent (Lamb Kretzer, L.L.C., attorneys; Robert D. Kretzer, on the brief). PER CURIAM
In this personal injury case, plaintiff Kevin Peebles appeals from the trial court's denial of his motion for additur or a new trial on damages after a jury's verdict granted him a net award of $7,500. We affirm.
On March 20, 2008, plaintiff was injured while attempting to escape apprehension by the police. Plaintiff was a passenger in a van with three other occupants when police officers attempted to pull over the moving vehicle. A circuitous high-speed chase involving multiple police vehicles ensued on the highways and streets of Newark and Irvington. Defendant Anthony Farmer, an Irvington police detective, was driving an unmarked police car close behind the van. He hit the rear of the van several times with his police car. Near the intersection of Renner and Goodwin Avenues in Irvington, plaintiff jumped from the moving van to flee on foot, but lost his balance and fell to the ground. Plaintiff was then run over by Farmer's police car. Farmer immediately stopped his car, while other units continued pursuit of the van.
Witnesses testified about their observations of the chase on Renner Avenue. They saw a man jump from the van, and the unmarked police vehicle veer and strike the man on the sidewalk. They then saw two African-American police officers step out of the unmarked police car to check on the man. They said that the two officers and a third who had arrived at the scene made disparaging remarks about the injured man and congratulated one another for having captured him.
Plaintiff was admitted to University Hospital in Newark with multiple trauma of the head, spine, chest, arm, and leg. Plaintiff's injuries required surgical procedures and hospitalization for two weeks. After his discharge from the hospital, plaintiff required home bed rest for two to three months. His mother cared for him during the period of recuperation.
About a year after suffering his injuries, plaintiff filed suit against the Township of Irvington and the two Irvington detectives in the vehicle that ran over him during the pursuit.
The Township of Irvington and the other detective were dismissed from the case, leaving Farmer as the only defendant.
At the trial in September 2012, plaintiff testified about the events during the police chase, his intent to flee on foot because the driver of the van would not stop and he was scared, and the pain and disability he suffered as a result of his injuries. He had no recollection of what happened in the street after being run over by the police car, testifying that the next thing he remembered was waking up in the hospital.
Plaintiff's mother testified about the condition of her son after the injuries, and the level of care he required at home during his recuperation. She testified that she saw her son in extreme pain in the hospital, such as him waking up from sleep screaming, and screaming in pain if anyone touched him. After her son came home, she needed a hospital bed, shower chair, and toilet seat for handicapped persons in order to care for him. She also used a baby monitor in his room so that he could let her know if he needed something. She had to feed her son because he could not raise his arm to eat, and had to bathe him because he was incapable of doing so alone.
Between the time of his discharge from the hospital on April 4, 2008, and his October 6, 2008 examination by orthopedist Steven Nehmer, plaintiff did not see a doctor or present evidence of any other medical treatment. In the intake form he completed for Dr. Nehmer, plaintiff complained of pain in his right leg but did not note pain in his shoulder or lower back, which were part of his claims of continuing injury and disability at the time of trial. He was seen and treated by Dr. Nehmer on three visits through December 2008 and then had no further medical treatment through the time of trial.
In addition to statements about his injuries and recovery, plaintiff testified that he had a lengthy criminal history. Specifically, he was convicted of ten offenses between 2004 and 2009, and was sentenced to various terms of incarceration and probation for those crimes. His criminal history included convictions for four second- and third-degree crimes for which he was sentenced on February 19, 2009, that is, eleven months after the accident, to six years in prison with three years of parole ineligibility. Thus, the jury learned that plaintiff had spent much of the time between the accident and the trial in prison.
Regarding the residual effects of the injuries, plaintiff described himself as having substantial scarring on his forehead, scalp, throat, and lip that made him feel embarrassed about his appearance. Plaintiff also said he had lingering lower back, leg, and arm pain, specifically identifying his arm pain as making it "hard" for him to play basketball and making doing pushups "difficult." On cross-examination, plaintiff admitted he did not mention any lower back or arm pain on the intake form for Dr. Nehmer. Plaintiff also admitted he had not seen any doctors to treat his injuries since December 2008, and that his arm got "a little better" over time.
Dr. Nehmer, a board-certified orthopedic surgeon, provided taped trial testimony as plaintiff's medical expert. He described the multiple injuries plaintiff had sustained as a result of being run over, and the emergency treatment he received. At the time of Dr. Nehmer's initial examination of plaintiff in October 2008, which was less than seven months after the accident, plaintiff had full motion in his right shoulder, though it was painful and tender. The doctor diagnosed the shoulder with tendonitis and bursitis, and treated plaintiff with a cortisone injection. On cross-examination, the doctor testified that most of the multiple injuries plaintiff sustained had healed before the October 2008 examination.
By its verdict, the jury determined that defendant Farmer knowingly and intentionally violated the rules regarding police pursuits, and that the violation caused defendant to run over and injure plaintiff. The jury also determined that plaintiff was negligent in jumping from the moving van during the police chase, and that plaintiff's negligence also caused him to be run over and injured. The jury determined by a five to one vote that plaintiff and defendant were each fifty percent at fault for the injuries. By a six to zero vote, the jury determined a sum of $15,000 was sufficient to compensate plaintiff, netting him $7,500.
Plaintiff moved for a new trial on damages only or an additur, which the trial court denied.
On appeal, plaintiff argues that the trial court erred in denying his post-trial motion because the award of damages was so low that it should shock the judicial conscience and was the result of the jury's mistake, compromise, bias, or prejudice. He also argues that the trial court failed to review correctly his motion for a new trial or an additur, in particular, that the court did not compare the jury's damage award to recovery of compensation in similar cases.
Our standard of review requires that we not disturb a jury's verdict on damages "unless it is 'so disproportionate to the injury and resulting disability as to shock the conscience and [convince the court] that to sustain the award would be manifestly unjust.'" Ming Yu He v. Miller, 207 N.J. 230, 249-50 (2011) (alteration in original) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 604 (1977)); accord Mahoney v. Podolnick, 168 N.J. 202, 229-30 (2001); Carrino v. Novotny, 78 N.J. 355, 360 (1979); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). We view the evidence in a light most favorable to the non-moving party, here defendant Farmer. Mahoney, supra, 168 N.J. at 229-30; Anderson v. A.J. Friedman Supply Co., Inc., 416 N.J. Super. 46, 70 (App. Div. 2010), certif. denied, 205 N.J. 518 (2011); Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 325 (App. Div. 2010).
The trial judge concluded that the jury engaged in a rational assessment of the evidence and the logical inferences that could be drawn from the entire record. The judge noted that the jurors had the opportunity to see the plaintiff in person from jury selection through verdict, and were able to evaluate the testimonial evidence of plaintiff's pain and lasting injury in relation to what they could see of the plaintiff sitting in the courtroom. For example, although plaintiff presented evidence of permanent facial scars that he said made him embarrassed, the jury could see for itself that the scars were not very visible and not as disfiguring as plaintiff claimed.
In addition, the testimony of plaintiff's mother about the level of his injuries, pain, and impairment was not supported by evidence of ongoing medical treatment or significant lasting effects of his injuries. There was no evidence regarding any employment that the injuries affected or other notable recreational or personal activities of defendant that were impaired after the first few months of recovery. Defendant testified that, at the time of trial, he did not go out as much, could not shoot baskets as easily as before the accident, and had difficulty doing pushups. Dr. Nemeth, who last saw plaintiff almost four years before the trial, also testified that his injuries did not prevent him from physical activity such as doing pushups or pullups although he might feel some pain. From this evidence, the jury could infer that plaintiff was not substantially disabled or impaired in his activities.
Appellant relies on two cases in support of his argument that the trial court incorrectly analyzed the jury's award of damages. In Von Borstel v. Campan, 255 N.J. Super. 24, 29 (App. Div. 1992), we affirmed the trial court's decision to grant a new trial because "the severity of [the plaintiff's] injuries, their permanent effects and the medical procedures required to treat the same support the trial court's conclusion that the jury's compensatory damages verdict was shockingly low and a miscarriage of justice." In that case, however, we were reviewing a grant of the plaintiff's new-trial motion, to which we applied the same standard of deference to the trial court's judgment as we do in reviewing a denial of such a post-trial motion. See ibid. Also, the Von Borstel plaintiff underwent two brain surgeries, while plaintiff in this case had much less serious medical treatment. See id. at 29-30. And the Von Borstel plaintiff was afflicted with a permanent seizure disorder, while the permanent injuries of plaintiff in this case are limited to inconspicuous scarring and shoulder inflexibility. See id. at 30.
In Love v. National Railroad Passenger Corp., 366 N.J. Super. 525, 532-33 (App. Div.), certif. denied, 180 N.J. 355 (2004), we reversed the trial court's denial of a motion for a new trial or additur because the jury awarded zero dollars for pain and suffering, despite the absence of defense medical evidence to contradict plaintiff's evidence. Id. at 532-34. In so ruling, we stated:
The corrective function is more easily discharged when the jury verdict entirely omits to make an award in a discrete category of damages where some award is manifestly appropriate, than when the claim is that an amount awarded is inadequate, especially where minimal or no affirmative proofs were offered at trial to countervail the claimant's positions.Here, the jury's verdict did not completely omit an award of money damages.
[Id. at 533 (internal citations omitted).]
As the trial judge concluded in this case, plaintiff has not made a persuasive showing that the jury's damages verdict was a manifest injustice. Under the appropriate standard of review, we have no reason to disagree with the trial judge's conclusion, or with the jury's determination of the amount of money damages that would fairly compensate plaintiff. There was evidence presented at trial that both supported and undermined plaintiff's claims of pain, suffering, and lasting injury. The jury spoke, and the trial judge properly deferred to the jury's assessment of the evidence.
Because the award was not manifestly unjust, there was no basis to grant a new trial or an additur. R. 4:49-1; Kozma, supra, 412 N.J. Super. at 326.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION