ANGELA K. LASH VS. ULTIMATE HAND CAR WASH AND DETAIL CENTER, LLC (L-0723-18, MORRIS COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2807-19
ANGELA K. LASH and
WAYNE LASH, JR.
(her husband),
Plaintiffs-Appellants,
v.
ULTIMATE HAND CAR WASH
AND DETAIL CENTER, LLC,
and CARPEL RT. 46
ASSOCIATES, LLC,
Defendants-Respondents.
_____________________________
Argued October 21, 2021 – Decided November 5, 2021
Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-0723-18.
Herbert M. Korn argued the cause for appellant.
Richard J. Williams, Jr., argued the cause for
respondents (McElroy, Deutsch, Mulvaney &
Carpenter, LLP, and The Law Offices of Gerald F.
Strachan, attorneys; Richard J. Williams, Jr., and
Richard B. Smith, of counsel; Tina DiFranco, on the
brief).
PER CURIAM
In this personal injury action, plaintiff Angela K. Lash appeals from the
Law Division's February 10, 2020 order denying her motion for a new trial,
following the December 10, 2019 jury verdict in favor of defendants Ultimate
Hand Car Wash & Detail Center, LLC and Carpel Rt. 46 Associates, LLC. We
affirm.
On May 18, 2016, plaintiff drove her car to defendants' car wash shop.
After she exited her car, plaintiff told the attendant what services she needed.
The attendant gave plaintiff an order slip and plaintiff then walked along a line
of orange traffic cones toward the shop's office. In order to gain access to the
office, plaintiff had to step onto a sidewalk, which was framed by a bright yellow
curb. Plaintiff fell while attempting to step onto the sidewalk and broke her left
leg.
Plaintiff gave inconsistent accounts of her fall. She told the police officer
who came to the scene that she might have missed the ledge of the sidewalk with
her left foot. However, plaintiff reported to the paramedics that she stepped on
the curb and then slipped. When she later completed a questionnaire at her
physical therapist's office, plaintiff again stated she slipped. Plaintiff did not
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claim that she fell because she stepped on an uneven surface on the curb, or into
a crack or hole in the curb.
At trial, however, plaintiff claimed she stepped onto "the uneven surface"
of the curb with her right leg and fell. Plaintiff presented photographs of the
accident scene that showed a crack on the side of the curb. Plaintiff's expert, a
professional engineer, testified "there[] [was] a pretty substantial crack" in the
curb that he stated in his report was "in the vicinity" of where plaintiff fell.
Defendants presented the testimony of the attendant, who stated that
plaintiff had her cellphone out as she began walking toward the office door.
Defendants' owner testified that he inspected the area around the car wash on a
weekly basis and painted the curb with "safety yellow" paint two or three times
a year "so people know . . . there's a curb here and [to] be aware of it, pay
attention . . . ." The owner stated that the township never cited his business for
any municipal code violations and he did not consider the curb a "slipping
hazard" or a "tripping hazard."
At the conclusion of the trial, the jury unanimously found that defendants
were not negligent in maintaining their business premises, and the court entered
judgment in their favor. Plaintiff thereafter filed a motion for a new trial,
arguing that the jury's verdict was against the weight of the evidence.
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Following oral argument, the trial judge rendered a written decision
denying plaintiff's motion. In explaining his ruling, the judge stated:
[T]here is considerable support in the record for the
jury to have concluded that defendant[s] met [their]
duty of reasonable care in maintaining [their] property
as well as warning [their] invitees of any conditions that
required the customers' attention.
The defendants testified that they painted the entire
curb a bright yellow, yearly, so that it warned of the
curb rising from the pavement. They testified they were
never advised of non-compliance with any local
building codes. They further stated, and the photos
confirmed, that closer to the building's office door, the
curb was cut out to be level with the pavement.
Plaintiff relied on . . . a professional civil engineer, who
testified that the curb was broken and had indentations.
He opined that the yellow painting may have
camouflaged the broken surface. The jury was free to
disagree with this expert's testimony. Indeed, viewing
the bright yellow-painted curb on the photos could just
as readily suggest to any reasonable person that the
yellow paint enhanced and highlighted the unevenness
of the curb's imperfections which stood out as a non-
painted darker area even to the naked eye many feet
away. The photos also provided a basis for the jury to
weigh the degree of brokenness in the curb. Whether it
was "crumbling" as plaintiff suggests or in a reasonably
safe condition as defendant argued. . . . Furthermore,
plaintiff's testimony was not consistent with her prior
statements which differed in how and where she fell.
This appeal followed.
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On appeal, plaintiff again argues that "the verdict was against the weight
of the evidence" and that the trial judge erred by denying her motion for a new
trial. We disagree.
In addressing plaintiff's contentions, we recognize the fundamental
principle that jury trials are a bedrock part of our system of civil justice and that
the factfinding functions of a jury deserve a high degree of respect and judicial
deference. See, e.g., Caldwell v. Haynes, 136 N.J. 422, 431-32 (1994). In terms
of its assessment of the relative strength of the proofs, a jury verdict is
"impregnable unless so distorted and wrong, in the objective and articulated
view of a judge, as to manifest with utmost certainty a plain miscarriage of
justice." Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003) (quoting
Carrino v. Novotny, 78 N.J. 355, 360 (1979)).
Rule 4:49-1(a) provides that a trial judge shall only grant a motion for a
new trial if a verdict if, "having given due regard to the opportunity of the jury
to pass upon the credibility of the witnesses, it clearly and convincingly appears
that there was a miscarriage of justice under the law." Jury verdicts are thus
"entitled to considerable deference and 'should not be overthrown except upon
the basis of a carefully reasoned and factually supported (and articulated)
determination, after canvassing the record and weighing the evidence, that the
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continued viability of the judgment would constitute a manifest denial of
justice.'" Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011)
(quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)).
In reviewing a trial judge's decision on a motion for a new trial, we view
the evidence in the light most favorable to the party opposing the new trial
motion. Caldwell, 136 N.J. at 432. Moreover, we give substantial deference to
the trial judge, who observed the same witnesses as the jurors, and who
developed a "feel of the case." See, e.g., Carrino, 78 N.J. at 361; Baxter, 74 N.J.
at 600; Dolson v. Anastasia, 55 N.J. 2, 6 (1969).
Applying these principles, we discern no basis to disturb the trial judge's
denial of plaintiff's motion for a new trial. Contrary to plaintiff's assertions, the
jury was free to reject both her and her expert's claim that defendants were
negligent in maintaining the curb. The crack was clearly visible in plaintiff's
photos and the jurors were therefore able to judge for themselves whether
defendants exercised reasonable care by painting the curb bright yellow and
inspecting the area on a weekly basis. Moreover, plaintiff was not even sure
that she stepped on or into the crack in the curb because she gave different
accounts of the accident throughout these proceedings.
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Under these circumstances, we are unable to conclude that the jury verdict
resulted in a miscarriage of justice as required by Rule 4:49-1(a). Therefore, we
reject plaintiff's contentions on this point.
Affirmed.
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