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Appellate Division Upholds Defense Jury Verdict Against Plaintiff For Trip Over A Curb

By on November 12, 2021 in Court Rulings with 0 Comments

Plaintiff Angela Lash tripped over a curb while stepping onto a sidewalk at defendants’ car wash.  As a result, she broke her leg.  The issue in Lash v. Ultimate Hand Car Wash and Detail Center, LLC and Carpel Rt. 46 Associates, LLC, 2021 N.J. Super. Unpub LEXIS 2601 (App. Div. November 5, 2021), was whether the jury’s verdict should have been overturned because it was against the weight of the evidence.

The plaintiff had driven her car to defendants’ car wash.  After she left her car, she told the attendant the services she needed.  The attendant gave her an order slip and plaintiff then walked along a line of orange traffic cones toward the car wash’s shop’s office.  Plaintiff had to step onto a sidewalk, which was framed by a bright yellow curb.  As she was attempting to step onto the sidewalk, she broke her left leg.

Plaintiff gave inconsistent accounts of her fall to the police officer, to the paramedics, and then later to her physical therapist’s office.  She told the police officer that she might have missed the ledge of the sidewalk with her left foot.  She told the paramedics that she stepped on the curb and then slipped.  In a questionnaire she completed for the physical therapist office, she again stated that she slipped.  She did not claim in any of these statements 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, she testified that she stepped onto the uneven surface of the curb with her right leg and she presented photographs of the accident scene that showed a crack on the side of the curb.  Plaintiff had an expert, a professional engineer, who testified at trial that “there was a pretty substantial crack” in the vicinity of where she fell.

The defendants presented testimony at trial that plaintiff had her cell phone out as she began walking toward the office door.  Also, the 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 to highlight the existence of the curb so that people would be aware of it.  Further, the owner testified that the Township never cited his business for any municipal code violations.  He did not consider the curb a slipping hazard or a tripping hazard.

The jury unanimously found that the defendants were not negligent in maintaining their business premises and the court entered a judgment in the defendants’ favor.  Thereafter, the plaintiff filed a motion for a new trial, arguing that the jury’s verdict was against the weight of the evidence.  The trial court denied that motion. It was that order that was appealed to the Appellate Division.

In denying the plaintiff’s motion for a new trial, the trial court judge found that there was considerable support in the record for the jury to have concluded that defendants met their duty of reasonable care in maintaining their property, as well as warning their invitees of any conditions that required the customers’ attention.  Further, he noted that the jury was “free to disagree” with the plaintiff’s expert.  The court noted that “viewing the bright yellow – painted curb in 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.”  Further, the trial court judge noted that plaintiff’s testimony was not consistent with her prior statements which differed in how and where she fell.

In considering this appeal, the Appellate Division stated that “we recognize the fundamental principle that jury trials are a bedrock part of our system of civil justice and the factfinding functions of a jury deserve a high degree of respect in judicial deference.”  Further, the Court noted that “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.” 

The Appellate Division further noted that in their review of a trial judge’s decision on a motion for a new trial, the Court will view the evidence in a light most favorable to the party opposing the new trial motion.  Further, “substantial deference must be given to the trial judge, who observed the same witnesses as the jurors, and who developed a feel of the case.”

After applying all these principles, the Appellate Division held that there was “no basis to disturb the trial judge’s denial of plaintiff’s motion for a new trial.”  The Court pointed out that the jury was free to reject both the plaintiff and her expert’s claim that defendants were negligent in maintaining the curb.  Further, the Appellate Division noted that 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.”  Finally, the Appellate Division pointed out that the plaintiff was not even sure that she stepped on or into the crack in the curb because of her different accounts of how the accident happened. 

Accordingly, the Court was unable to conclude that the jury verdict resulted in a miscarriage of justice and affirmed the trial court’s decision, upholding the jury verdict.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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