Opinion
DOCKET NO. A-5551-13T4
02-09-2016
JOANN LANE, Plaintiff-Appellant, v. VITO GUALARIO and VIRGINIA GUALARIO, Defendants-Respondents.
Richard B. Ansell argued the cause for appellant (Ansell Grimm & Aaron, PC, attorneys; Mr. Ansell, of counsel and on the brief; Kristine M. Bergman, on the brief). Lynn Hershkovits-Goldberg argued the cause for respondents (Law Offices of Viscomi & Lyons, attorneys; Ms. Hershkovits-Goldberg, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Haas and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4039-10. Richard B. Ansell argued the cause for appellant (Ansell Grimm & Aaron, PC, attorneys; Mr. Ansell, of counsel and on the brief; Kristine M. Bergman, on the brief). Lynn Hershkovits-Goldberg argued the cause for respondents (Law Offices of Viscomi & Lyons, attorneys; Ms. Hershkovits-Goldberg, on the brief). PER CURIAM
Plaintiff Joann Lane appeals from a July 11, 2014 order denying her motion for a new trial following a jury verdict in favor of defendant Vito Gualario. Plaintiff also contests the trial judge's in limine ruling denying her request for a jury charge on nuisance law and a Middletown Township ordinance. We affirm.
Defendant Virginia Gualario was dismissed from the case prior to trial.
We derive the following facts from the trial record. On April 18, 2010, plaintiff was riding her bicycle on Half Mile Road in Middletown. Plaintiff observed a pile of brush in front of her, and attempted to maneuver around the pile of "debris and branches" while maintaining awareness of any traffic traveling to her left. Plaintiff saw the pile in plain view and was not surprised by it. She never looked back to see if there was any traffic coming from behind her, nor did she slow down or stop her bicycle to avoid the brush. As she passed the brush, "something" from the pile "got caught in the spoke" of the bicycle and she fell onto her elbow.
As the case was tried on liability only, there is no indication of plaintiff's injuries in the record.
The brush pile was placed at the curb by defendant in front of his residence on Half Mile Road. The Township required the brush to be placed on the curb-line, not the street or sidewalk, no sooner than one week before the pickup. Defendant piled the lawn debris, which he commingled with brush and leaves, in anticipation of collection by the Township. The pile grew increasingly large in terms of length and height, and defendant resorted to spearing branches into the pile to make it stable. Nonetheless, the accumulated debris fell into the street prior to its collection.
The Township's website provided general information regarding leaf and brush pickup, and noted that the debris should not be more than three cubic yards or placed in the street or sidewalk "as it creates a serious hazard for children walking to school and other pedestrians as well as the motoring public." The applicable Township ordinance permitted residents to dispose up to three cubic yards of brush, leaves, and tree cuttings. See Middletown Twp., N.J., Solid Waste Ordinance § 230-14(B)(1) (2011). Although defendant acknowledged he checked the website, he never reviewed any information regarding a limitation on the size of debris piles.
The Township's littering and dumping ordinance, "Sidewalks to be kept clean[,]" states:
It shall be the duty of the owner, lessee, tenant, occupant or person in charge of any structure to keep and cause to be kept the sidewalk and curb abutting the building or structure free from obstruction or nuisances of every kind and to keep sidewalks, areaways, backyards, courts and alleys free from litter and other offensive material. No person shall sweep into or deposit in any gutter, street, catch basin
or other public place any accumulation of litter from any public or private sidewalk or driveway. Every person who owns or occupies property shall keep the sidewalk in front of his or her premises free of litter. All sweepings shall be collected and properly containerized for disposal.Litter is defined as:
[Middletown Twp., N.J., Littering and Dumping Ordinance § 172-10 (1988).]
Any used or unconsumed substance or waste material which has been discarded, whether made of aluminum, glass, plastic, rubber, paper or other natural or synthetic material, or any combination thereof, including but not limited to any bottle, jar or can or any top, cap or detachable tab of any bottle, jar or can, an unlighted cigarette, cigar, match or any flaming or glowing material or any garbage, trash, refuse, debris, rubbish, grass clippings or other lawn or garden waste (other than compost piles), newspaper, magazines, glass, metal, plastic or paper containers or other packaging or construction material, but does not include the waste of the primary processes of mining or other extraction processes, logging, sawmilling, farming or manufacturing.
[Middletown Twp., N.J., Littering and Dumping Ordinance § 172-2 (1988).]
The Township ordinances governing its disposal of solid waste (specifically brush, leaves and tree cuttings) have the stated purpose to:
[R]egulate the disposal and curbside collection activities of residents and commercial landscapers within the Township of Middletown limiting the times and amounts
of leaves and brush that may be disposed of curbside throughout the year.
[Middletown Twp., N.J., Solid Waste Ordinance § 230-12 (2011).]
As a result of the incident, plaintiff filed a complaint alleging negligence against defendant and his wife. Defendants filed an answer. Plaintiff eventually filed a motion for partial summary judgment, which was denied. In response, plaintiff filed a motion for reconsideration which was granted in part and denied in part. In an oral opinion, the motion judge stated in pertinent part that he would not rule on whether defendant violated the littering and dumping ordinance, but held that the ordinance should be given as a charge to the jury.
The matter proceeded to trial before another judge, but resulted in a mistrial. Prior to the commencement of the second trial before a third judge, plaintiff filed an in limine motion seeking a jury charge on the littering and dumping ordinance, as well as on nuisance law. The judge denied the motion holding that the intent of the ordinance was not for safety purposes but to control disposal and to limit littering and, therefore, did not impose a duty upon defendant in a negligence action. As for the requested charge on nuisance law, the judge held that a duty of care under a nuisance theory does not "equate" with a duty of care in a negligence action and would not result in liability.
At the conclusion of the trial, the jury returned a verdict in favor of defendant and final judgment was entered. Plaintiff filed a motion for a new trial, which was denied.
Plaintiff raises the following points on appeal:
POINT I
THE TRIAL COURT ERRED IN DENYING [PLAINTIFF] A NEW TRIAL AS THE JURY'S VERDICT OF "NO CAUSE" WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING [PLAINTIFF'S] REQUEST TO CHARGE THE JURY THAT DEFENDANT'S VIOLATION OF MIDDLETOWN TOWNSHIP'S ORDINANCE FOR DUMPING/LITTER CONSTITUTED EVIDENCE OF NEGLIGENCE.
POINT III
TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN DENYING [PLAINTIFF'S] REQUEST TO CHARGE THE JURY THAT DEFENDANT'S PLACEMENT OF BRUSH AND DEBRIS WITHIN THE ROADWAY CONSTITUTED A NUISANCE THEREBY SUBJECTING HIM TO LIABILITY FOR THE [PLAINTIFF'S] DAMAGES.
In reviewing a denial of a motion for a new trial "[t]he trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. An appellate court must give due deference to the trial court's "feel of the case," that is, its regard for "the jury to pass upon the credibility of the witnesses" and whether "it clearly and convincingly appears that there was a miscarriage of justice under the law." Carrino v. Novotny, 78 N.J. 355, 361 (1979) (quoting R. 4:49-1(a)); see also Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 7 (1969) (holding that in reviewing the trial court's denial of a motion for a new trial, "the appellate court must give deference to the views of the trial judge . . . .").
Our Supreme Court has discussed the miscarriage of justice standard:
[A] motion for a new trial should be granted only where to do otherwise would result in a miscarriage of justice shocking to the conscience of the court. . . . Thus, a trial judge is not [to] substitute his [or her] judgment for that of the jury merely because he [or she] would have reached the opposite conclusion . . . .In deciding a motion for a new trial, the trial judge must "canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict . . . ." Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962).
A miscarriage of justice has been described as a pervading sense of wrongness needed to justify [an] appellate or trial judge undoing of a jury verdict . . . [which] can arise . . . from manifest lack of inherently credible evidence to support the finding, obvious overlooking or under-valuation of crucial evidence, [or] a clearly unjust result[.]
[Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (internal citations and quotation marks omitted).]
We first address plaintiff's argument that the jury verdict was against the weight of the evidence. Similar to Rule 2:10-1, Rule 4:49-1(a) states that a judge should only grant a motion for a new trial if a verdict is against the weight of the evidence and "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." See also Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:10-1 (2016) (explaining that when a "weight of the evidence argument" is entertained, the principles in Dolson, supra, 55 N.J. at 6-8 are "fully viable" and the "appellate court's review is essentially the same as the standard governing the trial judge's disposition.").
Plaintiff argues that defendant violated the Township ordinance regarding the size and placement of lawn debris, and therefore, the jury verdict was against the weight of the evidence. However, the ordinance was not considered by the jury as it was not referenced during the trial, nor was the jury charged relative to the ordinance based upon the pre-trial ruling. Instead, the jury was presented with and presumably considered the Township website's warning that oversized brush piles could be hazardous to pedestrians and motorists. The warning contained in the website was referenced during testimony and was emphasized in plaintiff's counsel's summation. The jurors, therefore, had the opportunity to pass upon whether the debris pile was hazardous to plaintiff.
The jury was also presented with testimony that plaintiff saw the pile in plain view, was not surprised by it, and never looked back to see if there was any traffic coming from behind her. Nor did plaintiff slow down or stop her bicycle to avoid the debris. Similar to the issue of defendant's liability for the debris, the jury presumably considered whether the debris was the proximate cause of the accident.
"The courts allow wide latitude to the jury, restricting their sphere sparingly, and on an ad hoc basis, where one conclusion only seems warranted by the facts." Carrino, supra, 78 N.J. at 365 (quoting Schaublin v. Leber, 50 N.J. Super. 506, 510 (App. Div. 1958). A trial judge's responsibility on a motion for a new trial is "to correct clear error or mistake by the jury. Of course, the judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion[.]" Dolson, supra, 55 N.J. at 6. "Jury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005) (emphasis added), certif. denied, 186 N.J. 242 (2006). As plaintiff has not clearly and convincingly demonstrated that the jury's verdict was against the weight of the evidence and a miscarriage of justice under the law, we see no basis to disturb the jury verdict.
We next address plaintiff's argument that the judge should have instructed the jury on the littering and dumping ordinance, as well as on nuisance law. With respect to plaintiff's challenge to the verdict based upon the judge's decision not to include the ordinance and nuisance law in the jury charge, "[i]t is axiomatic that clear and correct jury charges are essential to a fair trial . . . ." Henebema v. S. Jersey Transp. Auth., 430 N.J. Super. 485, 501 (App. Div. 2013) (quoting Das v. Thani, 171 N.J. 518, 527 (2002)), aff'd, 219 N.J. 481 (2014). Jury charges must outline the jury's function, set forth the issues and the applicable law, and spell out how the jury should apply those legal principles to the facts as the jury finds them. Velazquez v. Portadin, 163 N.J. 677, 688 (2000).
Defendant argues that this issue is being raised for the first time on appeal. However, as the matter is fully briefed and plaintiff repeatedly addressed the issue in a motion for summary judgment, a motion for reconsideration, and at oral argument prior to both trials, we are satisfied that good cause has been shown for the issue to be addressed on appeal.
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In reaching his decision, the judge principally relied on Luchejko v. City of Hoboken, 207 N.J. 191, 200-01 (2011), to support the rationale that ordinances directing private persons to care for public property "are not adopted for the intended purpose of protecting individual members of the public, but rather they are to impose upon those regulated the public burdens of municipal government." The judge further held that the purpose of Luchejko and cognate decisional law is to instruct courts to carefully analyze the purpose, goal, and rationale of an ordinance. After analyzing sections § 230-12 and § 172 of the Township ordinances and their purpose, the judge concluded that the purpose of the ordinances did not contemplate creating a duty of care, the violation of which would result in negligence. The judge also stated:
I simply can't conclude that applying the principles articulated in [Hoagland v. Gomez, 290 N.J. Super. 550 (App. Div. 1996)] that a duty was created by [sections § 230-12 and/or § 172] which directly relates to a duty owed, a member of the public, a breach of, and the breach and the violation of either of those ordinances did not contemplate a finding of a breach of a duty and ultimate negligence by those who, by the drafters, by the governing body that developed them.
The judge continued by relying on Burke v. Briggs, 239 N.J. Super. 269 (App. Div. 1990), in his rejection of plaintiff's request for a jury charge on nuisance. The judge held that the purpose of nuisance law is to protect against the invasion of a private interest in and enjoyment of land, and therefore, if defendant's pile was said to be a nuisance it still could not result in liability.
In Luchejko, supra, 207 N.J. at 200, the Court reaffirmed the longstanding precedent regarding a private citizen's breach of an ordinance:
First, it has long been the law in this state that breach of an ordinance directing private persons to care for public property
shall be remediable only at the instance of the municipal government . . . and that there shall be no right of action to an individual citizen especially injured in consequence of such breach. The most conspicuous cases of this sort are those that deny liability to private suit for violation of the duty imposed by ordinance upon abutting property-owners to maintain sidewalk pavements or to remove ice and snow from the walks.
[(quoting Fielders v. N. Jersey St. Ry. Co., 68 N.J.L. 343, 352 (E. & A. 1902) (emphasis omitted).]
Municipal ordinances are not adopted to protect individual members of the public, but "to impose upon those regulated 'the public burdens of the municipal government.'" Id. at 200-01 (quoting Fielders, supra, 68 N.J.L. at 355); see also Lodato v. Evesham Twp., 388 N.J. Super. 501, 507 (App. Div. 2006); Brown v. St. Venantius Sch., 111 N.J. 325, 335 (1988) ("[M]unicipal ordinances do not create a tort duty, as a matter of law").
In Carrino, supra, 78 N.J. at 357, the plaintiff suffered injuries in a motor vehicle accident with an illegally parked car. The jury was charged as to the violation of the ordinance. Id. at 358-59, 369-70 (Schreiber, J., concurring). The appellate panel reversed the jury's verdict in favor of plaintiff, finding no basis to conclude that traffic safety was a reason for imposition of the parking ordinance. Id. at 359. However, the Court reversed the appellate court's decision, holding that the "primary considerations underlying [the parking ordinance(s)] are traffic safety and traffic flow[.]" Id. at 364. Therefore, the "statute or ordinance establishe[d] a certain standard of conduct, one of the class for whose benefit it was enacted obtains the benefit thereof in an action for negligence if the breach of the enactment was the efficient cause of the injury . . . ." Id. at 359 (citations omitted). The provisions of an ordinance must be "germane to the type of hazard involved in the defendant's asserted duty." Ibid. (quoting Rodgers v. Reid Oldsmobile, Inc., 58 N.J. Super. 375, 385 (App. Div. 1959); and citing Restatement (Second) of Torts § 286 and § 288 (1965)).
Similarly, the court in Hoagland, supra, 290 N.J. Super. at 556, reversed a trial court's decision to grant summary judgment in favor of a landlord who was sued for negligent violation of a fire code, which allegedly resulted in plaintiff being badly burned. The court reversed the trial court's decision because the plaintiff "was within the class of persons intended to be protected by the ordinances[.]" Id. at 555 (quoting Shump v. First Cont'l-Robinwood Assoc., 644 N.E.2d 291 (1994)).
The law is clear and essentially undisputed by the parties: a municipal ordinance is applicable in negligence actions where the plaintiff is an intended protected class under the ordinance. Plaintiff argues that she was intended to be protected from the lawn debris pile under section § 172-10 of the Township ordinances by virtue of the fact that it states "[n]o person shall sweep into or deposit in any gutter, street, catch basin or other public place any accumulation of litter from any public or private sidewalk or driveway." See Middletown Twp., N.J., Littering and Dumping Ordinance § 172-10 (1988). Plaintiff also relies on the Township website's admonition that a brush pile could "create a hazard for children walking to school and other pedestrians, as well as the motoring public." We disagree.
"In interpreting [an ordinance] the court is compelled to give effect to the legislative intent. Even where the drafters of an ordinance may not have considered a certain set of circumstances, the construing court should render a decision consonant with the probable intent of the draftsmen had [they] anticipated the situation at hand." Pullen v. S. Plainfield Planning Bd., 291 N.J. Super. 303, 310 (Law Div. 1995) (internal citations and quotations omitted), aff'd, 291 N.J. Super. 1 (App. Div. 1996).
Here, the judge correctly relied upon section § 230-12, which expressly states that the purpose of the ordinances governing its disposal of solid waste (specifically brush, leaves and tree cuttings) is to:
[R]egulate the disposal and curbside collection activities of residents and commercial landscapers within the Township of Middletown limiting the times and amounts of leaves and brush that may be disposed of curbside throughout the year.
[Middletown Twp., N.J., Solid Waste Ordinance § 230-12 (2011).]
The ordinance makes no mention of negligence issues or its intention to protect motorists or pedestrians, nor does the plain language of section § 172-10 suggest in any way that motorists and pedestrians are intended to be protected from oversized brush piles. If a standard of care was created by the ordinance, that standard did not relate to a standard of care under a theory of negligence. As the judge concluded, the ultimate goal of the ordinance is to control the disposal process of debris, the violation of which would result in an infraction against homeownership regulations, not against a negligence standard.
The fact that the Township website mentions motorist and pedestrian safety is unavailing. Although generated by the Township, there is nothing in the record demonstrating that the drafters intended the website to be read in conjunction with the littering and dumping ordinances. Moreover, the webpage cited by plaintiff does not reference the ordinance. Accordingly, pursuant to Luchejko, Carrino, and Hoagland, we see no basis to conclude that plaintiff was intended to be protected from the brush pile, and therefore, she was not entitled to a jury charge on the littering and dumping ordinance. The charge set forth the applicable law and was not erroneous. Das, supra, 171 N.J. at 527; Velazguez, supra, 163 N.J. 688. The jury was presented with the website language, which expressly warns against potentially hazardous brush piles. Therefore, plaintiff cannot be said to have suffered any harm by the jury instruction — she has not established that the outcome would have been different had the jury been instructed on the ordinance. Velazquez, supra, 163 N.J. at 688.
We similarly conclude that plaintiff was not entitled to a jury instruction on nuisance law. In Gellenthin v. J. & D., Inc., 38 N.J. 341, 351-52 (1962), the Court recognized that "an abutting landowner is under a duty to exercise reasonable care to maintain in a reasonably safe condition any structure or other artificial condition which he created in the public highway." The Court goes on to explain that that duty is a tort principle applying only to disputes between abutting landowners, and "where . . . the action is between a landowner and a pedestrian who suffers injury through an obstruction of the public sidewalk, the general principles of negligence law must be applied." Id. at 352-53 (emphasis added); see also Saco v. Hall, 1 N.J. 377 (1949).
In Burke, supra, 239 N.J. Super. at 273-74 (citations omitted), the court explained that neither the theory of nuisance nor trespass permit liability against a pedestrian where there has been no showing of "intentional or hazardous activity requiring a higher standard of care or . . . some compelling policy reason." Without such a showing of intent or hazardous activity, negligence principles must apply. Id. at 272-74.
As a result, nuisance is not applicable under these circumstances, where the rights of an abutting landowner have not been infringed upon and where there is no showing of intentional or hazardous conduct by defendant harming the pedestrian plaintiff. Because plaintiff is seeking relief as a pedestrian in a negligence action, the judge correctly concluded that nuisance law does not "equate" in this instance. Plaintiff was not entitled to a jury charge on nuisance. Therefore, the charge was not erroneous, as it clearly and thoroughly set forth the applicable law. Das, supra, 171 N.J. at 527; Velazguez, supra, 163 N.J. 688.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION