The opinion
NOT FOR PUBLICATION WITHOUT THE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
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2181-23
BRENDA ZADJEIKA,
Plaintiff-Appellant/
Cross-Respondent,
v.
NJ AMERICAN WATER,
Defendant-Respondent/
Cross-Appellant,
and
BOROUGH OF HADDONFIELD,
and HADDONFIELD SHADE
TREE COMMISSIONS,
Defendants-Respondents.
_____________________________
Argued November 13, 2025 – Decided June 1, 2026
Before Judges Smith and Jablonski.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-1057-21.
Michael Confusione argued the cause for
appellant/cross-respondent (Hegge & Confusione,
LLC, attorneys; Michael Confusione, of counsel and on
the briefs).
Walter F. Kawalec, III, argued the cause for
respondent/cross-appellant NJ American Water
(Marshall Dennehey, PC, attorneys; Paul C. Johnson
and Walter F. Kawalec, III, on the briefs).
Robert J. Gillispie, Jr., argued the cause for respondents
Borough of Haddonfield and Haddonfield Shade Tree
Commission (Donnelly, Petrycki & Sansone PC,
attorneys; Robert J. Gillispie, Jr., of counsel and on the
brief).
PER CURIAM
Plaintiff Brenda Zadjeika sued NJ American Water (NJAW), as well as
the Borough of Haddonfield (Haddonfield) and the Haddonfield Shade Tree
Commission (HSTC) (the Haddonfield defendants), after a tree fell from
NJAW's property onto plaintiff's home. Prior to trial, a motion judge dismissed
the claims against the Haddonfield defendants on their motions for summary
judgment. The remaining parties proceeded to trial. After trial before a different
judge, the jury awarded plaintiff $48,000 in dwelling property damages, $0 in
personal property damages, $50,000 in loss of use damages, and $75,000 related
to loss of quality of life and pain and suffering.
A-2181-23
2
On appeal, plaintiff contends that the motion judge committed error by
dismissing her claims against the Haddonfield defendants. In addition, plaintiff
asserts the trial judge committed various errors before, during, and after trial
which deprived her of a fair trial. Finally, plaintiff argues that the trial judge
erred by denying her motions for a new trial on damages or for additur. We
affirm for the reasons which follow.
I.
In 2015, NJAW bought property located on Lake Street from the Borough
of Haddonfield. On the property was a black oak tree. Five years later, during
May 2020, plaintiff contacted Haddonfield's public works superintendent
regarding her concerns with the tree. The superintendent informed her that
Haddonfield was not responsible for trees on private property. Approximately
a month later, the black oak fell during a derecho 1 storm, striking a pin oak tree
located on the curb next to plaintiff's property. Both trees collapsed onto
plaintiff's home. Because of the storm-related damage to the home, plaintiff and
her daughter were forced to relocate.
1
A derecho is defined as a large fast-moving complex of thunderstorms with
powerful straight-line winds that cause widespread destruction. Merriam-
Webster's Collegiate Dictionary, 445 (12th ed. 2026).
A-2181-23
3
In April 2021, plaintiff sued NJAW for negligence and negligence per se .
She also sued the Haddonfield defendants under the Tort Claims Act (TCA),
seeking damages.2 All defendants answered and moved for summary judgment
after discovery.
The motion judge granted summary judgment to the Haddonfield
defendants in February 2023, finding that Haddonfield: was not liable for failing
to enforce local ordinances against NJAW under N.J.S.A. 59:2-4; was immune
from negligent inspection claims because the black oak was not on property
owned or controlled by the borough under N.J.S.A. 59:2-6; and was not liable
for the alleged dangerous condition of the black oak under N.J.S.A. 59:4-2. The
motion judge next determined that HSTC was immune under N.J.S.A. 59:4-10.
Finally, the judge addressed the damages aspect of plaintiff's TCA claim,
dismissing her claims for pain and suffering damages against the Haddonfield
defendants because she failed to prove a permanent loss of bodily function under
N.J.S.A. 59:9-2(d).
Before trial, plaintiff moved to strike NJAW's comparative negligence
defense and preclude certain testimony from defendant's expert, Mark Webber,
on maintenance work done on the black oak tree by Public Service Enterprise
2
N.J.S.A. 59:1-1 to 12-3.
A-2181-23
4
Group (PSE&G), which was not a party to the case. Defendant moved to
preclude: plaintiff's wage loss and personal property claims; reference to any
allegations of permanent injury by plaintiff; and testimony from various
plaintiff's witnesses. The trial court granted plaintiff's motion to strike the
comparative negligence defense but denied the motion to preclude Webber's
testimony. The court found that Webber's testimony was relevant because
PSE&G "had some management or maintenance control over the tree." The
court denied some of defendant's pre-trial motions in limine, including its
motions to bar: statements from a child witness; plaintiff's claim for personal
property loss; and testimony of plaintiff witnesses Jeanette Glennon and
Courtney Pederzani. The court then granted some other NJAW motions to bar,
including: plaintiff's claim for wage loss; reference to plaintiff's permanent
injury claims; and testimony from certain medical providers based on the parties'
pre-trial stipulations. Defendant withdrew its motion to preclude certain
plaintiff's witness testimony.
The jury trial took six days in 2024. Plaintiff testified. Her other
witnesses included: Joseph Stavola, who testified to plaintiff's estimated
construction costs for repair of her damaged home; Courtney Pederzani, a
neighbor; Madison Zadjeika, plaintiff's daughter; Pat Santorsola, the insurance
A-2181-23
5
adjuster who handled plaintiff's insurance claim; Jason Miller, plaintiff's tree
expert; and Donna Slack, a NJAW representative familiar with NJAW's
property. Defendant's witnesses included: William Ober, a tree crew foreman
for Haddonfield; Gary Szatkowski, a consulting meteorologist; and Webber,
defendant's tree expert.
During trial, the court found plaintiff failed to present evidence of
defendant's violation of a state statute or municipal ordinance and consequently
declined to give a negligence per se charge to the jury. The court also rejected
plaintiff's proposed dangerous instrumentalities or conditions charge, declining
to impose an increased standard of care beyond negligence.
As stated, the jury awarded plaintiff $173,000 in damages, including:
$48,000 in dwelling property damages; $50,000 in loss of use damages; and
$75,000 in quality of life and pain and suffering damages. The jury did not
award plaintiff any sum for personal property damages.
After the verdict, plaintiff moved for additur or, alternatively, a new trial
on personal property damages. The trial court denied the motion, finding:
[Plaintiff's counsel] indicates that there could only be
one reason why the jury did not provide a -- an award
for personal property and that was because of the
introduction of her prior insurance policy. However,
there are . . . any number of reasons why they didn't do
it: Perhaps, they didn't believe her testimony; perhaps,
A-2181-23
6
they felt that there needed to be more information
submitted with regard to what the market value was; or,
perhaps, they relied upon the itemization of information
. . . [of] items that she obtained after the fact as being
not replacement values.
There's . . . no way for this [c]ourt to know why
they made the decision that they made. What this
[c]ourt has to determine is whether that decision was a
manifest denial of justice. And the [c]ourt does not find
that there has been a clear and convincing argument that
there is a manifest denial of justice in this jury award.
After denying the motions, the trial court issued an amended order of
judgment awarding plaintiff $186,298.73.
Plaintiff appeals, arguing that she is entitled to a new trial on various
grounds. She contends that the trial court erred by: granting summary judgment
to the Haddonfield defendants; making evidentiary rulings which deprived
plaintiff of a fair trial; erroneously permitting defense counsel to tell the jury in
summation that plaintiff had received money from her insurance company; and
finally, by not granting plaintiff's motion for additur or a new trial on damages.
Defendant cross-appeals, arguing that the trial court erred by denying its motion
to bar certain witness testimony.
A-2181-23
7
II.
We summarize the relevant review standards and the corresponding legal
principles.
We review the trial court's grant or denial of summary judgment de novo,
applying the same standard used by the trial court. Christakos v. Boyadjis, 262
N.J. 447, 467 (2026). We "consider whether the competent evidential materials
presented, when viewed in the light most favorable to the non-moving party, are
sufficient to permit a rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party[,]" and "accept as true all the evidence which
supports the position of the party defending against the motion and must accord
[that party] the benefit of all legitimate inferences which can be deduced
therefrom[.]" Alloco v. Ocean Beach & Bay Club, 456 N.J. Super. 124, 134
(App. Div. 2018) (second and third alterations in original) (quoting Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 535, 540 (1995)).
We grant summary judgment where "the pleadings, depositions, answers
to interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact challenged and
[where] the moving party is entitled to a judgment or order as a matter of law."
Green v. Monmouth Univ., 237 N.J. 516, 529 (2019) (quoting R. 4:46-2(c)).
A-2181-23
8
We review a trial court's evidentiary rulings for abuse of discretion. State
v. Burney, 255 N.J. 1, 20 (2023) (citing State v. Garcia, 245 N.J. 412, 430
(2021)). "[T]he decision to admit or exclude evidence is one firmly entrusted to
the trial court's discretion." State v. Prall, 231 N.J. 567, 580 (2018) (quoting
Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)).
An abuse of discretion occurs "when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571
(2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d
1260 (7th Cir. 1985)).
When parties fail to object to the admissibility of evidence at trial, we
review admissibility arguments raised on appeal for plain error. See R. 2:10-2;
Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128 (2008) (citing Fertile v.
St. Michael's Med. Ctr., 169 N.J. 481, 493 (2001)). "The mere possibility of
error is insufficient for reversal. We must determine whether, in the interests of
justice, the cited error had the 'clear capacity for producing an unjust result.'"
N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 622 (App. Div.
2010) (quoting Tartaglia, 197 N.J. at 128) (internal quotation marks omitted).
We "may reverse a trial court's judgment if the cumulative effect of a series of
A-2181-23
9
errors is so great as to deprive a defendant of a fair trial." Burney, 255 N.J. at
29 (citing Pellicer v. Saint Barnabas Hosp., 200 N.J. 22, 53 (2009)).
Concerning jury instructions,
[w]e review for plain error the trial court's obligation to
sua sponte deliver a jury instruction when a defendant
does not request it and fails to object at trial to its
omission. State v. Cole, 229 N.J. 430, 455 (2017); State
v. Funderburg, 225 N.J. 66, 79 (2016). To warrant
reversal, the unchallenged error must have been
"clearly capable of producing an unjust result." R.
2:10-2. "The mere possibility of an unjust result is not
enough." Funderburg, 225 N.J. at 79. Rather, "[t]he
possibility must be real, one sufficient to raise a
reasonable doubt as to whether the error led the jury to
a result it otherwise might not have reached." State v.
Macon, 57 N.J. 325, 336 (1971).
[State v. Alexander, 233 N.J. 132, 141-42 (2018)
(citations reformatted).]
"We review de novo an order granting a motion for judgment under Rule
4:40-1." Estate of Barbuto v. Boyd & Boyd, 462 N.J. Super. 580, 587 (App.
Div. 2020) (citing Lechler v. 303 Sunset Ave. Condo. Ass'n, 452 N.J. Super.
574, 582 (App. Div. 2017)). "We review the trial court's grant of . . . defendant's
motion for judgment at trial pursuant to Rule 4:40-1 under the standard that
governs a trial court determining [that] motion[]." Holm v. Purdy, 252 N.J. 384,
400 (2022) (citing Smith v. Millville Rescue Squad, 225 N.J. 373, 397 (2016)).
A motion for judgment at the close of all evidence under Rule 4:40-1 is judged
A-2181-23
10
"by the same evidential standard," which is "[i]f, accepting as true all the
evidence which supports the position of the party defending against the motion
and according [them] the benefit of all inferences which can reasonably and
legitimately be deduced therefrom, reasonable minds could differ, the motion
must be denied." Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Est. of
Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)).
The motion for judgment "standard[s] ensure[] that appellate tribunals
will not overstep their bounds by usurping the jury's task of assessing the
credibility of the witnesses." Sons of Thunder v. Borden, Inc., 148 N.J. 396,
415 (1997). "The point is that the judicial function here is quite a mechanical
one. The trial court is not concerned with the worth, nature or extent (beyond a
scintilla) of the evidence, but only with its existence, viewed most favorably to
the party opposing the motion." Ibid. (quoting Dolson v. Anastasia, 55 N.J. 2,
5-6 (1969)). Such motions "should only 'be granted where no rational juror
could conclude that the plaintiff marshaled sufficient evidence to satisfy each
prima facie element of a cause of action.'" Smith, 225 N.J. at 397 (quoting
Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008)). Stated
differently, "the jury's factual determination will be disturbed only if we find
A-2181-23
11
that the jury could not have reasonably used the evidence to reach its verdict."
Sons of Thunder, 148 N.J. at 415.
"[A] trial judge shall grant the motion [for a new trial] 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." R. 4:49-1(a).
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, 521-22 (2011) (alterations and omissions in
original) (quoting Lindenmuth v. Holden, 296 N.J.
Super. 42, 48 (App. Div. 1996)).]
"A jury verdict is 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 continued viability of the judgment would
constitute a manifest denial of justice.'" Id. at 521 (quoting Baxter v. Fairmont
Food, Co., 74 N.J. 588, 597-98 (1977)).
A-2181-23
12
"[A] trial court may not disturb a damages award entered by a jury unless
it is so grossly excessive or so grossly inadequate 'that it shocks the judicial
conscience.'" Orientale v. Jennings, 239 N.J. 569, 595 (2019) (quoting Cuevas
v. Wentworth Grp., 226 N.J. 480, 485 (2016)). Our Supreme Court has held
that:
[I]n the unusual case where a damages award was
grossly excessive or grossly inadequate, the trial court
retains the power to declare that a jury's damages award
shocks the conscience and to grant a new trial or offer
the parties a remittitur or an additur . . . [U]nless both
parties consent to a remittitur or an additur, the court
must grant a new trial.
[Id. at 593.]
III.
We consider a threshold issue: what is the permissible scope of plaintiff's
appeal, when she has already secured judgment against NJAW and further, has
accepted payment on that judgment?
NJAW argues that plaintiff's acceptance of the $187,494.73 as payment
of the jury's verdict, including costs and pre- and post-judgment interest,
precludes her from appealing trial court orders in a way that would invalidate or
reduce the amount of the judgment. NJAW argues that the only appealable order
A-2181-23
13
is the trial court's denial of plaintiff's motion for a new trial on damages solely
for personal property.
While not included in the record submitted by the parties, we take judicial
notice that an Order to Satisfy Judgment was entered on December 30, 2024.3
The order states:
On examination of the proceedings in the case and the
evidence presented by counsel for the party making
satisfaction, the court finds that [p]laintiff has received
satisfaction of the March 6, 2024 judgment and has
failed to have satisfaction entered of record or a warrant
of satisfaction.
Therefore[,] it is ORDERED that the clerk of
court is directed to make an appropriate entry on the
docket of the satisfaction of the March 6, 2024
judgment.
Given that plaintiff has accepted payment in satisfaction of an order of
judgment against NJAW, we consider the relevant jurisprudence, and its effect
on this record.
The fundamental common law rule is that "a litigant who voluntarily
accepts the benefits of a judgment is estopped from attacking it on appeal."
3
N.J.R.E. 201(b)(4), (c) allows the court to take judicial notice of record of the
court in which the action is still pending and grants the court discretion to take
judicial notice on its own.
A-2181-23
14
Tassie v. Tassie, 140 N.J. Super. 517, 524 (App. Div. 1976). We also noted in
Tassie that
[t]he rule that a litigant cannot seek
appellate review of a judgment under
which he has accepted a benefit is but a
corollary to the established principle that
any act upon the part of a litigant by which
he expressly or impliedly recognizes the
validity of a judgment operates as a waiver
or surrender of his right to appeal
therefrom.
[Id. at 525.]
In Simon v. Simon, 148 N.J. Super. 40, 42 (App. Div. 1977), this court
found that this principle
governs only where the appeal constitutes
a repudiation of the judgment under which
the benefits were received or is materially
inconsistent therewith. Generally,
appellate review is barred where it may
lead to a result showing that appellant is
not entitled to what was received under the
judgment appealed from.
In Adolph Gottscho, Inc. v. Am. Marking Corp., 26 N.J. 229, 242 (1958),
the Court endorsed the right of a "party to accept a sum to which he is in any
event entitled and still pursue his request for a legal ruling on appeal which
would increase that sum."
A-2181-23
15
Applying the law to this record, we conclude that some of plaintiff's
claims on appeal are precluded, while others remain viable. Specifically, issues
which could invalidate the jury's finding that NJAW was negligent or which
reduce the damage awards for loss of plaintiff's dwelling, its use, and mental
health are precluded. They include: (1) introduction of plaintiff's insurance
coverage and proceeds relating to dwelling damages; (2) Webber's testimony on
PSE&G's management of the black oak tree on the question of liability; (3)
cross-examination of plaintiff and her daughter related to plaintiff's mental
health history; and (4) the trial court's decision not to give the jury a limiting
instruction on the relevancy of the mental health testimony.
On the other hand, the issues properly considered are those which: (1)
affect personal property damages; (2) increase the damages award separately
from the damages considered by the jury; (3) add potential theories of NJAW's
liability for the jury to determine; and (4) reinstate the Haddonfield defendants
as to liability.
We unpack the permissible appellate issues in detail here. The claims
which affect only personal property damages include: additur or a new trial on
personal property damages or a new trial based on the introduction of insurance
coverage and proceeds related to personal property. Plaintiff's claim that the
A-2181-23
16
jury should have been able to find damages for wage loss and permanent injury
are also appealable, as they could only increase the damage award. A new trial
to determine NJAW's liability under the doctrines of negligence per se and
dangerous instrumentalities or conditions would not overturn the award as this
would leave the jury's finding of liability based on negligence undisturbed.
Finally, dismissal of the Haddonfield defendants on summary judgment is
appealable if, on a finding that the Haddonfield defendants were wrongly
dismissed, this court limited the jury to apportionment of fault between NJAW
and the Haddonfield defendants.
We address the allegations of trial error first, then the motions for additur
and new trial, and then the dismissal of the Haddonfield defendants under the
TCA.
A.
On appeal, plaintiff argues that the trial court's failure to exclude
testimony related to plaintiff's insurance coverage and proceeds she received
was reversible error. Plaintiff further contends that the jury was improperly
influenced by evidence of plaintiff's prior insurance coverage, and as a result,
found plaintiff at fault for not increasing her personal property insurance
A-2181-23
17
coverage to an amount in excess of $200,000 when she moved back into her
home. She seeks a new trial on damages.
Because plaintiff opened the door by testifying about her insurance
coverage and her receipt of insurance proceeds during the trial, we are
unpersuaded. As plaintiff did not object to defendant's cross-examination of
plaintiff on these issues during trial, we apply a plain error standard of review.
Tartaglia, 197 N.J. at 128.
It is well-settled that "statements bearing upon insurance which have no
relevance to the issues before the jury should be excluded because of their
potential for undue prejudice." Krohn v. N.J. Full Ins. Underwriters Ass'n, 316
N.J. Super. 477, 482 (App. Div. 1998). However, "[s]o long as the insurance is
not featured or made the basis at the trial for an appeal to increase or decrease
the damages, the information would seem to be without prejudice." Runnacles
v. Doddrell, 59 N.J. Super. 363, 368 (App. Div. 1960) (quoting Odegard v.
Connolly, 1 N.W.2d 137, 139 (Minn. 1941)) (internal quotation marks omitted);
see also Krohn, 316 N.J. Super. at 482.
In evaluating the admissibility of evidence, we also rely on the "opening
the door" doctrine, which is a "'a rule of expanded relevancy and authorizes
admitting evidence which otherwise would have been irrelevant or inadmissible
A-2181-23
18
in order to respond to (1) admissible evidence that generates an issue, or (2)
inadmissible evidence admitted by the court over objection.'" State v. Prall, 231
N.J. 567, 582 (2018) (quoting State v. James, 144 N.J. 538, 554 (1996)). "In
other words, it permits 'a party to elicit otherwise inadmissible evidence when
the opposing party has made unfair prejudicial use of related evidence.'" Id. at
582-83 (quoting James, 144 N.J. at 554). "The doctrine is limited, however, by
weighing the probative value against the prejudicial nature of the evidence under
N.J.R.E. 403." Id. at 583 (citing James, 144 N.J. at 554).
Plaintiff testified that she received insurance proceeds for dwelling
property damages and loss of use damages. Santorsola, plaintiff's insurance
adjuster, testified that $5,000 was issued to plaintiff for personal property
damages. During closing, plaintiff used these proceeds as a basis to calculate
damages for the jury: $88,000 in dwelling property damages; $50,000 in loss of
use damages; and $75,000 in personal property damages.
Having introduced insurance evidence at trial herself, plaintiff cannot now
argue that evidence central to her case-in-chief was prejudicial. There was no
plain error to permit the testimony on this issue.
A-2181-23
19
B.
Plaintiff next contends the trial court erred by permitting defendant to
introduce evidence of her reduced insurance coverage to argue that plaintiff's
failure to increase her personal property insurance coverage barred her claim for
personal property damages in the negligence suit. We disagree, and find this
claim without merit.
Because plaintiff's counsel objected to defendant's cross-examination of
her on the subject of her prior insurance coverage, our standard of review is
abuse of discretion. Burney, 255 N.J. at 20; Prall, 231 N.J. at 580.
The court denied defendant's pre-trial motion to preclude plaintiff's claim
for personal property damages on these grounds, finding that using such
evidence to preclude a claim for damages would be improper. However, at trial,
plaintiff introduced the topic of her personal property insurance coverage. She
testified that, prior to the storm, she reduced her coverage limits for personal
property. She did so when she moved out of the home and began renting it to
tenants. Over plaintiff's counsel's objection, the court permitted defendant to
cross-examine plaintiff on this issue.
A-2181-23
20
In its summation, defendant did not rely on plaintiff's failure to change
insurance coverage to argue against the jury's award of personal property
damages. Counsel stated:
So then to get into personal property, the claim for
personal property. You heard Mr. Santorsola tell you
that he knew right away she had $5,000 in coverage for
personal property, and he knew right away the house
was destroyed. $5,000 is done, no question. There's
more than $5,000 in damage.
So he told you that for some reason the insurance
company asked [plaintiff] to create a handwritten
inventory of her -- her damages, even though they
weren't going to look at it. He told you that. That he
didn't look at it. He said no one reviewed it, no one
inspected it, no one audited it.
And so when the [j]udge is going to instruct you
on the law and -- and he will instruct you. That's --
that's who you listen to. But he's going to tell you that
personal property is valued, determined by market
value of the product.
What is market value? Did plaintiff provide you
with any evidence of the market value to assist you in
reaching a decision? No. Plaintiff prepared the
inventory herself and she assigned the values to the
items on that inventory. Now, she did tell you that she
looked up items on the Internet to get the value, but she
didn't print them out. She didn't supply them to the
insurance company. She didn't supply them to us here.
You're not going to see them. You're not going to see
any of the -- the support that [plaintiff] had for those
items and for those values that she assigned to her
inventory. So you really have no evidence to consider
A-2181-23
21
to substantiate a market value for any of her alleged
personal property losses.
Given that plaintiff opened the door to the change in insurance coverage
evidence and that there is no evidence that defendant used that evidence to argue
for the decrease in plaintiff's personal property damages, Krohn, 316 N.J. Super.
at 482, we conclude that the trial court did not abuse its discretion in permitting
defendant's questioning on the issue.
C.
Plaintiff next argues that the trial court abused its discretion when it
permitted Webber, defendant's tree expert, to testify regarding PSE&G's
management of the black oak tree. Plaintiff contends permitting Webber to
testify exposed the jury to potential confusion about whose duty it was to
maintain the tree, thereby prejudicing plaintiff. We are unconvinced.
Webber's testimony, in response to questions regarding maintenance and
management of the black oak, was simple. We recite the relevant colloquy from
the direct examination here:
[WEBBER]: Yeah. The bottom line is your
communication lines. And then the upper lines above
. . . those are what’s called primary lines. And the lines
below . . . are secondary lines. And so . . . electrical
distribution [must] be pruned for clearance because you
can't move electricity from Point A to Point B if . . . a
tree is touching it. So, for years, this tree was pruned
A-2181-23
22
by the utility. Really, half the tree was being managed
by the power company.
[DEFENSE COUNSEL]: So, in 2010, when this
photograph was taken and Haddonfield owned that tree,
would Haddonfield had been able to prune that tree
around those electrical wires?
[WEBBER]: No.
....
[DEFENSE COUNSEL]: What's your next conclusion,
sir?
[WEBBER]: The evidence, in this case, shows that the
party that managed the subject tree and was pruning it
was the Electrical Supply Utility of New Jersey,
PSE&G. Evidence, in this case, indicates that PSE&G
removed leaves, branches, and limbs away from the
conductors of PSE&G.
[DEFENSE COUNSEL]: And then the next conclusion
follows that; doesn't it, sir?
[WEBBER]: Yes.
[DEFENSE COUNSEL]: And what does that say?
[WEBBER]: The property owner [NJAW] was not
allowed to remove or prune the subject tree since it was
so close and associated with the poles and conductors
of PSE&G.
The record shows that Webber simply discussed PSE&G's responsibility
for maintaining its electrical wire right of way, what entities could not trim or
A-2181-23
23
prune around the electrical wires, and PSE&G's coordination with defendant
about maintenance of the tree. Plaintiff did not object to any of this testimony.
Indeed, plaintiff cross-examined Webber regarding his testimony.
This court is mindful that "[t]he absence of an objection suggests that trial
counsel perceived no error or prejudice" and that their failure to object
"prevented the trial judge from remedying any possible confusion in a timely
fashion." Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573-74 (App. Div.
1995). "[R]elief under the plain error rule, at least in civil cases, is discretionary
and should be sparingly employed." Bldg. Materials Corp. of Am. v. Allstate
Ins. Co., 424 N.J. Super. 448, 487 n.14 (App. Div. 2012) (alteration in original)
(quoting Gaido v. Weiser, 115 N.J. 310, 311 (1989)).
We conclude that the trial court committed no plain error by permitting
Webber 's testimony.
D.
Plaintiff next raises arguments related to her claim for damages stemming
from her mental and emotional injury she allegedly suffered because of the trees
collapsing on her home.
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i.
She first contends that the trial court committed plain error when it
permitted plaintiff and her daughter to be cross-examined about topics she
contends were not relevant, and may have prejudiced her with the jury. The
topics included, but were not limited to, incidents related to plaintiff's work and
home life. We find these claims without merit, as plaintiff's complaint sought
damages for pain and suffering and "mental anguish" flowing from defendants'
acts.
Trial courts are afforded broad discretion in controlling cross-
examination. State v. Jenewicz, 193 N.J. 440, 467 (2008). When there is no
objection to counsel's cross-examination, this court applies the plain error rule
and reverses only if the course followed by defense counsel was "of such a
nature as to have been clearly capable of producing an unjust result." R. 2:10-
2; Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 318 (2006) (citing R. 1:7-
5).
A jury may compensate a plaintiff for "pain, suffering, disability,
impairment, and loss of enjoyment of life proximately caused by defendant's
negligence (or other fault)." Model Jury Charges (Civil), 8.11E, "Disability,
Impairment and Loss of the Enjoyment of Life, Pain and Suffering" (rev. May
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2017) (emphasis added). As such, the evidence introduced on cross-examination
was relevant in determining whether plaintiff's mental anguish was caused by
the June 3, 2020 incident, or unrelated events. Plaintiff fails to show how the
events were prejudicial. She further fails to show how this evidence was "clearly
capable of producing an unjust result." R. 2:10-2.
ii.
Plaintiff also argues that the trial court committed plain error by not
issuing a limiting instruction sua sponte which would limit the relevancy of
plaintiff's mental health history during their deliberations. We find this
argument without merit. We comment briefly.
Our jurisprudence holds that, to find plain error in a trial court's failure to
issue a jury instruction sua sponte, "[t]he possibility [of an unjust result] must
be real, one sufficient to raise a reasonable doubt as to whether the error led the
jury to a result it otherwise might not have reached." Alexander, 233 N.J. at 142
(first alteration in original) (quoting Macon, 57 N.J. at 336). Pain and suffering
damage awards are to be left in the "sound discretion" of the jury, Model Jury
Charges (Civil), 8.11E, at 2-3. Given that the jury awarded plaintiff $75,000 in
pain and suffering damages, we conclude there is no basis for plaintiff to argue
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that the failure to issue a limiting instruction jury charge led to an unjust result.
The record confirms that no plain error occurred.
E.
Plaintiff contends that the trial court erred when it granted defendant's
motion during the charge conference to preclude jury instructions on negligence
per se and dangerous instrumentalities or conditions theories. We consider each
argument in turn.
i.
Plaintiff argues that "New Jersey law allows a judge to charge negligence
per se claim [sic] based on the existence of a town ordinance." 4 Plaintiff then
avers that "[t]here was a reasonable basis in the evidence for the jury to make a
'highly destructive agency' finding, therefore; the court erred in denying this
charge." We disagree.
Plaintiff argues that defendant violated Haddonfield, N.J., Code § 173-11,
specifically subsections H and J. The ordinance and relevant subsections read
as follows:
4
In her merits brief, plaintiff does not cite to any local ordinance that NJAW
may have violated, nor does she cite to any case law for this proposition. Based
on plaintiff's appendix, plaintiff argued in her initial complaint that defendant
had violated Haddonfield, N.J., Code § 173-11, "Standard for maintenance".
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The following standards for maintenance of a premises
shall be the minimum conditions for maintenance of
each and every premises within the Borough of
Haddonfield. It shall be a violation of this Property
Maintenance Ordinance for any owner, operator or
occupant to allow or permit any premises owned,
operated or occupied by such person or entity to fail to
comply with each of the following standards. It shall
further be a violation of this Property Maintenance
Ordinance for any owner or occupant to occupy or, as
an owner or operator, to permit or allow another to
occupy or use premises which do not comply with each
of the following standards:
....
H. All areas shall be kept free from weeds or plant
growth which is noxious, dangerous or detrimental to
the public health and safety.
....
J. The exterior of all premises shall be kept free of the
following materials and conditions:
....
(6) Dangerously loose and
overhanging objects on private property,
including but not limited to dead trees or
tree limbs; accumulations of ice or any
object, natural or man-made, which could
threaten the health and safety of persons if
caused to fall; or other similar dangerously
loose or overhanging object which, by
reason of its location above ground level,
constitutes an actual hazard to persons or
vehicles in the vicinity thereof.
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In New Jersey,
[n]egligence per se . . . is limited to the exceptional
situation in which the Legislature has incorporated a
common law standard of care into a statute. In the usual
case, violation of a statute is only evidence of
negligence, and only if the statutory violation was
"causally related to the happening of the accident."
[Labega v. Joshi, 470 N.J. Super. 472, 491-92 (App.
Div. 2022) (quoting Mattero v. Silverman, 71 N.J.
Super. 1, 9 (App. Div. 1961)).]
Plaintiff fails to support her claim that defendant's breach of the ordinance
could constitute negligence per se. The jury charge that plaintiff sought
specifically states that "the plaintiff, in support of the claim of negligence made,
asserts that defendant violated a provision of the New Jersey Administrative
Code/New Jersey Statutes [whichever is applicable]." Model Jury Charge
(Civil), 5.10I(1), "Evidence of and Per Se Negligence" (approved Apr. 2016).
The subject ordinance is neither a statute nor a regulation. Under this charge,
plaintiff's claim would have failed as she argues that defendant violated a
municipal code. We conclude that the trial court's rejection of plaintiff's
proposed jury instruction was not error.
ii.
Plaintiff argues that the trial court erred when it did not instruct the jury
on "highly destructive agency." We are unpersuaded, as plaintiff failed to plead
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this theory against NJAW. Here, plaintiff brought a claim for dangerous
conditions against the Haddonfield defendants pursuant to the TCA, but no
claim for "dangerous instrumentalities or conditions" against NJAW. The trial
court committed no error when it denied, at the charge conference, inclusion of
the Model Jury Charges (Civil), 5.20H, "Dangerous Instrumentalities or
Conditions" (approved before 1983) 5 in the instructions slated to go before the
jury.
F.
Plaintiff argues that the trial court erred when it denied plaintiff's motion
for additur or a new trial. She contends that "[t]he verdict returned by the jury
[on personal property] was so against the evidence that it constituted a clear
miscarriage of justice" and that "the jury's award . . . shocks the judicial
conscience and additur should have been granted . . . ." Plaintiff focuses on the
jury's award of zero dollars for personal property damages, insisting that the
court's failure to exclude evidence of plaintiff's insurance coverage led to the
jury's decision not to award personal property damages.
We consider the relevant law.
5
"Whoever uses a highly destructive agency is held to a correspondingly high
degree of care toward all persons who in the exercise of their lawful right may
come in contact with it." Model Jury Charges (Civil), 5.20H(A).
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In addressing damages, "where harm is done to personal property, the
Restatement (First) of Torts, § 928 (A.L.I. 1939) provides that the plaintiff be
given an option to recover either the diminution in value or the reasonable cost
of repairs." Berg v. Reaction Div., Thiokol Chem. Corp., 37 N.J. 396, 411-12
(1962) (citation reformatted).
Model Jury Charges (Civil), 8.44(A), "Personal Property" (approved Mar.
1975), similarly provides:
If you ultimately find the plaintiff's personal property
was damaged as a result of the defendant's negligence,
plaintiff would be entitled to your verdict. Plaintiff
would be entitled to money damages from the defendant
for the loss suffered.
The measure of damages for such loss is the
difference between the market value of the personal
property before and the market value after the damage
occurred. If the personal property has no market value
in its damaged condition, the measure of damages is the
difference between the market value of the personal
property before the damage occurred and its salvage
value in its damaged condition. If the personal property
is not substantially damaged and it can be repaired at a
cost less than the difference between its market value
before and its market value after the damage occurred
the plaintiff's damage would be limited to the cost of
the repairs.
Regarding proofs relating to value, our jury charges provide:
In determining the amount of money, if any, to be
awarded the plaintiff (owner) for the damage to his/her
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personal property, you may consider, but are not bound
by, the testimony of the plaintiff (owner) as to his/her
opinion of the value of the property before and after it
was damaged.
[Model Jury Charges (Civil), 8.44(B), "Personal
Property" (approved Mar. 1975).]
The charge specifically advises the judge that
[t]he owner of personal property may be permitted to
testify as to its value before and after damage where
such personal property is "of a common class or in
general daily use," in the court's discretion, but not
where the owner has not the slightest knowledge of
such value . . . . Rodgers v. Reid Oldsmobile, Inc., 58
N.J. Super. 375, 385 (App. Div. 1959) and Nixon v.
Lawhon, 32 N.J. Super. 351, 356 (App. Div. 1954).
[Ibid. (citations reformatted).]
Our Supreme Court has stated that "[a] trial court may not disturb a
damages award entered by a jury unless it is so grossly excessive or so grossly
inadequate 'that it shocks the judicial conscience.'" Orientale, 239 N.J. at 595
(emphasis added). In reviewing a trial court's decision on a motion for additur
or a new trial, "an appellate court must pay some deference to a trial judge's 'feel
of the case.'" Cuevas, 226 N.J. at 501 (quoting Johnson, 192 N.J. at 282).
Here, plaintiff introduced into evidence personal property inventory
worksheets and retail receipts for replacement items to support her claim for
personal property damages. Plaintiff testified on cross-examination that all the
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receipts she presented were for items she purchased after the storm. In denying
the motion for additur or a new trial, the court determined found there were
any number of reasons why [the jury] didn't [award
personal property damages]: Perhaps, they didn't
believe [plaintiff's] testimony; perhaps, they felt that
there needed to be more information submitted with
regard to what the market value was; or, perhaps, they
relied upon the itemization of information that -- or doc
-- items that she obtained after the fact as being not
replacement values.
We view the totality of the evidence in the light most favorable to the non-
moving party, Jastram v. Kruse, 197 N.J. 216, 229 (2008) (citing Johnson, 192
N.J.at 281), and we give deference to the trial court in these matters. Cuevas,
226 N.J. at 501. We agree with the trial court's analysis that the court cannot
second guess the jury's determination not to award personal property damages .
We find no error by the trial court in denying plaintiff's post-trial motion.
G.
i.
Plaintiff argues that the trial court erroneously dismissed the claims
against the Haddonfield defendants on summary judgment. Plaintiff argues for
the first time on appeal that the Haddonfield defendants were responsible for the
pin oak which was struck by the black oak and fell onto her house. We find
plaintiff's claims unpersuasive.
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We "will decline to consider questions or issues not properly presented to
the trial court when an opportunity for such a presentation is available unless
the questions so raised on appeal go to the jurisdiction of the trial court or
concern matters of great public interest." Zaman v. Felton, 219 N.J. 199, 226-
27 (2014) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)). The record shows
that this issue was not raised below. In fact, plaintiff's counsel disavowed this
trial strategy, because such a theory could have ensnared plaintiff in a
comparative negligence trap.
In her complaint, plaintiff stated that she sought "to recover . . . damages
from the defendants, [NJAW] for its negligence in maintaining the subject Black
Oak and [Haddonfield defendants] for their handling of a dangerous condition."
(Emphasis added). Prior to trial, plaintiff's counsel argued against NJAW's
comparative negligence defense, positing to the trial court that the pin oak had
no causal connection to the damages plaintiff suffered. In argument before the
court, the following colloquy ensured:
[PLAINTIFF'S COUNSEL]: With regard to the way
Your Honor articulated counsel’s argument that it deals
with her pin oak, there's no one to suggest here that the
pin oak had anything to do with the causation of this
issue. The pin oak didn't start the transition -- or
transition from falling. The black oak [fell] on the pin
oak. So if she had an obligation to the pin oak, fine.
She's the property owner, fine. But the pin oak didn't
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34
do anything. It happens to be in place between the
black oak, which was diseased, and fell onto the pin oak
and knocked [the pin oak] into her house.
So the -- that’s a red herring that the pin oak had
anything to do with this incident. There's no causation
between the condition of the pin oak beforehand and the
eventual accident.
THE COURT: Well, if both trees hit her house, then
isn't there some damage that can be assessed towards
the pin oak and some that's assessed for the black oak?
[PLAINTIFF'S COUNSEL]: Not from a proximate
cause. They don't have anybody coming in here saying
that because you didn’t trim this tree down, your house
wasn't completely destroyed. No one is disputing that
the black oak knocked the pin oak over. The fact that
you happened to be in that -- you know, I'm sitting in
that traffic, Judge, and I get rear-ended and I get
knocked into the other car in front of me, I'm not at fault
for that. I didn't do anything. That car parked there
didn't do anything wrong.
"The doctrine of invited error operates to bar a disappointed litigant from
arguing on appeal that an adverse decision below was the product of error, when
that party urged the lower court to adopt the proposition now alleged to be error."
N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. at 340 (quoting Brett v.
Great Am. Recreation, 144 N.J. 479, 503 (1996)). The doctrine is clearly
implicated here. In her attempt to rejoin the Haddonfield defendants, plaintiff
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cannot argue prior to trial that the pin oak was irrelevant to her theory of the
case, then argue on appeal that it is.
ii.
Plaintiff next raises a series of claims on appeal regarding the TCA
immunities that the Haddonfield defendants are entitled to raise. She first argues
that they should have been estopped from raising TCA immunities, and then,
with her theories of liability intact, contends that she should have been able to
pursue pain and suffering-related damages. These arguments are without merit.
Plaintiff cites to no provision of the TCA in her merits brief or reply brief, and
does not address the immunities under which the trial court granted the
Haddonfield defendants summary judgment.
"'[A]n issue not briefed is deemed waived.'" Arsenis v. Borough of
Bernardsville, 476 N.J. Super. 195, 204 n.3 (App. Div. 2023) (first citing
Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2023); and
then citing Telebright Corp. v. Dir., N.J. Div. of Tax., 424 N.J. Super. 384, 393
(App. Div. 2012)). Because plaintiff failed to properly raise the applicability of
the TCA immunities, we need not address it. It follows that plaintiff's pain and
suffering claims against the Haddonfield defendants also are without merit on
appeal.
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Any of plaintiff's remaining claims not addressed here lack sufficient
merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
IV.
We turn to defendant's cross-appeal.
Defendant argues that the trial court's decision to permit Jeanette Glennon
and Courtney Pederzani "to offer testimony regarding what the condition of the
black oak tree was prior to the June 3, 2020 storm" was an abuse of discretion
that requires a new trial on liability because defendant was not made aware they
would testify. After a review of the record on this issue, we find this argument
without merit.
"When faced with a surprise witness, possible sanctions to be explored by
the trial court include . . . exclud[ing] the testimony if such an outcome is just
and reasonable." Wymbs v. Twp. of Wayne, 163 N.J. 523, 543 (2000) (citing
Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 581 (App. Div. 1995)).
Factors that would "'strongly urge' the trial judge, in the
exercise of his discretion, to suspend the imposition of
sanctions, are (1) the absence of a design to mislead,
(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."
[Id. at 544 (quoting Westphal v. Guarino, 163 N.J.
Super. 139, 146 (App. Div. 1978)).]
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"The discovery rules 'were designed to eliminate, as far as possible,
concealment and surprise in the trial of lawsuits to the end that judgments therein
be rested upon the real merits of the causes and not upon the skill and
maneuvering of counsel.'" Id. at 543 (quoting Evtush v. Hudson Bus Transp.
Co., 7 N.J. 167, 173 (1951)).
In permitting the testimony of the witnesses, the court found that, because
defendant had already deposed both witnesses four months before trial, there
would be no surprise from letting them testify.
The trial court properly exercised its discretion when it permitted
plaintiff's witnesses, Glennon and Pederzani, to testify.
Affirmed.
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