JERSEY CENTRAL POWER & LIGHT COMPANY VS. HAROLD A.PONTECORVO(L-3553-11, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5620-14T3

JERSEY CENTRAL POWER &
LIGHT COMPANY,

Plaintiff-Appellant,

v.

HAROLD A. PONTECORVO and
HAPCO FENCE CONTRACTORS, INC.,

Defendants-Respondents.
_______________________________

Argued March 2, 2017 - Decided June 9, 2017

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
3553-11.

Mark B. Watson argued the cause for appellant
(Daniel F. Sahin, P.C., attorneys; Mr. Watson
and Daniel F. Sahin, on the briefs).

Stephen J. Foley, Jr., argued the cause for
respondents (Campbell, Foley, Delano & Adams,
LLC, attorneys; Mr. Foley, on the brief).

PER CURIAM
 Plaintiff, Jersey Central Power & Light Company, appeals from

a no cause of action jury verdict in this damages only trial.

Plaintiff's complaint sought recovery of the cost to replace a

utility pole, which defendant Harold A. Pontecorvo hit, while

operating a Jeep owned by his business Hapco Fence Contractors,

Inc. The judge informed the jury "the defendant was negligent

when he backed into the pole." The jury was to determine whether

defendant's negligence proximately caused damage to the pole,

which plaintiff replaced, and returned a no cause of action

verdict.

On appeal, plaintiff argues the verdict was against the weight

of the evidence, asserts the trial judge's evidential decisions

were erroneous, and the misleading jury verdict form "placed an

erroneous burden of proof upon [plaintiff] to prove something that

was not an essential element of its cause of action."

We have considered these arguments in light of the record and

applicable law. We affirm.

I.

On the evening of November 15, 2009, defendant, while making

a K-turn, backed into a utility pole owned by plaintiff. Defendant

left the scene and returned to his nearby home without reporting

the collision.

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 An anonymous caller notified the Red Bank Police Department,

and Officer George Trevostio responded to the scene. He observed

the pole and believed the damage was "serious enough" for the

police department to contact plaintiff "to evaluate the damage to

the pole." Officer Trevostio acknowledged he routinely patrolled

the area and had not previously noticed damage to this pole, but

admitted on cross-examination he could not specifically recall the

condition of the pole prior to the collision.

Officer Trevostio identified a photograph of the pole, as

depicting the condition he saw on the night of the accident. The

same night, he located and inspected defendant's Jeep, stating

"[t]he tailgate of the Jeep was dented pretty well, and the rear

glass was broken out." Officer Trevostio was on the scene when

plaintiff's representatives arrived, shortly after 9:30 p.m., to

assess the damage.

Plaintiff's employee, lineman Dillon Urzua, also testified.

He and other employees performed work on the junction pole,

starting on September 16, 2010. By that date, plaintiff had

installed a second pole, latched to the first which was struck by

defendant's vehicle, "because the [original] pole [wa]s falling

over." Urzua agreed the previously introduced photograph

accurately depicted the pole when he first saw it, and stated:

"The [old] pole was in a cracked position. There was sheer, like

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basically like you could tell it was a car/pole accident,

obviously. And the pole was leaning . . . . [T]he bottom part[,]

which we call . . . the butt, was cracked. I would say a few feet

up."

Urzua stated the old pole "could not be repaired, it had to

be replaced. So a new pole had to be installed and the facilities

had to get transferred over." He detailed his role in transferring

"every wire, one at a time" from the damaged junction pole to the

new one, which included scheduling equipment, obtaining material,

notifying affected customers of power outages, allowing the

telephone carrier to transfer its lines to the new pole, and

removing the damaged pole.

On cross-examination, Urzua stated he did not inspect the

original pole until ten months after it was struck and did not

view the pole's condition "before they latched it" to the new

pole. He also responded to questions regarding certain items

listed as replaced by plaintiff and certain charges for items

Urzua agreed were not used, but which were invoiced to defendant.

For example, Urzua stated one "cross-arm" was installed on the new

pole, and he had no idea why the invoice defendant was sent stated

three were used.

Simone Whittaker, a claims adjuster for plaintiff, next

testified. She described her job "recoup[ing] the cost of damages

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sustained to [plaintiff]'s facilities." Whittaker identified a

claims invoice and replacement cost report generated by plaintiff

regarding the pole struck by defendant's vehicle. In replacing

the pole, plaintiff billed defendant for $24,768.67, broken down

as $19,239.62 for labor; $2,057.18 for equipment use; $2,693.59

for materials and miscellaneous costs; and $778.28 for outside

contractors, who performed road flagging services.

On cross-examination, Whittaker admitted she did not check

the accuracy of the charges for labor or equipment, but relied on

the computer program to record and add the items accurately. She

also could not explain why the invoice listed three-cross arms.

Further, she was unaware of photographs taken of the pole on the

night of the accident or before the second pole was erected.

Finally, in checking prior incidents regarding damage to this

pole, Whittaker only checked reported damage during the six-month

period before defendant's accident.

Defendant testified in his own defense. He lived close by

and was very familiar with the junction pole's location.

Describing the incident, he stated the streetlight was out, and

he did not see the junction pole as he backed the Jeep. Defendant

noted, "[T]he way the pole was situated, the way it was close to

the curb, the windshield wiper mechanism on the back glass actually

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had come in contact with the pole which caused the window glass

to shatter, and then dented the hatch."

Defendant also described the pole's condition prior to the

accident. Noting "[i]t was an older pole," he stated he always

looked at it, remarking "it was almost leaning over at the top.

And I said, man, if they put any more stuff on that pole, it's

going to break right off." To him there was no change in the pole

before and after the accident. "In the days after the accident,"

defendant looked at the pole in "the daylight," stating it looked

the "[s]ame as it always did[,]" a condition he suggested existed

for "five, ten years."

At the close of evidence, the parties cross-moved for

judgment. The court denied both motions because conflicting

evidence regarding proximate cause and damages was introduced.

Following summations, the final jury charge and verdict sheet was

issued. The jury submitted two questions. The judge responded

to the questions and the no cause verdict was returned less than

eight minutes later.

Plaintiff moved for judgment notwithstanding the verdict or

a new trial. Following argument, the motions were denied. This

appeal followed.

II.

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 Plaintiff argues its proofs "unequivocally proved damages and

proximate cause," therefore the judge erroneously denied it motion

for judgment. We disagree.

This court reviews a trial judge's decision regarding a motion

for directed verdict, R. 4:40-1, or a motion for judgment

notwithstanding the verdict, R. 4:40-2, guided by "the same

standard that governs the trial courts." Frugis v. Bracigliano,

177 N.J. 250, 269 (2003). We accept as true all evidence presented

by the non-moving party, along with the legitimate inferences

drawn from those facts, then determine whether the proofs were

sufficient to sustain a judgment in favor of the moving party.

Monaco v. Hartz Mountain Corp., 178 N.J. 401, 413 (2004). "[T]he

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." Dolson v.

Anastasia, 55 N.J. 2, 5-6 (1969).

Plaintiff's burden to prove negligence requires proof "(1)

that the defendant owed a duty of care; (2) that the defendant

breached that duty; (3) actual and proximate causation; and (4)

damages." Fernandes v. DAR Dev. Corp., 222 N.J. 390, 403-04

(2015). Here, the first two elements were stipulated and the

trial evidence focused on the last two.

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 "Traditionally, proximate cause has been defined 'as being

any cause which in the natural and continuous sequence, unbroken

by an efficient intervening cause, produces the result complained

of and without which the result would not have occurred.'" Conklin

v. Hannoch Weisman, 145 N.J. 395, 418 (1996) (quoting Fernandez

v. Baruch, 96 N.J. Super. 125, 140 (1967), rev'd on other grounds,

52 N.J. 127 (1968)). Damages must be those attributed to the

negligent act.

On damages, plaintiff recites "the sundry rules for measuring

damages are subordinate to the ultimate aim of making good the

injury done or loss suffered and hence '[t]he answer rests in good

sense rather than in a mechanical application of a single

formula.'" N.J. Power & Light Co. v. Mabee, 41 N.J. 439, 441

(1964) (quoting 525 Main St. Corp. v. Eagle Roofing Co., 34 N.J.

251, 255 (1961)). Relying on Mabee, plaintiff suggests replacement

cost was an appropriate measure of damages. See Id. at 442

(permitting evidence of replacement cost of a damaged utility pole

after rejecting the defendant's argument that depreciation was

necessary to reduce any damage award).

The issue here is not whether proof of replacement cost was

appropriate or even whether plaintiff's evidence established this

measure. The issue was whether the junction pole was so damaged

by defendant's negligence to require replacement. Although

8 A-5620-14T3
Officer Trevostio testified his investigation suggested the damage

was "serious enough" for plaintiff to be called, and records showed

plaintiff's employees were at the scene that night and the next

day. Plaintiff provided neither direct testimony nor documents

establishing the pole needed replacement as a result of defendant's

accident. Defendant refuted this circumstantial evidence and the

necessity of replacing the pole. Defendant's position the pole's

condition remained unchanged from that existing before the

accident was presented through cross-examination, demonstrating

the accident did not disrupt utility service, and plaintiff's

trial witnesses had no knowledge of the pole's condition until ten

months after the accident. Further, defendant challenged the

accuracy of the invoice claimed to capture plaintiff's damages.

During the motion for a new trial, plaintiff's evidence was

assessed by the trial judge, who correctly determined credibility

was at issue, and other material factual disputes existed for the

jury to decide. See Alves v. Rosenberg, 400 N.J. Super. 553, 566

(App. Div. 2008). Because reasonable minds could differ,

plaintiff's motion was properly denied. Dolson, supra, 55 N.J.

at 5-6.

In a related argument, plaintiff asserts the jury's verdict

was against the weight of the evidence and its post-trial motion

for a new trial was erroneously denied. We disagree.

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 A trial judge's decision regarding a motion for a new trial,

must remain mindful of the substantial deference accorded a jury

verdict. Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506,

521 (2011). Trial judges must refrain from substituting their own

conclusions for that of the jury "merely because he [or she] would

have reached the opposite conclusion . . . ." Ibid. (quoting

Dolson, supra, 55 N.J. at 6). The verdict "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." Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977).

Accordingly, "a motion for a new trial should be granted only

after '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.'" Risko, supra, 206 N.J. at 521 (quoting R. 4:49-1(a)).

Our review of these decisions is guided by a similar standard.

R. 2:10-1 (requiring "a miscarriage of justice under the law" for

reversal of order regarding a motion for a new trial).

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 [the] manifest lack of

10 A-5620-14T3
 inherently credible evidence to support the
finding, obvious overlooking or under-
valuation of crucial evidence, [or] a clearly
unjust result. . . .'"

[Risko, supra, 206 N.J. at 521 (quoting
Lindenmuth v. Holden, 296 N.J. Super. 42, 48
(App. Div. 1996)).]

As demonstrated by the previous discussion, competing

evidence was presented on the issues in dispute from which the

jury could conclude plaintiff did not prove (1) defendant's

negligence solely caused the damage requiring the pole's

replacement; or (2) if limited damage was caused by defendant's

Jeep, the extent and nature of the damage suffered. In this light,

the jury could rely on defendant's testimony the pole was unchanged

after he backed his vehicle into it or that the pole's age and

prior condition, as well as later wear and tear after the accident,

necessitated its replacement. We reject the notion this verdict

is a miscarriage of justice, R. 2:10-1, and we conclude plaintiff's

motion for a new trial was properly denied.

Next, plaintiff challenges the verdict sheet submitted to the

jury. We provide the following facts to add context.

During the charge conference, plaintiff requested a charge

instructing:

New Jersey permits a public utility to recover
for the cost it expends to replace a pole that
was damaged by a third party through its own
negligence regardless of the age or condition

11 A-5620-14T3
 of the pole prior to the accident. Since the
previous motion for summary judgment has
established liability, you must not consider
any testimony regarding the condition or age
of the pole prior to the date of the accident.

See Mabee, supra, 41 N.J. at 442 (concluding the condition and age

of the pole prior to the date of the collision were not relevant

when computing the cost of replacement). The judge declined

plaintiff's request concluding, unlike Mabee, in this case "there

are substantial fact questions as to the actual damages to the

pole" and "there is no presumption of replacement of the pole."

The verdict sheet was also discussed. The form asked the

jury to answer three questions: (1) "Has plaintiff proven by a

preponderance of the evidence that [defendant's] negligence was a

proximate cause of damage to its utility pole?"; (2) "Has plaintiff

proven by a preponderance of the evidence that its pole was damaged

to such an extent that it required replacement?"; and (3) "What

amount of money will fairly and reasonably compensate plaintiff

for any damages to its utility pole caused by the accident of

November 15, 2009?"

The judge then advised the parties of the charge he intended

to issue. There was no objection. Because plaintiff did not

object to the language used on the verdict sheet, our review is

narrowed, and we consider whether the questions presented

satisfied the plain error standard of R. 2:10-2. See also R.

12 A-5620-14T3
1:7-2. We must determine whether the error "of such a nature as

to have been clearly capable of producing an unjust result." Ibid.

We conclude it did not.

"[T]he judge has the ultimate responsibility for insuring the

correctness of the verdict sheet." Benson v. Brown, 276 N.J.

Super. 553, 565 (App. Div. 1994). "[I]nterrogatories to a jury

are not grounds for reversal unless they were misleading,

confusing, or ambiguous." Sons of Thunder v. Borden, Inc., 148

N.J. 396, 418 (1997). Accordingly, when "reviewing an

interrogatory for reversible error, [this court] should consider

it in the context of the charge as a whole[,]" because an "accurate

and thorough jury charge often can cure the potential for confusion

that may be present in an interrogatory." Ponzo v. Pelle, 166

N.J. 481, 491 (2001) (citing Sons of Thunder, supra, 148 N.J. at

415-

20). Therefore, we will not disturb the jury's verdict based

on a trial judge's instructional error "where the charge,

considered as a whole, adequately conveys the law and is unlikely

to confuse or mislead the jury, even though part of the charge,

standing alone, might be incorrect." Fischer v. Canario, 143 N.J.

235, 254 (1996). The same standard applies when evaluating the

adequacy of a jury's interrogatories or verdict sheet. Mogull v.

CB Commercial Real Estate Grp., Inc., 162 N.J. 449, 467-68 (2000).

13 A-5620-14T3
 Plaintiff's argument focuses on the second jury question

regarding proof of the need to replace the pole. Plaintiff

suggests the question inaccurately enhanced the burden of proof

and misled the jury. Plaintiff points to the deliberation

questions, as support for its assertion "the jury was erroneously

hung up on this notion of proving replacement in order to

demonstrate [the pole] was damaged."

Throughout trial, plaintiff's presentation sought the cost

to replace the pole as its measure of damages. The judge's

instruction to the jury was consistent with this position. The

trial judge explained:

The plaintiff here alleges that it was
required to replace its utility pole and the
equipment pertinent thereto as a result of the
defendant's negligence. Plaintiff therefore
seeks all of the costs associated with
replacement of the pole, and its equipment.
In order to recover such costs, plaintiff must
prove by a preponderance of the credible
evidence that its pole was damaged in the
accident, and such damage necessitated the
replacement of the pole and its equipment. If
the plaintiff fails to prove either that the
pole was damaged, or that it was damaged to
such an extent that replacement was required,
your verdict must be for the defendant.

There was no evidence or argument offered by plaintiff suggesting

otherwise.

Once the charge was issued, the judge asked whether "[e]ither

[c]ounsel wish[ed] to be heard," or whether either had "any

14 A-5620-14T3
exceptions?" Plaintiff's counsel said, "Nothing, Your Honor."

The absence of an objection suggests no perceived error or

prejudice was present. Bradford v. Kupper Assocs., 283 N.J. Super.

556, 573–74 (App. Div. 1995). Now on appeal, after an adverse

verdict was rendered, plaintiff changes its position.

"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." Brett v. Great

Am. Rec., 144 N.J. 479, 503 (1996). "[W]here error was advanced

to secure a tactical advantage at trial, the party responsible

will not be permitted to complain on appeal." Ibid.

Following our examination of the record as a whole, we decline

to entertain plaintiff's change of heart as a basis for reversal.

We do not agree the record reflects "a miscarriage of justice

under the law," R. 2:10-1, requiring a new trial.

Finally, we conclude plaintiff's remaining arguments lack

sufficient merit to warrant extensive discussion in our opinion.

R. 2:11-3(e)(1)(E). We provide these brief comments.

Plaintiff asserts the judge should have permitted questioning

regarding defendant's lack of automobile insurance, which

plaintiff believes affects his credibility and motive to leave the

scene of the accident. These arguments are undercut because

15 A-5620-14T3
liability was not an issue. Moreover, the trial judge properly

considered the relevance of the evidence, see N.J.R.E. 411,1 and

"whether its probative value was substantially outweighed by its

prejudicial nature." Wenz v. Allstate Ins. Co., 316 N.J. Super.

570, 574 (App. Div. 1998) ("[A]s a general rule, the probative

value of information regarding whether a person is insured or not

is substantially outweighed by the potential for undue prejudice."

(quoting Krohn v. N.J. Full Ins. Underwriters Assoc., 316 N.J.

Super. 477, 481-82 (App. Div. 1998), certif. denied, 158 N.J. 74

(1999)).

Finally, plaintiff alleges the trial judge should have

precluded defendant from testifying about the condition of the

pole prior to the accident. A preliminary question in any evidence

inquiry is whether the evidence is relevant. The trial judge

concluded defendant could relate his observations. N.J.R.E. 602.

A lay witness's "testimony in the form of opinions or inferences

1
N.J.R.E. 411 provides:

Evidence that a person was or was not insured
against liability is not admissible on the
issue of that person's negligence or other
wrongful conduct. Subject to Rule 403, this
rule does not require the exclusion of
evidence of insurance against liability when
offered for another purpose, such as proof of
agency, ownership, control, bias, or prejudice
of a witness.

16 A-5620-14T3
may be admitted if it (a) is rationally based on the perception

of the witness and (b) will assist in understanding the witness'

testimony or in determining a fact in issue." N.J.R.E. 701. The

judge did not abuse his discretion.

Affirmed.

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