SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-0470-02T5

ELAINE LODATO,

Plaintiff-Appellant,

FILING DATE
APPELLATE DIVISION
OCT 23, 2003
v.

SUNRISE MARKETS, INC. T/A
WEST CALDWELL SHOPRITE,

Defendant-Respondent.

Submitted October 1, 2003- Decided OCT 23 2003

Before Judges Winkelstelin and Lario.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-475200.

Andrew M. Moskowitz argued the cause for appellant

James N. Barletti argued the cause for respondent (Gold, Albanese & Barletti, attorneys; Marc B. Schuley on the brief).

PER CURIAM

Following a jury trial in this personal injury action, plaintiff Elaine Lodato appeals from a judgment based upon the jury’s verdict of no cause of action. She claims first, that the trial court failed to properly instruct the jury on the issue of proximate cause, and second, that she was denied her right to a fair trial because a prospective juror was permitted to describe an unrelated slip and fall claim in front of the jury panel. We find both arguments to be without merit and affirm.

On April 15, 2000, plaintiff was a patron at the Shoprite supermarket in West Caldwell. When she entered the aisle containing Bathroom tissue, she saw cartons stacked in the aisle. As she reached for some tissues on the shelf, she felt a sharp, sudden pain on the bottom of her right leg. When she looked down at her leg, she lost her balance and fell to the floor, sustaining injuries. Plaintiff told the supermarket manager that she was hit by a shopping cart being pushed by an unknown customer.

Plaintiff's first claim is that the judge improperly charged the jury regarding proximate cause. Without objection, the judge charged the following:
By proximate cause I refer to a cause that in the natural and continual sequence produces the accident and resulting injury and without which the resulting accident or injury would not have occurred. A person who is negligent is held responsible for any accident or injury that results in the ordinary course of events from its negligence. This means that you must first find that the resulting accident or injury would not have occurred but for the negligent conduct of the defendant.

Second, you must find that the defendant's negligent conduct was a substantial factor in bringing about the resulting accident or injury. By substantial I mean that the cause is not remote, trivial, or inconsequential. If you find that the defendant’s negligence was a cause of the accident and that such negligence was a substantial factor in bringing about the injury then you must find that the defendant was a proximate cause of the plaintiff's injury.

During its deliberations, which lasted a total of approximately one-half hour, the jury sent the court a note requesting "a legal definition of proximate." When told by the judge what the jury had requested, plaintiff's counsel said, "it sounds like they don't understand the proximate cause charge as given.” The court responded, "I'll give [the charge] to them again [because] at least it will let them focus on it." Again without objection, the court charged:
I'll just tell you again what is meant by proximate cause. And it's proximate cause which you have to consider and think of. If you find that the defendant is negligent you must find that the defendant's negligence was a proximate cause of the accident before you can find that the defendant was responsible for the plaintiff's claimed injury. It is the duty of the plaintiff to establish by a preponderance of evidence that the negligence of defendant was a proximate cause of the accident and of the injury alleged to have resulted from defendant's negligence. The basic question for you 'to resolve is whether the plaintiff's injury is so connected with the negligent actions or inactions of the defendant that you decide it is reasonable in accordance with the instructions I will now give you that the defendant should be held wholly or partially responsible for the injury. By proximate cause I refer to a cause that in a natural and continuance sequence produces the accident and resulting injury and without which the resulting accident or injury would not have occurred. A person who is negligent is found responsible for any accident or injury that results in the ordinary course of events from its negligence. This means that you must first find that the resulting accident or injury to the plaintiff would not have occurred but for the negligent conduct of defendant. Second you must find that the defendant’s negligent conduct as a substantial factor in bringing about the resulting accident or injury. By substantial I mean that the cause is not remote, trivial or inconsequential. If you find that the defendant’s negligence was a cause of the accident and that such negligence was a substantial factor in bringing about the injury then you should find that the defendant was a proximate cause of the plaintiff’s injury. With that you may resume your deliberations.

The first question on the jury verdict sheet asked: "Was defendant Sunrise Markets, Inc. negligent and a proximate cause of injury to plaintiff Elaine Lodato?" The jury voted no, five to one.
Because plaintiff's claim that the jury instructions were improper was not brought to the trial court's attention and is raised for the first time on appeal, the plain error rule applies. R. 2:10-2. "Relief under the plain error rule is to be sparingly granted." Gaido v. Weiser, 227 N.J. Super. 175, 198 (App. Div. 1988), aff'd, 115 N.J. 310 (1989). When considering a jury charge, plain error is:
legal impropriety in the charge prejudicially affecting the substantial rights of the [party] sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.

[State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).]

"[T]he law [on proximate cause] requires proof that the result complained of probably would not have occurred but for the negligent conduct of the defendant." Camp v. Jiffy Lube #114, 309 N.J. Super. 305, 309 (App. Div.) (internal quotation omitted), certif. denied, 156 N.J. 386 (1998). This "but for" standard “concentrates on one cause that sets the other causes in motion." Id. at 309-10. Alternatively, "the 'substantial factor' test recognizes that a tortfeasor will be held answerable if its negligent conduct was a substantial factor in bringing about the injuries, even where there are other intervening causes which were foreseeable or were normal incidents of the risk created." Id. at 310 (internal quotations omitted).
The Model Jury Charge on proximate cause, states:

To find proximate cause, you must first find that the [defendant]'s negligence was a cause of the accident. . . If you find that [defendant] is not a cause of the accident . . . then you must find no proximate cause.

Second, you must find that [defendant]'s negligence was a substantial factor that singly, or in combination with other causes, brought about the accident ... claimed by [plaintiff]. By substantial, it is meant that it was not a remote, trivial or inconsequential cause. The mere circumstance that there may also be another cause of the accident . . . does not mean that there cannot be a finding of proximate cause. Nor is it necessary for the negligence of [defendant] to be the sole cause of accident. . . . If you find that [defendant]’s negligence was a substantial factor in bringing about the accident . . ., then you should find that [defendant]'s negligence was a proximate cause of the accident. . . .

As a reviewing court, we are obligated to evaluate the charge in its entirety. Conklin v. Hannoch Weisman, 145 N.J. 395, 409 (1996). [I]f the charge as a whole adequately presents the law and would not tend to confuse or mislead the jury, the fact that a particular expression, standing alone, may be said to be erroneous does not afford grounds for reversal." Ibid.
Here, the proximate cause charge was given to the jury twice without objection. The judge informed the jury that defendant could be found responsible for the accident if its conduct was a substantial factor in bringing about the accident. Thus, the jury could have found that both Shoprite's negligence and the negligence of the unknown customer who struck plaintiff with the shopping cart proximately caused plaintiff's injuries. However, the jury chose not to do so. Instead, it apparently found the customer's negligence to be the sole cause of the accident. The record supports that conclusion. Even if the jury concluded that Shoprite was negligent as a result of placing boxes in the aisle, there was sufficient evidence for the jury to have concluded that the accident was solely the result of the negligence of the unknown customer who struck plaintiff with a shopping cart. Under these circumstances, in the absence of an objection, the jury charge when read in its entirety did not possess "a clear capacity to bring about an unjust result." We find no plain error.
Plaintiff's remaining argument concerns a statement made by a potential juror during the jury selection process. In instructing the jury panel, one of the questions the court asked the entire panel was, "from what I’ve told you is there anything about the nature of this case which makes you feel that you could not be fair in deciding it should you serve as a juror in this particular case?" Later in the selection process, when one of the jurors was asked if she would have answered "yes" to any of the court's questions, she responded, "I have a good friend that did a slip and fall in a supermarket and she wasn’t hurt, she went to the doctor and everything, got paid, nothing was wrong." The juror and the court then engaged in the following discussion:

THE COURT: How long ago did this happen?
[MS. T.]: About 7 years ago.

THE COURT: I take it there was no claim made or anything like that?

[MS. T.]: Yeah, yeah, it was.

THE COURT: Okay, you said she wasn't hurt?

[MS. T.]: Nope. There was nothing wrong with her.

THE COURT: Okay.

After discussing other issues with Ms. T, the judge asked her if she would be able to put her prior experiences aside and decide the case on its own facts. She responded that she would not.
[MS. T.]: No, because I went through the whole thing with her and there was nothing wrong with her.

THE COURT: [I]n other words, you think that that situation might [a]ffect your judgment in this case?

[MS. T.]: Yes, sir.

THE COURT: I'll excuse you then.

Plaintiff claims she did not infected receive a fair trial because the juror's statements infected he remainder of the jury panel. Again, we address this issue as plain error because no objection was raised during the jury selection process.
We find plaintiff's argument to be unpersuasive. Beyond conjecture, no evidence exists that the entire jury panel was tainted by the colloquy between the judge and the prospective juror. No juror raised the issue during the remaining voir dire process. In his charge, the judge instructed the jury to decide the case "based solely on the evidence presented." He defined evidence as "testimony you've heard from the witnesses, the exhibits that have marked into evidence.” Plaintiff's argument on this point is without sufficient merit to warrant further discussion. See R. 2:11-3(e)(1)(E).
Affirmed.

I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION

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