                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-6163-12T2

DANNY CAICEDO, an infant by
his Father and Natural Guardian
                                        APPROVED FOR PUBLICATION
SEGUNDO CAICEDO, and
SEGUNDO CAICEDO, individually,               March 17, 2015

     Plaintiffs-Respondents,              APPELLATE DIVISION

v.

FABIAN CAICEDO, CITY OF NEWARK
POLICE DEPARTMENT, and CITY OF NEWARK,

     Defendants-Appellants.
___________________________________________

         Argued February 25, 2015 – Decided March 17, 2015

         Before Judges Alvarez, Maven, and Carroll.

         On appeal from the Superior Court of New
         Jersey, Law Division, Essex County, Docket
         No. L-319-11.

         Avion M. Benjamin, Assistant Corporation
         Counsel, argued the cause for appellants
         (Anna   P.   Pereira,   Corporation  Counsel,
         attorney;    Steven   F.    Olivo,  Assistant
         Corporation Counsel, and Ms. Benjamin, on
         the briefs).

         Casey J. Woodruff argued the cause for
         respondents (Bramnick, Rodriguez, Mitterhoff,
         Grabas  & Woodruff, LLC, attorneys;       Mr.
         Woodruff, on the brief).

     The opinion of the court was delivered by

CARROLL, J.A.D.
      This appeal follows a jury verdict for damages sustained by

plaintiff Danny Caicedo.1             Plaintiff was severely injured when

the   bicycle      he    was   riding      was    struck    by   a   police     cruiser

operated      by   defendant        Fabian       Caicedo2   while     on     duty   with

defendant City of Newark Police Department.

      Officer Caicedo had arrested an individual for a disorderly

persons offense, and was transporting the prisoner to police

headquarters for processing when he struck plaintiff's bicycle.

At trial, the judge declined to instruct the jury that Officer

Caicedo was entitled to good-faith immunity under N.J.S.A. 59:3-

3, which provides that "[a] public employee is not liable if he

acts in good faith in the execution or enforcement of any law."

This appeal requires us to decide whether the statute exempts

defendants from liability where the police officer had effected

an arrest and was transporting the prisoner under non-emergent

circumstances.          We decide that it does not.                  We also reject

defendants' arguments that the jury's verdict was against the

weight   of    the      evidence,    and     that    the    trial    court    erred   in

failing to order a new trial or a remittitur.

1
  Suit was filed by Segundo Caicedo, individually and as guardian
for his minor son, Danny Caicedo. For purposes of this opinion
we refer to Danny Caicedo as plaintiff.
2
  Plaintiff and defendant Fabian Caicedo share a common surname
but are not related.     For clarity we refer to defendant as
Officer Caicedo.



                                             2                                 A-6163-12T2
                                      I.

    The     collision    occurred     on     June   29,     2010,   immediately

following     plaintiff's      eighth-grade      graduation.          Plaintiff,

accompanied by three friends, was heading north on Broadway, a

busy Newark street with two lanes of traffic in each direction

and a twenty-five mile-per-hour speed limit.                    Two of the boys

were walking, while plaintiff and a friend, M.G., rode their

bicycles along the shoulder of the roadway.                Plaintiff testified

that he was riding his bike straight, not swerving.                      M.G. and

one of the walkers, B.P., both agreed.                 After a few seconds,

M.G. crossed the street to return home; a minute or two later,

plaintiff also decided to cross.            Plaintiff described the events

as follows:

            I was continuing to go straight, I was
            talking to them.     And then after I said
            [bye], I looked over my shoulder [and] the
            light was still red.    There [were] no cars
            in sight, so I decided to cross.

                 . . . .

            . . . I turned, and all of a sudden, I just
            heard a loud screech[,] . . . and then I
            tried to turn back to the shoulder but it
            was too late, I got hit.

Plaintiff was then struck by Officer Caicedo's police vehicle

and lost consciousness.

    Plaintiff      admitted      that       he   did      not    cross    at    an

intersection,    and    that    he   knew    this   was     unsafe.       Neither



                                        3                                A-6163-12T2
plaintiff,    M.G.,     nor   B.P.    heard      a    horn   or    siren     before    the

collision.       B.P., on hearing the brakes screech, turned in time

to observe the impact.         He was ten feet from the collision, and

estimated that Officer Caicedo's vehicle was travelling at a

speed of forty to forty-five miles per hour.                         B.P. based his

estimate    of    the   vehicle's     speed      on    the   screeching       noise     he

heard, which lasted "about ten seconds."

    M.G. glimpsed Officer Caicedo's car as it neared plaintiff,

and also estimated that it was travelling at forty to forty-five

miles per hour.         M.G. heard the car brake, but did not see the

impact.     His speed estimate was based on his observation that

the vehicle was travelling faster than typical Broadway traffic.

    Officer       Caicedo,     a     Newark      police      detective,       had     just

arrested David Petracca, a suspected drug buyer, for wandering,

and was transporting him back to headquarters in an unmarked

police    cruiser.       Officer     Caicedo         and   his    partner,    Detective

Misty     Camacho,      searched     Petracca         incident      to     arrest      and

discovered no weapons.             Petracca did not resist, struggle, or

refuse to cooperate either during the arrest or the ride to

police     headquarters.           Since       the    unmarked      vehicle     had     no

partition, Camacho sat in the rear seat next to Petracca, whose

hands were cuffed behind him.                  The detectives were about one

block from the police station when the collision occurred.




                                           4                                    A-6163-12T2
       Officer Caicedo testified that he first observed plaintiff

some     forty    yards   ahead.      The       officer     estimated   that   he    was

driving about thirty miles per hour.                       He saw plaintiff moving

back and forth in a "snake[-]like motion" over both northbound

lanes     of     the   roadway.       Contrary        to    the     other   witnesses'

testimony, Officer Caicedo stated that he sounded "one quick

burst" of his horn and siren when he was about thirty yards from

plaintiff.        After sounding his horn, he saw plaintiff move "all

the way closer to the curb and [] start[] [to] rid[e] straight."

At twenty yards, he moved into the left northbound lane to avoid

plaintiff.        According to Officer Caicedo, "[a]s that distance

closed, the cyclist suddenly just turned in, like ma[d]e a hard

[] left and turned in front of me.                    And that's when I swerved

into     oncoming      traffic."      When       he   was     ten    feet   away    from

plaintiff, the officer was still travelling at thirty miles per

hour.3    Faced with oncoming traffic, Officer Caicedo swerved back

into the northbound lanes, where his front right fender struck

plaintiff's rear tire.            When asked why he did not stop on seeing

plaintiff, Officer Caicedo responded: "I wanted to get back to


3
  At trial, when questioned how fast he was traveling, Officer
Caicedo responded: "I believe it was like [twenty] miles per
hour."   He was then confronted with his deposition testimony
that he was traveling thirty miles per hour, and conceded he
"was traveling the same speed at [forty] yards away as [he] was
at [ten] feet away."



                                            5                                  A-6163-12T2
[headquarters] due to the fact that we didn't have a cage in the

car, I wanted to get back safely and my observation was that I

could safely go around into the second right lane around the

cyclist."

      The     other      two       occupants       of    the        police    vehicle     also

testified.        Camacho recounted that "as I look[ed] up I [saw]

that my partner [was] going onto the other side, the opposite

side of traffic [into] oncoming traffic.                              And then to avoid

colliding with oncoming traffic he swerve[d] again towards the

right,      and   I     remember         that's    where       the     impact     occurred."

Petracca testified that before the collision he saw plaintiff

"just    riding       kind    of    in    circles       on    his    bicycle."        Officer

Caicedo later "swerved to the left to try to avoid impact and

stepped      on   the    brakes."          Petracca      further       stated:       "I   don't

believe      [Officer        Caicedo]      made     it       into    the     other   lane    of

traffic, but pretty substantially I would say he swerved to try

to   avoid    impact."         Neither       detective's            report    recorded     that

Officer Caicedo sounded his horn before the collision.

      Plaintiff         suffered      a    comminuted         fracture       of   his     right

femoral shaft.           He underwent two surgeries, physical therapy,

and treatment for neck and back pain.                          He suffers from a leg-

length discrepancy and walks with a permanent limp.




                                               6                                      A-6163-12T2
    Prior to trial, plaintiff made an in limine motion to bar

defendants from arguing the good-faith immunity defense.                        The

trial judge reserved decision on the motion until she heard the

police testimony.       Ultimately, the judge declined to instruct

the jury on the defense, reasoning:

           I have found cases that go both ways. Cases
           that   would    say    that   this   was   the
           continuation   of   an   effectuation   of  an
           arrest. And cases that have said it's just
           merely transporting.      Now I note for the
           record, I have no evidence or testimony
           . . . that this was any sort of . . . high
           crime.   This was not some internationally
           wanted suspect who was in the back of the
           car. There's no evidence that he struggled.
           There was no evidence that he resisted.
           Indeed he's charged with wandering[,] a
           disorderly persons offense.

           So even though I don't mean to diminish in
           any way, nor substitute my judgment for the
           police officer['s] sense of danger, I don't
           even have any testimony that [] anybody
           thought they were in much danger. . . . For
           those reasons I don't think the immunity
           [applies.]

    The      jury   found     in   plaintiff's      favor     and   apportioned

negligence    at    eighty    percent   to    Officer   Caicedo     and    twenty

percent to plaintiff.          The trial court molded the $3,000,000

verdict   accordingly,       and   judgment   was   entered    in   plaintiff's

favor for $2,400,000.

    Defendants moved for a new trial or, in the alternative,

for a remittitur.       They argued that the verdict was excessive




                                        7                                 A-6163-12T2
and   against   the    weight    of    the   evidence.      Defendants     also

contended that the court erred in denying the jury instruction

as to their good-faith immunity defense.            While the trial judge

characterized    the   verdict    as    "high,"   she    found   no   basis    to

disturb it.     As to the immunity defense, the judge ruled:

           [I]t's clear [that] the testimony of the
           officers    if     anything     supported    []
           plaintiff's position that it was a mere
           transportation    function   that   they   were
           providing.    There was no[t] one word of
           testimony   about    the   neighborhood   being
           something that they were concerned with
           lingering [in] with an arrestee who was a
           buyer [].      There was nothing, nothing,
           absolutely nothing said by either officer
           that would indicate they had any sort of
           concerns of safety that were heightened by
           virtue of this being an arrest, versus any
           concerns they'd normally have if they were
           just [] transporting a prisoner. And so for
           those   reasons    the   [c]ourt   denied   the
           immunity defense.

           . . . I think[,] given the record in this
           case, given the absence of any testimony
           about any concerns that anybody had or
           heightened concerns that would take this
           from   a    mere   transportation   to   the
           continuation   of   an   arrest,  that   the
           [c]ourt's initial ruling was the correct and
           accurate one.

                                       II.

      On appeal, defendants renew the arguments they advanced in

their new trial motion.         They contend that the trial court erred

in failing to instruct the jury on good-faith immunity, and that

the verdict was both against the weight of the evidence and



                                        8                              A-6163-12T2
excessive.    Defendants further argue that the trial court erred

in denying their motion for a new trial or a remittitur.                     We

address these arguments in turn.

                                     A.

     We first consider whether defendants enjoyed immunity under

the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.

"The TCA provides general immunity for all governmental bodies

except in circumstances where the Legislature has specifically

provided for liability."          Kain v. Gloucester City, 436 N.J.

Super. 466, 473 (App. Div.) (citing N.J.S.A. 59:1-2 and 2-1),

certif. denied, 220 N.J. 207 (2014).             Thus, the TCA's dominant

theme is immunity, with liability as the exception.                  D.D. v.

Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013);

Rochinsky v. Dep't of Transp., 110 N.J. 399, 408 (1988).                   "The

public   entity   bears   the     burden    of   proof    for   establishing

immunity.    In determining if a public entity is immune, courts

first identify the culpable cause of the accident and . . . ask

if   that    identified   cause    or      condition     is   one   that    the

Legislature intended to immunize."          Kain, supra, 436 N.J. Super.

at 473 (citations and internal quotation marks omitted).

     Where a public entity is immune from liability for injury,

so too is the public employee.            N.J.S.A. 59:3-1(c).       Pertinent

to this appeal, N.J.S.A. 59:3-3 specifically provides that "[a]




                                     9                                A-6163-12T2
public employee is not liable if he [or she] acts in good faith

in the execution or enforcement of any law."                     The TCA does not,

however, "exonerate a public employee for negligence arising out

of his [or her] acts or omissions in carrying out his [or her]

ministerial functions."           N.J.S.A. 59:3-2.

    Defendants argue that they are entitled to the good-faith

immunity bestowed by N.J.S.A. 59:3-3.                  They contend that Officer

Caicedo    was    enforcing       the    law    when    the    collision         occurred

because the police had not yet completed the suspect's arrest.

In support of this position they point to the Newark Police

Department's      policy    procedures         for   processing       arrests,      which

include transporting a prisoner to the precinct of arrest and

completing all required reports.

    Plaintiff          argues     that      N.J.S.A.       59:3-3       immunity        is

inapplicable under the facts presented, and that courts have not

applied    it     to    situations        where      police     are     involved        in

ministerial acts, such as patrolling the streets or transporting

prisoners.        Rather,       plaintiff       contends      that    this   statutory

immunity     attaches      only    where       the   police     are    acting       under

heightened       circumstances,         including      responding      to    a    crime,

accident, or emergency in progress, or where they are called

upon to make split-second decisions.




                                           10                                    A-6163-12T2
    New Jersey caselaw appears to favor plaintiff's position.

See, e.g., Alston v. City of Camden, 168 N.J. 170, 187-88 (2001)

(applying the immunity to an officer pursuing a drug suspect on

foot,      emphasizing       the     "split-second            judgments"         such

circumstances often require); Canico v. Hurtado, 144 N.J. 361,

365-66 (1996) (applying the immunity to an officer responding to

a bank alarm, noting that such responses "often require split-

second   judgments");       Dunlea   v.   Twp.    of    Belleville,     349     N.J.

Super. 506, 509 (App. Div.) (applying the immunity to officers

responding to a burglary in progress), certif. denied, 174 N.J.

189 (2002).        Thus, if the collision here occurred during an

emergency response, the result would be clear since good-faith

immunity    no     doubt    "encompass[es]       the    operation      of    police

vehicles by police officers acting within the scope of their

duties and in response to an emergency."                     Canico, supra, 144

N.J. at 366-67.

    As     TCA   immunity    often   arises      in    the   context   of    police

pursuits, our courts have frequently applied N.J.S.A. 59:5-2(b)

and 5-2(c) (which, respectively, provide immunity from injuries

caused by escaping persons and by the pursuit of such persons),

obviating    the    need    to   consider     N.J.S.A.       59:3-3    good-faith

immunity.    See, e.g., Tice v. Cramer, 133 N.J. 347, 367 (1993)

(applying N.J.S.A. 59:5-2(b)(2) and (b)(3) and thus not reaching




                                      11                                    A-6163-12T2
the   question         of    good-faith        immunity      for    officers    pursuing       a

vehicle that failed to heed their commands); Torres v. City of

Perth      Amboy,      329        N.J.   Super.      404,     408     (App.    Div.      2000)

(declining        to        apply    N.J.S.A.        59:5-2(b)(2)        to    an     officer

"attempt[ing] to close the gap and stop" a speeding but non-

fleeing motorist).

      Our research has not disclosed any cases in New Jersey

directly     on     point         with   the    facts     presented      here.        We    do,

however, draw guidance from cases decided under Illinois tort

claims legislation similar to the TCA.                            Marley v. Palmyra, 193

N.J. Super. 271, 288 (Law Div. 1983).                        The analogous section of

the Illinois Local Governmental and Governmental Employees Tort

Immunity Act provides: "A public employee is not liable for his

act   or    omission         in    the   execution      or    enforcement      of     any   law

unless     such     act      or     omission     constitutes        willful     and    wanton

conduct."     745 Ill. Comp. Stat. 10/2-202 (2014).

      The    Illinois             Supreme   Court       considered       a    substantially

similar version of this statute in Aikens v. Morris, 145 Ill. 2d

273, 583 N.E.2d 487 (1991).                      In Aikens, plaintiff sought to

recover damages sustained when her automobile was struck by an

Evanston police squad car.                  Id. at 275-76, 583 N.E.2d at 488-89.

At the time, the officer was transporting a prisoner from the

Village     of    Skokie           lockup    facility        to    the   Evanston      police




                                                12                                    A-6163-12T2
department's      lockup    facility.            Ibid.         The     prisoner     had

previously been arrested, handcuffed, and placed in the back

seat of the police car.              Ibid.        According to the officer's

testimony, he was in "no hurry."               Ibid.

      Like the present case, defendants argued that the officer

was "executing" or "enforcing" a law, citing Illinois statutes

empowering public officials to move or transfer prisoners.                          Id.

at 277, 583 N.E.2d at 489.           The court disagreed, reasoning that

the officer's "negligent conduct was not shaped or affected in

any   manner    by   the   nature    of    duties       in    either    enforcing    or

executing law."      Id. at 286, 583 N.E.2d at 494.                   In declining to

apply   the    statutory    immunity,      the    court       cited    with   approval

Anderson v. Chicago, 29 Ill. App. 3d 971, 331 N.E.2d 243 (1975),

a case involving "quite similar" circumstances:

              In Anderson, the appellate court viewed a
              record which showed that a police officer
              was transporting, at the time of the
              accident, two juveniles picked up from the
              scene of a disturbance, with another police
              vehicle    following    and    escorting   the
              complainant.    The Anderson court determined
              that   the   evidence   supported   the  trial
              court's findings that the officer was not
              enforcing or executing any laws, even though
              he was on duty and in the course of his
              employment. We are similarly compelled.

              [Aikens, supra,       145    Ill.    2d    at    286,     583
              N.E.2d at 494.]




                                          13                                  A-6163-12T2
Taken together, we regard these cases as persuasive authority

that      Officer     Caicedo    was       not       acting    in    the    "execution     or

enforcement      of    any     law"   so    as       to   afford     him    immunity   under

N.J.S.A. 59:3-3 while transporting the prisoner to the police

precinct when the collision occurred.

       Our "primary task" in interpreting statutory language is

"to effectuate the legislative intent in light of the language

used and the objects sought to be achieved."                          Bosland v. Warnock

Dodge, Inc., 197 N.J. 543, 554 (2009) (citation and internal

quotation marks omitted).              Read literally, N.J.S.A. 59:3-3 could

be     interpreted      to      immunize         all      police      activities,      since

"virtually every police function or duty is pursuant to some

legal authorization in the broadest sense."                           Aikens, supra, 145

Ill. 2d at 285, 583 N.E.2d at 493.

       We do not believe our Legislature intended N.J.S.A. 59:3-3

to   be    construed      so    broadly.             Rather,    the    determination       of

whether      a   police      officer       is    engaged       "in    the    execution     or

enforcement of any law" so as to entitle that officer to good-

faith immunity under the statute must be made on a case-by-case

basis.       Were the circumstances such that Officer Caicedo was

responding, for example, to a crime scene, to an accident call

with unknown injuries, or to some other situation requiring his

immediate attention, we have little doubt that the result we




                                                14                                  A-6163-12T2
reach would be different.            Immunity would also likely attach

were     Officer    Caicedo    transporting      the   prisoner      for      urgent

medical attention, or if the prisoner was unruly or otherwise

constituted a dangerous presence in the police vehicle, or if

the officer was in a dangerous area or needed to hasten his

departure from a hostile crowd.               However, the record here is

completely devoid of any such emergent circumstances.

       We concede that Officer Caicedo's transport of a suspected

drug buyer charged with wandering presents a close case.                         The

officer    was     certainly   "carrying      out"   the   law    when   he    first

arrested the suspect.          However, the policy concern underlying

good-faith immunity, that police will be "reluctant to enforce

the law vigorously for fear of liability" in its absence, is

simply less compelling during the ensuing transport function.

Tice, supra, 133 N.J. at 351.           On this record, we see no reason

why Officer Caicedo, while transporting the prisoner, should not

be held to the same standard of care as an ordinary citizen

operating his or her own motor vehicle on the roadways of this

State.      Accordingly,       we   discern    no    policy      basis   to    cloak

defendants       with   immunity    from      liability    for     the     injuries

sustained by plaintiff during Officer Caicedo's travel to police

headquarters.




                                       15                                  A-6163-12T2
                                     B.

    We next turn to defendants' arguments regarding new trial

and remittitur.      We begin by stating certain general principles

that guide our analysis.          We will not reverse a trial court's

decision to deny a motion for a new trial "unless it clearly

appears that there was a miscarriage of justice under the law."

R. 2:10-1.     That inquiry requires employing a standard of review

substantially similar to that used at the trial level, "except

that the appellate court must afford 'due deference' to the

trial     court's   '"feel   of    the    case,"'   with      regard   to    the

assessment     of   intangibles,     such    as     witness     credibility."

Jastram v. Kruse, 197 N.J. 216, 230 (2008) (quoting Feldman v.

Lederle Labs., 97 N.J. 429, 463 (1984)).              See also Carrino v.

Novotny, 78 N.J. 355, 360 (1979); Baxter v. Fairmont Food Co.,

74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8

(1969).

    Because juries have broad latitude to determine damages,

"the standard for granting a new trial . . . is necessarily

high."     Johnson v. Scaccetti, 192 N.J. 256, 281 (2007).                     "A

trial court should not order a new trial or remit a jury's

damages award unless it is so clearly disproportionate to the

injury and its sequela . . . that it may be said to shock the

judicial conscience."        Ibid.       A court "must be 'clearly and




                                     16                                A-6163-12T2
convincingly' persuaded that it would be manifestly unjust to

sustain the award."           Ibid. (quoting R. 4:49-1(a)).

    In determining whether the denial of remittitur or a new

trial was proper, this court is bound by the same standards as a

trial court.         Jastram, supra, 197 N.J. at 228-231, 235; Baxter,

supra, 74 N.J. at 598; McRae v. St. Michael's Med. Ctr., 349

N.J. Super. 583, 597 (App. Div. 2002).                   Unless a jury's award of

damages    is    so    disproportionate          to    the     injury    and   resulting

disability,      the    trial    judge      should       not    disturb     the    award.

Jastram, supra, 197 N.J. at 230; Baxter, supra, 74 N.J. at 595.

Thus, to qualify for remittitur or a new trial, as we have

noted, "the jury's award must shock the judicial conscience."

McRae, supra, 349 N.J. Super. at 597 (citing Baxter, supra, 74

N.J. at 596); see Ming Yu He v. Miller, 207 N.J. 230, 252

(2011).

    Here, the trial judge's ruling is clearly supported by the

record, and does not amount to an abuse of discretion.                         The jury

verdict    in    this    case    did      not    constitute       a     miscarriage      of

justice, nor did the jury's award of damages "shock the judicial

conscience."          McRae, supra, 349 N.J. Super. at 597.                         "[T]he

evidence        in    support        of    the        jury     verdict     [was]        not

insufficient[,]"        and    the    trial      judge's     decision     to   deny     the

motion for a new trial, or in the alternative, a remittitur,




                                           17                                     A-6163-12T2
should not be disturbed.             Crego v. Carp, 295 N.J. Super. 565,

572 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997); Amaru

v. Stratton, 209 N.J. Super. 1, 7 (App. Div. 1985).

    We      note    that    the    accounts        of    the    parties    and     their

respective    witnesses       as   to    how       the   accident    occurred       were

conflicting, and left the jury with the task of resolving their

credibility.       In challenging the verdict as against the weight

of the evidence, defendants argue that the limited observations

testified to by plaintiff and his two teenage witnesses are

insufficient       to   establish       defendants'          liability.      However,

Officer Caicedo testified that he was travelling above the speed

limit.     Despite his claim that he observed plaintiff swerving

his bicycle back and forth over both northbound lanes, Officer

Caicedo conceded that he neither slowed nor stopped his police

vehicle.     Thus, even if the jury disregarded the testimony of

plaintiff and his witnesses, it could have premised its verdict

of liability on Officer Caicedo's testimony alone.

    With respect to the amount of the jury verdict, plaintiff

presented    evidence      that    he   was       treated    for   his    injuries    by

Sanjeev     Sabharwal,       M.D.,      a        pediatric     orthopedic        surgeon

specializing       in      leg-length       discrepancy.            Plaintiff        was

hospitalized for four days, and remained on bed rest for five

months, during which he required assistance with all his bodily




                                            18                                A-6163-12T2
functions.         He suffers from a 2.8-centimeter (1.1-inch) leg-

length       discrepancy,            resulting           in    a      permanent     limp.         Dr.

Sabharwal considered procedures to address this discrepancy, but

concluded they were too risky.                            Plaintiff also has permanent

scars and persistent stiffness, and no longer engages in the

recreational activities he used to enjoy.                                  In Dr. Sabharwal's

opinion, plaintiff is now "predisposed to some higher prevalence

of low back pain, and possibly some premature arthritis of the

lower extremities."                  At trial, defendants presented no expert

testimony contradicting Dr. Sabharwal's findings.

       Defendants maintain, however, that the verdict is excessive

when       compared      with        damage        awards        in     certain     other     cases.

Defendants        cite     examples           of        lesser        verdicts,     ranging     from

$90,000      to    $1,200,000,          based       on        similar     injuries     but     "much

stronger       proofs"          on     liability              and      future      employability.

Plaintiff         claims    that        the        cases       cited      by      defendants      are

inapposite, and cites verdicts from other cases with injuries

similar      to    those    sustained              by    plaintiff        that     range    between

$1,700,000 and $11,202,000.

       A     trial    court           may     consider              comparable      verdicts       in

determining whether a jury's award is so "wide of the mark" as

to shock the judicial conscience.                             He, supra, 207 N.J. at 258.

We are unpersuaded that the verdicts cited by defendants are




                                                    19                                      A-6163-12T2
sufficient    to   override   the   trial   court's   considered   judgment

that the award in this case was not "so wide of the mark" as to

call    for   judicial    intervention.          Ibid.      The     judge's

determination was based on the evidence presented at trial, the

judge's "feel of the case," and her judicial experience.

       Affirmed.




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