                        NOT FOR PUBLICATION WITHOUT THE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.



                                  2                           A-5620-14T3
     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

                                     3                            A-5620-14T3
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

                                       4                                 A-5620-14T3
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



                                     5                           A-5620-14T3
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.



                                     6                             A-5620-14T3
      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.

                                    7                                 A-5620-14T3
      "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.

                                     9                               A-5620-14T3
       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.




                              17                           A-5620-14T3
