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Tomeo v. Northern Valley Swim Club

Decided: May 6, 1985.

MARY TOMEO, PLAINTIFF-APPELLANT,
v.
NORTHERN VALLEY SWIM CLUB, DEFENDANT-RESPONDENT



On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Pressler, Brody and Richard S. Cohen. The opinion of the court was delivered by Brody, J.A.D.

Brody

[201 NJSuper Page 417] The jury returned a no-cause verdict in this personal injury action. Plaintiff contends that the verdict is tainted by the prejudicial and false inference raised by defendant's attorney in his summation that his client is uninsured. We agree and take the opportunity to provide trial judges with some guidance in dealing with this problem.

Plaintiff, a 63-year-old woman, was emerging from defendant's commercial swimming pool when she slipped and fell, suffering severe and permanent leg injuries. The pool had the appearance of a natural pond bordered by a sandy beach. A cement "curb," seven inches wide, encircled the edge of the pond. It served to contain the water in the pond and keep sand from slipping into it. A person emerging from the water had to step up about 8 to 11 inches onto or over the curb. The sand on the beach side of the curb varied from being even with or a little below the top of the curb. Defendant had painted the curb annually for many years before the accident. Plaintiff claimed that the paint caused the curb to become smooth so that it was dangerously slippery when wet. She allegedly lost her footing when she stepped on it. Experts testified for both sides as to the slipperiness of the top of the curb. Their testimony was inconclusive because the degree of slipperiness varied along the length of the curb and there was no evidence as to exactly where plaintiff fell. The trial focused entirely on the liability issue. Defendant offered no evidence respecting damages.

Defendant's trial counsel, a certified civil trial attorney, included the following in his summation:

When we first started this case, in the opening statements, I mentioned a couple things to you. First of all, I told you that my clients, the Northern Valley Swim Club, was a family owned organization. I produced Mrs. Limmer, the grandmother, who originally, with her late husband, purchased the place some thirty-one years ago, and still owns it today, and has owned it all the way, and she, I told you that she's the secretary-treasurer, or something like that.

The granddaughter testified, Suzanne. She works there and has worked on and off there for the last ten years.

Suzanne's mother, Mrs. Kober, is an officer of the corporation, and Mrs. Kober's husband.

And of course, the plaintiff's attorney, Mr. De Marrais, read from the deposition transcript from a John Limmer. That deposition, that sworn testimony, was given by John Limmer, which was Mrs. Limmer's son, and that was taken in August of 1982.

John Limmer had died since that time that he was deposed, and obviously, could not testify.

But one of the points I wanted to show you was that number one, was this was a family owned and run organization. . . .

As I told you from the outset, now, when -- something I did say was that the mere happening of an accident, the mere occurrence where someone is injured, is not, in and of itself, an establishment or a proof that someone else was negligent, and that's a very important concept to understand, because when someone comes up to anyone and says, "I've been injured and I want you [ sic ] money. I ...


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