On appeal from Superior Court, Law Division, Middlesex County.
Approved for Publication January 5, 1996. As Corrected March 18, 1996.
Before Judges Petrella and P.g. Levy. The opinion of the court was delivered by Petrella, P.j.a.d.
The opinion of the court was delivered by: Petrella
The opinion of the court was delivered by PETRELLA, P.J.A.D.
This appeal deals with the application of the procedures in State v. Clawans, 38 N.J. 162, 183 A.2d 77 (1962), in a civil case, as they pertain to summation comments by one party about the failure of an adversary to produce a witness at trial, and where there is no request for an adverse inference charge.
Plaintiffs moved for a new trial after a jury had no-caused their negligence action by assessing comparative negligence of 57% against plaintiff Antoinette Nisivoccia. *fn1 They based their motion upon the failure of defendants' attorney to obtain a Clawans charge before he commented upon plaintiffs' nonproduction of a certain witness. Holding that the comments had prejudiced the jury's verdict and thereby caused a miscarriage of Justice, the trial court granted plaintiffs' motion, from which defendants now appeal. We reverse.
A jury trial, lasting less than two days, established that around 9:30 a.m. on the rainy morning of May 10, 1990, Nisivoccia left her home to shop with her friend, Jane Komoviski. *fn2 The two women went first to drop off a form for plaintiff's son at a second floor office in a building owned by Ademhill Associates (Ademhill) and managed by Jackson Cross Company *fn3 at 5001 Hadley Road in South Plainfield. Upon arriving, they found no one in that office. Nisivoccia then followed Komoviski down the stairs to leave when she slipped and fell, fracturing a small bone in her left foot.
At trial, Nisivoccia described her accident as follows:
All of a sudden I felt my foot sliding, caught onto the rug, and I went sliding, and I hit that metal stripping there, but my girlfriend already had the door open. She broke my fall, and I fell.
After her fall, Nisivoccia testified that she and her friend had again walked up to the second floor to try to find someone to whom they could report her accident.
Vigorously contesting the issue of liability, defendants' attorney brought out various inconsistencies in Nisivoccia's testimony. For example, plaintiff insisted at trial that she did not have an umbrella with her on the day in question, although she professed her uncertainty on the point at her deposition. Nisivoccia later asserted that the mat upon which she had allegedly tripped was not embedded into the floor, and had slid with her when she fell, despite the fact that an indentation had been cut into the floor to hold the mat in place. She also denied having entered the building with an investigator to take photographs of the scene for trial, only to contradict that statement by admitting that she did show him where the accident had occurred. In addition, Nisivoccia testified that she had driven her friend to Komoviski's home after the fall, yet in her deposition she said that her friend had walked home from plaintiff's house.
In his summation, Ademhill's attorney indicated that he did not call any witnesses because the only one present at the accident who could be brought in as a witness was Komoviski. Nisivoccia had asserted on cross-examination, however, that her friend, who she had asked to testify, and who was interviewed for that purpose, had not witnessed her fall because she was facing the other way. The defense attorney primarily relied upon his cross-examination of Nisivoccia and her safety expert in arguing that they lacked credibility and that plaintiff had negligently caused herself to fall. Defendants' attorney questioned Nisivoccia's credibility by comparing her deposition testimony that Komoviski had walked home, with her trial testimony that despite her injured condition, she had driven Komoviski home. The attorney remarked:
They walk out get in the car. She drives. I said, you drive? She said, oh, that doesn't look good. I drove. And I drove Jane home, too. And then I go home. I don't go to a hospital or anything. I'm even driving the car. And, oh, Jane doesn't drive. You mean, Jane-- well, I don't think Jane drives. Where's Jane, ladies and gentlemen? Where is she? (Emphasis supplied).
Towards the close of the defense attorney's summation, he again focused the jury's attention on ...