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Jackowitz v. Lang

July 31, 2009

FREDDI JACKOWITZ, PLAINTIFF-APPELLANT,
v.
STEPHANIE LANG, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-757-04.

The opinion of the court was delivered by: Carchman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 23, 2009

Before Judges Carchman, R. B. Coleman and Sabatino.*fn1

This appeal requires us to consider the propriety of an advocate's argument that the jury should "send a message" by its award. Our courts have addressed this issue in criminal and punitive damage cases. Here we consider the issue in a civil trial where the sole issue in dispute is whether plaintiff met the verbal threshold and if so, the quantum of compensatory damages. At trial, the use of the argument combined with other inappropriate comments caused the trial judge to set aside a damage award verdict in favor of plaintiff and order a new trial. The new trial, devoid of the offending comments, resulted in a "no cause" verdict. We conclude that the use of "send a message" when the sole issue is compensatory damages is inappropriate. Counsel's assertions in this case, both on opening and summation, were replete with improper commentary and as such support our affirming the trial judge's discretionary decision to grant a new trial.

This is a verbal threshold case involving a three-car collision wherein plaintiff Freddi Jackowitz's vehicle was struck by a vehicle driven by defendant Stephanie Lang.*fn2 Also involved was a vehicle driven by another defendant Katherine DeBaker*fn3 . Defendant apparently "ran a red light" causing the accident. At the time of the accident, plaintiff was stopped at the light.

As a result of the collision, both plaintiff and DeBaker suffered injuries. Just prior to jury selection, defendant stipulated as to liability. Consequently, plaintiff's complaint against DeBaker was dismissed, and both plaintiff's and DeBaker's claims were tried on the issue of damages only.

During the four days of trial, the sole witnesses, with the exception of a character witness called on behalf of plaintiff, were plaintiff, DeBaker and five medical experts. As liability had been stipulated, aside from plaintiff's and DeBaker's description of the accident, no other testimony was produced regarding defendant's negligence or the circumstances of the accident.

The testimony of the witnesses was secondary, however, to comments made by counsel during the course of opening and summation. During plaintiff's opening, counsel said:

The main reason you're here is because Ms. Clericuzio's client Stephanie Lang caused a car accident. And as a result of that car accident Ms. Jackowitz has permanent injuries that she's going to have for the rest of her life. That's it in a nutshell. This is a tort case. Ms. Jackowitz has asked the Court to basically send a message to the defendant and to other drivers through your decision that the type of behavior from Mrs. Lang and her abuse of the privilege of driving an automobile cannot be commenced [sic], (phonetic) that when people suffer injuries there must be a consequence. All right?

[(Emphasis added).]

Counsel continued:

And let me ask you this question; is there a larger reason that you're here that we've taken six hours to get to this point? Are you here simply for Ms. Jackowitz and Ms. DeBaker? Or is there a larger reason that you're here? Certainly, as I said, you're here for Ms. Jackowitz. You're here to decide how to make her whole, how to even out those scales. But there's a larger reason you're here and that's to send a message that when somebody abuses the privilege of driving, when somebody cannot wait another 40 seconds for a light to change that there has to be consequences. And in this case Ms. Lang's refusal or inability to wait another 40 seconds for a light to change has had consequences.

Ms. Jackowitz and I have been basically waiting for four years for you to send a message to Ms. Lang and to the other people that use the roads in New Jersey that there need to be consequences when people do the types of things like running lights at that intersection that causes people impairment, loss of enjoyment of life. Thank you. [(Emphasis added).]

During a colloquy before trial, even though defense counsel did not specifically object, the trial judge raised the issue of the "send a message" comments. He neither provided a cautionary instruction to the jury ...


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