On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3046-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Parrillo and Lihotz.
By leave granted, plaintiff Peter Risko, individually and as administrator of the estate of his late wife,*fn1 Camille Risko (decedent), appeals from a June 30, 2009 order of the Law Division setting aside a jury verdict in their favor in this wrongful death and survivorship action, and granting a new trial to defendant Thompson Miller Automotive Group, Inc. t/a Hammonton Chrysler Jeep Dodge (dealership). For the following reasons, we reverse.
On November 21, 2005, sixty-nine year old Camille Risko slipped and fell in defendant's automobile showroom, somewhere near the end of a three-foot by ten-foot area of carpet placed on the showroom floor. According to her husband, who accompanied Camille to the dealership, a dark plastic runner was lying on top of the carpet, which was so waterlogged that it "squished" when he stepped on it, "like a wet sponge." Plaintiff's retail premises safety expert, Bill Julio, concluded that defendant allowed an area carpet in its showroom to become rain-soaked during a rainstorm and also allowed water to accumulate on its tiled floor. Julio opined that improper placement of the carpet and the black plastic runner over the carpet, the exposed tile, and the lack of adequate inspections created an unreasonably hazardous and dangerous condition, which violated the standard of care. The showroom floor's condition was disputed by defendant's sales manager, Raymond Hall, who inspected the area and denied that the carpet was wet or that there were any plastic runners on top of carpets in the showroom.
The issue of proximate causation was also disputed. Plaintiff alleged that as a result of the fall, Camille sustained a fractured arm and hip. The hip injury required surgery, and thereafter several weeks in a rehabilitation center, where Camille contracted C-difficile colitis, a severe inflammation of the colon. When the condition developed into septic shock, Camille was rushed to the hospital, where she died on January 1, 2006. Plaintiff's expert, Dr. Donald Jason, a forensic pathologist, concluded that Camille's hip fracture was a substantial result of the slip and fall, and that her subsequent death from septic shock was ultimately the result of the injuries she sustained from the accident. Specifically, the doctor found that the decedent died from septic shock complicating her C-difficile colitis due to antibiotic therapy for a urinary tract infection. The infection, in turn, was caused by a urinary bladder catheterization that was necessitated by a fracture of decedent's hip caused by her slip and fall. Dr. Jason agreed that there was no doubt that the slip and fall, as decedent described it, caused the fractured hip.
Although defendant contested the connection between the carpet's condition and decedent's fall, and further between the fall and decedent's hip fracture, defendant produced no contrary medical proof and did not dispute the causal link between decedent's hip fracture and her death forty days later.
Defendant also did not produce any expert proof refuting plaintiff's damages claim. In this regard, plaintiff produced an economic expert, Dr. Robert P. Wolf, who concluded that plaintiff had suffered economic damages of $1,034,307 as a result of Camille's death, including $143,988 for loss of household services, $328,012 for loss of advice, counsel, support, and companionship, and $562,307 for lost sleep-time, on-call services. At the close of evidence and following the court's instruction, the jury returned a verdict finding defendant solely negligent and awarding plaintiff $1,210,319 in compensatory damages and $539,681 for pain and suffering, for a total amount of $1.75 million.
Defendant moved for a new trial, primarily on the basis of comments by plaintiff's counsel in summation supposedly suggesting a floor of $1 million in damages and directing jurors to report any of their peers who objected to a "million dollar case." The court agreed, concluding:
But I think in the interest of fairness, I think in the interest of the rule that says we create a fair trial, we create an atmosphere in which a jury can decide a case fairly and without worry that we're going to somehow interfere, I think in those interests I'm compelled together with [plaintiffs' counsel's] conduct and my lack of an inhibiting instruction, to order a new trial. And that's what I am going to do.
On appeal, plaintiff claims the court erred in its grant of a new trial. We agree.
Because plaintiff's counsel's summation comments formed the exclusive basis for the court setting aside the jury's verdict and granting defendant a new trial, we set them out at length:
[Plaintiffs' counsel]: [T]he Eighth Amendment of the Constitution of the United States in the Bill of Rights says even prisoners of war, people we hate, are not supposed to be tortured. What [the decedent] went through was torture. They didn't intend to put her through that. But now they have to pay for that.
I have... concerns. And this is from talking to other jurors and judges. And Judge Kane. When you go to deliberate if someone for some reason has not disclosed that they have a prejudice about awarding money in a death case please tell the judge because that would not be following the law. If someone starts to say I have a case or my uncle has a case, that has nothing to do with this case. Nothing.... And if someone goes into the jury room and says... I don't believe in damages of over a million dollars, because there are people that believe that, you can never have a million dollar case. Well why? Well because I just don't believe that, it's what's called an arbitrary cap on damages. If someone says that in the jury room please knock, tell [the jury attendant], ask for the judge. Because what they're doing is ignoring the law.
THE COURT: [Counsel], can you approach, please. [At sidebar]
[Plaintiff's counsel]: Yes, Your Honor.
THE COURT: I'm going to mistry this case right now.
[Plaintiffs' counsel]: Why?
THE COURT: Why? You know damn well that those are instructions that I give.
[Plaintiffs' counsel]: There's no caps on damages -
THE COURT: It doesn't matter whether there's caps.
[Plaintiffs' counsel]: I'm telling them ...