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Risko v. Thompson Muller Automotive Group

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 1, 2010

PETER RISKO, INDIVIDUALLY AND AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF CAMILLE M. RISKO, A/K/A CARMELA RISKO, PLAINTIFFS-APPELLANTS,
v.
THOMPSON MULLER AUTOMOTIVE GROUP, INC. T/A HAMMONTON CHRYSLER JEEP DODGE, DEFENDANT-RESPONDENT, AND BEST UNIFORM COMPANY, DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3046-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 20, 2010

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 there's no caps.

THE COURT: It doesn't matter whether there's caps. That's an improper instruction to give this jury at this point.

[Plaintiffs' counsel]: To tell them to tell you if someone does that?

THE COURT: Yes, absolutely. That's their own individual view. That's your own individual view. [Interjections.]

THE COURT: You don't tell them to knock on the door. That's the point. That's the deal you don't get here. That's my job.

You don't tell them when they knock on the door. I'm furious to say the least.

[Plaintiffs' counsel]: I'm sorry, Your Honor. I believe it is proper for me to ask them if someone's not following the law, I know this was -

THE COURT: You finish this and I'm going to decide tonight whether I mistry this case.

[Plaintiffs' counsel]: Yes, sir.

[End Sidebar.]

[Plaintiffs' counsel]: May I finish the comment, Judge, about the law that there's no caps in New Jersey? His Honor, I'm not telling you what the law is. His Honor will tell you what the law is. I'm simply saying there are no caps in the state of New Jersey in the law.

THE COURT: I will see counsel in chambers.

Ladies and gentlemen of the Jury, we will see you tomorrow morning at 9 o'clock.

Thank you.

A long off-the-record discussion then took place in chambers between the court and both counsel. Both sides agree the following took place:

[Defense counsel]: [I] just want to remind Your Honor of what took place after you had calmed down and after we were discussing things. [T]he indication... from the [c]court to counsel was to get to [c]court at approximately 8:45, [the next morning], and we would go over a curative instruction or we would see how further, at the very least, it may not have been that strong... there's obviously not a record to it, but... we were going to talk about what we needed to do further.... [Plaintiff's counsel] and I were both here at 8:45. And Your Honor came out at approximately 9:15, after the jury had been called. And [plaintiff's counsel] was told to continue.

At the beginning of the next day's proceedings, plaintiff's counsel apologized to the court and to the jury for his conduct and statements, and proceeded to complete his closing arguments. There were no objections by defense counsel. The judge did not request argument on whether to mistry the case and never asked the attorneys for suggested curative instructions. In fact, at that time the judge did not give a specific cautionary instruction designed to address the concerns he voiced the previous afternoon and made no further comment on the matter.

In his charge to the jury, however, the judge explained, among other things, that statements by counsel as to damage amounts were to be disregarded and the amount of damages, if any, was to be decided by the jury alone. The judge reiterated that the attorneys' remarks were not evidence and that the jury's recollection of the testimony controlled.

Following the jury's verdict, defendant moved for a new trial on all issues. In support of its motion, defendant argued, among other things, that plaintiff's counsel's comments created "uncertainty amongst jurors of a free and fair deliberation that someone may be in the jury room looking to see if there was some type of undue bias." Plaintiff's counsel disagreed with defendant's characterization of his remarks as informing the jury that "the verdict in this case... can't be[,] as a matter of law[,] less than a million dollars" and challenged defendant's failure to object or proffer a curative instruction when the court reconvened the next morning. Specifically, plaintiff's counsel argued it was unfair for defendant to "hope" for a "no cause" verdict, then "come back and say well... the judge should have ruled a mistrial[.]... [I]f the defense position now is... you didn't give an instruction at all, you gotta say something then. We could have argued then."

The trial judge rejected all the evidential issues raised by defendant as not "sufficient to constitute grounds... to grant a mistrial." However, the judge found "the crux of the matter" to be plaintiffs' counsel's summation comments, which, in his view, did warrant a new trial on both liability and damages. Acknowledging that he should have either declared a mistrial or given immediate cautionary instructions, the judge said: "I was hoping that based on the verdict that perhaps we would come up with a fair and equitable verdict or we might come up with one, quite frankly, as hoped by the defense, which would be moot." The judge then explained the rationale for his grant of a new trial:

[w]hat concerns me with this trial is two things; [plaintiffs' counsel's] conduct and my lack of response to that. I don't think [defense counsel] needed to have an objection based upon my reaction when it was stated to the jury that there was an issue of caps. Certainly my reaction would indicate that the world was ready to explode. And I think most judges would have declared a mistrial right there. But I don't lightly declare mistrials.... And it wasn't until my instructions weren't followed a second time that I thought well, it's now 4:30 in the afternoon, let's go back and punt, everybody cool down and let me send the jury home anyway.... But it's obvious that my first rebuke didn't work because when [plaintiffs' counsel] turned and said to me should I continue to tell them about caps, obviously nothing that I said got through.... [Defense counsel] is absolutely correct at least to the best of my memory, that [I said] we would consider instructions the next day. So let me go back and look at those two elements.... I'm trying to create an atmosphere in which [the jury] can decide a case fairly and objectively knowing that what they do in that jury room is inviolate. It's something that is their decision at that point. And I think with what was said to them in the last closing arguments, the last moments of plaintiff's closing argument violated that rule. Now what rule did it violate? Very simply put, to tell the jury that if one person doesn't believe in the million dollar case despite the fact that there is a law in New Jersey that we don't have caps created what I'm going to describe as a vigilante atmosphere. We had a member of a jury or members of a jury who if somebody was disagreeing with them as to an amount were being instructed by plaintiff's counsel to let [the jury attendant] know so that [she] could let the judge know. In other words, let's find out who the tattle-tale is in this process. I don't think that creates the type of atmosphere that we want in jury decisions.... [T]he message that was sent to that jury was if someone doesn't believe in the million dollar case that somehow they should be turned in, that somehow they should be excised from the group. And that's not what we do when juries are deciding.... [I] think that's the atmosphere that was created. Should I have instructed them that that's not the case? Yes. Did I do it? No. Why? Because I was hoping that based upon the verdict that perhaps we would come up with a fair and equitable verdict or we might come up with one, quite frankly, as was hoped by defense, which would be moot. We wouldn't have to get to that. [(Emphasis added).]

The judge further explained that he felt compelled to include liability in this determination as "the entire process was tainted."

It is axiomatic that 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." R. 4:49-1(a). A jury verdict is entitled to considerable deference and "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). On this score, the trial judge is cautioned against evaluating "'the evidence as would a jury to ascertain in whose favor the evidence preponderates'", id. at 598 (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 455 (1962)), and further admonished "'not [to] substitute his [or her] judgment for that of the jury merely because he [or she] would have reached the opposite conclusion....'" Ibid. (quoting Dolson v. Anastasia, 55 N.J. 2, 6 (1969)).

The comparative strictness of these rules is historic in nature, with roots deep in the common law. In the American system of justice the presumption of correctness of a verdict by a jury has behind it the wisdom of centuries of common law merged into our constitutional framework. Of course such a verdict is not sacrosanct and can never survive if it amounts, manifestly, to a miscarriage of justice. The resolution of this latter question is reposed in the courts. Respect for our constitutional systems requires that this obligation be approached, in all contingencies, with the utmost circumspection, lest the courts intrude upon the responsibilities which have traditionally, intentionally and constitutionally been vested in a jury of citizens. [Ibid.]

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 manifest lack of inherently credible evidence to support the finding, obvious overlooking or underevaluation of crucial evidence, [or] a clearly unjust result'....'" Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996) (quoting Baxter, supra, 74 N.J. at 599), certif. denied, 149 N.J. 34 (1997).

Our standard of review of decisions on motions for a new trial is the same, namely, whether there was a miscarriage of justice under the law. Bender v. Adelson, 187 N.J. 411, 435 (2006); Diakamopoulus v. Monmouth Med. Ctr., 312 N.J. Super. 20, 36-37 (App. Div. 1998).

Although an appellate court has a duty to canvass the record to determine whether a jury verdict was incorrect, that verdict should be considered "impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice." [Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 135 (1990) (quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)).]

"Once the jury is discharged, both trial and appellate courts are generally bound to respect its decision, lest they act as an additional and decisive juror." Ibid. (citing Dolson, supra, 55 N.J. at 6).

Here, although defendant raised a number of other issues in its motion for a new trial, the judge, in granting relief, focused exclusively on plaintiff's counsel's comments in summation, specifically, those which, according to the court, suggested a damages floor of $1 million and encouraged jurors to report those of its members who disagreed.*fn2 It is well-settled, however, that "'counsel is allowed broad latitude in summation....'" Bender, supra, 187 N.J. at 431 (quoting Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000)). "Counsel's arguments are expected to be passionate, 'for indeed it is the duty of a trial attorney to advocate.'" Jackowitz v. Lang, 408 N.J. Super. 495, 504-05 (App. Div. 2009) (quoting Geler v. Akawie, 358 N.J. Super. 437, 463 (App. Div.), certif. denied, 177 N.J. 223 (2003)). "There is no harm in seeking to maximize a recovery, even when incidental benefit is thereby achieved." Geler, supra, 358 N.J. Super. at 463. At the same time, however, "trials must be conducted fairly and with courtesy towards the parties, witnesses, counsel, and the court[,]" ibid., and arguments should be "grounded in the evidence and free from any 'potential to cause injustice[.]'" Jackowitz, supra, 408 N.J. Super. at 505 (quoting Geler, supra, 358 N.J. Super. at 463). It is only when the "summation commentary transgresses the boundaries" of broad latitude and "the comments are so prejudicial that 'it clearly and convincingly appears that there was a miscarriage of justice under the law[,]'" that a new trial must be ordered. Bender, supra, 187 N.J. at 431 (quoting R. 4:49-1(a)).

Fleeting comments, even if improper, may not warrant a new trial, particularly when the verdict is fair. See, e.g., Dolan v. Sea Transfer Corp., 398 N.J. Super. 313, 332 (App. Div.), certif. denied, 195 N.J. 520 (2008). Moreover, the "[f]ailure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made," and it "also deprives the court of the opportunity to take curative action." State v. Timmendequas, 161 N.J. 515, 576 (1999)[,] [cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001).]

Where defense counsel has not objected, we generally will not reverse unless plain error is shown. R. 2:10-2. [Jackowitz, supra, 408 N.J. Super. at 505.]

Our courts have found mistrials to be necessary where counsel's arguments amounted to "'unfair and prejudicial appeals to emotion'" or "'insinuations of bad faith on the part of defendants who sought to resolve by trial validly contested claims against them.'" Ibid. (quoting Geler, supra, 358 N.J. Super. at 468-69). Such instances include where counsel has: drawn a false inference that the defendants had no insurance and that a verdict would cause them to lose their home, Tomeo v. N. Valley Swim Club, 201 N.J. Super. 416, 421 (App. Div. 1985); attacked the character and parental fitness of the plaintiff, decedent's father, and inferred that he would secure the entire wrongful death award, even though the complaint was filed in a purely representative capacity on behalf of decedent's next of kin, Wimberly v. City of Paterson, 75 N.J. Super. 584, 602-04 (App. Div.), certif. denied, 38 N.J. 340 (1962), overruled in part on other grounds by Johnson v. Dobrosky, 187 N.J. 594 (2006); and told the jury the defendant was forced to pay for his own counsel despite knowing the defendant's insurance company was covering the expense, Haid v. Loderstedt, 45 N.J. Super. 547, 550 (App. Div. 1957). Examples of mistrial-worthy commentary by plaintiff's attorneys in personal injury cases include references to "sending a message," Jackowitz, supra, 408 N.J. Super. at 500-01; the Golden Rule, Geler, supra, 358 N.J. Super. at 464; and the inappropriate inference of vicarious liability through use of the phrase "captain of the ship," Diakamopoulos, supra, 312 N.J. Super. at 33-36.

In Geler, supra, for instance, the "plaintiff[s'] counsel incessantly and impermissibly invited the jury to view the case as though they, not [the plaintiffs], were the parents of the child, and to view that child's afflictions and the distress caused thereby as though they themselves experienced it." 358 N.J. Super. at 465. "Counsel further infected his closing with arguments addressed to the blighted future economic prospects of [the] plaintiffs' child, although she had no claim for damages[.]" Ibid. "Moreover, in his closing counsel misstated material elements of the evidence... [and] consistently misrepresented [defendants'] testimony regarding their standard office procedures[.]" Id. at 466. And finally, "counsel filled his closing argument with derisive and derogatory comments regarding defendants, their counsel, their witnesses[,] and their evidence in general, the cumulative effect of which undoubtedly affected the jury's deliberations." Id. at 468.

Here, in stark contrast, plaintiff's counsel's summation had none of the unfair excess or prejudicial appeal to emotion that characterized the attorney's remarks in Geler. To reiterate, the court found the following isolated commentary offensive:

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.

It is, however, unclear whether the judge's objection was to substantive content or simply counsel's perceived usurpation of the court's charging prerogative.*fn3 If truly the former, we assume the judge would have promptly took action to either strike the offending remark or issue a curative instruction or both. Instead, he expressed his displeasure over counsel's commentary without any remedial or corrective action whatsoever. Moreover, the next day when plaintiff's counsel resumed his closing remarks, the judge remained silent. As did defense counsel, who voiced no objection, requested no mistrial, and proffered no corrective or cautionary charge for the judge to instruct the jury. Clearly, the lack of any immediate remedial response by either court or defense counsel bespeaks the benign nature of the remarks that later formed the exclusive basis for the grant of a new trial.

Lest there be any doubt, we most certainly do not condone the comments that formed the basis of the judge's grant of a new trial. To the extent counsel's remarks may have insinuated a floor of $1 million on plaintiff's damages, they were inappropriate and improper as imparting counsel's personal evaluation of the case. Equally offensive, as invasive of the jury's province, is any commentary on how jurors should conduct deliberations, such as alleged here, requesting them to report any recalcitrant member to the court. As to the latter, we emphasize that "[j]uries deliberate in secrecy to foster robust, thought-provoking, uninhibited debate." Ragusa v. Lau, 119 N.J. 276, 281 (1990) (citing State v. LaFera, 42 N.J. 97, 106 (1964)). "Such debate 'might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world.'" Ibid. Thus, comment such as the one at issue here could have a chilling effect on the "uninhibited debate," that occurs within the jury room, especially if jurors are made to feel that their deliberations will be reported to the judge if deemed inappropriate by a fellow juror.

Having said that, the criticized comments, although better left unsaid, were neither inflammatory nor unfairly prejudicial, and therefore did not have the capacity to yield an unjust result. They did not misrepresent the evidence, misstate the law, appeal to emotion, or personally attack either defendant or its counsel. Contrary to defendant's belated claims on its motion for a new trial, counsel's remarks neither suggested in fact a damages award floor of $1 million nor commanded the jury to report any recalcitrant member who disputed that baseline amount. Rather, counsel's remarks must be viewed in context. They were brief and fleeting, following a seven-day trial and occupying only a minute portion of counsel's summation. The comments were made while referring to the amount - $1,060,000 - written on the board by plaintiff's expert, Dr. Wolf, as representing plaintiff's wrongful death economic losses. The point being made by plaintiff's counsel was that the decedent's Estate's survivorship claims for pain and suffering and loss of enjoyment of life were in addition to the $1 million economic loss estimated by the expert, and that the $1 million was not to be understood as some arbitrary cap upon damages.

We do not view such commentary as either blatant bullying of the jury or a deliberate attempt to abrogate the court's charging function. Nor do we agree with the trial judge's harsh characterization that counsel's remarks created a "vigilante atmosphere" in the jury room. While counsel's comment to the jury about communicating with the court was clearly inappropriate, we do not discern any of the dire consequences attributed to it by the judge. The reference, just as reasonably, may be construed as a call to the jury to follow the law, consult with the court for clarification if any confusion arises, and avoid basing its decision merely on an arbitrary dislike for damage awards over $1 million.

Whatever interpretation may be lent to counsel's remarks, they were ultimately neutralized by plaintiff's counsel's apology the very next day and by the court's clear and firm final instructions to the jury. When counsel resumed his closing the following morning, he first apologized to the jury, and explained that only the court would inform them on the law of damages and would instruct them on how to communicate with the judge, if at all, if they had questions. And the court did just that. In its jury charge on damages, after admonishing that specific amounts had been "indicated by counsel and quite frankly incorrectly[,]" the court expressly informed the jury to disregard any such reference by counsel. The court further explained that it was not suggesting that the jury award any damages and that the decision whether to award damages at all was theirs alone. After detailing the distinction between wrongful death and survivorship damages, the court fully explained the jury's proper role in this determination: keep in mind [that] by instructing you on damages [that] does not mean that I am ordering you to find damages. That's something that again you're the determiners of fact, that's entirely up to you. The amount of damages is entirely up to you.... That's something that is your province to deal with. It's not mine, it's not counsel's province. It's yours. You are the determiners of fact in this case. Furthermore, to specifically counteract the perceived divisive effect of counsel's comment, the court stressed the notion of the dignity and sanctity of the jury room, and the wide latitude within which it operates, informing the jury that [n]obody's going to be listening.... And you're going to be able to finally have control over your lives if you will. We've been kind of telling you when to come in and when to go. Now you're going to tell us because you're going to take as much time as you decide you deem necessary.... So when you get in that jury room everybody's vote is going to count. Now if you want to go around the ta[b]le and talk about it, you want to talk about it individually, again, it's up to you. We don't tell you what to do at this point.

Finally, as noted, the court included general language to the effect that statements by the attorneys were not evidence, and were to be disregarded if they conflicted with a juror's recollection of the testimony. We are satisfied that the trial judge's "clear and firm" jury charge cured any potential for prejudice created by plaintiff's counsel's summation remarks. City of Linden v. Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div.), certif. denied, 180 N.J. 356 (2004). The isolated lapses in closing argument alone were not sufficient to constitute a "miscarriage of justice," as evidenced by a jury verdict supported by the trial proofs.

Evidently, the trial judge entertained a different, albeit unarticulated, view of the evidence, since it appears that he was willing to let the matter proceed to verdict without immediate corrective instructions, yet thereafter granted a new trial when a $1.75 million verdict was returned.*fn4 Yet, particularly in actions for damages, courts should hesitate to grant a motion for a new trial, doing so only where it is "'clearly and convincingly' persuaded that it would be manifestly unjust to sustain the award." Johnson v. Scaccetti, 192 N.J. 256, 281 (2007) (citing R. 4:49-1(a)). "Because a jury is given wide latitude in determining pain and suffering damages, the standard for granting a new trial or remittitur is necessarily high. The 'judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion....'" Ibid. (quoting Baxter, supra, 74 N.J. at 598). Consequently, "[a] trial court should not order a new trial... unless it is so clearly disproportionate to the injury and its sequela... that it may be said to shock the judicial conscience. The verdict must be 'wide of the mark' and pervaded by a sense of 'wrongness.'" Ibid. (quoting Baxter, supra, 74 N.J. at 598-99, 604).

We find that the jury verdict is supported by the record. We, therefore, are not "clearly and convincingly" persuaded that it would be manifestly unjust to sustain the award because of counsel's claimed lapses. They were neither flagrant, multiple, or continuing. Moreover, the court's jury instructions were sufficient to ameliorate any prejudicial effect arising from counsel's isolated comments in closing argument. After all, "[w]hile a [litigant] is entitled to a fair trial, he is not entitled to a perfect trial." State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000) (citing State v. Feaster, 156 N.J. 1, 84 (1998), cert. denied sub nom. Kenney v. New Jersey, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001)). Accordingly, we conclude the judge abused his discretion in granting defendant's motion for a new trial.

Reversed.

CARCHMAN, P.J.A.D. (concurring in part; dissenting in part)

While I recognize that in the heated battle that is a trial, "counsel is allowed broad latitude in summation[,]" Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000)), there are limits to advocacy so as to insure that a trial is fair and the result, just.

In this hotly-contested litigation, plaintiff's counsel offered the following during summation:

[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.

I am of the view that these comments exceeded the boundaries of proper advocacy, warranting a new trial as to damages. Accordingly, I respectfully dissent, in part, and would affirm the order as to a new trial as to damages.*fn5

During his summation, counsel misquoted the Eighth Amendment of the Constitution of the United States as referring to prisoners of war and stated that "even prisoners of war, people we hate, are not supposed to be tortured. What [decedent] went through was torture." He did qualify his comments by stating "They didn't intend to put her through that[,]" but then added "[b]ut now they have to pay for that." (Emphasis added.) This case did not involve prisoners of war or torture but was an action for damages resulting from a slip and fall on a rug in an auto dealership resulting in multiple fractures. This was followed by complications in the hospital and, ultimately, death. No one can argue that plaintiff's injuries were not substantial or painful, but counsel's suggestion, linking and equating defendant's conduct to torture as well as invoking some conjured protection under the Bill of Rights, was neither fair commentary on the evidence nor an argument free from the potential for injustice. Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009). These arguments were designed to inflame the jury and were unwarranted.

This was followed by additional inappropriate comments. Eager to impress the jury with the proper argument that there are no caps on damages, counsel presented the jury with hypothetical examples of conduct by jurors that, according to counsel, necessitated the jury reporting such conduct to the judge. Counsel alluded to a hypothetical juror suggesting that the juror did not believe in damages over a million dollars or talking about a reference to "my case or my uncle has a case," and then instructed the jury to "ask for the judge. Because what they're doing is ignoring the law."

As the majority recognizes, the jury room, during deliberations, must be a sanctuary for free and open discussion among jurors without a scenario of juror's overtly policing the conduct and comments of other jurors. There are instances when juror may say and act inappropriately, injecting inappropriate racial or bias commentary that has no place in deliberations, and those comments should be brought to the judge's attention. But where the issue is the quantum of damages, and the judge properly instructs the jury as to the elements and factors relevant to a jury award, we assume jurors follow the law as instructed. We entrust and leave to the other jurors the obligation to counsel those jurors who might misunderstand or suggest award biases that the judge has instructed otherwise, and the verdict must be rendered within the framework of the judge's instructions. Counsel cannot advise jurors during summation that they are obligated to report to the judge any comments or colloquy they might hear as part of the deliberative process that might be interpreted as limiting damages.

But there is a more troublesome context at play here. Counsel's constant references to the million dollar verdict as a threshold for reporting on a fellow juror violates a basic principle of our jurisprudence regarding damage summations. Embedded in our rules is the clear prohibition against suggesting a verdict. Botta v. Brunner, 26 N.J. 82,99 (1958). Counsel's comments, in the guise of an admonition to the jury, involved a repeated reference to a million dollars as the threshold verdict. I acknowledge that the proofs "on the board" exceeded that amount, and counsel was at liberty to comment on the proofs presented by his economic experts, yet he was not free to suggest to the jury that a verdict less than a million dollars was in some way the imposition of a cap on damages or malfeasance on the part of a fellow juror. The argument was carefully conceived and crafted to suggest a minimum award to plaintiff in violation of well-established jurisprudence.

The cumulative impact of these comments was such as to so taint this damage verdict and warrant a new trial as to damages. Accordingly, I dissent as to the issue of a new trial as to damages.


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