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Peter Risko, Individually and As Administrator Ad Prosequendum of the v. Thompson Muller Automotive Group

June 7, 2011

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



On appeal from the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

Argued March 29, 2011

JUDGE STERN (temporarily assigned), writing for a majority of the Court.

In this appeal, the Court considers whether a new trial on both liability and damages is warranted in light of comments madeby plaintiff's attorney during summation.

Peter Risko, individually and as administrator of the estate of his late wife, Camille, filed a wrongful death action against defendant, Thompson Muller Automotive Group, Inc. (dealership). Camille slipped and fell in the automobile showroom. Risko alleged that because of the fall, Camille's hip was fractured and required surgery. She spent several weeks in a rehabilitation center where she contracted colitis. When that condition developed into septic shock, Camille was rushed to the hospital, where she died. Risko's medical expert concluded that her death from septic shock was ultimately the result of the injuries sustained from the hip fracture caused by the fall. Risko's expert testified that the dealership improperly placed the carpet and runner, allowed them to become rain-soaked during a storm and also allowed water to accumulate on the exposed tile floor, and thus created an unreasonably dangerous condition. The dealership disputed the floor's condition and disputed a connection between it and Camille's fall, the fall and her hip fracture, and the fracture and her death, but it produced no contrary medical proof.

Risko's economic expert concluded that total economic losses were $1,034,307. During summation, Risko's attorney cited the Eighth Amendment of the U.S. Constitution as stating that prisoners of war are not supposed to be tortured; stated that Camille went through torture and defendant has to pay for that; and told the jury to report to the judge if any of them could not find more than $1 million in damages because then they would be "ignoring the law." The trial judge interrupted, held a side-bar and stated he was considering declaring a mistrial, and, after releasing the jury, had a long discussion with the attorneys. The next day, the judge instructed Risko's attorney to continue summation, which he did, after first apologizing to the court. Defense counsel did not object to the summation. The judge did not ask the attorneys to argue on whether to mistry the case and he did not give a specific cautionary instruction to the jury. In his final instructions, however, the judge explained to the jury that counsel's statements about damages are not evidence and that the amount of damages, if any, was for the jury alone to decide. The jury returned a verdict against the dealership and awarded a total of $1,750,000 in damages.

The dealership moved for a new trial, arguing that Risko's attorney's summation was inappropriate because it created "uncertainty amongst jurors of a free and fair deliberation" and produced an unjust result; and that a strong curative instruction should have been given. The trial court agreed, set aside the verdict, and granted a new trial on liability and damages. The judge acknowledged that he should have declared a mistrial or given immediate cautionary instructions because "the message that was sent to that jury was if someone doesn't believe in the million dollar case . . . they should be turned in." The judge found that he was compelled to grant a new trial on all issues based on the interest of fairness and because he had to assume "the entire process was tainted."

Over a partial dissent, the Appellate Division reversed. The majority noted that the trial court did not strike the offending remarks or issue a curative instruction, and that defense counsel did not request a mistrial or offer a corrective jury charge, which would be expected if they truly found the summation objectionable. The majority emphasized its displeasure with Risko's suggestion of a $1 million damages floor and commentary on how the jurors should conduct their deliberations. Nonetheless, the majority found that when the "brief and fleeting remarks" were viewed in context, they were not "inflammatory" or "unfairly prejudicial" and they were mitigated by counsel's apology and the court's final jury instructions on the day after the summation. Therefore, the majority held that the jury verdict is supported by the record; it would not be manifestly unjust to sustain it; the jury instructions were sufficient to cure any prejudicial effect arising from counsel's comments in closing argument; and, thus, the judge abused his discretion in granting the dealership's motion for a new trial.

In his dissent, Judge Carchman expressed the view that the summation exceeded the bounds of proper advocacy and warranted a new trial as to damages. He found that Risko's attorney improperly compared the dealership's conduct to torture and conjured a constitutional protection in order to inflame the jury, and that counsel's references to a $1 million minimum as a threshold to report on a juror violated the prohibition against suggesting a verdict. In Judge Carchman's view, the cumulative impact of counsel's comments during summation tainted the damage verdict, warranting a new trial on damages.

The Court granted the dealership's motion for leave to appeal. The opinion of the court was delivered by: Judge Stern

Argued March 29, 2011

JUDGE STERN (temporarily assigned) delivered the opinion of the Court.

Pursuant to leave granted, plaintiff Peter Risko, individually and as administrator of the estate of his late wife, Camille Risko (decedent),*fn1 appealed to the Appellate Division 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 Muller Automotive Group, Inc., t/a Hammonton Chrysler Jeep Dodge (dealership). The Appellate Division reversed the grant of a new trial on both liability and damages, over Judge Carchman's dissent, which would have granted a new trial on damages only.

We thereafter granted defendant's motion for leave to appeal from the Appellate Division's judgment.*fn2 Risko v. Thompson Muller Auto. Group, Inc., 204 N.J. 34 (2010). We cannot allow the award of damages to stand in light of plaintiff's summation and the trial judge's perception that a new trial was required. Accordingly, we reverse the Appellate Division in part, and order a new trial as to damages only, essentially for the reasons expressed in Judge Carchman's dissent.

I. We recount the relevant facts as developed in the Appellate Division's unpublished opinion.

On November 21, 2005, sixty-nine-year-old Camille Risko slipped and fell in defendant's automobile showroom. According to her husband, who accompanied her to the dealership, a plastic runner lying on top of the carpet was waterlogged at the time. Plaintiff's retail premises safety expert, Bill Julio, concluded that defendant allowed an area of the 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, leaving some wet and exposed tile, and the lack of adequate inspections created a "false sense of security," and an unreasonably hazardous and dangerous condition, which violated the standard of care. The condition of the floor was disputed by defendant's sales manager, Raymond Hall, who denied that the carpet was wet or that there were any plastic runners on top of the carpet.

Plaintiff alleged that as a result of the fall, Camille sustained a fractured arm and hip. The hip injury required surgery, and thereafter she spent several weeks in a rehabilitation center where she 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 medical expert, Dr. Donald Jason, a forensic pathologist, presently a medical examiner in North Carolina and Associate Professor at the Wake Forest Medical School, and also an attorney, concluded that Camille's hip fracture was caused by the "slip and fall," and 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 the fracture of decedent's hip caused by her slip and fall. Dr. Jason believed that the slip and fall, as decedent had described it, caused the fractured hip.

Although defendant contested the connection between the carpet's condition and decedent's fall, between the fall and decedent's hip fracture, and between the fracture and her death, defendant produced no contrary medical proof or expert testimony.*fn3 As related to economic damages, plaintiff called economic expert, Dr. Robert P. Wolf, who opined that decedent would have lived for sixteen more years, during which she would have supplied emotional support for plaintiff, and that for

10.68 of those years, decedent would have been able to provide household services and physical support to her spouse. Dr. Wolf calculated that, based on these projections, plaintiff suffered economic loss in the amount of $143,988 in household services, $328,012 in "advice, counsel, support and companionship," and $562,307 in "passive security" constituting "sleep time [and] on-call services"*fn4 that a spouse provides. Dr. Wolf concluded that the sum of these figures, $1,034,307, represented the discounted value of plaintiff's economic loss. Defendant vigorously disputed the quantification and legitimacy of the "sleep time" calculations by plaintiff's expert.

At the close of evidence and following the court's final instructions, the jury returned a verdict finding defendant solely negligent, that its negligence was the proximate cause of Camille's fall and injuries, and that her left hip fracture was the cause of her death. The jury awarded plaintiff $1,210,319 for "financial losses sustained by the [decedent's] survivors" and $539,681 for pain and suffering before her death, for a total amount of $1,750,000.

Defendant moved for a new trial, primarily on the basis of comments by plaintiff's counsel in summation. Defendant urged that the summation was "completely inappropriate," unduly prejudicial and produced an "unjust result" because it suggested that the jury had to find more than $1,000,000 in damages and directed jurors to report to the judge any of their members who could not do so because "they were violating the law" if they did. Moreover, defendant asserted that "a strong and effective curative instruction [should have been] given to the jury." The trial court agreed, and granted a new trial.

On appeal, plaintiff claimed the trial court erred in its grant of a new trial, and a majority of the Appellate Division reversed the decision. Judge Carchman dissented believing that a new trial on damages was warranted, as the trial judge had ordered, but agreed with the majority that a new trial as to liability was unnecessary. He would have limited the new trial to damages only.

II. Because plaintiff's counsel's summation was the exclusive basis for the trial court's decision to set aside the verdict and grant a new trial, we set it out at some length:

[PLAINTIFF'S 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 [the trial] judge . . . . 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 trial judge interrupted, and called counsel to sidebar, where the following exchange occurred:

[Plaintiff's counsel]: Yes, Your Honor.

THE COURT: I'm going to mistry this ...


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