July 28, 2011
MARY M. BODINE, PLAINTIFF-APPELLANT,
KUSER VILLAGE APARTMENTS, LEGOW MANAGEMENT COMPANY, L.L.C., DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1923-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 12, 2011
Before Judges Payne and Koblitz.
Plaintiff, Mary M. Bodine, broke her humerus in a slip and fall accident on ice and snow, occurring at the apartment complex at which she lived on Sunday, January 15, 2006. In August 2007, she filed suit against defendants Kuser Village Apartments and Legow Management Company, L.L.C., the owners and managers of the 336-unit apartment complex. Following a jury verdict of no cause for action, plaintiff has appealed, alleging as the result of statements by defense counsel in his opening and closing arguments, the trial judge should have granted plaintiff's request for a mistrial.
In his opening statement and closing argument, defense counsel suggested that the law firm retained by plaintiff, Stark & Stark, was the driving force behind the suit. In his opening, counsel stated:
What brings us here together today is a complaint. Mrs. Bodine, through her lawyers, filed a complaint against the property owner, and in their complaint they aver that as a result of a carelessness, recklessness, and negligence of the defendants, she was caused to suffer injuries. They don't say it was because of an accident, because if they said it was the result of an accident, there would be no case. In order to sue somebody and recover damages in New Jersey, you have to prove negligence.
The theme that the Stark & Stark firm was the real party in interest was further developed in counsel's closing, where he stated first:
[Plaintiff] is a very nice, lovely woman.
. . . We like this lady. We disagree with the averments contained in the lawsuit filed by the Stark & Stark law firm. We vigorously deny that we were negligent.
That statement was followed by comments vouching for the complex's assistant superintendent, Donald Gregg, and a further reference to Stark & Stark:
[Gregg] did everything he could under those circumstances, because he likes that lady, also because he's an honorable worker. . . . He's a good man. You know, Mrs. Bodine, as Mr. Gregg told you, still invites him into the apartment to change the light bulbs or whatever has to be done, but Stark & Stark files this lawsuit saying, well, they're negligent, they're careless, and they're reckless. Oh really? Where's the evidence to support that? I think they're relying on the nice appearance of Mrs. Bodine and the argument and say, well they're negligent.
Almost immediately thereafter, counsel remarked that
[a] lawsuit is nothing more than a Monday morning quarterback looking at everything you did and say[ing] you should've done this. You should've done that. . . .
And what Stark & Stark doesn't understand is not only does the apartment complex have a responsibility, and we accept that responsibility to tenants like Mrs. Bodine, but we have a responsibility to the workers.
And then, counsel argued:
Now, I thought it was very interesting Mrs. Bodine never complained to management about the snow and ice removal operations. She never complained. She never complained. And she had ample opportunity to complain. She had January, February, March, April, May, June, July, August, September, October, November, and December of 2006 to complain. Not one complaint. Stark & Stark filed the lawsuit in 2007.
Mrs. Bodine, since 2007, have you had any complaints with the apartment complex about snow and ice removal operations? No, Mr. Devlin. Oh, really, so who's driving this lawsuit? Who is driving this lawsuit? You know who's driving this lawsuit, and that's why we're here to defend the case.
That remark was followed by the further observation by counsel:
"I think this is a claim that's being driven without any basis[.]"
As a final matter, in discussing plaintiff's medical records and notations by her treating orthopedic surgeon, Dr. Darren J. Aita, regarding her lack of pain post-surgery, counsel commented that "[t]he lawyers had not ascended upon the doctor." At this point an objection was made by plaintiff's attorney to a factual inaccuracy in defense counsel's statement, and a mistrial was sought as the result of counsel's mischaracterizations of the role of Stark & Stark. The judge sustained the objection to the factual inaccuracy and gave the jury an instruction with respect to it. He reserved on the motion for a mistrial.
However, in the remaining portion of his summation, defense counsel made statements to counteract his prior characterization of the Stark & Stark firm. He stated:
Now, in conclusion, I don't mean to suggest anything negative about the filing of the lawsuit or the motives behind it. It's not my intention. Attorney Bratman's a fine lawyer, and he's [d]oing his job. And I don't intend and I do not insist on any negative inference being filed against a law - an act of filing a lawsuit, and I'm sure you don't feel that way - you feel that way [sic]. There's nothing to be adverse about filing a lawsuit.
What we contend, however, [is] that the allegations in the complaint are not provable, because there's nothing to suggest negligence on the part of the apartment complex. Indeed lawyers are required to file suit if their clients want that to happen. Mrs. Bodine is the plaintiff in this case not Stark & Stark or Attorney Bratman. They're fine lawyers, and they're fine good people, but Mrs. Bodine made the decision to launch this lawsuit, and she has the burden of proof.
At the commencement of his jury instructions, the trial judge further addressed the Stark & Stark issue, giving the following curative statement:
Okay, now, before you deliberate I will be the last person that you hear. And what I'm going to do is give you the charges as to the law. But before I do that I want to give a curative statement or make a statement correcting or telling you not to consider statements or comments made during the closing argument by Mr. Devlin. He made references to the firm of Stark & Stark. This lawsuit is not Stark & Stark against Kuser Village Apartment, Legow Management. It's Mary Bodine against the defendants. She's represented by Mr. Bratman who's a lawyer at Stark & Stark just like Mr. Devlin is an attorney with Devlin Associates, he's representing the defendants. So therefore you're not to consider the fact that whose representing what particular party [sic] in this case.
There's no evidence presented in this case that there was any motivation or any cause that Stark & Stark had any reason to cause this litigation. The evidence that's been presented in this case deals with Mary Bodine and her allegations against her landlord arriving out of the accident that occurred on January 15th, 2006. That's all that you're to consider. You're not to consider - and disregard any comments made by Mr. Devlin with respect to Stark & Stark.
We have no doubt that the statements made by defense counsel regarding the role of Stark & Stark in plaintiff's lawsuit were designed to be and were undeniably improper. Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 178 (App. Div. 2010). Their substance and the frequency of their repetition make that conclusion self-evident. However, after being called to task for uttering them, and while plaintiff's attorney's motion for a mistrial remained pending, counsel did offer a substantial retraction to the jury. Thereafter, the judge did not grant a mistrial, but instead gave a further curative instruction to the jury.
We have held:
In addressing a motion for a mistrial, the judge is ordinarily in the best position "to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Winter, 96 N.J. 640, 647 (1984).
Generally, we defer to the trial court's decision on a mistrial motion unless there is a clear abuse of discretion. State v. L.P., 352 N.J. Super. 369, 379 (App. Div.), certif. denied, 174 N.J. 546 (2002).
[Barber v. ShopRite of Englewood, 406 N.J. Super. 32, 51 (App. Div.), certif. denied, 200 N.J. 210 (2009).]
Our review of the record satisfies us that the judge did not abuse his discretion in this case, and that his curative instruction, coupled with defense counsel's retraction, was sufficient to cure any prejudice suffered by plaintiff as the result of counsel's initial remarks. Bender v. Adelson, 187 N.J. 411, 433 (2006). This was not a case, such as occurred in Geler v. Akawie, 358 N.J. Super. 437, 470 (App. Div.), certif. denied, 177 N.J. 223 (2003), in which the judge's curative instruction was insufficient to ameliorate the effect of judgmental lapses on counsel's part.
Plaintiff also claims that defense counsel exceeded the proper scope of opening argument when he referred to an out-of-court conversation with defense witness Gregg as to why plaintiff fell when her companion had not, when he argued that it would be impossible to prevent refreezing from occurring on the complex's sidewalks, and when he stated that the complex had made a policy decision to utilize its own employees to clear sidewalks in order to protect the privacy of tenants from the intrusive gauze of strangers.
In support of her position, plaintiff notes that:
The fundamental purpose of opening statements is "to do no more than inform the jury in a general way of the nature of the action and the basic factual hypothesis projected, so that they may be better prepared to understand the evidence."
[Amaru v. Stratton, 209 N.J. Super. 1, 15 (App. Div. 1985) (quoting Passaic Valley Sewerage Comm'rs v. George M. Brewster & Son, Inc., 32 N.J. 595, 605 (1960) (quoting Farkas v. Middlesex Cnty. Bd. of Chosen Freeholders, 49 N.J. Super. 363, 367-68 (App. Div. 1958)).]
Plaintiff then argues that defense counsel went far beyond outlining his theory of the case in making the statements that we have described.
While we agree that counsel's opening exceeded its proper scope, and that his statement regarding the reason for utilizing complex employees to clear its walks was not supported by trial evidence, we do not regard counsel's comments, singly or in combination, as having been capable of producing an unjust result. State v. Macon, 57 N.J. 325, 336 (1971); Szczecina, supra, 414 N.J. Super. at 184; R. 2:10-2.
We similarly find no plain error in defense counsel's statement that New Jersey law does not require "a landowner to remove every single speck of snow and ice." The statement does not constitute a misstatement of the law. See Mirza v. Filmore Corp., 92 N.J. 390, 395-96 (1983) ("The test is whether a reasonably prudent person, who knows or should have known of the condition, would have within a reasonable period of time thereafter caused the public sidewalk to be in a reasonably safe condition."). Counsel's comments in his opening statement that defendants' conduct did not constitute negligence constituted an accurate statement of those parties' defense - that plaintiff's injuries arose from an accident, not negligence on their part.*fn1
As a final matter, plaintiff argues that the judge should not have permitted counsel to apprise the jury in his opening of the opinion, contained in the office notes of plaintiff's treating physician, Dr. Aita, that a rotator cuff problem experienced by plaintiff was not related to her fractured arm. Plaintiff claims that counsel misrepresented Dr. Aita's opinions, since in a later report, issued in connection with this litigation, he found a causal connection between the rotator cuff injury suffered by plaintiff and the insertion of an intramedullary rod to stabilize and align plaintiff'sfracture. However, counsel accurately reported the note, which formed a basis for portions of counsel's cross-examination of the doctor at his de bene esse deposition. That it conflicted with the doctor's ultimate conclusion was a matter that counsel could legitimately demonstrate to the jury.
In summary, we are troubled by defense counsel's disregard for the proper scope of his opening and particularly by his suggestion that the firm of Stark & Stark was the motivating force behind plaintiff's suit. Nonetheless, we find the effect of the Stark & Stark comments to have been ameliorated by counsel's retraction and the judge's curative instruction; we find no reversible error with respect to the remainder.