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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...