Risko v. Thompson Muller Auto. Group Inc.

• Decision Date: 07 June 2011
• Citation: 206 N.J. 506,20 A.3d 1123
• Parties: 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.
• Court: New Jersey Supreme Court

206 N.J. 506

20 A.3d 1123

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.

Supreme Court of New Jersey.

Argued March 29, 2011.Decided June 7, 2011.

William C. Carey argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Carey, Loren L. Pierce and William A. Cambria, Morristown, on the briefs).Rudolph C. Westmoreland argued the cause for respondents (Westmoreland Vesper & Quattrone, attorneys; Mr. Westmoreland and Kathleen F. Beers, West Atlantic City, on the briefs).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), ¹ 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.² Risko v. Thompson Muller Auto. Group, Inc., 204 N.J. 34, 6 A.3d 439 (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We recount the relevant facts as developed in the Appellate Division's unpublished opinion.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.³ 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” ⁴ 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 case right now.

[PLAINTIFF'S COUNSEL]: Why?

THE COURT: Why? You know damn well that those are instructions that I give.

[PLAINTIFF'S COUNSEL]: There's no caps on damages—

THE COURT: It doesn't matter whether there's caps.

[PLAINTIFF'S 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.

[PLAINTIFF'S 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.

....

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.

[PLAINTIFF'S 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.

[PLAINTIFF'S COUNSEL]: Yes, sir.

The following then was stated in the presence of the jury:

[PLAINTIFF'S 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.

Immediately thereafter a long off-the-record discussion was conducted in chambers between the court and both counsel. Both sides agree the following took place, as developed by defense counsel during the argument on the motion for a new trial:

[De...