Estate and Elder Law

NJ Wrongful Death Case Requires New Trial on Damages; Plaintiff Improperly Warns Jury against “Violating the Law” in Assessing Damages

In Risko v. Thompson Muller Auto. Group, 2011 N.J. LEXIS 630 (N.J. June 7, 2011) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law], the decedent slipped and fell in an automobile dealership's showroom, allegedly due to a waterlogged plastic runner over the carpet. Consequently, she had hip surgery, contracted colitis, and died of septic shock.

Plaintiff administrator filed a wrongful death and survivorship action against the automobile dealership. Plaintiff's counsel suggested in closing argument that the jury had to find more than $ 1 million in damages and directed jurors to report to the judge any jurors who could not do so because "they were violating the law." The trial judge halted the summation and threatened to declare a mistrial but did not do so.

Plaintiff obtained a $ 1.75 million verdict. Thereafter, defendant argued that counsel's comment had been inappropriate and that because a curative instruction had not been given, a new trial was required. The trial judge set aside the verdict and ordered a new trial on both liability and damages. Plaintiff appealed to the New Jersey Superior Court, Appellate Division, and the appellate court reversed. Defendant then appealed to the Supreme Court of New Jersey.

The supreme court reversed the intermediate appellate court in part and ordered a new trial as to damages only. The court held that a new trial on damages was warranted based on the cumulative effect of counsel's comments during summation, which suggested that jurors would be reported for violating the law if they rejected the notion that the case could be worth more than $1 million. Moreover, the trial judge had concluded that a new trial was warranted, and he was entitled to deference on that subject.

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