Risko v. Thompson Muller Automotive Group, Inc., 20 A.3d 1123

P Camille Risko slipped and fell in the dealership showroom after a rainstorm; a waterlogged plastic runner over a wet carpet allegedly created a hazardous condition.
P Risko and her estate sued the Hammonton dealership for wrongful death and survivorship damages.
The jury found the dealership negligent and causally related decedent’s fall to her death; damages totaled $1,750,000.
D trial court granted a new trial due to plaintiff counsel’s summation and the court’s failure to issue a contemporaneous curative instruction.
Appellate Division reversed the new-trial grant as to liability and damages, proposing a new trial on damages only; this Court granted review to determine appropriate remedy.
Court reverses Appellate Division in part, remanding for a new trial on damages only, with a concurrence/dissent on scope of relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a new trial on damages was warranted based on summation.	Risko argues summation tainted deliberations and required new trial on damages.	Muller contends remarks were fleeting and did not warrant a new trial.	New trial on damages warranted.
Whether liability should have been retried as well as damages.	Liability should stand; damages retrial suffices.	If summation tainted process, liability retrial may be required.	Appellate Division erred in limiting to damages; trial court’s broader grant proper; remand for damages and liability retrial.
Whether curative instructions could have cured any prejudice.	Trial court should have given curative instruction immediately.	Curative instruction could have mitigated prejudice; timing acceptable.	Failure to issue contemporaneous curative instruction supported new trial on damages.

Baxter v. Fairmont Food Co., 74 N.J. 588 (1977) (standard for miscarriage of justice; deference to jury verdict)
Dolson v. Anastasia, 55 N.J. 2 (1969) (trial court not to substitute its judgment for jury’s; standard for new trials)
Jackowitz v. Lang, 408 N.J. Super. 495 (App. Div. 2009) (closing arguments; need for timely objection and curative action)
Geler v. Akawie, 358 N.J. Super. 437 (App. Div. 2003) (curative instructions; limits of closing argument influence)
Panko v. Flintkote, 7 N.J. 55 (1951) (deliberative process sanctity; reporting bias concerns)
Caldwell v. Haynes, 136 N.J. 422 (1994) (scope of appellate review on new-trial rulings)
Bender v. Adelson, 187 N.J. 411 (2006) (standard for miscarriage of justice; deference to trial court feel of case)
State v. Swint, 328 N.J. Super. 236 (App. Div. 2000) (fair trial; limits on perfection of trial)
Jackowitz v. Lang, 408 N.J. Super. 495 (App. Div. 2009) (closing arguments; need for timely objection and curative action)
Williams v. James, 113 N.J. 619 (1989) (deliberation room sanctity; free and open discussion)
Corsaro v. State, 107 N.J. 339 (1987) (deliberative process insulated from influences)
Dolson v. Anastasia, 55 N.J. 2 (1969) (trial court’s role in new-trial analysis)