NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 6311-06T2A-6311-05T2

JOYCE BARBER and MICHAEL JAMES

BARBER, her husband,

Plaintiffs-Respondents,

v.

SHOPRITE OF ENGLEWOOD &

ASSOCIATES, INC., t/a

SHOPRITE OF WHARTON, NEW

JERSEY STORE NUMBER 487,

Defendant-Appellant.

________________________________________________________________

Argued October 28, 2008 - Decided

Before Judges Wefing, Parker and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-120-04.

Robert F. Gold argued the cause for appellant (Gold, Albanese & Barletti, attorneys; Mr. Gold, of counsel; Mr. Gold, James N. Barletti and Christian Bruun, on the briefs).

Brian P. Fleming argued the cause for respondents (Brunnock & Fleming, attorneys; Mr. Fleming, on the brief).

The opinion of the court was delivered by

PARKER, J.A.D.

Defendant ShopRite of Englewood & Associates, Inc. (ShopRite) appeals from an order entered on August 4, 2006 denying defendant's motion for judgment notwithstanding the verdict (JNOV), or alternatively, for a new trial. The verdict had been rendered by a jury on June 16, 2006, finding defendant negligent and awarding plaintiff $876,000 in damages. After considering defendant's arguments and reviewing the entire record in this matter, including the post-judgment hearing to determine if there was juror misconduct, we reverse and remand for a new trial.

I

On August 15, 2006, defendant filed its initial notice of appeal from the trial court's order of August 4, 2006. On December 13, 2006, defendant moved before us to supplement the trial record on the basis of an article that appeared in the New Jersey Law Journal (Law Journal) on December 4, 2006. The article was authored by Robert Martin, who served as juror number one and foreperson during the trial. During voir dire, Martin disclosed that he was a New Jersey State Senator, a full-time professor of law and a practicing lawyer. We granted defendant's motion to supplement the record and remanded the matter to the trial court to conduct a hearing and take testimony from Martin and the other jurors with respect to Martin's article.

On January 30, 2007, defendant again moved before us for summary disposition, to supplement the record, and for a temporary remand with instructions to the trial court. This application sought to include in the trial record various newspaper statements attributable to Martin and requested that we vacate the July 18, 2006 judgment based upon inconsistencies between Martin's Law Journal article and his subsequent statements. On February 27, 2007, we denied those applications and instructed the trial court to establish the scope and procedure for the remand hearing.

Prior to the start of the remand hearing, the trial court ordered that the hearing be closed to the press and the public. Counsel on behalf of the media moved to intervene to gain access to the hearing. When the trial court denied that application, the media filed an emergent application with us. After hearing argument, we rendered a decision on May 30, 2007 reversing the trial court and ordering that the hearing be conducted in an open forum with the media exercising its constitutional right to report on it. Barber v. ShopRite of Englewood & Assocs., Inc., 393 N.J. Super. 292 (App. Div. 2007).

The remand hearing was conducted in July 2007, and the trial court rendered a written decision wherein it concluded that there was "no credible evidence of misconduct of any kind." Defendant then moved before us to file a supplemental brief addressing the remand issue. That motion was granted.

In this appeal, defendant argues: (1) juror misconduct and impropriety mandates vacating the verdict; (2) defendant was denied a fair trial because of plaintiff's counsel's "antics" and the court's lack of response thereto; (3) plaintiff failed to prove that a dangerous condition existed and that defendant had notice of such condition; (4) the verdict constitutes a miscarriage of justice; and (5) the trial court erred in denying defendant's JNOV motion by misapplying the law.

II

The underlying facts relevant to this appeal are as follows. On September 15, 2002, plaintiff Joyce Barber was injured when she slipped and fell while looking for pantyhose in aisle five of a supermarket owned by defendant. Plaintiff testified that she did not see anything on the floor before or after she fell, but she noticed that the bottom of her pants were wet after the fall. In her complaint, plaintiff alleged that defendant was negligent in failing to maintain or inspect the premises. The matter proceeded to trial in June 2006.

Plaintiff's counsel began his opening statement by informing the jury that "[w]hen a supermarket fails to properly inspect its shopping aisles and as a result, a shopper is seriously injured, the supermarket is responsible for the harm." Plaintiff's counsel then proceeded to tell the jury plaintiff's "story of what happened in the case."

Defense counsel objected to statements made by plaintiff's counsel in his opening statement. Each time defendant objected, the trial court instructed plaintiff to "move on" and advised defendant that the objections would be heard later.

Defendant first objected to plaintiff's counsel's statements concerning defendant's alleged failure to keep or produce records of its spill inspections. Plaintiff's counsel stated:

[Defendant doesn't] keep any records of when these inspections were done. [Defendant's managers are] relying on their own recollection . . . . [N]either of them can tell us when the last time was that anybody inspected aisle five because there's no records.

Now, the records would have shown us when the inspection was last done, when this walk-through was last done or even whether it had been done at all that day.

We've asked for those records[.]

Plaintiff's counsel further informed the jury that he asked for all of defendant's maintenance records but did not receive the requested materials, implying that defendant withheld records from plaintiff.

Defendant next objected when plaintiff's counsel began telling the jury that plaintiff lost her medical benefits and had to borrow money from her sister to pay for pain management treatment. The court told plaintiff's counsel to "[m]ove on without getting into that." Plaintiff's counsel concluded his opening by stating, "[Y]ou're going to see why the evidence will force me to come back and ask that you return a substantial verdict on [plaintiff's] behalf." (Emphasis added).

Defendant then moved for a mistrial based upon plaintiff's "inflammatory opening statement." Defendant argued that plaintiff improperly framed the opening to suggest that defendant failed to keep records it was obligated to keep and failed to provide them to plaintiff, implying that defendant either "got rid of them" or somehow destroyed "some kind of evidence." Defendant further argued that because plaintiff offered no industry standards on such record keeping, plaintiff's counsel violated the principles of Amaru v. Stratton, 209 N.J. Super. 1, 15-16 (App. Div. 1985) (holding that where a party's opening statement is clearly prejudicial to the opposing party, a motion for a mistrial should be granted).

Defendant also argued that plaintiff misstated the law by suggesting to the jury that defendant had the burden of demonstrating how long something may or may not have been on the floor. Plaintiff implied, moreover, that it was defendant's burden of proof to identify the substance that allegedly caused plaintiff's fall. Defendant further argued that by asking for "a substantial verdict," plaintiff improperly quantified or suggested to the jury the type of verdict they were to return in violation of Botta v. Brunner, 26 N.J. 82, 103 (1958) (holding that suggestions by counsel as to the amount of damages to be awarded "constitute an unwarranted intrusion into the domain of the jury").

The trial court initially remarked that plaintiff's comment about a "substantial verdict" was "getting close to the line." With respect to the records plaintiff claimed had not been produced, the trial court indicated it did not have sufficient information to determine whether a discovery violation had occurred. After reviewing the Botta case, the court denied the mistrial motion, but admonished plaintiff that the "substantial verdict" comment was improper and should not have been made. When the jurors returned the following day, the court gave a curative instruction:

[T]here are two things that I want to briefly comment on that were raised out of your presence yesterday. And these dealt with comments that were made by the plaintiff's attorney in his opening statement.

Number one, it will be up to you, as it's always up to you, to recall what was said during the course of the trial, but whether it was explicit or implicit, I want to indicate that the burden of proof in this case is on the plaintiff to prove, first of all, that there was a substance on the floor and, secondly, that the defendant knew or should have known about the existence of that substance on the floor before the defendant can be held responsible in this case. That is the law and that is the law that ultimately I will instruct you ... to follow.

To the extent that plaintiff's counsel, in his opening statement, indicated that the defendant had some burden of proof to prove that there was something on the floor, how long it had been there, or what the substance was is not the law in New Jersey.

. . . .

Secondly, there was a comment towards the end of the plaintiff['s] counsel's opening statement to you in which he asked the jury to return a substantial verdict. The word "substantial" is not a proper comment and I'm instructing you to ignore it. It will be the job of the jury to determine, first of all, if any damages at all are warranted in this case, and that will only occur if you find that the defendant is responsible for the happening of the accident and that the plaintiff's comparative negligence is fifty percent or less in terms of its contributions [to] the happening of the accident.

. . . .

And then your job is to exercise your sound judgment as to what is fair, just and reasonable under all the circumstances. And it's impermissible for counsel to suggest that a substantial award should be returned or that any award should be returned other than a fair and just and reasonable award under the circumstances.

Plaintiff began her case by showing a videotape of her lying on the floor after her fall. There was no testimony about the videotape and the only information provided to the jury about the tape was a brief reference to it in plaintiff's opening statement and then in summation when plaintiff's counsel stated:

We played this videotape.

. . . .

You have the tape. Please feel free to look at it and tell me - just ask yourselves whether that's credible.

. . . .

I know there's a videotape of aisle five and I've been back to where the video is kept, in that back room . . . . I know that's where all the tapes are kept and that's where all the different locations in the store are filmed. I can go back there and I can look at the videotape. It'll probably even show me when she actually fell. I'll be able to see what - how she fell, where her legs went, if her legs really did slip out from underneath her. And I could look at this, even if I go back a little further, I can probably even see who was the last one to do an inspection. And I'll look at all this before anybody has a chance to erase that tape. No. No, I'm not going to do that. Credibility. It's a key in this case.

As plaintiff's case progressed, she called Russell Tyndall, a ShopRite field merchandiser responsible for inspecting a group of ShopRite stores, including the store in which plaintiff fell. He testified that he was at the store on the day of the accident. When questioned as to the store's inspection procedures, Tyndall testified that field merchandisers and store managers conduct walk-through inspections at the store five times a day. He had no reason to believe that the inspections were not done on the day plaintiff fell.

Plaintiff's counsel asked Tyndall whether the store maintained records of leaks or spills. When Tyndall said it did not, plaintiff's counsel produced a Wakefern corporate form and, without any foundation, asked Tyndall what it was. Tyndall said he did not recognize the form. Defense counsel objected. The court did not rule on the objection, but asked Tyndall if there was any record of the inspection of the store at the start of the day. Tyndall responded that a spiral-bound book was "used every morning to identify problems, issues, call-outs, what happened overnight, aisle by aisle, what was necessary, issues that needed immediate resolve, issues that could wait a few hours, things that could be on the work docket for later on in the day." When Tyndall restated that the Wakefern form was not in use, the court said, "Okay. That's the end of that." At no time did the court instruct the jury to disregard plaintiff's references to the Wakefern form.

Tyndall explained that aisle five was in the health and beauty aids section, but he could not recall exactly what products were contained in that aisle because there were two aisles of health and beauty products. At that point, plaintiff's counsel asked if there were "clear baby splash colognes in that aisle." Tyndall responded: "I can't say that." Plaintiff's counsel then pulled a bottle out of his briefcase and defense counsel objected. After an unrecorded sidebar conference, the court allowed plaintiff to proceed:

Q. Mr. Tyndall, I'm going to show you what's PMB Splash Cologne. It's baby cologne. Can you take a look at this?

A. (Witness reviews product.)

Q. Can you tell me whether that was across the aisle from the pantyhose back in September 15th of '02?

A. No, I cannot.

Q. You don't know?

A. I do not know.

Q. Okay.

A. I don't know if the product was handled back in 2002.

Q. Okay. All right. Do you know if across the aisle from pantyhose there was baby shampoos and baby oils across the aisle from [where] the pantyhose were?

A. No, I don't.

Q. You don't recall that?

A. No.

Tyndall further testified that after plaintiff fell, the only liquid on the floor was "a few drops [of water] from the umbrella" plaintiff had placed in the shopping cart. The drops of water were spread out in an area approximately one foot in circumference by the shopping cart. The cart was a distance from plaintiff when she fell, however. The store manager also testified in her deposition that she did not see any water on the floor where plaintiff fell.

During summation, plaintiff's counsel characterized Tyndall's testimony as follows:

If there was something there, we didn't know about it. And this came from their water - I'm sorry, from their umbrella. It was water from their umbrella. As I said before, we know that Mr. [Tyndall] says that water dissipates. And we know that the umbrella was - I'm sorry, the cart was nowhere near where [plaintiff] fell because she said she walked - the cart was down here. She walked back and she fell right over here.

He then stated:

Now, it happened to be where the baby bath and shampoo, the baby splash cologne. I don't know what it was. She does not know what it was.

Defense counsel again objected to plaintiff's counsel's reference to baby splash cologne without any foundation, and asked to be heard. The court said, "No," and told plaintiff's counsel to continue. Shortly thereafter, plaintiff's counsel - as he did in his opening statement - again referenced inspection records, stating they "don't exist. Maybe they don't. Maybe a big store like this doesn't have records."

Further on in his summation, plaintiff's counsel referred to the videotape of plaintiff lying on the floor as we have quoted previously. Plaintiff's counsel implied that defendant would destroy the tape when he stated, "I'll look at all this before anybody has a chance to erase that tape. No. No, I'm not going to do that. Credibility. It's a key in this case."

In referring to the jury charge on damages, plaintiff's counsel told the jury: "The judge will not ask you to be concerned with whether or not this could be considered a windfall for [plaintiff] because that has nothing to do with the purpose of the law." (Emphasis added). At the conclusion of the summations and the charge to the jury, defense counsel raised a number of objections, including one to plaintiff's counsel's reference to defense expert James Aragona, M.D., having been paid for testifying. Defense counsel noted that there was no evidence about any of the experts having been paid. The court overruled the objection, stating it didn't think the comment was "that unfair."

Defense counsel again objected to plaintiff's counsel commenting on spill inspection records, as he did in the opening statement. Defense counsel again advised the court that because no such records were kept and there was no evidence that records had been withheld, it was unfair for plaintiff's counsel to imply that the documents may have existed but that defendant failed to produce them. The court declined to address the objection.

With respect to the Wakefern form, which plaintiff's counsel showed to Tyndall, the court commented that it "wasn't relevant to this case in this situation," but overruled the objection. Defense counsel then objected to plaintiff's counsel's "windfall" comment as "inappropriate, should never have been made[.]" The court responded, "You're being too sensitive."

After the verdict, defendant moved for JNOV or, alternatively, for a new trial on the issues of liability and damages. Defendant argued that plaintiff failed to establish that defendant had notice of any condition at the time plaintiff fell or that the condition existed for a sufficient period of time such that it should have been discovered by defendant's personnel. In denying the motion, the court commented that "the amount of the verdict was surprising," but nevertheless

the jury was charged on the necessity of notice to the defendant before the defendant could be liable for a transient substance .