New Trial Ordered By Second Department In Slip & Fall: Closing Arguments Found Prejudicial

The New York Supreme Court, Appellate Division, Second Department ordered a new trial in a slip-and-fall accident case after the plaintiff’s lawyers made prejudicial comments in the closing argument before the jury.

The plaintiff slipped and fell while shopping at the defendant’s supermarket. After falling and sustaining injuries, she was taken to the hospital. While in the emergency room, she was cared for by a triage nurse. According to medical records maintained by the triage nurse, she told the nurse that she had fallen outside of the grocery store, not inside.

The parties proceeded to trial. At trial, during opening statements, the defense spoke of his star witness, the triage nurse and her medical report. He shared with the jury that this nurse saw the plaintiff in the emergency room right after the accident and that the plaintiff told the nurse that the fall didn’t occur at the supermarket.

However, during a later discussion with the parties outside the presence of the jury, the trial judge held that the statements in the medical records could not be admitted into evidence under the rules of evidence. Because the triage nurse was only going to testify about those statements, the court also precluded her from taking the stand.

At closing arguments, the plaintiff brought up how the nurse never testified. The plaintiff accused the defendant of lying in opening statements about the nurse. The plaintiff stated that the defendant had told the jury of the nurse’s predicted testimony yet never delivered it. The plaintiff argued that if the defendant had lied about the nurse testifying, then the defendant must have lied about everything else. The plaintiff did not reveal that the nurse was precluded from testifying because of the evidentiary rule issue.

Because the court had instructed the defendant not to explain to the jury why the nurse had never testified, the defendant was unable to rebut these claims by the plaintiff during its closing argument.

The jury then found in favor of the plaintiff and awarded her $50,000 for past pain and suffering, $12,000 for past medical expenses, $140,000 for future pain and suffering, and $60,000 for future medical expenses.

The Second Department held that the trial judge had properly kept the medical records out of evidence. The medical records had to be “germane to the injured plaintiff’s diagnosis and treatment” in order to be admitted, which they were not. In addition, the statements did not contradict any of the plaintiff’s testimony like the defense had alluded to in its opening statement. Rather, the statements in the medical records appeared to support her story as to how the accident happened. Because the records could therefore not be used to impeach the plaintiff’s credibility on the witness stand, they were not admissible at trial. Because the triage nurse’s testimony was to be centered on these statements, her testimony was properly precluded.

However, an underlying tenant of the adversarial system we have in the U.S. is the idea of fundamental fairness in civil trials. There is open discovery. Plaintiffs and defendants are aware of each witness’s testimony thanks to depositions and affidavits. The parties have access to evidence such as medical records. It is simply up to each party to use the witnesses’ testimony and the evidence to craft the best story. Prejudicial statements before the jury regarding one party that cannot be rebutted are usually not allowed.

Here, while the trial court was proper in precluding the evidence and testimony, it was not proper in allowing the plaintiff to make the remarks about the nurse during its closing argument. First, these statements were untrue. The nurse hadn’t failed to show up to testify, and the defendant didn’t fail to call her as a witness. Rather, the witness had shown up and then was precluded by the court from testifying. Second, the statements were extremely inflammatory and prejudicial. They were likely to have unduly influenced the jury’s decision and therefore hampered the fair trial process. As such, the Second Department ordered a new trial.

If you or a loved one has been the victim of a slip-and-fall accident, you need someone who can navigate the legal system and advocate on your behalf. Call the expert personal injury attorneys at Gallivan & Gallivan today to discuss your potential case.

Web Resources:

Nelson v. Bogopa Serv. Corp., 123 AD3d 780 (2nd Dept. 2014).

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