Courtroom chairs (Photo: Jason Doiy/ALM)

A New Jersey appeals court has ordered a new trial in a slip-and-fall case, saying a defense attorney's comments during summation may have influenced the jury in returning a no-cause verdict in favor of the defendant.

The three-judge Appellate Division panel in an unpublished opinion said the defense attorney's improper summation, in which he referenced deposition testimony from the plaintiff that was not in evidence, was compounded by the trial judge's failure to offer a curative instruction to the jury.

While lawyers are given broad latitude in what they are allowed to say during opening and closing statements, there are boundaries, and one of those is discussing matters not in evidence, said Appellate Division Judges Ellen Koblitz, Heidi Currier and Jessica Mayer in the per curiam decision issued Dec. 19.

“We are satisfied defense counsel's summation exceeded the acceptable bounds of argument, resulting in both prejudice to plaintiff and a miscarriage of justice under the law,” the panel said.

In her lawsuit, plaintiff Farida Akram alleged that she slipped and fell on ice and snow on a sidewalk in front a home belonging to defendant Harsadrai Joshi on Feb. 15, 2015. As a result of the fall, the lawsuit said, Akram sustained a broken left ankle.

There was a dispute in the case over where the slip and fall actually took place. Akram said she was walking on the sidewalk in front of Joshi's house, while Joshi claimed that Akram actually fell while walking in the street, according to the court.

There were no witnesses to the fall, although neighbors helped Akram into a chair that had been left on the sidewalk while she waited for an ambulance, the court said.

The court said Joshi never responded to requests for answers to interrogatories and did not appear for deposition. At the plaintiff's request, the trial judge, identified in electronic court documents as Mitzy Galis-Menendez of Hudson County Superior Court, barred Joshi from testifying at the trial and would not allow him to present evidence in his defense. Testimony during the four-day trial was largely limited to Akram's claims.

During the summation, however, Joshi's attorney made reference to defense evidence: Akram's deposition testimony regarding a nearby parking lot where she may have left her car, and how many steps she walked before she slipped and fell.

Joshi was represented at trial by Kevin Harrington of Harrington and Lombardi in Wayne, who made those remarks during summation.

Akram's attorney, John Scura III of Scura, Wigfield, Heyer, Stevens & Cammarota in Wayne, then objected.

According to the decision, Galis-Menendez agreed that the comment was improperly introduced, but didn't provide a curative instruction that jurors should ignore the remarks since the deposition testimony wasn't in evidence.

After about an hour of deliberations, the Hudson County jury returned a no-cause verdict in Joshi's favor.

Akram appealed, saying she was denied a fair trial, and the appeals court agreed.

“Counsel's 'summation commentary … must be based in truth, and may not distort the factual picture,'” the panel said, quoting the state Supreme Court's 2006 ruling in Bender v. Adelson.

“The judge should have given a curative instruction, informing the jury to disregard the deposition testimony read by defense counsel during summation because it was not evidence in this case,” the appeals court judges said.

“Improper evidence introduced by defense counsel during closing argument was clearly capable of producing an unjust result and warrants a new trial,” the panel said.

Harrington and Scura, in addition to serving as trial counsel, handled the appeal.

Harrington, reached by phone, said the jury reached the right result, but didn't comment further.

Scura didn't return a call seeking comment.