On certification to the Superior Court, Appellate Division.
For modification and affirmance -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber and Pollock. For reversal -- Justice Handler. The opinion of the Court was delivered by Sullivan, J. Handler, J., dissenting.
In this personal injury case, the Appellate Division set aside an award of damages in favor of plaintiffs on the ground of an improper and prejudicial summation to the jury by plaintiffs' counsel. A new trial as to damages only was ordered. The ruling was based on our decision in Botta v. Brunner, 26 N.J. 82 (1958), which prohibits a plaintiff's attorney from suggesting to a jury that it use a dollars per diem formula in calculating a plaintiff's damages for pain and suffering. Certification was granted, 82 N.J. 273 (1979), to review plaintiffs' contention that the Appellate Division ruling constitutes an unwarranted extension of the Botta v. Brunner holding.
While in defendant Valley Fair's supermarket, plaintiff Ruby Cox slipped and fell on some cherries which had apparently fallen from a bin onto the floor of one of the supermarket aisles. She complained of injury to her left arm, left leg and back and was treated for approximately 11 months, mostly by physical therapy. Her medical expenses amounted to $672.25. Additionally, she missed approximately eight weeks and lost $500 in wages from her part-time employment with Middlesex County College.
In her suit for damages, which her husband joined seeking per quod damages, plaintiff testified that she continued to experience stiffness and soreness in her arm, leg and back, which she described as nagging pains which sometimes left her leg numb. Her physician testified that her disabilities were permanent and were directly related to the fall in defendant's store. At the conclusion of the trial, the jury awarded Mrs. Cox $51,200 and her husband $1,000.
Defendant moved for a new trial, alleging, among other things, an excessive verdict and a violation of Botta v. Brunner. The trial judge refused to set aside the award of damages although he stated that he disagreed with the jury verdict. In effect, he held that the amount of damages assessed by the jury was not so disproportionate as to convince him that the verdict was manifestly unjust. The judge made no specific reference to
the Botta v. Brunner argument. On appeal, the Appellate Division held that the summation by plaintiffs' counsel violated the Botta v. Brunner rule. Accordingly, it set aside the award and remanded for a new trial as to damages.
In Botta v. Brunner this Court said that
pain and suffering have no known dimensions, mathematical or financial. There is no exact correspondence between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this reason, the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation. [26 N.J. at 95]
Accordingly, Botta v. Brunner holds that it is improper for counsel to argue to a jury that it use a so-called per diem formula for the calculation of pain and suffering. Id. at 95-100.
Botta v. Brunner also disapproved of counsel's suggestion to the jury that it apply the "golden rule" under which jurors would fix what they would want as compensation if they had sustained the injuries, or what the pain and suffering would be worth to them. Id. at 94.
Since this case turns on what counsel for plaintiffs stated in his summation, we consider its pertinent language in detail.
After referring to plaintiff's medical expenses of $672.25 and lost wages of $500, or out-of-pocket expenses of approximately $1,200, counsel stated that this sum
represents a tiny fraction of the total damages in this case because merely to contemplate something for their out-of-pocket expenses doesn't begin, doesn't even start to take into consideration the second element, damages, what I call the intangible element of damages, pain and suffering, permanent disability. So ...