Botta v. Brunner
138 A.2d 713, 60 A.L.R. 2d 1331, 26 N.J. 82 (1958)
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Rule of Law:
Counsel in a personal injury action may not suggest a specific mathematical formula, such as a per diem rate, to the jury for calculating damages for pain and suffering. Furthermore, it is improper for counsel to inform the jury of the amount of damages requested in the complaint's ad damnum clause.
Facts:
- Nancy Botta was a passenger in a car driven by Herman G. Brunner.
- Brunner was driving westbound down a steep grade on Laurie Road toward the intersection with Matthew Court.
- Brunner knew the intersection was a 'blind intersection' with an obscured view that required extreme care.
- Leo Erieband was driving up a steep grade on Matthew Court, came to a near stop at the intersection, looked both ways, and proceeded slowly.
- After Erieband entered the intersection, Brunner's vehicle approached at 30 to 40 miles per hour without slowing down.
- Brunner's car collided with Erieband's car in the intersection, causing injuries to Botta.
Procedural Posture:
- Nancy Botta sued Herman G. Brunner and Leo Erieband in a New Jersey trial court to recover damages for personal injuries.
- A jury returned a verdict finding defendant Brunner liable for $5,500 and exonerated defendant Erieband.
- Botta's motion for a new trial on grounds of an inadequate award and trial errors was denied by the trial court.
- Botta, as appellant, appealed the judgment and the denial of her motion to the Appellate Division.
- The Appellate Division affirmed the judgment for Erieband but found error in the trial court's jury instruction on the burden of proof for damages.
- The Appellate Division ordered a new trial against Brunner, as appellee, limited solely to the issue of damages.
- The New Jersey Supreme Court granted certification to review the entire case.
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Issue:
Does the law permit an attorney in a personal injury case to suggest a specific mathematical formula, such as a per diem calculation, to the jury for the purpose of quantifying damages for pain and suffering?
Opinions:
Majority - Francis, J.
No. The law does not permit counsel to suggest a specific mathematical formula for calculating damages for pain and suffering. Such damages have no fixed basis or mathematical rule for their computation, as there is no market where pain is bought and sold. The only standard for such damages is 'fair and reasonable compensation,' which is a determination left to the impartial conscience and judgment of the jury. Suggesting a per diem value introduces speculative figures not founded in evidence, which constitutes an unwarranted intrusion into the domain of the jury and creates an unfair trial dynamic. For the same reasons, informing the jury of the amount of damages sought in the complaint (the ad damnum clause) is also improper and is now prohibited.
Dissenting - Heher, J.
This opinion concurs with the majority's prohibition of using a mathematical formula for pain and suffering damages. However, it dissents from the majority's decision to order a new trial limited to damages against Brunner. The dissent would have reversed the judgment as to both defendants and ordered a new trial on all issues, including liability.
Dissenting - Wachenfeld, J.
This opinion concurs with the majority's reasoning generally but dissents from the portion that overrules prior case law allowing counsel to mention the amount of the ad damnum clause or suggest a reasonable amount of compensation. The dissent argues that these established practices have not resulted in inequities and should be permitted to continue.
Analysis:
This landmark decision established a bright-line rule in New Jersey tort law prohibiting the 'per diem' argument for pain and suffering damages, directly countering a popular trial tactic used by plaintiffs' attorneys to seek higher awards. By also banning any reference to the ad damnum clause, the court reinforced the principle that damage awards must be based solely on evidence, not on counsel's unsubstantiated figures. The ruling solidified the jury's role as the sole arbiter of non-economic damages, guided only by its 'enlightened conscience,' and created a more restrictive approach to damages arguments than in many other jurisdictions at the time.
