Cox v. Valley Fair Corp.
416 A.2d 809, 83 N.J. 381, 1980 N.J. LEXIS 1372 (1980)
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Rule of Law:
An attorney's summation to a jury suggesting a per diem formula for calculating pain and suffering damages, or appealing to the "golden rule" by asking jurors to consider what they would want as compensation for similar injuries, constitutes reversible error.
Facts:
- Plaintiff Ruby Cox slipped and fell on cherries that had fallen onto the floor of an aisle in defendant Valley Fair's supermarket.
- Ruby Cox complained of injuries to her left arm, left leg, and back.
- She received physical therapy treatment for approximately 11 months, incurring $672.25 in medical expenses.
- Ruby Cox missed about eight weeks from her part-time employment, resulting in $500 in lost wages.
- Ruby Cox testified she continued to experience stiffness, soreness, and nagging pains in her arm, leg, and back, sometimes leaving her leg numb.
- Her physician testified that her disabilities were permanent and were directly related to her fall in Valley Fair's store.
- Ruby Cox's husband, Mr. Cox, joined her suit seeking per quod damages.
Procedural Posture:
- Ruby Cox and her husband, Mr. Cox, sued Valley Fair for damages in a trial court (court of first instance).
- A jury found in favor of the plaintiffs, awarding Mrs. Cox $51,200 and Mr. Cox $1,000.
- Defendant Valley Fair moved for a new trial, arguing, among other things, that the verdict was excessive and that plaintiffs' counsel violated the Botta v. Brunner rule.
- The trial judge refused to set aside the award of damages.
- Defendant Valley Fair (appellant) appealed the trial court's decision to the Appellate Division (intermediate appellate court), with the Coxes as appellees.
- The Appellate Division held that plaintiffs’ counsel’s summation violated the Botta v. Brunner rule, set aside the $51,200 award to Mrs. Cox, and remanded for a new trial as to her damages only.
- Plaintiffs (appellants) sought and were granted certification by the Supreme Court of New Jersey (highest court) to review the Appellate Division's ruling.
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Issue:
Does an attorney's summation violate the rule established in Botta v. Brunner when it subtly suggests a per diem formula for pain and suffering and makes an appeal for jurors to consider what suffering on a daily basis is worth, thereby requiring a new trial on damages?
Opinions:
Majority - Sullivan, J.
Yes, counsel's summation violated the rule established in Botta v. Brunner by implicitly suggesting a per diem formula for pain and suffering and making a subtle appeal to the "golden rule." The Court reaffirmed Botta v. Brunner's holding that pain and suffering have no mathematical dimensions, and their evaluation must be based on what reasonable persons estimate to be fair compensation, not specific formulas or personal valuations. Counsel's remarks, including the analogy to paying extra for a painkiller during a tooth extraction and the emphasis on Ruby Cox's daily suffering for her 11,000-day life expectancy, coupled with the comment that she was entitled to "fair compensation for each and every one of those days," were interpreted as a clear suggestion of a per diem calculation method. The Court concluded that these comments, viewed in their entirety, violated the established precedent, especially given the significant jury award ($50,000 for subjective complaints compared to $1,200 in special damages), indicating the argument likely influenced the jury and constituted prejudicial error. The Court declined to reconsider Botta v. Brunner itself because the issue was not properly raised below, but modified the Appellate Division's ruling to reinstate Mr. Cox's $1,000 per quod award, as the error did not apply to his damages.
Dissenting - Handler, J.
No, counsel's summation did not violate the rule established in Botta v. Brunner because it constituted reasonable advocacy and did not explicitly suggest a mathematical formula. Justice Handler argued that Botta v. Brunner primarily prohibited specific monetary suggestions, such as "fifty cents an hour," which were absent from counsel's remarks in this case. The reference to dentists and tooth extractions was merely a rhetorical device to emphasize that pain is compensable, not a "subtle appeal" to the golden rule. Similarly, the reference to Ruby Cox's life expectancy in days was a permissible factual inclusion. The dissent contended that the majority's interpretation was overly sweeping and stifled legitimate advocacy. It further noted that all three courts (trial, Appellate Division, and Supreme Court) had found the total damages award not to be excessive, suggesting the summation did not unduly impugn the judgment. Therefore, the dissent would have reversed the Appellate Division's decision and reinstated both the trial court's awards.
Analysis:
This case significantly reinforces the boundaries of permissible attorney argument in jury summations regarding damages for pain and suffering, particularly in New Jersey. It clarifies that even subtle suggestions of a per diem calculation or "golden rule" appeals can lead to the reversal of damage awards. The decision highlights the judiciary's commitment to the principle that pain and suffering are inherently unquantifiable in precise monetary terms, making the determination a matter of reasonable estimation rather than mathematical computation. Future cases will continue to scrutinize attorney summations for any language that might be construed as an impermissible attempt to guide juries toward such formulas, placing a premium on careful and principled advocacy in non-economic damages claims.
