Friedman v. C & S Car Service

• Citation: 527 A.2d 871,108 N.J. 72
• Parties: Kenneth J. FRIEDMAN and Ruth Friedman, Plaintiffs-Appellants, v. C & S CAR SERVICE, a/k/a Curtis & Scotty Car Service, Rallye Imported Auto Parts, Inc., and Columbia Motor Corporation, a foreign corporation, Defendants- Respondents.
• Decision Date: 20 July 1987
• Court: United States State Supreme Court (New Jersey)

Page 72

108 N.J. 72

527 A.2d 871

Kenneth J. FRIEDMAN and Ruth Friedman, Plaintiffs-Appellants, v. C & S CAR SERVICE, a/k/a Curtis & Scotty Car Service, Rallye

Imported Auto Parts, Inc., and Columbia Motor

Corporation, a foreign corporation,

Defendants- Respondents.

Supreme Court of New Jersey.

Argued Feb. 3, 1987.

Decided July 20, 1987.

Kenneth A. Berkowitz, Newark, for plaintiffs-appellants (Blume, Vazquez, Goldfaden, Berkowitz, Oliveras & Donnelly, attorneys).

Bernard M. Radowitz, Livingston, for defendant-respondent C & S Car Service, etc.

Gerald D. Siegel, Trenton, for defendant-respondent Rallye Imported Auto Parts Inc. (Lewis, Siegel & Wood, attorneys).

Thomas G. Aljian, Watchung, for defendant-respondent Columbia Motor Corp., etc.

Arthur I. Miltz and John S. Voynick, Jr., Livingston, submitted a brief on behalf of amicus curiae ATLA-N.J., The New Jersey Affiliate of the Ass'n of Trial Lawyers of America (Miltz & Guarriello, attorneys).

The opinion of the Court was delivered by

HANDLER, J.

In this personal injury action, defendant, Columbia Motor Corporation, appeals from a judgment entered upon a jury verdict awarding plaintiff, Dr. Kenneth Friedman, $875,000.00 for past, present, and future pain, suffering and disability. This appeal presents the Court with the issue of whether an award of damages for future non-economic injuries--pain, suffering, disability, and the like--must be discounted to reflect its present value. We now hold that such damages should not be discounted.

I.

On July 29, 1981, plaintiff was involved in an automobile accident caused by a defectively designed master brake cylinder installed in his vehicle by C & S Car Service (C & S). C & S had obtained the cylinder from Rallye Imported Auto Parts (Rallye), which purchased it from Columbia Motor Corporation (Columbia). As a result of the accident, Dr. Friedman suffered a comminuted fracture of his left wrist, causing extreme pain during treatment as well as permanent pain and suffering.

Plaintiff has a Ph.D. in biological sciences and at the time of the accident was an Assistant Professor at the University of Medicine and Dentistry of the State of New Jersey. As a result of his wrist injury, plaintiff can no longer perform "highly sophisticated microsurgical experiments." Nevertheless, he has since been promoted to Associate Professor.

Dr. Friedman instituted this action against C & S, Rallye, and Columbia. Plaintiff sought to recover damages only for past and future pain, suffering, disability, and impairment. He made no claim for lost wages or medical expenses.

At trial, plaintiff's counsel advised the court that he would be making a time-unit argument in his closing statement. Under Rule 1:7-1(b), counsel may suggest to the trier of fact that it calculate damages on the basis of specific time periods, for example, the amount of pain that a plaintiff will suffer each day for the rest of his life. As required by the Rule, the trial court instructed the jury that plaintiff's time-unit summation was only argumentative and did not constitute evidence. No issue had been raised as to whether a jury award for damages was required to be discounted in order to represent only the present value of damages that encompassed compensation for future losses. Neither party had introduced evidence on present value and factors such as inflation or interest rates as these might affect an award for damages, and no instruction on these matters was requested. Further, in its jury charge, the trial court did not instruct the jury that any damages awarded for future losses must be discounted to present value, and no objection to this charge was raised.

The jury returned a verdict in the amount of $875,000 against Columbia. Defendant does not dispute that it is liable for the entire award, but appealed on the grounds that the verdict was excessive and that it exceeded the plaintiff's statement of damages. ¹

The Appellate Division held that the trial court's failure to charge the jury that the damages awarded for future losses must be discounted to present value constituted plain error under Rule 2:10-2. 211 N.J.Super. 657, 667, 512 A.2d 560 (1986). The court ruled that whenever a time-unit summation is given, the jury must be instructed to discount the damages awarded for future non-economic losses. Id. at 666-67, 512 A.2d 560. In addition, the Appellate Division rejected the "total-offset" method of discounting, ² stating that "[t]he evidence is clear ... that there is a time value of money reflecting a 'real return,' so that the 'total offset' theory is economically debatable." Id. at 672, 512 A.2d 560. The court remanded for a new trial on damages. We granted certification, 105 N.J. 545, 523 A.2d 183 (1986), and now reverse.

II.

The question presented by this appeal has not previously been addressed by this Court. However, the great majority of jurisdictions that have considered this issue have concluded that damages for future non-economic losses should not be discounted to reflect their present value. See, e.g., O'Byrne v. St. Louis Southwestern Ry. Co., 632 F.2d 1285, 1286 (5th Cir.1980); Flanigan v. Burlington N. Inc., 632 F.2d 880, 886 (8th Cir.1980); Taylor v. Denver and Rio Grande W. R.R. Co., 438 F.2d 351, 353 (10th Cir.1971); Beaulieu v. Elliott, 434 P.2d 665, 676 (Alaska 1967); Braddock v. Seaboard Air Line R.R. Company, 80 So.2d 662, 667 (Fla.1955); Bagley v. Akins, 110 Ga.App. 338, 138 S.E.2d 430, 431 (1964); Barlage v. The Place Inc., 277 N.W.2d 193, 195 (Minn.Sup.Ct.1979); Dickerson v. St. Louis Southwestern Ry. Co., 697 S.W.2d 210, 212 (Mo.App.1985); Ball v. Burlington N. R.R. Co., 672 S.W.2d 358, 361 (Mo.App.1984); Porter v. Funkhouse, 79 Nev. 273, 382 P.2d 216, 218-19 (1963); McKenna v. State, 112 A.D.2d 996, 492 N.Y.S.2d 805, 807 (1985); Missouri Pac. R.R. Co. v. Handley, 341 S.W.2d 203, 205 (Tex.Civ.App.1960); Borzea v. Anselmi, 71 Wyo. 348, 258 P.2d 796, 804 (1952); see also United States v. Harue Hayashi, 282 F.2d 599, 605 (9th Cir.1960) (under Hawaii law only pecuniary losses should be discounted). Most of these courts have based this conclusion on the incongruity of discounting to present value damages that are, by their very nature, so speculative and imprecise. Borzea v. Anselmi, supra, 258 P.2d at 804. As the Supreme Court of Florida stated in Braddock v. Seaboard Air Line R.R. Company, supra, 80 So.2d at 668:

Jurors know the nature of pain, embarrassment and inconvenience, and they also know the nature of money. Their problem of equating the two to afford reasonable and just compensation calls for a high order of human judgment, and the law has provided no better yardstick for their guidance than their enlightened conscience. Their problem is not one of mathematical calculation but involves an exercise of their sound judgment of what is fair and right. The problem is often further complicated by the fact that the pain and suffering are yet to be suffered and thus even further removed from exact calculation and certain measurement. But such further uncertainty does not change the problem from one of judgment to one of calculation. It still rests within the enlightened conscience of the jury. We think, therefore, that the aspect of present compensation for future pain is merely one of the subjective elements of the problem, and is not a process of mathematical calculation of present value, such as must be applied to periodic future pecuniary losses. We think as has been said by others, that to treat future pain and suffering as the loss of an annuity is an absurdity.

See also Flanigan v. Burlington N. Inc., supra, 632 F.2d at 886 ("Requiring the reduction of an award for pain and suffering to its present value would improperly allow a jury to infer that pain and suffering can be reduced to a precise arithmetic calculation.").

Our decisional law in this area is compatible with the majority view. In Botta v. Brunner, 26 N.J. 82, 138 A.2d 713 (1958), we held that it was improper for counsel to suggest to the jury specific monetary amounts for pain and suffering per hour or day or week and ask that these figures be used as part of a mathematical or arithmetical formula for calculating the damages to be awarded. ³ The Court based its holding on the "universal acknowledgement" that there can be no fixed basis or mathematical rule for establishing damage awards for pain and suffering:

[T]here is no measure by which the amount of pain and suffering endured by a particular human can be calculated. No market place exists at which such malaise is bought and sold.... It has never been suggested that a standard of value can be found and applied. The varieties and degrees of pain are almost infinite. Individuals differ greatly in susceptibility to pain and in capacity to withstand it. And the impossibility of recognizing or of isolating fixed levels or plateaus of suffering must be conceded. [Id. at 92-93, 138 A.2d 713.]

See also Cox v. Valley Fair...