## Facts

- Nancy Botta was a passenger in Herman G. Brunner’s car when it collided at an intersection with a car driven by Leo Frieband.
- The intersection was on a steep grade; Frieband approached upgrade and substantially stopped or nearly stopped before entering.
- Brunner approached downgrade, did not stop, struck Frieband’s vehicle, and continued about 100–150 feet after impact.
- The jury awarded Botta $5,500 and another passenger, Rose De Santis, $300, both against Brunner only; Frieband was found not negligent.
- Plaintiffs moved for a new trial, claiming inadequate damages and instructional error on the burden of proving injuries; the trial court denied the motions.
- On appeal, a new trial against Brunner was ordered on damages only, based on error in the charge concerning proof of injuries; the non-liability verdict for Frieband was left intact.
- The Supreme Court of New Jersey granted review, including to address whether counsel may argue mathematical formulas for pain-and-suffering damages.

## Issues

1. Whether instructing that injuries must be proved by “clear, convincing evidence” (rather than a preponderance of the evidence) was reversible error.
2. Whether a new trial could be limited to damages against Brunner while preserving the jury’s liability findings, including Frieband’s exoneration.
3. Whether counsel may suggest a per diem or other mathematical formula to compute pain-and-suffering damages.

## Decision

- The court held the “clear and convincing” instruction on proof of injuries was erroneous; the proper standard in negligence cases is preponderance of the evidence.
- The court approved limiting the new trial to damages against Brunner only, leaving the liability determinations undisturbed.
- The court held counsel may not argue a per diem or other mathematical formula as a basis for calculating pain-and-suffering damages.
- The judgment for Frieband was affirmed; a new trial proceeded against Brunner limited to damages.

## Legal Principles

- In ordinary negligence actions, the plaintiff’s burden of proof is by a preponderance of the evidence; a “clear and convincing” standard is improper.
- A new trial may be limited to damages where the error relates to proof or evaluation of injuries and the liability verdict is adequately supported by the record.
- Pain-and-suffering damages are not susceptible to mathematical computation; counsel may not suggest per diem rates or similar formulas because they are not evidence and risk misleading the jury.
- Awards for pain and suffering must be left to the jury’s sound judgment and conscience rather than driven by speculative arithmetic devices.

## Conclusion

The court required the preponderance standard for proving personal injuries in negligence cases, permitted a damages-only retrial where liability findings were supported and separable, and prohibited per diem or other mathematical formula arguments for pain-and-suffering damages.


Botta v. Brunner, 138 A.2d 713 (N.J. 1958)