On this date in 1978, the Supreme Court decided Gilborges v. Wallace, 78 N.J. 342 (1978). The case arose out of an auto accident that resulted in brain injuries to plaintiff Rosemarie Gilborges. It came to the Court by virtue of the fact that the Appellate Division split 2-1 on certain issues. As a result, an appeal to the Court as of right was available.

The Court’s unanimous opinion was written by Justice Sullivan in his usual concise style. That opinion dealt with two legal issues of note. One of them significantly changed Supreme Court practice from what it had been since the current court system was established by the 1947 Constitution.

One of the issues before the Court was whether the dismissal of the plaintiffs’ complaint, and a defendant’s cross-claim, against one particular defendant (“Cross Country”) was correct. The Appellate Division had unanimously affirmed the dismissals. Cross Country asserted that plaintiff could not appeal to the Supreme Court on that issue as of right, since the dissent in the Appellate Division did not cover that issue.

Citing decisions of the Court from 1953 and 1963, Justice Sullivan noted that “[w]e have held previously that where there is a dissent in the Appellate Division, an appeal or cross-appeal may raise any issue argued below and is not limited to the matter or matters encompassed by the dissent.” The rationale for those rulings, he said was that Article VI, section 5, paragraph 1(b) of the 1947 New Jersey Constitution “which provides that appeals may be taken to the Supreme Court ‘[i]n causes where there is a dissent in the Appellate Division of the Superior Court,’ confers a right of appeal unlimited in scope.”

Two opinions by the Court earlier in 1978 had questioned that idea, and the Court in this case agreed that the rule espoused in the older decisions was “too broad.” The proper procedure, Justice Sullivan said, requires that a party seeking Supreme Court review as to an issue not the subject of an Appellate Division dissent, must file a petition for certification, which asks the Court to grant review in its discretion. That remains the practice at the Court today.

But in this particular case, “since Cross Country’s status is so vital to a proper disposition of plaintiffs’ claim,” the Court treated plaintiffs’ notice of appeal and brief as a petition for certification and granted review on that basis. The Court ultimately reversed the involuntary dismissal of plaintiffs’ claims against Cross Country and directed that its liability be retried.

The second legal issue related to the Appellate Division’s reversal of a $1 million verdict for plaintiffs on the grounds that the summation of their attorney violated guidelines set forth in Botta v. Brunner, 26 N.J. 82 (1958). As Justice Sullivan said, in that case, the Court had “held that it was improper for counsel, in the opening or closing statement to the jury, to suggest, directly or indirectly, per hour or per diem sums as the value of, or as compensation for, pain, suffering and kindred elements associated with injury and disability.” The plaintiffs’ counsel here had done just that.

Moreover, the attorney’s summation twice “referred to compensation for the loss sustained by Rosemarie’s parents. On one of them the jury was told that Rosemarie was the only child of hardworking people. [Plaintiffs’ attorney] then said, ‘They have only one child. Do you know how much that means? Do you know how much that’s worth? Can you count it?’ These remarks were improper since the only claim of damages involvedwas on behalf of Rosemarie.” Accordingly, the Court affirmed the Appellate Division’s decision to vacate the jury award but reversed as to the dismissal of Cross Country. A new trial was required.