Gaido v. Weiser

558 A.2d 845, 115 N.J. 310, 1989 N.J. LEXIS 68

Opinions

PER CURIAM.

The judgment is affirmed substantially for the “plain error” reason expressed in the majority opinion of the Appellate Division. We agree that “[t]o now reverse this judgment because the trial court on its own did not define proximate cause in terms of ‘substantial possibility’, * * * would also offend fundamentally sound principles of appellate review and would be ‘manifestly unfair to the defendant ... to say nothing of the trial judge.’ ” 227 N.J.Super. 175, 201 (1988) (quoting Rochinsky v. State, 110 N.J. 399, 431 (1988) (Clifford, J., dissenting)).

As the majority of the Appellate Division noted, relief under the plain error rule, at least in civil cases, is discretionary and “should be sparingly employed.” Ford v. Reichert, 23 N.J. 429, 435 (1957). Especially is that so when, as here, the reviewing court invokes the rule, on its own motion, to review the error, and “neither party had the opportunity of presenting its views before [it] found [itself] bound by the court’s edict.” Ibid.

We express no view on the substantive issues in dispute except to note that we are not convinced that “ ‘substantial justice’ has not been done as a result of the erroneous action.” Id. at 434 (quoting In re Stern, 11 N.J. 584, 590 (1953)).