This is a civil forfeiture action brought on behalf of the State by the [name county] County Prosecutor/Attorney General against [named property]. This is not a criminal case brought against a criminal defendant. Rather, it is a civil action brought against certain property that the County Prosecutor/Attorney General alleges was used in an unlawful manner. In a civil forfeiture proceeding, property is removed from private ownership because the property was an integral part of criminal activity or because the property was connected with or related to criminal activity, or was intended to be connected with such criminal activity. The basis of the forfeiture is the misuse of the property rather than the crime that may have been committed by the owner or user. Forfeiture is intended to discourage the unlawful use of property and removes from circulation property that was used or was intended to be used to violate the law. The Legislature created forfeiture to encourage property owners to be more responsible with their property and not to use it or allow it to be used for illegal purposes.
The fact that a claimant was not charged in a criminal complaint with a crime or was acquitted of a crime is irrelevant to your determination of whether forfeiture is appropriate in this case. It is also irrelevant that the claimant did not take part in the criminal activity. Your duty is to decide whether the [named property] is subject to forfeiture.
A. Burden of Proof
Note to judge:The Court should charge Preponder ance of the Evidence, MCJC 1.12H or I.
In this action the State has the initial burden to prove all of the following elements necessary to establish that the [named property] is subject to forfeiture.
1. [Choose the appropriate provision(s)]:
a. The [named property] has been (or was intended to be) used in furtherance of or to facilitate the commission of the criminal activity;
b. The [named property] has become (or was intended to become) an integral part of criminal activity; or
c. The [named property] constitutes proceeds of criminal activity, including, but not limited to, property or money obtained as a result of the sale of illegally held property.
2. The criminal activity existed or was planned; and
3. There is a link or connection between the [specific offense] and the [named property].
I shall now instruct you on each of these three elements in more detail. The first element the State must prove is [choose the appropriate provision(s)]:
1. The [named property] has been (or was intended to be) used in furtherance of or to facilitate the commission of the criminal activity.(1)
"To facilitate" means to use the [named property] in a way that assists the commission of the crime or that the [named property] was instrumental in the commission of the crime.
2. The [named property] has become (or was intended to become) an integral part of criminal activity.(2)
"Integral part" means an essential component or part of the criminal activity.
3. The [named property] constitutes proceeds of criminal activity, including, but not limited to, property for money obtained as a result of the sale of illegally held property.(3)
The second element the State must prove is that criminal activity existed or was planned. In this case, the State alleges that the criminal activity involved was [specific crime].(4) The State must prove by a preponderance of the evidence that the seized [named property] was connected to this crime. The law defines the crime of [specific crime] as: [include applicable language from Model Charge on specific crime].
However, a person need not have been convicted of or even charged with that crime.(5) The fact that a prosecution against [named person] terminated without a conviction does not prevent forfeiture proceedings against the [named property], as long as the State proves by a preponderance of the evidence that the [named property] was connected to that crime. The unlawful activity can be a past crime and an intended but not-yet-committed crime.(6)
The final element the State must prove is that there is a link or connection between the [specific crime] and the [named property]. The causal connection between the [named property] and the [specific crime] must not only exist, but it also must be direct and substantial. The existence of some relationship between the [named property] and the [specific crime] is not sufficient.(7) There must be evidence tying the [named property] to the crime that has occurred or was planned. Mere possession of property that could be used at some time in the future in criminal activity may be insufficient(8) unless the evidence shows that the property is sufficiently linked or connected to the crime. However, the property need not be present to sustain a forfeiture if there is other evidence that establishes by a preponderance of the evidence, and not just suspicion, that the property is connected or linked to criminal activity.
If the State proves all of the above elements, then the State is entitled to forfeiture of the [named property]. On the other hand, if the State fails to prove any one of those elements, then the State is not entitled to forfeiture of [named property].
B. Presumption From Conviction of Criminal Defendant
You may also consider evidence of [name of person] conviction of a [specify crime] in which the seized [named property] was either used or the [named of property] provided an integral part of the State's proofs in the criminal prosecution. Such evidence creates a rebuttable presumption that the [named property] was utilized in furtherance of an unlawful activity.(9) In other words, evidence that [name of person] was convicted or pled guilty to the crime(s) and that the [named property] was an integral part of the State's proofs in that prosecution creates a presumption that the [named property] was utilized in furtherance of the [specify crime(s)] but [name of claimant of property] may rebut that presumption with contrary evidence.
C. Defenses – Legitimate Use
As I have explained to you, the State must prove by a preponderance of evidence that the [named property] is subject to forfeiture. However, once the State satisfies that burden, then the burden shifts to [name of claimant] to disprove the State's evidence or to establish a statutory defense to avoid forfeiture altogether or to show what portion of the seized property, if any, should be attributed to legitimate uses. If [name of claimant] presents sufficient credible evidence to allocate the property between illegal and legal purposes, then the forfeiture should be limited only to the property connected to the criminal activity.
D. Innocent Owner
Note to Judge:Charge only if applicable.
[Name of claimant] contends that the [named property] is not subject to forfeiture based on what is known as the "innocent owner" defense. To establish this defense, [name of claimant] must prove that he/she owned the [named property] and that he/she was not involved in or aware of the unlawful activity and did all that reasonably could be expected under the circumstances to prevent [named property] from being utilized for unlawful activity.
I shall now describe in greater detail what [name of claimant] must prove to establish the "innocent owner" defense. First, [name of claimant] must establish that he/she is the "real" owner of the [named property] and that the [named property] was lawfully acquired. To determine ownership, you may look at evidence other than the formal title to the [named property]. There may be evidence that the record owner is not the "real" owner but is merely a "straw man" set up either to conceal criminal dealings or to avoid forfeiture. If [name of claimant] fails to establish "real" ownership, then [name of claimant] has failed to prove innocent ownership in this case.
Second, the [name of claimant] must also establish that the [named property] was not unlawfully used or possessed by him/her. In the event that the evidence establishes that the [named property] was unlawfully used or possessed by a person other than [name of claimant], then the burden is on [name of claimant] to show that the unlawful use or possession was without [name of claimant's] knowledge and consent. In other words, to establish the "innocent owner" defense, [name of claimant] must establish that he/she was not involved in or aware of the unlawful activity.
Finally, [name of claimant] must prove that he/she did all that could reasonably be expected under the circumstances to prevent the illegal use of the [named property] by another person or an agent, which in this case was [name of person or agent]. You must decide whether an ordinary person faced with the situation could reasonably be expected to act as [name of claimant] did to prevent the unlawful use.
In considering this aspect of the "innocent owner" defense, I instruct you that another person who uses or possesses property with the consent or knowledge of the owner is deemed to be the agent of the owner for the purposes of this defense.(10) If [name of claimant] was aware of the criminal activity, and had knowledge that the other person was utilizing the [named property] for unlawful purposes, than [name of claimant] has failed to meet his/her burden and has not established the statutory defense of innocent ownership.
If the [name of claimant] establishes all the elements of this defense, then the property is not subject to forfeiture. On the other hand, if the [name of claimant] fails to establish any of the elements of this defense, then the property is subject to forfeiture as long as the State has met its burden of proof on all the other elements of this forfeiture action.
(1)N.J.S.A. 2C:64-1a(2).
(2)N.J.S.A. 2C:64-1a(3).
(3)N.J.S.A. 2C:64-1a(4).
(4)The underlying offense, however, may not be a disorderly persons offense. State v. Seven Thousand Dollars, 136 N.J. 223 (1994).
(5)N.J.S.A. 2C:64-4b.
(6)State v. Seven Thousand Dollars, 136 N.J. at 234.
(7)Id. at 234-35.
(8)State v. $36,560.00, 289 N.J. Super 237, 255-56 (App. Div. 1996).
(9)N.J.S.A. 2C:64-3(j).
(10)N.J.S.A. 2C:64-5(b).
Sunday, August 12, 2007
9.15 CONDEMNATION_TAKING PUBLICLY OWNED PROPERTIES
When a condemning authority takes property which is already devoted to a public use, the condemning authority must furnish a substitute facility. For instance, if the State of New Jersey took this courthouse for a State highway, it would have to provide the County with another courthouse facility. It may either build a substitute or be required to pay enough money for one to be built.See footnote 1 You must decide whether the substitute which [insert name of condemning authority here] has provided is adequate. The two need not be identical, but the substitute must be adequate. It must enable the public body to operate as efficiently as it did before the taking. The property that was taken fulfilled a public purpose. Does the substitute do the same as well?See footnote 2
[Insert name of condemning authority here] bears the burden of convincing you that the substitute is really adequate. It must provide adequacy by a fair preponderance of the evidence. This simply means that, when you consider all the evidence, the scales must tip in its favor. If the greater weight of the evidence does
not support the condemning authority's contention, then you should not find the substitute to be adequate.See footnote 3
If you find that the substitute is adequate, then just compensation has already been given. In that case, you should find no money damages. But if the substitute is not adequate, then you must decide how much it would cost to make it adequate. The amount would be the just compensation for the taking.
[Where no substitute has been provided charge the following:]
Before the property was taken, it was used to carry out a public function. [Insert name of property owner(s) here] needs a facility to carry out that function. It is entitled to receive a sum of money that will enable it to carry out that function just as efficiently as if the property had not been taken.See footnote 4
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Footnote: 1 State v. Tp. of S. Hackensack, 65 N.J. 377, 385-86 (1974).
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Footnote: 2 State v. Board of Educ. of the City of Elizabeth, 116 N.J. Super. 305, 318 (Law Div. 1971).
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Footnote: 3 State v. Tp. of S. Hackensack, supra, at 386. This allocation of the burden of proof applies only to the question of adequacy of substitute facilities; the concept of burden of proof is otherwise inapplicable to condemnation proceedings. Ibid.
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Footnote: 4 State v. Board of Educ. of the City of Elizabeth, 116 N.J. Super. 305, 318 (Law Div. 1971). Therefore, the sum awarded to alleviate the effects of a taking is not diminished by deductions for depreciation or obsolescence.
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Model Civil Jury Charges
[Insert name of condemning authority here] bears the burden of convincing you that the substitute is really adequate. It must provide adequacy by a fair preponderance of the evidence. This simply means that, when you consider all the evidence, the scales must tip in its favor. If the greater weight of the evidence does
not support the condemning authority's contention, then you should not find the substitute to be adequate.See footnote 3
If you find that the substitute is adequate, then just compensation has already been given. In that case, you should find no money damages. But if the substitute is not adequate, then you must decide how much it would cost to make it adequate. The amount would be the just compensation for the taking.
[Where no substitute has been provided charge the following:]
Before the property was taken, it was used to carry out a public function. [Insert name of property owner(s) here] needs a facility to carry out that function. It is entitled to receive a sum of money that will enable it to carry out that function just as efficiently as if the property had not been taken.See footnote 4
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Footnote: 1 State v. Tp. of S. Hackensack, 65 N.J. 377, 385-86 (1974).
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Footnote: 2 State v. Board of Educ. of the City of Elizabeth, 116 N.J. Super. 305, 318 (Law Div. 1971).
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Footnote: 3 State v. Tp. of S. Hackensack, supra, at 386. This allocation of the burden of proof applies only to the question of adequacy of substitute facilities; the concept of burden of proof is otherwise inapplicable to condemnation proceedings. Ibid.
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Footnote: 4 State v. Board of Educ. of the City of Elizabeth, 116 N.J. Super. 305, 318 (Law Div. 1971). Therefore, the sum awarded to alleviate the effects of a taking is not diminished by deductions for depreciation or obsolescence.
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Model Civil Jury Charges
9.14 CONDEMNATION - PARTIAL TAKING
A. Before and After Method
Although there are several ways of determining just compensation, the [insert name of party here] in this case have employed the so-called “before and after” method, in which just compensation is measured by the difference between the fair market value of the entire property on [insert date of value here], immediately before the taking and the fair market value of the remaining property on [insert date of value here] immediately after and as affected by the taking.
Where, as here, only a portion of a property is condemned, the measure of just compensation includes both the value of the land actually taken and the value by which the remaining part has been diminished as a consequence of the partial taking.See footnote 1
Therefore in order to arrive at just compensation, first you must determine the before value, that is, the fair market value of the entire property as of [insert date of value here] immediately before the taking. Then you must determine the after value, that is, the fair market value of the remaining property as of [insert date of value here], immediately after and as affected by the taking. The difference
between the before and after value will be the just compensation to the property owner and the amount of your verdict.
Imagine that, before the taking and without any thought of a possible taking of a part of the property, the property owner had put his or her entire property up for sale, found a buyer, and that they finally agreed upon a price on [insert date of value here]. During the negotiations, the property owner would have pointed out all the good points of the property that tend to enhance or increase its value. The buyer, on the other hand, would have pointed out things that tend to reduce or decrease its value. Only after discussing all these factors, and taking the time to consider them carefully, would the buyer and the property owner finally have agreed upon a figure. That figure is the property's fair market value before the taking and the first step in arriving at your verdict.
Then, as the second step in arriving at your verdict, imagine that the parties negotiated a sale of what would be left after the taking. The parties have referred to the part that was left after the taking as “the remainder.” Now imagine that the property owner had put the property remaining after the taking up for sale, found a buyer, and that they finally agreed upon a price on [insert date of value here]. During the negotiations, the property owner would have pointed out all the good points of the property that tend to enhance or increase its value. The buyer, on the
other hand, would have pointed out things that tend to reduce or decrease its value, including the effects, if any, of the taking. Only after discussing all these factors, and taking the time to consider them carefully, would the buyer and the property owner finally have agreed upon a figure. That figure is the property's fair market value after the taking, the second amount you have to determine in reaching your verdict.
Your verdict of just compensation is the difference between the value of the property before the taking and the value of the property after the taking.See footnote 2
B. Damages
1. When [insert name of condemning authority here] takes only part of an owner's property, there may be special valuation problems if you find that the taking reduced the value of the owner's remaining property. If the partial taking did not reduce the value of the owner's remaining property, then [insert name of property owner(s) here] would be justly and fully compensated by being paid the value of the property taken. On the other hand, if the remaining property was lowered in value by the taking, the owner will not be made whole merely by
payment of the market value of the portion of property taken. If the remaining property was lowered in value by the taking, the owner must be compensated for the loss sustained to the value of the remaining property. We call such a loss “severance” damages.
Put another way, the owner would not have been willing to sell only a portion of his or her property without including in the sale price the loss in value caused by breaking up his or her property.See footnote 3
There are two ways to include severance damages in your verdict. One is to compare the fair market value of the owner's whole piece of property before the taking with the fair market value of what he or she is left with after the taking. The difference would be the total value of what was taken and that would include severance damages.See footnote 4 The other way is to find the fair market value of just the parcel taken and then consider whether the taking resulted in reducing the value of what was left. If you find that the value of the remainder has been reduced -- that
is, suffered severance damages -- these damages should be added to the value of the parcel taken to arrive at a verdict of just compensation.See footnote 5
Whichever way you approach the question, you will have to determine first whether there has in fact been a reduction in the value of the portion of the property not taken, because not all partial takings cause severance damage to the owner of the remainder.
Take as an example a supermarket. The building itself occupies part of the property and the rest is a parking lot. The entire property is devoted to use as a marketplace including the parking lot which attracts customers who use cars to get there and to take home their purchases. If the land used for the parking lot is taken away from the entire parcel, the remaining land and building would be reduced in its utility. The remainder would probably be worth a good deal less than it was with the parking lot. In that case, there would be damages.
You must decide, after weighing the evidence, if taking part of the owner's property caused damage to the part not taken. Was the entire property before the taking a functional unit? You should note that the property could be a functional unit even if the parcel taken was physically separate from the parcel not taken. A
supermarket's parking lot could be across the street or even several doors away from the store. The test is whether the remaining parcel and the parcel that was taken were or could reasonably be anticipated to be parts of a single economic unit.See footnote 6
2. Quite apart from any damage a partial taking may cause the owner's remaining property, the remaining property may be damaged by the use to which the condemning authority may put the portion that was taken. For instance, a condemning authority might take part of a farm and thereby do no damage to the portion not taken until the condemning authority uses the portion taken for an incinerator which causes smoke and ashes to settle on the remaining portion, ruining the owner's crops. In such a case, the value of the remaining portion would be lower and that reduction in value should be included in your verdict. You are not to separately evaluate the loss caused by the condemning authority's use _ in the example given, that would be the destruction of crops every year. Rather you must determine the reduced market value of the remaining
property caused by the harmful effects of the condemning authority's use of the property taken.
When we speak of “value” as a measure of just compensation, we are referring to market value; and when we speak of market value we mean the price which would be mutually agreeable to a willing buyer and a willing seller, neither being under compulsion to act. . . . In making a determination as to value, then, all the considerations which would influence a willing buyer and a willing seller in coming to terms as to price should be considered by you.See footnote 7
[Insert the contentions of the parties regarding consequential damages here].
C. Loss of Access
Every owner of property which abuts a public roadway such as [insert description of property in question here] has a right of reasonable access to the general system of streets and highways in New Jersey, but not to a particular means of access. The right of access is subject to regulation for the purpose of protecting the public health, safety and welfare. The property owner's right of access to
abutting roadways is subordinate to the public's right and interest in a safe and efficient highway.
On the other hand, governmental entities may not eliminate all access to the general system of streets and highways without providing just compensation.See footnote 8
Damages may arise where, after the taking, the owner's remaining portion no longer has suitable access to a street or highway. If you find that the remaining portion has no reasonable access to a street or highway because of the taking, that would reduce its value. The cost of correcting the situation by acquiring or building a new access to the street or highway would be an important factor in arriving at the fair market value of the property taken.
Before including such damages in your verdict, however, you must be satisfied that the remaining property has no reasonable access to the street. If access is merely more roundabout or less convenient, that would not warrant any severance damages on account of the loss of suitable street access.See footnote 9
[Name the contentions of the parties regarding initial access, access restriction(s) imposed by condemning authority and remaining access].
If you find that the property retains reasonable access after the taking, you may not compensate the property owner for the change in access.See footnote 10 If you find that the property does not retain reasonable access, you may provide compensation for its loss.
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Footnote: 1 State v. Silver, 92 N.J. 507 (1983).
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Footnote: 2 State v. Carroll, 123 N.J. 308 (1991).
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Footnote: 3 State v. Rohrer, 145 N.J. Super. 63, 70 (Law Div. 1976); Sterner v. Nixon, 116 N.J.L. 418 (E. & A. 1938).
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Footnote: 4 Port of New York Auth. v. Howell, 59 N.J. Super. 343, 348 (Law Div. 1960), aff'd 68 N.J. Super. 559 (App. Div. 1961), certif. den. 36 N.J. 144.
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Footnote: 5 State v. Silver, 92 N.J. 507, 514, (1983), See also Village of South Orange v. Alden Corp., 71 N.J. 362, 367-368 (1976).
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Footnote: 6 Housing Auth. of Newark v. Norfolk Realty Co., 71 N.J. 314, 321-22 (1976); State v. Bakers Basin Realty Co., 138 N.J.Super. 33 (App. Div.1975), aff'd 74 N.J. 103 (1977). See also, Manalapan Tp. V. Genovese, 187 N.J. Super. 516, 523-24 (App. Div. 1983). (A leasehold interest is not sufficient to create a single economic unit).
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Footnote: 7 Village of South Orange v. Alden Corp., 71 N.J. 362, 367-68 (1978).
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Footnote: 8 N.J.S.A. 27:7-90(e) - (g). See also Highway Horizons Dev. v. Dept. of Transp., 120 N.J. 40, 48-49 (1990) in which the Supreme Court recognized that the State Highway Access Management Act, N.J.S.A. 27:7-89 et seq. confirms common law access principles, and Magliochetti v. State, 276 N.J. Super. 361 (Law Div. 1994).
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Footnote: 9 But see, State v. Van Nortwick, 287 N.J. Super. 59 (App. Div. 1995) (Compensation for limitation of access which creates on-site problems may be
appropriate if a reasonable buyer or seller would consider such limitation a factor in determining the fair market value of the property).
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Footnote: 10 Nevertheless, a property owner is entitled to “on-site damages” caused by a diminution of access if they are “actual” and “specific” to the remainder as opposed to resulting from the “limitation of access per se”. State, by Com'r of Transportation v. Van Nortwick, 260 N.J. Super. 555 (App. Div. 1992); State, by Com'r of Transp. v. Van Nortwick, ____ N.J. Super.____(App. Div. 1995).
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Model Civil Jury Charges
Although there are several ways of determining just compensation, the [insert name of party here] in this case have employed the so-called “before and after” method, in which just compensation is measured by the difference between the fair market value of the entire property on [insert date of value here], immediately before the taking and the fair market value of the remaining property on [insert date of value here] immediately after and as affected by the taking.
Where, as here, only a portion of a property is condemned, the measure of just compensation includes both the value of the land actually taken and the value by which the remaining part has been diminished as a consequence of the partial taking.See footnote 1
Therefore in order to arrive at just compensation, first you must determine the before value, that is, the fair market value of the entire property as of [insert date of value here] immediately before the taking. Then you must determine the after value, that is, the fair market value of the remaining property as of [insert date of value here], immediately after and as affected by the taking. The difference
between the before and after value will be the just compensation to the property owner and the amount of your verdict.
Imagine that, before the taking and without any thought of a possible taking of a part of the property, the property owner had put his or her entire property up for sale, found a buyer, and that they finally agreed upon a price on [insert date of value here]. During the negotiations, the property owner would have pointed out all the good points of the property that tend to enhance or increase its value. The buyer, on the other hand, would have pointed out things that tend to reduce or decrease its value. Only after discussing all these factors, and taking the time to consider them carefully, would the buyer and the property owner finally have agreed upon a figure. That figure is the property's fair market value before the taking and the first step in arriving at your verdict.
Then, as the second step in arriving at your verdict, imagine that the parties negotiated a sale of what would be left after the taking. The parties have referred to the part that was left after the taking as “the remainder.” Now imagine that the property owner had put the property remaining after the taking up for sale, found a buyer, and that they finally agreed upon a price on [insert date of value here]. During the negotiations, the property owner would have pointed out all the good points of the property that tend to enhance or increase its value. The buyer, on the
other hand, would have pointed out things that tend to reduce or decrease its value, including the effects, if any, of the taking. Only after discussing all these factors, and taking the time to consider them carefully, would the buyer and the property owner finally have agreed upon a figure. That figure is the property's fair market value after the taking, the second amount you have to determine in reaching your verdict.
Your verdict of just compensation is the difference between the value of the property before the taking and the value of the property after the taking.See footnote 2
B. Damages
1. When [insert name of condemning authority here] takes only part of an owner's property, there may be special valuation problems if you find that the taking reduced the value of the owner's remaining property. If the partial taking did not reduce the value of the owner's remaining property, then [insert name of property owner(s) here] would be justly and fully compensated by being paid the value of the property taken. On the other hand, if the remaining property was lowered in value by the taking, the owner will not be made whole merely by
payment of the market value of the portion of property taken. If the remaining property was lowered in value by the taking, the owner must be compensated for the loss sustained to the value of the remaining property. We call such a loss “severance” damages.
Put another way, the owner would not have been willing to sell only a portion of his or her property without including in the sale price the loss in value caused by breaking up his or her property.See footnote 3
There are two ways to include severance damages in your verdict. One is to compare the fair market value of the owner's whole piece of property before the taking with the fair market value of what he or she is left with after the taking. The difference would be the total value of what was taken and that would include severance damages.See footnote 4 The other way is to find the fair market value of just the parcel taken and then consider whether the taking resulted in reducing the value of what was left. If you find that the value of the remainder has been reduced -- that
is, suffered severance damages -- these damages should be added to the value of the parcel taken to arrive at a verdict of just compensation.See footnote 5
Whichever way you approach the question, you will have to determine first whether there has in fact been a reduction in the value of the portion of the property not taken, because not all partial takings cause severance damage to the owner of the remainder.
Take as an example a supermarket. The building itself occupies part of the property and the rest is a parking lot. The entire property is devoted to use as a marketplace including the parking lot which attracts customers who use cars to get there and to take home their purchases. If the land used for the parking lot is taken away from the entire parcel, the remaining land and building would be reduced in its utility. The remainder would probably be worth a good deal less than it was with the parking lot. In that case, there would be damages.
You must decide, after weighing the evidence, if taking part of the owner's property caused damage to the part not taken. Was the entire property before the taking a functional unit? You should note that the property could be a functional unit even if the parcel taken was physically separate from the parcel not taken. A
supermarket's parking lot could be across the street or even several doors away from the store. The test is whether the remaining parcel and the parcel that was taken were or could reasonably be anticipated to be parts of a single economic unit.See footnote 6
2. Quite apart from any damage a partial taking may cause the owner's remaining property, the remaining property may be damaged by the use to which the condemning authority may put the portion that was taken. For instance, a condemning authority might take part of a farm and thereby do no damage to the portion not taken until the condemning authority uses the portion taken for an incinerator which causes smoke and ashes to settle on the remaining portion, ruining the owner's crops. In such a case, the value of the remaining portion would be lower and that reduction in value should be included in your verdict. You are not to separately evaluate the loss caused by the condemning authority's use _ in the example given, that would be the destruction of crops every year. Rather you must determine the reduced market value of the remaining
property caused by the harmful effects of the condemning authority's use of the property taken.
When we speak of “value” as a measure of just compensation, we are referring to market value; and when we speak of market value we mean the price which would be mutually agreeable to a willing buyer and a willing seller, neither being under compulsion to act. . . . In making a determination as to value, then, all the considerations which would influence a willing buyer and a willing seller in coming to terms as to price should be considered by you.See footnote 7
[Insert the contentions of the parties regarding consequential damages here].
C. Loss of Access
Every owner of property which abuts a public roadway such as [insert description of property in question here] has a right of reasonable access to the general system of streets and highways in New Jersey, but not to a particular means of access. The right of access is subject to regulation for the purpose of protecting the public health, safety and welfare. The property owner's right of access to
abutting roadways is subordinate to the public's right and interest in a safe and efficient highway.
On the other hand, governmental entities may not eliminate all access to the general system of streets and highways without providing just compensation.See footnote 8
Damages may arise where, after the taking, the owner's remaining portion no longer has suitable access to a street or highway. If you find that the remaining portion has no reasonable access to a street or highway because of the taking, that would reduce its value. The cost of correcting the situation by acquiring or building a new access to the street or highway would be an important factor in arriving at the fair market value of the property taken.
Before including such damages in your verdict, however, you must be satisfied that the remaining property has no reasonable access to the street. If access is merely more roundabout or less convenient, that would not warrant any severance damages on account of the loss of suitable street access.See footnote 9
[Name the contentions of the parties regarding initial access, access restriction(s) imposed by condemning authority and remaining access].
If you find that the property retains reasonable access after the taking, you may not compensate the property owner for the change in access.See footnote 10 If you find that the property does not retain reasonable access, you may provide compensation for its loss.
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Footnote: 1 State v. Silver, 92 N.J. 507 (1983).
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Footnote: 2 State v. Carroll, 123 N.J. 308 (1991).
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Footnote: 3 State v. Rohrer, 145 N.J. Super. 63, 70 (Law Div. 1976); Sterner v. Nixon, 116 N.J.L. 418 (E. & A. 1938).
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Footnote: 4 Port of New York Auth. v. Howell, 59 N.J. Super. 343, 348 (Law Div. 1960), aff'd 68 N.J. Super. 559 (App. Div. 1961), certif. den. 36 N.J. 144.
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Footnote: 5 State v. Silver, 92 N.J. 507, 514, (1983), See also Village of South Orange v. Alden Corp., 71 N.J. 362, 367-368 (1976).
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Footnote: 6 Housing Auth. of Newark v. Norfolk Realty Co., 71 N.J. 314, 321-22 (1976); State v. Bakers Basin Realty Co., 138 N.J.Super. 33 (App. Div.1975), aff'd 74 N.J. 103 (1977). See also, Manalapan Tp. V. Genovese, 187 N.J. Super. 516, 523-24 (App. Div. 1983). (A leasehold interest is not sufficient to create a single economic unit).
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Footnote: 7 Village of South Orange v. Alden Corp., 71 N.J. 362, 367-68 (1978).
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Footnote: 8 N.J.S.A. 27:7-90(e) - (g). See also Highway Horizons Dev. v. Dept. of Transp., 120 N.J. 40, 48-49 (1990) in which the Supreme Court recognized that the State Highway Access Management Act, N.J.S.A. 27:7-89 et seq. confirms common law access principles, and Magliochetti v. State, 276 N.J. Super. 361 (Law Div. 1994).
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Footnote: 9 But see, State v. Van Nortwick, 287 N.J. Super. 59 (App. Div. 1995) (Compensation for limitation of access which creates on-site problems may be
appropriate if a reasonable buyer or seller would consider such limitation a factor in determining the fair market value of the property).
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Footnote: 10 Nevertheless, a property owner is entitled to “on-site damages” caused by a diminution of access if they are “actual” and “specific” to the remainder as opposed to resulting from the “limitation of access per se”. State, by Com'r of Transportation v. Van Nortwick, 260 N.J. Super. 555 (App. Div. 1992); State, by Com'r of Transp. v. Van Nortwick, ____ N.J. Super.____(App. Div. 1995).
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Model Civil Jury Charges
9.13 CONDEMNATION - MACHINERY
xSometimes, when property with a building is condemned, the owner moves out all his or her personal property including machines. Nevertheless, sometimes an owner cannot easily move his or her machinery. Even if he or she could, the machinery might be of little value to him or her as used equipment compared to its value to a buyer of the land, building and machinery together. If the building and the machinery are meant to be used together, that is, if the machinery is an integral and essential part of the building, the owner must be paid for both. The question you must answer is whether the machinery and the building form a single functional unit. Does the machinery form an integral and valuable part of the use to which the property is put? If it does and the value of the building is substantially enhanced by the machinery then the property owner should be paid for that value.See footnote 2
If a building and the machinery in it form such a functional unit and a buyer would pay substantially more for the property with the equipment in place, you would expect the owner to sell the land, building and machinery together at a price that reflects that increased value. Therefore, the fair market value of the entire property would include the increase in value caused by the presence of the machinery.
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Footnote: 1 Special problems of valuation come up when the property taken is the site of a business. For a cautionary note concerning the non-compensability of such speculative or incidental business losses as good will, loss of profits, and the like, see Housing Auth. of Newark v. Norfolk Realty Co., 71 N.J. 314, 323 (1976); State v. Cooper Alloy Corp., 136 N.J. Super. 560 (App. Div. 1975). In general, losses to property are compensable; losses to business conducted on the property are not. The Relocation Assistant Act, N.J.S.A. 20:4-1 et seq., which authorizes payment for certain such expenses, does not affect the condemnation proceeding. Such payments are in addition to the just compensation established in the condemnation proceeding. N.J.S.A. 20:4-18.
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Footnote: 2 State v. Gallant, 42 N.J. 583, 590 (1964); Housing Auth., Borough of Clementon v. Myers, 115 N.J. Super. 467, 472 (App. Div. 1971). Often presented is the question of whether the machinery cannot be removed without serious injury to itself or the building or is specially designed or adapted to the building to the extent that removal from the building would make it essentially worthless. See Town of Montclair v. D'Andrea, 138 N.J. Super. 479 (App. Div. 1976). See also N.J.S.A. 20:3-2(d); 20:4-4(a)(2).
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Model Civil Jury Charges
If a building and the machinery in it form such a functional unit and a buyer would pay substantially more for the property with the equipment in place, you would expect the owner to sell the land, building and machinery together at a price that reflects that increased value. Therefore, the fair market value of the entire property would include the increase in value caused by the presence of the machinery.
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Footnote: 1 Special problems of valuation come up when the property taken is the site of a business. For a cautionary note concerning the non-compensability of such speculative or incidental business losses as good will, loss of profits, and the like, see Housing Auth. of Newark v. Norfolk Realty Co., 71 N.J. 314, 323 (1976); State v. Cooper Alloy Corp., 136 N.J. Super. 560 (App. Div. 1975). In general, losses to property are compensable; losses to business conducted on the property are not. The Relocation Assistant Act, N.J.S.A. 20:4-1 et seq., which authorizes payment for certain such expenses, does not affect the condemnation proceeding. Such payments are in addition to the just compensation established in the condemnation proceeding. N.J.S.A. 20:4-18.
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Footnote: 2 State v. Gallant, 42 N.J. 583, 590 (1964); Housing Auth., Borough of Clementon v. Myers, 115 N.J. Super. 467, 472 (App. Div. 1971). Often presented is the question of whether the machinery cannot be removed without serious injury to itself or the building or is specially designed or adapted to the building to the extent that removal from the building would make it essentially worthless. See Town of Montclair v. D'Andrea, 138 N.J. Super. 479 (App. Div. 1976). See also N.J.S.A. 20:3-2(d); 20:4-4(a)(2).
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Model Civil Jury Charges
9.12 CONDEMNATION - METHODS OF COMPUTING FAIR MARKET VALUE
A. Generally
You have already been told that you must determine the fair market value of the property, valued according to its highest and best use. Unfortunately, the court cannot provide you with the dollar amount which you must fill-in on your verdict sheet. The parties have each suggested specific methods of placing a dollar value on this property.
[Insert as appropriate: B. Market Approach; C. Income Approach; D. Cost Approach].See footnote 1
B. Market Approach
When a buyer and a seller negotiate a price for property, they often discuss the prices similar properties have sold for in the recent past.See footnote 2 Similarly, appraisers use sales of similar properties that have taken place at or near the date of value to help arrive at an opinion of value for the subject property. These similar properties have been referred to as "comparables." Frequently, there are disagreements over whether these "comparable" sales involved property that is really equivalent to the property whose price is being negotiating. When each expert witness gave you his or her opinion as to the fair market value of the property in this case, he or she based his or her opinion largely on the prices actually paid in sales of other properties. You must decide the usefulness of the evidence of each sale in determining the market value of the property taken in this case. [For example, if an expert based his or her opinion on prices paid for other properties that you do not think are similar to this property, and the expert did not properly account for
such differences in his or her analysis, his or her opinion of the fair market value should not be given much weight in your deliberations.]
Here are some of the questions you may consider in deciding if the sale price of other property is helpful.
1) Is the other property of similar size?
2) Does the other property have a similar location?
3) How close to the date of taking was the other sale?
4) Were both the buyer and seller negotiating freely?
The experts have mentioned other factors to show the similarity or dissimilarity of other sales.
[Describe these factors here, if applicable.]
It is up to you to sort out the differences with what you think a buyer and seller, freely negotiating at arm's length, would consider in arriving at a sale price for the property taken in this case. Give the evidence on each of those other sales whatever weight you think it deserves in determining the market value of this property.See footnote 3
C. Income Approach
People often buy property as income-producing investments and the property's income stream is another way of measuring a property's fair market value. Another way to look at it is to see what an investor would pay for a piece of property in order to get income over time. For instance, suppose he or she decides to invest in real estate and knows that he or she could generally expect a seven percent per year return from such an investment. That means that on an investment of one hundred dollars he or she could expect to receive income of seven dollars per year. If he or she invests one hundred thousand dollars, he or she could expect to receive seven thousand dollars income every year. Suppose he or she is considering the purchase of a piece of property that provides seven thousand dollars a year in rental income after all expenses. He or she should be willing to pay one hundred thousand dollars for that property because that is the amount necessary to invest in order to get an annual income of seven thousand dollars.
The expert witnesses have referred to this way of arriving at the property's value as the “capitalization of income” formula because it gives you the amount of money or capital that should be invested to purchase the property in order to receive the income which the property produces. See footnote 4
As you have heard, experts can differ as to [indicate here as appropriate: the rate of return; the property's potential or anticipated net income on the date of taking, i.e., the income that could have been expected if the property were available for lease on the date of valueSee footnote 5] Experts can even disagree as to the importance of the capitalization approach in arriving at a fair market value of the property.
[Discuss contentions of parties here]
When you consider evidence concerning the income produced by the property, you should only consider it as it affects the market value of the property. [Insert name of property owner(s) here] is not entitled to be paid extra for losing income after the date of taking, because he or she will be fully compensated for his r her lost income by receiving the property's fair market value.
D. Cost Approach
The market value of the property may be influenced by the value of the structures on it. The value of the structure(s) is a factor that may affect market value. You must determine the value of the land as enhanced by the value of the structures on it.See footnote 6 Suppose that the highest and best use of farm land might be to develop it into residential building lots. In that case, a barn would not enhance the value of the land at all. In fact, it might even reduce the value of the land because of the expense necessary to tear it down so that houses could be constructed.
Suppose, however, that someone interested in buying property wants to use it for a home and the property already has a house on it. It is logical to assume that such a house would enhance the value of the property; certainly, the buyer would want to know how much the house itself is worth; that is, the reproduction cost of the building -- how much it would cost to build one like it, less the wear and tear, or depreciation, the building has suffered.See footnote 7
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Footnote: 1 Where appropriate, evidence of comparable sales is the “most satisfactory proof of value. State v. Tp. of S. Hackensack, 65 N.J. 377, 382 (1974).
We recognize that most often real estate experts use the comparable sales approach. So, too, where the facts warrant it, other approaches are utilized by real estate experts. The State has asked us to decide what appraisal method should be used in this case. It is not our function to designate what method of appraisal should be used -- our function is limited to decide in each case whether the method used is reasonable under the existing circumstances.
State v. Mehlman, 118 N.J. Super. 587, 591 (App. Div. 1972) (Citations omitted).
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Footnote: 2 County of Ocean v. Landolfo, 132 N.J. Super. 523 (App. Div. 1975); State v. Speare, 86 N.J. Super. 565 (App. Div. 1965), certif. den. 45 N.J. 589 (1965). While the court must initially determine as a matter of law whether proffered sales are comparable enough to be presented to the jury, the trier of fact determines the weight to be accorded sales which qualify as comparable. Ibid. at 575. See also Paterson Redevelopment Agency v. Bienstock, 123 N.J. Super. 457 (App. Div. 1973); Moorestown Tp. v. Slack, 85 N.J. Super. 109, 114-15 (App. Div. 1964), certif. den. 43 N.J. 452 (1964); State v.. Azzolina Land Corp., 101 N.J. Super. 103 (App. Div. 1968).
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Footnote: 3 State v. Probasco, 114 N.J. Super. 546, 552 (App. Div. 1970), aff'd 58 N.J. 372 (1971); State v. Speare, 86 N.J. Super. 565, 575 (App. Div. 1965), certif. den. 45 N.J. 589 (1965); N.J. Turnpike Auth. v. Herrontown Woods, Inc., 145 N.J. Super. 279, 283 (App.Div. 1976). See also State v. Vacation Land, Inc., 92 N.J. Super. 171, 179 (App. Div. 1961).
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Footnote: 4 See 4 Nichols, Eminent Domain, §12.312(3), p. 152 (rev. 3d ed. 1075); Jahr, Law of Eminent Domain, 225-34. State v. Tp. of S. Hackensack, 65 N.J. 377, 382, n. 3 (1974), City of Trenton v. Lenzner, 16 N.J. 465 (1954). Evidence concerning
capitalization of income projected from hypothetical construction should not be permitted to reach the jury. State v. Mehlman, 118 N.J. Super. 587 (App. Div. 1972). Capitalization of rental income, however, may be projected from reasonably-to-be-anticipated rents even though the actual rents reserved are lower. State v. Hudson Circle Service Center, Inc., 46 N.J. Super. 125, 131-32 (App. Div. 1957).
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Footnote: 5 Actual income is frequently less important than anticipated future income because actual income will only measure the value of the leased fee, i.e. the landlord's interest. Economic or anticipated income will measure all interests. State v. Hudson Circle Service Center, Inc., 46 N.J.Super. 125 (App.Div.1957).
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Footnote: 6 State v. Burnett, 24 N.J. 280, 288-93 (1957). The admission of reproduction cost evidence, while within the discretion of the trial court, is relatively disfavored where sales prices of comparable property are available. Ibid. at 293. See also State v. Cooper Alloy, 136 N.J. Super. at 570; N.J. Highway Auth. v. Ackerson, 73 N.J. Super. 183, 185 (App. Div. 1962).
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Footnote: 7 N.J. Highway Auth. v. Ackerson, 73 N.J. Super. 183, 185 (App. Div. 1962).
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Model Civil Jury Charges
You have already been told that you must determine the fair market value of the property, valued according to its highest and best use. Unfortunately, the court cannot provide you with the dollar amount which you must fill-in on your verdict sheet. The parties have each suggested specific methods of placing a dollar value on this property.
[Insert as appropriate: B. Market Approach; C. Income Approach; D. Cost Approach].See footnote 1
B. Market Approach
When a buyer and a seller negotiate a price for property, they often discuss the prices similar properties have sold for in the recent past.See footnote 2 Similarly, appraisers use sales of similar properties that have taken place at or near the date of value to help arrive at an opinion of value for the subject property. These similar properties have been referred to as "comparables." Frequently, there are disagreements over whether these "comparable" sales involved property that is really equivalent to the property whose price is being negotiating. When each expert witness gave you his or her opinion as to the fair market value of the property in this case, he or she based his or her opinion largely on the prices actually paid in sales of other properties. You must decide the usefulness of the evidence of each sale in determining the market value of the property taken in this case. [For example, if an expert based his or her opinion on prices paid for other properties that you do not think are similar to this property, and the expert did not properly account for
such differences in his or her analysis, his or her opinion of the fair market value should not be given much weight in your deliberations.]
Here are some of the questions you may consider in deciding if the sale price of other property is helpful.
1) Is the other property of similar size?
2) Does the other property have a similar location?
3) How close to the date of taking was the other sale?
4) Were both the buyer and seller negotiating freely?
The experts have mentioned other factors to show the similarity or dissimilarity of other sales.
[Describe these factors here, if applicable.]
It is up to you to sort out the differences with what you think a buyer and seller, freely negotiating at arm's length, would consider in arriving at a sale price for the property taken in this case. Give the evidence on each of those other sales whatever weight you think it deserves in determining the market value of this property.See footnote 3
C. Income Approach
People often buy property as income-producing investments and the property's income stream is another way of measuring a property's fair market value. Another way to look at it is to see what an investor would pay for a piece of property in order to get income over time. For instance, suppose he or she decides to invest in real estate and knows that he or she could generally expect a seven percent per year return from such an investment. That means that on an investment of one hundred dollars he or she could expect to receive income of seven dollars per year. If he or she invests one hundred thousand dollars, he or she could expect to receive seven thousand dollars income every year. Suppose he or she is considering the purchase of a piece of property that provides seven thousand dollars a year in rental income after all expenses. He or she should be willing to pay one hundred thousand dollars for that property because that is the amount necessary to invest in order to get an annual income of seven thousand dollars.
The expert witnesses have referred to this way of arriving at the property's value as the “capitalization of income” formula because it gives you the amount of money or capital that should be invested to purchase the property in order to receive the income which the property produces. See footnote 4
As you have heard, experts can differ as to [indicate here as appropriate: the rate of return; the property's potential or anticipated net income on the date of taking, i.e., the income that could have been expected if the property were available for lease on the date of valueSee footnote 5] Experts can even disagree as to the importance of the capitalization approach in arriving at a fair market value of the property.
[Discuss contentions of parties here]
When you consider evidence concerning the income produced by the property, you should only consider it as it affects the market value of the property. [Insert name of property owner(s) here] is not entitled to be paid extra for losing income after the date of taking, because he or she will be fully compensated for his r her lost income by receiving the property's fair market value.
D. Cost Approach
The market value of the property may be influenced by the value of the structures on it. The value of the structure(s) is a factor that may affect market value. You must determine the value of the land as enhanced by the value of the structures on it.See footnote 6 Suppose that the highest and best use of farm land might be to develop it into residential building lots. In that case, a barn would not enhance the value of the land at all. In fact, it might even reduce the value of the land because of the expense necessary to tear it down so that houses could be constructed.
Suppose, however, that someone interested in buying property wants to use it for a home and the property already has a house on it. It is logical to assume that such a house would enhance the value of the property; certainly, the buyer would want to know how much the house itself is worth; that is, the reproduction cost of the building -- how much it would cost to build one like it, less the wear and tear, or depreciation, the building has suffered.See footnote 7
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Footnote: 1 Where appropriate, evidence of comparable sales is the “most satisfactory proof of value. State v. Tp. of S. Hackensack, 65 N.J. 377, 382 (1974).
We recognize that most often real estate experts use the comparable sales approach. So, too, where the facts warrant it, other approaches are utilized by real estate experts. The State has asked us to decide what appraisal method should be used in this case. It is not our function to designate what method of appraisal should be used -- our function is limited to decide in each case whether the method used is reasonable under the existing circumstances.
State v. Mehlman, 118 N.J. Super. 587, 591 (App. Div. 1972) (Citations omitted).
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Footnote: 2 County of Ocean v. Landolfo, 132 N.J. Super. 523 (App. Div. 1975); State v. Speare, 86 N.J. Super. 565 (App. Div. 1965), certif. den. 45 N.J. 589 (1965). While the court must initially determine as a matter of law whether proffered sales are comparable enough to be presented to the jury, the trier of fact determines the weight to be accorded sales which qualify as comparable. Ibid. at 575. See also Paterson Redevelopment Agency v. Bienstock, 123 N.J. Super. 457 (App. Div. 1973); Moorestown Tp. v. Slack, 85 N.J. Super. 109, 114-15 (App. Div. 1964), certif. den. 43 N.J. 452 (1964); State v.. Azzolina Land Corp., 101 N.J. Super. 103 (App. Div. 1968).
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Footnote: 3 State v. Probasco, 114 N.J. Super. 546, 552 (App. Div. 1970), aff'd 58 N.J. 372 (1971); State v. Speare, 86 N.J. Super. 565, 575 (App. Div. 1965), certif. den. 45 N.J. 589 (1965); N.J. Turnpike Auth. v. Herrontown Woods, Inc., 145 N.J. Super. 279, 283 (App.Div. 1976). See also State v. Vacation Land, Inc., 92 N.J. Super. 171, 179 (App. Div. 1961).
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Footnote: 4 See 4 Nichols, Eminent Domain, §12.312(3), p. 152 (rev. 3d ed. 1075); Jahr, Law of Eminent Domain, 225-34. State v. Tp. of S. Hackensack, 65 N.J. 377, 382, n. 3 (1974), City of Trenton v. Lenzner, 16 N.J. 465 (1954). Evidence concerning
capitalization of income projected from hypothetical construction should not be permitted to reach the jury. State v. Mehlman, 118 N.J. Super. 587 (App. Div. 1972). Capitalization of rental income, however, may be projected from reasonably-to-be-anticipated rents even though the actual rents reserved are lower. State v. Hudson Circle Service Center, Inc., 46 N.J. Super. 125, 131-32 (App. Div. 1957).
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Footnote: 5 Actual income is frequently less important than anticipated future income because actual income will only measure the value of the leased fee, i.e. the landlord's interest. Economic or anticipated income will measure all interests. State v. Hudson Circle Service Center, Inc., 46 N.J.Super. 125 (App.Div.1957).
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Footnote: 6 State v. Burnett, 24 N.J. 280, 288-93 (1957). The admission of reproduction cost evidence, while within the discretion of the trial court, is relatively disfavored where sales prices of comparable property are available. Ibid. at 293. See also State v. Cooper Alloy, 136 N.J. Super. at 570; N.J. Highway Auth. v. Ackerson, 73 N.J. Super. 183, 185 (App. Div. 1962).
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Footnote: 7 N.J. Highway Auth. v. Ackerson, 73 N.J. Super. 183, 185 (App. Div. 1962).
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Model Civil Jury Charges
9.11 CONDEMNATION HIGHEST AND BEST USE
A. Generally (4/96)
The fair market value of property is not necessarily limited to what an owner actually uses it for. The uses to which an owner may realistically and legally put the property is one of the first things to consider in arriving at its value. Property that has been used for a modest one-family house would probably be worth more if it were used for some profit-making enterprise such as an apartment house, office building or factory. In arriving at the property's fair market value, you should consider the “highest and best” use to which the property can be put. In other words, to determine fair market value you should consider the use which would prompt a buyer to pay as much as the owner might reasonably expect to receive from selling the property.(1)
You must decide what the “highest and best” use of the property is.(2) But you must be realistic. In considering whether a “use” advanced by either party is the property's highest and best, you must determine if the property is suitable for that use, and whether anybody would want it for that use.
OPTIONAL:If deemed appropriate give an example using the specific facts of your case, i.e. “A piece of land might have more value if used for an office building, but to have that higher value there would have to be a demand for an office building on the property. If the property is farm land, far removed from any city, it may be less likely that anyone would want to build an office there. In that case, use as an office complex could not be considered as that property's highest or best use.”
Similarly, zoning, planning, and building laws and regulations limit the way property may be used. If, for example, the zoning laws permit only one-family houses, then an industrial or commercial use could not be considered as the highest or best use of the property even though there might be wide-spread demand for such other uses.
B. Effect of Potential Variance or Zone Change (4/96; revised 4/02)
Now suppose there were indications that the law regulating the property's use might change so as to permit a use, or limit a use, in the future which would make the property more valuable or less valuable. Parties negotiating a price for the property’s sale on the date of taking would not simply ignore the probability of change, neither should you.
[Here insert the parties' contentions on the variance or zoning changes.]
It is for you to determine what effect, if any, those indications of a [zoning, planning, et cetera] change would have on the property’s market value on the date of taking. You may find that the change in use is so remote as to have no effect on the property's value.
You may find that the change appeared uncertain, yet would have had some effect on the property's value; or you may find that the change to be very likely, in which case the potential change would have a very substantial effect on the value.
In any case, your finding as to the value of the subject property should reflect the potential change in [zoning, planning, etc.] to the same extent that reasonable buyers and sellers would give such potential change in determining its value.(3)
C. Effect of Potential Assemblage of Lots (4/02)
In determining “highest and best” use of the property you must take all the surrounding circumstances into account. Now suppose there were indications that there was reasonable probability that the property may be assembled with neighboring properties to form a larger piece of property.(4) Suppose further that the assemblage of a larger piece of property would permit a use in the future which would make the property more valuable. Parties negotiating a price for the property’s sale on the date of taking would not simply ignore the probability of assemblage and neither should you.
[Here insert the parties' contentions on the probability of an assemblage of properties here.]
It is for you to decide what effect, if any, those indications of a probability of future assemblage would have on the market value of the property on the date of taking.(5)
You may find that the probability of an assemblage is so remote as to have no effect on the property's value. You may find that the probability of an assemblage appeared uncertain, yet would have had some effect on the property's value. Or you may find that the probability of an assemblage to be very likely, in which case the potential change would have a very substantial effect on the value.
In any case, your finding as to the value of the subject property should reflect the probability of an assemblage to the same extent that reasonable buyers and sellers would give such potential change in determining its value.
(1)State by Com's of Transp. v. Caoili, 135 N.J. 252, 260 (1994); See generally American Institute of Real Estate Appraisers, The Appraisal of Real Estate, 275 (10th ed. 1992).
(2)State v. Nalbone Trucking Co., 128 N.J. Super. 370, 378 (App. Div. 1974), certif. den. 65 N.J. 575.
(3)State by Com'r of Transp. v. Caoili, 135 N.J. 252, 265 (1994). Before such evidence can be considered by a jury, the trial court must first serve a “gate keeping” function and determine that such a zoning change is probable; that is, supported by “cogent evidence indicating beyond a mere possibility that a change of use is likely.” Ibid. at 164.
(4)Note to Judges and Attorneys. The court does have a gate keeping function which requires a threshold determination that the proofs justify sending the issue of assemblage to the jury have been entered into evidence. “If the judge determines that an assemblage, including the defendant’s property was reasonably probable at a near-future time from the date of the taking, then . . . the jury must be instructed to consider in its determination of fair market value ... ” County of Monmouth v. Hilton, 334 N.J.Super. 582, 594 (App. Div. 2000), cert den. 167 N.J. 633 (2001).
(5)See, County of Monmouth v. Hilton, 334 N.J.Super. 582, 594, (App. Div. 2000), cert den. 167 N.J. 633 (2000).
The fair market value of property is not necessarily limited to what an owner actually uses it for. The uses to which an owner may realistically and legally put the property is one of the first things to consider in arriving at its value. Property that has been used for a modest one-family house would probably be worth more if it were used for some profit-making enterprise such as an apartment house, office building or factory. In arriving at the property's fair market value, you should consider the “highest and best” use to which the property can be put. In other words, to determine fair market value you should consider the use which would prompt a buyer to pay as much as the owner might reasonably expect to receive from selling the property.(1)
You must decide what the “highest and best” use of the property is.(2) But you must be realistic. In considering whether a “use” advanced by either party is the property's highest and best, you must determine if the property is suitable for that use, and whether anybody would want it for that use.
OPTIONAL:If deemed appropriate give an example using the specific facts of your case, i.e. “A piece of land might have more value if used for an office building, but to have that higher value there would have to be a demand for an office building on the property. If the property is farm land, far removed from any city, it may be less likely that anyone would want to build an office there. In that case, use as an office complex could not be considered as that property's highest or best use.”
Similarly, zoning, planning, and building laws and regulations limit the way property may be used. If, for example, the zoning laws permit only one-family houses, then an industrial or commercial use could not be considered as the highest or best use of the property even though there might be wide-spread demand for such other uses.
B. Effect of Potential Variance or Zone Change (4/96; revised 4/02)
Now suppose there were indications that the law regulating the property's use might change so as to permit a use, or limit a use, in the future which would make the property more valuable or less valuable. Parties negotiating a price for the property’s sale on the date of taking would not simply ignore the probability of change, neither should you.
[Here insert the parties' contentions on the variance or zoning changes.]
It is for you to determine what effect, if any, those indications of a [zoning, planning, et cetera] change would have on the property’s market value on the date of taking. You may find that the change in use is so remote as to have no effect on the property's value.
You may find that the change appeared uncertain, yet would have had some effect on the property's value; or you may find that the change to be very likely, in which case the potential change would have a very substantial effect on the value.
In any case, your finding as to the value of the subject property should reflect the potential change in [zoning, planning, etc.] to the same extent that reasonable buyers and sellers would give such potential change in determining its value.(3)
C. Effect of Potential Assemblage of Lots (4/02)
In determining “highest and best” use of the property you must take all the surrounding circumstances into account. Now suppose there were indications that there was reasonable probability that the property may be assembled with neighboring properties to form a larger piece of property.(4) Suppose further that the assemblage of a larger piece of property would permit a use in the future which would make the property more valuable. Parties negotiating a price for the property’s sale on the date of taking would not simply ignore the probability of assemblage and neither should you.
[Here insert the parties' contentions on the probability of an assemblage of properties here.]
It is for you to decide what effect, if any, those indications of a probability of future assemblage would have on the market value of the property on the date of taking.(5)
You may find that the probability of an assemblage is so remote as to have no effect on the property's value. You may find that the probability of an assemblage appeared uncertain, yet would have had some effect on the property's value. Or you may find that the probability of an assemblage to be very likely, in which case the potential change would have a very substantial effect on the value.
In any case, your finding as to the value of the subject property should reflect the probability of an assemblage to the same extent that reasonable buyers and sellers would give such potential change in determining its value.
(1)State by Com's of Transp. v. Caoili, 135 N.J. 252, 260 (1994); See generally American Institute of Real Estate Appraisers, The Appraisal of Real Estate, 275 (10th ed. 1992).
(2)State v. Nalbone Trucking Co., 128 N.J. Super. 370, 378 (App. Div. 1974), certif. den. 65 N.J. 575.
(3)State by Com'r of Transp. v. Caoili, 135 N.J. 252, 265 (1994). Before such evidence can be considered by a jury, the trial court must first serve a “gate keeping” function and determine that such a zoning change is probable; that is, supported by “cogent evidence indicating beyond a mere possibility that a change of use is likely.” Ibid. at 164.
(4)Note to Judges and Attorneys. The court does have a gate keeping function which requires a threshold determination that the proofs justify sending the issue of assemblage to the jury have been entered into evidence. “If the judge determines that an assemblage, including the defendant’s property was reasonably probable at a near-future time from the date of the taking, then . . . the jury must be instructed to consider in its determination of fair market value ... ” County of Monmouth v. Hilton, 334 N.J.Super. 582, 594 (App. Div. 2000), cert den. 167 N.J. 633 (2001).
(5)See, County of Monmouth v. Hilton, 334 N.J.Super. 582, 594, (App. Div. 2000), cert den. 167 N.J. 633 (2000).
9.10 CONDEMNATION - GENERALLY
Caution
Every parcel of real estate is unique. So too, every jury charge in a condemnation case should be unique. The model charge cannot substitute for the careful formulation of a charge appropriate to the specific issues presented at trial. Cases, statutes, rules, and texts must be read. A useful source of the relavent authorities is Buonocore, New Jersey Practice, Skills & Methods, Vol. 21, Chapter 41 (West). The primary value of the model charge is to suggest language which the Committee believes will be understandable to a jury. The Judge must carefully choose which portions of the charge apply to the case being tried. Furthermore, the Judge must recognize that in a condemnation trial the basic issue is the amount of just compensation which the owner is to receive for the property taken and the concept of burden of proof has no place in this inquiry. Paterson Redev. Agency v. Bienstock, 123 N.J. Super. 457 (App. Div. 1973). The Judge must also recognize that not all damages suffered by a property owner are compensable and explain the issues to the jury in terms of the evidence presented. In this complex field, the Judge has a heavy responsibility of relating general principles to the case at hand. Often the issues presented will be more complicated and diverse than those reflected in the model charge. The Judge must fashion the charge accordingly.
A. Introduction
[Insert name of condemning authority here] has the power to take private property and put it to a public use through legal procedures called “condemnation.”
You may have heard the phrase commonly used in the context of some health or sanitary code violation. That is not the way we are using it here. The present useage refers to the power of the government to take private property for a public use. As used here, “condemnation” or “eminent domain”, does not mean that a building is shut down because of a failure to meet standards, but refers instead, to the exercise of the government's power to take the property in question.
[Insert a brief description of property or property interests taken] In this case [insert name of condemning authority here] has taken [insert brief description
of property taken here]See footnote 1 belonging to [Insert name of property owner(s) here]See footnote 2 for
the purpose of [insert description of purpose here].
The United States Constitution and the New Jersey Constitution both guarantee that private property cannot be taken for a public use without just compensation.See footnote 3 [Insert name of condemning authority here] and [Insert name of property owner(s) here] cannot agree on the amount of money the owner should receive for the property. It will be up to you to decide what is fair and just compensation in this case.See footnote 4
B. Just Compensation
The property owner is entitled to just compensation as a matter of constitutional right. Just compensation is the amount of money which will make the property owner whole.See footnote 5 The objective of a condemnation award is to indemnify
the owner for the loss of his or her property.See footnote 6 Just compensation implies full indemnity to the property owner. There is no precise and inflexible rule for the assessment of just compensation.See footnote 7
“Just compensation” is usually measured by the fair market value of the propertySee footnote 8 on the date of taking,See footnote 9 in this case [Insert date of taking here]. The fair
market value of a property is the amount that a willing buyer and a willing seller would agree upon through arms length voluntary negotiations.See footnote 10 Fair market value is the value that would be assigned to the acquired property by knowledgeable parties freely negotiating for its sale based on all surrounding circumstances at the time of taking.See footnote 11
[Insert appropriate example, such as: Imagine that the owner had put the property in question up for sale. A buyer expressed interest and they both agreed upon a price on the date of taking. During the negotiations, the owner would have pointed out all the features that enhance the value of the property. The buyer, on the other hand, would have pointed out things that diminish its value. Only after discussing
all these factors, and taking the time to consider them carefully, would the buyer and the owner finally agree to a price That figure would be the property's fair market value, the amount you have to determine by your verdict.]
C. Expert Testimony
No one will ever know for sure what the price would have been if a sale really had taken place on the date of taking. Your job is to determine what the price probably would have been.
To help you do this, each side has presented factors and arguments that they believe would influence the price.See footnote 12 To support their arguments and help you understand the factors they consider important, each side has presented experts whose explanations and opinions may help you.See footnote 13
Where appropriate add: The Court has also appointed [Insert name of Court-appointed expert] to appraise the property.]See footnote 14
The testimony of experts is offered for your consideration. Their function is only to aid and assist you, not to impose a set value upon you. Their opinions are only deductions from he evidence. You must decide the market value of the property after comparing and considering all the evidence, using the expert opinions - if, and only if, you find those opinions helpful in your thinking about value.See footnote 15
In evaluating an expert's testimony, you may consider his or her skill, training, experience, and general credibility as a witness. You should also consider whether he or she has a solid factual basis to support his or her opinion.See footnote 16
[Where appropriate add: These considerations apply to all the expert witnesses, including (insert name of Court-appointed expert). Just because he or she was appointed by the Court does not mean that his or her opinions are entitled to any more or less weight than the opinions of any other experts. You must judge his or her credibility for yourselves.]See footnote 17
You may decide that one expert's opinion of fair market value is correct and reject the other(s). Or you may conclude that none of them are entirely correct. In that case you can come up with another figure for the fair market value of the property, however, you must reach your conclusions on the basis of the evidence.See footnote 18
D. Viewing
We know you are not experts and we did not show you the property expecting that you would come up with its fair market value on the date of taking just by looking at it. We showed you the property so that you could better understand the testimony and other evidence presented to you in the courtroom.See footnote 19 You should not consider the viewing of the property for any other purpose.See footnote 20
--------------------------------------------------------------------------------
Footnote: 1 In the usual condemnation case, the property description is drawn from the complaint. See State v. Orenstein, 124 N.J. Super. 295, 298 (App. Div. 1973): “The only issue to be determined by the commissioners and by the fact-finder in event of appeal is the lump sum compensation to be paid by the condemnor.... If there are any issues to be decided other than that of value and damages be they a challenge to the plaintiff's right to exercise the power of eminent domain or claim that the condemnor is in fact taking more property and rights than those described in the complaint_those issues must be presented to and decided by the court before it enters judgment appointing commissioners.” (Citations omitted). Inverse condemnation actions are initiated by the landowner rather than the condemning agency. However, since the landowner seeks an order directing defendants to institute condemnation proceedings, the litigation thereafter follows the course described in Orenstein, supra. Trial by jury is not available in an action to initiate condemnation proceedings, which is treated as an action in lieu of prerogative writ. O'Neill v. State Highway Dept., 77 N.J. Super. 262, 271 (App. Div. 1962, Goldmann, J., dissenting), reversed per curiam for reasons expressed in dissent, 40 N.J. 326. See State v. Orenstein, supra, at 301 and authorities cited therein.
--------------------------------------------------------------------------------
Footnote: 2 Under the “unit” or “single value” rule applied in New Jersey, a single lump sum is awarded to compensate for the property taken, not for the sum of the various interests in the property. See N.J. Sports and Exposition Auth. v. Borough of East Rutherford, 137 N.J. Super. 271, 279-81 (App. Div. 1975) and authorities cited therein. Therefore, the jury should not concern itself with the exact nature of the interests asserted by multiple claimants. State v. N.J. Zinc Co., 40 N.J. 560, 574 (1963); N.J. Highway Auth. v. J & F Holding Co., 40 N.J. Super. 309, 314 (App. Div. 1956). The lump sum award is divided among the various claimants in a subsequent allocation proceeding (R. 4:73-9(b)), which is conducted as a summary proceeding under R. 4:67.
While tenants thus may not seek a separate lump sum award in the condemnation proceeding, they may submit separate proofs concerning the value of their items of condemned property. "Such participation would be subject to the trial judge's control over participation by counsel to preserve order and avoid repetitious proofs." N.J. Sports & Exposition Auth. v. Borough of East Rutherford, supra, at 284-85.
--------------------------------------------------------------------------------
Footnote: 3 U.S. Const., amend. V, XIV; N.J. Const. (1947), art. I, par. 20.
--------------------------------------------------------------------------------
Footnote: 4 N.J.S.A. 20:3-29; Jersey City Redevelopment Agency v. Kugler, 58 N.J. 374, 377-79 (1958); Port of New York Auth. v. Howell, 59 N.J. Super. 343, 347 (Law Div. 1960), aff'd 68 N.J. Super. 559 (App. Div. 1961).
--------------------------------------------------------------------------------
Footnote: 5 New Jersey Constitution (1947), Article 20, Paragraph 1; Borough of Rockaway v. D'Onofrio, 186 N.J.Super. 344 (App. Div. 1982).
--------------------------------------------------------------------------------
Footnote: 6 State by Highway Commissioner v. Gallant, 42 N.J. 583 (1964). State v. Rohrer, Inc., 80 N.J. 462 (1979).
--------------------------------------------------------------------------------
Footnote: 7 Jersey City Redevelopment Agency v. Kugler, 58 N.J. 374, 383-84 (1971).
--------------------------------------------------------------------------------
Footnote: 8 The unusual character of certain properties may deprive them of a market. For such properties, the reproduction cost less depreciation measure of just compensation may be appropriate. See 10.03, D., n. 24, infra.
--------------------------------------------------------------------------------
Footnote: 9 State v. Cooper Allow Corp., 136 N.J. Super. 560, 567 (App.Div. 1975). Determination of the date of taking is a question of law for the trial court, not a question for the trier of fact. N.J. Sports & Exposition Auth. v. Giant Realty Assoc., 143 N.J. Super. 343, 346 (Law Div. 1976).
Contra: Housing Auth. of Hoboken v. Segal, 107 N.J. Super. 565, 568 (Law Div. 1969), aff'd as modified 112 N.J. Super. 359 (App. Div. 1970).
Calculation of the date of taking is governed by N.J.S.A. 20:3-30. See also Jersey City Redevelopment Agency v. Kugler, 58 N.J. 374 (1971). For date of declaration of blight as the date of taking, see N.J.S.A. 40:55-21.10; Washington Market Enterprises, Inc. v. City of Trenton, 68 N.J. 107, 123-24 (1975). See generally 4 Nichols, Eminent Domain, §12.23, p. 72 (rev. 3d ed. 1975).
--------------------------------------------------------------------------------
Footnote: 10 City of Trenton v. Lenzner, 16 N.J. 465, 476 (1954), cert. den. 348 U.S. 872, 75 S.Ct. 534, 99 L.Ed. 757 (1955); State v. Nordstrom, 54 N.J. 50, 53 (1969), See 4 Nichols, Eminent Domain, §12.32, P. 134 (rev. 3d ed. 1975). This is intended as an "objective" test. The actual property owner's sentimental attachment to the property and other subjective factors are not relevant. See e.g., Port of N.Y. Auth. v. Howell, 58 N.J. Super. 559, 565 (App. Div. 1961).
--------------------------------------------------------------------------------
Footnote: 11 State by Com'r of Transp. v. Caoili, 135 N.J. 252, 260 (1994) quoting State v. Silver, 92 N.J. 507, 514 (1983). “Knowledgeable parties” are individuals who are aware of all relevant information at the time of valuation whether or not such information is easily available. State by the Com'r of Transp. v. Shein, 283 N.J. Super. 588 (App. Div. 1995). Fair market value must be based upon the actual physical condition of the property on the date of valuation. This assumes the parties are fully knowledgeable concerning the physical condition of condemned property as of the date of valuation whether or not they are actually aware or could reasonably have become aware of the condition. Ibid.
--------------------------------------------------------------------------------
Footnote: 12 Village of South Orange v. Alden Corp., 71 N.J. 362, 368 (1976).
--------------------------------------------------------------------------------
Footnote: 13 Qualifications of experts concerning comparable sales are set forth in N.J.S.A. 2A:83-1.
--------------------------------------------------------------------------------
Footnote: 14 Township of Wayne v. Cassatly, N.J. Super. 464, 467 (App. Div. 1975) (per curiam). “(W)here it appears that the trier of facts will be confronted with extraordinarily disparate opinions as to valuation, and a timely motion for the appointment of an independent expert is made, the trial court should seriously
weigh the possible advantage of an impartial expert. Township of Wayne v. Kosoff, 73 N.J. 8, 14 (1977).
--------------------------------------------------------------------------------
Footnote: 15 Port of N.Y. Auth. v. Howell, 59 N.J. Super. 343, 349 (Law Div. 1960), aff'd 68 N.J. Super. 559 (App. Div. 1961).
--------------------------------------------------------------------------------
Footnote: 16 See County of Ocean v. Landolfo, 132, N.J. Super. 523 (App. Div. 1975).
--------------------------------------------------------------------------------
Footnote: 17 Township of Wayne v. Kosoff, 73 N.J. 8, 15 (1977).
--------------------------------------------------------------------------------
Footnote: 18 See generally State v. Vacation Lands, Inc., 92 N.J. Super. 546, 551-2 (App. Div. 1970), aff'd 58 N.J. 372 (1971), State v. Interpace Corp., 130 N.J. Super. 322 (App. Div. 1974).
--------------------------------------------------------------------------------
Footnote: 19 R. 4:73-7.
--------------------------------------------------------------------------------
Footnote: 20 State v. Gorga, 54 N.J. Super. 528 (App. Div. 1959).
--------------------------------------------------------------------------------
Model Civil Jury Charges
Every parcel of real estate is unique. So too, every jury charge in a condemnation case should be unique. The model charge cannot substitute for the careful formulation of a charge appropriate to the specific issues presented at trial. Cases, statutes, rules, and texts must be read. A useful source of the relavent authorities is Buonocore, New Jersey Practice, Skills & Methods, Vol. 21, Chapter 41 (West). The primary value of the model charge is to suggest language which the Committee believes will be understandable to a jury. The Judge must carefully choose which portions of the charge apply to the case being tried. Furthermore, the Judge must recognize that in a condemnation trial the basic issue is the amount of just compensation which the owner is to receive for the property taken and the concept of burden of proof has no place in this inquiry. Paterson Redev. Agency v. Bienstock, 123 N.J. Super. 457 (App. Div. 1973). The Judge must also recognize that not all damages suffered by a property owner are compensable and explain the issues to the jury in terms of the evidence presented. In this complex field, the Judge has a heavy responsibility of relating general principles to the case at hand. Often the issues presented will be more complicated and diverse than those reflected in the model charge. The Judge must fashion the charge accordingly.
A. Introduction
[Insert name of condemning authority here] has the power to take private property and put it to a public use through legal procedures called “condemnation.”
You may have heard the phrase commonly used in the context of some health or sanitary code violation. That is not the way we are using it here. The present useage refers to the power of the government to take private property for a public use. As used here, “condemnation” or “eminent domain”, does not mean that a building is shut down because of a failure to meet standards, but refers instead, to the exercise of the government's power to take the property in question.
[Insert a brief description of property or property interests taken] In this case [insert name of condemning authority here] has taken [insert brief description
of property taken here]See footnote 1 belonging to [Insert name of property owner(s) here]See footnote 2 for
the purpose of [insert description of purpose here].
The United States Constitution and the New Jersey Constitution both guarantee that private property cannot be taken for a public use without just compensation.See footnote 3 [Insert name of condemning authority here] and [Insert name of property owner(s) here] cannot agree on the amount of money the owner should receive for the property. It will be up to you to decide what is fair and just compensation in this case.See footnote 4
B. Just Compensation
The property owner is entitled to just compensation as a matter of constitutional right. Just compensation is the amount of money which will make the property owner whole.See footnote 5 The objective of a condemnation award is to indemnify
the owner for the loss of his or her property.See footnote 6 Just compensation implies full indemnity to the property owner. There is no precise and inflexible rule for the assessment of just compensation.See footnote 7
“Just compensation” is usually measured by the fair market value of the propertySee footnote 8 on the date of taking,See footnote 9 in this case [Insert date of taking here]. The fair
market value of a property is the amount that a willing buyer and a willing seller would agree upon through arms length voluntary negotiations.See footnote 10 Fair market value is the value that would be assigned to the acquired property by knowledgeable parties freely negotiating for its sale based on all surrounding circumstances at the time of taking.See footnote 11
[Insert appropriate example, such as: Imagine that the owner had put the property in question up for sale. A buyer expressed interest and they both agreed upon a price on the date of taking. During the negotiations, the owner would have pointed out all the features that enhance the value of the property. The buyer, on the other hand, would have pointed out things that diminish its value. Only after discussing
all these factors, and taking the time to consider them carefully, would the buyer and the owner finally agree to a price That figure would be the property's fair market value, the amount you have to determine by your verdict.]
C. Expert Testimony
No one will ever know for sure what the price would have been if a sale really had taken place on the date of taking. Your job is to determine what the price probably would have been.
To help you do this, each side has presented factors and arguments that they believe would influence the price.See footnote 12 To support their arguments and help you understand the factors they consider important, each side has presented experts whose explanations and opinions may help you.See footnote 13
Where appropriate add: The Court has also appointed [Insert name of Court-appointed expert] to appraise the property.]See footnote 14
The testimony of experts is offered for your consideration. Their function is only to aid and assist you, not to impose a set value upon you. Their opinions are only deductions from he evidence. You must decide the market value of the property after comparing and considering all the evidence, using the expert opinions - if, and only if, you find those opinions helpful in your thinking about value.See footnote 15
In evaluating an expert's testimony, you may consider his or her skill, training, experience, and general credibility as a witness. You should also consider whether he or she has a solid factual basis to support his or her opinion.See footnote 16
[Where appropriate add: These considerations apply to all the expert witnesses, including (insert name of Court-appointed expert). Just because he or she was appointed by the Court does not mean that his or her opinions are entitled to any more or less weight than the opinions of any other experts. You must judge his or her credibility for yourselves.]See footnote 17
You may decide that one expert's opinion of fair market value is correct and reject the other(s). Or you may conclude that none of them are entirely correct. In that case you can come up with another figure for the fair market value of the property, however, you must reach your conclusions on the basis of the evidence.See footnote 18
D. Viewing
We know you are not experts and we did not show you the property expecting that you would come up with its fair market value on the date of taking just by looking at it. We showed you the property so that you could better understand the testimony and other evidence presented to you in the courtroom.See footnote 19 You should not consider the viewing of the property for any other purpose.See footnote 20
--------------------------------------------------------------------------------
Footnote: 1 In the usual condemnation case, the property description is drawn from the complaint. See State v. Orenstein, 124 N.J. Super. 295, 298 (App. Div. 1973): “The only issue to be determined by the commissioners and by the fact-finder in event of appeal is the lump sum compensation to be paid by the condemnor.... If there are any issues to be decided other than that of value and damages be they a challenge to the plaintiff's right to exercise the power of eminent domain or claim that the condemnor is in fact taking more property and rights than those described in the complaint_those issues must be presented to and decided by the court before it enters judgment appointing commissioners.” (Citations omitted). Inverse condemnation actions are initiated by the landowner rather than the condemning agency. However, since the landowner seeks an order directing defendants to institute condemnation proceedings, the litigation thereafter follows the course described in Orenstein, supra. Trial by jury is not available in an action to initiate condemnation proceedings, which is treated as an action in lieu of prerogative writ. O'Neill v. State Highway Dept., 77 N.J. Super. 262, 271 (App. Div. 1962, Goldmann, J., dissenting), reversed per curiam for reasons expressed in dissent, 40 N.J. 326. See State v. Orenstein, supra, at 301 and authorities cited therein.
--------------------------------------------------------------------------------
Footnote: 2 Under the “unit” or “single value” rule applied in New Jersey, a single lump sum is awarded to compensate for the property taken, not for the sum of the various interests in the property. See N.J. Sports and Exposition Auth. v. Borough of East Rutherford, 137 N.J. Super. 271, 279-81 (App. Div. 1975) and authorities cited therein. Therefore, the jury should not concern itself with the exact nature of the interests asserted by multiple claimants. State v. N.J. Zinc Co., 40 N.J. 560, 574 (1963); N.J. Highway Auth. v. J & F Holding Co., 40 N.J. Super. 309, 314 (App. Div. 1956). The lump sum award is divided among the various claimants in a subsequent allocation proceeding (R. 4:73-9(b)), which is conducted as a summary proceeding under R. 4:67.
While tenants thus may not seek a separate lump sum award in the condemnation proceeding, they may submit separate proofs concerning the value of their items of condemned property. "Such participation would be subject to the trial judge's control over participation by counsel to preserve order and avoid repetitious proofs." N.J. Sports & Exposition Auth. v. Borough of East Rutherford, supra, at 284-85.
--------------------------------------------------------------------------------
Footnote: 3 U.S. Const., amend. V, XIV; N.J. Const. (1947), art. I, par. 20.
--------------------------------------------------------------------------------
Footnote: 4 N.J.S.A. 20:3-29; Jersey City Redevelopment Agency v. Kugler, 58 N.J. 374, 377-79 (1958); Port of New York Auth. v. Howell, 59 N.J. Super. 343, 347 (Law Div. 1960), aff'd 68 N.J. Super. 559 (App. Div. 1961).
--------------------------------------------------------------------------------
Footnote: 5 New Jersey Constitution (1947), Article 20, Paragraph 1; Borough of Rockaway v. D'Onofrio, 186 N.J.Super. 344 (App. Div. 1982).
--------------------------------------------------------------------------------
Footnote: 6 State by Highway Commissioner v. Gallant, 42 N.J. 583 (1964). State v. Rohrer, Inc., 80 N.J. 462 (1979).
--------------------------------------------------------------------------------
Footnote: 7 Jersey City Redevelopment Agency v. Kugler, 58 N.J. 374, 383-84 (1971).
--------------------------------------------------------------------------------
Footnote: 8 The unusual character of certain properties may deprive them of a market. For such properties, the reproduction cost less depreciation measure of just compensation may be appropriate. See 10.03, D., n. 24, infra.
--------------------------------------------------------------------------------
Footnote: 9 State v. Cooper Allow Corp., 136 N.J. Super. 560, 567 (App.Div. 1975). Determination of the date of taking is a question of law for the trial court, not a question for the trier of fact. N.J. Sports & Exposition Auth. v. Giant Realty Assoc., 143 N.J. Super. 343, 346 (Law Div. 1976).
Contra: Housing Auth. of Hoboken v. Segal, 107 N.J. Super. 565, 568 (Law Div. 1969), aff'd as modified 112 N.J. Super. 359 (App. Div. 1970).
Calculation of the date of taking is governed by N.J.S.A. 20:3-30. See also Jersey City Redevelopment Agency v. Kugler, 58 N.J. 374 (1971). For date of declaration of blight as the date of taking, see N.J.S.A. 40:55-21.10; Washington Market Enterprises, Inc. v. City of Trenton, 68 N.J. 107, 123-24 (1975). See generally 4 Nichols, Eminent Domain, §12.23, p. 72 (rev. 3d ed. 1975).
--------------------------------------------------------------------------------
Footnote: 10 City of Trenton v. Lenzner, 16 N.J. 465, 476 (1954), cert. den. 348 U.S. 872, 75 S.Ct. 534, 99 L.Ed. 757 (1955); State v. Nordstrom, 54 N.J. 50, 53 (1969), See 4 Nichols, Eminent Domain, §12.32, P. 134 (rev. 3d ed. 1975). This is intended as an "objective" test. The actual property owner's sentimental attachment to the property and other subjective factors are not relevant. See e.g., Port of N.Y. Auth. v. Howell, 58 N.J. Super. 559, 565 (App. Div. 1961).
--------------------------------------------------------------------------------
Footnote: 11 State by Com'r of Transp. v. Caoili, 135 N.J. 252, 260 (1994) quoting State v. Silver, 92 N.J. 507, 514 (1983). “Knowledgeable parties” are individuals who are aware of all relevant information at the time of valuation whether or not such information is easily available. State by the Com'r of Transp. v. Shein, 283 N.J. Super. 588 (App. Div. 1995). Fair market value must be based upon the actual physical condition of the property on the date of valuation. This assumes the parties are fully knowledgeable concerning the physical condition of condemned property as of the date of valuation whether or not they are actually aware or could reasonably have become aware of the condition. Ibid.
--------------------------------------------------------------------------------
Footnote: 12 Village of South Orange v. Alden Corp., 71 N.J. 362, 368 (1976).
--------------------------------------------------------------------------------
Footnote: 13 Qualifications of experts concerning comparable sales are set forth in N.J.S.A. 2A:83-1.
--------------------------------------------------------------------------------
Footnote: 14 Township of Wayne v. Cassatly, N.J. Super. 464, 467 (App. Div. 1975) (per curiam). “(W)here it appears that the trier of facts will be confronted with extraordinarily disparate opinions as to valuation, and a timely motion for the appointment of an independent expert is made, the trial court should seriously
weigh the possible advantage of an impartial expert. Township of Wayne v. Kosoff, 73 N.J. 8, 14 (1977).
--------------------------------------------------------------------------------
Footnote: 15 Port of N.Y. Auth. v. Howell, 59 N.J. Super. 343, 349 (Law Div. 1960), aff'd 68 N.J. Super. 559 (App. Div. 1961).
--------------------------------------------------------------------------------
Footnote: 16 See County of Ocean v. Landolfo, 132, N.J. Super. 523 (App. Div. 1975).
--------------------------------------------------------------------------------
Footnote: 17 Township of Wayne v. Kosoff, 73 N.J. 8, 15 (1977).
--------------------------------------------------------------------------------
Footnote: 18 See generally State v. Vacation Lands, Inc., 92 N.J. Super. 546, 551-2 (App. Div. 1970), aff'd 58 N.J. 372 (1971), State v. Interpace Corp., 130 N.J. Super. 322 (App. Div. 1974).
--------------------------------------------------------------------------------
Footnote: 19 R. 4:73-7.
--------------------------------------------------------------------------------
Footnote: 20 State v. Gorga, 54 N.J. Super. 528 (App. Div. 1959).
--------------------------------------------------------------------------------
Model Civil Jury Charges
5.11 ASSUMPTION OF RISK
The Committee notes, except in cases where there is a statutory foundation, the defense of assumption of the risk is not a valid defense in the normal negligence action. The Committee has eliminated the pre-1984 Assumption of Risk Charge, since there is no viable defense to a negligence action remaining in our law for which such a Charge would be required. See, McGrath v. American Cyanamid Co., 41 N.J. 272 (1963) and Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44 (1959).
There are fact scenarios, however, in which the concept of risk assumption has been recognized by statute, and in such cases, it would be the obligation of the court to instruct the jury as to the applicability of the statute in question. Such examples include:
Skiing: N.J.S.A. 5:13-1, et seq.
Roller Skating: N.J.S.A. 5:14-1 et seq.
Equestrian Activities: N.J.S.A. 5:15-1 et seq.
With regard to sports injuries in general, New Jersey has adopted a recklessness standard of care in determining the duty that a recreational player owes to another. Schick v. Ferolito, 167 N.J. 7 (2001) (golf); Crawn v. Campo, 136 N.J. 94 (1994) (softball).
There are fact scenarios, however, in which the concept of risk assumption has been recognized by statute, and in such cases, it would be the obligation of the court to instruct the jury as to the applicability of the statute in question. Such examples include:
Skiing: N.J.S.A. 5:13-1, et seq.
Roller Skating: N.J.S.A. 5:14-1 et seq.
Equestrian Activities: N.J.S.A. 5:15-1 et seq.
With regard to sports injuries in general, New Jersey has adopted a recklessness standard of care in determining the duty that a recreational player owes to another. Schick v. Ferolito, 167 N.J. 7 (2001) (golf); Crawn v. Campo, 136 N.J. 94 (1994) (softball).
7.32 COMPARATIVE NEGLIGENCE - INTERROGATORIES [FOR USE IN CAUSES OF ACTION ARISING ON AND AFTER AUGUST 22, 1974] (pre-1985)
Notes to the Court:
The interrogatories selected by the committee for submission to the jury on the issue of comparative negligence represent a compromise between the extremely general and the extremely specific type of interrogatory and have been included in the model charge because it was thought that they would have the widest possible application. Questions more general or more specific in nature could be and should be utilized in a particular case where either more specificity or less generality is required. Thus, in a case where proximate cause is not a seriously contested question, the Judge might properly choose to combine the questions of negligence and proximate cause into one question. The same would be true with respect to questions bearing on plaintiff's negligence and causal relationship to that question and the cause of the accident.
This charge deals only with the simplest of factual situations wherein one plaintiff is suing one defendant. Where a counterclaim is asserted, the same six questions should be submitted with an additional question being put to the jury in such a case requiring them to evaluate the defendant's damage claims. In cases dealing with multiple plaintiffs' injuries, question 3, 4 and 6 would have to be
submitted with respect to each additional plaintiff. For each additional defendant, sued as a joint-tortfeasor, interrogatory questions 1 and 2 would have to be submitted for each defendant so joined.
1. Follow usual form of charge with respect to the nature of the jury's function as distinguished from the court's obligations of the trial of the case, including charges concerning credibility, use of pretrial discovery devices, expert witnesses, and the like.
2. Follow with the normal charge concerning burdens of proof in the context of the elements of the plaintiff's case with respect to which he has the burden of proof.
3. Define the term "negligence" generally and as applied to this specific case, as you would in a normal charge involving concepts of negligence and proximate cause.
4. The committee recommends that the term "contributory negligence" be omitted and the term "plaintiff's negligence" used in its place. Define this term in the same manner in which contributory negligence has heretofore been defined, leaving out any portions of that model charge which suggest to the jury that degrees of negligence between a plaintiff and a defendant are irrelevant.
5. This portion of the charge should be followed by a more detailed description of the jury's function with respect to evaluating the quantum of negligence on the part of all parties, comparing their respective degrees of fault with respect to the accident, and computing or translating these degrees of fault into a percentage of the total amount of negligence causing the accident.
6. Read the specific interrogatories (at #B., below) to the jury together with an explanation of each one (at A., below).
7. Define for the jury the several measures of damages applicable to this specific case and follow with an explanation that the full amount of plaintiff's loss is to be calculated irrespective of fault, or degrees thereof, or irrespective of whose obligation the payment of damages is finally determined to be.
A. Explanation of Interrogatories
I have just described to you the various concepts with which you are going to have to deal in deciding the present case. To assist you in reaching a verdict you will have with you in the jury room a form consisting of questions calling for certain answers. Your duty will be discharged by answering such of these questions as under the evidence and the court's instructions it becomes necessary to answer in order to arrive at a complete verdict.
Question #1 deals with plaintiff's allegations as to defendant's negligence. In order to answer this question you are going to have to decide whether the plaintiff has sustained his/her burden of proof with respect to defendant's negligence. I am going to read to you question #1; it reads:
Was defendant, ______________, negligent?
Yes __________
No __________
If you conclude that plaintiff has (have) failed to sustain the burden of proving defendant's negligence, the answer to question #1 would be "No"; you would check the appropriate answer and then you have no need to answer further questions but you would return your verdict at this point. If, however, on the other hand, you conclude that plaintiff has (have) proven defendant's negligence, you will answer question #1 "Yes" and proceed to answer question #2.
Question #2 deals with plaintiff's allegations that defendant's negligent conduct was a proximate cause of the accident (injuries) to plaintiff. Question #2 reads as follows:
Was the negligence of defendant, ___________________,
a proximate cause of the accident?
Yes __________
No __________
If you find the plaintiff has failed to prove that the negligent conduct of the defendant was a proximate cause of the accident, then you will answer question #2 "No" and check the appropriate answer on the form. If that should be your answer to question #2, you would not need to answer further questions but would return the verdict at this point. However, if you conclude that the plaintiff has met the burden of proving that defendant's negligent conduct was a proximate cause of this accident, then you will answer question #2 "Yes", check the appropriate answer, and proceed to deal with question #3.
Question #3 deals with defendant's allegation that plaintiff was negligent. Question #3 reads as follows:
Was plaintiff negligent?
Yes __________
No __________
If you find the defendant (defendants) has (have) failed to meet its burden of proving plaintiff's negligence, you will answer question #3 "No", check the appropriate answer to question #3, and then pass directly on to the damage
question, question #6, which is described on the form as a "damage question". If, on the other hand, you find the defendant has proven the plaintiff was negligent, you will answer question #3 "Yes" and go on to deal with question #4.
Question #4 deals with defendant's allegations that plaintiff's negligence was a proximate cause of the accident. Question #4 reads as follows:
Was plaintiff's negligence a
proximate cause of the accident?
Yes __________
No __________
If you find that the defendant has met its burden of proving that the plaintiff's negligence was a proximate cause of this accident, then you will answer question #4 "Yes", check the appropriate answer on the form and return your verdict at this point.See footnote 1 However, if you find on the other hand, that defendant has failed to prove plaintiff's negligent conduct was a proximate cause of the accident, then you will answer question #4 "No" and go on to answer question #6, which is the question requiring evaluation of damages.
After you have answered those questions these instructions have required you to answer, examine your answers. If you find that the answers to all four questions are "Yes", then you will have to answer question #5. In other words, if you find from your answers that you have concluded that both the defendant and the plaintiff were negligent and that their respective negligent conduct was a proximate cause of the accident, they you are going to have another task to perform and another question to answer - question #5. You are going to have to evaluate the conduct of both the plaintiff and the defendant with a view to determining the degree of fault with respect to this accident attributable to each, and express that degree of fault in terms of a percentage figure -- taking the combined fault of all parties to this lawsuit as being 100%.
In other words, you shall assume that the negligence of all parties to this lawsuit is taken to be 100%; then determine what percentage of that total amount of negligence is to be attributable to defendant and what percentage of that total negligence is to be attributable to the plaintiff. Your answer will be expressed in percentage terms and the total of all percentages which you assign to each party must add up to 100%.
Thus, I will now read to you question #5. You will note that it recites the instructions that I have just given you in oral form. Question #5 reads as follows:
If you find that you have answered all the previous four questions "Yes", i.e., you have found that both the plaintiff and the defendant were negligent and that their respective negligent conduct proximately caused the accident, then you must answer this question -- taking the combined negligence of all parties to this lawsuit which proximately contributed to the happening of this accident as being 100% -- what percentage of such total negligence is attributable to:
a. Defendant _______________ Answer _______%
b. Plaintiff _______________ Answer _______%
TOTAL 100 %
[Note: THE QUESTION AND THE INSTRUCTIONS WILL HAVE TO BE MODIFIED TO ACCOMMODATE THE NUMBER OF CLAIMS, THE NUMBER OF PLAINTIFFS, AND THE NUMBER OF DEFENDANTS.]
If you have determined that the defendant was solely negligent or that both plaintiff and defendant were negligent, it then become your duty to determine the amount of money which would reasonably compensate plaintiff for the injuries proximately caused by the accident in question. For that reason, I am going to give
you instructions with respect to the measure of damages in a case as the present one, for your guidance, in the event you need to consider this question.
[PROCEED WITH YOUR CHARGE ON DAMAGES]
After having considered the evidence in this case bearing on plaintiff's injuries and their consequences, you will determine what amount of money would fairly and reasonably compensate plaintiff for his/her injuries and losses proximately resulting from the accident in accordance with the law as just given you and state the dollar amount of your conclusion in answer to question #6 which, you will note, requires a lump sum dollar amount. The evaluation of plaintiff's injuries and damages in money terms should be made irrespective of which party is at fault or to what degree, or who is to ultimately pay damages to be assessed. Here, you, members of the jury, are only concerned with evaluating plaintiff's injuries and damages without regard to whose fault proximately caused them. Question #6 reads as follows:
What amount of money would reasonably
and fairly compensate the plaintiff
for his/her injuries and losses?
$______________
B. Interrogatories
AS TO LIABILITY
1. Was defendant, ___________________,
negligent? Yes ____ No ____
2. Was the negligence of defendant,
__________________, a proximate
cause of the accident? Yes ____ No ____
3. Was plaintiff negligent? Yes ____ No ____
4. Was plaintiff's negligence a proximate
cause of the accident? Yes ____ No ____
5. If you find that you have answered all the previous four questions Yes, i.e., you have found that both the plaintiff and the defendant were negligent and that their respective negligent conduct proximately caused the accident, then you must answer this question -- taking the combined negligence of all parties to this lawsuit which proximately contributed to the happening of this accident as being 100% -- what percentage of such total negligence is attributable to:
a. Defendant _________________ Answer _______%
b. Plaintiff _________________ Answer _______%
TOTAL 100%
AS TO DAMAGES
6. What amount of money would reasonably
and fairly compensate the plaintiff
for his/her injuries and losses?
$ ______________
--------------------------------------------------------------------------------
Footnote: 1 In trials wherein both liability and damages are in issue, the Jury will then be instructed to proceed to consider the damages phase of the case.
--------------------------------------------------------------------------------
Model Civil Jury Charges
The interrogatories selected by the committee for submission to the jury on the issue of comparative negligence represent a compromise between the extremely general and the extremely specific type of interrogatory and have been included in the model charge because it was thought that they would have the widest possible application. Questions more general or more specific in nature could be and should be utilized in a particular case where either more specificity or less generality is required. Thus, in a case where proximate cause is not a seriously contested question, the Judge might properly choose to combine the questions of negligence and proximate cause into one question. The same would be true with respect to questions bearing on plaintiff's negligence and causal relationship to that question and the cause of the accident.
This charge deals only with the simplest of factual situations wherein one plaintiff is suing one defendant. Where a counterclaim is asserted, the same six questions should be submitted with an additional question being put to the jury in such a case requiring them to evaluate the defendant's damage claims. In cases dealing with multiple plaintiffs' injuries, question 3, 4 and 6 would have to be
submitted with respect to each additional plaintiff. For each additional defendant, sued as a joint-tortfeasor, interrogatory questions 1 and 2 would have to be submitted for each defendant so joined.
1. Follow usual form of charge with respect to the nature of the jury's function as distinguished from the court's obligations of the trial of the case, including charges concerning credibility, use of pretrial discovery devices, expert witnesses, and the like.
2. Follow with the normal charge concerning burdens of proof in the context of the elements of the plaintiff's case with respect to which he has the burden of proof.
3. Define the term "negligence" generally and as applied to this specific case, as you would in a normal charge involving concepts of negligence and proximate cause.
4. The committee recommends that the term "contributory negligence" be omitted and the term "plaintiff's negligence" used in its place. Define this term in the same manner in which contributory negligence has heretofore been defined, leaving out any portions of that model charge which suggest to the jury that degrees of negligence between a plaintiff and a defendant are irrelevant.
5. This portion of the charge should be followed by a more detailed description of the jury's function with respect to evaluating the quantum of negligence on the part of all parties, comparing their respective degrees of fault with respect to the accident, and computing or translating these degrees of fault into a percentage of the total amount of negligence causing the accident.
6. Read the specific interrogatories (at #B., below) to the jury together with an explanation of each one (at A., below).
7. Define for the jury the several measures of damages applicable to this specific case and follow with an explanation that the full amount of plaintiff's loss is to be calculated irrespective of fault, or degrees thereof, or irrespective of whose obligation the payment of damages is finally determined to be.
A. Explanation of Interrogatories
I have just described to you the various concepts with which you are going to have to deal in deciding the present case. To assist you in reaching a verdict you will have with you in the jury room a form consisting of questions calling for certain answers. Your duty will be discharged by answering such of these questions as under the evidence and the court's instructions it becomes necessary to answer in order to arrive at a complete verdict.
Question #1 deals with plaintiff's allegations as to defendant's negligence. In order to answer this question you are going to have to decide whether the plaintiff has sustained his/her burden of proof with respect to defendant's negligence. I am going to read to you question #1; it reads:
Was defendant, ______________, negligent?
Yes __________
No __________
If you conclude that plaintiff has (have) failed to sustain the burden of proving defendant's negligence, the answer to question #1 would be "No"; you would check the appropriate answer and then you have no need to answer further questions but you would return your verdict at this point. If, however, on the other hand, you conclude that plaintiff has (have) proven defendant's negligence, you will answer question #1 "Yes" and proceed to answer question #2.
Question #2 deals with plaintiff's allegations that defendant's negligent conduct was a proximate cause of the accident (injuries) to plaintiff. Question #2 reads as follows:
Was the negligence of defendant, ___________________,
a proximate cause of the accident?
Yes __________
No __________
If you find the plaintiff has failed to prove that the negligent conduct of the defendant was a proximate cause of the accident, then you will answer question #2 "No" and check the appropriate answer on the form. If that should be your answer to question #2, you would not need to answer further questions but would return the verdict at this point. However, if you conclude that the plaintiff has met the burden of proving that defendant's negligent conduct was a proximate cause of this accident, then you will answer question #2 "Yes", check the appropriate answer, and proceed to deal with question #3.
Question #3 deals with defendant's allegation that plaintiff was negligent. Question #3 reads as follows:
Was plaintiff negligent?
Yes __________
No __________
If you find the defendant (defendants) has (have) failed to meet its burden of proving plaintiff's negligence, you will answer question #3 "No", check the appropriate answer to question #3, and then pass directly on to the damage
question, question #6, which is described on the form as a "damage question". If, on the other hand, you find the defendant has proven the plaintiff was negligent, you will answer question #3 "Yes" and go on to deal with question #4.
Question #4 deals with defendant's allegations that plaintiff's negligence was a proximate cause of the accident. Question #4 reads as follows:
Was plaintiff's negligence a
proximate cause of the accident?
Yes __________
No __________
If you find that the defendant has met its burden of proving that the plaintiff's negligence was a proximate cause of this accident, then you will answer question #4 "Yes", check the appropriate answer on the form and return your verdict at this point.See footnote 1 However, if you find on the other hand, that defendant has failed to prove plaintiff's negligent conduct was a proximate cause of the accident, then you will answer question #4 "No" and go on to answer question #6, which is the question requiring evaluation of damages.
After you have answered those questions these instructions have required you to answer, examine your answers. If you find that the answers to all four questions are "Yes", then you will have to answer question #5. In other words, if you find from your answers that you have concluded that both the defendant and the plaintiff were negligent and that their respective negligent conduct was a proximate cause of the accident, they you are going to have another task to perform and another question to answer - question #5. You are going to have to evaluate the conduct of both the plaintiff and the defendant with a view to determining the degree of fault with respect to this accident attributable to each, and express that degree of fault in terms of a percentage figure -- taking the combined fault of all parties to this lawsuit as being 100%.
In other words, you shall assume that the negligence of all parties to this lawsuit is taken to be 100%; then determine what percentage of that total amount of negligence is to be attributable to defendant and what percentage of that total negligence is to be attributable to the plaintiff. Your answer will be expressed in percentage terms and the total of all percentages which you assign to each party must add up to 100%.
Thus, I will now read to you question #5. You will note that it recites the instructions that I have just given you in oral form. Question #5 reads as follows:
If you find that you have answered all the previous four questions "Yes", i.e., you have found that both the plaintiff and the defendant were negligent and that their respective negligent conduct proximately caused the accident, then you must answer this question -- taking the combined negligence of all parties to this lawsuit which proximately contributed to the happening of this accident as being 100% -- what percentage of such total negligence is attributable to:
a. Defendant _______________ Answer _______%
b. Plaintiff _______________ Answer _______%
TOTAL 100 %
[Note: THE QUESTION AND THE INSTRUCTIONS WILL HAVE TO BE MODIFIED TO ACCOMMODATE THE NUMBER OF CLAIMS, THE NUMBER OF PLAINTIFFS, AND THE NUMBER OF DEFENDANTS.]
If you have determined that the defendant was solely negligent or that both plaintiff and defendant were negligent, it then become your duty to determine the amount of money which would reasonably compensate plaintiff for the injuries proximately caused by the accident in question. For that reason, I am going to give
you instructions with respect to the measure of damages in a case as the present one, for your guidance, in the event you need to consider this question.
[PROCEED WITH YOUR CHARGE ON DAMAGES]
After having considered the evidence in this case bearing on plaintiff's injuries and their consequences, you will determine what amount of money would fairly and reasonably compensate plaintiff for his/her injuries and losses proximately resulting from the accident in accordance with the law as just given you and state the dollar amount of your conclusion in answer to question #6 which, you will note, requires a lump sum dollar amount. The evaluation of plaintiff's injuries and damages in money terms should be made irrespective of which party is at fault or to what degree, or who is to ultimately pay damages to be assessed. Here, you, members of the jury, are only concerned with evaluating plaintiff's injuries and damages without regard to whose fault proximately caused them. Question #6 reads as follows:
What amount of money would reasonably
and fairly compensate the plaintiff
for his/her injuries and losses?
$______________
B. Interrogatories
AS TO LIABILITY
1. Was defendant, ___________________,
negligent? Yes ____ No ____
2. Was the negligence of defendant,
__________________, a proximate
cause of the accident? Yes ____ No ____
3. Was plaintiff negligent? Yes ____ No ____
4. Was plaintiff's negligence a proximate
cause of the accident? Yes ____ No ____
5. If you find that you have answered all the previous four questions Yes, i.e., you have found that both the plaintiff and the defendant were negligent and that their respective negligent conduct proximately caused the accident, then you must answer this question -- taking the combined negligence of all parties to this lawsuit which proximately contributed to the happening of this accident as being 100% -- what percentage of such total negligence is attributable to:
a. Defendant _________________ Answer _______%
b. Plaintiff _________________ Answer _______%
TOTAL 100%
AS TO DAMAGES
6. What amount of money would reasonably
and fairly compensate the plaintiff
for his/her injuries and losses?
$ ______________
--------------------------------------------------------------------------------
Footnote: 1 In trials wherein both liability and damages are in issue, the Jury will then be instructed to proceed to consider the damages phase of the case.
--------------------------------------------------------------------------------
Model Civil Jury Charges
7.31 COMPARATIVE NEGLIGENCE: ULTIMATE OUTCOME
A.In Cases Involving Only One Defendant And Plaintiff Is Alleged To Have Been Negligent
If you find that both the plaintiff and the defendant were negligent,(1) and proximately caused the accident, then you must compare their negligent conduct in terms of percentages. You will attribute to each of them that percentage that you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%.
I will explain to you the effect of these percentages. If you attribute to the plaintiff a percentage of negligent conduct of 50% or less, then the Court will reduce his/her recovery of damages by his/her percentage of the negligence that proximately caused the accident. If you attribute to the plaintiff a percentage greater than 50%, then he/she will not recover damage from the defendant at all.
In that event, you must stop your deliberations without making any determination as to damages.(2)
B.In Cases Involving Two Defendants And Plaintiff Is Alleged To Have Been Negligent
1.Where The Cause of Action Occurred Prior to December 6, 1982: Pre L. 1982, c. 191 (N.J.S.A. 2A:15–5.1 et seq.)
If you find that the plaintiff and one or both of the defendants were negligent and proximately caused the accident, then you must compare the negligent conduct of those parties in terms of percentages. You will attribute to each of them that percentage that you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%. You should not allocate any percentage to any party who you have found was not both negligent and a proximate cause of the accident.
I will explain to you the effect of these percentages. In order for the plaintiff to recover against any defendant, plaintiff's percentage of negligent conduct must be 50% or less and may not be greater than the defendant from whom he/she seeks recovery. Thus, a plaintiff whose percentage is more than 50% will not recover damages at all. A plaintiff whose percentage is 50% or less will recover from any defendant whose percentage is the same as or more than that of plaintiff. If you find that plaintiff's negligence is 50% or less, but greater than that of each of the defendants, plaintiff will recover no damages, even if the total negligence of all defendants is greater than that of plaintiff.
In the event that you conclude under either of the preceding alternatives that plaintiff is not entitled to recover, you should conclude your deliberations without considering plaintiff's claim for damages.(3)
If you attribute to the plaintiff a percentage of negligence of 50% or less, then the court will reduce any damages to which plaintiff is entitled by that percentage.
2.Where The Cause Of Action Occurred On Or After December 6, 1982: Post L. 1982, c. 191 (N.J.S.A. 2A:15–5.1 et seq.) And before December 18, 1987 (N.J.S.A. 2A:15–5.3)
If you find that the plaintiff and one or both of the defendants were negligent and proximately caused the accident, then you must compare the negligent conduct of those parties in terms of percentages. You will attribute to each of them that percentage that you find describes or measure his/her negligent contribution to the happening of the accident. The percentages must add up to 100%. You should not allocate any percentage to any party who you have found was not both negligent and a proximate cause of the accident.
I will explain to you the effect of these percentages. In order for the plaintiff to recover against any defendant, plaintiff's percentage of negligent conduct must be 50% or less. If the plaintiff's percentage is more than 50%, he/she will not recover damages at all and your deliberations are concluded and you should not make any determination as to damages.(4) A plaintiff whose percentage is 50% or less will recover from any defendant whose negligent conduct you have found was a proximate cause of the accident.
If you attribute to the plaintiff a percentage of 50% or less, then the Court will reduce his/her recovery of damage by his/her percentage of negligence.
3.Where the cause of action, other than medical malpractice causes of action,(5) arose on or after December 18, 1987; L. 1987, c. 325, ¶1 and ¶2 (N.J.S.A. 2A:15–5.2 et seq.)(6) and was filed before September 27, 1995, L. 1997, c. 90, and where the cause of action is based on medical malpractice, and was filed before June 29, 1995, L. 1997, c. 90. (7)
If you find that more than one party was negligent and proximately caused the accident, then you must compare the negligent conduct of those parties in terms of percentages. You will attribute to each of them that percentage which you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%. You should not allocate any percentage to any party who you have found was not both negligent and a proximate cause of the accident.
I will explain to you the effect of your allocation of percentages. In order for the plaintiff to recover against any defendant, plaintiff's percentage of negligent conduct(8) must be 50% or less. If the plaintiff's percentage is more than 50%, he/she will not recover damages at all, and your deliberations are concluded. You should not then make any determination as to damages.(9)
A plaintiff whose percentage is 50% or less will recover from any defendant whose negligent conduct was a proximate cause of the accident. However, the Court will reduce his/her recovery by that percentage you find measures the plaintiff's contribution to the happening of the accident. The allocation you make among the defendants will determine how much of the plaintiff's damages they will pay.
[The following language is optional and is not ordinarily given.]
In this respect the law distinguishes between two types of damages — economic and noneconomic.
Let me explain the difference between “economic” and “noneconomic” damages:
“Economic damages” means financial or money loss and is limited to past and future lost wages and medical expenses.
“Noneconomic damages” means subjective, nonmonetary losses, including, but not limited to, disability and impairment, pain and suffering, loss of enjoyment of life, inconvenience, mental anguish, emotional distress, loss of society and companionship, loss of consortium, and destruction of the parent–child relationship.
As to the effect of your allocation of negligence among the defendants, plaintiff may recover all of his/her damages from a defendant found to be 60% or more responsible for the total damages. A plaintiff may recover from a defendant found to be more than 20% but less than 60% responsible for the damages the full amount of economic damages plus the percentage of noneconomic damages that you find are directly attributable to that defendant’s negligence.(10)
Plaintiff may recover from a defendant found to be 20% or less responsible for the damages only that percentage of the damages directly attributable to that defendant’s negligence.(11)
Any defendant who is compelled to pay more than his/her actual percentage share may seek reimbursement from the other joint tortfeasors.
4.Where the cause of action is based upon medical malpractice and filed after June 29, 1995, L. 1995, c. 140, or, in all other causes of action, filed after September 27, 1995.(12)
If you find that the plaintiff and one or both of the defendants were negligent and proximately caused the injury, then you must compare the negligent conduct or fault of those parties in terms of percentages. You will attribute to each of them that percentage that you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%. You should not allocate any percentage to any party who you have found was not both negligent or at fault and a proximate cause of the accident.
I will explain to you the effect of these percentages. In order for the plaintiff to recover against any defendant, plaintiff's percentage of negligent conduct or fault must be 50% or less. If the plaintiff's percentage is more than 50%, he/she will not recover damages at all and your deliberations are concluded and you should not make any determination as to damages.(13) A plaintiff whose percentage is 50% or less will recover from any defendant whose negligent conduct or fault you have found was a proximate cause of the accident.
The allocation that you make among the defendants will determine how much of the plaintiff’s damages each defendant will pay.
[The following language is optional].
As to the effect of your allocation of defendants’ negligence or fault, plaintiff may recover the full amount of his damages from any defendant found to be 60% or more responsible for the total damages. A defendant whose share of responsibility for the total damages is less than 60% shall pay only that percentage of the total damages to the plaintiff attributable to him/her/it.
Any defendant who is compelled to pay more than his/her/its actual percentage share may seek reimbursement from the other joint tortfeasors.
C.In Cases Involving Two Defendants With Cross Claims For Contribution And Plaintiff Is Not Alleged To Have Been Negligent(14)
1.Where the cause of action arose prior to December 18, 1987.
If you find that both defendants were negligent and proximately caused the accident, then you must compare their negligent conduct in terms of percentages.(15) You will attribute to each of them that percentage which you find describes or measures his/her negligent contribution to the happening of the accident.(16) The percentages must add up to 100%.
I will explain to you the effect of these percentages. The percentages you find will decide the dispute between the defendants regarding responsibility for the accident(17) but will not affect the plaintiff at all.(18)
2.Where the cause of action, other than medical malpractice causes of action,(19) arose on or after December 18, 1987; L. 1987, c. 325, ¶1 and ¶2 (N.J.S.A. 2A:15–5.2 et seq.) and was filed before September 27, 1995, L. 1997, c. 90, and where the cause of action is based on medical malpractice, and was filed before June 29, 1995, L. 1997, c. 90.(20) (21)
If you find that both defendants were negligent and proximately caused the accident, then you must compare their negligent conduct in terms of percentages You will attribute to each of them that percentage which you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%.
I will explain to you the effect of these percentages. The percentages you find will decide the dispute between the defendants regarding responsibility for the accident but will not affect the plaintiff at all.
The allocation you make among the defendants will determine how much of the plaintiff's damages they will pay.
[The following language is optional].
In this respect the law distinguishes between two types of damages — economic and noneconomic.
Let me explain the difference between “economic” and “noneconomic” damages:
“Economic damages” means financial or money loss and is limited to lost wages, lost earnings, loss or impairment of earning capacity as well as medical services, dental services, hospital expenses, medicine, medical supplies, therapy and any other medical treatment expenses.
“Noneconomic damages” means subjective, nonmonetary losses, including, but not limited to, disability and impairment, pain and suffering, loss of enjoyment of life, inconvenience, mental anguish, emotional distress, loss of society and companionship, loss of consortium, and destruction of the parent–child relationship.
A defendant found to be 60% or more responsible for the total damages is liable to the plaintiff for the total amount of the award. A defendant found to more than 20% but less than 60% responsible for the damages is liable for the full amount of economic damages plus the percentage of noneconomic damages you find are directly attributable to his/her negligence.(22)
Any defendant who is compelled to pay more than his/her percentage share may seek reimbursement from the other joint tortfeasors. Therefore, you will attribute to each defendant the percentage that describes or measures that defendant's contribution to the happening of the accident.
3.Where the cause of action is based upon medical malpractice and filed after June 29, 1995, L. 1995, c. 140, or, in all other causes of action, filed after September 27, 1995.(23)
The allocation you make among the defendants will determine how much of the plaintiff's damages each defendant will pay. A defendant found to be 60% or more responsible for the total damages is liable to the plaintiff for the total amount of the award. A defendant found to less than 60% responsible for the damages is liable only for the amount of damages directly attributable to his/her negligence or fault.(24)
Any defendant who is compelled to pay more than his/her percentage share may seek reimbursement from the other joint tortfeasors. Therefore, you will attribute to each defendant the percentage that describes or measures that defendant's contribution to the happening of the accident.
D.Environmental Torts:
1.Where the cause of action was filed after September 27, 1995 and no final judgment has been entered, L. 1997, c.90.
If the court determines that the claim is based on an environmental tort it must then determine if fault can be apportioned.(25)
IF FAULT CANNOT BE APPORTIONED:
The plaintiff may recover the full amount of the compensatory damages from any party determined to be liable. Any defendant who is compelled to pay more than his/her percentage share may seek reimbursement from the other joint tortfeasors.(26) However, if you find a defendant to be 5% or less at fault for the injury, the plaintiff may recover only that percentage of the damages from such defendant.
IF FAULT CAN BE APPORTIONED:
If you find that the plaintiff and one or both of the defendants were negligent and proximately caused the injury, then you must compare the negligent conduct or fault of those parties in terms of percentages. You will attribute to each of them that percentage that you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%. You should not allocate any percentage to any party who you have found was not both negligent or at fault and a proximate cause of the injury.
I will explain to you the effect of these percentages. In order for the plaintiff to recover against any defendant, plaintiff's percentage of negligent conduct or fault must be 50% or less. If the plaintiff's percentage is more than 50%, he/she will not recover damages at all and your deliberations are concluded and you should not make any determination as to damages.(27) A plaintiff whose percentage is 50% or less will recover from any defendant whose negligent conduct or fault you have found was a proximate cause of the injury.
The allocation that you make among the defendants will determine how much of the plaintiff’s damages they will pay. As to the effect of your allocation of defendants’ negligence or fault, plaintiff may recover from any defendant only that percentage of the total damages attributable to that defendant.(28)
(1)If one of the parties' liability is based on strict liability or statutory liability, such as for a dangerous condition of public property, N.J.S.A. 59:4–2, you should substitute a suitable phrase like “produced an unfit product” or “at fault” for “negligent”. Suitable change should be made elsewhere in the charge, where the word “negligent” or “negligence” appears. See Williams v. Phillipsburg, 171 N.J. Super. 278 (App. Div. 1979). There also are instances in which the term “accident is inappropriate. “Incident” or “event” may be suitable substitutions. Where the plaintiff's negligence did not cause the accident but may have contributed to his/her injuries, as in the case of an auto passenger, then his/her negligence is best discussed as one of the cause of his/her injuries rather than as a cause of the accident.
(2)See Johnson v. Salem Corp., 97 N.J. 78, 97 (1984) as to direction that juries are not to consider damages if a verdict of no cause of action is to be entered.
(3)See footnote 2.
(4)See footnote 2.
(5)This section does not apply to an “environmental tort action”, see N.J.S.A. 2A:15–5.3(d), or to a defendant which is a public entity. N.J.S.A. 59:9–3.1.
(6)Jury should determine the amount of economic and noneconomic damages which would be recoverable by the plaintiff regardless of any consideration of negligence; i.e., the full value of the plaintiff's damages. See N.J.S.A. 2A:15–5.3(b) & (f)(2).
(7)The applicability date of September 27, 1995 for non-medical malpractice cases applies only to those actions in which there has been no final judgment.
(8)See footnote 1.
(9)See footnote 2.
(10)See footnote 1.
(11)See footnote 1.
(12)See footnote 7.
(13)See footnote 2.
(14)The ultimate outcome charge is required where plaintiff and one defendant may both be causally negligent. It is not clear that the charge is required where plaintiff is not negligent but two defendants have crossclaims. The Committee recommends it. Regarding other possible combinations, such as the second example given above, the Supreme Court's warning in Roman v. Mitchell, 82 N.J. 336, 346–47 (1980), as follows should be observed:
. . . in a complex case involving multiple issues and numerous parties, the trial court, in the exercise of sound discretion, could withhold the instruction if it would tend to mislead or confuse the jury.
(15)See footnote 1.
(16)See footnote 1.
(17)See note 1.
(18)EXCEPT where a defendant is a public entity or public employee in which case N.J.S.A. 59:9–3.1 applies to limit liability to “no more than that percentage share of the damages which is equal to the percentage of the negligence attributable to that public entity or public employee . . .”
(19)This section does not apply to an “environmental tort action”, see N.J.S.A. 2A:15–5.3(d), or to a defendant which is a public entity. N.J.S.A. 59:9–3.1.
(20)Jury should determine the amount of economic and noneconomic damages which would be recoverable by the plaintiff regardless of any consideration of negligence; i.e., the full value of the plaintiff's damages. See N.J.S.A. 2A:15–5.3(b) & (f)(2).
(21)The applicability date of September 27, 1995 for non-medical malpractice cases applies only to those actions in which there has been no final judgment.
(22)See footnote 1.
(23)See footnotes 20 and 21.
(24)See footnote 1.
(25)The definition of an environmental tort is found at N.J.S.A. 2A:15-5.3(f).
(26)This situation presents an inter
If you find that both the plaintiff and the defendant were negligent,(1) and proximately caused the accident, then you must compare their negligent conduct in terms of percentages. You will attribute to each of them that percentage that you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%.
I will explain to you the effect of these percentages. If you attribute to the plaintiff a percentage of negligent conduct of 50% or less, then the Court will reduce his/her recovery of damages by his/her percentage of the negligence that proximately caused the accident. If you attribute to the plaintiff a percentage greater than 50%, then he/she will not recover damage from the defendant at all.
In that event, you must stop your deliberations without making any determination as to damages.(2)
B.In Cases Involving Two Defendants And Plaintiff Is Alleged To Have Been Negligent
1.Where The Cause of Action Occurred Prior to December 6, 1982: Pre L. 1982, c. 191 (N.J.S.A. 2A:15–5.1 et seq.)
If you find that the plaintiff and one or both of the defendants were negligent and proximately caused the accident, then you must compare the negligent conduct of those parties in terms of percentages. You will attribute to each of them that percentage that you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%. You should not allocate any percentage to any party who you have found was not both negligent and a proximate cause of the accident.
I will explain to you the effect of these percentages. In order for the plaintiff to recover against any defendant, plaintiff's percentage of negligent conduct must be 50% or less and may not be greater than the defendant from whom he/she seeks recovery. Thus, a plaintiff whose percentage is more than 50% will not recover damages at all. A plaintiff whose percentage is 50% or less will recover from any defendant whose percentage is the same as or more than that of plaintiff. If you find that plaintiff's negligence is 50% or less, but greater than that of each of the defendants, plaintiff will recover no damages, even if the total negligence of all defendants is greater than that of plaintiff.
In the event that you conclude under either of the preceding alternatives that plaintiff is not entitled to recover, you should conclude your deliberations without considering plaintiff's claim for damages.(3)
If you attribute to the plaintiff a percentage of negligence of 50% or less, then the court will reduce any damages to which plaintiff is entitled by that percentage.
2.Where The Cause Of Action Occurred On Or After December 6, 1982: Post L. 1982, c. 191 (N.J.S.A. 2A:15–5.1 et seq.) And before December 18, 1987 (N.J.S.A. 2A:15–5.3)
If you find that the plaintiff and one or both of the defendants were negligent and proximately caused the accident, then you must compare the negligent conduct of those parties in terms of percentages. You will attribute to each of them that percentage that you find describes or measure his/her negligent contribution to the happening of the accident. The percentages must add up to 100%. You should not allocate any percentage to any party who you have found was not both negligent and a proximate cause of the accident.
I will explain to you the effect of these percentages. In order for the plaintiff to recover against any defendant, plaintiff's percentage of negligent conduct must be 50% or less. If the plaintiff's percentage is more than 50%, he/she will not recover damages at all and your deliberations are concluded and you should not make any determination as to damages.(4) A plaintiff whose percentage is 50% or less will recover from any defendant whose negligent conduct you have found was a proximate cause of the accident.
If you attribute to the plaintiff a percentage of 50% or less, then the Court will reduce his/her recovery of damage by his/her percentage of negligence.
3.Where the cause of action, other than medical malpractice causes of action,(5) arose on or after December 18, 1987; L. 1987, c. 325, ¶1 and ¶2 (N.J.S.A. 2A:15–5.2 et seq.)(6) and was filed before September 27, 1995, L. 1997, c. 90, and where the cause of action is based on medical malpractice, and was filed before June 29, 1995, L. 1997, c. 90. (7)
If you find that more than one party was negligent and proximately caused the accident, then you must compare the negligent conduct of those parties in terms of percentages. You will attribute to each of them that percentage which you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%. You should not allocate any percentage to any party who you have found was not both negligent and a proximate cause of the accident.
I will explain to you the effect of your allocation of percentages. In order for the plaintiff to recover against any defendant, plaintiff's percentage of negligent conduct(8) must be 50% or less. If the plaintiff's percentage is more than 50%, he/she will not recover damages at all, and your deliberations are concluded. You should not then make any determination as to damages.(9)
A plaintiff whose percentage is 50% or less will recover from any defendant whose negligent conduct was a proximate cause of the accident. However, the Court will reduce his/her recovery by that percentage you find measures the plaintiff's contribution to the happening of the accident. The allocation you make among the defendants will determine how much of the plaintiff's damages they will pay.
[The following language is optional and is not ordinarily given.]
In this respect the law distinguishes between two types of damages — economic and noneconomic.
Let me explain the difference between “economic” and “noneconomic” damages:
“Economic damages” means financial or money loss and is limited to past and future lost wages and medical expenses.
“Noneconomic damages” means subjective, nonmonetary losses, including, but not limited to, disability and impairment, pain and suffering, loss of enjoyment of life, inconvenience, mental anguish, emotional distress, loss of society and companionship, loss of consortium, and destruction of the parent–child relationship.
As to the effect of your allocation of negligence among the defendants, plaintiff may recover all of his/her damages from a defendant found to be 60% or more responsible for the total damages. A plaintiff may recover from a defendant found to be more than 20% but less than 60% responsible for the damages the full amount of economic damages plus the percentage of noneconomic damages that you find are directly attributable to that defendant’s negligence.(10)
Plaintiff may recover from a defendant found to be 20% or less responsible for the damages only that percentage of the damages directly attributable to that defendant’s negligence.(11)
Any defendant who is compelled to pay more than his/her actual percentage share may seek reimbursement from the other joint tortfeasors.
4.Where the cause of action is based upon medical malpractice and filed after June 29, 1995, L. 1995, c. 140, or, in all other causes of action, filed after September 27, 1995.(12)
If you find that the plaintiff and one or both of the defendants were negligent and proximately caused the injury, then you must compare the negligent conduct or fault of those parties in terms of percentages. You will attribute to each of them that percentage that you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%. You should not allocate any percentage to any party who you have found was not both negligent or at fault and a proximate cause of the accident.
I will explain to you the effect of these percentages. In order for the plaintiff to recover against any defendant, plaintiff's percentage of negligent conduct or fault must be 50% or less. If the plaintiff's percentage is more than 50%, he/she will not recover damages at all and your deliberations are concluded and you should not make any determination as to damages.(13) A plaintiff whose percentage is 50% or less will recover from any defendant whose negligent conduct or fault you have found was a proximate cause of the accident.
The allocation that you make among the defendants will determine how much of the plaintiff’s damages each defendant will pay.
[The following language is optional].
As to the effect of your allocation of defendants’ negligence or fault, plaintiff may recover the full amount of his damages from any defendant found to be 60% or more responsible for the total damages. A defendant whose share of responsibility for the total damages is less than 60% shall pay only that percentage of the total damages to the plaintiff attributable to him/her/it.
Any defendant who is compelled to pay more than his/her/its actual percentage share may seek reimbursement from the other joint tortfeasors.
C.In Cases Involving Two Defendants With Cross Claims For Contribution And Plaintiff Is Not Alleged To Have Been Negligent(14)
1.Where the cause of action arose prior to December 18, 1987.
If you find that both defendants were negligent and proximately caused the accident, then you must compare their negligent conduct in terms of percentages.(15) You will attribute to each of them that percentage which you find describes or measures his/her negligent contribution to the happening of the accident.(16) The percentages must add up to 100%.
I will explain to you the effect of these percentages. The percentages you find will decide the dispute between the defendants regarding responsibility for the accident(17) but will not affect the plaintiff at all.(18)
2.Where the cause of action, other than medical malpractice causes of action,(19) arose on or after December 18, 1987; L. 1987, c. 325, ¶1 and ¶2 (N.J.S.A. 2A:15–5.2 et seq.) and was filed before September 27, 1995, L. 1997, c. 90, and where the cause of action is based on medical malpractice, and was filed before June 29, 1995, L. 1997, c. 90.(20) (21)
If you find that both defendants were negligent and proximately caused the accident, then you must compare their negligent conduct in terms of percentages You will attribute to each of them that percentage which you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%.
I will explain to you the effect of these percentages. The percentages you find will decide the dispute between the defendants regarding responsibility for the accident but will not affect the plaintiff at all.
The allocation you make among the defendants will determine how much of the plaintiff's damages they will pay.
[The following language is optional].
In this respect the law distinguishes between two types of damages — economic and noneconomic.
Let me explain the difference between “economic” and “noneconomic” damages:
“Economic damages” means financial or money loss and is limited to lost wages, lost earnings, loss or impairment of earning capacity as well as medical services, dental services, hospital expenses, medicine, medical supplies, therapy and any other medical treatment expenses.
“Noneconomic damages” means subjective, nonmonetary losses, including, but not limited to, disability and impairment, pain and suffering, loss of enjoyment of life, inconvenience, mental anguish, emotional distress, loss of society and companionship, loss of consortium, and destruction of the parent–child relationship.
A defendant found to be 60% or more responsible for the total damages is liable to the plaintiff for the total amount of the award. A defendant found to more than 20% but less than 60% responsible for the damages is liable for the full amount of economic damages plus the percentage of noneconomic damages you find are directly attributable to his/her negligence.(22)
Any defendant who is compelled to pay more than his/her percentage share may seek reimbursement from the other joint tortfeasors. Therefore, you will attribute to each defendant the percentage that describes or measures that defendant's contribution to the happening of the accident.
3.Where the cause of action is based upon medical malpractice and filed after June 29, 1995, L. 1995, c. 140, or, in all other causes of action, filed after September 27, 1995.(23)
The allocation you make among the defendants will determine how much of the plaintiff's damages each defendant will pay. A defendant found to be 60% or more responsible for the total damages is liable to the plaintiff for the total amount of the award. A defendant found to less than 60% responsible for the damages is liable only for the amount of damages directly attributable to his/her negligence or fault.(24)
Any defendant who is compelled to pay more than his/her percentage share may seek reimbursement from the other joint tortfeasors. Therefore, you will attribute to each defendant the percentage that describes or measures that defendant's contribution to the happening of the accident.
D.Environmental Torts:
1.Where the cause of action was filed after September 27, 1995 and no final judgment has been entered, L. 1997, c.90.
If the court determines that the claim is based on an environmental tort it must then determine if fault can be apportioned.(25)
IF FAULT CANNOT BE APPORTIONED:
The plaintiff may recover the full amount of the compensatory damages from any party determined to be liable. Any defendant who is compelled to pay more than his/her percentage share may seek reimbursement from the other joint tortfeasors.(26) However, if you find a defendant to be 5% or less at fault for the injury, the plaintiff may recover only that percentage of the damages from such defendant.
IF FAULT CAN BE APPORTIONED:
If you find that the plaintiff and one or both of the defendants were negligent and proximately caused the injury, then you must compare the negligent conduct or fault of those parties in terms of percentages. You will attribute to each of them that percentage that you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%. You should not allocate any percentage to any party who you have found was not both negligent or at fault and a proximate cause of the injury.
I will explain to you the effect of these percentages. In order for the plaintiff to recover against any defendant, plaintiff's percentage of negligent conduct or fault must be 50% or less. If the plaintiff's percentage is more than 50%, he/she will not recover damages at all and your deliberations are concluded and you should not make any determination as to damages.(27) A plaintiff whose percentage is 50% or less will recover from any defendant whose negligent conduct or fault you have found was a proximate cause of the injury.
The allocation that you make among the defendants will determine how much of the plaintiff’s damages they will pay. As to the effect of your allocation of defendants’ negligence or fault, plaintiff may recover from any defendant only that percentage of the total damages attributable to that defendant.(28)
(1)If one of the parties' liability is based on strict liability or statutory liability, such as for a dangerous condition of public property, N.J.S.A. 59:4–2, you should substitute a suitable phrase like “produced an unfit product” or “at fault” for “negligent”. Suitable change should be made elsewhere in the charge, where the word “negligent” or “negligence” appears. See Williams v. Phillipsburg, 171 N.J. Super. 278 (App. Div. 1979). There also are instances in which the term “accident is inappropriate. “Incident” or “event” may be suitable substitutions. Where the plaintiff's negligence did not cause the accident but may have contributed to his/her injuries, as in the case of an auto passenger, then his/her negligence is best discussed as one of the cause of his/her injuries rather than as a cause of the accident.
(2)See Johnson v. Salem Corp., 97 N.J. 78, 97 (1984) as to direction that juries are not to consider damages if a verdict of no cause of action is to be entered.
(3)See footnote 2.
(4)See footnote 2.
(5)This section does not apply to an “environmental tort action”, see N.J.S.A. 2A:15–5.3(d), or to a defendant which is a public entity. N.J.S.A. 59:9–3.1.
(6)Jury should determine the amount of economic and noneconomic damages which would be recoverable by the plaintiff regardless of any consideration of negligence; i.e., the full value of the plaintiff's damages. See N.J.S.A. 2A:15–5.3(b) & (f)(2).
(7)The applicability date of September 27, 1995 for non-medical malpractice cases applies only to those actions in which there has been no final judgment.
(8)See footnote 1.
(9)See footnote 2.
(10)See footnote 1.
(11)See footnote 1.
(12)See footnote 7.
(13)See footnote 2.
(14)The ultimate outcome charge is required where plaintiff and one defendant may both be causally negligent. It is not clear that the charge is required where plaintiff is not negligent but two defendants have crossclaims. The Committee recommends it. Regarding other possible combinations, such as the second example given above, the Supreme Court's warning in Roman v. Mitchell, 82 N.J. 336, 346–47 (1980), as follows should be observed:
. . . in a complex case involving multiple issues and numerous parties, the trial court, in the exercise of sound discretion, could withhold the instruction if it would tend to mislead or confuse the jury.
(15)See footnote 1.
(16)See footnote 1.
(17)See note 1.
(18)EXCEPT where a defendant is a public entity or public employee in which case N.J.S.A. 59:9–3.1 applies to limit liability to “no more than that percentage share of the damages which is equal to the percentage of the negligence attributable to that public entity or public employee . . .”
(19)This section does not apply to an “environmental tort action”, see N.J.S.A. 2A:15–5.3(d), or to a defendant which is a public entity. N.J.S.A. 59:9–3.1.
(20)Jury should determine the amount of economic and noneconomic damages which would be recoverable by the plaintiff regardless of any consideration of negligence; i.e., the full value of the plaintiff's damages. See N.J.S.A. 2A:15–5.3(b) & (f)(2).
(21)The applicability date of September 27, 1995 for non-medical malpractice cases applies only to those actions in which there has been no final judgment.
(22)See footnote 1.
(23)See footnotes 20 and 21.
(24)See footnote 1.
(25)The definition of an environmental tort is found at N.J.S.A. 2A:15-5.3(f).
(26)This situation presents an inter
7.30 COMPARATIVE NEGLIGENCE (AUTO) - ALL ISSUES (6/89)
SUGGESTED CHECK LIST
CONTENTIONS
FUNCTIONS OF JUDGE AND JURY
COMMENTS OF COURT AND COUNSEL
DETERMINATION BASED ON EVIDENCE
COMBINED BURDEN OF PROOF (8.20A)
PREPONDERANCE
CREDIBLE EVIDENCE COMBINED (8.20B)
WITNESSES AND THEIR CREDIBILITY
EXPERT (IF APPLICABLE)
FALSE IN ONE, FALSE IN ALL (IF APPLICABLE)
COMBINED DEFINITION OF NEGLIGENCE (8.20C)
1. FORESEEABILITY (IF NECESSARY ONLY)
2. PROXIMATE CAUSE
3. GENERAL DUTY OF DRIVER (IF APPLICABLE)
COMPARATIVE NEGLIGENCE -- LIABILITY (8.20E)
1. INTRODUCTION
2. ORDER OF DELIBERATIONS
COMPARATIVE NEGLIGENCE -- DAMAGES (8.20F)
1. INTRODUCTION
2. DAMAGES MUST BE PROXIMATELY CAUSED
3. RULES OF DAMAGES (INSERT ALL APPROPRIATE ITEMS OF DAMAGE)
4. DAMAGES -- EFFECT OF INSTRUCTIONS
5. ORDER OF DELIBERATIONS
VERDICT
CLOSING
SAMPLE JURY VERDICT FORM (8.20G)
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A. Combined Burden Of Proof
Now where, as here, a plaintiff seeks to prove liability as to defendant, it is the plaintiff's burden to prove the negligence of the defendant by a preponderance or greater weight of the credible evidence. He/She must prove not only that defendant was negligent, but that such negligence was a proximate cause of the accident.
The mere happening of an accident itself provides no basis for liability; liability in this case must be proven.
Because defendant has charged the plaintiff with negligence, it is his/her burden to prove that plaintiff was negligent and that such negligence was a proximate cause of the accident. Defendant also must prove his/her charge by a preponderance or greater weight of the credible evidence.
B. Credible Evidence
Credible evidence means evidence which in the light of reason and common sense is worthy of belief. In order to be believed, testimony should not only proceed from the mouth of credible witnesses but it also must be credible in itself.
It must be such that the common experience of men and women can approve as probable in the circumstances.See footnote 1
Proof of "possibility" as distinguished from "probability" is not enough.
It follows, therefore, that if the evidence is in equal balance, the party who has the burden of proof with respect thereto has not sustained that burden. (Insert Scales of Justice example if desired).
The rights of each party to have the other party bear the required burden is a substantial one and not a mere matter of form.
C. Combined Definition Of Negligence
Negligence is defined as a failure to exercise in the given circumstances that degree of care for the safety of others which a reasonably prudent person would exercise under the same or similar circumstances. Negligence may be the doing of an act which the reasonably prudent person would not have done, or it may be the failure to do that which the reasonably prudent person would have done under the circumstances then existing. Negligence is a departure from that standard of care.
By a "reasonably prudent person" it is meant not the most cautious person nor one who is unusually bold, but rather a person of reasonable caution and prudence.
Thus, each party in this case was required to exercise the foresight, the prudence and the caution which a reasonably prudent person would exercise under the same or similar circumstances. You must determine whether each party in this case has conformed to or departed from the standard of care.
D. Proximate Cause
Each party must not only prove the negligence of the other party by a preponderance or greater weight of the credible evidence, but also that this negligence was a proximate cause of the accident.
By proximate cause it is meant that the negligent conduct of a party was an efficient cause of the accident, that it necessarily set the other causes in motion and naturally and probably led to the accident in question.
E. Comparative Negligence -- Liability
1. Introduction
If you find that more than one party has established his/her burden of proof as to negligence, as defined by the Court, you must then compare the negligence of those parties. The total amount of negligence is 100%. The figure that you
arrive at should reflect the total amount of negligence attributed to each party with respect to the happening of the accident. A comparison of negligence is made only if the negligence of more than one party proximately caused the accident.
2. Order of Deliberation
A jury verdict form has been prepared and will now be distributed to you so that you may follow the Court's instructions with respect thereto. When completed this will be your verdict in this case.
Question No. 1 reads:
Was defendant ______________ negligent, which negligence was a proximate cause of the accident?
Yes ____ No ____
[In an appropriate case the question should be split up in two parts where causation is a separate issue].
If you find that defendant was negligent and that this negligence was a proximate cause of the accident, mark "Yes" as to Question No. 1 and proceed to Question No. 2. If you find to the contrary, mark "No" as your answer, cease deliberations and return your verdict.
Question No. 2 reads:
Was plaintiff ______________ negligent, which negligence was a proximate cause of the accident?
Yes ____ No ____
[Again, if causation is a separate issue, this question can also be split up].
If you find that plaintiff was negligent and that the negligence was a proximate cause of the accident, mark "Yes" as your answer and proceed to Question No. 3. If you find to the contrary, mark "No" as your answer and proceed to Question No. 4 on damages.
Question No. 3 reads:
Defendant ___________%
Plaintiff ___________%
Total 100%
This question asks you to compare the negligence of each party with respect to the happening of the accident, which should be reflected in a percentage figure ranging from 1% to 99%. The combined negligence of all parties shall total 100%. This question is only to be answered where the answer to both Question No. 1 and No. 2 is "Yes". When you arrive at the appropriate figure, mark your verdict form and proceed to Question No. 4 on damages.
F. Comparative Negligence - Damages
1. Introduction
If you determine that defendant was solely negligent or that both parties were negligent, it then becomes your duty to determine the amount of money, if any, to be awarded to plaintiff(s). For that reason, I will now instruct you with respect to the measure of damages in this case in the event that you need to consider this question.
2. Damages Must Be Proximately Caused
It is the duty of the plaintiff to prove by a preponderance or the greater weight of the credible evidence that the injuries and damages for which compensation is sought proximately resulted from the accident. It is not enough for a plaintiff to prove a mere possibility that a particular injury or claimed item of damage resulted from the accident. Speculation is not enough. It must be shown that they were the natural and probable consequence of the accident.
3. Order of Deliberation
I now refer you back to your jury verdict form.
Question No. 4 reads:
Damages to plaintiff. $________
After considering the evidence relating to the plaintiff's injuries and their consequences, you will determine what amount of money would fairly and reasonably compensate plaintiff for his/her injuries and losses proximately resulting from the accident and state the dollar amount as your answer to Question NO. 4 in one lump sum. The evaluation of plaintiff's injuries and damages should be made irrespective as to which party is at fault or to what degree or who is to ultimately pay. You are to be concerned only with evaluating the plaintiff's injuries and damages without regard to whose fault proximately caused them.
G. Sample Jury Verdict Form
1. Was defendant ______________ negligent, which negligence was a proximate cause of the accident?
Yes ____ No ____
If "Yes" proceed to Question No. 2.
If "No" cease deliberations and return your verdict.
2. Was plaintiff ______________ negligent, which negligence was a proximate cause of the accident?
Yes ____ No ____
If "Yes" proceed to Question No. 3 and No. 4.
If "No" proceed directly to Question No. 4.
3. Comparison of each party's negligence -- to be answered only if answers to Questions No. 1 and No. 2 are "Yes".
Defendant ___________%
Plaintiff ___________%
Total 100%
4. Plaintiff's total damages. $________
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Footnote: 1Spagnuolo v. Bonnet, 16 N.J. 546, 554-555 (1954); see also Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961). But see State v. Queen, 221 N.J. Super. 601, 609 (App. Div. 1988).
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Model Civil Jury Charges
CONTENTIONS
FUNCTIONS OF JUDGE AND JURY
COMMENTS OF COURT AND COUNSEL
DETERMINATION BASED ON EVIDENCE
COMBINED BURDEN OF PROOF (8.20A)
PREPONDERANCE
CREDIBLE EVIDENCE COMBINED (8.20B)
WITNESSES AND THEIR CREDIBILITY
EXPERT (IF APPLICABLE)
FALSE IN ONE, FALSE IN ALL (IF APPLICABLE)
COMBINED DEFINITION OF NEGLIGENCE (8.20C)
1. FORESEEABILITY (IF NECESSARY ONLY)
2. PROXIMATE CAUSE
3. GENERAL DUTY OF DRIVER (IF APPLICABLE)
COMPARATIVE NEGLIGENCE -- LIABILITY (8.20E)
1. INTRODUCTION
2. ORDER OF DELIBERATIONS
COMPARATIVE NEGLIGENCE -- DAMAGES (8.20F)
1. INTRODUCTION
2. DAMAGES MUST BE PROXIMATELY CAUSED
3. RULES OF DAMAGES (INSERT ALL APPROPRIATE ITEMS OF DAMAGE)
4. DAMAGES -- EFFECT OF INSTRUCTIONS
5. ORDER OF DELIBERATIONS
VERDICT
CLOSING
SAMPLE JURY VERDICT FORM (8.20G)
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A. Combined Burden Of Proof
Now where, as here, a plaintiff seeks to prove liability as to defendant, it is the plaintiff's burden to prove the negligence of the defendant by a preponderance or greater weight of the credible evidence. He/She must prove not only that defendant was negligent, but that such negligence was a proximate cause of the accident.
The mere happening of an accident itself provides no basis for liability; liability in this case must be proven.
Because defendant has charged the plaintiff with negligence, it is his/her burden to prove that plaintiff was negligent and that such negligence was a proximate cause of the accident. Defendant also must prove his/her charge by a preponderance or greater weight of the credible evidence.
B. Credible Evidence
Credible evidence means evidence which in the light of reason and common sense is worthy of belief. In order to be believed, testimony should not only proceed from the mouth of credible witnesses but it also must be credible in itself.
It must be such that the common experience of men and women can approve as probable in the circumstances.See footnote 1
Proof of "possibility" as distinguished from "probability" is not enough.
It follows, therefore, that if the evidence is in equal balance, the party who has the burden of proof with respect thereto has not sustained that burden. (Insert Scales of Justice example if desired).
The rights of each party to have the other party bear the required burden is a substantial one and not a mere matter of form.
C. Combined Definition Of Negligence
Negligence is defined as a failure to exercise in the given circumstances that degree of care for the safety of others which a reasonably prudent person would exercise under the same or similar circumstances. Negligence may be the doing of an act which the reasonably prudent person would not have done, or it may be the failure to do that which the reasonably prudent person would have done under the circumstances then existing. Negligence is a departure from that standard of care.
By a "reasonably prudent person" it is meant not the most cautious person nor one who is unusually bold, but rather a person of reasonable caution and prudence.
Thus, each party in this case was required to exercise the foresight, the prudence and the caution which a reasonably prudent person would exercise under the same or similar circumstances. You must determine whether each party in this case has conformed to or departed from the standard of care.
D. Proximate Cause
Each party must not only prove the negligence of the other party by a preponderance or greater weight of the credible evidence, but also that this negligence was a proximate cause of the accident.
By proximate cause it is meant that the negligent conduct of a party was an efficient cause of the accident, that it necessarily set the other causes in motion and naturally and probably led to the accident in question.
E. Comparative Negligence -- Liability
1. Introduction
If you find that more than one party has established his/her burden of proof as to negligence, as defined by the Court, you must then compare the negligence of those parties. The total amount of negligence is 100%. The figure that you
arrive at should reflect the total amount of negligence attributed to each party with respect to the happening of the accident. A comparison of negligence is made only if the negligence of more than one party proximately caused the accident.
2. Order of Deliberation
A jury verdict form has been prepared and will now be distributed to you so that you may follow the Court's instructions with respect thereto. When completed this will be your verdict in this case.
Question No. 1 reads:
Was defendant ______________ negligent, which negligence was a proximate cause of the accident?
Yes ____ No ____
[In an appropriate case the question should be split up in two parts where causation is a separate issue].
If you find that defendant was negligent and that this negligence was a proximate cause of the accident, mark "Yes" as to Question No. 1 and proceed to Question No. 2. If you find to the contrary, mark "No" as your answer, cease deliberations and return your verdict.
Question No. 2 reads:
Was plaintiff ______________ negligent, which negligence was a proximate cause of the accident?
Yes ____ No ____
[Again, if causation is a separate issue, this question can also be split up].
If you find that plaintiff was negligent and that the negligence was a proximate cause of the accident, mark "Yes" as your answer and proceed to Question No. 3. If you find to the contrary, mark "No" as your answer and proceed to Question No. 4 on damages.
Question No. 3 reads:
Defendant ___________%
Plaintiff ___________%
Total 100%
This question asks you to compare the negligence of each party with respect to the happening of the accident, which should be reflected in a percentage figure ranging from 1% to 99%. The combined negligence of all parties shall total 100%. This question is only to be answered where the answer to both Question No. 1 and No. 2 is "Yes". When you arrive at the appropriate figure, mark your verdict form and proceed to Question No. 4 on damages.
F. Comparative Negligence - Damages
1. Introduction
If you determine that defendant was solely negligent or that both parties were negligent, it then becomes your duty to determine the amount of money, if any, to be awarded to plaintiff(s). For that reason, I will now instruct you with respect to the measure of damages in this case in the event that you need to consider this question.
2. Damages Must Be Proximately Caused
It is the duty of the plaintiff to prove by a preponderance or the greater weight of the credible evidence that the injuries and damages for which compensation is sought proximately resulted from the accident. It is not enough for a plaintiff to prove a mere possibility that a particular injury or claimed item of damage resulted from the accident. Speculation is not enough. It must be shown that they were the natural and probable consequence of the accident.
3. Order of Deliberation
I now refer you back to your jury verdict form.
Question No. 4 reads:
Damages to plaintiff. $________
After considering the evidence relating to the plaintiff's injuries and their consequences, you will determine what amount of money would fairly and reasonably compensate plaintiff for his/her injuries and losses proximately resulting from the accident and state the dollar amount as your answer to Question NO. 4 in one lump sum. The evaluation of plaintiff's injuries and damages should be made irrespective as to which party is at fault or to what degree or who is to ultimately pay. You are to be concerned only with evaluating the plaintiff's injuries and damages without regard to whose fault proximately caused them.
G. Sample Jury Verdict Form
1. Was defendant ______________ negligent, which negligence was a proximate cause of the accident?
Yes ____ No ____
If "Yes" proceed to Question No. 2.
If "No" cease deliberations and return your verdict.
2. Was plaintiff ______________ negligent, which negligence was a proximate cause of the accident?
Yes ____ No ____
If "Yes" proceed to Question No. 3 and No. 4.
If "No" proceed directly to Question No. 4.
3. Comparison of each party's negligence -- to be answered only if answers to Questions No. 1 and No. 2 are "Yes".
Defendant ___________%
Plaintiff ___________%
Total 100%
4. Plaintiff's total damages. $________
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Footnote: 1Spagnuolo v. Bonnet, 16 N.J. 546, 554-555 (1954); see also Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961). But see State v. Queen, 221 N.J. Super. 601, 609 (App. Div. 1988).
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Model Civil Jury Charges
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