H. Comparative FaultSee footnote 1 (2/89)
Defendant contends that plaintiff was at fault for the happening of the accident. To win on this defense, defendant must prove that plaintiff voluntarily and unreasonably proceeded to encounter a known danger and that such action was a proximate cause of the accident. Mere failure to discover a defect in the product or to guard against the possibility of its existence is not a defense. In other words, defendant must prove that plaintiff had actual knowledge of the particular danger and knowingly and voluntarily encountered that risk to win on this defense.
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Footnote: 1This defense is not applicable to a workplace injury where the worker has no meaningful choice. Sutor, supra, 81 N.J. at 158. See also, McCalla v. Harnischfeger Corp., 215 N.J. Super. 160 (App. Div. 1987) certif. denied 108 N.J. 219 (1987); Crumb v. Black & Decker, 204 N.J. Super. 521 (App. Div. 1985); and Colella v. Safway Steel Products, 201 N.J. Super. 588, 591 (Law Div. 1984). As phrased, the defense applies only to a product liability situation and not a negligence case.
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Model Civil Jury Charges
