NOTES
This charge is intended to set forth the law as it existed prior to enactment of Public Law 1995, ch. 142, the “Punitive Damages Act,” which was signed into law on June 29, 1995. The Punitive Damages Act applies to causes of action filed on or after October 27, 1995. The next charge -- 6.20A -- incorporates the statutory changes in the Punitive Damages Act and applies to causes of action filed on or after October 27, 1995.See footnote 1
The Supreme Court of the United States has held that the common law method for assessing punitive damages is not per se unconstitutional. Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991). See also TXO Production Corp. v. Alliance Resources Corp., 113 S.Ct. 2711, 125 L. Ed. 2d 366 (1993) (upholding the constitutionality of a punitive damage award 526 times as large as the actual damages).
Mehlman v. Mobile Oil Corp., 291 N.J. Super. 98 (App. Div. 1996) (upholding $3.5 million punitive damage award in action under the Conscientious Employee Protection Act [CEPA]). But see, BMW of North America, Inc. v. Gore, 116 S.Ct. 1589 (1996) (Supreme Court, in a 5 to 4 decision, holds for the first time that a punitive damages ward was grossly excessive and violated the Due Process Clause of the Fourteenth Amendment). On bifurcation of compensatory and punitive damages see Herman v. Sunshine Chemical Specialties, Inc., 133 N.J. 329, 342, 346 (1993).
The Committee agrees that Herman and N.J.S.A. 2A:58C-5b require bifurcation when the jury determines liability for compensatory and punitive damages in a products liability action. (See charge 5.34J NOTES). However, there is a difference of opinion on the Committee as to how bifurcation should operate in non-products liability cases, particularly when all relevant evidence relating to the defendant's conduct may have been presented at the portion of the trial relating to defendant's liability for compensatory damages (e.g., libel/slander or fraud cases). Although there is no doubt that, in light of Herman, the damages portion of a punitive damages claim must be tried separately, the Committee disagreed over whether the liability aspect of a punitive damages claim in non-products liability actions must also be tried separately from the compensatory damages phase.
The present charge is designed to provide a single instruction for the liability and damages facets of a punitive damages claim in a non-products liability action when both issues are being tried separately from the compensatory damages phase of the trial.
However, in the event the trial judge decides to instruct a jury to consider liability for punitive damages at the same time the jury is assessing liability for compensatory damages, then the first three paragraphs of this instruction should be given at that stage of the jury's deliberations ("If you find..." to "...the consequences.")
If the jury determines that the defendant is liable for punitive damages, a separate proceeding on the amount of punitive damages must then be conducted. When instructing the jury at that separate proceeding, the trial judge should delete the first sentence of the first paragraph on page 5 ("If you decide that the defendant has engaged ... should be awarded"), and substitute the following sentences:
You have previously determined that the plaintiff is entitled to punitive damages. You must now decide the amount of punitive damages that should be awarded.
[THIS CONCLUDES NOTES]
If you find the defendant has [insert a description of the specific intentional conduct giving rise to a claim for punitive damages], you must consider whether or not to award punitive damages to the plaintiff. Punitive damages are awarded as a punishment of the defendant and as a deterrent to others from following his or her example. The plaintiff is not automatically entitled to punitive damages simply because you have found that the defendant has [insert a description of the specific intentional conduct giving rise to a claim for punitive damages] or because you have awarded damages to compensate the plaintiff for his/her injury. You may award punitive damages only if the plaintiff has proven certain matters that I am now going to explain to you.
Initially, I want to advise you that the purposes of punitive damages are different from the purposes of compensatory damages. Compensatory damages are intended to compensate the plaintiff for the actual injury or loss the plaintiff suffered as a result of the defendant's misconduct. In contrast, punitive damages are intended to punish a wrongdoer and to deter that wrongdoer and others from similar wrongful conduct in the future.See footnote 2 Punitive
damages are designed to require the wrongdoer to pay an amount of money that is sufficient to punish the defendant for particular conduct and to deter that defendant from misconduct in the future. Punitive damages are also designed to serve as an example to discourage anyone else from committing similar acts.
I will now explain the considerations that should govern your decision on whether punitive damages should be awarded to the plaintiff in this case. To support an award of punitive damages, you must find either (1) that the defendant's conduct was malicious or (2) that the defendant acted in wanton and willful disregard of another's rights.See footnote 3 Malicious conduct is intentional wrongdoing in the sense of an evil-minded act. Willful or wanton conduct is a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to the consequences.See footnote 4
If you decide that the defendant has engaged in the type of wrongdoing that justifies punitive damages, you must then decide the amount of punitive
damages that should be awarded.See footnote 5 In determining the amount of punitive damages, you must consider all of the circumstances in this case including (1) the nature of the wrongdoing; (2) the extent of the injury or harm inflicted by the wrongdoing; (3) the intent of the party committing the wrongdoing; (4) the financial condition or wealth of the defendant and the defendant's ability to pay any award of punitive damages; and (5) the effect the judgment will have upon the defendant.See footnote 6 You may also consider any mitigating circumstances which you find may justify reduction of the amount of damages including any punishment the defendant has received or will receive, from other sources for the same misconduct.See footnote 7
Finally, you should make sure that there is a reasonable relationship between the actual injury and the punitive damages.See footnote 8 Punitive damages may,
however, be higher than, equal to, or lower than actual damages. Punitive damages may also be awarded for wrongful conduct even if you have decided not to award compensatory damages.See footnote 9
After considering all these factors, you should exercise your judgment and determine (1) whether punitive damages should be awarded in this case and (2) if you decided to award punitive damages, what the proper amount should be.
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Footnote: 1 In Jadlowski v. Owens Corning, 283 N.J. Super. 199, 214, n.2. (App. Div. 1995), the Appellate Division states that the Punitive Damages Act applies to "cases filed 120 days after October 27, 1995." The Committee has carefully reviewed the legislative history and believes that the effective date of the Act, or "120 days after enactment," is October 27, 1995, because the Punitive Damages Act was enacted on June 29, 1995. Therefore, the Punitive Damages Act should be applicable to causes of action filed on or after October 27, 1995.
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Footnote: 2 Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48-49 (1984); DeGiovanni v. Pessel, 55 N.J. 188, 190-91 (1970).
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Footnote: 3 Jackson v. Consolidated Rail Corp., 223 N.J. Super. 467, 483 (App. Div. 1988).
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Footnote: 4 Id.
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Footnote: 5 See NOTES, supra, for modifications of these instructions in the event that the judge decides to instruct the jury in a nonproduct liability action to consider liability for punitive damages at the compensatory damages phase of the trial.
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Footnote: 6 Leimgruber v. Claridge Associates, Ltd., 73 N.J. 444, 456 (1977). See also Herman v. Sunshine Chemical Specialties, Inc., 133 N.J. at 345.
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Footnote: 7 Id. at 456.
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Footnote: 8 Fisher v. Johns-Manville Corp. 103 N.J. 643, 673 (1986).
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Footnote: 9 Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. at 50.
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Model Civil Jury Charges
