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
7.22 THIRD PARTY ACTION UNDER LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT - COMPARATIVE NEGLIGENCE (pre-1985)
If in accordance with the principles of law heretofore given you, you find that the defendant was negligent and that plaintiff was contributorily negligent, you will apply the following principle of law commonly referred to as the law of comparative negligence.
In an action such as this, to recover damages for personal injuries, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.
This provision which deals with the effect of the plaintiff's contributory negligence upon the amount of his/her recovery, states two principles of law:
* The fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery, but
* if the plaintiff is guilty of contributory negligence the effect of such contributory negligence is that the damages the plaintiff is entitled to shall be diminished by you in proportion to the amount of such contributory negligence.
These provisions of law are applicable to the facts in this case in the following manner:
First, ascertain the amount of damages that the plaintiff would be entitled to without reference to his/her contributory negligence.
Second, ascertain the proportion or percentage of such amount of damages which is attributable to plaintiff's contributory negligence.
The third step will be for you to diminish the amount first ascertained by you, by the proportion or percentage of contributory negligence ascertained in the second step.
The amount remaining is the amount the plaintiff is entitled to.
ALTERNATE CHARGE
If in accordance with the principles of law heretofore given you, you find that the defendant was negligent and that plaintiff was contributorily negligent, you will apply the following principle of law commonly referred to as the law of comparative negligence.
In an action such as this, to recover damages for personal injuries, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.
This provision which deals with the effect of the plaintiff's contributory negligence upon the amount of his/her recovery, states two principles of law:
* The fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery, but
* if the plaintiff is guilty of contributory negligence the effect of such contributory negligence is that the damages the plaintiff is entitled to shall be diminished by you in proportion to the amount of such contributory negligence.
To explain how to apply the doctrine of comparative negligence to the facts of this case, I shall use an illustration.
You may determine that the amount of the plaintiff's damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 50%. You would compute what 50% of X dollars is, that is, 50 cents times each of X dollars, and diminish the amount of X dollars by 50% or 50 cents out of each dollar, which would leave the amount 50% of X dollars to which the plaintiff would be entitled in your verdict.
You may determine that the amount of the plaintiff's damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 10%. You would compute what 10% of X dollars is, that is, 10 cents times each of X dollars, and diminish the amount of X dollars by 10% or 10 cents
out of each dollar, which would leave the amount of 90% of X dollars to which the plaintiff wold be entitled in your verdict.
You may determine that the amount of the plaintiff's damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 90%. You would compute what 90% of X dollars is, that is, 90 cents times each of X dollars, and diminish the amount of X dollars by 90% or 90 cents out of each dollar, which would leave the amount 10% of X dollars to which the plaintiff would be entitled in your verdict.
Cases:
Reed v. S.S. Yaka, 373 U.S. 410, 10 L.Ed.2d 448, 83 S.Ct. 1349 (1963); United N.Y. & N.J. Pilots Asso. v. Halecki, 358 U.S. 613, 3 L.Ed.2d 541, 79 S.Ct. 417 (1959); Romero v. International Terminal Operat. Co., 358 U.S. 354, 3 L.Ed.2d 368, 79 S.Ct. 468 (1959); Kermarec v. Compagnie Generale Transatlantique, 348 U.S. 625, 3 L.Ed.2d 550, 79 S.Ct. 406 (1959); Pope and Talbot, Inc. v. Hawn, 346 U.S. 406, 98 L.Ed. 143, 74 S.Ct. 202 (1953); Caldarola v. Eckert, 332 U.S. 155, 91 L.Ed. 1968, 67 S.Ct. 1569 (1947).
Notes:
Third party actions under the Longshoremen's and Harbor Workers' Compensation Act may be tried in state courts. See Title 33 U.S.C.A., Sec. 933; Paxos v. Jarka Corp. 314 Pa. 148, 171 A. 468 (Sup. Ct. 1934); Kermarec v. Compagnie Generale Transatlantique, 348 U.S. 625, 3 L.Ed.2d 550, 79 Sup Ct. 406 (1959).
Title 33 (Navigation and Navigable Waters) Chapt. 10, Sec. 901 et seq. of the U.S. Code, is the Longshoremen's and Harbor Workers' Compensation Act.
Compensation is payable irrespective of fault in respect to disability or death of an employee if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock).
The remedy under this Workers' Compensation Act is exclusive and in place of all other liability of such employer to his/her employee or legal representative.
In addition to the foregoing remedy, longshoremen and harbor workers may also have a third party action against the vessel or its owner grounded on negligence or unseaworthiness or both. Such an action may and generally is brought in a Federal District Court.
However, the action under either theory may also be brought in a state court of the state in whose territorial waters the injury occurred or where jurisdiction over the parties may be obtained.
In such cases the Federal Maritime Law prevails with the comparative negligence rule applying.
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Model Civil Jury Charges
In an action such as this, to recover damages for personal injuries, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.
This provision which deals with the effect of the plaintiff's contributory negligence upon the amount of his/her recovery, states two principles of law:
* The fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery, but
* if the plaintiff is guilty of contributory negligence the effect of such contributory negligence is that the damages the plaintiff is entitled to shall be diminished by you in proportion to the amount of such contributory negligence.
These provisions of law are applicable to the facts in this case in the following manner:
First, ascertain the amount of damages that the plaintiff would be entitled to without reference to his/her contributory negligence.
Second, ascertain the proportion or percentage of such amount of damages which is attributable to plaintiff's contributory negligence.
The third step will be for you to diminish the amount first ascertained by you, by the proportion or percentage of contributory negligence ascertained in the second step.
The amount remaining is the amount the plaintiff is entitled to.
ALTERNATE CHARGE
If in accordance with the principles of law heretofore given you, you find that the defendant was negligent and that plaintiff was contributorily negligent, you will apply the following principle of law commonly referred to as the law of comparative negligence.
In an action such as this, to recover damages for personal injuries, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.
This provision which deals with the effect of the plaintiff's contributory negligence upon the amount of his/her recovery, states two principles of law:
* The fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery, but
* if the plaintiff is guilty of contributory negligence the effect of such contributory negligence is that the damages the plaintiff is entitled to shall be diminished by you in proportion to the amount of such contributory negligence.
To explain how to apply the doctrine of comparative negligence to the facts of this case, I shall use an illustration.
You may determine that the amount of the plaintiff's damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 50%. You would compute what 50% of X dollars is, that is, 50 cents times each of X dollars, and diminish the amount of X dollars by 50% or 50 cents out of each dollar, which would leave the amount 50% of X dollars to which the plaintiff would be entitled in your verdict.
You may determine that the amount of the plaintiff's damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 10%. You would compute what 10% of X dollars is, that is, 10 cents times each of X dollars, and diminish the amount of X dollars by 10% or 10 cents
out of each dollar, which would leave the amount of 90% of X dollars to which the plaintiff wold be entitled in your verdict.
You may determine that the amount of the plaintiff's damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 90%. You would compute what 90% of X dollars is, that is, 90 cents times each of X dollars, and diminish the amount of X dollars by 90% or 90 cents out of each dollar, which would leave the amount 10% of X dollars to which the plaintiff would be entitled in your verdict.
Cases:
Reed v. S.S. Yaka, 373 U.S. 410, 10 L.Ed.2d 448, 83 S.Ct. 1349 (1963); United N.Y. & N.J. Pilots Asso. v. Halecki, 358 U.S. 613, 3 L.Ed.2d 541, 79 S.Ct. 417 (1959); Romero v. International Terminal Operat. Co., 358 U.S. 354, 3 L.Ed.2d 368, 79 S.Ct. 468 (1959); Kermarec v. Compagnie Generale Transatlantique, 348 U.S. 625, 3 L.Ed.2d 550, 79 S.Ct. 406 (1959); Pope and Talbot, Inc. v. Hawn, 346 U.S. 406, 98 L.Ed. 143, 74 S.Ct. 202 (1953); Caldarola v. Eckert, 332 U.S. 155, 91 L.Ed. 1968, 67 S.Ct. 1569 (1947).
Notes:
Third party actions under the Longshoremen's and Harbor Workers' Compensation Act may be tried in state courts. See Title 33 U.S.C.A., Sec. 933; Paxos v. Jarka Corp. 314 Pa. 148, 171 A. 468 (Sup. Ct. 1934); Kermarec v. Compagnie Generale Transatlantique, 348 U.S. 625, 3 L.Ed.2d 550, 79 Sup Ct. 406 (1959).
Title 33 (Navigation and Navigable Waters) Chapt. 10, Sec. 901 et seq. of the U.S. Code, is the Longshoremen's and Harbor Workers' Compensation Act.
Compensation is payable irrespective of fault in respect to disability or death of an employee if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock).
The remedy under this Workers' Compensation Act is exclusive and in place of all other liability of such employer to his/her employee or legal representative.
In addition to the foregoing remedy, longshoremen and harbor workers may also have a third party action against the vessel or its owner grounded on negligence or unseaworthiness or both. Such an action may and generally is brought in a Federal District Court.
However, the action under either theory may also be brought in a state court of the state in whose territorial waters the injury occurred or where jurisdiction over the parties may be obtained.
In such cases the Federal Maritime Law prevails with the comparative negligence rule applying.
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Model Civil Jury Charges
7.21 JONES ACT - COMPARATIVE NEGLIGENCE (pre-1985)
If in accordance with the principles of law heretofore given you, you find that the defendant was negligent and that the plaintiff was contributorily negligent, you will apply the following provision of 46 U.S.C.A., Sec. 688 commonly referred to as the Jones Act:
"Any seaman who shall suffer personal injury in the course of his/her employment may, at his/her election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply, and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which
the defendant employer resides or in which his/her principal office is located."
This statute extends to seamen the benefits of the Federal Employers Liability Act which as related to this case provides that the fact that the seaman may have been guilty of contributory negligence shall not bar a recovery but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such seaman.
This provision which deals with the effect of the employee's contributory negligence upon the amount of his/her recovery, states two principles of law:
* The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but
* if the employee is guilty of contributory negligence the effect of such contributory negligence is that he damages the employee is entitled to shall be diminished by you in proportion to the amount of such contributory negligence.
These provisions of law are applicable to the facts in this case in the following manner:
First, ascertain the amount of damages that the plaintiff would be entitled to without reference to his/her contributory negligence.
Second, ascertain the proportion or percentages of such amount of damages which is attributable to plaintiff's contributory negligence.
The third step will be for you to diminish the amount first ascertained by you, by the proportion or percentage of contributory negligence ascertained in the second step.
The amount remaining is the amount the plaintiff is entitled to.
ALTERNATE CHARGE
If, in accordance with the principles of law heretofore given you, you find that the defendant was negligent and that the plaintiff was contributorily negligent, you will apply the following provision of 46 U.S.C.A., Sec. 688 commonly referred to as the Jones Act:
"Any seaman who shall suffer personal injury in the course of his/her employment may, at his/her election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which
the defendant employer resides or in which his/her principal office is located."
This statute extends to seamen the benefits of the Federal Employers Liability Act which as related to this case provides that the fact that the seaman may have been guilty of contributory negligence shall not bar a recovery but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such seaman.
This provision deals with the effect of the employees contributory negligence upon the amount of his/her recovery, states two principles of law:
* The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but
* if the employee is guilty of contributory negligence the effect of such contributory negligence is that the damages the employee is entitled to shall be diminished by you in proportion to the amount of such contributory negligence.
To explain how to apply the doctrine of comparative negligence to the facts of this case, I shall use an illustration.
You may determine that the amount of the plaintiff's damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory
negligence is 50%. You would compute what 50% of X dollars is, that is, 50 cents times each of X dollars, and diminish the amount of X dollars by 50% or 50 cents out of each dollar, which would leave the amount 50% of X dollars to which the plaintiff would be entitled in your verdict.
You may determine that the amount of the plaintiff's damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 90%. You would compute what 90% of X dollars is, that is, 90 cents times each of X dollars, and diminish the amount of X dollars by 90% or 90 cents out of each dollar, which would leave the amount 10% of X dollars to which the plaintiff would be entitled in your verdict.
Cases:
Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 98 L.Ed. 143, 74 S.Ct. 202 (1953); Nygren v. American Boat Cartage, Inc., 290 F.2d 547 (2d Cir. 1961); Duplanty v. Matson Navigation Company, 53 Wash. 243, 333 P.2d 1092 (Sup. Ct. 1959); Allan v. Oceanside Lumber Company, 214 Or. 27, 328 P.2d 327 (Sup. Ct. 1958); Wood Towing Corporation v. West, 181 Va. 151, 23 S.E.2d 789 (Ct. App. 1943); Boles v. Munson S.S. Lines, Inc., 256 N.Y.S. 709, 235 App. Div. 175 (1932).
Notes:
Causes of action under the Jones Act may be tried in state courts. See Title 46, U.S.C.A., Sec. 688; O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 87 L.Ed. 596 (1943); Romero v. International Term. Operat. Co., 358 U.S. 354, 3 L.Ed.2d 368, 79 S.Ct. 468 (1959).
"Any seaman who shall suffer personal injury in the course of his/her employment may, at his/her election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply, and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which
the defendant employer resides or in which his/her principal office is located."
This statute extends to seamen the benefits of the Federal Employers Liability Act which as related to this case provides that the fact that the seaman may have been guilty of contributory negligence shall not bar a recovery but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such seaman.
This provision which deals with the effect of the employee's contributory negligence upon the amount of his/her recovery, states two principles of law:
* The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but
* if the employee is guilty of contributory negligence the effect of such contributory negligence is that he damages the employee is entitled to shall be diminished by you in proportion to the amount of such contributory negligence.
These provisions of law are applicable to the facts in this case in the following manner:
First, ascertain the amount of damages that the plaintiff would be entitled to without reference to his/her contributory negligence.
Second, ascertain the proportion or percentages of such amount of damages which is attributable to plaintiff's contributory negligence.
The third step will be for you to diminish the amount first ascertained by you, by the proportion or percentage of contributory negligence ascertained in the second step.
The amount remaining is the amount the plaintiff is entitled to.
ALTERNATE CHARGE
If, in accordance with the principles of law heretofore given you, you find that the defendant was negligent and that the plaintiff was contributorily negligent, you will apply the following provision of 46 U.S.C.A., Sec. 688 commonly referred to as the Jones Act:
"Any seaman who shall suffer personal injury in the course of his/her employment may, at his/her election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which
the defendant employer resides or in which his/her principal office is located."
This statute extends to seamen the benefits of the Federal Employers Liability Act which as related to this case provides that the fact that the seaman may have been guilty of contributory negligence shall not bar a recovery but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such seaman.
This provision deals with the effect of the employees contributory negligence upon the amount of his/her recovery, states two principles of law:
* The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but
* if the employee is guilty of contributory negligence the effect of such contributory negligence is that the damages the employee is entitled to shall be diminished by you in proportion to the amount of such contributory negligence.
To explain how to apply the doctrine of comparative negligence to the facts of this case, I shall use an illustration.
You may determine that the amount of the plaintiff's damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory
negligence is 50%. You would compute what 50% of X dollars is, that is, 50 cents times each of X dollars, and diminish the amount of X dollars by 50% or 50 cents out of each dollar, which would leave the amount 50% of X dollars to which the plaintiff would be entitled in your verdict.
You may determine that the amount of the plaintiff's damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 90%. You would compute what 90% of X dollars is, that is, 90 cents times each of X dollars, and diminish the amount of X dollars by 90% or 90 cents out of each dollar, which would leave the amount 10% of X dollars to which the plaintiff would be entitled in your verdict.
Cases:
Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 98 L.Ed. 143, 74 S.Ct. 202 (1953); Nygren v. American Boat Cartage, Inc., 290 F.2d 547 (2d Cir. 1961); Duplanty v. Matson Navigation Company, 53 Wash. 243, 333 P.2d 1092 (Sup. Ct. 1959); Allan v. Oceanside Lumber Company, 214 Or. 27, 328 P.2d 327 (Sup. Ct. 1958); Wood Towing Corporation v. West, 181 Va. 151, 23 S.E.2d 789 (Ct. App. 1943); Boles v. Munson S.S. Lines, Inc., 256 N.Y.S. 709, 235 App. Div. 175 (1932).
Notes:
Causes of action under the Jones Act may be tried in state courts. See Title 46, U.S.C.A., Sec. 688; O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 87 L.Ed. 596 (1943); Romero v. International Term. Operat. Co., 358 U.S. 354, 3 L.Ed.2d 368, 79 S.Ct. 468 (1959).
7.20 FEDERAL EMPLOYERS LIABILITY ACT - COMPARATIVE NEGLIGENCE (pre-1984)
If, in accordance with the principle of law heretofore given you, you find that the defendant was negligent and that the plaintiff was contributorily negligent, you will apply the following provision of the Federal Employers Liability Act, 45 U.S.C.A., Sec. 53:
"In all actions against any common carrier by railroad to recover damages for personal injuries to an employee, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee."
This provision which deals with the effect of the employee's contributory negligence upon the amount of his/her recovery states two principles of law:
* The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but
* If the employee is guilty of contributory negligence the effect of such contributory negligence is that the damages the employee is entitled to shall be diminished by you in proportion to the amount of such contributory negligence.
These provisions of law are applicable to the facts in this case in the following manner:
First, ascertain the amount of damages that the plaintiff would be entitled to without reference to his/her contributory negligence.
Second, ascertain the proportion or percentage of such amount of damages which is attributable to plaintiff's contributory negligence.
The third step will be for you to diminish the amount first ascertained by you, by the proportion or percentage of contributory negligence ascertained in the second step.
The amount remaining is the amount the plaintiff is entitled to.
ALTERNATE CHARGE
If, in accordance with the principles of law heretofore given you, you find that the defendant was negligent and that the plaintiff was contributorily negligent, you will apply the following provision of the Federal Employers Liability Act, 45 U.S.C.A., Sec. 53:
"In all actions against any common carrier by railroad to recover damages for personal injuries to an employee, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee."
This provision which deals with the effect of the employee's contributory negligence upon the amount of his/her recovery, states two principles of law:
* The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but
* If the employee is guilty of contributory negligence the effect of such contributory negligence is that the damages the employee is entitled to shall be diminished by you in proportion to the amount of such contributory negligence.
To explain how to apply the doctrine of comparative negligence to the facts of this case, I shall use an illustration.
You may determine that the amount of the plaintiff's damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 50%. You would compute what 50% of X dollars is, that is 50 cents times each of X dollars, and diminish the amount of X dollars by 50% or 50 cents out of each dollar, which would leave the amount of 50% of X dollars to which the plaintiff would be entitled in your verdict.
You may determine that the amount of the plaintiff's damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 10%. You would compute what 10% of X dollars is, that is 10 cents times each of X dollars, and diminish the amount of X dollars by 10% or 10 cents
out of each dollar, which would leave the amount of 90% or X dollars to which the plaintiff would be entitled in your verdict.
You may determine that the amount of the plaintiff's damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 90%. You would compute what 90% of X dollars is, that is, 90 cents times each of X dollars, and diminish the amount of X dollars by 90% or 90 cents out of each dollar, which would leave the amount 10% of X dollars to which the plaintiff would be entitled in your verdict.
Cases:
Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 87 L.Ed. 610, 63 S.Ct. 444 (1943); Bashco v. Pennsylvania Railroad Co., 3 N.J. Super. 86, 90, 91 (App. Div. 1949); Hardy v. D.L. & W.R.R. Co., 97 N.J.L. 358, 361 (Sup. Ct. 1922); Koshorek v. Pennsylvania Railroad Co., 318 F.2d 364 (3d Cir. 1963).
As to concurrent jurisdiction see Miles v. Illinois Central R. Co., 315 U.S. 698, 86 L.Ed. 1129, 62 S.Ct. 827 (1942). Forum non conveniens may be asserted by a State court in a F.E.L.A. case. Vargas v. A.S. Bull Steamship Co., 44 N.J. Super. 536 (App. Div. 1957).
Notes:
State and Federal courts have concurrent jurisdiction in Federal Employers Liability Act cases. See 45 U.S.C.A., Sec. 56.
45 U.S.C.A., Sec. 51 provides generally that every common carrier by railroad, if negligent, shall be liable to its employees for damages arising out of injuries or death.
45 U.S.C.A. Sec. 53 provides that "In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injury is an employee, or where such injuries have resulted in his/her death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. April 22, 1908, c. 140, Sec. 3, 35 Stat. 66."
The proviso in the foregoing refers to Title 45, Chapter 1, Sec. 1 et seq. (Safety Appliance Act) which required railroads to incorporate certain safety appliances and equipment on railroad engines and cars for the protection of employees and travelers.
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Model Civil Jury Charges
"In all actions against any common carrier by railroad to recover damages for personal injuries to an employee, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee."
This provision which deals with the effect of the employee's contributory negligence upon the amount of his/her recovery states two principles of law:
* The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but
* If the employee is guilty of contributory negligence the effect of such contributory negligence is that the damages the employee is entitled to shall be diminished by you in proportion to the amount of such contributory negligence.
These provisions of law are applicable to the facts in this case in the following manner:
First, ascertain the amount of damages that the plaintiff would be entitled to without reference to his/her contributory negligence.
Second, ascertain the proportion or percentage of such amount of damages which is attributable to plaintiff's contributory negligence.
The third step will be for you to diminish the amount first ascertained by you, by the proportion or percentage of contributory negligence ascertained in the second step.
The amount remaining is the amount the plaintiff is entitled to.
ALTERNATE CHARGE
If, in accordance with the principles of law heretofore given you, you find that the defendant was negligent and that the plaintiff was contributorily negligent, you will apply the following provision of the Federal Employers Liability Act, 45 U.S.C.A., Sec. 53:
"In all actions against any common carrier by railroad to recover damages for personal injuries to an employee, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee."
This provision which deals with the effect of the employee's contributory negligence upon the amount of his/her recovery, states two principles of law:
* The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but
* If the employee is guilty of contributory negligence the effect of such contributory negligence is that the damages the employee is entitled to shall be diminished by you in proportion to the amount of such contributory negligence.
To explain how to apply the doctrine of comparative negligence to the facts of this case, I shall use an illustration.
You may determine that the amount of the plaintiff's damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 50%. You would compute what 50% of X dollars is, that is 50 cents times each of X dollars, and diminish the amount of X dollars by 50% or 50 cents out of each dollar, which would leave the amount of 50% of X dollars to which the plaintiff would be entitled in your verdict.
You may determine that the amount of the plaintiff's damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 10%. You would compute what 10% of X dollars is, that is 10 cents times each of X dollars, and diminish the amount of X dollars by 10% or 10 cents
out of each dollar, which would leave the amount of 90% or X dollars to which the plaintiff would be entitled in your verdict.
You may determine that the amount of the plaintiff's damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 90%. You would compute what 90% of X dollars is, that is, 90 cents times each of X dollars, and diminish the amount of X dollars by 90% or 90 cents out of each dollar, which would leave the amount 10% of X dollars to which the plaintiff would be entitled in your verdict.
Cases:
Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 87 L.Ed. 610, 63 S.Ct. 444 (1943); Bashco v. Pennsylvania Railroad Co., 3 N.J. Super. 86, 90, 91 (App. Div. 1949); Hardy v. D.L. & W.R.R. Co., 97 N.J.L. 358, 361 (Sup. Ct. 1922); Koshorek v. Pennsylvania Railroad Co., 318 F.2d 364 (3d Cir. 1963).
As to concurrent jurisdiction see Miles v. Illinois Central R. Co., 315 U.S. 698, 86 L.Ed. 1129, 62 S.Ct. 827 (1942). Forum non conveniens may be asserted by a State court in a F.E.L.A. case. Vargas v. A.S. Bull Steamship Co., 44 N.J. Super. 536 (App. Div. 1957).
Notes:
State and Federal courts have concurrent jurisdiction in Federal Employers Liability Act cases. See 45 U.S.C.A., Sec. 56.
45 U.S.C.A., Sec. 51 provides generally that every common carrier by railroad, if negligent, shall be liable to its employees for damages arising out of injuries or death.
45 U.S.C.A. Sec. 53 provides that "In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injury is an employee, or where such injuries have resulted in his/her death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. April 22, 1908, c. 140, Sec. 3, 35 Stat. 66."
The proviso in the foregoing refers to Title 45, Chapter 1, Sec. 1 et seq. (Safety Appliance Act) which required railroads to incorporate certain safety appliances and equipment on railroad engines and cars for the protection of employees and travelers.
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Model Civil Jury Charges
7.16 NEGLIGENCE - WHERE A PARTY'S ACTS OR MISCONDUCT ARE WILLFUL, WANTON OR MALICIOUS OR IN RECKLESS DISREGARD OF ONE'S SAFETY OR ARE INTENTIONAL ACTS
In this case, (one party) alleges that the acts of misconduct of (other party) were willful, wanton or malicious (or intentional). If you find that the act (or failure to act) by that party was willful, wanton or malicious (or intentional) conduct and that her/his action (or inaction) substantially contributed to the harm, then you are to apportion the fault of all parties. In other words, you are to apportion the total responsibility to each party depending on the degree of fault you assess to each party; including the fault attributable to a willful, wanton or malicious tortfeasor or a tortfeasor who acts in reckless disregard of one's safety (or a tortfeasor who acts intentionally).
Note:
If the above is charged, jury should also be given definitions of willful, wanton and malicious or of intentional acts as well as proximate cause.
Note:
The law expressed in Draney v. Bachman, 138 N.J. Super. 503 (L.D. 1976) was found to have "eroded by subsequent developments in the law of comparative fault". See McCann v. Lester, 239 N.J. Super. 601 (App. Div. 1990) at page 609, holding that overall fault of all parties is to be measured (compared).
In Blazovic v. Andrich, 124 N.J. 90 (1990), McCann is cited with approval. Blazovic then holds that intentional acts are likewise to be compared.
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Model Civil Jury Charges
Note:
If the above is charged, jury should also be given definitions of willful, wanton and malicious or of intentional acts as well as proximate cause.
Note:
The law expressed in Draney v. Bachman, 138 N.J. Super. 503 (L.D. 1976) was found to have "eroded by subsequent developments in the law of comparative fault". See McCann v. Lester, 239 N.J. Super. 601 (App. Div. 1990) at page 609, holding that overall fault of all parties is to be measured (compared).
In Blazovic v. Andrich, 124 N.J. 90 (1990), McCann is cited with approval. Blazovic then holds that intentional acts are likewise to be compared.
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Model Civil Jury Charges
7.15 NEGLIGENCE - CARE REQUIRED OF PEDESTRIAN ON SIDEWALK
A. In General
A pedestrian using the sidewalk, must act with the same amount of care for her/his own protection as a reasonably careful person would have exercised under similar circumstances. In order to determine whether or not the pedestrian acted reasonably, you must decide whether a reasonable careful person would have discovered the danger which existed in this case and would have avoided it.
Cases:
The above rule applies when the defect is in the sidewalk itself. Milstrey v. Hackensack, 6 N.J. 400-414 (1951); Saco v. Hall, 1 N.J. 377 (1949); Kelly v. Limbeck, 86 N.J.L. 471 (Sup. Ct. 1914); Citro v. Stevens Institute of Technology, 55 N.J. Super. 295 (App. Div. 1959).
Note:
WHEN DEALING WITH STRUCTURES NOT NECESSARILY COMPONENTS OF SIDEWALKS, SUCH AS DRAINS, GRATES AND CELLAR DOORS, THE FOLLOWING SECTION (B) MAY BE FOUND TO APPLY WHERE PLAINTIFF HAS NO PRIOR KNOWLEDGE THEREOF.
B. Artificially Created Conditions For Private Use
A pedestrian using the sidewalk is required to exercise reasonable care for her/his own safety, however, a pedestrian is entitled to assume that there is no
dangerous impediment or pitfall on any part of the sidewalk. The law does not require that a pedestrian anticipate dangerous conditions, however, when or if a pedestrian is not negligent merely because she/he does not look for dangerous conditions, however, when or if a pedestrian sees or is aware of a dangerous condition, then she/he must exercise reasonable care to avoid that condition.
[SEE ALSO NOTE UNDER A. ABOVE.]
Cases:
Saco v. Hall, 1 N.J. 377 (1949); Krug v. Warner, 28 N.J. 174, 183 (1958); Taverna v. Hoboken, 43 N.J. Super. 160, 164 (App. Div. 1956).
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Model Civil Jury Charges
A pedestrian using the sidewalk, must act with the same amount of care for her/his own protection as a reasonably careful person would have exercised under similar circumstances. In order to determine whether or not the pedestrian acted reasonably, you must decide whether a reasonable careful person would have discovered the danger which existed in this case and would have avoided it.
Cases:
The above rule applies when the defect is in the sidewalk itself. Milstrey v. Hackensack, 6 N.J. 400-414 (1951); Saco v. Hall, 1 N.J. 377 (1949); Kelly v. Limbeck, 86 N.J.L. 471 (Sup. Ct. 1914); Citro v. Stevens Institute of Technology, 55 N.J. Super. 295 (App. Div. 1959).
Note:
WHEN DEALING WITH STRUCTURES NOT NECESSARILY COMPONENTS OF SIDEWALKS, SUCH AS DRAINS, GRATES AND CELLAR DOORS, THE FOLLOWING SECTION (B) MAY BE FOUND TO APPLY WHERE PLAINTIFF HAS NO PRIOR KNOWLEDGE THEREOF.
B. Artificially Created Conditions For Private Use
A pedestrian using the sidewalk is required to exercise reasonable care for her/his own safety, however, a pedestrian is entitled to assume that there is no
dangerous impediment or pitfall on any part of the sidewalk. The law does not require that a pedestrian anticipate dangerous conditions, however, when or if a pedestrian is not negligent merely because she/he does not look for dangerous conditions, however, when or if a pedestrian sees or is aware of a dangerous condition, then she/he must exercise reasonable care to avoid that condition.
[SEE ALSO NOTE UNDER A. ABOVE.]
Cases:
Saco v. Hall, 1 N.J. 377 (1949); Krug v. Warner, 28 N.J. 174, 183 (1958); Taverna v. Hoboken, 43 N.J. Super. 160, 164 (App. Div. 1956).
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Model Civil Jury Charges
7.14 NEGLIGENCE - EFFECT OF PHYSICAL IMPAIRMENT
A person acting with a physical impairment is required to act with the same degree of care as an ordinary careful person with a similar impairment or disability would have exercised under the same or similar circumstances.
Cases:
Berger v. Shapiro, 30 N.J. 89, 102 (1959); Butelli v. J.C.H. & R. El. Ry. Co., 59 N.J.L. 302, 306 (Sup. Ct. 1896); 2 Harper & James, The Law of Torts §16.7.
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Model Civil Jury Charges
Cases:
Berger v. Shapiro, 30 N.J. 89, 102 (1959); Butelli v. J.C.H. & R. El. Ry. Co., 59 N.J.L. 302, 306 (Sup. Ct. 1896); 2 Harper & James, The Law of Torts §16.7.
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Model Civil Jury Charges
7.13 NEGLIGENCE - INTOXICATION
A. In General
A person who voluntarily has become intoxicated is required to act with the same care as a person who is sober. So long as such a person who is voluntarily intoxicated acts with the same degree of care for her/his own safety which an ordinary careful and sober person would exercise under the same or similar circumstances, then the intoxicated person is not comparatively negligent. But if you find that, by reason of her/his own voluntary abuse of intoxicating liquor, the plaintiff exposed herself/himself to a dangerous situation and sustained bodily injuries which a sober person in the exercise of ordinary foresight and care would have avoided, then you find that the voluntary intoxicated person has acted negligently.
Note:
It has been held that negligence is not necessarily to be inferred from proof of intoxication and that a drunken person may be careful. Bageard v. Consolidated Traction Co., 64 N.J.L. 316 (E. & A. 1900).
Cases:
Petrone v. Margolis, 20 N.J. Super. 180, 188 (App. Div. 1952); Bowman v. C.R.R. of N.J., 27 N.J. Super. 370 (App. Div. 1953).
B. Riding With Intoxicated Driver
A passenger in an automobile must act with appropriate care for her/his own safety as the demands of the situation reasonably require. To determine whether or not the plaintiff was negligent by voluntarily riding in a motor vehicle which was operated by an intoxicated person, you must decide whether an ordinary cautious and careful person, under the same or similar circumstances, would have risked riding with the driver. You must consider three factual issues:
1. Did the plaintiff voluntarily ride in an automobile operated by a person under the influence of intoxicating liquor/drugs after the plaintiff knew, or, in the exercise of reasonable care, should have known, of the driver's condition?
2. Would a reasonably cautious and careful person have avoided the risk of riding with such a driver under the same or similar circumstances?
3. Was the intoxication of the driver a substantial contributing cause of the incident and the resulting injuries?
If the answer to the three questions is yes, then the plaintiff was comparatively negligent. If you answer any of the three questions no, then the plaintiff was not comparatively negligent.
Cases:
Petrone v. Margolis, 20 N.J. Super. 180, 188 (App. Div. 1952); Bowman v. C.R.R. of N.J., 27 N.J. Super. 370 (App. Div. 1953).
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Model Civil Jury Charges
A person who voluntarily has become intoxicated is required to act with the same care as a person who is sober. So long as such a person who is voluntarily intoxicated acts with the same degree of care for her/his own safety which an ordinary careful and sober person would exercise under the same or similar circumstances, then the intoxicated person is not comparatively negligent. But if you find that, by reason of her/his own voluntary abuse of intoxicating liquor, the plaintiff exposed herself/himself to a dangerous situation and sustained bodily injuries which a sober person in the exercise of ordinary foresight and care would have avoided, then you find that the voluntary intoxicated person has acted negligently.
Note:
It has been held that negligence is not necessarily to be inferred from proof of intoxication and that a drunken person may be careful. Bageard v. Consolidated Traction Co., 64 N.J.L. 316 (E. & A. 1900).
Cases:
Petrone v. Margolis, 20 N.J. Super. 180, 188 (App. Div. 1952); Bowman v. C.R.R. of N.J., 27 N.J. Super. 370 (App. Div. 1953).
B. Riding With Intoxicated Driver
A passenger in an automobile must act with appropriate care for her/his own safety as the demands of the situation reasonably require. To determine whether or not the plaintiff was negligent by voluntarily riding in a motor vehicle which was operated by an intoxicated person, you must decide whether an ordinary cautious and careful person, under the same or similar circumstances, would have risked riding with the driver. You must consider three factual issues:
1. Did the plaintiff voluntarily ride in an automobile operated by a person under the influence of intoxicating liquor/drugs after the plaintiff knew, or, in the exercise of reasonable care, should have known, of the driver's condition?
2. Would a reasonably cautious and careful person have avoided the risk of riding with such a driver under the same or similar circumstances?
3. Was the intoxication of the driver a substantial contributing cause of the incident and the resulting injuries?
If the answer to the three questions is yes, then the plaintiff was comparatively negligent. If you answer any of the three questions no, then the plaintiff was not comparatively negligent.
Cases:
Petrone v. Margolis, 20 N.J. Super. 180, 188 (App. Div. 1952); Bowman v. C.R.R. of N.J., 27 N.J. Super. 370 (App. Div. 1953).
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Model Civil Jury Charges
7.12 DUTY OF PASSENGER IN AUTOMOBILE
A passenger in an automobile must act with the same amount of care and caution for her/his own safety as an ordinary careful person would exercise under like circumstances. A passenger has the right to assume, that the driver will exercise proper care and caution in driving the automobile. Until a passenger knows, or in the exercise of reasonable care should know that the driver is incapable of operating the automobile or is operating the automobile in a negligent manner, there is no duty for the passenger to supervise the driving, to keep a lookout for danger, or to warn of a danger of which, a passenger reasonably believes the driver is aware.
THE FOLLOWING MAY BE ADDED WHERE APPROPRIATE:
However, while the passenger ordinarily has no duty to control or direct the driver, there is a point where reliance upon the driver ends and the duty to act begins. Thus, when it should become apparent to a reasonably careful person that the vehicle is being driven negligently, the reasonable passenger must protest or otherwise persuade the driver to drive carefully. Further if such protests are disregarded, there is a duty for the passenger to leave the car when a reasonable opportunity is afforded, if you determine that a reasonably careful person would do so under similar circumstances.
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ALTERNATIVE:
While a passenger who has no control over the car is not responsible for the negligence of the operator of an automobile, still the passenger is required to act with such are for her/his own safety within the circumstances of the case.
A passenger in a car, in the absence of any facts or circumstances indicating the contrary, can reasonably anticipate that the driver, who has exclusive control and management of the vehicle, will not proceed in a dangerous situation, or fail to keep the speed of the vehicle within proper limits. A proper passenger need not anticipate that a driver will improperly increase the risks common to travel.
Note:
THE ABOVE APPLIES WHERE THE RELATION OF MASTER AND SERVANT PRINCIPAL AND AGENT, OR MUTUAL RESPONSIBILITY IN A COMMON ENTERPRISE DOES NOT EXIST.
Cases:
A passenger is bound to exercise such care for his/her own safety as the exigencies of the situation require. Melone v. J.C.P. & L. Co., 18 N.J. 163 (1955);
Ambrose v. Cyphers, 29 N.J. 138, 150-151 (1959); Falicki v. Camden Co. Bev. Co., 131 N.J.L. 590 (E. & A. 1944). An invitee is duty bound to warn a driver only of known and appreciated peril if a reasonably prudent person would have given such warning under the same or similar circumstances and the risk could thereby have been averted. Kaufman v. P.R.R., 2 N.J. 318, 323 (1949); Kaufman v. Huss, 59 N.J. Super. 64 (App. Div. 1960).
A peril can be said to be known and appreciated when the passenger is (1) aware of the danger, and (2) circumstances indicate to the passenger that the driver is unaware of it.
Kaufman v. Huss, 59 N.J. Super. at p. 76.
It is a question for the jury whether a passenger, by his/her own overindulgence, contributed to his/her injury. Petrone v. Margolis, 20 N.J. Super. 180 (App. Div. 1952); Bowman v. C.R.R. of N.J., 27 N.J. Super. 370 (App. Div. 1953).
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Model Civil Jury Charges
THE FOLLOWING MAY BE ADDED WHERE APPROPRIATE:
However, while the passenger ordinarily has no duty to control or direct the driver, there is a point where reliance upon the driver ends and the duty to act begins. Thus, when it should become apparent to a reasonably careful person that the vehicle is being driven negligently, the reasonable passenger must protest or otherwise persuade the driver to drive carefully. Further if such protests are disregarded, there is a duty for the passenger to leave the car when a reasonable opportunity is afforded, if you determine that a reasonably careful person would do so under similar circumstances.
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ALTERNATIVE:
While a passenger who has no control over the car is not responsible for the negligence of the operator of an automobile, still the passenger is required to act with such are for her/his own safety within the circumstances of the case.
A passenger in a car, in the absence of any facts or circumstances indicating the contrary, can reasonably anticipate that the driver, who has exclusive control and management of the vehicle, will not proceed in a dangerous situation, or fail to keep the speed of the vehicle within proper limits. A proper passenger need not anticipate that a driver will improperly increase the risks common to travel.
Note:
THE ABOVE APPLIES WHERE THE RELATION OF MASTER AND SERVANT PRINCIPAL AND AGENT, OR MUTUAL RESPONSIBILITY IN A COMMON ENTERPRISE DOES NOT EXIST.
Cases:
A passenger is bound to exercise such care for his/her own safety as the exigencies of the situation require. Melone v. J.C.P. & L. Co., 18 N.J. 163 (1955);
Ambrose v. Cyphers, 29 N.J. 138, 150-151 (1959); Falicki v. Camden Co. Bev. Co., 131 N.J.L. 590 (E. & A. 1944). An invitee is duty bound to warn a driver only of known and appreciated peril if a reasonably prudent person would have given such warning under the same or similar circumstances and the risk could thereby have been averted. Kaufman v. P.R.R., 2 N.J. 318, 323 (1949); Kaufman v. Huss, 59 N.J. Super. 64 (App. Div. 1960).
A peril can be said to be known and appreciated when the passenger is (1) aware of the danger, and (2) circumstances indicate to the passenger that the driver is unaware of it.
Kaufman v. Huss, 59 N.J. Super. at p. 76.
It is a question for the jury whether a passenger, by his/her own overindulgence, contributed to his/her injury. Petrone v. Margolis, 20 N.J. Super. 180 (App. Div. 1952); Bowman v. C.R.R. of N.J., 27 N.J. Super. 370 (App. Div. 1953).
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Model Civil Jury Charges
7.11 CARE REQUIRED OF CHILDREN
A. In General (7 years and older)
A child, old enough to be capable of negligence, is required to act with the same amount of care as children of similar age, judgment and experience. In order for you to determine whether a child has acted negligently, you should take into consideration the child's age, intelligence and experiences. Also you must consider the child's capacity to understand and avoid the danger to which he/she was exposed in the actual circumstances and situation in this case. You, the jury, must decide the factual question of whether this child was comparatively negligent.
B. Where Child Under 7 Years
There is a presumption in the law that a child under the age of seven years is not capable of acting negligently. You may reject this presumption, only if, the party who is claiming the child was negligent, proves that this particular child had the experience and the capacity to avoid the danger which was present in this situation.
If you decided that this child had the capacity to act negligently than you must review the facts to see if the child failed to use that amount of care to avoid the danger which should have been exercised by children with like experiences and intelligence.
Cases:
Bush v. N.J. & N.Y. Transit Co., Inc., 30 N.J. 345 (1959); Dillard v. Fue, 65 N.J. Super. 234 (App. Div. 1961).
Note:
Between the time in life when a person is incapable of exercising care and judgment necessary to avoid and avert danger, and the time when such person is in law an adult and responsibility depends on matters of fact and in this transition period such person may or may not be guilty of contributory negligence.
The degree of care required of a child old enough to be capable of negligence, is such as is usually exercised by persons of similar age, judgment and experience. In order to determine whether such a child has been guilty of contributory negligence, it is necessary to take into consideration the age of the child, and its experience and capacity to understand and avoid danger to which it is exposed in the actual circumstances and situation under investigation.
Nichols v. Grunstein, 105 N.J.L. 363 (E. & A. 1929); Dillard v. Fue, 65 N.J. Super. 234 (App. Div. 1961).
As to children under 7, New Jersey follows the rebuttable presumption rule. Thus in Bush v. N.J. & N.Y. Transit Co., 30 N.J. 345 (1959), the Supreme Court held:
"The question of capacity or incapacity is simply a factual inquiry, and is whether the particular child has the capacity to be contributorily negligent, i.e., act unreasonably under the circumstances, in light of the age, training, judgment and other relevant factors applying to the child, and the test to be applied is that applicable to any other question of fact."
"***, a trial judge is first to view the matter and if he is of the opinion after a consideration of all relevant factors that the child did not have capacity to be contributorily negligent and that reasonable men could not
disagree, he then decides the question of capacity as a matter of law, but if he feels that reasonable men can disagree even though he himself would decide for or against incapacity, he must allow the jury to decide the question of incapacity, and the jury, if he finds the particular child had capacity to be negligent, must then decide whether the particular child was negligent."
"After a consideration of the authorities we adopt the view that a child of less than 7 years of age is rebuttably presumed to be incapable of negligence and hence the issue may not be submitted to the jury in the absence of evidence of training and experience from which the jury could infer that the child was capable of understanding and avoiding the danger of injury involved in the circumstances of the case."
"If evidence of capacity is introduced, then the trial judge must determine if such evidence is sufficient so that
reasonable men might disagree concerning the question of whether the child had the capacity to perceive the task and avoid the danger to himself. If the answer is in the affirmative and if there is further evidence that the child did not act in a manner which would be expected of a child of similar age, judgment and experience, then the question of contributory negligence must be submitted to the jury."
N.B. The trial judge must instruct the jury that there is a presumption of incapacity, that it is first to determine whether there is such evidence sufficient to overcome the presumption of incapacity and to render the child capable of being contributorily negligence, and, then, if the jury finds that the child is capable, it must determine whether the child was contributorily negligent under the facts of the particular case.
Additional factors which might be introduced to show that a child was capable of negligence whereas the average child the same age would not be, are, for example, his/her attending school, his/her being sought traffic safety regulations,
his/her experience in caring for himself in traffic, and any other evidence of the child's physical and mental capabilities.
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Model Civil Jury Charges
A child, old enough to be capable of negligence, is required to act with the same amount of care as children of similar age, judgment and experience. In order for you to determine whether a child has acted negligently, you should take into consideration the child's age, intelligence and experiences. Also you must consider the child's capacity to understand and avoid the danger to which he/she was exposed in the actual circumstances and situation in this case. You, the jury, must decide the factual question of whether this child was comparatively negligent.
B. Where Child Under 7 Years
There is a presumption in the law that a child under the age of seven years is not capable of acting negligently. You may reject this presumption, only if, the party who is claiming the child was negligent, proves that this particular child had the experience and the capacity to avoid the danger which was present in this situation.
If you decided that this child had the capacity to act negligently than you must review the facts to see if the child failed to use that amount of care to avoid the danger which should have been exercised by children with like experiences and intelligence.
Cases:
Bush v. N.J. & N.Y. Transit Co., Inc., 30 N.J. 345 (1959); Dillard v. Fue, 65 N.J. Super. 234 (App. Div. 1961).
Note:
Between the time in life when a person is incapable of exercising care and judgment necessary to avoid and avert danger, and the time when such person is in law an adult and responsibility depends on matters of fact and in this transition period such person may or may not be guilty of contributory negligence.
The degree of care required of a child old enough to be capable of negligence, is such as is usually exercised by persons of similar age, judgment and experience. In order to determine whether such a child has been guilty of contributory negligence, it is necessary to take into consideration the age of the child, and its experience and capacity to understand and avoid danger to which it is exposed in the actual circumstances and situation under investigation.
Nichols v. Grunstein, 105 N.J.L. 363 (E. & A. 1929); Dillard v. Fue, 65 N.J. Super. 234 (App. Div. 1961).
As to children under 7, New Jersey follows the rebuttable presumption rule. Thus in Bush v. N.J. & N.Y. Transit Co., 30 N.J. 345 (1959), the Supreme Court held:
"The question of capacity or incapacity is simply a factual inquiry, and is whether the particular child has the capacity to be contributorily negligent, i.e., act unreasonably under the circumstances, in light of the age, training, judgment and other relevant factors applying to the child, and the test to be applied is that applicable to any other question of fact."
"***, a trial judge is first to view the matter and if he is of the opinion after a consideration of all relevant factors that the child did not have capacity to be contributorily negligent and that reasonable men could not
disagree, he then decides the question of capacity as a matter of law, but if he feels that reasonable men can disagree even though he himself would decide for or against incapacity, he must allow the jury to decide the question of incapacity, and the jury, if he finds the particular child had capacity to be negligent, must then decide whether the particular child was negligent."
"After a consideration of the authorities we adopt the view that a child of less than 7 years of age is rebuttably presumed to be incapable of negligence and hence the issue may not be submitted to the jury in the absence of evidence of training and experience from which the jury could infer that the child was capable of understanding and avoiding the danger of injury involved in the circumstances of the case."
"If evidence of capacity is introduced, then the trial judge must determine if such evidence is sufficient so that
reasonable men might disagree concerning the question of whether the child had the capacity to perceive the task and avoid the danger to himself. If the answer is in the affirmative and if there is further evidence that the child did not act in a manner which would be expected of a child of similar age, judgment and experience, then the question of contributory negligence must be submitted to the jury."
N.B. The trial judge must instruct the jury that there is a presumption of incapacity, that it is first to determine whether there is such evidence sufficient to overcome the presumption of incapacity and to render the child capable of being contributorily negligence, and, then, if the jury finds that the child is capable, it must determine whether the child was contributorily negligent under the facts of the particular case.
Additional factors which might be introduced to show that a child was capable of negligence whereas the average child the same age would not be, are, for example, his/her attending school, his/her being sought traffic safety regulations,
his/her experience in caring for himself in traffic, and any other evidence of the child's physical and mental capabilities.
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Model Civil Jury Charges
7.10 CONTRIBUTORY NEGLIGENCE
NOTE:
Causes of action in negligence arising on and after August 22, 1973 are governed by the comparative negligence statute N.J.S.A. 2A:15-5 et seq. That statute changed the existing law. Thereafter a finding of "Contributory Negligence" would no longer bar a plaintiff's claim unless that negligence was greater than the negligence of the defendant (or the combined negligence of all defendants). "Any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering".
Retained herein are revised sections that present specific situations where negligence of the plaintiff may call for specific language to be charged.
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Model Civil Jury Charges
Causes of action in negligence arising on and after August 22, 1973 are governed by the comparative negligence statute N.J.S.A. 2A:15-5 et seq. That statute changed the existing law. Thereafter a finding of "Contributory Negligence" would no longer bar a plaintiff's claim unless that negligence was greater than the negligence of the defendant (or the combined negligence of all defendants). "Any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering".
Retained herein are revised sections that present specific situations where negligence of the plaintiff may call for specific language to be charged.
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Model Civil Jury Charges
6.14 PROXIMATE CAUSE -- WHERE THERE IS A CLAIM OF INTERVENING OR SUPERSEDING CAUSES FOR JURY'S CONSIDERATION
NOTE TO JUDGE:
This charge should be given in conjunction with MCJC 7.12 or 7.13 where there is also a jury question as to whether an intervening or superseding cause brought about the injury or harm.
In this case, the [name of defendant or other party] claims that the accident/incident/event or plaintiff's injury/loss/harm was caused by an independent intervening cause and, therefore, that [name of defendant or other party] was not a contributing factor to the accident/incident/event or injury/loss/harm.
An intervening cause is the act of an independent agency that destroys the causal connection between the defendant's [or other party's] negligence and the accident/incident/event or injury/loss/harm. To be an intervening cause the independent act must be the immediate and sole cause of the accident/incident/event or injury/loss/harm. The intervening cause must be one that so completely supersedes the operation of the [name of defendant or other party]'s negligence that you find that the intervening event caused the acci
dent/incident/event or injury/loss/harm, without the [name of defendant or other party]'s negligence contributing to it in any material way.(1) In that case liability will not be established because [name of defendant or other party]'s negligence is not a proximate cause of the accident/incident/event or injury/loss/harm.
However, the [name of defendant or other party] would not be relieved from liability for his/her/its negligence by the intervention of acts of third persons, if those acts were reasonably foreseeable. By that I mean, that the causal connection between the [name of defendant or other party]'s negligence and the accident/incident/event or injury/loss/harm is not broken if the intervening cause is one that might, in the natural and ordinary course of things, be anticipated as not entirely improbable.(2) Where the intervention of third parties is reasonably foreseeable, then there still may be a causal connection between the defendant's [or other party's] negligence and the accident/incident/event or injury/loss/harm. The fact that there were interven ing causes that were foreseeable or that were normal incidents of the risk created does not relieve the defendant of liability.(3)
You must determine whether the alleged intervening cause was an intervening cause that destroyed the substantial causal connection between the defendant's negligent actions (or omissions) and the accident/incident/event or injury/loss/harm. If it did, then the [name of defendant or other party]'s negligence was not a proximate cause of the accident/incident/event or injury/loss/harm.
(1)Davis v. Brooks, 280 N.J. Super. 406, 412 (App. Div. 1993).
(2)Id.
(3)Rappaport v. Nichols, 31 N.J. at 203; Cruz-Mendez v. ISU, 156 N.J. 556 (1999).
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Model Civil Jury Charges
This charge should be given in conjunction with MCJC 7.12 or 7.13 where there is also a jury question as to whether an intervening or superseding cause brought about the injury or harm.
In this case, the [name of defendant or other party] claims that the accident/incident/event or plaintiff's injury/loss/harm was caused by an independent intervening cause and, therefore, that [name of defendant or other party] was not a contributing factor to the accident/incident/event or injury/loss/harm.
An intervening cause is the act of an independent agency that destroys the causal connection between the defendant's [or other party's] negligence and the accident/incident/event or injury/loss/harm. To be an intervening cause the independent act must be the immediate and sole cause of the accident/incident/event or injury/loss/harm. The intervening cause must be one that so completely supersedes the operation of the [name of defendant or other party]'s negligence that you find that the intervening event caused the acci
dent/incident/event or injury/loss/harm, without the [name of defendant or other party]'s negligence contributing to it in any material way.(1) In that case liability will not be established because [name of defendant or other party]'s negligence is not a proximate cause of the accident/incident/event or injury/loss/harm.
However, the [name of defendant or other party] would not be relieved from liability for his/her/its negligence by the intervention of acts of third persons, if those acts were reasonably foreseeable. By that I mean, that the causal connection between the [name of defendant or other party]'s negligence and the accident/incident/event or injury/loss/harm is not broken if the intervening cause is one that might, in the natural and ordinary course of things, be anticipated as not entirely improbable.(2) Where the intervention of third parties is reasonably foreseeable, then there still may be a causal connection between the defendant's [or other party's] negligence and the accident/incident/event or injury/loss/harm. The fact that there were interven ing causes that were foreseeable or that were normal incidents of the risk created does not relieve the defendant of liability.(3)
You must determine whether the alleged intervening cause was an intervening cause that destroyed the substantial causal connection between the defendant's negligent actions (or omissions) and the accident/incident/event or injury/loss/harm. If it did, then the [name of defendant or other party]'s negligence was not a proximate cause of the accident/incident/event or injury/loss/harm.
(1)Davis v. Brooks, 280 N.J. Super. 406, 412 (App. Div. 1993).
(2)Id.
(3)Rappaport v. Nichols, 31 N.J. at 203; Cruz-Mendez v. ISU, 156 N.J. 556 (1999).
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Model Civil Jury Charges
6.13 PROXIMATE CAUSE -- WHERE THERE IS CLAIM THAT CONCURRENT CAUSES OF HARM ARE PRESENT AND CLAIM THAT SPECIFIC HARM WAS NOT FORESEEABLE
NOTE TO JUDGE:
This instruction is based on the Supreme Court's decision in Conklin v. Hannoch Weisman, 145 N.J. at 416-22, and is designed to apply to appropriate negligence cases other than the legal malpractice situation discussed in Conklin. See also Yun v. Ford Motor Co., 276 N.J. Super. 142 (App. Div. 1994), rev'd, 143 N.J. 162, 163 (1996) (relying on reasons stated in Baime, J.A.D., dissenting opinion, 276 N.J. Super at 159). For the proximate cause charge in legal malpractice cases, see MCJC 5.37E. This charge can also be modified to cover "failure to act" cases.
However, when foreseeability is a "red herring" in a particular case, Conklin, 145 N.J. at 420, it might be more appropriate to charge MCJC 7.12, which does not include foreseeability language. When there is a claim of an intervening or superseding clause, MCJC 7.14 should also be charged.
To find proximate cause, you must first find that the [name of defendant or party]'s negligence was a cause of the accident/incident/event. If you find that [name of defendant or other party]'s negligence is not a cause of the accident/incident/event, then you must find no proximate cause.
Second, you must find that [name of defendant or other party] negligence was a substantial factor that singly, or in combination with other causes,
brought about the injury/loss/harm claimed by [name of plaintiff]. By substantial, it is meant that it was not a remote, trivial or inconsequential cause. The mere circumstance that there may also be another cause of the injury/loss/harm does not mean that there cannot be a finding of proximate cause. Nor is it necessary for the negligence of [name of the defendant or other party] to be the sole cause of [name of plaintiff]'s injury/loss/harm. However, you must find that [name of defendant or other party]'s negligence was a substantial factor in bringing about the injury/loss/harm.
Third, you must find that some injury/loss/harm to [name of plaintiff] must have been foreseeable. For the injury/loss/harm to be foreseeable, it is not necessary that the precise injury/loss/harm that occurred here was foreseeable by [name of defendant or other party]. Rather, a reasonable person should have anticipated the risk that [name of defendant or other party]'s conduct [omission] could cause some injury/loss/harmSee footnote 1 suffered by [name of plaintiff]. In other words, if some injury/loss/harm from [name of defendant or other party]'s negligence was within the realm of reasonable foreseeability, then the injury/loss/harm is considered foreseeable. On the other hand, if the risk
of injury/loss/harm was so remote as to not be in the realm of reasonable foreseeability, you must find no proximate cause.
In sum, in order to find proximate cause, you must find that the negligence of [name of defendant or other party] was a substantial factor in bringing about the injury/loss/harm that occurred and that some harm to [name of plaintiff] was foreseeable from [name of defendant or other party]'s negligence.
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Footnote: 1 It is important to note that the severity of injury or harm is not germane to a proximate cause finding.
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Model Civil Jury Charges
This instruction is based on the Supreme Court's decision in Conklin v. Hannoch Weisman, 145 N.J. at 416-22, and is designed to apply to appropriate negligence cases other than the legal malpractice situation discussed in Conklin. See also Yun v. Ford Motor Co., 276 N.J. Super. 142 (App. Div. 1994), rev'd, 143 N.J. 162, 163 (1996) (relying on reasons stated in Baime, J.A.D., dissenting opinion, 276 N.J. Super at 159). For the proximate cause charge in legal malpractice cases, see MCJC 5.37E. This charge can also be modified to cover "failure to act" cases.
However, when foreseeability is a "red herring" in a particular case, Conklin, 145 N.J. at 420, it might be more appropriate to charge MCJC 7.12, which does not include foreseeability language. When there is a claim of an intervening or superseding clause, MCJC 7.14 should also be charged.
To find proximate cause, you must first find that the [name of defendant or party]'s negligence was a cause of the accident/incident/event. If you find that [name of defendant or other party]'s negligence is not a cause of the accident/incident/event, then you must find no proximate cause.
Second, you must find that [name of defendant or other party] negligence was a substantial factor that singly, or in combination with other causes,
brought about the injury/loss/harm claimed by [name of plaintiff]. By substantial, it is meant that it was not a remote, trivial or inconsequential cause. The mere circumstance that there may also be another cause of the injury/loss/harm does not mean that there cannot be a finding of proximate cause. Nor is it necessary for the negligence of [name of the defendant or other party] to be the sole cause of [name of plaintiff]'s injury/loss/harm. However, you must find that [name of defendant or other party]'s negligence was a substantial factor in bringing about the injury/loss/harm.
Third, you must find that some injury/loss/harm to [name of plaintiff] must have been foreseeable. For the injury/loss/harm to be foreseeable, it is not necessary that the precise injury/loss/harm that occurred here was foreseeable by [name of defendant or other party]. Rather, a reasonable person should have anticipated the risk that [name of defendant or other party]'s conduct [omission] could cause some injury/loss/harmSee footnote 1 suffered by [name of plaintiff]. In other words, if some injury/loss/harm from [name of defendant or other party]'s negligence was within the realm of reasonable foreseeability, then the injury/loss/harm is considered foreseeable. On the other hand, if the risk
of injury/loss/harm was so remote as to not be in the realm of reasonable foreseeability, you must find no proximate cause.
In sum, in order to find proximate cause, you must find that the negligence of [name of defendant or other party] was a substantial factor in bringing about the injury/loss/harm that occurred and that some harm to [name of plaintiff] was foreseeable from [name of defendant or other party]'s negligence.
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Footnote: 1 It is important to note that the severity of injury or harm is not germane to a proximate cause finding.
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Model Civil Jury Charges
6.12 PROXIMATE CAUSE -- WHERE THERE IS CLAIM THAT CONCURRENT CAUSES OF HARM WERE PRESENT
NOTE TO JUDGE:
This charge is designed to address the more complex case where a defendant's (or a party's) negligent conduct combines with other causes that lead to the plaintiff's injury (or harm). Conklin v. Hannoch Weisman, 145 N.J. at 417; Camp v. Jiffy Lube 114, 309 N.J. Super. at 309. However, the present charge is not intended to address those causes where there is an issue as to: (1) the foreseeability of the injury or harm; or (2) an intervening or superseding cause. The trial judge should employ MCJC 7.13 for cases where the foreseeability of the injury or harm is an issue. Depending upon the facts of the case, MCJC 7.14 should be used in conjunction with MCJC 7.12 or 7.13 if there is an issue as to intervening or superseding causes.
To find proximate cause, you must first find that the [name of defendant or other party]'s negligence was a cause of the accident/incident/event. If you find that [name of defendant or other party] is not a cause of the accident/incident/event, then you must find no proximate cause.
Second, you must find that [name of defendant or other party]'s negligence was a substantial factor that singly, or in combination with other causes, brought about the accident/incident/event or injury/loss/harm claimed by [name of plaintiff]. By substantial, it is meant that it was not a remote, trivial or
inconsequential cause. The mere circumstance that there may also be another cause of the accident/incident/event or injury/loss/harm does not mean that there cannot be a finding of proximate cause. Nor is it necessary for the negligence of [name of the defendant or other party] to be the sole cause of accident/incident/event or injury/loss/harm. If you find that [name of defendant or other party]'s negligence was a substantial factor in bringing about the accident/incident/event or injury/loss/harm, then you should find that [name of defendant or other party]'s negligence was a proximate cause of the accident/incident/event or injury/loss/harm.
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Model Civil Jury Charges
This charge is designed to address the more complex case where a defendant's (or a party's) negligent conduct combines with other causes that lead to the plaintiff's injury (or harm). Conklin v. Hannoch Weisman, 145 N.J. at 417; Camp v. Jiffy Lube 114, 309 N.J. Super. at 309. However, the present charge is not intended to address those causes where there is an issue as to: (1) the foreseeability of the injury or harm; or (2) an intervening or superseding cause. The trial judge should employ MCJC 7.13 for cases where the foreseeability of the injury or harm is an issue. Depending upon the facts of the case, MCJC 7.14 should be used in conjunction with MCJC 7.12 or 7.13 if there is an issue as to intervening or superseding causes.
To find proximate cause, you must first find that the [name of defendant or other party]'s negligence was a cause of the accident/incident/event. If you find that [name of defendant or other party] is not a cause of the accident/incident/event, then you must find no proximate cause.
Second, you must find that [name of defendant or other party]'s negligence was a substantial factor that singly, or in combination with other causes, brought about the accident/incident/event or injury/loss/harm claimed by [name of plaintiff]. By substantial, it is meant that it was not a remote, trivial or
inconsequential cause. The mere circumstance that there may also be another cause of the accident/incident/event or injury/loss/harm does not mean that there cannot be a finding of proximate cause. Nor is it necessary for the negligence of [name of the defendant or other party] to be the sole cause of accident/incident/event or injury/loss/harm. If you find that [name of defendant or other party]'s negligence was a substantial factor in bringing about the accident/incident/event or injury/loss/harm, then you should find that [name of defendant or other party]'s negligence was a proximate cause of the accident/incident/event or injury/loss/harm.
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Model Civil Jury Charges
6.11 PROXIMATE CAUSE -- ROUTINE TORT CASE WHERE NO ISSUES OF CONCURRENT OR INTERVENING CAUSES, OR FORESEEABILITY OF INJURY OR HARM
NOTE TO JUDGE:
This charge is designed to address proximate cause in the routine tort case when there is no issue as to concurrent or intervening causes or foreseeability. Beyond the "but for" instruction, the charge also contains substantial factor language to guide the jury's deliberations in those cases when the injury or harm might have been sustained even if the actor had not been negligent. Vuccolo v. Diamond Shamrock Chem., 240 N.J. Super. 289, 294-95 (App. Div. 1990), certif. denied, 122 N.J. 333 (1990). However, unless there is any serious issue relating to causation, the "substantial factor" portion of the charge can be abbreviated in the fashion suggested below.
By proximate cause, I refer to a cause that in a natural and continuous sequence produces the accident/incident/event and resulting injury/loss/harm and without which the resulting accident/incident/event or injury/loss/harm(1) would not have occurred.(2) A person who is negligent is held responsible for
any accident/incident/event or injury/loss/harm that results in the ordinary course of events from his/her/its negligence.(3) This means that you must first find that the resulting accident/incident/event or injury/loss/harm to [name of plaintiff or other party] would not have occurred but for the negligent conduct of [name of defendant or other party].(4) Second, you must find that [name of plaintiff or defendant] negligent conduct was a substantial factor in bringing about the resulting accident or injury/loss/harm.(5) By substantial, I mean that the cause is not remote, trivial or inconsequential.
If you find that the [name of defendant or other party]'s negligence was a cause of the accident/incident/event and that such negligence was a substantial factor in bringing about the injury/loss/harm, then you should find that [name of defendant or other party] was a proximate cause of the [name of plaintiff]'s injury/loss/harm.
(1)When charging proximate cause on liability, use accident/incident/event, as appropriate. When charging proximate cause on damages, use injury/loss/harm, as appropriate.
(2)Vuccolo v. Diamond Shamrock Chem., 240 N.J. Super. at 294; Cruz-Mendez v. ISU, 156 N.J. 556 (1999). This language has been disapproved in those cases where there are concurrent or intervening causes of harm, Conklin v. Hannoch Weisman, 145 N.J. 395, 419 (1996), but can (continued on next page) still be employed in the routine case when a claim of concurrent or intervening cause is not raised.
(3)Rappaport v. Nichols, 31 N.J. 188, 203 (1959).
(4)The "but for" test for the routine case is derived from Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996); and Camp v. Jiffy Lube #114, 309 N.J. Super. 305 (App. Div. 1998). See also, Cruz-Mendez v. ISU, supra.
(5)Vuccolo v. Diamond Shamrock Chem., 240 N.J. Super. at 294.
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Model Civil Jury Charges
This charge is designed to address proximate cause in the routine tort case when there is no issue as to concurrent or intervening causes or foreseeability. Beyond the "but for" instruction, the charge also contains substantial factor language to guide the jury's deliberations in those cases when the injury or harm might have been sustained even if the actor had not been negligent. Vuccolo v. Diamond Shamrock Chem., 240 N.J. Super. 289, 294-95 (App. Div. 1990), certif. denied, 122 N.J. 333 (1990). However, unless there is any serious issue relating to causation, the "substantial factor" portion of the charge can be abbreviated in the fashion suggested below.
By proximate cause, I refer to a cause that in a natural and continuous sequence produces the accident/incident/event and resulting injury/loss/harm and without which the resulting accident/incident/event or injury/loss/harm(1) would not have occurred.(2) A person who is negligent is held responsible for
any accident/incident/event or injury/loss/harm that results in the ordinary course of events from his/her/its negligence.(3) This means that you must first find that the resulting accident/incident/event or injury/loss/harm to [name of plaintiff or other party] would not have occurred but for the negligent conduct of [name of defendant or other party].(4) Second, you must find that [name of plaintiff or defendant] negligent conduct was a substantial factor in bringing about the resulting accident or injury/loss/harm.(5) By substantial, I mean that the cause is not remote, trivial or inconsequential.
If you find that the [name of defendant or other party]'s negligence was a cause of the accident/incident/event and that such negligence was a substantial factor in bringing about the injury/loss/harm, then you should find that [name of defendant or other party] was a proximate cause of the [name of plaintiff]'s injury/loss/harm.
(1)When charging proximate cause on liability, use accident/incident/event, as appropriate. When charging proximate cause on damages, use injury/loss/harm, as appropriate.
(2)Vuccolo v. Diamond Shamrock Chem., 240 N.J. Super. at 294; Cruz-Mendez v. ISU, 156 N.J. 556 (1999). This language has been disapproved in those cases where there are concurrent or intervening causes of harm, Conklin v. Hannoch Weisman, 145 N.J. 395, 419 (1996), but can (continued on next page) still be employed in the routine case when a claim of concurrent or intervening cause is not raised.
(3)Rappaport v. Nichols, 31 N.J. 188, 203 (1959).
(4)The "but for" test for the routine case is derived from Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996); and Camp v. Jiffy Lube #114, 309 N.J. Super. 305 (App. Div. 1998). See also, Cruz-Mendez v. ISU, supra.
(5)Vuccolo v. Diamond Shamrock Chem., 240 N.J. Super. at 294.
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Model Civil Jury Charges
6.10 PROXIMATE CAUSE -- GENERAL CHARGE TO BE GIVEN IN ALL CASES
NOTE TO JUDGE:
The Committee has extensively reviewed the propriety of the prior charges on proximate cause (most of which were prepared before 1984) in light of two significant recent developments. First, recent decisions of the Supreme Court and the Appellate Division question the use of particular language in certain types of negligence cases. Conklin v. Hannoch Weisman, 145 N.J. 395, 417, 419 (1996); Camp v. Jiffy Lube #114, 309 N.J. Super. 305 (App. Div. 1998). Those decisions also emphasize that proximate cause should be carefully defined for the jury and tailored to the facts of the particular case. Second, recent research and literature on jurors' comprehension of instructions uniformly indicates that jurors do not understand the technical language in most proximate cause charges. (Some studies even indicate that jurors believe the charge instructs them to find the "approximate cause").
Accordingly, to contribute to the jury's understanding of the causation decision they must make in the most common proximate cause issues, the Committee has prepared the following charges. The Committee would welcome any suggestions from judges and attorneys relating to modifications of these charges for greater clarity or other proximate cause "scenarios" that should be addressed.
If you find that the [name of defendant or other party] was negligent, you must find that [name of defendant or other party] negligence was a proximate cause of the accident/incident/event before you can find that [name of defendant or other party] was responsible for the [name of plaintiff or other party] claimed injury/loss/harm. It is the duty of the [name of plaintiff] to establish, by the preponderance of evidence, that the negligence of [name of defendant or other party] was a proximate cause of the accident/incident/event and of the injury/loss/harm allegedly to have resulted from [name of defendant or other party] negligence.
The basic question for you to resolve is whether [name of plaintiff or other party]'s injury/loss/harm is so connected with the negligent actions or inactions of [name of defendant or other party] that you decide it is reasonable, in accordance with the instructions I will now give you, that [name of defendant or other party] should be held wholly or partiallySee footnote 1 responsible for the injury/loss/harm.
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Footnote: 1 Omit "wholly or partially" where neither comparative fault (N.J.S.A. 2A:15-5.1, et seq.) nor apportionment of causal factors is involved in the case, e.g., Dafler v. Raymark Industries, 132 N.J. 96 (1992).
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Model Civil Jury Charges
The Committee has extensively reviewed the propriety of the prior charges on proximate cause (most of which were prepared before 1984) in light of two significant recent developments. First, recent decisions of the Supreme Court and the Appellate Division question the use of particular language in certain types of negligence cases. Conklin v. Hannoch Weisman, 145 N.J. 395, 417, 419 (1996); Camp v. Jiffy Lube #114, 309 N.J. Super. 305 (App. Div. 1998). Those decisions also emphasize that proximate cause should be carefully defined for the jury and tailored to the facts of the particular case. Second, recent research and literature on jurors' comprehension of instructions uniformly indicates that jurors do not understand the technical language in most proximate cause charges. (Some studies even indicate that jurors believe the charge instructs them to find the "approximate cause").
Accordingly, to contribute to the jury's understanding of the causation decision they must make in the most common proximate cause issues, the Committee has prepared the following charges. The Committee would welcome any suggestions from judges and attorneys relating to modifications of these charges for greater clarity or other proximate cause "scenarios" that should be addressed.
If you find that the [name of defendant or other party] was negligent, you must find that [name of defendant or other party] negligence was a proximate cause of the accident/incident/event before you can find that [name of defendant or other party] was responsible for the [name of plaintiff or other party] claimed injury/loss/harm. It is the duty of the [name of plaintiff] to establish, by the preponderance of evidence, that the negligence of [name of defendant or other party] was a proximate cause of the accident/incident/event and of the injury/loss/harm allegedly to have resulted from [name of defendant or other party] negligence.
The basic question for you to resolve is whether [name of plaintiff or other party]'s injury/loss/harm is so connected with the negligent actions or inactions of [name of defendant or other party] that you decide it is reasonable, in accordance with the instructions I will now give you, that [name of defendant or other party] should be held wholly or partiallySee footnote 1 responsible for the injury/loss/harm.
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Footnote: 1 Omit "wholly or partially" where neither comparative fault (N.J.S.A. 2A:15-5.1, et seq.) nor apportionment of causal factors is involved in the case, e.g., Dafler v. Raymark Industries, 132 N.J. 96 (1992).
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Model Civil Jury Charges
8.49 DAMAGES FOR SUPERVISORY SEXUAL HARASSMENT
A. STRICT LIABILITY (Subheadings are for judges' guidance only)
If you find that plaintiff [insert name] has proved all the elements of sexual harassment, the employer is automatically liable for such things as hiring or reinstating the plaintiff, disciplining, transferring or firing the harasser, providing back pay and/or front pay and for taking preventative and remedial measures at the workplace.See footnote 2
B. AGENCY PRINCIPLES GOVERNING COMPENSATORY DAMAGES
1. Within the Scope of Employment
As to other money damages, employers' liability for supervisory hostile work environment is not automatic, but instead, is governed by the following considerations:
(1) Did the employer delegate the authority to the supervisor to control the situation of which plaintiff [name] complained?
(2) Did the supervisor exercise that authority?
(3) Did the exercise of authority result in a violation of the Law Against Discrimination (LAD)?
(4) Did the authority delegated by the employer to the supervisor aid the supervisor in injuring the plaintiff?
If the answer to all of these questions is yes, you must hold the employer liable for the full extent of damages caused by the supervisor's harassment.
If the answer to any of those questions is no, you cannot hold the employer liable for the supervisor's harassment, unless you find that the employer has been negligent. You can consider the following in determining whether an employer was negligent:
(1) Did the employer have well-publicized and enforced policies against harassment in place?
(2) Did the employer have effective formal and informal complaint structures, training or monitoring mechanisms in place?
(3) Did the employer have mechanisms to prevent sexual harassment in place?
(4) Did the employer know about the conduct or should the employer have known about it and if so, do anything about it?
2. Outside the Scope of Employment
If you find that the supervisor did create a hostile work environment, but did so outside the scope of his/her employment, then you must consider certain other factors. For example, if the employer delegated the authority to control the work environment to the supervisor and he/she abused that delegated authority, then the employer is liable for any hostile work environment created by the supervisor. In making this determination, you must decide:
(1) Did the employer delegate to the supervisor the authority to control the situation of which the plaintiff complains?
(2) Did the supervisor exercise that authority?
(3) Did the exercise of authority result in a violation of the Law Against Discrimination (LAD)?
(4) Did the authority delegated by the employer to the supervisory aid him/her in injuring the plaintiffs?
If you answer yes to all of these questions, the employer is liable for any hostile environment created by the supervisor even if he/she acted outside the scope of his/her authority.
Another basis for employer liability, when the supervisor acts outside the scope of his/her employment, is negligence.
Someone suing for a hostile environment may show that an employer was negligent by its failure to have in place well-publicized and enforced anti-harassment policies, effective formal and informal complaint structures, training, and/or monitoring mechanisms. However, the existence of effective preventative mechanisms provides some evidence that the employer was not negligent. Because it is foreseeable that sexual harassment may occur, the absence of effective, preventative mechanisms will present evidence of an employer's negligence. However, the absence of such mechanisms does not automatically constitute negligence, nor does the presence of such mechanisms demonstrate the absence of negligence.
Employer liability for conduct outside the scope of employment may also be found if the employer intended the conduct. For example, if a plaintiff can show that upper management had actual knowledge of the harassment by the supervisor and did not take prompt and effective remedial action to stop it, you may find the employer liable. Effective remedial actions are those reasonably calculated to end the harassment. The reasonableness of an employer's remedy
will depend on its ability to stop harassment by the person who engaged in harassment.
To summarize, an employer's liability for compensatory damages resulting from a supervisor's sexual harassment will depend on the facts of the case. A company will be found liable if the supervisor acted within the scope of his or her employment. Moreover, even if the supervisor acted outside the scope of his or her employment, the employer will be liable if it contributed to the harm through its negligence, intent, or apparent authorization of the harassing conduct, or if the supervisor was aided in the commission of the harassment by the agency relationship. Thus, an employer can be held liable for compensatory damages stemming from a supervisor's creation of a hostile work environment if the employer grants the supervisor the authority to control the working environment and the supervisor abuses that authority to create a hostile work environment. An employer may also be held vicariously liable for compensatory damages for sexual harassment that occurs outside the scope of the supervisor's authority, if the employer had actual or constructive notice of the harassment, or even if the employer did not have actual or construction notice, if the employer negligently or recklessly failed to have an explicit policy that
bans sexual harassment and that provides an effective procedure for the prompt investigation and remediation of such claims.
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Footnote: 1 Pursuant to Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (1993).
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Footnote: 2 This assumes plaintiff is no longer employed. Plaintiff still must prove the quantum of damages, and, for example, whether reinstatement and/or hiring is an appropriate remedy.
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Model Civil Jury Charges
If you find that plaintiff [insert name] has proved all the elements of sexual harassment, the employer is automatically liable for such things as hiring or reinstating the plaintiff, disciplining, transferring or firing the harasser, providing back pay and/or front pay and for taking preventative and remedial measures at the workplace.See footnote 2
B. AGENCY PRINCIPLES GOVERNING COMPENSATORY DAMAGES
1. Within the Scope of Employment
As to other money damages, employers' liability for supervisory hostile work environment is not automatic, but instead, is governed by the following considerations:
(1) Did the employer delegate the authority to the supervisor to control the situation of which plaintiff [name] complained?
(2) Did the supervisor exercise that authority?
(3) Did the exercise of authority result in a violation of the Law Against Discrimination (LAD)?
(4) Did the authority delegated by the employer to the supervisor aid the supervisor in injuring the plaintiff?
If the answer to all of these questions is yes, you must hold the employer liable for the full extent of damages caused by the supervisor's harassment.
If the answer to any of those questions is no, you cannot hold the employer liable for the supervisor's harassment, unless you find that the employer has been negligent. You can consider the following in determining whether an employer was negligent:
(1) Did the employer have well-publicized and enforced policies against harassment in place?
(2) Did the employer have effective formal and informal complaint structures, training or monitoring mechanisms in place?
(3) Did the employer have mechanisms to prevent sexual harassment in place?
(4) Did the employer know about the conduct or should the employer have known about it and if so, do anything about it?
2. Outside the Scope of Employment
If you find that the supervisor did create a hostile work environment, but did so outside the scope of his/her employment, then you must consider certain other factors. For example, if the employer delegated the authority to control the work environment to the supervisor and he/she abused that delegated authority, then the employer is liable for any hostile work environment created by the supervisor. In making this determination, you must decide:
(1) Did the employer delegate to the supervisor the authority to control the situation of which the plaintiff complains?
(2) Did the supervisor exercise that authority?
(3) Did the exercise of authority result in a violation of the Law Against Discrimination (LAD)?
(4) Did the authority delegated by the employer to the supervisory aid him/her in injuring the plaintiffs?
If you answer yes to all of these questions, the employer is liable for any hostile environment created by the supervisor even if he/she acted outside the scope of his/her authority.
Another basis for employer liability, when the supervisor acts outside the scope of his/her employment, is negligence.
Someone suing for a hostile environment may show that an employer was negligent by its failure to have in place well-publicized and enforced anti-harassment policies, effective formal and informal complaint structures, training, and/or monitoring mechanisms. However, the existence of effective preventative mechanisms provides some evidence that the employer was not negligent. Because it is foreseeable that sexual harassment may occur, the absence of effective, preventative mechanisms will present evidence of an employer's negligence. However, the absence of such mechanisms does not automatically constitute negligence, nor does the presence of such mechanisms demonstrate the absence of negligence.
Employer liability for conduct outside the scope of employment may also be found if the employer intended the conduct. For example, if a plaintiff can show that upper management had actual knowledge of the harassment by the supervisor and did not take prompt and effective remedial action to stop it, you may find the employer liable. Effective remedial actions are those reasonably calculated to end the harassment. The reasonableness of an employer's remedy
will depend on its ability to stop harassment by the person who engaged in harassment.
To summarize, an employer's liability for compensatory damages resulting from a supervisor's sexual harassment will depend on the facts of the case. A company will be found liable if the supervisor acted within the scope of his or her employment. Moreover, even if the supervisor acted outside the scope of his or her employment, the employer will be liable if it contributed to the harm through its negligence, intent, or apparent authorization of the harassing conduct, or if the supervisor was aided in the commission of the harassment by the agency relationship. Thus, an employer can be held liable for compensatory damages stemming from a supervisor's creation of a hostile work environment if the employer grants the supervisor the authority to control the working environment and the supervisor abuses that authority to create a hostile work environment. An employer may also be held vicariously liable for compensatory damages for sexual harassment that occurs outside the scope of the supervisor's authority, if the employer had actual or constructive notice of the harassment, or even if the employer did not have actual or construction notice, if the employer negligently or recklessly failed to have an explicit policy that
bans sexual harassment and that provides an effective procedure for the prompt investigation and remediation of such claims.
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Footnote: 1 Pursuant to Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (1993).
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Footnote: 2 This assumes plaintiff is no longer employed. Plaintiff still must prove the quantum of damages, and, for example, whether reinstatement and/or hiring is an appropriate remedy.
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Model Civil Jury Charges
8.61 PUNITIVE DAMAGES AGAINST EMPLOYER IN LAW AGAINST DISCRIMINATION CLAIMS
Note to the Judge
This charge supersedes charges 6.20 and 6.20A with respect to all claims for punitive damages asserted against employers in claims of discrimination or sexual harassment under the Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (NJLAD). This charge incorporates pertinent statutory provisions of the Punitive Damages Act (PDA), N.J.S.A. 2A:15-5.9 et seq., which are mandatory as to claims commenced on or after October 27, 1995.(2) Differences in the instructions to be given in cases subject to the PDA and pre-PDA cases are noted in the footnotes. Also note that the PDA contains the following procedural requirements applicable to NJLAD claims subject to the PDA:
1.Punitive damages must be specifically prayed for in the complaint. N.J.S.A. 2A:15-5.11.
2.Under the PDA, if requested by a defendant, the trial court must bifurcate trial of punitive damages issues from trial of underlying liability and compensatory damages, with the punitive damages issues tried at the second stage of the bifurcated trial. Evidence relevant only to punitive damages is inadmissible in the liability and compensatory damages phase. N.J.S.A. 2A:15-5.13. Trial judges should account for the added length of a bifurcated trial when discussing the potential length of trial during jury selection.
3.Punitive damages may be awarded only if compensatory damages have been awarded. A verdict of only nominal damages cannot support an award of punitive damages. N.J.S.A. 2A:15-5.13.
4.When there are two or more defendants, an award of punitive damages must be specific as to each defendant and each defendant is liable only for the award made against him or her. N.J.S.A. 2A:15-5.13(e).
5.Before entering judgment for punitive damages, the trial judge must determine that the award is reasonable and justified in light of the purposes of punitive damages. The judge may reduce or eliminate the award if the judge considers such action necessary to satisfy the requirements of the PDA. N.J.S.A. 2A:15-5.14(a).
You will now consider the issue of punitive damages. Specifically, you must first decide whether to award punitive damages against the [employer defendant], and if you decide to award such damages, you must then further decide on the amount to be awarded.
What are Punitive Damages?
The purpose of punitive damages is different from the purpose of compensatory damages. Compensatory damages are awarded to plaintiffs to compensate them for any actual injury or loss they have suffered as a result of a defendant's misconduct. In contrast, punitive damages are not to be awarded as a routine manner in every case; they can be awarded only in exceptional cases, to punish a defendant who has acted in an especially egregious or outrageous manner, and to discourage the defendant or others from engaging in similar misconduct in the future.(3)
The plaintiff is not entitled to punitive damages simply because you have found that the defendant has engaged in unlawful [discrimination/sexual harassment] or because you have awarded damages to compensate the plaintiff for [his/her] injury. You may award punitive damages to the plaintiff only if you find that plaintiff has proved certain additional matters that I will explain to you.
The Standard of Proof
You will recall that when I gave you instructions concerning the elements of plaintiff's [discrimination/sexual harassment] claims, I instructed you that the plaintiff had to prove [his/her] claims by a "preponderance of the evidence". Under that standard, the plaintiff was required to prove that the facts alleged by [him/her] were more likely than not true. To be entitled to punitive damages, however, the plaintiff must meet a higher standard of proof.
To recover punitive damages against [employer defendant], plaintiff must prove that [he/she] is entitled to them by "clear and convincing evidence." Clear and convincing evidence means evidence that leaves no serious or substantial doubt about the correctness of the conclusions drawn from that evidence. This standard does not require plaintiff to persuade you beyond a reasonable doubt, but it does require stronger proofs than are required under the preponderance of evidence standard.
Punitive Damages Against [Employer Defendant]
You must first decide whether an award of punitive damages is justified against [employer defendant] in this case. To award punitive damages against [employer defendant], you must find that both of the following factors are present:
First, you must find that the [discrimination/sexual harassment] was "especially egregious." If you do not find that the [discrimination/sexual harassment] was especially egregious, then you must not award punitive damages. In a moment, I will instruct you as to what constitutes "especially egregious" behavior.
Second, if you do find that the [discrimination/sexual harassment] was especially egregious, you must then also find that at least one of [employer defendant's] "upper management" employees actually participated in, or was willfully indifferent to, the wrongful conduct. You cannot award punitive damages against [employer defendant] unless there was some involvement by a member of its upper management.(4)
What Constitutes "Especially Egregious" Conduct?
"Especially egregious" conduct is conduct that was motivated either by actual malice, or that was done with a willful and wanton disregard of the rights of the plaintiff. "Actual malice" means that [individual discriminator/sexual harasser] engaged in intentional wrongdoing in the sense of an evil-minded act designed, intended and done specifically to injure the plaintiff. "Willful and wanton disregard of the rights of the plaintiff" means that [individual discriminator/sexual harasser] deliberately acted with knowledge of a high degree of probability of harm to the plaintiff, and reckless indifference to the consequences of that act.
In making your determination as to whether the [discriminatory/sexually harassing] conduct of [individual discriminator/sexual harasser] was especially egregious or outrageous, you must consider all of the evidence surrounding the wrongful conduct, including:
1.the likelihood that serious harm would arise from the [discrimination/sexual harassment];
2.[individual discriminator/sexual harasser's] awareness or reckless disregard of the likelihood that serious harm would arise;
3.[individual discriminator/sexual harasser's] conduct after learning that [his/her] initial conduct would likely cause harm; and
4.the duration of the wrongful conduct and any concealment of that conduct by [individual discriminator/sexual harasser].(5)
You may not award punitive damages based solely on a finding of negligence or even gross negligence by [name of individual discriminator/sexual harasser]. Nor may you award punitive damages solely because you have determined that [discrimination/sexual harassment] occurred. Rather, as I have explained, punitive damages are to be awarded only in those exceptional cases where the [discrimination/sexual harassment] was especially egregious or outrageous.
What is "Upper Management"?
The second factor you must find is that at least one of [employer defendant's] "upper management" employees was involved with the [discrimination/sexual harassment]. In a moment I will define the kind of involvement that you must find occurred. As an initial matter, though, you must decide whether certain of [employer defendant's] employees were part of its "upper management". Specifically, plaintiff contends that [names of alleged upper management employees] were members of [employer defendant's] "upper management" who had some involvement with the wrongdoing at issue.
To decide whether those employees of [employer defendant] were part of its upper management, you must consider the following. The purpose of the definition of “upper management” is to give employers the incentive not only to provide voluntary compliance programs, but also to insist on the effective enforcement of their programs. The employees who acted wrongfully must have had sufficient authority to make the imposition of punitive damages fair and reasonable.(6)
Clearly, upper management includes the corporation's board of directors and its highest-level executive officers.(7) In addition, upper management consists of those employees responsible to formulate the corporation’s anti-discrimination policies, provide compliance programs and insist on performance of such programs, and those employees to whom the corporation has delegated responsibility to execute its policies in the workplace, who set the atmosphere or control the day-to-day operations of the unit. This group includes heads of departments, regional managers, or compliance officers.
Not all managerial employees, however, constitute "upper-level" management. To decide which employees below the highest levels of management are included in "upper management" is a fact sensitive question that requires you to weigh consider all of the surrounding facts and circumstances.
For an employee on the second tier of management to be considered a member of "upper management," the employee should have either (1) broad supervisory powers over the involved employees, including the power to hire, fire, promote and discipline, or (2) the delegated responsibility to execute the employer's policies to ensure a safe, productive and discrimination-free workplace.(8)
After you have decided whether the employees identified by plaintiff were part of the upper management of [employer defendant], you must then consider whether any of those upper management employees actually participated in, or were willfully indifferent to, the [discrimination/sexual harassment] that occurred.
What Constitutes "Actual Participation"?
To find that upper management "actually participated" in wrongful conduct, you must find that upper management employees not only knew about the wrongful conduct, but also engaged in affirmative acts to accomplish that wrongful conduct. This factor would be satisfied, for example, if you find that [individual discriminator/sexual harasser] is a member of [employer defendant's] upper management, or if you find that a member of upper management affirmatively assisted or otherwise participated directly in [individual discriminator/sexual harasser's] wrongdoing.
What Constitutes "Willful Indifference"?
To find "willful indifference" to wrongful conduct on the part of upper management, you must find that upper management employees knew about the wrongful conduct, but chose to disregard or ignore it rather than stop it. In other words, you cannot award punitive damages against [employer defendant] simply because upper management employees may have been negligent in failing to learn of or reasonably respond to the allegations of [discrimination/sexual harassment](9); you must instead find that upper management employees actually knew about those allegations, and consciously chose to ignore them.
In summary, to award punitive damages against [employer defendant], you must find by clear and convincing evidence both that [name of individual discriminator/sexual harasser] engaged in especially egregious conduct, and that the upper management of [employer defendant] either actively participated in the wrongful conduct, or was willfully indifferent to it.
The Amount of Punitive Damages
If you find that plaintiff has proved that [employer defendant] has engaged in the type of wrongdoing that justifies awarding punitive damages, you must then decide the amount of punitive damages that should be awarded. The amount of punitive damages, if awarded, must be determined based on your sound judgment as to what is a fair and reasonable amount under all the circumstances. As I earlier instructed you, punitive damages are not to be awarded to compensate the plaintiff for injuries, but to punish the defendant and to deter the defendant and others from similar future wrongful conduct.(10) I cannot provide you with any mathematical formula to calculate the amount of punitive damages, but the amount of punitive damages, if any, that you award must bear some reasonable relationship to the actual injury inflicted and the cause of the injury.(11) You will have to use your sound discretion in deciding this issue.
In exercising your discretion, you must consider all of the relevant evidence surrounding the wrongful conduct, including the following factors:
1.the likelihood, at the relevant time, that serious harm would arise from the conduct;
2.[employer defendant's] awareness or reckless disregard of the likelihood that such serious harm would arise from the conduct;
3.the conduct of [employer defendant] upon learning that its initial conduct would likely cause harm;
4.the duration of the conduct or any concealment of it by [employer defendant];
5.the profitability, if any, of the misconduct to [employer defendant];
6.when the misconduct was terminated; and
7.[employer defendant's] financial condition and ability to pay the punitive damages award(12).
In addition, you may also take into consideration:
1.the nature of the wrongful conduct;
2.the extent of harm inflicted;
3.the intent of [employer defendant];
4.whether [employer defendant] had adequate policies, procedures, training or monitoring measures designed to prevent discrimination;
5.whether [employer defendant] took sufficient steps after learning of the wrongful conduct to investigate and address the wrongful conduct; and
6.any other mitigating or aggravating circumstances that you believe should reduce or increase the amount of the damages awarded.
To summarize, on the issue of punitive damages, you must decide whether punitive damages should be awarded in this case, and if so, you must then decide on the proper amount of such an award, based on the factors that I described to you.
(1)This charge covers claims for punitive damages only as against employers. The law is currently unsettled as to whether a co-worker or supervisor can be held personally liable under NJLAD. Therefore, this charge does not address such claims.
(2)Other than with respect to its damages cap provisions, the PDA generally applies to LAD claims.
(3)Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48-49 (1984); DeGiovanni v. Pessel, 55 N.J. 188, 190-91 (1970). Note that for cases filed on or after October 27, 1995, it appears that the PDA has eliminated general deterrence of others as a basis for imposing punitive damages. That basis, recognized under the common law, is omitted from the PDA's definition of "punitive damages," N.J.S.A. 2A:15-5.10, and is not recited as a basis to be considered by the Court in reviewing punitive damages awards for excessiveness prior to entry of judgment, N.J.S.A. 2A:15-5.14. Until this issue is addressed at the appellate level, trial judges will need to decide as a matter of first impression whether it is permissible under the PDA to charge the jury on deterrence of others, and permit counsel to argue that theory of punitive damages to the jury.
(4)Cavuoti v. New Jersey Transit Corp., 161 N.J. 107, 113 (1999).
(5)See N.J.S.A. 2A:15-5.12(b). Section 5.12(b) provides that the trier of fact must consider these four factors in determining whether punitive damages should be awarded. Additional factors may also be considered, because the four statutory factors are not exclusive. The four statutory factors were derived from existing New Jersey case law, under which the jury was allowed, but not mandated, to consider them. In cases commenced prior to the effective date of the PDA, the jury should be instructed that it may consider these four factors. In cases subject to the PDA, the jury should be instructed that it must consider these four factors.
(6)Cavuoti, 161 N.J. at 128.
(7)Cavuoti, 161 N.J. at 122.
(8)Cavuoti, 161 N.J. at 129.
(9)Lehmann v. Toys 'R Us, 132 N.J. 587, 624 (1993) ("a greater threshold than mere negligence should be applied").
(10)As to whether general deterrence of others remains a permissible basis under the PDA on which to determine the amount of punitive damages, see footnote 3, supra.
(11)Fisher v. John Manville Corp., 103 N.J. 643, 675 (1987).
(12)See N.J.S.A. 2A:15-5.12(c) and note 4 above. With regard to the "financial condition" factor, see Herman v. Sunshine Chemical Specialties, Inc., 133 N.J. 329, 341 (1993), which states that consideration of the defendant's financial condition is relevant to ensure that the amount of punitive damages is sufficient to punish and deter, but not so great as to cause financial ruin. In cases commenced prior to the effective date of the PDA, the instructions should be modified as discussed in note 4 above.
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Model Civil Jury Charges
This charge supersedes charges 6.20 and 6.20A with respect to all claims for punitive damages asserted against employers in claims of discrimination or sexual harassment under the Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (NJLAD). This charge incorporates pertinent statutory provisions of the Punitive Damages Act (PDA), N.J.S.A. 2A:15-5.9 et seq., which are mandatory as to claims commenced on or after October 27, 1995.(2) Differences in the instructions to be given in cases subject to the PDA and pre-PDA cases are noted in the footnotes. Also note that the PDA contains the following procedural requirements applicable to NJLAD claims subject to the PDA:
1.Punitive damages must be specifically prayed for in the complaint. N.J.S.A. 2A:15-5.11.
2.Under the PDA, if requested by a defendant, the trial court must bifurcate trial of punitive damages issues from trial of underlying liability and compensatory damages, with the punitive damages issues tried at the second stage of the bifurcated trial. Evidence relevant only to punitive damages is inadmissible in the liability and compensatory damages phase. N.J.S.A. 2A:15-5.13. Trial judges should account for the added length of a bifurcated trial when discussing the potential length of trial during jury selection.
3.Punitive damages may be awarded only if compensatory damages have been awarded. A verdict of only nominal damages cannot support an award of punitive damages. N.J.S.A. 2A:15-5.13.
4.When there are two or more defendants, an award of punitive damages must be specific as to each defendant and each defendant is liable only for the award made against him or her. N.J.S.A. 2A:15-5.13(e).
5.Before entering judgment for punitive damages, the trial judge must determine that the award is reasonable and justified in light of the purposes of punitive damages. The judge may reduce or eliminate the award if the judge considers such action necessary to satisfy the requirements of the PDA. N.J.S.A. 2A:15-5.14(a).
You will now consider the issue of punitive damages. Specifically, you must first decide whether to award punitive damages against the [employer defendant], and if you decide to award such damages, you must then further decide on the amount to be awarded.
What are Punitive Damages?
The purpose of punitive damages is different from the purpose of compensatory damages. Compensatory damages are awarded to plaintiffs to compensate them for any actual injury or loss they have suffered as a result of a defendant's misconduct. In contrast, punitive damages are not to be awarded as a routine manner in every case; they can be awarded only in exceptional cases, to punish a defendant who has acted in an especially egregious or outrageous manner, and to discourage the defendant or others from engaging in similar misconduct in the future.(3)
The plaintiff is not entitled to punitive damages simply because you have found that the defendant has engaged in unlawful [discrimination/sexual harassment] or because you have awarded damages to compensate the plaintiff for [his/her] injury. You may award punitive damages to the plaintiff only if you find that plaintiff has proved certain additional matters that I will explain to you.
The Standard of Proof
You will recall that when I gave you instructions concerning the elements of plaintiff's [discrimination/sexual harassment] claims, I instructed you that the plaintiff had to prove [his/her] claims by a "preponderance of the evidence". Under that standard, the plaintiff was required to prove that the facts alleged by [him/her] were more likely than not true. To be entitled to punitive damages, however, the plaintiff must meet a higher standard of proof.
To recover punitive damages against [employer defendant], plaintiff must prove that [he/she] is entitled to them by "clear and convincing evidence." Clear and convincing evidence means evidence that leaves no serious or substantial doubt about the correctness of the conclusions drawn from that evidence. This standard does not require plaintiff to persuade you beyond a reasonable doubt, but it does require stronger proofs than are required under the preponderance of evidence standard.
Punitive Damages Against [Employer Defendant]
You must first decide whether an award of punitive damages is justified against [employer defendant] in this case. To award punitive damages against [employer defendant], you must find that both of the following factors are present:
First, you must find that the [discrimination/sexual harassment] was "especially egregious." If you do not find that the [discrimination/sexual harassment] was especially egregious, then you must not award punitive damages. In a moment, I will instruct you as to what constitutes "especially egregious" behavior.
Second, if you do find that the [discrimination/sexual harassment] was especially egregious, you must then also find that at least one of [employer defendant's] "upper management" employees actually participated in, or was willfully indifferent to, the wrongful conduct. You cannot award punitive damages against [employer defendant] unless there was some involvement by a member of its upper management.(4)
What Constitutes "Especially Egregious" Conduct?
"Especially egregious" conduct is conduct that was motivated either by actual malice, or that was done with a willful and wanton disregard of the rights of the plaintiff. "Actual malice" means that [individual discriminator/sexual harasser] engaged in intentional wrongdoing in the sense of an evil-minded act designed, intended and done specifically to injure the plaintiff. "Willful and wanton disregard of the rights of the plaintiff" means that [individual discriminator/sexual harasser] deliberately acted with knowledge of a high degree of probability of harm to the plaintiff, and reckless indifference to the consequences of that act.
In making your determination as to whether the [discriminatory/sexually harassing] conduct of [individual discriminator/sexual harasser] was especially egregious or outrageous, you must consider all of the evidence surrounding the wrongful conduct, including:
1.the likelihood that serious harm would arise from the [discrimination/sexual harassment];
2.[individual discriminator/sexual harasser's] awareness or reckless disregard of the likelihood that serious harm would arise;
3.[individual discriminator/sexual harasser's] conduct after learning that [his/her] initial conduct would likely cause harm; and
4.the duration of the wrongful conduct and any concealment of that conduct by [individual discriminator/sexual harasser].(5)
You may not award punitive damages based solely on a finding of negligence or even gross negligence by [name of individual discriminator/sexual harasser]. Nor may you award punitive damages solely because you have determined that [discrimination/sexual harassment] occurred. Rather, as I have explained, punitive damages are to be awarded only in those exceptional cases where the [discrimination/sexual harassment] was especially egregious or outrageous.
What is "Upper Management"?
The second factor you must find is that at least one of [employer defendant's] "upper management" employees was involved with the [discrimination/sexual harassment]. In a moment I will define the kind of involvement that you must find occurred. As an initial matter, though, you must decide whether certain of [employer defendant's] employees were part of its "upper management". Specifically, plaintiff contends that [names of alleged upper management employees] were members of [employer defendant's] "upper management" who had some involvement with the wrongdoing at issue.
To decide whether those employees of [employer defendant] were part of its upper management, you must consider the following. The purpose of the definition of “upper management” is to give employers the incentive not only to provide voluntary compliance programs, but also to insist on the effective enforcement of their programs. The employees who acted wrongfully must have had sufficient authority to make the imposition of punitive damages fair and reasonable.(6)
Clearly, upper management includes the corporation's board of directors and its highest-level executive officers.(7) In addition, upper management consists of those employees responsible to formulate the corporation’s anti-discrimination policies, provide compliance programs and insist on performance of such programs, and those employees to whom the corporation has delegated responsibility to execute its policies in the workplace, who set the atmosphere or control the day-to-day operations of the unit. This group includes heads of departments, regional managers, or compliance officers.
Not all managerial employees, however, constitute "upper-level" management. To decide which employees below the highest levels of management are included in "upper management" is a fact sensitive question that requires you to weigh consider all of the surrounding facts and circumstances.
For an employee on the second tier of management to be considered a member of "upper management," the employee should have either (1) broad supervisory powers over the involved employees, including the power to hire, fire, promote and discipline, or (2) the delegated responsibility to execute the employer's policies to ensure a safe, productive and discrimination-free workplace.(8)
After you have decided whether the employees identified by plaintiff were part of the upper management of [employer defendant], you must then consider whether any of those upper management employees actually participated in, or were willfully indifferent to, the [discrimination/sexual harassment] that occurred.
What Constitutes "Actual Participation"?
To find that upper management "actually participated" in wrongful conduct, you must find that upper management employees not only knew about the wrongful conduct, but also engaged in affirmative acts to accomplish that wrongful conduct. This factor would be satisfied, for example, if you find that [individual discriminator/sexual harasser] is a member of [employer defendant's] upper management, or if you find that a member of upper management affirmatively assisted or otherwise participated directly in [individual discriminator/sexual harasser's] wrongdoing.
What Constitutes "Willful Indifference"?
To find "willful indifference" to wrongful conduct on the part of upper management, you must find that upper management employees knew about the wrongful conduct, but chose to disregard or ignore it rather than stop it. In other words, you cannot award punitive damages against [employer defendant] simply because upper management employees may have been negligent in failing to learn of or reasonably respond to the allegations of [discrimination/sexual harassment](9); you must instead find that upper management employees actually knew about those allegations, and consciously chose to ignore them.
In summary, to award punitive damages against [employer defendant], you must find by clear and convincing evidence both that [name of individual discriminator/sexual harasser] engaged in especially egregious conduct, and that the upper management of [employer defendant] either actively participated in the wrongful conduct, or was willfully indifferent to it.
The Amount of Punitive Damages
If you find that plaintiff has proved that [employer defendant] has engaged in the type of wrongdoing that justifies awarding punitive damages, you must then decide the amount of punitive damages that should be awarded. The amount of punitive damages, if awarded, must be determined based on your sound judgment as to what is a fair and reasonable amount under all the circumstances. As I earlier instructed you, punitive damages are not to be awarded to compensate the plaintiff for injuries, but to punish the defendant and to deter the defendant and others from similar future wrongful conduct.(10) I cannot provide you with any mathematical formula to calculate the amount of punitive damages, but the amount of punitive damages, if any, that you award must bear some reasonable relationship to the actual injury inflicted and the cause of the injury.(11) You will have to use your sound discretion in deciding this issue.
In exercising your discretion, you must consider all of the relevant evidence surrounding the wrongful conduct, including the following factors:
1.the likelihood, at the relevant time, that serious harm would arise from the conduct;
2.[employer defendant's] awareness or reckless disregard of the likelihood that such serious harm would arise from the conduct;
3.the conduct of [employer defendant] upon learning that its initial conduct would likely cause harm;
4.the duration of the conduct or any concealment of it by [employer defendant];
5.the profitability, if any, of the misconduct to [employer defendant];
6.when the misconduct was terminated; and
7.[employer defendant's] financial condition and ability to pay the punitive damages award(12).
In addition, you may also take into consideration:
1.the nature of the wrongful conduct;
2.the extent of harm inflicted;
3.the intent of [employer defendant];
4.whether [employer defendant] had adequate policies, procedures, training or monitoring measures designed to prevent discrimination;
5.whether [employer defendant] took sufficient steps after learning of the wrongful conduct to investigate and address the wrongful conduct; and
6.any other mitigating or aggravating circumstances that you believe should reduce or increase the amount of the damages awarded.
To summarize, on the issue of punitive damages, you must decide whether punitive damages should be awarded in this case, and if so, you must then decide on the proper amount of such an award, based on the factors that I described to you.
(1)This charge covers claims for punitive damages only as against employers. The law is currently unsettled as to whether a co-worker or supervisor can be held personally liable under NJLAD. Therefore, this charge does not address such claims.
(2)Other than with respect to its damages cap provisions, the PDA generally applies to LAD claims.
(3)Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48-49 (1984); DeGiovanni v. Pessel, 55 N.J. 188, 190-91 (1970). Note that for cases filed on or after October 27, 1995, it appears that the PDA has eliminated general deterrence of others as a basis for imposing punitive damages. That basis, recognized under the common law, is omitted from the PDA's definition of "punitive damages," N.J.S.A. 2A:15-5.10, and is not recited as a basis to be considered by the Court in reviewing punitive damages awards for excessiveness prior to entry of judgment, N.J.S.A. 2A:15-5.14. Until this issue is addressed at the appellate level, trial judges will need to decide as a matter of first impression whether it is permissible under the PDA to charge the jury on deterrence of others, and permit counsel to argue that theory of punitive damages to the jury.
(4)Cavuoti v. New Jersey Transit Corp., 161 N.J. 107, 113 (1999).
(5)See N.J.S.A. 2A:15-5.12(b). Section 5.12(b) provides that the trier of fact must consider these four factors in determining whether punitive damages should be awarded. Additional factors may also be considered, because the four statutory factors are not exclusive. The four statutory factors were derived from existing New Jersey case law, under which the jury was allowed, but not mandated, to consider them. In cases commenced prior to the effective date of the PDA, the jury should be instructed that it may consider these four factors. In cases subject to the PDA, the jury should be instructed that it must consider these four factors.
(6)Cavuoti, 161 N.J. at 128.
(7)Cavuoti, 161 N.J. at 122.
(8)Cavuoti, 161 N.J. at 129.
(9)Lehmann v. Toys 'R Us, 132 N.J. 587, 624 (1993) ("a greater threshold than mere negligence should be applied").
(10)As to whether general deterrence of others remains a permissible basis under the PDA on which to determine the amount of punitive damages, see footnote 3, supra.
(11)Fisher v. John Manville Corp., 103 N.J. 643, 675 (1987).
(12)See N.J.S.A. 2A:15-5.12(c) and note 4 above. With regard to the "financial condition" factor, see Herman v. Sunshine Chemical Specialties, Inc., 133 N.J. 329, 341 (1993), which states that consideration of the defendant's financial condition is relevant to ensure that the amount of punitive damages is sufficient to punish and deter, but not so great as to cause financial ruin. In cases commenced prior to the effective date of the PDA, the instructions should be modified as discussed in note 4 above.
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Model Civil Jury Charges
8.60 DAMAGES-PUNITIVE (for cases other than products liability actions, filed on or after October 27, 1995)
NOTE TO THE JUDGE
This charge incorporates the statutory changes in Public Law 1995, ch. 142, N.J.S.A. 2A:15-5.9 et seq., the “Punitive Damages Act,” and should only be used for causes of action filed on or after October 27, 1995.(2) The Punitive Damages Act includes the following procedural requirements:
(a)Punitive damages must be specifically prayed for in the complaint.
(b)Actions involving punitive damages shall, if requested by any defendant, be conducted in a bifurcated trial. However, in light of Herman v. Sunshine Chemical Specialties, 133 N.J. 329, 342 (1993), the trial court should conduct a bifurcated trial on punitive damages even if the defendant has not made such a request. The statute also requires a bifurcated trial with the liability and damages phases of a punitive damages action tried separately at the second stage of the bifurcated trial. Evidence relevant only to punitive damages shall not be admissible in the liability and compensatory damages phase. This differs from the manner in which punitive damages actions arising before the effective date of the Punitive Damages Act are tried. (See Model Jury Charge 6.20, NOTES).
(c)Punitive damages may be awarded only if compensatory damages have been awarded. Nominal damages can not support an award of punitive damages.
(d)When there are two or more defendants, an award of punitive damages must be specific as to each defendant and each defendant is liable only for the award made against him or her.
(e)There is a cap on punitive damages -- five times the amount of compensatory damages or $350,000, whichever is greater. The jury shall not be informed that there is a cap on punitive damages.
(f)Before entering judgment for punitive damages, the trial judge must ascertain whether the award is reasonable and justified in light of the purposes of punitive damages. The judge may reduce or eliminate the award if the judge considers that such action is necessary to satisfy the requirements of the statute. N.J.S.A. 2A:15-5.14(a).
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 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 the wrongdoer and others from similar wrongful conduct in the future.(3) 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 that the plaintiff has proved, by clear and convincing evidence, that the harm suffered by the plaintiff was the result of defendant’s actions or omissions(4) and that either (1) the defendant’s conduct was malicious or (2) the defendant acted in wanton and willful disregard of another’s rights. 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 or a high degree of probability of harm to another who foreseeably might be harmed by defendant’s acts or omissions and reckless indifference to the consequence of the acts or omissions.
Remember that I instructed you that the plaintiff must prove certain factors by clear and convincing evidence to be awarded punitive damages. Clear and convincing evidence means that standard of evidence which leaves no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. This standard does not mean that the plaintiff must persuade you beyond a reasonable doubt, but it does require more than a preponderance of evidence to support an award of punitive damages.
In determining whether punitive damages are to be awarded, you should consider all relevant evidence, including but not limited to the following: (1) you should consider the likelihood, at the relevant time, that serious harm would arise from the defendant’s conduct; (2) consider the defendant’s awareness or reckless disregard of the likelihood that such serious harm would arise from the defendant’s conduct; (3) consider the conduct of the defendant upon learning that its initial conduct would likely cause harm; and (4) consider the duration of the conduct or any concealment of that conduct by the defendant.(5)
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.
In determining that amount of punitive damages you must consider all relevant evidence, including but not limited to, evidence of the four factors that I previously mentioned to you in connection with your determination as to whether punitive damages should be awarded at all. As you may recall, these factors are (1) the likelihood, at the relevant time, that serious harm would arise from the defendant’s conduct; (2) the defendant’s awareness or reckless disregard of the likelihood that such serious harm would arise from the defendant’s conduct; (3) the conduct of the defendant upon learning that its initial conduct would likely cause harm; and (4) the duration of the conduct of any concealment of it by the defendant. In addition to these factors, you should also consider the profitability of the misconduct to the defendant; consider when the misconduct was terminated; and consider the financial condition of the defendant or the defendant’s ability to pay the punitive damages award.(6)
Finally you should make sure that there is a reasonable relationship between the actual injury and the punitive damages.(7)
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 decide to award punitive damages, what the proper amount should be.
(1)The Committee believes that the trial judge has discretion to decide whether or not to explain at the outset of a trial that there is a request for punitive damages. In any event, the trial judge should take into account the possible length of the bifurcated procedures in a punitive damages action when discussing the trial days it will take to complete the case.
(2)On the effective date of the Punitive Damages Act, see the NOTES to Model Civil Jury Charges 6.20 Damages--Punitive.
(3)It appears that the Punitive Damages Act (PDA) has eliminated general deterrence of others as a basis for imposing punitive damages. That basis, recognized under the common law, see, e.g., Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48-49 (1984), is omitted from the PDA's definition of "punitive damages," N.J.S.A. 2A:15-5.10, and is not recited as a basis to be considered by the Court in reviewing punitive damage awards for excessiveness prior to entry of judgment, N.J.S.A. 2A:15-5.14. Until this issue is addressed at the appellate level, trial judges will need to decide whether it is permissible under the PDA to charge the jury on deterrence of others and permit counsel to argue that theory of punitive damages to the jury.
(4)N.J.S.A. 2A:15-5.12(a).
(5)See N.J.S.A. 2A:15-5.12(b). Sec. 5.12(b) provides that the trier of fact must consider these four factors in determining whether punitive damages should be awarded. However, the trier of fact may consider additional factors since the four statutory factors are not intended to be exclusive.
(6)See N.J.S.A. 2A:15-5.12(c). Sec. 5.12(c) provides that the trier of act must consider these factors in determining whether punitive damages should be awarded. However, the trier of fact may consider additional factors, if appropriate, since the statutory factors are not intended to be exclusive. See, e.g., the factors in Model Charge 6.20 (i.e., nature of the wrongdoing; the extent of the harm inflicted by the wrongdoing, the intent of the d
This charge incorporates the statutory changes in Public Law 1995, ch. 142, N.J.S.A. 2A:15-5.9 et seq., the “Punitive Damages Act,” and should only be used for causes of action filed on or after October 27, 1995.(2) The Punitive Damages Act includes the following procedural requirements:
(a)Punitive damages must be specifically prayed for in the complaint.
(b)Actions involving punitive damages shall, if requested by any defendant, be conducted in a bifurcated trial. However, in light of Herman v. Sunshine Chemical Specialties, 133 N.J. 329, 342 (1993), the trial court should conduct a bifurcated trial on punitive damages even if the defendant has not made such a request. The statute also requires a bifurcated trial with the liability and damages phases of a punitive damages action tried separately at the second stage of the bifurcated trial. Evidence relevant only to punitive damages shall not be admissible in the liability and compensatory damages phase. This differs from the manner in which punitive damages actions arising before the effective date of the Punitive Damages Act are tried. (See Model Jury Charge 6.20, NOTES).
(c)Punitive damages may be awarded only if compensatory damages have been awarded. Nominal damages can not support an award of punitive damages.
(d)When there are two or more defendants, an award of punitive damages must be specific as to each defendant and each defendant is liable only for the award made against him or her.
(e)There is a cap on punitive damages -- five times the amount of compensatory damages or $350,000, whichever is greater. The jury shall not be informed that there is a cap on punitive damages.
(f)Before entering judgment for punitive damages, the trial judge must ascertain whether the award is reasonable and justified in light of the purposes of punitive damages. The judge may reduce or eliminate the award if the judge considers that such action is necessary to satisfy the requirements of the statute. N.J.S.A. 2A:15-5.14(a).
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 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 the wrongdoer and others from similar wrongful conduct in the future.(3) 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 that the plaintiff has proved, by clear and convincing evidence, that the harm suffered by the plaintiff was the result of defendant’s actions or omissions(4) and that either (1) the defendant’s conduct was malicious or (2) the defendant acted in wanton and willful disregard of another’s rights. 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 or a high degree of probability of harm to another who foreseeably might be harmed by defendant’s acts or omissions and reckless indifference to the consequence of the acts or omissions.
Remember that I instructed you that the plaintiff must prove certain factors by clear and convincing evidence to be awarded punitive damages. Clear and convincing evidence means that standard of evidence which leaves no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. This standard does not mean that the plaintiff must persuade you beyond a reasonable doubt, but it does require more than a preponderance of evidence to support an award of punitive damages.
In determining whether punitive damages are to be awarded, you should consider all relevant evidence, including but not limited to the following: (1) you should consider the likelihood, at the relevant time, that serious harm would arise from the defendant’s conduct; (2) consider the defendant’s awareness or reckless disregard of the likelihood that such serious harm would arise from the defendant’s conduct; (3) consider the conduct of the defendant upon learning that its initial conduct would likely cause harm; and (4) consider the duration of the conduct or any concealment of that conduct by the defendant.(5)
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.
In determining that amount of punitive damages you must consider all relevant evidence, including but not limited to, evidence of the four factors that I previously mentioned to you in connection with your determination as to whether punitive damages should be awarded at all. As you may recall, these factors are (1) the likelihood, at the relevant time, that serious harm would arise from the defendant’s conduct; (2) the defendant’s awareness or reckless disregard of the likelihood that such serious harm would arise from the defendant’s conduct; (3) the conduct of the defendant upon learning that its initial conduct would likely cause harm; and (4) the duration of the conduct of any concealment of it by the defendant. In addition to these factors, you should also consider the profitability of the misconduct to the defendant; consider when the misconduct was terminated; and consider the financial condition of the defendant or the defendant’s ability to pay the punitive damages award.(6)
Finally you should make sure that there is a reasonable relationship between the actual injury and the punitive damages.(7)
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 decide to award punitive damages, what the proper amount should be.
(1)The Committee believes that the trial judge has discretion to decide whether or not to explain at the outset of a trial that there is a request for punitive damages. In any event, the trial judge should take into account the possible length of the bifurcated procedures in a punitive damages action when discussing the trial days it will take to complete the case.
(2)On the effective date of the Punitive Damages Act, see the NOTES to Model Civil Jury Charges 6.20 Damages--Punitive.
(3)It appears that the Punitive Damages Act (PDA) has eliminated general deterrence of others as a basis for imposing punitive damages. That basis, recognized under the common law, see, e.g., Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48-49 (1984), is omitted from the PDA's definition of "punitive damages," N.J.S.A. 2A:15-5.10, and is not recited as a basis to be considered by the Court in reviewing punitive damage awards for excessiveness prior to entry of judgment, N.J.S.A. 2A:15-5.14. Until this issue is addressed at the appellate level, trial judges will need to decide whether it is permissible under the PDA to charge the jury on deterrence of others and permit counsel to argue that theory of punitive damages to the jury.
(4)N.J.S.A. 2A:15-5.12(a).
(5)See N.J.S.A. 2A:15-5.12(b). Sec. 5.12(b) provides that the trier of fact must consider these four factors in determining whether punitive damages should be awarded. However, the trier of fact may consider additional factors since the four statutory factors are not intended to be exclusive.
(6)See N.J.S.A. 2A:15-5.12(c). Sec. 5.12(c) provides that the trier of act must consider these factors in determining whether punitive damages should be awarded. However, the trier of fact may consider additional factors, if appropriate, since the statutory factors are not intended to be exclusive. See, e.g., the factors in Model Charge 6.20 (i.e., nature of the wrongdoing; the extent of the harm inflicted by the wrongdoing, the intent of the d
8.60 DAMAGES -- PUNITIVE (for cases other than products liability actions, filed on or before October 26, 1995)
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.
--------------------------------------------------------------------------------
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
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.
--------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------
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).
--------------------------------------------------------------------------------
Footnote: 3 Jackson v. Consolidated Rail Corp., 223 N.J. Super. 467, 483 (App. Div. 1988).
--------------------------------------------------------------------------------
Footnote: 4 Id.
--------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------
Footnote: 7 Id. at 456.
--------------------------------------------------------------------------------
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
8.48 TAX CONSEQUENCES OF PERSONAL INJURY AWARD
A personal injury damage award is not subject to federal or state income tax. Therefore, if you decide to award the plaintiff damages for his/her personal injury, you should not add or subtract any tax in fixing the amount of the award.
NOTES:
Upon request, the trial court must give this charge in a personal injury case. Domeracki v. Humble Oil & Refining Co. 443 F.2d. 1245, 1251 (3rd Cir. 1971), cert. den. 92 S. Ct. 212 (1971); Bussell v. DeWalt Products Corp., 105 N.J. 223 (1987); Tenore v. Nu Car Carriers, 67 N.J. 466, 495 (1975).
It is unclear to the Committee whether economic damage awards and/or emotional distress damage awards under the New Jersey law Against Discrimination are subject to either Federal and/or New Jersey State income taxation. See generally, 26 U.S.C. § 104(a); IRS Rev. Ruling 96-56; United States v. Burke, 504 U.S. 229, 112 S. Ct. 1867 (1992); and Commissioner v. Schleier, 515 U.S. 323, 115 S. Ct. 2159 (1995), regarding federal taxation of awards under federal discrimination law. Thus, it is unclear to the Committee whether the statement in the Charge that an award for lost earnings (Charge 6.11D) and an award for personal injury (Charge 6.19) is “not subject to federal or state income tax” is accurate with respect to awards under the New Jersey Law Against Discrimination. In Wachstein v. Slocum, 265 N.J. Super. 6, 24 (App. Div. 1993) certif. denied, 134 N.J. 563 (1993), the Appellate Division noted the “present uncertainty of the law in this area” and observed that “we believe the wisest course would be for the trial court to omit any reference to taxability in its instructions to the jury.” See also, Abrams v. Lightolier, Inc., 50 F. 3d 1204, 1220 (3rd Cir. 1995) (citing Wachstein, the Court states that “we are confident that the New Jersey courts would not require that the award be calculated on net income”). The Committee believes that the nature and scope of instructions, if any, on the tax consequences of these awards should await further guidance from the appellate courts.
NOTES:
Upon request, the trial court must give this charge in a personal injury case. Domeracki v. Humble Oil & Refining Co. 443 F.2d. 1245, 1251 (3rd Cir. 1971), cert. den. 92 S. Ct. 212 (1971); Bussell v. DeWalt Products Corp., 105 N.J. 223 (1987); Tenore v. Nu Car Carriers, 67 N.J. 466, 495 (1975).
It is unclear to the Committee whether economic damage awards and/or emotional distress damage awards under the New Jersey law Against Discrimination are subject to either Federal and/or New Jersey State income taxation. See generally, 26 U.S.C. § 104(a); IRS Rev. Ruling 96-56; United States v. Burke, 504 U.S. 229, 112 S. Ct. 1867 (1992); and Commissioner v. Schleier, 515 U.S. 323, 115 S. Ct. 2159 (1995), regarding federal taxation of awards under federal discrimination law. Thus, it is unclear to the Committee whether the statement in the Charge that an award for lost earnings (Charge 6.11D) and an award for personal injury (Charge 6.19) is “not subject to federal or state income tax” is accurate with respect to awards under the New Jersey Law Against Discrimination. In Wachstein v. Slocum, 265 N.J. Super. 6, 24 (App. Div. 1993) certif. denied, 134 N.J. 563 (1993), the Appellate Division noted the “present uncertainty of the law in this area” and observed that “we believe the wisest course would be for the trial court to omit any reference to taxability in its instructions to the jury.” See also, Abrams v. Lightolier, Inc., 50 F. 3d 1204, 1220 (3rd Cir. 1995) (citing Wachstein, the Court states that “we are confident that the New Jersey courts would not require that the award be calculated on net income”). The Committee believes that the nature and scope of instructions, if any, on the tax consequences of these awards should await further guidance from the appellate courts.
8.45 DAMAGES - BREACH OF CONTRACT
A. General
A plaintiff who is awarded a verdict for breach of contract is entitled to compensatory damages for such losses as may fairly be considered to have arisen naturally from the defendant's breach of contract. Alternatively, plaintiff may be entitled to such damages as may reasonably be supposed to have been contemplated by both parties, at the time they made the contract, as the probable result of the breach of such contract.
Compensatory damages for breach of contract are designed under the law to place the injured party in as good a monetary position as he/she would have enjoyed if the contract had been performed as promised.
Cases:
525 Main Street Corp. v. Eagle Roofing Co., 34 N.J. 251 (1961); Marcus & Co, Inc. v. K.L.G. Baking Co., Inc., 122 N.J.L. 202 (E. & A. 1939).
Notes:
There are specific subsidiary rules of damages formulated for various situations which are subordinate to the broad rule of damages expressed above. These subsidiary rules of damages as well as the broad rule are guides requiring considered judicial discretion as to applicability in a particular situation. See 525 Main Street Corp. V. Eagle Roofing Co., 34 N.J. 251 (1961).
As to building contracts, the disappointed owner may recover the costs of completing the promised performance or making necessary repairs, unless under the facts it is impossible to do so or the costs of completion or repairs would constitute unreasonable economic waste, in which event the measure of damages is the difference in value formula. Restatement, Contracts, Sec., 346 (1)(a). In the case of Price v. B. Construction Co., 77 N.J. Super. 485 (App. Div. 1962) involving a clause in a contract warranting that the cellar in a new home being sold would be free from water for a period of one year from date of closing title, the court concluded that the parties bargained (1) not for a one-year result, but (2) for work of greater expectable life but supported by a guarantee for a portion of that period; and that the proper measure of damages was the "entirety of such sums of money as were required to be expended by (plaintiffs) in correcting the defect complained of."
Real Estate:
In cases involving a breach of contract for purchase of real estate there are various elements of damages. The charge must be molded to the facts of each case. See Donovan v. Bachstadt, 91 N.J. 434 (1982).
B. Loss Of Profits
If you should determine that the plaintiff is entitled to a verdict, the law provides that the plaintiff is to be reasonably compensated for any damage sustained by him/her which was proximately caused by the defendant's conduct in breach of the contract. In arriving at the amount of the award, you should include all damages suffered by the plaintiff because of lost profits within the reasonable contemplation of the parties at the time of the making of the contract; that is to say, profits which the plaintiff would have made but for the breach of the contract by the defendant.
If you find that the plaintiff has in fact suffered loss of profits, as a result of the defendant's breach of contract, then the fact that the precise amount of plaintiff's damages may be difficult to ascertain should not affect the plaintiff's recovery. The plaintiff is to be awarded damages for such loss of profits as is capable of determination with reasonable certainty.
In arriving at the amount of any loss of profits sustained by the plaintiff, you may consider any past earnings of the plaintiff in his/her business, as well as any other evidence bearing upon the issue.
Cases:
Van Dusen Aircraft Supplies, Inc. v. Terminal Const. Corp., 3 N.J. 321 (1949); Feldman v. Jacob Brasfman & Son, Inc., 111 N.J.L. 37 (E. & A. 1933); Interchemical Corp. v. Uncas Printing & Fin. Co., Inc., 39 N.J. Super. 318, 329 (App. Div. 1956) a defendant whose wrongful act creates the difficulty may not complain that the amount of damages cannot be accurately fixed; Casler v. Weber, 27 N.J. Super. 396 (App. Div. 1953); De Ponte v. Mutual Contracting Co., 18 N.J. Super. 142, 147, 148 (App. Div. 1952); Restatement, Contracts, Sec. 331 ("Where the evidence does not afford a sufficient basis for a direct estimation of profits, but the breach is one that prevents the use and operation of property from which profits would have been made, damages may be measured
by the rental value of the property or by interest on the value of the property.")
C. Mitigation Of Damages
If you find that the defendant [breached the contractSee footnote 1] and that damages resulted, you must also determine if the plaintiff has made reasonable efforts to lessen or reduce his/her damages. The law requires that party who suffers injury or damage because of a [breach of contract*] to make a reasonable effort to avoid or minimize the loss by taking advantage of such reasonable business or employment opportunities he/she may have under the circumstances. A party cannot recover damages for a loss that he/she could have avoided by reasonable efforts.
If you find that the plaintiff could have avoided or minimized his/her loss by taking advantage of a business or employment opportunity that was reasonably available under the circumstances, you must subtract from plaintiff's award the damages which could have been avoided. For example, an employee who claims to have lost earnings because he/she was wrongfully fired is free to work elsewhere. Any subsequent earnings that employee could
reasonably have earned if he/she had taken advantage of an available employment opportunity must be subtracted from the damages he/she claims to have suffered as a result of his/her wrongful termination.
The burden of proof is on the defendant to show that the plaintiff could reasonably have avoided or minimized his/her damages. In the employment example, the defendant employer has the burden of showing the earnings the employee could reasonably have realized had the employee taken advantage of available substitute employment. If the defendant satisfied that burden, then you must reduce the amount of damages the employee would otherwise receive by the amount of the loss that the employee could reasonably have avoided.
Authority
Frank Stamato & Co. v. Borough of Lodi, 4 N.J. 14, 21 (1950); Sandler v. Lawn-Mat Chemical & Equipment Corp., 141 N.J. Super. 437, 455 (App. Div.), certif. denied, 71 N.J. 503 (1976); Harvard v. Bushberg Bros., 137 N.J. Super. 537, 542 (app. Div. 1975); Henry Clay v. Jersey City, 74 N.J. Super. 490 (Ch. Div. 1962), aff'd, 84 N.J. Super. 9 (App. Div. 1965). See also Restatement (Second) of Contracts §350, comments a, b and c (1979).
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Footnote: 1 If the case is an employment case and there is no breach of contract involved, the words "breach of contract" and its variations should be replaced with "wrongful termination" as defined by this charge, or the appropriate variation.
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Model Civil Jury Charges
A plaintiff who is awarded a verdict for breach of contract is entitled to compensatory damages for such losses as may fairly be considered to have arisen naturally from the defendant's breach of contract. Alternatively, plaintiff may be entitled to such damages as may reasonably be supposed to have been contemplated by both parties, at the time they made the contract, as the probable result of the breach of such contract.
Compensatory damages for breach of contract are designed under the law to place the injured party in as good a monetary position as he/she would have enjoyed if the contract had been performed as promised.
Cases:
525 Main Street Corp. v. Eagle Roofing Co., 34 N.J. 251 (1961); Marcus & Co, Inc. v. K.L.G. Baking Co., Inc., 122 N.J.L. 202 (E. & A. 1939).
Notes:
There are specific subsidiary rules of damages formulated for various situations which are subordinate to the broad rule of damages expressed above. These subsidiary rules of damages as well as the broad rule are guides requiring considered judicial discretion as to applicability in a particular situation. See 525 Main Street Corp. V. Eagle Roofing Co., 34 N.J. 251 (1961).
As to building contracts, the disappointed owner may recover the costs of completing the promised performance or making necessary repairs, unless under the facts it is impossible to do so or the costs of completion or repairs would constitute unreasonable economic waste, in which event the measure of damages is the difference in value formula. Restatement, Contracts, Sec., 346 (1)(a). In the case of Price v. B. Construction Co., 77 N.J. Super. 485 (App. Div. 1962) involving a clause in a contract warranting that the cellar in a new home being sold would be free from water for a period of one year from date of closing title, the court concluded that the parties bargained (1) not for a one-year result, but (2) for work of greater expectable life but supported by a guarantee for a portion of that period; and that the proper measure of damages was the "entirety of such sums of money as were required to be expended by (plaintiffs) in correcting the defect complained of."
Real Estate:
In cases involving a breach of contract for purchase of real estate there are various elements of damages. The charge must be molded to the facts of each case. See Donovan v. Bachstadt, 91 N.J. 434 (1982).
B. Loss Of Profits
If you should determine that the plaintiff is entitled to a verdict, the law provides that the plaintiff is to be reasonably compensated for any damage sustained by him/her which was proximately caused by the defendant's conduct in breach of the contract. In arriving at the amount of the award, you should include all damages suffered by the plaintiff because of lost profits within the reasonable contemplation of the parties at the time of the making of the contract; that is to say, profits which the plaintiff would have made but for the breach of the contract by the defendant.
If you find that the plaintiff has in fact suffered loss of profits, as a result of the defendant's breach of contract, then the fact that the precise amount of plaintiff's damages may be difficult to ascertain should not affect the plaintiff's recovery. The plaintiff is to be awarded damages for such loss of profits as is capable of determination with reasonable certainty.
In arriving at the amount of any loss of profits sustained by the plaintiff, you may consider any past earnings of the plaintiff in his/her business, as well as any other evidence bearing upon the issue.
Cases:
Van Dusen Aircraft Supplies, Inc. v. Terminal Const. Corp., 3 N.J. 321 (1949); Feldman v. Jacob Brasfman & Son, Inc., 111 N.J.L. 37 (E. & A. 1933); Interchemical Corp. v. Uncas Printing & Fin. Co., Inc., 39 N.J. Super. 318, 329 (App. Div. 1956) a defendant whose wrongful act creates the difficulty may not complain that the amount of damages cannot be accurately fixed; Casler v. Weber, 27 N.J. Super. 396 (App. Div. 1953); De Ponte v. Mutual Contracting Co., 18 N.J. Super. 142, 147, 148 (App. Div. 1952); Restatement, Contracts, Sec. 331 ("Where the evidence does not afford a sufficient basis for a direct estimation of profits, but the breach is one that prevents the use and operation of property from which profits would have been made, damages may be measured
by the rental value of the property or by interest on the value of the property.")
C. Mitigation Of Damages
If you find that the defendant [breached the contractSee footnote 1] and that damages resulted, you must also determine if the plaintiff has made reasonable efforts to lessen or reduce his/her damages. The law requires that party who suffers injury or damage because of a [breach of contract*] to make a reasonable effort to avoid or minimize the loss by taking advantage of such reasonable business or employment opportunities he/she may have under the circumstances. A party cannot recover damages for a loss that he/she could have avoided by reasonable efforts.
If you find that the plaintiff could have avoided or minimized his/her loss by taking advantage of a business or employment opportunity that was reasonably available under the circumstances, you must subtract from plaintiff's award the damages which could have been avoided. For example, an employee who claims to have lost earnings because he/she was wrongfully fired is free to work elsewhere. Any subsequent earnings that employee could
reasonably have earned if he/she had taken advantage of an available employment opportunity must be subtracted from the damages he/she claims to have suffered as a result of his/her wrongful termination.
The burden of proof is on the defendant to show that the plaintiff could reasonably have avoided or minimized his/her damages. In the employment example, the defendant employer has the burden of showing the earnings the employee could reasonably have realized had the employee taken advantage of available substitute employment. If the defendant satisfied that burden, then you must reduce the amount of damages the employee would otherwise receive by the amount of the loss that the employee could reasonably have avoided.
Authority
Frank Stamato & Co. v. Borough of Lodi, 4 N.J. 14, 21 (1950); Sandler v. Lawn-Mat Chemical & Equipment Corp., 141 N.J. Super. 437, 455 (App. Div.), certif. denied, 71 N.J. 503 (1976); Harvard v. Bushberg Bros., 137 N.J. Super. 537, 542 (app. Div. 1975); Henry Clay v. Jersey City, 74 N.J. Super. 490 (Ch. Div. 1962), aff'd, 84 N.J. Super. 9 (App. Div. 1965). See also Restatement (Second) of Contracts §350, comments a, b and c (1979).
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Footnote: 1 If the case is an employment case and there is no breach of contract involved, the words "breach of contract" and its variations should be replaced with "wrongful termination" as defined by this charge, or the appropriate variation.
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Model Civil Jury Charges
8.44 DAMAGES - PERSONAL PROPERTY
A. General
If you ultimately find the plaintiff's (personalty involved) was damaged as a result of the defendant's negligence, plaintiff would be entitled to your verdict. Plaintiff would be entitled to money damages from the defendant for the loss suffered.
The measure of damages for such loss is the difference between the market value of the (personalty involved) before and the market value after the damage occurred. If the (personalty involved) has no market value in its damaged condition, the measure of damages is the difference between the market value of the (personalty involved) before the damage occurred and its salvage value in its damaged condition. If the (personalty involved) is not substantially damaged and it can be repaired at a cost less than the difference between its market value before and its market value after the damage occurred the plaintiff's damages would be limited to the cost of the repairs.
Cases:
Jones v. Lahn, 1 N.J. 358, 362 (1949); Douches v. Royal, 1 N.J. Super. 45, 47 (App. Div. 1948); Associated Metals & Minerals Corp. v. Dixon Chemical &
Research, Inc., 69 N.J. Super. 305, 314 (Ch. Div. 1961); Hintz v. Roberts, 98 N.J.L. 768, 770 (E. & A. 1923).
Limitation:
(1) The cost of repairs is evidential on the issue of the difference in value of goods before and after injury, but the cost of such repairs must neither exceed the loss in market value due to the damage nor the automobile's market value immediately before the damage. Jones v. Lahn, 1 N.J. 358, 362 (1949) damage to tractor-trailer; Bransley v. Goodman, 40 N.J. Super. 472, 476 (App. Div. 1956) damage to furniture; Nixon v. Lawhon, 32 N.J. Super. 351, 354 (App. Div. 1954) damage to automobile - cost of car, furnishings and repairs are elements of value; Douches v. Royal, 1 N.J. Super. 45, 47 (App. Div. 1948) damage to automobile.
(2) Where the automobile was damaged and then sold by plaintiff without any repairs having been made thereon, the measure of damages is the difference between the value of the automobile before it was damaged and the price which was received for it from the purchase (assuming the sale price is not less than the automobile's worth or value in its damaged condition). Van Sciver v. Public Service Railway Co., 96 N.J.L. 13 (Sup. Ct. 1921).
B. Evidence As To Value
In determining the amount of money, if any, to be awarded to plaintiff (owner) for the damage to his/her (personalty involved), you may consider, but are not bound by, the testimony of the plaintiff (owner) as to his/her opinion of the value of the property before and after it was damaged.
Cases:
Rodgers v. Reid Oldsmobile, Inc., 58 N.J. Super. 375, 385 (App. Div. 1959); Nixon v. Lawhon, 32 N.J. Super. 351, 356 (App. Div. 1954).
Limitation:
The owner of personal property may be permitted to testify as to its value before and after damage where such person property is "of a common class or in general daily use," in the court's discretion, but not where the owner has not the slightest knowledge of such value. Rodgers v. Reid Oldsmobile, Inc., and Nixon v. Lawhon, supra.
Notes:
These rules for measuring damages are subordinate to the ultimate aim of making good the injury done or loss suffered. "The answer rests in good-sense rather than in a mechanical application of a single formula." N.J. Power and Light Co. v. Mabee, 41 N.J. 439, 441 (1964).
See "Damages," McCormick (West Pub. Co. 1969) p. 470 et seq., for full discussion of general subject of damages for personal property losses.
C. Incidental Damages As A Result of Motor Vehicle Damages
A plaintiff who is entitled to a verdict for property damage to a motor vehicle is also entitled to recover for necessary and reasonable out-of-pocket expenses for towing and storage of the vehicle and rental cost of a substitute vehicle whether the property damage to plaintiff's car is partial or total.
As to any of the out-of-pocket expenses, the determination as to necessity for same and the reasonableness of both the cost thereof and the period of time required is for you, the jury, to determine in the light of all the circumstances in which plaintiff found himself/herself following the accident.
Cases:
Hintz v. Roberts, 98 N.J.L. 768, 771 (E. & A. 1923); Bartlett v. Garrett, 130 N.J. Super. 193 (Co. Dist. Ct. 1974).
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Model Civil Jury Charges
If you ultimately find the plaintiff's (personalty involved) was damaged as a result of the defendant's negligence, plaintiff would be entitled to your verdict. Plaintiff would be entitled to money damages from the defendant for the loss suffered.
The measure of damages for such loss is the difference between the market value of the (personalty involved) before and the market value after the damage occurred. If the (personalty involved) has no market value in its damaged condition, the measure of damages is the difference between the market value of the (personalty involved) before the damage occurred and its salvage value in its damaged condition. If the (personalty involved) is not substantially damaged and it can be repaired at a cost less than the difference between its market value before and its market value after the damage occurred the plaintiff's damages would be limited to the cost of the repairs.
Cases:
Jones v. Lahn, 1 N.J. 358, 362 (1949); Douches v. Royal, 1 N.J. Super. 45, 47 (App. Div. 1948); Associated Metals & Minerals Corp. v. Dixon Chemical &
Research, Inc., 69 N.J. Super. 305, 314 (Ch. Div. 1961); Hintz v. Roberts, 98 N.J.L. 768, 770 (E. & A. 1923).
Limitation:
(1) The cost of repairs is evidential on the issue of the difference in value of goods before and after injury, but the cost of such repairs must neither exceed the loss in market value due to the damage nor the automobile's market value immediately before the damage. Jones v. Lahn, 1 N.J. 358, 362 (1949) damage to tractor-trailer; Bransley v. Goodman, 40 N.J. Super. 472, 476 (App. Div. 1956) damage to furniture; Nixon v. Lawhon, 32 N.J. Super. 351, 354 (App. Div. 1954) damage to automobile - cost of car, furnishings and repairs are elements of value; Douches v. Royal, 1 N.J. Super. 45, 47 (App. Div. 1948) damage to automobile.
(2) Where the automobile was damaged and then sold by plaintiff without any repairs having been made thereon, the measure of damages is the difference between the value of the automobile before it was damaged and the price which was received for it from the purchase (assuming the sale price is not less than the automobile's worth or value in its damaged condition). Van Sciver v. Public Service Railway Co., 96 N.J.L. 13 (Sup. Ct. 1921).
B. Evidence As To Value
In determining the amount of money, if any, to be awarded to plaintiff (owner) for the damage to his/her (personalty involved), you may consider, but are not bound by, the testimony of the plaintiff (owner) as to his/her opinion of the value of the property before and after it was damaged.
Cases:
Rodgers v. Reid Oldsmobile, Inc., 58 N.J. Super. 375, 385 (App. Div. 1959); Nixon v. Lawhon, 32 N.J. Super. 351, 356 (App. Div. 1954).
Limitation:
The owner of personal property may be permitted to testify as to its value before and after damage where such person property is "of a common class or in general daily use," in the court's discretion, but not where the owner has not the slightest knowledge of such value. Rodgers v. Reid Oldsmobile, Inc., and Nixon v. Lawhon, supra.
Notes:
These rules for measuring damages are subordinate to the ultimate aim of making good the injury done or loss suffered. "The answer rests in good-sense rather than in a mechanical application of a single formula." N.J. Power and Light Co. v. Mabee, 41 N.J. 439, 441 (1964).
See "Damages," McCormick (West Pub. Co. 1969) p. 470 et seq., for full discussion of general subject of damages for personal property losses.
C. Incidental Damages As A Result of Motor Vehicle Damages
A plaintiff who is entitled to a verdict for property damage to a motor vehicle is also entitled to recover for necessary and reasonable out-of-pocket expenses for towing and storage of the vehicle and rental cost of a substitute vehicle whether the property damage to plaintiff's car is partial or total.
As to any of the out-of-pocket expenses, the determination as to necessity for same and the reasonableness of both the cost thereof and the period of time required is for you, the jury, to determine in the light of all the circumstances in which plaintiff found himself/herself following the accident.
Cases:
Hintz v. Roberts, 98 N.J.L. 768, 771 (E. & A. 1923); Bartlett v. Garrett, 130 N.J. Super. 193 (Co. Dist. Ct. 1974).
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Model Civil Jury Charges
6.16A. WRONGFUL DEATH CASE VERDICT SHEET
Usually in a wrongful death case, there is a survivorship claim and a wrongful death claim under N.J.S.A. 2A:31-1. In such a case, the following damage questions are appropriate:
1. Set forth the sum of money that will fairly and reasonably compensate the Estate of [name] for the losses sustained by the decedent while alive due to the defendant's negligence:
a. Lost wages
$
b. Pain, suffering, disability, impairment
and loss of enjoyment of life
$
2. Set forth the sum of money that will fairly and reasonably compensate the survivors of the decedent for the losses sustained by them due to the wrongful death of [name].
a. Medical bills (this sum may not
exceed $ )
$
b. Funeral Expenses (this sum may
not exceed $ )
$
c. Financial losses sustained by the
survivors of the decedent due to the
wrongful death of [name].
$
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Model Civil Jury Charges
1. Set forth the sum of money that will fairly and reasonably compensate the Estate of [name] for the losses sustained by the decedent while alive due to the defendant's negligence:
a. Lost wages
$
b. Pain, suffering, disability, impairment
and loss of enjoyment of life
$
2. Set forth the sum of money that will fairly and reasonably compensate the survivors of the decedent for the losses sustained by them due to the wrongful death of [name].
a. Medical bills (this sum may not
exceed $ )
$
b. Funeral Expenses (this sum may
not exceed $ )
$
c. Financial losses sustained by the
survivors of the decedent due to the
wrongful death of [name].
$
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Model Civil Jury Charges
8.43 WRONGFUL DEATH (Includes Jury Verdict Sheet)
The plaintiff brings this lawsuit as the representative of the survivors of the decedent and seeks to recover damages from the defendant contending that defendant's fault was responsible for the death of the decedent. The money damages sought on behalf of the survivors of the decedent represent the actual pecuniary or financial loss which plaintiff contends has been and will in the future be suffered by the survivors due to the death of the decedent.
This claim for pecuniary or financial loss is distinguished from any physical injuries or suffering that may have been sustained by the decedent, such as any pain and suffering or disability sustained by the decedent.
In the event that you find in favor of the plaintiff, that is, that the defendant was at fault, which fault was a proximate cause of plaintiff decedent's death, you must limit your consideration to whatever financial loss was suffered by the survivors as measured by what they would have received from the decedent within a reasonable degree of probability if the decedent had survived. I instruct you that the pecuniary injuries or money losses in this case should not include emotional distress, anguish, grief and sorrow or loss of emotional satisfaction derived from the society and companionship of the decedent. These matters, though real and very distressing, cannot be
considered in determining the extent of the financial or pecuniary loss suffered by the survivors who are represented in this action by the plaintiff.
The financial loss does include, however, not only actual monies which would have been contributed to or earned for the benefit of the survivors, but it also includes the reasonable value of benefits which would have been received in the nature of services, assistance and care as well as training, guidance and counsel that the decedent's survivors (such as children, parents or spouse) would have received had the decedent lived.
To determine the amount of damages to be awarded, i.e., the extent of the financial loss caused by the premature death of the decedent, all circumstances and probabilities which bear upon that financial loss may be considered. The following are factors that you may weigh:
1. You may consider the age and general state of health of the decedent and of the survivors. [You will recall that there was testimony concerning their life expectancies as of the date of the decedent's death (and the decedent's work life expectancy). These figures are in evidence and are assumptions based on probable length of life which have been computed from statistical data. They are general rules and you should therefore use them with caution in any individual case. Except for this incident the decedent might
have lived much longer than estimated by the actuarial period of time. You should consider the expectancy figures in your determination of damages, if any, to be awarded for financial losses in accordance with my instructions in this case, but you must exercise your sound judgment in computing them. Do not treat them as a necessary or fixed rule.]See footnote 1
2. You should consider the net earnings of the decedent after taxes as of the time of his/her death. You should give due regard to any evidence concerning [the decedent's income tax liability and you should also consider]See footnote 2 the decedent's potential future net income during the balance of his/her working life expectancy. The reason for considering net income is that only that portion of his/her income after taxes, not gross income, would have been available for the benefit of the decedent's survivors who are represented by the plaintiff in this case.
[Add where decedent is a minor child:
In this case, since the decedent is a minor child, you, the jury, should consider the value of the reasonably anticipated direct financial contributions which would have been made by the child to the survivors after he/she became a wage earner. You should also take into consideration any actual financial contributions, if any, which the decedent, while living, may have made to the survivors in determining the pecuniary loss to them. ]
3. You should also consider the decedent's own personal expenses. Therefore, it is necessary that you find to what extent the net earnings of the decedent were necessary for his/her own use, maintenance and personal needs. In determining the pecuniary loss of the survivors there must be deducted from the net earnings of the decedent whatever sums fairly represent expenses for his/her own maintenance since it is obvious that these monies could not have been used for the benefit of the survivors.
4. You may also consider the benefit given by the decedent to a survivor or survivors in the form or services or assistance rendered by the decedent and in guidance and training which may have been offered by the decedent to the survivors. You must determine the reasonable value to be placed on the services or benefits that will be lost by reason of the death of the decedent.
[Add where decedent is a minor child:
In this case, since the decedent is a minor child, your assessment of damages for the loss of services and assistance may be somewhat complicated, so let me elaborate on this point further. ]
In addition to the loss of anticipated direct financial contributions from the decedent to the survivors which I noted previously, you, the jury, should also consider the pecuniary value of the loss of the child's anticipated services to the survivors, such as household chores and babysitting for younger siblings, for example. You should also consider the value of the parents' [or other survivors, where applicable] loss of the child's care, companionship, advice and guidance as they grow older. You must remember, however, that your award for damages for these losses will be confined to their pecuniary value, excluding emotional loss.
With respect to companionship, care, and advice you must initially distinguish between their emotional value and their pecuniary, or economic, value. We recognize that children may prove valuable services such as companionship, care, advise and guidance over time as the parents face advanced age or declining health.
Care and companionship, lost by death, to be compensable must be that which would have provided services substantially similar to those provided by the "companions" or "homemakers" often hired today by the aged or the infirm, or substantially equivalent to services provided by nurses or practical nurses. [Companionship in this sense, however, will not include true nursing services unless the decedent had or was likely to have special training.] The value of these services must be confined to what the marketplace would pay a stranger with similar qualifications for performing such services. [In interpreting the criteria or "similar qualifications" you may also attach a pecuniary value to the knowledge of the parents' likes, dislikes and habits which the decedent may have possessed.] Remember, however, that no pecuniary value may be attached to the emotional satisfaction gained by the parent when the child performs these services.)
The loss of the decedent's guidance, advice and counsel to the survivors is likewise to be confined to its pecuniary element. It is not the loss simply of the exchange of views, no matter how perceptive, when the child and parent (or other survivor, where appropriate) are together; it is certainly not the loss of pleasure which accompanies such an exchange. Rather, it is the loss of guidance, advice and counsel which all of us need from time to time in
particular situations, for specific purposes, perhaps as an aid in making a business decision, or a decision affecting one's life generally, or even advice and counsel needed to relieve depression or personal dilemmas. It must be the kind of advice and guidance that could be purchased from a business advisor, a therapist, or a trained counselor, for instance.
Now, taking the foregoing principles into consideration, it is up to you, the jury, to decide what services the decedent would have rendered to the survivors, and what the value of these services is. In doing so, remember that there need be no proof that the parents (or other survivors, where appropriate) will probably purchase such companionship and advice; it is sufficient that the deceased would have rendered them if he/she had lived.
5. In considering those various factors, and in ascertaining the probabilities of pecuniary loss, you should also consider the decedent's personality and character, his/her habits and customs and the relationship that existed between the decedent and the survivors.
If you find that plaintiff is entitled to an award, the amount that is recoverable is comprised of two parts:
(a) the amount of the loss to date; and
(b) the present value of future financial loss.
However, you will announce your verdict in one lump sum of money totaling these two parts.
The first thing that you must determine, once you have decided that the plaintiff is entitled to recover, is the amount of the financial loss from the date of death to the present date. To do this you must agree on an amount which will represent the loss sustained by the survivors each year, and simply add these amounts for each year elapsed since the date of decedent's death to the present time.
The next determination you must make is the present value of the loss that may reasonably be anticipated from this time on into the future. This computation is a little more complicated.
In arriving at such present value of future loss, it would be improper to take the amount of loss, such as a certain number of dollars per year, and simply multiply that amount by the number of years which you find constitutes the time that the decedent would have continued to contribute to the survivors. The reason for this is that if plaintiff is entitled to an award, the survivors will receive their award of damages in one lump sum, whereas, had the decedent lived, the financial contribution to the survivors would have been spread over a period of time. A sum of money due at some future time is worth less today
because, if paid today in a lump sum rather than in installments, the lump sum received today can be invested to earn interest.
For example, if you were to determine that the amount of survivor's yearly loss was $100 and that this loss would extend over a period of 10 years and then you simply multiplied $100 x 10, your award of $1,000 would be too much. This is so because the lump sum awarded now can be invested and produce interest income. Such an award, therefore, would have a greater value than just $100 a year. It would have a value of $100 a year plus the interest. Therefore, if you were to make an award (merely by multiplying $100 x 10 years), the survivors would receive more than their actual loss, or $1,000 plus the interest it would earn.
For this reason, the proper method of determining the present value of future losses requires that the total amount of future losses be reduced by a certain amount. This is done by making an allowance for the interest that this total sum of money would earn for such period of time. This allowance is calculated by a process called discounting or reducing the total future financial losses during the period of expectancy by applying a fixed interest figure.
In other words, you should determine the amount of survivor's yearly loss, if any, and then award a lump sum which when invested will pay out from
that lump sum, plus the interest it will earn, an amount equal to the yearly loss to the survivor. Furthermore, the fund you create must be completely used up or exhausted at the end of the period of the loss.
In making this computation you may also take into account the extent to which inflation will probably reduce the value of money during the period of the loss. You may determine to what extent the purchasing power of the dollar will be recovered because of inflation, you should increase the total amount of your award for anticipated future financial losses in order to offset the extent by which inflation will reduce the value of the dollar in the future.
You should also know that any award you may make is not subject to Federal income tax. However, the interest earned on the amount of your award will be subject to income taxation. And, therefore, you should increase the fund to account for the survivors' increased tax liability.
So, in evaluating future losses, there are several factors which should be considered by you in arriving at your computation of future losses. Remember with respect to future losses that you are creating a present fund which will be used to pay plaintiff from the principal sum and the interest it earns in an amount equal to a survivor's yearly loss so that at the end of the period of time you determine this loss will be sustained, the fund plus the interest will be used
up. Let me repeat the factors you should consider when determining an amount to compensate plaintiff for future losses:
(1) The amount of the survivor's yearly loss.
(2) The period of time over which said loss will be incurred in the future, i.e., from today's date forward for that period of time you determine to be the balance of decedent's work life expectancy. (Remember you will have already determined the loss from the date of death to today).
(3) That the fund should be discounted to reflect the interest the fund will earn.
(4) The extent to which inflation may or may not affect the value of the financial loss.
(5) That no income tax will be imposed on the sum awarded but that the interest earned by the fund will be subject to Federal income tax.
I am now going to give each of you a sheet of paper which contains a step by step illustration of how to compute the present value of a survivor's future pecuniary loss. The sheet also contains an example from an imaginary case to show you how the various formulas are applied. Keep in mind that the
numbers used in the example are not taken from this case and are not intended to suggest what figures you should use. The amount of any given survivor's financial loss, interest rates and discount rates must be based upon your own sound judgment resulting from your understanding and analysis of the evidence in the case as well as your collective experience and common sense.
[An expert testified as to his/her analysis of future wage increases and discount rates relative to inflation and gave you his/her opinion of what the discount and inflation rates should be in this case. giving due regard to his/her credibility, you may use those trends and rates in arriving at your own independent single appraisal of the survivors' actual pecuniary losses].See footnote 3
Arriving at a figure that represents the plaintiff's financial and pecuniary loss due to the decedent's premature death is difficult. Remember that your decision should be based upon your own common sense judgment of the amount of money and the value of services and guidance decedent would have contributed to the welfare of the plaintiff.
Thus, to recapitulate, if you find plaintiffs are entitled to an award based upon the rules of law I have given you, then in determining the amount of award because of the premature death of decedent you must first determine the amount of financial loss suffered from the date of death to the present time. To arrive at that figure you must add the amount of plaintiff's yearly loss for the number of years from the date of death to the present time. Next, you should add to that amount a sum which represents the future loss from today calculated in accordance with my instructions.
--------------------------------------------------------------------------------
COMPUTATION OF PRESENT VALUE OF FUTURE FINANCIAL LOSS:
1. Insert here the total amount of money the survivor has lost by reason of the death. $______
2. Insert here the average annual rate of interest for the period of the survivor's loss. _______%
3. Insert here the amount of money which is necessary to be invested at the rate determined in 2. in order to yield the loss determine in 2. [Formula: Subtract the rate set forth in 2. from 100%. Then multiply the number in 1. by that percentage]. $______
4. Insert here the average annual rate of inflation for the period of the survivor's loss. __________%
5. Insert here the amount of money necessary to add to the survivor's loss to account for inflation. [Formula: Multiply the inflation factor in 4. by the loss set forth in 1.]
$__________
6. Insert here the amount of money necessary to compensate the survivor taking into consideration both investment and inflation factors. [Formula: Add 3. to 5.].
$__________
Example: Assuming a loss to the survivor of $1,500/year for four years with an average interest rate of eight percent and an average inflation rate of six percent:
Step One: $1,500/year x four years $6,000
Step Two: Interest rate (averaged for
four years) 8%
Step Three: (100% - 8% = 92%)
($6,000 x 92% = $5,520) $5,520
Step Four: Inflation rate (averaged for
four years) 6%
Step Five: ($6,000 x 6% = $360) $ 360
Step Six: ($5,520 + $360 = $5,880) $5,880
Verdict Sheet
Usually in a wrongful death case, there is a survivorship claim and a wrongful death claim under N.J.S.A. 2A:31-1. In such a case, the following damage questions are appropriate:
1. Set forth the sum of money that will fairly and reasonably compensate the Estate of [name] for the losses sustained by the decedent while alive due to the defendant's negligence:
a. Lost wages
$
b. Pain, suffering, disability, impairment
and loss of enjoyment of life
$
2. Set forth the sum of money that will fairly and reasonably compensate the survivors of the decedent for the losses sustained by them due to the wrongful death of [name].
a. Medical bills (this sum may not
exceed $ )
$
b. Funeral Expenses (this sum may
not exceed $ )
$
c. Financial losses sustained by the
survivors of the decedent due to the
wrongful death of [name].
$
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Footnote: 1 This passage in brackets should be used only where evidence of the decedent's work life has been offered or where evidence of a survivor's life expectancy is relevant to a determination of pecuniary loss and the Court has been asked to take judicial notice of the life expectancy tables.
--------------------------------------------------------------------------------
Footnote: 2 In the event that no evidence has been produced as to decedent's income tax liability, the trial judge should consider whether this phrase should be included in the charge.
--------------------------------------------------------------------------------
Footnote: 3 The Committee expresses no opinion as to the need for expert testimony on interest (discount) or inflation factors. It recognizes that cases involving wrongful death claims are tried without expert testimony. The charge is structured to be used in either event.
The Committee also acknowledges that Matthews v. Nelson, 57 N.J. Super. 515 (App. Div. 1959) permits the use of annuity tables contained in the Civil Practice Rules. Those tables express certain interest rates but no corresponding inflation factors.
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Model Civil Jury Charges
This claim for pecuniary or financial loss is distinguished from any physical injuries or suffering that may have been sustained by the decedent, such as any pain and suffering or disability sustained by the decedent.
In the event that you find in favor of the plaintiff, that is, that the defendant was at fault, which fault was a proximate cause of plaintiff decedent's death, you must limit your consideration to whatever financial loss was suffered by the survivors as measured by what they would have received from the decedent within a reasonable degree of probability if the decedent had survived. I instruct you that the pecuniary injuries or money losses in this case should not include emotional distress, anguish, grief and sorrow or loss of emotional satisfaction derived from the society and companionship of the decedent. These matters, though real and very distressing, cannot be
considered in determining the extent of the financial or pecuniary loss suffered by the survivors who are represented in this action by the plaintiff.
The financial loss does include, however, not only actual monies which would have been contributed to or earned for the benefit of the survivors, but it also includes the reasonable value of benefits which would have been received in the nature of services, assistance and care as well as training, guidance and counsel that the decedent's survivors (such as children, parents or spouse) would have received had the decedent lived.
To determine the amount of damages to be awarded, i.e., the extent of the financial loss caused by the premature death of the decedent, all circumstances and probabilities which bear upon that financial loss may be considered. The following are factors that you may weigh:
1. You may consider the age and general state of health of the decedent and of the survivors. [You will recall that there was testimony concerning their life expectancies as of the date of the decedent's death (and the decedent's work life expectancy). These figures are in evidence and are assumptions based on probable length of life which have been computed from statistical data. They are general rules and you should therefore use them with caution in any individual case. Except for this incident the decedent might
have lived much longer than estimated by the actuarial period of time. You should consider the expectancy figures in your determination of damages, if any, to be awarded for financial losses in accordance with my instructions in this case, but you must exercise your sound judgment in computing them. Do not treat them as a necessary or fixed rule.]See footnote 1
2. You should consider the net earnings of the decedent after taxes as of the time of his/her death. You should give due regard to any evidence concerning [the decedent's income tax liability and you should also consider]See footnote 2 the decedent's potential future net income during the balance of his/her working life expectancy. The reason for considering net income is that only that portion of his/her income after taxes, not gross income, would have been available for the benefit of the decedent's survivors who are represented by the plaintiff in this case.
[Add where decedent is a minor child:
In this case, since the decedent is a minor child, you, the jury, should consider the value of the reasonably anticipated direct financial contributions which would have been made by the child to the survivors after he/she became a wage earner. You should also take into consideration any actual financial contributions, if any, which the decedent, while living, may have made to the survivors in determining the pecuniary loss to them. ]
3. You should also consider the decedent's own personal expenses. Therefore, it is necessary that you find to what extent the net earnings of the decedent were necessary for his/her own use, maintenance and personal needs. In determining the pecuniary loss of the survivors there must be deducted from the net earnings of the decedent whatever sums fairly represent expenses for his/her own maintenance since it is obvious that these monies could not have been used for the benefit of the survivors.
4. You may also consider the benefit given by the decedent to a survivor or survivors in the form or services or assistance rendered by the decedent and in guidance and training which may have been offered by the decedent to the survivors. You must determine the reasonable value to be placed on the services or benefits that will be lost by reason of the death of the decedent.
[Add where decedent is a minor child:
In this case, since the decedent is a minor child, your assessment of damages for the loss of services and assistance may be somewhat complicated, so let me elaborate on this point further. ]
In addition to the loss of anticipated direct financial contributions from the decedent to the survivors which I noted previously, you, the jury, should also consider the pecuniary value of the loss of the child's anticipated services to the survivors, such as household chores and babysitting for younger siblings, for example. You should also consider the value of the parents' [or other survivors, where applicable] loss of the child's care, companionship, advice and guidance as they grow older. You must remember, however, that your award for damages for these losses will be confined to their pecuniary value, excluding emotional loss.
With respect to companionship, care, and advice you must initially distinguish between their emotional value and their pecuniary, or economic, value. We recognize that children may prove valuable services such as companionship, care, advise and guidance over time as the parents face advanced age or declining health.
Care and companionship, lost by death, to be compensable must be that which would have provided services substantially similar to those provided by the "companions" or "homemakers" often hired today by the aged or the infirm, or substantially equivalent to services provided by nurses or practical nurses. [Companionship in this sense, however, will not include true nursing services unless the decedent had or was likely to have special training.] The value of these services must be confined to what the marketplace would pay a stranger with similar qualifications for performing such services. [In interpreting the criteria or "similar qualifications" you may also attach a pecuniary value to the knowledge of the parents' likes, dislikes and habits which the decedent may have possessed.] Remember, however, that no pecuniary value may be attached to the emotional satisfaction gained by the parent when the child performs these services.)
The loss of the decedent's guidance, advice and counsel to the survivors is likewise to be confined to its pecuniary element. It is not the loss simply of the exchange of views, no matter how perceptive, when the child and parent (or other survivor, where appropriate) are together; it is certainly not the loss of pleasure which accompanies such an exchange. Rather, it is the loss of guidance, advice and counsel which all of us need from time to time in
particular situations, for specific purposes, perhaps as an aid in making a business decision, or a decision affecting one's life generally, or even advice and counsel needed to relieve depression or personal dilemmas. It must be the kind of advice and guidance that could be purchased from a business advisor, a therapist, or a trained counselor, for instance.
Now, taking the foregoing principles into consideration, it is up to you, the jury, to decide what services the decedent would have rendered to the survivors, and what the value of these services is. In doing so, remember that there need be no proof that the parents (or other survivors, where appropriate) will probably purchase such companionship and advice; it is sufficient that the deceased would have rendered them if he/she had lived.
5. In considering those various factors, and in ascertaining the probabilities of pecuniary loss, you should also consider the decedent's personality and character, his/her habits and customs and the relationship that existed between the decedent and the survivors.
If you find that plaintiff is entitled to an award, the amount that is recoverable is comprised of two parts:
(a) the amount of the loss to date; and
(b) the present value of future financial loss.
However, you will announce your verdict in one lump sum of money totaling these two parts.
The first thing that you must determine, once you have decided that the plaintiff is entitled to recover, is the amount of the financial loss from the date of death to the present date. To do this you must agree on an amount which will represent the loss sustained by the survivors each year, and simply add these amounts for each year elapsed since the date of decedent's death to the present time.
The next determination you must make is the present value of the loss that may reasonably be anticipated from this time on into the future. This computation is a little more complicated.
In arriving at such present value of future loss, it would be improper to take the amount of loss, such as a certain number of dollars per year, and simply multiply that amount by the number of years which you find constitutes the time that the decedent would have continued to contribute to the survivors. The reason for this is that if plaintiff is entitled to an award, the survivors will receive their award of damages in one lump sum, whereas, had the decedent lived, the financial contribution to the survivors would have been spread over a period of time. A sum of money due at some future time is worth less today
because, if paid today in a lump sum rather than in installments, the lump sum received today can be invested to earn interest.
For example, if you were to determine that the amount of survivor's yearly loss was $100 and that this loss would extend over a period of 10 years and then you simply multiplied $100 x 10, your award of $1,000 would be too much. This is so because the lump sum awarded now can be invested and produce interest income. Such an award, therefore, would have a greater value than just $100 a year. It would have a value of $100 a year plus the interest. Therefore, if you were to make an award (merely by multiplying $100 x 10 years), the survivors would receive more than their actual loss, or $1,000 plus the interest it would earn.
For this reason, the proper method of determining the present value of future losses requires that the total amount of future losses be reduced by a certain amount. This is done by making an allowance for the interest that this total sum of money would earn for such period of time. This allowance is calculated by a process called discounting or reducing the total future financial losses during the period of expectancy by applying a fixed interest figure.
In other words, you should determine the amount of survivor's yearly loss, if any, and then award a lump sum which when invested will pay out from
that lump sum, plus the interest it will earn, an amount equal to the yearly loss to the survivor. Furthermore, the fund you create must be completely used up or exhausted at the end of the period of the loss.
In making this computation you may also take into account the extent to which inflation will probably reduce the value of money during the period of the loss. You may determine to what extent the purchasing power of the dollar will be recovered because of inflation, you should increase the total amount of your award for anticipated future financial losses in order to offset the extent by which inflation will reduce the value of the dollar in the future.
You should also know that any award you may make is not subject to Federal income tax. However, the interest earned on the amount of your award will be subject to income taxation. And, therefore, you should increase the fund to account for the survivors' increased tax liability.
So, in evaluating future losses, there are several factors which should be considered by you in arriving at your computation of future losses. Remember with respect to future losses that you are creating a present fund which will be used to pay plaintiff from the principal sum and the interest it earns in an amount equal to a survivor's yearly loss so that at the end of the period of time you determine this loss will be sustained, the fund plus the interest will be used
up. Let me repeat the factors you should consider when determining an amount to compensate plaintiff for future losses:
(1) The amount of the survivor's yearly loss.
(2) The period of time over which said loss will be incurred in the future, i.e., from today's date forward for that period of time you determine to be the balance of decedent's work life expectancy. (Remember you will have already determined the loss from the date of death to today).
(3) That the fund should be discounted to reflect the interest the fund will earn.
(4) The extent to which inflation may or may not affect the value of the financial loss.
(5) That no income tax will be imposed on the sum awarded but that the interest earned by the fund will be subject to Federal income tax.
I am now going to give each of you a sheet of paper which contains a step by step illustration of how to compute the present value of a survivor's future pecuniary loss. The sheet also contains an example from an imaginary case to show you how the various formulas are applied. Keep in mind that the
numbers used in the example are not taken from this case and are not intended to suggest what figures you should use. The amount of any given survivor's financial loss, interest rates and discount rates must be based upon your own sound judgment resulting from your understanding and analysis of the evidence in the case as well as your collective experience and common sense.
[An expert testified as to his/her analysis of future wage increases and discount rates relative to inflation and gave you his/her opinion of what the discount and inflation rates should be in this case. giving due regard to his/her credibility, you may use those trends and rates in arriving at your own independent single appraisal of the survivors' actual pecuniary losses].See footnote 3
Arriving at a figure that represents the plaintiff's financial and pecuniary loss due to the decedent's premature death is difficult. Remember that your decision should be based upon your own common sense judgment of the amount of money and the value of services and guidance decedent would have contributed to the welfare of the plaintiff.
Thus, to recapitulate, if you find plaintiffs are entitled to an award based upon the rules of law I have given you, then in determining the amount of award because of the premature death of decedent you must first determine the amount of financial loss suffered from the date of death to the present time. To arrive at that figure you must add the amount of plaintiff's yearly loss for the number of years from the date of death to the present time. Next, you should add to that amount a sum which represents the future loss from today calculated in accordance with my instructions.
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COMPUTATION OF PRESENT VALUE OF FUTURE FINANCIAL LOSS:
1. Insert here the total amount of money the survivor has lost by reason of the death. $______
2. Insert here the average annual rate of interest for the period of the survivor's loss. _______%
3. Insert here the amount of money which is necessary to be invested at the rate determined in 2. in order to yield the loss determine in 2. [Formula: Subtract the rate set forth in 2. from 100%. Then multiply the number in 1. by that percentage]. $______
4. Insert here the average annual rate of inflation for the period of the survivor's loss. __________%
5. Insert here the amount of money necessary to add to the survivor's loss to account for inflation. [Formula: Multiply the inflation factor in 4. by the loss set forth in 1.]
$__________
6. Insert here the amount of money necessary to compensate the survivor taking into consideration both investment and inflation factors. [Formula: Add 3. to 5.].
$__________
Example: Assuming a loss to the survivor of $1,500/year for four years with an average interest rate of eight percent and an average inflation rate of six percent:
Step One: $1,500/year x four years $6,000
Step Two: Interest rate (averaged for
four years) 8%
Step Three: (100% - 8% = 92%)
($6,000 x 92% = $5,520) $5,520
Step Four: Inflation rate (averaged for
four years) 6%
Step Five: ($6,000 x 6% = $360) $ 360
Step Six: ($5,520 + $360 = $5,880) $5,880
Verdict Sheet
Usually in a wrongful death case, there is a survivorship claim and a wrongful death claim under N.J.S.A. 2A:31-1. In such a case, the following damage questions are appropriate:
1. Set forth the sum of money that will fairly and reasonably compensate the Estate of [name] for the losses sustained by the decedent while alive due to the defendant's negligence:
a. Lost wages
$
b. Pain, suffering, disability, impairment
and loss of enjoyment of life
$
2. Set forth the sum of money that will fairly and reasonably compensate the survivors of the decedent for the losses sustained by them due to the wrongful death of [name].
a. Medical bills (this sum may not
exceed $ )
$
b. Funeral Expenses (this sum may
not exceed $ )
$
c. Financial losses sustained by the
survivors of the decedent due to the
wrongful death of [name].
$
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Footnote: 1 This passage in brackets should be used only where evidence of the decedent's work life has been offered or where evidence of a survivor's life expectancy is relevant to a determination of pecuniary loss and the Court has been asked to take judicial notice of the life expectancy tables.
--------------------------------------------------------------------------------
Footnote: 2 In the event that no evidence has been produced as to decedent's income tax liability, the trial judge should consider whether this phrase should be included in the charge.
--------------------------------------------------------------------------------
Footnote: 3 The Committee expresses no opinion as to the need for expert testimony on interest (discount) or inflation factors. It recognizes that cases involving wrongful death claims are tried without expert testimony. The charge is structured to be used in either event.
The Committee also acknowledges that Matthews v. Nelson, 57 N.J. Super. 515 (App. Div. 1959) permits the use of annuity tables contained in the Civil Practice Rules. Those tables express certain interest rates but no corresponding inflation factors.
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Model Civil Jury Charges
8.42 DAMAGES - SURVIVAL
In the survival action, the administrator as plaintiff is seeking damages for the decedent's hospital and medical expenses, loss of earnings as well as any disability and impairment, loss of enjoyment, pain and suffering which the decedent sustained between this accident and his/her death. Under the law, he/she is entitled to recover the damages which the decedent sustained during this period of time.
[Adapt model charge on damages in Chapter 6 wherever applicable as to measure of damages.]
Cases:
See N.J.S.A. 2A:15-3; Dosen v. Trenton, & c., Traction Corp., 101 N.J.L. 393 (E. & A. 1925), historical summary of common law rule, also damages recoverable; see also, Kotkin v. Caprio, 65 N.J. Super. 453, 458 (App. Div. 1961), certification denied 34 N.J. 470 (1961); Ryan v. Public Service Ry. Co., 103 N.J.L. 145, 147 (E. & A. 1926); Prudential Insurance Co. v. Laval, 131 N.J. Eq. 23 (Ch. 1942).
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Model Civil Jury Charges
[Adapt model charge on damages in Chapter 6 wherever applicable as to measure of damages.]
Cases:
See N.J.S.A. 2A:15-3; Dosen v. Trenton, & c., Traction Corp., 101 N.J.L. 393 (E. & A. 1925), historical summary of common law rule, also damages recoverable; see also, Kotkin v. Caprio, 65 N.J. Super. 453, 458 (App. Div. 1961), certification denied 34 N.J. 470 (1961); Ryan v. Public Service Ry. Co., 103 N.J.L. 145, 147 (E. & A. 1926); Prudential Insurance Co. v. Laval, 131 N.J. Eq. 23 (Ch. 1942).
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Model Civil Jury Charges
8.41 DAMAGES - CONVERSION (pre-1984)
A. General
The measure of damages to be awarded to a plaintiff entitled to a verdict is the fair market value of the converted chattel at the time of conversion by the defendant, with interest from the date of conversion. Fair market value is defined as the price which would be agreed upon in good faith negotiations between a willing seller without any compulsion to sell and a willing buyer without any compulsion to buy, under usual and ordinary circumstances.
Cases:
Arnold v. Hamilton, 132 N.J.L. 10 (Sup. Ct. 1944), affirmed per curiam 132 N.J.L. 419 (E. & A. 1944); Ward v. Huff, 94 N.J.L. 81 (Sup. Ct. 1920); Rule cited with approval in Winkler v. Hartford Acc. and Ind. Co., 66 N.J. Super. 22 (App. Div. 1961), certification denied 34 N.J. 581 (1961).
Punitive damages may be assessed. Winkler v. Hartford Acc. and Ind. Co., 66 N.J. Super. 22, 29 (App. Div. 1961).
B. Upon Return Of Converted Chattel
If the plaintiff has accepted return of the converted chattel the measure of damages is the difference between the fair market value at the time of its conversion and the fair market value at the time of its return plus interest during such period, or in the alternative, any damages flowing naturally and proximately from the wrong complained of, including the loss of use of the chattel.
Cases:
Taylor v. Brewer, 94 N.J.L. 392 (Sup. Ct. 1920).
Plaintiff is permitted to recover all damages flowing naturally and proximately from the wrong complained of, including the loss of the use of the chattel. See Ward v. Huff, 94 N.J.L. 81 (Sup. Ct. 1920), as modified by Winkler v. Hartford Acc. and Ind. Co., 66 N.J. Super. 22 (App. Div. 1961). This is the common law measure of damages in the action of trespass de bonis asportatis.
Loss of use has been defined as those damages occasioned to the plaintiff by reason of the detention, including personal loss, inconvenience and capital outlay. Taylor v. Brewer, 94 N.J.L. 392, 393 (Sup. Ct. 1920), as modified by Winkler v. Hartford Acc. and Ind. Co., 66 N.J. Super. 22 (App. Div. 1961).
Punitive damages may be assessed. Winkler v. Harford Acc. and Ind. Co., 66 N.J. Super. 22, 29 (App. Div. 1961).
C. Chose In Action Other Than Marketed Securities
When the action is for conversion of written evidence of a debt, the measure of damages is the value of the property converted, plus interest from the date of conversion. The face value of an instrument for payment of money is prima facie its actual value. The defendant is liable only for the actual value if, in fact, less than the face value.
Cases:
Arnold v. Hamilton Inv. Co., Inc., 132 N.J.L. 10 (Sup. Ct. 1944), affirmed per curiam 132 N.J.L. 419 (E. & A. 1944).
D. Marketed Securities
If the converted property is stocks or bonds, commercial securities or instruments of fluctuating value on the market, the measure of damages is the highest intermediate fair market value between the time of the conversion and a reasonable time after notice of the conversion within which to replace the securities, plus interest from the date of conversion.
Cases:
Dimock v. United States Nat. Bank, 55 N.J.L. 296 (E. & A. 1893) following the rule of Galigher v. Jones, 129 U.S. 193, 32 L.Ed. 658, 9 S.Ct. 335 (1889).
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Model Civil Jury Charges
The measure of damages to be awarded to a plaintiff entitled to a verdict is the fair market value of the converted chattel at the time of conversion by the defendant, with interest from the date of conversion. Fair market value is defined as the price which would be agreed upon in good faith negotiations between a willing seller without any compulsion to sell and a willing buyer without any compulsion to buy, under usual and ordinary circumstances.
Cases:
Arnold v. Hamilton, 132 N.J.L. 10 (Sup. Ct. 1944), affirmed per curiam 132 N.J.L. 419 (E. & A. 1944); Ward v. Huff, 94 N.J.L. 81 (Sup. Ct. 1920); Rule cited with approval in Winkler v. Hartford Acc. and Ind. Co., 66 N.J. Super. 22 (App. Div. 1961), certification denied 34 N.J. 581 (1961).
Punitive damages may be assessed. Winkler v. Hartford Acc. and Ind. Co., 66 N.J. Super. 22, 29 (App. Div. 1961).
B. Upon Return Of Converted Chattel
If the plaintiff has accepted return of the converted chattel the measure of damages is the difference between the fair market value at the time of its conversion and the fair market value at the time of its return plus interest during such period, or in the alternative, any damages flowing naturally and proximately from the wrong complained of, including the loss of use of the chattel.
Cases:
Taylor v. Brewer, 94 N.J.L. 392 (Sup. Ct. 1920).
Plaintiff is permitted to recover all damages flowing naturally and proximately from the wrong complained of, including the loss of the use of the chattel. See Ward v. Huff, 94 N.J.L. 81 (Sup. Ct. 1920), as modified by Winkler v. Hartford Acc. and Ind. Co., 66 N.J. Super. 22 (App. Div. 1961). This is the common law measure of damages in the action of trespass de bonis asportatis.
Loss of use has been defined as those damages occasioned to the plaintiff by reason of the detention, including personal loss, inconvenience and capital outlay. Taylor v. Brewer, 94 N.J.L. 392, 393 (Sup. Ct. 1920), as modified by Winkler v. Hartford Acc. and Ind. Co., 66 N.J. Super. 22 (App. Div. 1961).
Punitive damages may be assessed. Winkler v. Harford Acc. and Ind. Co., 66 N.J. Super. 22, 29 (App. Div. 1961).
C. Chose In Action Other Than Marketed Securities
When the action is for conversion of written evidence of a debt, the measure of damages is the value of the property converted, plus interest from the date of conversion. The face value of an instrument for payment of money is prima facie its actual value. The defendant is liable only for the actual value if, in fact, less than the face value.
Cases:
Arnold v. Hamilton Inv. Co., Inc., 132 N.J.L. 10 (Sup. Ct. 1944), affirmed per curiam 132 N.J.L. 419 (E. & A. 1944).
D. Marketed Securities
If the converted property is stocks or bonds, commercial securities or instruments of fluctuating value on the market, the measure of damages is the highest intermediate fair market value between the time of the conversion and a reasonable time after notice of the conversion within which to replace the securities, plus interest from the date of conversion.
Cases:
Dimock v. United States Nat. Bank, 55 N.J.L. 296 (E. & A. 1893) following the rule of Galigher v. Jones, 129 U.S. 193, 32 L.Ed. 658, 9 S.Ct. 335 (1889).
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Model Civil Jury Charges
8.40 DAMAGES - TRESPASS TO REAL PROPERTY (pre-1984)
A. General
The measure of damages to be awarded to a plaintiff entitled to a verdict is the difference between the fair market value of his/her property before and after the trespass by the defendant.
If you find that the defendant was in wrongful possession of the property, the damages should include also the profits or earnings, that is, the monetary advantage or income, which derived from the occupation of land during such period of wrongful possession.
Cases:
Huber v. Serpico, 71 N.J. Super. 329, (App. Div. 1962); Barberi v. Bochinsky, 43 N.J. Super. 186 (App. Div. 1956); Manda v. Orange, 77 N.J.L. 285 (Sup. Ct. 1909). See also Harper & James, Torts, §1.8 - 1.10; Dime Sav. Bank of Brooklyn v. Altman, 275 N.Y. 62, 9 N.E.2d 778 (Ct. App. 1937)
The cost of repair is a proper element to consider in ascertaining the diminution in value resulting from a tortious injury to real property. Rempfer v. Deerfield Packing Corp., 4 N.J. 135 (1950).
B. Special Value
If the trespasser to land destroyed shade or ornamental trees or shrubbery having special value to the landowner, the measure of damages is the fair and reasonable cost of restoring the land to a reasonable approximation of its former condition, without necessary limitation to the diminution in the market value of the land.
Cases:
Huber v. Serpico, 71 N.J. Super. 329 (App. Div. 1962); see also Restatement, Tort, §929, Comment (b).
C. Growing Crops
If the trespasser has destroyed crops not yet severed from the land the measure of damages is the probable fair market value of the crops, if they had ripened and been brought to market, minus the reasonable cost of cultivation, harvesting and marketing.
Cases:
Deverman v. Stevens Builders, 31 N.J. Super. 347 (App. Div. 1954). See also United States v. 576.734 Acres of Land, etc., 143 F.2d 408 (3rd Cir. 1944).
D. Trespassing Structures (Encroachments)
If a trespasser erects a structure (encroachment) which the landowner has a right to remove, the landowner as plaintiff may recover the cost of removal of that structure (encroachment) but not in excess of the diminution in fair market value of the land resulting from the structure (encroachment).
Cases:
Rempfer v. Deerfield Packing Corp., 4 N.J. 135 (1950); Barberi v. Bochinsky, 43 N.J. Super. 186 (App. Div. 1956). See also Restatement, Torts, 929, Comment (d).
The general rule setting the diminution of value as the upper limit of recovery is in harmony with the earlier cases. See Bates v. Warrick, 77 N.J.L. 387 (Sup. Ct. 1909). The exception to this general rule is found in the "special value" rule. See Huber v. Serpico, 71 N.J. Super. 329 (App. Div. 1962).
E. Action by One with Less Than Sole Possessory Interest
Any person having a possessory interest in the land may recover against a trespasser the full measure of damages for the wrong, holding such fund as constructive trustee for others having a possessory interest.
NOTE:
Both mortgagor and mortgagee have a cause of action against a trespasser causing damage to the mortgaged premises; the mortgagor being entitled to recover the damage caused to the estate; the mortgagee for the diminution of the value of the security. Recovery by either mortgagor or mortgagee bars suit by the other against the trespasser. Garrow v. Brooks, 123 N.J. Eq. 138 (Ch. 1938), Elvins v. Del. & Atl. Tel. Co., 63 N.J.L. 243 (E. & A. 1899), Schalk v. Kingsley, 42 N.J.L. 32 (Sup. Ct. 1880). As to Landlord-Tenant see Todd v. Jackson, 26 N.J.L. 525 (E. & A. 1857).
F. Punitive Damages (1/97)
[The trial judge should charge either Model Jury Charge 6.20 or 6.20A depending on when cause of action was filed.]
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Model Civil Jury Charges
The measure of damages to be awarded to a plaintiff entitled to a verdict is the difference between the fair market value of his/her property before and after the trespass by the defendant.
If you find that the defendant was in wrongful possession of the property, the damages should include also the profits or earnings, that is, the monetary advantage or income, which derived from the occupation of land during such period of wrongful possession.
Cases:
Huber v. Serpico, 71 N.J. Super. 329, (App. Div. 1962); Barberi v. Bochinsky, 43 N.J. Super. 186 (App. Div. 1956); Manda v. Orange, 77 N.J.L. 285 (Sup. Ct. 1909). See also Harper & James, Torts, §1.8 - 1.10; Dime Sav. Bank of Brooklyn v. Altman, 275 N.Y. 62, 9 N.E.2d 778 (Ct. App. 1937)
The cost of repair is a proper element to consider in ascertaining the diminution in value resulting from a tortious injury to real property. Rempfer v. Deerfield Packing Corp., 4 N.J. 135 (1950).
B. Special Value
If the trespasser to land destroyed shade or ornamental trees or shrubbery having special value to the landowner, the measure of damages is the fair and reasonable cost of restoring the land to a reasonable approximation of its former condition, without necessary limitation to the diminution in the market value of the land.
Cases:
Huber v. Serpico, 71 N.J. Super. 329 (App. Div. 1962); see also Restatement, Tort, §929, Comment (b).
C. Growing Crops
If the trespasser has destroyed crops not yet severed from the land the measure of damages is the probable fair market value of the crops, if they had ripened and been brought to market, minus the reasonable cost of cultivation, harvesting and marketing.
Cases:
Deverman v. Stevens Builders, 31 N.J. Super. 347 (App. Div. 1954). See also United States v. 576.734 Acres of Land, etc., 143 F.2d 408 (3rd Cir. 1944).
D. Trespassing Structures (Encroachments)
If a trespasser erects a structure (encroachment) which the landowner has a right to remove, the landowner as plaintiff may recover the cost of removal of that structure (encroachment) but not in excess of the diminution in fair market value of the land resulting from the structure (encroachment).
Cases:
Rempfer v. Deerfield Packing Corp., 4 N.J. 135 (1950); Barberi v. Bochinsky, 43 N.J. Super. 186 (App. Div. 1956). See also Restatement, Torts, 929, Comment (d).
The general rule setting the diminution of value as the upper limit of recovery is in harmony with the earlier cases. See Bates v. Warrick, 77 N.J.L. 387 (Sup. Ct. 1909). The exception to this general rule is found in the "special value" rule. See Huber v. Serpico, 71 N.J. Super. 329 (App. Div. 1962).
E. Action by One with Less Than Sole Possessory Interest
Any person having a possessory interest in the land may recover against a trespasser the full measure of damages for the wrong, holding such fund as constructive trustee for others having a possessory interest.
NOTE:
Both mortgagor and mortgagee have a cause of action against a trespasser causing damage to the mortgaged premises; the mortgagor being entitled to recover the damage caused to the estate; the mortgagee for the diminution of the value of the security. Recovery by either mortgagor or mortgagee bars suit by the other against the trespasser. Garrow v. Brooks, 123 N.J. Eq. 138 (Ch. 1938), Elvins v. Del. & Atl. Tel. Co., 63 N.J.L. 243 (E. & A. 1899), Schalk v. Kingsley, 42 N.J.L. 32 (Sup. Ct. 1880). As to Landlord-Tenant see Todd v. Jackson, 26 N.J.L. 525 (E. & A. 1857).
F. Punitive Damages (1/97)
[The trial judge should charge either Model Jury Charge 6.20 or 6.20A depending on when cause of action was filed.]
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Model Civil Jury Charges
8.30C DAMAGES -- PER QUOD - LOSS OF CHILD'S SERVICES AND EARNINGS
C. Loss of Child's Services and Earnings (2/96)
Parents are entitled to the services of their infant child, in the performance of household chores and to the child's earnings, until the child reaches the age of majority or is emancipated (i.e., marriage) whichever is later.
After a child reaches majority or is emancipated, the right to loss of earnings belongs solely to the emancipated child; however the law recognizes that a child, after the age of majority may perform services for the parents, may provide valuable companionship and care as the parents get older, and may make monetary contributions to the parents.
Parents who are awarded a verdict are entitled to fair and reasonable compensation for any loss or decrease of the child's earnings, services, companionship or contributions before the child reaches majority, and any loss or impairment of their child's services because of injuries sustained as a result of the defendant's negligence (or other wrongdoing).
Cases:
Davis v. Eliz. Gen. Med. Ctr., 228 N.J. Super. 17 (Law Div. 1988); Mathias v. Luke, 37 N.J. Super. 241 (App. Div. 1955); cf: Brennan v. Biber, 93 N.J. Super.
351, aff'd o.b. 99 N.J. Super.247 (App. Div. 1966); Simmel v. N.J. Coop. Co., 28 N.J. 1 (1958).
For discussion of the pecuniary loss to a parent of an adult child see, Green v. Bittner, 85 N.J. 1 (1980).
For reduction of damages see, Tichenor v. Santillo, 218 N.J. Super. 165, 174 (App. Div. 1987).
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Model Civil Jury Charges
Parents are entitled to the services of their infant child, in the performance of household chores and to the child's earnings, until the child reaches the age of majority or is emancipated (i.e., marriage) whichever is later.
After a child reaches majority or is emancipated, the right to loss of earnings belongs solely to the emancipated child; however the law recognizes that a child, after the age of majority may perform services for the parents, may provide valuable companionship and care as the parents get older, and may make monetary contributions to the parents.
Parents who are awarded a verdict are entitled to fair and reasonable compensation for any loss or decrease of the child's earnings, services, companionship or contributions before the child reaches majority, and any loss or impairment of their child's services because of injuries sustained as a result of the defendant's negligence (or other wrongdoing).
Cases:
Davis v. Eliz. Gen. Med. Ctr., 228 N.J. Super. 17 (Law Div. 1988); Mathias v. Luke, 37 N.J. Super. 241 (App. Div. 1955); cf: Brennan v. Biber, 93 N.J. Super.
351, aff'd o.b. 99 N.J. Super.247 (App. Div. 1966); Simmel v. N.J. Coop. Co., 28 N.J. 1 (1958).
For discussion of the pecuniary loss to a parent of an adult child see, Green v. Bittner, 85 N.J. 1 (1980).
For reduction of damages see, Tichenor v. Santillo, 218 N.J. Super. 165, 174 (App. Div. 1987).
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Model Civil Jury Charges
8.30B DAMAGES -- PER QUOD - LOSS OF SPOUSE'S SERVICES, SOCIETY AND CONSORTIUM
B. Loss of Spouse's Services, Society and Consortium (2/96)
A husband/wife is entitled to the services of his/her spouse in attending to the household duties, to companionship and comfort, and consortium, that is, marital relations. A plaintiff who is awarded a verdict is entitled to fair and reasonable compensation for any loss of impairment of his or her spouse's services, society or consortium because of injuries sustained by him or her as a proximate result of the defendant's negligence (or other wrongdoing). Damages may be awarded not only for total loss of services but for a worsening of their quality.
[If appropriate the judge may charge,] Damages may include but are not limited to out of pocket expenses incurred in engaging the services of others to perform household duties previously attended to by his or her spouse.
Cases:
Schuttler v. Reinhardt, 17 N.J. Super. 480 (App. Div. 1952); Rex v. Hunter, 26 N.J. 489 (1958).
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Model Civil Jury Charges
A husband/wife is entitled to the services of his/her spouse in attending to the household duties, to companionship and comfort, and consortium, that is, marital relations. A plaintiff who is awarded a verdict is entitled to fair and reasonable compensation for any loss of impairment of his or her spouse's services, society or consortium because of injuries sustained by him or her as a proximate result of the defendant's negligence (or other wrongdoing). Damages may be awarded not only for total loss of services but for a worsening of their quality.
[If appropriate the judge may charge,] Damages may include but are not limited to out of pocket expenses incurred in engaging the services of others to perform household duties previously attended to by his or her spouse.
Cases:
Schuttler v. Reinhardt, 17 N.J. Super. 480 (App. Div. 1952); Rex v. Hunter, 26 N.J. 489 (1958).
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Model Civil Jury Charges
8.30A DAMAGES -- PER QUOD -- MEDICAL EXPENSES
A. Medical Expenses (2/96)
In the event that the child [name] is awarded a verdict, his/her parent is entitled to payment for medical expenses which were reasonably required for the examination, treatment and care of injuries proximately caused by the defendant's negligence (or other wrongdoing). Medical expenses are the costs of doctors' services, hospital services, medicines, medical supplies and medical tests and any other charges for medical services. The amount of payment is the fair and reasonable value of such medical expenses. You have heard testimony on whether these medical expenses were fair and reasonable in amount and whether they were reasonably necessary for the examination, care and treatment of the child. If you determine that any of these bills were not fair and reasonable to any extent, or that any of these services were not reasonably necessary to any extent, you need not award the full amount claimed. In this case, plaintiff [parent] is seeking the sum of [dollar amount] in medical expenses. As a result, the upper limit of the award which you may make for medical expenses is [dollar amount], since you may not award more than plaintiff [parent] is seeking.
Cases:
Simmel v. N.J. Coop Co., 28 N.J. 1 (1958); Mathias v. Luke, 37 N.J. Super. 241 (App. Div. 1955); Schuttler v. Reinhardt, 17 N.J. Super. 480 (App. Div. 1952).
See cases under Model Charge 6.11A on the collateral source rule.
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Model Civil Jury Charges
In the event that the child [name] is awarded a verdict, his/her parent is entitled to payment for medical expenses which were reasonably required for the examination, treatment and care of injuries proximately caused by the defendant's negligence (or other wrongdoing). Medical expenses are the costs of doctors' services, hospital services, medicines, medical supplies and medical tests and any other charges for medical services. The amount of payment is the fair and reasonable value of such medical expenses. You have heard testimony on whether these medical expenses were fair and reasonable in amount and whether they were reasonably necessary for the examination, care and treatment of the child. If you determine that any of these bills were not fair and reasonable to any extent, or that any of these services were not reasonably necessary to any extent, you need not award the full amount claimed. In this case, plaintiff [parent] is seeking the sum of [dollar amount] in medical expenses. As a result, the upper limit of the award which you may make for medical expenses is [dollar amount], since you may not award more than plaintiff [parent] is seeking.
Cases:
Simmel v. N.J. Coop Co., 28 N.J. 1 (1958); Mathias v. Luke, 37 N.J. Super. 241 (App. Div. 1955); Schuttler v. Reinhardt, 17 N.J. Super. 480 (App. Div. 1952).
See cases under Model Charge 6.11A on the collateral source rule.
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Model Civil Jury Charges
8.11I FUTURE MEDICAL EXPENSES
K.
Plaintiff in this case seeks to recover future medical expenses. Plaintiff has a right to be compensated for any future medical expenses resulting from the injuries brought about by defendant's wrongdoing.See footnote 2
If it is reasonably probable that plaintiff will incur medical expenses in the future then you should also include an amount to compensate the plaintiff for those medical expenses. In deciding how much to award for future medical expenses think about the factors mentioned in discussing the nature, extent and duration of plaintiff's injury. Also consider plaintiff's age today, his/her general state of health before the accident, and how long you reasonably expect the medical expenses to continue. Obviously, the time period covering plaintiff's future medical expenses cannot go beyond that point when it is expected that he/she may recover from his/her injuries.See footnote 3 You should also consider plaintiff's life expectancy in assessing future medical expenses.See footnote 4
But you should be aware that the figures that you have been given on life expectancy are only statistical averages. Do not treat them as necessary or fixed rules, since they are general estimates. Use them with caution and use your sound judgment in taking them into account.
For future medical expenses you must base your decision on the probable amount that plaintiff will incur. It is the burden of the plaintiff to prove, by a preponderance of the evidence, the probable need for future medical care and the reasonableness of the charge for future medical care.
In deciding what plaintiff's future medical expenses are, understand that the law does not require of you mathematical exactness. Rather, you must use sound judgment based on reasonable probability.
Once you have decided how much medical care plaintiff will need in the future, you must then consider the effects of inflation and interest. As to inflation, you should consider the effects it probably will have in reducing the purchasing power of money. Any award for future medical expenses should be increased to account for losses due to inflation. The consideration of interest requires that you should not just award plaintiff the exact amount of medical care that he/she will need in the future. The reason for that is that plaintiff will have that money now even though he/she will not have needed that money until some time in the future. And that means that plaintiff will be able to invest the money and earn interest on it now even though he/she otherwise would not have had that money to invest until some future date.
To make up for this, you must make an adjustment for having the money available now even though the expense will not be experienced until the future. This adjustment is known as discounting, and what discounting does is give you the value of the money that you get now instead of getting it at some future time. In other words, it gives you the present value or present worth in a
single lump sum of money which otherwise was going to be received over a number of years at so much per year.
Your goal is to create a fund of money which will be enough to provide plaintiff future medical care and which will be used up at the end of the total period of need. In arriving at the amount of that fund -- the present value of future need -- you should consider the interest the fund would earn, the probable amount by which taxation on the interest would decrease the money available to plaintiff and the effect of inflation in decreasing the purchasing power of money.
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Footnote: 1 If the attorneys will stipulate as a fact that the interest and inflation rates will offset each other, only paragraphs one, two and three of this section need be charged.
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Footnote: 2 Coll v. Sherry, 29 N.J. 166, 174 (1959).
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Footnote: 3 The collateral source rule [see cases under Model Charge 6.11(A)] applies to loss of earnings as well as to medical and hospital expenses. Plaintiff may recover damages for loss of earnings although having been paid wages or their equivalent by employer pursuant to sick or annual leave benefits or retirement on half salary under a pension contract. Rusk v. Jeffries, 110 N.J.L. 307, 311 (E. & A. 1933). Chap. 326, L. 1987, eliminates the collateral source rule as to causes of action arising on or after December 18, 1987. Deduction of benefits, less premiums, is done by the court, not the jury. See also N.J.S.A. 59:9-2(3) for similar effect for Tort Claims Act causes of action. See Parker v. Esposito, 291 N.J. Super. 560 (App. Div. 1996) for application of collateral source rule to future benefits.
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Footnote: 4 This concept should be charged if there is appropriate evidence received on the subject.
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Model Civil Jury Charges
Plaintiff in this case seeks to recover future medical expenses. Plaintiff has a right to be compensated for any future medical expenses resulting from the injuries brought about by defendant's wrongdoing.See footnote 2
If it is reasonably probable that plaintiff will incur medical expenses in the future then you should also include an amount to compensate the plaintiff for those medical expenses. In deciding how much to award for future medical expenses think about the factors mentioned in discussing the nature, extent and duration of plaintiff's injury. Also consider plaintiff's age today, his/her general state of health before the accident, and how long you reasonably expect the medical expenses to continue. Obviously, the time period covering plaintiff's future medical expenses cannot go beyond that point when it is expected that he/she may recover from his/her injuries.See footnote 3 You should also consider plaintiff's life expectancy in assessing future medical expenses.See footnote 4
But you should be aware that the figures that you have been given on life expectancy are only statistical averages. Do not treat them as necessary or fixed rules, since they are general estimates. Use them with caution and use your sound judgment in taking them into account.
For future medical expenses you must base your decision on the probable amount that plaintiff will incur. It is the burden of the plaintiff to prove, by a preponderance of the evidence, the probable need for future medical care and the reasonableness of the charge for future medical care.
In deciding what plaintiff's future medical expenses are, understand that the law does not require of you mathematical exactness. Rather, you must use sound judgment based on reasonable probability.
Once you have decided how much medical care plaintiff will need in the future, you must then consider the effects of inflation and interest. As to inflation, you should consider the effects it probably will have in reducing the purchasing power of money. Any award for future medical expenses should be increased to account for losses due to inflation. The consideration of interest requires that you should not just award plaintiff the exact amount of medical care that he/she will need in the future. The reason for that is that plaintiff will have that money now even though he/she will not have needed that money until some time in the future. And that means that plaintiff will be able to invest the money and earn interest on it now even though he/she otherwise would not have had that money to invest until some future date.
To make up for this, you must make an adjustment for having the money available now even though the expense will not be experienced until the future. This adjustment is known as discounting, and what discounting does is give you the value of the money that you get now instead of getting it at some future time. In other words, it gives you the present value or present worth in a
single lump sum of money which otherwise was going to be received over a number of years at so much per year.
Your goal is to create a fund of money which will be enough to provide plaintiff future medical care and which will be used up at the end of the total period of need. In arriving at the amount of that fund -- the present value of future need -- you should consider the interest the fund would earn, the probable amount by which taxation on the interest would decrease the money available to plaintiff and the effect of inflation in decreasing the purchasing power of money.
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Footnote: 1 If the attorneys will stipulate as a fact that the interest and inflation rates will offset each other, only paragraphs one, two and three of this section need be charged.
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Footnote: 2 Coll v. Sherry, 29 N.J. 166, 174 (1959).
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Footnote: 3 The collateral source rule [see cases under Model Charge 6.11(A)] applies to loss of earnings as well as to medical and hospital expenses. Plaintiff may recover damages for loss of earnings although having been paid wages or their equivalent by employer pursuant to sick or annual leave benefits or retirement on half salary under a pension contract. Rusk v. Jeffries, 110 N.J.L. 307, 311 (E. & A. 1933). Chap. 326, L. 1987, eliminates the collateral source rule as to causes of action arising on or after December 18, 1987. Deduction of benefits, less premiums, is done by the court, not the jury. See also N.J.S.A. 59:9-2(3) for similar effect for Tort Claims Act causes of action. See Parker v. Esposito, 291 N.J. Super. 560 (App. Div. 1996) for application of collateral source rule to future benefits.
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Footnote: 4 This concept should be charged if there is appropriate evidence received on the subject.
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Model Civil Jury Charges
8.21 DAMAGES - NONUSE OF SEAT BELT INCLUDING ULTIMATE OUTCOME
J. Damages as Affected by Nonuse of Seat Belt Including Ultimate OutcomeSee footnote 1 (6/89)
As I told you earlier,See footnote 2 defendant's contention that plaintiff was not wearing a seat belt is not relevant in deciding who is at fault for causing the accident. But it may be meaningful in determining the amount of money plaintiff may recover for any injuries you find he/she received. I would now like to tell you how this works.
In order to succeed on this reduction of damages issue, defendant must prove by the greater weight of the evidence that:
1. Plaintiff was not using an available seat belt at the time of the accident.See footnote 3
2. Plaintiff was negligent in not using that seat belt at the time of the accident.
3. Plaintiff's injuries were made greater or more severe because he/she was not using a seat belt. In other words, some or all of plaintiff's injuries could have been prevented or avoided if he/she had been using a seat belt.See footnote 4
I would like now to talk with you about how you go about deciding if defendant has proven each of these three points to you. You may note that each of these points is set out on the jury verdict sheet as questions ( ).
The first point you must decide is whether defendant has shown that plaintiff was not using an available seat belt at the time of the accident.
The second point that defendant must show is that plaintiff was negligent for not using the seat belt.
Negligence in this type of situation is the failure to use the degree of care for one's own safety and protection that a reasonably prudent person would use in the same or similar circumstances by a reasonably prudent person I mean
neither the most cautious person nor one who is unusually bold, but rather one of reasonable vigilance, caution and prudence.
New Jersey lawSee footnote 5 requires the driver [and front seat passengers] of a car to wear a properly adjusted and fastened seat belt while the vehicle is in operation on any street or highway of this State. If you find that the plaintiff was in violation of that law at the time of the accident, you may consider that violation of a statutory duty of care on the issue of negligence. However, the violation is not conclusive as to the issue of whether plaintiff was negligent.See footnote 6 It is a factor or circumstance which you should consider in assessing the negligence, if any, of the plaintiff. You may also take into account the prevailing custom of seat belt use at the time of the accident.See footnote 7 [That is, what percentage generally of the drivers (and front seat passengers) used a seat belt at the time of the accident.] Think about all of these factors in deciding
whether plaintiff acted as a reasonably prudent person and, therefore, was or was not negligent in not using a seat belt.
If you decide that a reasonably prudent person would not have been using a seat belt, then you should find that the plaintiff was not negligent and stop deliberating on the seat belt damage reduction claim.See footnote 8 However, if you decide that a reasonably prudent person would have used a seat belt in that situation at that time, then you should find that the plaintiff was negligent and continue deliberating on the seat belt damage reduction claim.
If you find that the plaintiff was negligent, you must then decide whether the failure to use a seat belt increased the extent or severity of his/her injuries. In making this decision, you are to consider all of the evidence in this case, including the testimony of the expert witness(es) who testified. Think about the total extent of plaintiff's injuries and whether any of those injuries would have been avoided if he/she had been using a seat belt. [ WHERE APPLICABLE: If you find that the plaintiff was severely injured, and the evidence shows that his/her severe injuries could not have been avoided by the use of a seat belt, it is immaterial that some very minor injuries could have been avoided by
seat belt use. Therefore, if the negligent failure to wear a seat belt had no impact on the extent of the injury, you should cease to consider the seat belt issue. If, on the other hand, you find that the negligent failure to wear a seat belt increased the extent or severity of injuries, you must then evaluate the impact of the failure to wear a seat belt.]See footnote 9
If you decide three facts: One, plaintiff was not using an available seat belt at the time of the accident; two, that plaintiff was negligent in not using the seat belt; and three, as a result, plaintiff's injuries were made greater or more severe, then you must make two more decisions. You will see that these appear as questions ( ) on your jury verdict sheet.
The first is to decide what part of plaintiff's injuries would have been avoided if a seat belt had been used. The defendant has the burden of proving this to you. To do this, you must first determine the value of the total damages which plaintiff incurred. Then, you must set the amount of the damages that would have been sustained in the accident if a seat belt had been used. You will subtract that amount from the total damages actually sustained in order to obtain what I will call seat belt damages.
The final decision you must make about the seat belt claim is whether you will allocate or assign some percentage of negligence or fault to plaintiff because of his/her failure to use a seat belt. This is a separate consideration of fault from your earlier one concerning the fault of the parties in causing the accident. The percentage of negligence or fault I am talking about now is only in connection with the increased injuries. For how much of that fault--in a percentage ranging from one to one hundred percent--do you find plaintiff is responsible?See footnote 10
You may be wondering why you have to make all of these decisions and how they may affect the final outcome of this case. I want to describe that to you now.
From the jury verdict sheet, you can see that you are making two separate decisions about fault. The first one is to the cause of the accident. The second is to the cause of any enhanced or increased injuries which occurred by not using a seat belt.
Understand that you are not being asked to make the mathematical calculations; that will be my job--to put your findings into effect. But I am
going to give you some idea as to how your decisions will work in affecting the final outcome in this case.See footnote 11
What I shall do is being with your total amount of damages and then separate that money amount into two portions. One portion shall be the sum you calculated for the plaintiff's enhanced injuries as a result of not wearing a seat belt, which I have been calling seat belt damages, and the other shall be the remainder sum of the non-seat belt damages, which is the total damages less seat belt damages.
I shall reduce the non-seat belt damages by the percentage of fault, if any, you decide is plaintiff's for causing the accident. I shall reduce the seat belt damages by the total amount which you decide is plaintiff's for the fault of the accident and the failure to wear the seat belt, taking into consideration defendant's fault for causing the accident. I shall then add the two reduced amounts together to arrive at the total award to the plaintiff.
But, as I said a moment ago, you do not do these calculations. I do them, based on your answers on the jury verdict sheet.
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JURY VERDICT FORM
(Including Seat Belt Damages)
1. Was D negligent in the operation of his/her motor vehicle?
Yes _____ go on to 2.
No _____ end your discussions.
2. If D was negligent, was his/her negligence a proximate cause of the accident?
Yes _____ go on to 3.
No _____ end your discussions.
3. Was P Negligent in the operation of his/her motor vehicle?
Yes _____ go on to 4.
No _____ skip over 4 and 5, and go on to 6.
4. If P was negligent, was his/her negligence a proximate cause of the accident?
Yes _____ go on to 5.
No _____ skip over 5 and go on to 6.
5. Comparison of negligence in causing the accident:
P _____%
D _____%
Total 100%
Go on to 6 only if the negligence of D in causing the accident is 50% or more; if D's negligence in causing the accident is less than 50%, end your discussions.
6. Was P using an available seat belt at the time of the accident?
Yes _____ skip over 7 and 8 and go on to 9.
No _____ go on to 7.
7. Was P negligent for not using a seat belt?
Yes _____ go on to 8.
No _____ skip over 8 and go on to 9.
8. Were P's injuries made greater or more severe because he/she was not using a seat belt?
Yes _____ go on to 9.
No _____ go on to 9.
9. P's total damages from the accident: $ ___________.
Go on to 10 only if you answered 8 as "yes." If you answered 6, 7 or 8 as "no," end your discussions.
10. P's damages, if he/she had used a seat belt $ ___________.
Go to 11.
11. P's seat damages (answer to 9 minus answer to 10): $ ___________.
Go to 12.
12. P's negligence for not using a seat belt: ______% (from 1% to 100%).
End your discussions; return your verdict.
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Footnote: 1 This charge incorporates the standards of Waterson v. General Motors Corp., 111 N.J. 238 (1988), but this does not incorporate the standard charge on ultimate outcome regarding liability, which appears at model charge 8.21.
--------------------------------------------------------------------------------
Footnote: 2 This refers to model charge 5.18M.
--------------------------------------------------------------------------------
Footnote: 3 Under Federal Motor Vehicle Safety Standards, all passenger automobiles manufactured after June 30, 1986, must be equipped with a safety seat belt system. Since the determination of Waterson that the enactment of N.J.S.A. 39:3-76.2(e) et seq. reinforced a public policy encouraging the use of seat belts, and since those statutes require the driver and front seat passenger to wear a properly adjusted and fastened seat belt, several questions continue after Waterson. For example, could plaintiff be negligent for knowingly occupying a vehicle with a non-functioning seat belt? If there is a factual dispute whether the available seat belt was functional, who has the burden of proving that it was functional? Does the
rationale of Waterson apply to vehicles other than passenger automobiles? Does Waterson apply to situations exempted under N.J.S.A. 39:3-76.2(g) from seat belt usage requirements?
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Footnote: 4 Normally, this will require expert testimony. See, Dunn v. Durso, 219 N.J. Super. 383, 388-389 (Law Div. 1986), and Barry v. The Coca Cola Co., 99 N.J. Super. 270, 274-275 (Law Div. 1967).
--------------------------------------------------------------------------------
Footnote: 5 N.J.S.A. 39:3-76.2(f). The statute applies only to passenger automobiles, not other vehicles.
--------------------------------------------------------------------------------
Footnote: 6 Waterson, supra, 111 N.J. at 263.
--------------------------------------------------------------------------------
Footnote: 7 Waterson, supra, 111 N.J. at 266.
--------------------------------------------------------------------------------
Footnote: 8 See, Bleeker v. Trickolo, 89 N.J. Super. 502 (App. Div. 1965), and Johnson v. Salem Corp., 97 N.J. 78, 97-98 (1984).
--------------------------------------------------------------------------------
Footnote: 9 Waterson, supra, 111 N.J. at 272.
--------------------------------------------------------------------------------
Footnote: 10 Query: Does this apply when the plaintiff-front seat passenger is between 5 and 17 years of age. See N.J.S.A. 39:3-76.2(f)(b).
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Footnote: 11 The process is fully described in Waterson, supra, 111 N.J. at 270-275, especially at 274.
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Model Civil Jury Charges
As I told you earlier,See footnote 2 defendant's contention that plaintiff was not wearing a seat belt is not relevant in deciding who is at fault for causing the accident. But it may be meaningful in determining the amount of money plaintiff may recover for any injuries you find he/she received. I would now like to tell you how this works.
In order to succeed on this reduction of damages issue, defendant must prove by the greater weight of the evidence that:
1. Plaintiff was not using an available seat belt at the time of the accident.See footnote 3
2. Plaintiff was negligent in not using that seat belt at the time of the accident.
3. Plaintiff's injuries were made greater or more severe because he/she was not using a seat belt. In other words, some or all of plaintiff's injuries could have been prevented or avoided if he/she had been using a seat belt.See footnote 4
I would like now to talk with you about how you go about deciding if defendant has proven each of these three points to you. You may note that each of these points is set out on the jury verdict sheet as questions ( ).
The first point you must decide is whether defendant has shown that plaintiff was not using an available seat belt at the time of the accident.
The second point that defendant must show is that plaintiff was negligent for not using the seat belt.
Negligence in this type of situation is the failure to use the degree of care for one's own safety and protection that a reasonably prudent person would use in the same or similar circumstances by a reasonably prudent person I mean
neither the most cautious person nor one who is unusually bold, but rather one of reasonable vigilance, caution and prudence.
New Jersey lawSee footnote 5 requires the driver [and front seat passengers] of a car to wear a properly adjusted and fastened seat belt while the vehicle is in operation on any street or highway of this State. If you find that the plaintiff was in violation of that law at the time of the accident, you may consider that violation of a statutory duty of care on the issue of negligence. However, the violation is not conclusive as to the issue of whether plaintiff was negligent.See footnote 6 It is a factor or circumstance which you should consider in assessing the negligence, if any, of the plaintiff. You may also take into account the prevailing custom of seat belt use at the time of the accident.See footnote 7 [That is, what percentage generally of the drivers (and front seat passengers) used a seat belt at the time of the accident.] Think about all of these factors in deciding
whether plaintiff acted as a reasonably prudent person and, therefore, was or was not negligent in not using a seat belt.
If you decide that a reasonably prudent person would not have been using a seat belt, then you should find that the plaintiff was not negligent and stop deliberating on the seat belt damage reduction claim.See footnote 8 However, if you decide that a reasonably prudent person would have used a seat belt in that situation at that time, then you should find that the plaintiff was negligent and continue deliberating on the seat belt damage reduction claim.
If you find that the plaintiff was negligent, you must then decide whether the failure to use a seat belt increased the extent or severity of his/her injuries. In making this decision, you are to consider all of the evidence in this case, including the testimony of the expert witness(es) who testified. Think about the total extent of plaintiff's injuries and whether any of those injuries would have been avoided if he/she had been using a seat belt. [ WHERE APPLICABLE: If you find that the plaintiff was severely injured, and the evidence shows that his/her severe injuries could not have been avoided by the use of a seat belt, it is immaterial that some very minor injuries could have been avoided by
seat belt use. Therefore, if the negligent failure to wear a seat belt had no impact on the extent of the injury, you should cease to consider the seat belt issue. If, on the other hand, you find that the negligent failure to wear a seat belt increased the extent or severity of injuries, you must then evaluate the impact of the failure to wear a seat belt.]See footnote 9
If you decide three facts: One, plaintiff was not using an available seat belt at the time of the accident; two, that plaintiff was negligent in not using the seat belt; and three, as a result, plaintiff's injuries were made greater or more severe, then you must make two more decisions. You will see that these appear as questions ( ) on your jury verdict sheet.
The first is to decide what part of plaintiff's injuries would have been avoided if a seat belt had been used. The defendant has the burden of proving this to you. To do this, you must first determine the value of the total damages which plaintiff incurred. Then, you must set the amount of the damages that would have been sustained in the accident if a seat belt had been used. You will subtract that amount from the total damages actually sustained in order to obtain what I will call seat belt damages.
The final decision you must make about the seat belt claim is whether you will allocate or assign some percentage of negligence or fault to plaintiff because of his/her failure to use a seat belt. This is a separate consideration of fault from your earlier one concerning the fault of the parties in causing the accident. The percentage of negligence or fault I am talking about now is only in connection with the increased injuries. For how much of that fault--in a percentage ranging from one to one hundred percent--do you find plaintiff is responsible?See footnote 10
You may be wondering why you have to make all of these decisions and how they may affect the final outcome of this case. I want to describe that to you now.
From the jury verdict sheet, you can see that you are making two separate decisions about fault. The first one is to the cause of the accident. The second is to the cause of any enhanced or increased injuries which occurred by not using a seat belt.
Understand that you are not being asked to make the mathematical calculations; that will be my job--to put your findings into effect. But I am
going to give you some idea as to how your decisions will work in affecting the final outcome in this case.See footnote 11
What I shall do is being with your total amount of damages and then separate that money amount into two portions. One portion shall be the sum you calculated for the plaintiff's enhanced injuries as a result of not wearing a seat belt, which I have been calling seat belt damages, and the other shall be the remainder sum of the non-seat belt damages, which is the total damages less seat belt damages.
I shall reduce the non-seat belt damages by the percentage of fault, if any, you decide is plaintiff's for causing the accident. I shall reduce the seat belt damages by the total amount which you decide is plaintiff's for the fault of the accident and the failure to wear the seat belt, taking into consideration defendant's fault for causing the accident. I shall then add the two reduced amounts together to arrive at the total award to the plaintiff.
But, as I said a moment ago, you do not do these calculations. I do them, based on your answers on the jury verdict sheet.
--------------------------------------------------------------------------------
JURY VERDICT FORM
(Including Seat Belt Damages)
1. Was D negligent in the operation of his/her motor vehicle?
Yes _____ go on to 2.
No _____ end your discussions.
2. If D was negligent, was his/her negligence a proximate cause of the accident?
Yes _____ go on to 3.
No _____ end your discussions.
3. Was P Negligent in the operation of his/her motor vehicle?
Yes _____ go on to 4.
No _____ skip over 4 and 5, and go on to 6.
4. If P was negligent, was his/her negligence a proximate cause of the accident?
Yes _____ go on to 5.
No _____ skip over 5 and go on to 6.
5. Comparison of negligence in causing the accident:
P _____%
D _____%
Total 100%
Go on to 6 only if the negligence of D in causing the accident is 50% or more; if D's negligence in causing the accident is less than 50%, end your discussions.
6. Was P using an available seat belt at the time of the accident?
Yes _____ skip over 7 and 8 and go on to 9.
No _____ go on to 7.
7. Was P negligent for not using a seat belt?
Yes _____ go on to 8.
No _____ skip over 8 and go on to 9.
8. Were P's injuries made greater or more severe because he/she was not using a seat belt?
Yes _____ go on to 9.
No _____ go on to 9.
9. P's total damages from the accident: $ ___________.
Go on to 10 only if you answered 8 as "yes." If you answered 6, 7 or 8 as "no," end your discussions.
10. P's damages, if he/she had used a seat belt $ ___________.
Go to 11.
11. P's seat damages (answer to 9 minus answer to 10): $ ___________.
Go to 12.
12. P's negligence for not using a seat belt: ______% (from 1% to 100%).
End your discussions; return your verdict.
--------------------------------------------------------------------------------
Footnote: 1 This charge incorporates the standards of Waterson v. General Motors Corp., 111 N.J. 238 (1988), but this does not incorporate the standard charge on ultimate outcome regarding liability, which appears at model charge 8.21.
--------------------------------------------------------------------------------
Footnote: 2 This refers to model charge 5.18M.
--------------------------------------------------------------------------------
Footnote: 3 Under Federal Motor Vehicle Safety Standards, all passenger automobiles manufactured after June 30, 1986, must be equipped with a safety seat belt system. Since the determination of Waterson that the enactment of N.J.S.A. 39:3-76.2(e) et seq. reinforced a public policy encouraging the use of seat belts, and since those statutes require the driver and front seat passenger to wear a properly adjusted and fastened seat belt, several questions continue after Waterson. For example, could plaintiff be negligent for knowingly occupying a vehicle with a non-functioning seat belt? If there is a factual dispute whether the available seat belt was functional, who has the burden of proving that it was functional? Does the
rationale of Waterson apply to vehicles other than passenger automobiles? Does Waterson apply to situations exempted under N.J.S.A. 39:3-76.2(g) from seat belt usage requirements?
--------------------------------------------------------------------------------
Footnote: 4 Normally, this will require expert testimony. See, Dunn v. Durso, 219 N.J. Super. 383, 388-389 (Law Div. 1986), and Barry v. The Coca Cola Co., 99 N.J. Super. 270, 274-275 (Law Div. 1967).
--------------------------------------------------------------------------------
Footnote: 5 N.J.S.A. 39:3-76.2(f). The statute applies only to passenger automobiles, not other vehicles.
--------------------------------------------------------------------------------
Footnote: 6 Waterson, supra, 111 N.J. at 263.
--------------------------------------------------------------------------------
Footnote: 7 Waterson, supra, 111 N.J. at 266.
--------------------------------------------------------------------------------
Footnote: 8 See, Bleeker v. Trickolo, 89 N.J. Super. 502 (App. Div. 1965), and Johnson v. Salem Corp., 97 N.J. 78, 97-98 (1984).
--------------------------------------------------------------------------------
Footnote: 9 Waterson, supra, 111 N.J. at 272.
--------------------------------------------------------------------------------
Footnote: 10 Query: Does this apply when the plaintiff-front seat passenger is between 5 and 17 years of age. See N.J.S.A. 39:3-76.2(f)(b).
--------------------------------------------------------------------------------
Footnote: 11 The process is fully described in Waterson, supra, 111 N.J. at 270-275, especially at 274.
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Model Civil Jury Charges
8.11H DAMAGES - CAPITALIZATION
I. Capitalization (pre-1984)
The plaintiff introduced testimony that $ _____ is the amount which if invested today at 3-1/2% compound interest would produce $1.00 per year for the _____ years of his/her life expectancy [or work life expectancy]. You may apply this figure of $ _____ in your award of damages, if any, for future loss of earnings but you need not do so or you may make such adjustment in it as you determine to be fair and reasonable.
If you apply the figure of $______, do so as follows: determine the amount of the plaintiff's loss of earnings proximately caused by this injury and disability starting today into the future. This may be an amount based upon the difference between what you find the plaintiff would have earned if it had not been for this injury and disability and what you find he/she will earn in such employment as he/she is physically capable of undertaking. Reach your calculation of the amount to be awarded for his/her future loss of earnings by multiplying $______ by what you have determined to be the plaintiff's average dollar loss of earnings per year from now into the future. That amount, or such other amount as you arrive at fairly and reasonably, should be included in your verdict to compensate the plaintiff for his/her future loss of earnings.
NOTES:
This model charge may be adapted to provide a formula for calculation of the pecuniary loss to the dependents or next of kin in wrongful death actions.
Further explanatory language to supplement this model charge: "The law says we must ascertain the present value of future losses. Our rules have provided a method which may be used in ascertaining the present value of future losses. There is a difference in the value of an amount of money given as a lump sum at the present time and the present value of the same amount given in periodic future payments, such as weekly (monthly) contributions over a period of years during the next of kin's anticipated life expectancy. A sum of money due at some future time is not worth that much today because if you were paid today you would have the money to invest and it would earn interest. You take the amount you wish to have in the future and discount it, that is, reduce it making allowance for the interest you would earn by getting the money earlier."
Cases:
Koppovich v. LeWinter, 43 N.J. Super. 523, 538 (App. Div. 1957), certification denied 24 N.J. 112 (1957); Dickerson v. Mutual Grocery Co., 100 N.J.L. 118, 120 (E. & A. 1924).
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Model Civil Jury Charges
The plaintiff introduced testimony that $ _____ is the amount which if invested today at 3-1/2% compound interest would produce $1.00 per year for the _____ years of his/her life expectancy [or work life expectancy]. You may apply this figure of $ _____ in your award of damages, if any, for future loss of earnings but you need not do so or you may make such adjustment in it as you determine to be fair and reasonable.
If you apply the figure of $______, do so as follows: determine the amount of the plaintiff's loss of earnings proximately caused by this injury and disability starting today into the future. This may be an amount based upon the difference between what you find the plaintiff would have earned if it had not been for this injury and disability and what you find he/she will earn in such employment as he/she is physically capable of undertaking. Reach your calculation of the amount to be awarded for his/her future loss of earnings by multiplying $______ by what you have determined to be the plaintiff's average dollar loss of earnings per year from now into the future. That amount, or such other amount as you arrive at fairly and reasonably, should be included in your verdict to compensate the plaintiff for his/her future loss of earnings.
NOTES:
This model charge may be adapted to provide a formula for calculation of the pecuniary loss to the dependents or next of kin in wrongful death actions.
Further explanatory language to supplement this model charge: "The law says we must ascertain the present value of future losses. Our rules have provided a method which may be used in ascertaining the present value of future losses. There is a difference in the value of an amount of money given as a lump sum at the present time and the present value of the same amount given in periodic future payments, such as weekly (monthly) contributions over a period of years during the next of kin's anticipated life expectancy. A sum of money due at some future time is not worth that much today because if you were paid today you would have the money to invest and it would earn interest. You take the amount you wish to have in the future and discount it, that is, reduce it making allowance for the interest you would earn by getting the money earlier."
Cases:
Koppovich v. LeWinter, 43 N.J. Super. 523, 538 (App. Div. 1957), certification denied 24 N.J. 112 (1957); Dickerson v. Mutual Grocery Co., 100 N.J.L. 118, 120 (E. & A. 1924).
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Model Civil Jury Charges
8.11G DAMAGES -- LIFE EXPECTANCY
H. Life Expectancy (2/96)
If you make an award for future pain and suffering, disability and impairment, loss of enjoyment of life, medical expenses, and loss of future earnings, you may consider the plaintiff's life expectancy. Plaintiff's life expectancy today (at the time of the accident) is _______ years. That is an estimation of his/her probable length of life based upon statistical data. Since it is a general estimate, you should use it with caution in an individual case. The plaintiff may live a longer or shorter period than the estimated figure. You should exercise your sound judgment in applying the life expectancy figure without treating it as a necessary and fixed rule.
Cases:
Dalton v. Gesser, 72 N.J. Super. 100 (App. Div. 1962); Housen v. Olesky, 71 N.J.Super. 95 (App. Div. 1961); Kappovich v. LeWinter, 43 N.J. Super. 528 (App. Div. 1957); Dickerson v. Mutual Grocer Co., 100 N.J.L. 118 (E. & A. 1924).
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Model Civil Jury Charges
If you make an award for future pain and suffering, disability and impairment, loss of enjoyment of life, medical expenses, and loss of future earnings, you may consider the plaintiff's life expectancy. Plaintiff's life expectancy today (at the time of the accident) is _______ years. That is an estimation of his/her probable length of life based upon statistical data. Since it is a general estimate, you should use it with caution in an individual case. The plaintiff may live a longer or shorter period than the estimated figure. You should exercise your sound judgment in applying the life expectancy figure without treating it as a necessary and fixed rule.
Cases:
Dalton v. Gesser, 72 N.J. Super. 100 (App. Div. 1962); Housen v. Olesky, 71 N.J.Super. 95 (App. Div. 1961); Kappovich v. LeWinter, 43 N.J. Super. 528 (App. Div. 1957); Dickerson v. Mutual Grocer Co., 100 N.J.L. 118 (E. & A. 1924).
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Model Civil Jury Charges
8.11F DAMAGES -- AGGRAVATION OF A PREEXISTING DISABILITY
G. Aggravation of a Preexisting Illness (1/97)
In this case, evidence has been presented that [plaintiff] had an illness/injury(ies)/condition before the accident/incident -- that is [describe the alleged preexisting injury]. I will refer to this condition as the preexisting injury.See footnote 1 There are different rules for awarding damages whether the preexisting injury was or was not causing plaintiff any harm or symptoms at the time of this accident.
Obviously, the defendants in this case are not responsible for any preexisting injury of [plaintiff]. As a result, you may not award any money in this case for damages attributable solely to any preexisting illness/injury(ies)/condition.
I will now explain what happens if the [plaintiff's] was experiencing symptoms for the preexisting condition at the time of the accident. If the injuries sustained in this accident aggravated or made [plaintiff] preexisting injury more severe, then the [plaintiff] may recover for any damages sustained due to an aggravation or worsening of a preexisting illness/injury(ies)/condition but only to the extent of that aggravation. Plaintiff has the burden of proving what portion of his/her condition is due to his/her preexisting injury.See footnote 2 [Plaintiff] is entitled to damages only for that portion of his/her injuries attributable to the accident.
If you find that [plaintiff's] preexisting illness/injury(ies)/condition was not causing him/her any harm or symptoms at the time of the accident, but that the preexisting condition combined with injuries incurred in the accident to cause him/her damage, then [plaintiff] is entitled to recover for the full extent of the damages he/she sustained.
[Use the following where a preexisting latent condition is involved].
I will now explain what happens if [plaintiff] had a predisposition or weakness which was causing no symptoms or problems before the accident but made him/her more susceptible to the kind of medical problems he/she claims in this case. If the injuries sustained in this accident combined with that predisposition to create the plaintiff's medical condition, then plaintiff is entitled to recover for all of the damage sustained due to that condition. You must not speculate that an individual without such predisposition or latent condition would have experienced less pain, suffering, disability and impairment.See footnote 3
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Footnote: 1 This rule does not apply to medical malpractice cases; there the defendant has the burden of segregating recoverable damages from those solely incident to pre-existing disease. Fosgate v. Corona, 66 N.J. 268 (1974). See also Scafidi v. Seiler, 119 N.J. 93 (1990) and Model Jury Charge--Civil 5.36E. The burden of proving which of plaintiff's conditions were caused by preexisting events is shifted to the defendants whenever defendants have vastly greater access than plaintiff to crucial proofs. Blanks v. Murphy, 268 N.J. Super. 152 (App. Div. 1993) citing Sholtis v. American Cyanamid Co., 238 N.J. Super 8 (App. Div. 1989) (applying the same principal in the area of asbestos exposure injuries). See also Thornton v. General Motors Corp., 280 N.J. Super 295 (Law Div. 1994) applying the Fosgate and Scafidi principal of burden shifting to the defendant manufacturer in a crashworthy case.
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Footnote: 2 There may be cases where based on medical testimony or other evidence there is no dispute that the preexisting injury was quiescent in which case the second and third paragraphs of the charge might be omitted.
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Footnote: 3 Quagliato v. Bodner, 115 N.J. Super 133 (App. Div. 1971) contains detailed instructions for how to handle the unusual circumstance where two separate tortious events such as automobile accidents within a few months which cause overlapping or invisible injuries are properly consolidated for a damage-only trial after a finding of liability.
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Model Civil Jury Charges
In this case, evidence has been presented that [plaintiff] had an illness/injury(ies)/condition before the accident/incident -- that is [describe the alleged preexisting injury]. I will refer to this condition as the preexisting injury.See footnote 1 There are different rules for awarding damages whether the preexisting injury was or was not causing plaintiff any harm or symptoms at the time of this accident.
Obviously, the defendants in this case are not responsible for any preexisting injury of [plaintiff]. As a result, you may not award any money in this case for damages attributable solely to any preexisting illness/injury(ies)/condition.
I will now explain what happens if the [plaintiff's] was experiencing symptoms for the preexisting condition at the time of the accident. If the injuries sustained in this accident aggravated or made [plaintiff] preexisting injury more severe, then the [plaintiff] may recover for any damages sustained due to an aggravation or worsening of a preexisting illness/injury(ies)/condition but only to the extent of that aggravation. Plaintiff has the burden of proving what portion of his/her condition is due to his/her preexisting injury.See footnote 2 [Plaintiff] is entitled to damages only for that portion of his/her injuries attributable to the accident.
If you find that [plaintiff's] preexisting illness/injury(ies)/condition was not causing him/her any harm or symptoms at the time of the accident, but that the preexisting condition combined with injuries incurred in the accident to cause him/her damage, then [plaintiff] is entitled to recover for the full extent of the damages he/she sustained.
[Use the following where a preexisting latent condition is involved].
I will now explain what happens if [plaintiff] had a predisposition or weakness which was causing no symptoms or problems before the accident but made him/her more susceptible to the kind of medical problems he/she claims in this case. If the injuries sustained in this accident combined with that predisposition to create the plaintiff's medical condition, then plaintiff is entitled to recover for all of the damage sustained due to that condition. You must not speculate that an individual without such predisposition or latent condition would have experienced less pain, suffering, disability and impairment.See footnote 3
--------------------------------------------------------------------------------
Footnote: 1 This rule does not apply to medical malpractice cases; there the defendant has the burden of segregating recoverable damages from those solely incident to pre-existing disease. Fosgate v. Corona, 66 N.J. 268 (1974). See also Scafidi v. Seiler, 119 N.J. 93 (1990) and Model Jury Charge--Civil 5.36E. The burden of proving which of plaintiff's conditions were caused by preexisting events is shifted to the defendants whenever defendants have vastly greater access than plaintiff to crucial proofs. Blanks v. Murphy, 268 N.J. Super. 152 (App. Div. 1993) citing Sholtis v. American Cyanamid Co., 238 N.J. Super 8 (App. Div. 1989) (applying the same principal in the area of asbestos exposure injuries). See also Thornton v. General Motors Corp., 280 N.J. Super 295 (Law Div. 1994) applying the Fosgate and Scafidi principal of burden shifting to the defendant manufacturer in a crashworthy case.
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Footnote: 2 There may be cases where based on medical testimony or other evidence there is no dispute that the preexisting injury was quiescent in which case the second and third paragraphs of the charge might be omitted.
--------------------------------------------------------------------------------
Footnote: 3 Quagliato v. Bodner, 115 N.J. Super 133 (App. Div. 1971) contains detailed instructions for how to handle the unusual circumstance where two separate tortious events such as automobile accidents within a few months which cause overlapping or invisible injuries are properly consolidated for a damage-only trial after a finding of liability.
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Model Civil Jury Charges
8.11E DAMAGES -- DISABILITY, IMPAIRMENT, AND THE LOSS OF THE ENJOYMENT OF LIFE, PAIN AND SUFFERING
F. Disability, Impairment, Loss of the Enjoyment of Life, Pain and Suffering (12/96)
If you find for [plaintiff], he/she is entitled to recover fair and reasonable money damages for the full extent of the harm caused, no more and no less.
A plaintiff who is awarded a verdict is entitled to fair and reasonable compensation for any permanent or temporary injury resulting in disability to or impairment of his/her faculties, health, or ability to participate in activities, as a proximate result of the defendant's negligence (or other wrongdoing). Disability or impairment means worsening, weakening or loss of faculties, health or ability to participate in activities. It includes the inability to pursue one's normal pleasure and enjoyment.See footnote 1 You must determine how the injury has deprived [plaintiff] of his/her customary activities as a whole person.See footnote 2 This measure of damages is what a reasonable person would consider to be adequate and just under all the circumstances of the case to compensate
[plaintiff] for his/her injury and his/her consequent disability, impairment, and the loss of the enjoyment of life.
The law also recognizes as proper items for recovery, the pain, physical and mental suffering, discomfort, and distress that a person may endure as a natural consequent of the injury. The measure of damages is what a reasonable person would consider to be adequate and just under all the circumstances to compensate [plaintiff].
Here are some factors you may want to take into account when fixing the amount of the award for disability impairment, loss of enjoyment of life, pain and suffering. You may consider [plaintiff's] age, usual activities, occupation, family responsibilities and similar relevant facts in evaluating the probable consequences of any injuries you find he/she has suffered. You are to consider the nature, character and seriousness of any injury, discomfort or disfigurement. You must also consider their duration, as any award you make must cover the damages suffered by [plaintiff] since the accident, to the present time, and even into the future if you find that [plaintiff's] injury and its consequence have continued to the present time or can reasonably be expected to continue into the future.
The law does not provide you with any table, schedule or formula by which a person's pain and suffering disability, impairment, loss of enjoyment of life may be measured in terms of money. The amount is left to your sound discretion. You are to use your discretion to attempt to make the plaintiff whole, so far as money can do so, based upon reason and sound judgment, without any passion, prejudice, bias or sympathy. You each know from your common experience the nature of pain and suffering, disability, impairment and loss of enjoyment of life and you also know the nature and function of money. The task of equating the two so as to arrive at a fair and reasonable award of damages requires a high order of human judgment. For this reason, the law can provide no better yardstick for your guidance than your own impartial judgment and experience.
You are to exercise sound judgment as to what is fair, just and reasonable under all the circumstances. You should, of course, consider the testimony of [plaintiff] on the subject of his/her discomforts. You should scrutinize all the other evidence presented by both parties on this subject, including, of course, the testimony of the doctors who appeared. After considering the evidence, you shall award a lump sum of money that will fairly
and reasonably compensate [plaintiff] for his/her pain, suffering, disability, impairment, and loss of enjoyment of life.
Cases:
Simmel v. N.J. Coop Co., 28 N.J. 1 (1958). See also Botta v. Brunner, 26 N.J. 82 (1958); Mengle v. Shields, 53 N.J. Super. 76 (App. Div. 1958).
Damages may be awarded for future disability and impairment. Coll v. Sherry, 29 N.J. 166 (1959).
Damages may be awarded for mental or nervous impairment consequent upon a physical injury. Greenberg v. Stanley, 51 N.J. Super. 90 (App. Div. 1958).
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Footnote: 1 Evoma v. Falco, 247 N.J. Super. 435, 452 (App. Div. 1991).
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Footnote: 2 Id. at 452.
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Model Civil Jury Charges
If you find for [plaintiff], he/she is entitled to recover fair and reasonable money damages for the full extent of the harm caused, no more and no less.
A plaintiff who is awarded a verdict is entitled to fair and reasonable compensation for any permanent or temporary injury resulting in disability to or impairment of his/her faculties, health, or ability to participate in activities, as a proximate result of the defendant's negligence (or other wrongdoing). Disability or impairment means worsening, weakening or loss of faculties, health or ability to participate in activities. It includes the inability to pursue one's normal pleasure and enjoyment.See footnote 1 You must determine how the injury has deprived [plaintiff] of his/her customary activities as a whole person.See footnote 2 This measure of damages is what a reasonable person would consider to be adequate and just under all the circumstances of the case to compensate
[plaintiff] for his/her injury and his/her consequent disability, impairment, and the loss of the enjoyment of life.
The law also recognizes as proper items for recovery, the pain, physical and mental suffering, discomfort, and distress that a person may endure as a natural consequent of the injury. The measure of damages is what a reasonable person would consider to be adequate and just under all the circumstances to compensate [plaintiff].
Here are some factors you may want to take into account when fixing the amount of the award for disability impairment, loss of enjoyment of life, pain and suffering. You may consider [plaintiff's] age, usual activities, occupation, family responsibilities and similar relevant facts in evaluating the probable consequences of any injuries you find he/she has suffered. You are to consider the nature, character and seriousness of any injury, discomfort or disfigurement. You must also consider their duration, as any award you make must cover the damages suffered by [plaintiff] since the accident, to the present time, and even into the future if you find that [plaintiff's] injury and its consequence have continued to the present time or can reasonably be expected to continue into the future.
The law does not provide you with any table, schedule or formula by which a person's pain and suffering disability, impairment, loss of enjoyment of life may be measured in terms of money. The amount is left to your sound discretion. You are to use your discretion to attempt to make the plaintiff whole, so far as money can do so, based upon reason and sound judgment, without any passion, prejudice, bias or sympathy. You each know from your common experience the nature of pain and suffering, disability, impairment and loss of enjoyment of life and you also know the nature and function of money. The task of equating the two so as to arrive at a fair and reasonable award of damages requires a high order of human judgment. For this reason, the law can provide no better yardstick for your guidance than your own impartial judgment and experience.
You are to exercise sound judgment as to what is fair, just and reasonable under all the circumstances. You should, of course, consider the testimony of [plaintiff] on the subject of his/her discomforts. You should scrutinize all the other evidence presented by both parties on this subject, including, of course, the testimony of the doctors who appeared. After considering the evidence, you shall award a lump sum of money that will fairly
and reasonably compensate [plaintiff] for his/her pain, suffering, disability, impairment, and loss of enjoyment of life.
Cases:
Simmel v. N.J. Coop Co., 28 N.J. 1 (1958). See also Botta v. Brunner, 26 N.J. 82 (1958); Mengle v. Shields, 53 N.J. Super. 76 (App. Div. 1958).
Damages may be awarded for future disability and impairment. Coll v. Sherry, 29 N.J. 166 (1959).
Damages may be awarded for mental or nervous impairment consequent upon a physical injury. Greenberg v. Stanley, 51 N.J. Super. 90 (App. Div. 1958).
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Footnote: 1 Evoma v. Falco, 247 N.J. Super. 435, 452 (App. Div. 1991).
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Footnote: 2 Id. at 452.
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Model Civil Jury Charges
8.11D DAMAGES - LOSS OF PROFITS
E. Loss of Profits (pre-1983)
The measure of damages for loss of profits to a plaintiff who is an owner of a business is the value of the plaintiff's services in carrying on that business which were lost as a proximate result of his/her injuries. In determining the value of the plaintiff's services, the jury should take into consideration the nature of the business, the capital, assets and personnel employed, the average weekly (or monthly) profits earned before and after the accident and any expense to which the plaintiff was put to hire others to perform services which he/she had previously performed himself/ herself.
Cases:
Woschenko v. Schmidt & Sons, 2 N.J. 269, 278 (1949): "The value of his/her services is manifestly worth more than the mere cost of hiring another temporarily to fill his/her place. The thorough knowledge of the business thus acquired together with personal acquaintance with the customers has a value in the commercial world readily recognized by any business man. The evidence must be such as to directly point up the value of the plaintiff's services in the operation of the business in which case it is not conjectural."
East Jersey Water Co. v. Bigelow, 60 N.J.L. 201 (E. & A. 1897).
Damages may be awarded for future loss of profits if capable of being estimated with a reasonable degree of certainty.
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Model Civil Jury Charges
The measure of damages for loss of profits to a plaintiff who is an owner of a business is the value of the plaintiff's services in carrying on that business which were lost as a proximate result of his/her injuries. In determining the value of the plaintiff's services, the jury should take into consideration the nature of the business, the capital, assets and personnel employed, the average weekly (or monthly) profits earned before and after the accident and any expense to which the plaintiff was put to hire others to perform services which he/she had previously performed himself/ herself.
Cases:
Woschenko v. Schmidt & Sons, 2 N.J. 269, 278 (1949): "The value of his/her services is manifestly worth more than the mere cost of hiring another temporarily to fill his/her place. The thorough knowledge of the business thus acquired together with personal acquaintance with the customers has a value in the commercial world readily recognized by any business man. The evidence must be such as to directly point up the value of the plaintiff's services in the operation of the business in which case it is not conjectural."
East Jersey Water Co. v. Bigelow, 60 N.J.L. 201 (E. & A. 1897).
Damages may be awarded for future loss of profits if capable of being estimated with a reasonable degree of certainty.
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Model Civil Jury Charges
8.11C DAMAGES ‑ LOSS OF EARNINGS
D. Loss of Earnings[1] (Revised 2/04)
1. Past Lost Earnings[2] (Approved 11/99)
One part of plaintiff's claim is lost earnings. Plaintiff has a right to be compensated for any earnings lost as a result of injuries caused by defendant's wrongdoing.[3]
In thinking about this, you should understand that any award for loss of earnings must be based on net or take‑home pay and not on gross income.[4] This is because only the take‑home pay — the amount left after taking out taxes — would have been available to plaintiff, and the amount you award is not subject to Federal and New Jersey income taxes.[5]
So the first thing you must decide is this: was plaintiff disabled by his/her injuries which in turn resulted in a loss of income? If you find that took place, next you have to decide and fix the amount of lost earnings. You do this by considering the length of time during which plaintiff was not able to work, what his/her income was before the injuries, how much he/she earned upon return to work, whether the injuries affected his/her ability to do any tasks required on the job and any lessening or decrease in his/her income after returning to work.
You should also think about any special skills plaintiff has and whether there were other jobs available that he/she was able to do so that he/she could earn some income. Plaintiff must try to minimize the damages resulting from a loss of earnings, but extraordinary or impractical efforts are not necessary. All that is required are reasonable efforts and ordinary care in trying to reduce the loss.[6]
In determining the amount of lost earnings, you make your decision based upon the earnings that were probably lost.[7] Naturally, this means that you must exercise your sound judgment, since plaintiff does not have to prove the loss of earnings with precision, but rather with reasonable probability.
2. Future Lost Earnings[8] (Approved 11/99)
a. Preliminary Charge to be Given Before Any Expert Testimony
In this phase of the case, you are about to hear expert opinion testimony on certain economic claims made. You will be the final judges of the reliability of the experts' projections of future economic losses. Any bottom line figure offered by the expert will be based on certain assumptions that the expert will make concerning probable future economic trends.
In evaluating the reliability of the expert's projections, you may consider the cross-examination by the attorneys and also any evidence presented by the opposing parties on this issue such as other expert testimony. At this stage of the case, you should keep an open mind regarding the reliability of these bottom-line figures and not give them automatic acceptance. I repeat, it will be your responsibility and your responsibility alone to determine at the close of the case the amount of economic losses suffered by the plaintiff, based upon all the credible evidence you choose to accept on this question.
b. Final Charge To Be Given At Conclusion of Case If There Is No Expert Testimony
Plaintiff also seeks to recover earnings that will be lost in the future. Plaintiff has a right to be compensated for any earnings which you find will probably be lost as a result of the injuries brought about by defendant's wrongdoing.[9]
If you decide from the evidence in this case that it is reasonably probable that plaintiff will lose income in the future, because [either] he/she has not been able to return to work [or] he/she has not been able to keep the same job [or] he/she will be able to work for a shorter period of time, then you should also include an amount to make up for those lost earnings. In deciding how much your verdict should be to cover future lost income, think about the factors mentioned in discussing past earning losses, such as the nature, extent and duration of injury. Also consider plaintiff's age today, his/her general state of health before the accident, how long you reasonably expect the loss of income to continue and how much plaintiff can earn in any available job that he/she physically will be able to do. Obviously, the time period covering plaintiff's future lost earnings cannot go beyond that point when it was expected that he/she would stop working because of retirement, if plaintiff had not been injured.[10] You should also consider the probabilities of increases in earnings resulting from raises for productivity or promotion, and plaintiff's life expectancy and work‑life expectancy before the injury.[11]
But you should be aware that the figures that you have been given on life expectancy and work‑life expectancy are only statistical averages. Do not treat them as necessary or fixed rules, since they are general estimates. Use them with caution and use your sound judgment in taking them into account.
For future lost earnings, as well as past lost earnings, you must base your decision on probable net earnings, the take‑home pay, the amount left after taxes are deducted. It is the burden of the plaintiff to prove, by a preponderance of the evidence, his/her net income and the probable loss of future earnings.[12]
In deciding what plaintiff's future losses are, understand that the law does not require of you mathematical exactness. Rather, you must use sound judgment based on reasonable probability.[13]
c. Effects of Interest and Inflation on Future Earnings
Note to Judge:
Do not charge if parties stipulate that interest and inflation rates will offset each other.
Once you have decided how much money plaintiff will lose in the future, you must then consider the effects of inflation and interest. As to inflation, you should consider the effects it probably will have in reducing the purchasing power of money. Any award for future losses may be increased to account for losses in the purchasing power of that money because of inflation. The consideration of interest requires that you should not just award plaintiff the exact amount of money that he/she will be losing in the future. Plaintiff will have that money now even though he/she will not have incurred the loss of that money until some time in the future. And that means that plaintiff will be able to invest the money and earn interest on it now even though he/she otherwise would not have had that money to invest until some future date.
To make up for this, you must make an adjustment for plaintiff's having the money available now even though the loss will not be experienced until the future. This adjustment is known as discounting, and discounting gives you the value of the money that you get now instead of getting it at some future time. In other words, it gives you the present value or present worth in a single lump sum of money which otherwise was going to be received over a number of years at so much per year.
Your goal is to create a fund of money, which, if paid today, will fairly compensate plaintiff for his or her future loss of earnings. In arriving at the amount of that fund — the present value of future losses — you should consider the interest the fund will probably earn in future years; the probable amount by which taxation on the interest might decrease the money available to plaintiff and the effect of inflation in decreasing the purchase power of money. The higher the interest rate you believe the fund will earn in future years, the lower will be the amount of the fund needed to fairly compensate plaintiff for future earnings. On the other hand, the higher the probable rate of inflation in future years, the higher will be the amount of the fund needed to fairly compensate plaintiff. It is possible that the interest earned in the future could be offset exactly by the rate of inflation in which event these factors could cancel each other out and you could award the net lost wages for the appropriate number of years without any adjustment.
d. Final Charge to be Given at Conclusion of Case If There was Expert Testimony on the "Bottom Line"
You have heard one (or an expert for each side) discuss the present value of plaintiff's future earning loss including their projections as to future interest, including its tax consequences, and inflation rates. You may consider some, all, or none of the opinions of the experts in determining a fair figure to compensate plaintiff for his or her future lost earnings. The experts have also given you their "bottom line" figures as to plaintiff's future lost earnings. As I told you previously, you need not give any of these "bottom line" figures automatic acceptance. You are free to determine, based on all the evidence, including the expert testimony you choose to accept, what amount of dollars will fairly compensate plaintiff for his/her future lost earnings.
3. Loss of Future Earning Capacity: Infant Plaintiff With Permanent, Severe Injury[14] (Approved 5/90)
If you find the evidence establishes that the infant plaintiff suffered a severe injury with lasting or permanent effects and that the injury will within reasonable probability impair the infant plaintiff's future earning capacity, you should consider that item of damages.
In the case of an infant plaintiff we don't know what job or profession the plaintiff would eventually undertake were it not for this severe injury.
Therefore, with regard to an infant's loss of future earning capacity, the law cannot provide any better yardstick than your own sound judgment and experience. You are not to arbitrarily award damages for an infant plaintiff's loss of earning capacity but rather you are to use your own good conscience, sound judgment and experience and determine what loss of future earning capacity is reasonably probable to result from plaintiff's injury.
Note to Judge:
Add appropriate language concerning present value of future loss of earnings.
4. Loss of Earnings Where Plaintiff Has Received P.I.P. Income Continuation Benefits (Approved 12/88, Revised 2/04)
This charge is deleted in its entirety. While Ruff v. Weintraub, 105 N.J. 233, 242 (1987) requires all wage losses to be determined by the jury on a “net” basis rather than “gross” wages, N.J.S.A. 39:6A-12 bars the admission of PIP benefits, wage losses or medical expenses into evidence. See, Clifford v. Opdyke, 156 N.J. Super. 208, 213 (App. Div. 1978).
Note that N.J.S.A. 39:6A-12 bars admission of wage loss benefits into evidence whether they are “paid” or just “collectible.”
In practice, the jury should determine plaintiff’s “net” wage loss after taxes are deducted from “gross” income, and counsel should disclose to the Court if the plaintiff was covered by a policy of insurance that would provide PIP wage loss benefits. The Court would then mold the jury’s verdict to credit defendant with $100 for each week that the jury found plaintiff lost wages. Unless the plaintiff purchased supplemental, increased PIP coverages, the maximum credit would be $5,200. N.J.S.A. 39:6A-4.
These benefits would be treated similar to other “collateral sources.” See Adamson v. Chiavaro, 308 N.J. Super. 70, 78-81 (App. Div. 1998) (New York PIP policy).
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[1] It is unclear to the Committee whether economic damage awards and/or emotional distress damage awards under the New Jersey Law Against Discrimination are subject to either Federal and/or New Jersey State income taxation. See generally, 26 U.S.C. § 104(a); IRS Rev. Ruling 96-56; United States v. Burke, 504 U.S. 229, 112 S. Ct. 1867 (1992); and Commissioner v. Schleier, 515 U.S. 323, 115 S. Ct. 2159 (1995), regarding federal taxation of awards under federal discrimination law. Thus, it is unclear to the Committee whether the statement in the Charge that an award for lost earnings (Charge 6.11D) and an award for personal injury (Charge 6.19) is “not subject to federal or state income tax” is accurate with respect to awards under the New Jersey Law Against Discrimination. In Wachstein v. Slocum, 265 N.J. Super. 6, 24 (App. Div. 1993) certif. denied, 134 N.J. 563 (1993), the Appellate Division noted the “present uncertainty of the law in this area” and observed that “we believe the wisest course would be for the trial court to omit any reference to taxability in its instructions to the jury.” See also, Abrams v. Lightolier, Inc., 50 F. 3d 1204, 1220 (3rd Cir. 1995) (citing Wachstein, the Court states that “we are confident that the New Jersey courts would not require that the award be calculated on net income”). The Committee believes that the nature and scope of instructions, if any, on the tax consequences of these awards should await further guidance from the appellate courts.
[2] This section applies only where the plaintiff alleges a loss of salary. Where there is an allegation that plaintiff lost other benefits, such as medical coverage, pension benefits, etc., the instructions must be molded to incorporate those concepts.
[3] Smith v. Red Top Taxicab Corp., 111 N.J.L. 439, 443 (E.& A. 1933).
[4] Ruff v. Weintraub, 105 N.J. 233, 238 (1987).
[5] Ibid.; Bussell v. DeWalt Products, 105 N.J. 233, 228‑229 (1987).
[6] McDonald v. Mianecki, 79 N.J. 275, 299 (1979), as to general duty to mitigate damages. Refer also to Assoc. Metals Corp. v. Dixon Chem., 82 N.J.Super. 281, 307 (App. Div. 1964), and Robinson v. Gonzalez, 213 N.J.Super. 364, 371 ‑ 372 (App. Div. 1986).
[7] Moore v. Pub. Serv. Coordin. Transp., 15 N.J.Super. 499, 510 (App. Div. 1951).
[8] These instructions are based upon DeHanes v. Rothman, 158 N.J. 90 (1999) overruling, Tenore v. NuCar Carriers, Inc. 67 N.J. 466 (1975).
[9] Coll v. Sherry, 29 N.J. 166, 175 (1959).
[10] The collateral source rule (see cases under Model Charge 6.11(A)) applies to loss of earnings as well as to medical and hospital expenses. Plaintiff may recover damages for loss of earnings although having been paid wages or their equivalent by employer pursuant to sick or annual leave benefits or retirement on half salary under a pension contract. Rusk v. Jeffries, 110 N.J.L. 307, 311 (E. & A. 1933). Chap. 326, L. 1987, eliminates the collateral source rule as to causes of action arising on or after December 18, 1987. Deduction of benefits, less premiums, is done by the court, not the jury. See also N.J.S.A. 59:9‑2(3) for similar effect for Tort Claims Act causes of action.
[11] This concept should be charged if there is appropriate evidence received on the subject. See Charge 6.11H regarding life expectancy.
[12] See Caldwell v. Haynes, 136 N.J. 422, 436 (1994), which requires that the plaintiff prove net income in personal injury and wrongful death cases.
[13] By analogy to future income loss in a wrongful death case. Tenore v .NuCar Carriers, Inc., 67 N.J. 466, 494‑495 (1975). See, also, Friedman v. C. S. Car Service, 108 N.J. 72, 78‑79 (1987).
[14] Lesniak v. Cty. of Bergen, 117 N.J. 12 (1989).
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1. Past Lost Earnings[2] (Approved 11/99)
One part of plaintiff's claim is lost earnings. Plaintiff has a right to be compensated for any earnings lost as a result of injuries caused by defendant's wrongdoing.[3]
In thinking about this, you should understand that any award for loss of earnings must be based on net or take‑home pay and not on gross income.[4] This is because only the take‑home pay — the amount left after taking out taxes — would have been available to plaintiff, and the amount you award is not subject to Federal and New Jersey income taxes.[5]
So the first thing you must decide is this: was plaintiff disabled by his/her injuries which in turn resulted in a loss of income? If you find that took place, next you have to decide and fix the amount of lost earnings. You do this by considering the length of time during which plaintiff was not able to work, what his/her income was before the injuries, how much he/she earned upon return to work, whether the injuries affected his/her ability to do any tasks required on the job and any lessening or decrease in his/her income after returning to work.
You should also think about any special skills plaintiff has and whether there were other jobs available that he/she was able to do so that he/she could earn some income. Plaintiff must try to minimize the damages resulting from a loss of earnings, but extraordinary or impractical efforts are not necessary. All that is required are reasonable efforts and ordinary care in trying to reduce the loss.[6]
In determining the amount of lost earnings, you make your decision based upon the earnings that were probably lost.[7] Naturally, this means that you must exercise your sound judgment, since plaintiff does not have to prove the loss of earnings with precision, but rather with reasonable probability.
2. Future Lost Earnings[8] (Approved 11/99)
a. Preliminary Charge to be Given Before Any Expert Testimony
In this phase of the case, you are about to hear expert opinion testimony on certain economic claims made. You will be the final judges of the reliability of the experts' projections of future economic losses. Any bottom line figure offered by the expert will be based on certain assumptions that the expert will make concerning probable future economic trends.
In evaluating the reliability of the expert's projections, you may consider the cross-examination by the attorneys and also any evidence presented by the opposing parties on this issue such as other expert testimony. At this stage of the case, you should keep an open mind regarding the reliability of these bottom-line figures and not give them automatic acceptance. I repeat, it will be your responsibility and your responsibility alone to determine at the close of the case the amount of economic losses suffered by the plaintiff, based upon all the credible evidence you choose to accept on this question.
b. Final Charge To Be Given At Conclusion of Case If There Is No Expert Testimony
Plaintiff also seeks to recover earnings that will be lost in the future. Plaintiff has a right to be compensated for any earnings which you find will probably be lost as a result of the injuries brought about by defendant's wrongdoing.[9]
If you decide from the evidence in this case that it is reasonably probable that plaintiff will lose income in the future, because [either] he/she has not been able to return to work [or] he/she has not been able to keep the same job [or] he/she will be able to work for a shorter period of time, then you should also include an amount to make up for those lost earnings. In deciding how much your verdict should be to cover future lost income, think about the factors mentioned in discussing past earning losses, such as the nature, extent and duration of injury. Also consider plaintiff's age today, his/her general state of health before the accident, how long you reasonably expect the loss of income to continue and how much plaintiff can earn in any available job that he/she physically will be able to do. Obviously, the time period covering plaintiff's future lost earnings cannot go beyond that point when it was expected that he/she would stop working because of retirement, if plaintiff had not been injured.[10] You should also consider the probabilities of increases in earnings resulting from raises for productivity or promotion, and plaintiff's life expectancy and work‑life expectancy before the injury.[11]
But you should be aware that the figures that you have been given on life expectancy and work‑life expectancy are only statistical averages. Do not treat them as necessary or fixed rules, since they are general estimates. Use them with caution and use your sound judgment in taking them into account.
For future lost earnings, as well as past lost earnings, you must base your decision on probable net earnings, the take‑home pay, the amount left after taxes are deducted. It is the burden of the plaintiff to prove, by a preponderance of the evidence, his/her net income and the probable loss of future earnings.[12]
In deciding what plaintiff's future losses are, understand that the law does not require of you mathematical exactness. Rather, you must use sound judgment based on reasonable probability.[13]
c. Effects of Interest and Inflation on Future Earnings
Note to Judge:
Do not charge if parties stipulate that interest and inflation rates will offset each other.
Once you have decided how much money plaintiff will lose in the future, you must then consider the effects of inflation and interest. As to inflation, you should consider the effects it probably will have in reducing the purchasing power of money. Any award for future losses may be increased to account for losses in the purchasing power of that money because of inflation. The consideration of interest requires that you should not just award plaintiff the exact amount of money that he/she will be losing in the future. Plaintiff will have that money now even though he/she will not have incurred the loss of that money until some time in the future. And that means that plaintiff will be able to invest the money and earn interest on it now even though he/she otherwise would not have had that money to invest until some future date.
To make up for this, you must make an adjustment for plaintiff's having the money available now even though the loss will not be experienced until the future. This adjustment is known as discounting, and discounting gives you the value of the money that you get now instead of getting it at some future time. In other words, it gives you the present value or present worth in a single lump sum of money which otherwise was going to be received over a number of years at so much per year.
Your goal is to create a fund of money, which, if paid today, will fairly compensate plaintiff for his or her future loss of earnings. In arriving at the amount of that fund — the present value of future losses — you should consider the interest the fund will probably earn in future years; the probable amount by which taxation on the interest might decrease the money available to plaintiff and the effect of inflation in decreasing the purchase power of money. The higher the interest rate you believe the fund will earn in future years, the lower will be the amount of the fund needed to fairly compensate plaintiff for future earnings. On the other hand, the higher the probable rate of inflation in future years, the higher will be the amount of the fund needed to fairly compensate plaintiff. It is possible that the interest earned in the future could be offset exactly by the rate of inflation in which event these factors could cancel each other out and you could award the net lost wages for the appropriate number of years without any adjustment.
d. Final Charge to be Given at Conclusion of Case If There was Expert Testimony on the "Bottom Line"
You have heard one (or an expert for each side) discuss the present value of plaintiff's future earning loss including their projections as to future interest, including its tax consequences, and inflation rates. You may consider some, all, or none of the opinions of the experts in determining a fair figure to compensate plaintiff for his or her future lost earnings. The experts have also given you their "bottom line" figures as to plaintiff's future lost earnings. As I told you previously, you need not give any of these "bottom line" figures automatic acceptance. You are free to determine, based on all the evidence, including the expert testimony you choose to accept, what amount of dollars will fairly compensate plaintiff for his/her future lost earnings.
3. Loss of Future Earning Capacity: Infant Plaintiff With Permanent, Severe Injury[14] (Approved 5/90)
If you find the evidence establishes that the infant plaintiff suffered a severe injury with lasting or permanent effects and that the injury will within reasonable probability impair the infant plaintiff's future earning capacity, you should consider that item of damages.
In the case of an infant plaintiff we don't know what job or profession the plaintiff would eventually undertake were it not for this severe injury.
Therefore, with regard to an infant's loss of future earning capacity, the law cannot provide any better yardstick than your own sound judgment and experience. You are not to arbitrarily award damages for an infant plaintiff's loss of earning capacity but rather you are to use your own good conscience, sound judgment and experience and determine what loss of future earning capacity is reasonably probable to result from plaintiff's injury.
Note to Judge:
Add appropriate language concerning present value of future loss of earnings.
4. Loss of Earnings Where Plaintiff Has Received P.I.P. Income Continuation Benefits (Approved 12/88, Revised 2/04)
This charge is deleted in its entirety. While Ruff v. Weintraub, 105 N.J. 233, 242 (1987) requires all wage losses to be determined by the jury on a “net” basis rather than “gross” wages, N.J.S.A. 39:6A-12 bars the admission of PIP benefits, wage losses or medical expenses into evidence. See, Clifford v. Opdyke, 156 N.J. Super. 208, 213 (App. Div. 1978).
Note that N.J.S.A. 39:6A-12 bars admission of wage loss benefits into evidence whether they are “paid” or just “collectible.”
In practice, the jury should determine plaintiff’s “net” wage loss after taxes are deducted from “gross” income, and counsel should disclose to the Court if the plaintiff was covered by a policy of insurance that would provide PIP wage loss benefits. The Court would then mold the jury’s verdict to credit defendant with $100 for each week that the jury found plaintiff lost wages. Unless the plaintiff purchased supplemental, increased PIP coverages, the maximum credit would be $5,200. N.J.S.A. 39:6A-4.
These benefits would be treated similar to other “collateral sources.” See Adamson v. Chiavaro, 308 N.J. Super. 70, 78-81 (App. Div. 1998) (New York PIP policy).
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[1] It is unclear to the Committee whether economic damage awards and/or emotional distress damage awards under the New Jersey Law Against Discrimination are subject to either Federal and/or New Jersey State income taxation. See generally, 26 U.S.C. § 104(a); IRS Rev. Ruling 96-56; United States v. Burke, 504 U.S. 229, 112 S. Ct. 1867 (1992); and Commissioner v. Schleier, 515 U.S. 323, 115 S. Ct. 2159 (1995), regarding federal taxation of awards under federal discrimination law. Thus, it is unclear to the Committee whether the statement in the Charge that an award for lost earnings (Charge 6.11D) and an award for personal injury (Charge 6.19) is “not subject to federal or state income tax” is accurate with respect to awards under the New Jersey Law Against Discrimination. In Wachstein v. Slocum, 265 N.J. Super. 6, 24 (App. Div. 1993) certif. denied, 134 N.J. 563 (1993), the Appellate Division noted the “present uncertainty of the law in this area” and observed that “we believe the wisest course would be for the trial court to omit any reference to taxability in its instructions to the jury.” See also, Abrams v. Lightolier, Inc., 50 F. 3d 1204, 1220 (3rd Cir. 1995) (citing Wachstein, the Court states that “we are confident that the New Jersey courts would not require that the award be calculated on net income”). The Committee believes that the nature and scope of instructions, if any, on the tax consequences of these awards should await further guidance from the appellate courts.
[2] This section applies only where the plaintiff alleges a loss of salary. Where there is an allegation that plaintiff lost other benefits, such as medical coverage, pension benefits, etc., the instructions must be molded to incorporate those concepts.
[3] Smith v. Red Top Taxicab Corp., 111 N.J.L. 439, 443 (E.& A. 1933).
[4] Ruff v. Weintraub, 105 N.J. 233, 238 (1987).
[5] Ibid.; Bussell v. DeWalt Products, 105 N.J. 233, 228‑229 (1987).
[6] McDonald v. Mianecki, 79 N.J. 275, 299 (1979), as to general duty to mitigate damages. Refer also to Assoc. Metals Corp. v. Dixon Chem., 82 N.J.Super. 281, 307 (App. Div. 1964), and Robinson v. Gonzalez, 213 N.J.Super. 364, 371 ‑ 372 (App. Div. 1986).
[7] Moore v. Pub. Serv. Coordin. Transp., 15 N.J.Super. 499, 510 (App. Div. 1951).
[8] These instructions are based upon DeHanes v. Rothman, 158 N.J. 90 (1999) overruling, Tenore v. NuCar Carriers, Inc. 67 N.J. 466 (1975).
[9] Coll v. Sherry, 29 N.J. 166, 175 (1959).
[10] The collateral source rule (see cases under Model Charge 6.11(A)) applies to loss of earnings as well as to medical and hospital expenses. Plaintiff may recover damages for loss of earnings although having been paid wages or their equivalent by employer pursuant to sick or annual leave benefits or retirement on half salary under a pension contract. Rusk v. Jeffries, 110 N.J.L. 307, 311 (E. & A. 1933). Chap. 326, L. 1987, eliminates the collateral source rule as to causes of action arising on or after December 18, 1987. Deduction of benefits, less premiums, is done by the court, not the jury. See also N.J.S.A. 59:9‑2(3) for similar effect for Tort Claims Act causes of action.
[11] This concept should be charged if there is appropriate evidence received on the subject. See Charge 6.11H regarding life expectancy.
[12] See Caldwell v. Haynes, 136 N.J. 422, 436 (1994), which requires that the plaintiff prove net income in personal injury and wrongful death cases.
[13] By analogy to future income loss in a wrongful death case. Tenore v .NuCar Carriers, Inc., 67 N.J. 466, 494‑495 (1975). See, also, Friedman v. C. S. Car Service, 108 N.J. 72, 78‑79 (1987).
[14] Lesniak v. Cty. of Bergen, 117 N.J. 12 (1989).
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8.11B DAMAGES -- DUTY TO MITIGATE DAMAGES BY MEDICAL AND SURGICAL TREATMENT
C. Duty to Mitigate Damages by Medical and Surgical Treatment (Adopted 12/96; revised 10/00)
If you decide that the plaintiff is entitled to damages for his/her injuries, you should then determine whether any of plaintiff's injuries could have been avoided or alleviated by plaintiff's exercise of reasonable care to protect his/her own health.
It is a general rule that a plaintiff injured by another's negligence (or other wrongdoing) has a duty to exercise reasonable care to seek and submit to medical and surgical treatment in order to effect a cure and minimize damages. Failure or refusal to do so bars recovery for consequences which could have been avoided by the exercise of such care. In other words, damages that could have been prevented by the plaintiff's exercising reasonable care are not the responsibility of the defendant.
In this case, the defendant has introduced evidence by which he/she/it seeks to reduce or avoid responsibility for plaintiff's injuries. The defendant must prove by a preponderance of the evidence that after its negligence occurred, the plaintiff acted unreasonably by either failing to seek or to submit to medical treatment in order to avoid further injury.
Of course, the plaintiff need not take unreasonable risks, nor take any risk to life, even slight, nor undergo great pain or other suffering to reduce injury inflicted by another. However, a refusal to follow surgical advice may be unreasonable if, for example, plaintiff refuses an operation which offers a reasonable prospect of restoration or relief and poses no danger to life or health.
A defendant is liable only for that portion of the injuries attributable to the defendant's negligence. If you find that the plaintiff did not act reasonably to avoid or to alleviate injury, you shall assess in terms of percentages the degree to which the injuries were the result of the plaintiff's own unreasonable failure to minimize or to avoid further injury.
Cases
Ostrowski v. Azzara, 111 N.J. 429, 445 (1988); Brazil v. United States, 484 F. Supp. 986, 992 (N.D. Ala. 1979) plaintiff's fault contributed to cause 55% of his total damages. He recovers only 45%. Dziedzic v. St. John's Cleaners & Shirt Launderers, Inc., 53 N.J. 157 (1969) a defendant bears the burden of proving the causal link between a plaintiff's unreasonable conduct and the extent of damages.
Budden v. Goldstein, 43 N.J. Super. 340 (App. Div. 1957) held that a refusal to undergo an operation is "not unreasonable and therefore unjustifiable in the legal sense, unless it is free from danger to life and health and extraordinary suffering, and, according to the best medical or surgical opinion, offers a reasonable prospect of restoration or relief from the disability." Budden, at 350. Accord, Albert v. Monarch Federal Savings and Loan Assoc., 327 N. J. Super. 462 (App. Div. 2000). [Case comment added 10/00.]
Compare: Comparative Negligence Act N.J.S.A. 2A:15-5.1. See for example: Tobia v. Cooper Hospital University Medical Center, 136 N.J. 335, 315, 341, 342 (1994):
In a long series of cases, we have held that when a tortfeasor's duty includes exercise of reasonable care to prevent a party form engaging in self-damaging conduct, contributory negligence is barred as a defense. ..."As one writer * * * has said, '[o]nce it is established that the defendant has a duty to protect persons from the consequences of their own foreseeable faulty conduct, it makes no sense to deny recovery because of the nature of the plaintiff's conduct.'" Green v. Sterling Estruder, 95 N.J. 263 at 272 (quoting Patricia Marshall, An Obvious Wrong Does Not Make a Right: Manufacturers' Liability for Patently Dangerous Products, 48 N.Y.U.L. Rev. 1065, 1088 (1973)).
Sample Jury Interrogatory
Avoidable Consequence(1)
1. Did plaintiff contribute to his/her injury by failing to return to the doctor's office or otherwise failing to follow his/her doctor's advice?
Yes______ No______
(5 out of 6)
If yes, answer Question No. 2; if no, cease deliberations.
2. Set forth in terms of percentages that aspect of the plaintiff's whole injury that occurred as a result of plaintiff's failure to follow [doctor's] advice.
____________%
(5 out of 6)
(1)This question is answered only if the jury awards damages and should follow the damages question on the verdict sheet. Any verdict to the plaintiff is reduced by the percentage stated in No. 2.
If you decide that the plaintiff is entitled to damages for his/her injuries, you should then determine whether any of plaintiff's injuries could have been avoided or alleviated by plaintiff's exercise of reasonable care to protect his/her own health.
It is a general rule that a plaintiff injured by another's negligence (or other wrongdoing) has a duty to exercise reasonable care to seek and submit to medical and surgical treatment in order to effect a cure and minimize damages. Failure or refusal to do so bars recovery for consequences which could have been avoided by the exercise of such care. In other words, damages that could have been prevented by the plaintiff's exercising reasonable care are not the responsibility of the defendant.
In this case, the defendant has introduced evidence by which he/she/it seeks to reduce or avoid responsibility for plaintiff's injuries. The defendant must prove by a preponderance of the evidence that after its negligence occurred, the plaintiff acted unreasonably by either failing to seek or to submit to medical treatment in order to avoid further injury.
Of course, the plaintiff need not take unreasonable risks, nor take any risk to life, even slight, nor undergo great pain or other suffering to reduce injury inflicted by another. However, a refusal to follow surgical advice may be unreasonable if, for example, plaintiff refuses an operation which offers a reasonable prospect of restoration or relief and poses no danger to life or health.
A defendant is liable only for that portion of the injuries attributable to the defendant's negligence. If you find that the plaintiff did not act reasonably to avoid or to alleviate injury, you shall assess in terms of percentages the degree to which the injuries were the result of the plaintiff's own unreasonable failure to minimize or to avoid further injury.
Cases
Ostrowski v. Azzara, 111 N.J. 429, 445 (1988); Brazil v. United States, 484 F. Supp. 986, 992 (N.D. Ala. 1979) plaintiff's fault contributed to cause 55% of his total damages. He recovers only 45%. Dziedzic v. St. John's Cleaners & Shirt Launderers, Inc., 53 N.J. 157 (1969) a defendant bears the burden of proving the causal link between a plaintiff's unreasonable conduct and the extent of damages.
Budden v. Goldstein, 43 N.J. Super. 340 (App. Div. 1957) held that a refusal to undergo an operation is "not unreasonable and therefore unjustifiable in the legal sense, unless it is free from danger to life and health and extraordinary suffering, and, according to the best medical or surgical opinion, offers a reasonable prospect of restoration or relief from the disability." Budden, at 350. Accord, Albert v. Monarch Federal Savings and Loan Assoc., 327 N. J. Super. 462 (App. Div. 2000). [Case comment added 10/00.]
Compare: Comparative Negligence Act N.J.S.A. 2A:15-5.1. See for example: Tobia v. Cooper Hospital University Medical Center, 136 N.J. 335, 315, 341, 342 (1994):
In a long series of cases, we have held that when a tortfeasor's duty includes exercise of reasonable care to prevent a party form engaging in self-damaging conduct, contributory negligence is barred as a defense. ..."As one writer * * * has said, '[o]nce it is established that the defendant has a duty to protect persons from the consequences of their own foreseeable faulty conduct, it makes no sense to deny recovery because of the nature of the plaintiff's conduct.'" Green v. Sterling Estruder, 95 N.J. 263 at 272 (quoting Patricia Marshall, An Obvious Wrong Does Not Make a Right: Manufacturers' Liability for Patently Dangerous Products, 48 N.Y.U.L. Rev. 1065, 1088 (1973)).
Sample Jury Interrogatory
Avoidable Consequence(1)
1. Did plaintiff contribute to his/her injury by failing to return to the doctor's office or otherwise failing to follow his/her doctor's advice?
Yes______ No______
(5 out of 6)
If yes, answer Question No. 2; if no, cease deliberations.
2. Set forth in terms of percentages that aspect of the plaintiff's whole injury that occurred as a result of plaintiff's failure to follow [doctor's] advice.
____________%
(5 out of 6)
(1)This question is answered only if the jury awards damages and should follow the damages question on the verdict sheet. Any verdict to the plaintiff is reduced by the percentage stated in No. 2.
8.20 DAMAGES -- MEDICAL EXPENSES (AUTO)
B. Medical Expenses -- No-Fault (12/96)
The plaintiff's claim in this case does not include any claims for medical expenses. Therefore, in determining the reasonable amount of damages due to plaintiff, you shall not speculate about the medical expenses plaintiff may have had.
NOTE:
Roig v. Kelsey, 135 N.J. 500 (1994). The New Jersey No Fault Law Automobile Reparation Reform Act N.J.S.A. 39:6A-1 et seq. bars recovery for the medical expense deductible and 20% copayment under PIP policies.
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Model Civil Jury Charges
The plaintiff's claim in this case does not include any claims for medical expenses. Therefore, in determining the reasonable amount of damages due to plaintiff, you shall not speculate about the medical expenses plaintiff may have had.
NOTE:
Roig v. Kelsey, 135 N.J. 500 (1994). The New Jersey No Fault Law Automobile Reparation Reform Act N.J.S.A. 39:6A-1 et seq. bars recovery for the medical expense deductible and 20% copayment under PIP policies.
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Model Civil Jury Charges
8.11A MEDICAL EXPENSES (NON-AUTO)
A. Medical Expenses -- Non-Auto (12/96)
A plaintiff who is awarded a verdict is entitled to payment for medical expenses which were reasonably required for the examination, treatment and care of injuries proximately caused by the defendant's negligence (or other wrongdoing).See footnote 1 Medical expenses are the costs of doctors' services, hospital services, medicines, medical supplies and medical tests and any other charges for medical services. The amount of payment is the fair and reasonable value of such medical expenses. You have heard testmimony on whether these medical expenses were fair and reasonable in amount and whether they were reasonably necessary for the examination, care and treatment of [plaintiff]. If you determine that any of these bills were not fair and reasonable to any extent, or that any of these services were not reasonably necessary to any extent, you need not award the full amount claimed. In this case, [plaintiff] is seeking the sum of [dollar amount] in medical expenses. As a result, the upper limit of the award which you may make for medical expenses is [dollar amount], since you may not award more than [plaintiff] is seeking.
NOTES:
Damages may also be awarded for future medical and hospital expenses. Schroeder v. Perkel, 87 N.J. 53 at 69-70 (1981). The test to be applied is whether there is a reasonable probability of incurring future medical or hospital expenses to treat or cure the injury sustained in the accident. Coll v. Sherry, 29 N.J. 166 (1959); Work v. Philadelphia Supply Co., 95 N.J.L. 193 (E & A 1920). But see, N.J.S.A. 2A:15-97, discussed below.
Collateral Sources
At common law total or partial compensation received by the plaintiff from a collateral source, wholly independent of the wrongdoer, was not applied to reduce the damages recoverable from the wrongdoer, even though the result was that the plaintiff receives more than total compensation for his/her injuries. Long v. Landy, 35 N.J. 44, 55, 56 (1961) medical and hospital expenses recoverable although paid by insurance on which defendant had paid the premiums; Cornish v. North Jersey St. Ry. Co., 73 N.J.L. 263 (Sup. Ct. 1906) medical expenses recoverable although paid by insurance; State v. Harrison, 107 N.J.S. 211 (Sup. Ct. 1933) hospital expenses recoverable although paid by relatives as a gift.
This common law collateral source rule has been severely limited by a number of statutes.
For all personal injury or wrongful death actions arising after December 18, 1987, N.J.S.A. 2A:15-97 requires that medical expense benefits from sources other than joint tortfeasors, workers' compensation carriers or the proceeds from life insurance policies be disclosed to the trial judge and the court must reduce the verdict accordingly. See, Thomas v. Toys 'R' Us, Inc., 282 N.J. Super. 569, 660 (App. Div. 1995), cert. den. 142 N.J. 574.
A plaintiff who is awarded a verdict is entitled to payment for medical expenses which were reasonably required for the examination, treatment and care of injuries proximately caused by the defendant's negligence (or other wrongdoing).See footnote 1 Medical expenses are the costs of doctors' services, hospital services, medicines, medical supplies and medical tests and any other charges for medical services. The amount of payment is the fair and reasonable value of such medical expenses. You have heard testmimony on whether these medical expenses were fair and reasonable in amount and whether they were reasonably necessary for the examination, care and treatment of [plaintiff]. If you determine that any of these bills were not fair and reasonable to any extent, or that any of these services were not reasonably necessary to any extent, you need not award the full amount claimed. In this case, [plaintiff] is seeking the sum of [dollar amount] in medical expenses. As a result, the upper limit of the award which you may make for medical expenses is [dollar amount], since you may not award more than [plaintiff] is seeking.
NOTES:
Damages may also be awarded for future medical and hospital expenses. Schroeder v. Perkel, 87 N.J. 53 at 69-70 (1981). The test to be applied is whether there is a reasonable probability of incurring future medical or hospital expenses to treat or cure the injury sustained in the accident. Coll v. Sherry, 29 N.J. 166 (1959); Work v. Philadelphia Supply Co., 95 N.J.L. 193 (E & A 1920). But see, N.J.S.A. 2A:15-97, discussed below.
Collateral Sources
At common law total or partial compensation received by the plaintiff from a collateral source, wholly independent of the wrongdoer, was not applied to reduce the damages recoverable from the wrongdoer, even though the result was that the plaintiff receives more than total compensation for his/her injuries. Long v. Landy, 35 N.J. 44, 55, 56 (1961) medical and hospital expenses recoverable although paid by insurance on which defendant had paid the premiums; Cornish v. North Jersey St. Ry. Co., 73 N.J.L. 263 (Sup. Ct. 1906) medical expenses recoverable although paid by insurance; State v. Harrison, 107 N.J.S. 211 (Sup. Ct. 1933) hospital expenses recoverable although paid by relatives as a gift.
This common law collateral source rule has been severely limited by a number of statutes.
For all personal injury or wrongful death actions arising after December 18, 1987, N.J.S.A. 2A:15-97 requires that medical expense benefits from sources other than joint tortfeasors, workers' compensation carriers or the proceeds from life insurance policies be disclosed to the trial judge and the court must reduce the verdict accordingly. See, Thomas v. Toys 'R' Us, Inc., 282 N.J. Super. 569, 660 (App. Div. 1995), cert. den. 142 N.J. 574.
8.10 DAMAGES -- PERSONAL INJURY CASE
A. GENERAL
I shall now instruct you on the law governing damages in the event you decide the liability issue in favor of [plaintiff].
The fact that I instruct you on damages should not be considered as suggesting any view of mine about which party is entitled to prevail in this case. Instructions on damages are given for your guidance in the event you find that the [plaintiff] is entitled to a verdict. I am required to provide instructions on damages in all cases where the trial includes a claim for damages.
NOTE:
See also charge 1.12(14) Damages.
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B. Sample Damage Verdict Sheet for a Personal Injury Case (2/98)
1. What sum of money will fairly and reasonably compensate the plaintiff [name] for damages he/she sustained as a proximate result of the accident/incident?
A. Pain, Suffering, Disability,
Impairment and Loss of
Enjoyment of Life?
$
B. Past Medical Expenses?
$
C. Future Medical Expenses?
$
D. Past Lost Wages?
$
E. Future Lost Wages?
$
2. What sum of money will fairly and reasonably compensate the plaintiff [name] for the lost of his/her spouse's services, society and consortium that he/she sustained as a proximate result of the accident/incident?
$
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Cases and Comment
This sample verdict sheet is intended to reflect the preference for itemized and segregated damages rather than a lump sum award on the verdict sheet. See, Black v. Seabrook Associates, Ltd., 298 NJ Super. 630, 638-39 (App. Div. 1997) ("Too many sins are buried in a lump sum award, especially where, as here, separate causes of action existed for wrongful death and survivorship claims."); Wachstein v. Slocum, 265 NJ Super. 6, 23 (App. Div.) (ordering a new trial limited to the issue of damages because the jury had returned a lump sum verdict on two of plaintiff's distinct claims and the Appellate Court reversed the judgment on one of them), certif. denied, 134 N.J. 563, and, certif. denied, 134 N.J. 563 (1993); Bussell v. DeWalt Prods. Corp., 204 NJ Super. 288, 295 (App. Div. 1985) ("to...facilitate trial and appellate court inquiry as to alleged verdict excessiveness, the court and counsel might alternatively consider requiring the jury to separately assess and report the components of the lump sum verdict"), rev'd, 105 N.J. 223 (1987); Amato v. Amato, 180 N.J. Super. 210, 219-20 (App. Div. 1981) ("There is no immutable rule in negligence cases requiring a plaintiff to receive a lump sum verdict encompassing pain, suffer
I shall now instruct you on the law governing damages in the event you decide the liability issue in favor of [plaintiff].
The fact that I instruct you on damages should not be considered as suggesting any view of mine about which party is entitled to prevail in this case. Instructions on damages are given for your guidance in the event you find that the [plaintiff] is entitled to a verdict. I am required to provide instructions on damages in all cases where the trial includes a claim for damages.
NOTE:
See also charge 1.12(14) Damages.
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B. Sample Damage Verdict Sheet for a Personal Injury Case (2/98)
1. What sum of money will fairly and reasonably compensate the plaintiff [name] for damages he/she sustained as a proximate result of the accident/incident?
A. Pain, Suffering, Disability,
Impairment and Loss of
Enjoyment of Life?
$
B. Past Medical Expenses?
$
C. Future Medical Expenses?
$
D. Past Lost Wages?
$
E. Future Lost Wages?
$
2. What sum of money will fairly and reasonably compensate the plaintiff [name] for the lost of his/her spouse's services, society and consortium that he/she sustained as a proximate result of the accident/incident?
$
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Cases and Comment
This sample verdict sheet is intended to reflect the preference for itemized and segregated damages rather than a lump sum award on the verdict sheet. See, Black v. Seabrook Associates, Ltd., 298 NJ Super. 630, 638-39 (App. Div. 1997) ("Too many sins are buried in a lump sum award, especially where, as here, separate causes of action existed for wrongful death and survivorship claims."); Wachstein v. Slocum, 265 NJ Super. 6, 23 (App. Div.) (ordering a new trial limited to the issue of damages because the jury had returned a lump sum verdict on two of plaintiff's distinct claims and the Appellate Court reversed the judgment on one of them), certif. denied, 134 N.J. 563, and, certif. denied, 134 N.J. 563 (1993); Bussell v. DeWalt Prods. Corp., 204 NJ Super. 288, 295 (App. Div. 1985) ("to...facilitate trial and appellate court inquiry as to alleged verdict excessiveness, the court and counsel might alternatively consider requiring the jury to separately assess and report the components of the lump sum verdict"), rev'd, 105 N.J. 223 (1987); Amato v. Amato, 180 N.J. Super. 210, 219-20 (App. Div. 1981) ("There is no immutable rule in negligence cases requiring a plaintiff to receive a lump sum verdict encompassing pain, suffer
8.70 TORT CLAIMS ACT THRESHOLD FOR RECOVERY OF DAMAGES FOR PAIN AND SUFFERING
Introductory Note:
When the plaintiff’s negligence claim arises against a government entity, the Torts Claims Act, N.J.S.A. 59:1-1 to 12-3, governs the claim. The Act provides specific exceptions to the doctrine of sovereign immunity. Except when the Act specifically imposes liability, public entities remain immune from negligence suits. N.J.S.A. 59:1-2. Accordingly, the Tort Claims Act must be strictly construed to permit lawsuits only where specifically delineated.
Subsection (d) of N.J.S.A. 59:9-2 sets forth a threshold for non-economic damages that a plaintiff must surmount to sustain a claim for pain and suffering. Note. The failure to reach the objective monetary and descriptive threshold set forth in N.J.S.A. 59:9-2 does not bar all causes of action, but merely bars recovery for pain and suffering component.
The section of the Act, in pertinent part and with added emphasis, reads as follows (as amended P.L. 2000, c. 126, §32, effective September 21, 2000):
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided however that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600. (Prior to September 21, 2000, any cause of action that arose involving the threshold required medical treatment expenses in excess of $1,000.)
The courts have held that the plaintiff could prove future expenses to meet the monetary threshold.(1)
It must also be noted that, if the plaintiff has not met the monetary threshold, but the plaintiff sustained permanent injury or disfigurement, he or she may still recover economic damages for his/her permanent injury. See, Peterson v. Edison Tp. Bd. of Ed., 137 N.J. Super. 566 (App. Div. 1975); Rocco v. NJ Transit Rail Operations, 330 N.J. Super. 320 (App. Div. 2000).
General Instruction
/B Introduction
To recover damages for pain and suffering [as I have previously defined that measure of damages] in this case, the plaintiff must prove by a preponderance of the evidence that he/she sustained injury that fits into one of the following categories:
(Note to Judge: Charge the appropriate category or both, depending upon the proofs introduced in each case.)
1) Permanent loss of bodily function, and/or
2) Permanent disfigurement or dismemberment
For either category the plaintiff must prove that the medical treatment expenses incurred, as a proximate cause of this condition, exceeded $3,600. (If the cause of action arose after September 21, 2000. The amount is $1,000, if it arose before that date.)
B. Permanent Loss of Body Function
With respect to a permanent injury the plaintiff must prove:
1) A permanent loss of body function [here insert an appropriate description of body function claimed lost].
2) The loss need not be total, but must be substantial. Mere limitation is insufficient, by that I mean the plaintiff must prove this loss by a demonstration of objective credible medical evidence of permanent injury, because damages for temporary injury are not recoverable. The proof must be both objective and credible. Objective means that the evidence must be verified by physical examination, diagnostic testing and/or observation. Credible mean that the evidence is believable.
3) The plaintiff may not recover for mere subjective feelings of discomfort.
C. Disfigurement
1) The scaring, indentation and/or blemishes [here insert an appropriate description of the scar, indentation or blemish] must be an objectively significant disfigurement.
2) It must be more than a trifling mark discoverable on close inspection and must detract from the appearance of the person.
3) The disfigurement must be visible and not insubstantial.
To summarize, to recover for pain and suffering the plaintiff must prove by a preponderance of the evidence that he/she sustained . . . (choose appropriate category)
a permanent loss of a bodily function OR
a permanent disfigurement that is substantial OR
a dismemberment
and has met the monetary threshold.
If you so find then you may consider all of the evidence presented by the plaintiff relating to all of his/her pain and suffering from permanent injuries even those injuries that do not meet the threshold that you find were proximately caused by the negligence of the [here identify the public entity or public employee]. (2) (3)
(1)Reale v. Tp. Of Wayne, 132 N.J. Super. 100 (Law Div. 1975).
(2)See, Hammer v. Tp. of Livingston, 318 N.J. Super. 298 (App. Div. 1999).
(3)In a case where the public entity or employee is alleged to be a joint tortfeasor with a non-public defendant, then the non-public defendant will remain exposed to liability for pain and suffering where the threshold is not met by the plaintiff against the public tortfeasor. See, Rivera v. Gerner, 89 N.J. 566 (1982).
When the plaintiff’s negligence claim arises against a government entity, the Torts Claims Act, N.J.S.A. 59:1-1 to 12-3, governs the claim. The Act provides specific exceptions to the doctrine of sovereign immunity. Except when the Act specifically imposes liability, public entities remain immune from negligence suits. N.J.S.A. 59:1-2. Accordingly, the Tort Claims Act must be strictly construed to permit lawsuits only where specifically delineated.
Subsection (d) of N.J.S.A. 59:9-2 sets forth a threshold for non-economic damages that a plaintiff must surmount to sustain a claim for pain and suffering. Note. The failure to reach the objective monetary and descriptive threshold set forth in N.J.S.A. 59:9-2 does not bar all causes of action, but merely bars recovery for pain and suffering component.
The section of the Act, in pertinent part and with added emphasis, reads as follows (as amended P.L. 2000, c. 126, §32, effective September 21, 2000):
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided however that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600. (Prior to September 21, 2000, any cause of action that arose involving the threshold required medical treatment expenses in excess of $1,000.)
The courts have held that the plaintiff could prove future expenses to meet the monetary threshold.(1)
It must also be noted that, if the plaintiff has not met the monetary threshold, but the plaintiff sustained permanent injury or disfigurement, he or she may still recover economic damages for his/her permanent injury. See, Peterson v. Edison Tp. Bd. of Ed., 137 N.J. Super. 566 (App. Div. 1975); Rocco v. NJ Transit Rail Operations, 330 N.J. Super. 320 (App. Div. 2000).
General Instruction
/B Introduction
To recover damages for pain and suffering [as I have previously defined that measure of damages] in this case, the plaintiff must prove by a preponderance of the evidence that he/she sustained injury that fits into one of the following categories:
(Note to Judge: Charge the appropriate category or both, depending upon the proofs introduced in each case.)
1) Permanent loss of bodily function, and/or
2) Permanent disfigurement or dismemberment
For either category the plaintiff must prove that the medical treatment expenses incurred, as a proximate cause of this condition, exceeded $3,600. (If the cause of action arose after September 21, 2000. The amount is $1,000, if it arose before that date.)
B. Permanent Loss of Body Function
With respect to a permanent injury the plaintiff must prove:
1) A permanent loss of body function [here insert an appropriate description of body function claimed lost].
2) The loss need not be total, but must be substantial. Mere limitation is insufficient, by that I mean the plaintiff must prove this loss by a demonstration of objective credible medical evidence of permanent injury, because damages for temporary injury are not recoverable. The proof must be both objective and credible. Objective means that the evidence must be verified by physical examination, diagnostic testing and/or observation. Credible mean that the evidence is believable.
3) The plaintiff may not recover for mere subjective feelings of discomfort.
C. Disfigurement
1) The scaring, indentation and/or blemishes [here insert an appropriate description of the scar, indentation or blemish] must be an objectively significant disfigurement.
2) It must be more than a trifling mark discoverable on close inspection and must detract from the appearance of the person.
3) The disfigurement must be visible and not insubstantial.
To summarize, to recover for pain and suffering the plaintiff must prove by a preponderance of the evidence that he/she sustained . . . (choose appropriate category)
a permanent loss of a bodily function OR
a permanent disfigurement that is substantial OR
a dismemberment
and has met the monetary threshold.
If you so find then you may consider all of the evidence presented by the plaintiff relating to all of his/her pain and suffering from permanent injuries even those injuries that do not meet the threshold that you find were proximately caused by the negligence of the [here identify the public entity or public employee]. (2) (3)
(1)Reale v. Tp. Of Wayne, 132 N.J. Super. 100 (Law Div. 1975).
(2)See, Hammer v. Tp. of Livingston, 318 N.J. Super. 298 (App. Div. 1999).
(3)In a case where the public entity or employee is alleged to be a joint tortfeasor with a non-public defendant, then the non-public defendant will remain exposed to liability for pain and suffering where the threshold is not met by the plaintiff against the public tortfeasor. See, Rivera v. Gerner, 89 N.J. 566 (1982).
5.33B LIMITATION ON LAWSUIT OPTION
A. Introduction
In order to recover damages in this case, plaintiff must prove by a preponderance of the evidence that [he] [she] sustained injuries which fit into one or more of the following categories:
Note to Judge
Charge 1, 2, 3, 4, 5, 6 or any combination of them, depending on the proofs in each case.
1. Death;
2. Dismemberment;
3. Significant disfigurement or significant scarring;
4. Displaced fracture;
5. Loss of a fetus;
6. A permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
If you find the injuries caused by the accident do not come within one of these categories, your verdict must be for the defendant. If you find the injuries caused by the accident do come within one of these categories, your verdict must be for the plaintiff.
B. Permanent Injury (Type 6)
In this case, the plaintiff alleges that [he] [she] suffered a permanent injury as a result of the motor vehicle accident. An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.[2]
Plaintiff must prove this claim through objective, credible medical evidence. Objective proof means the injury must be verified by physical examination or medical testing and cannot be based solely upon the plaintiff’s subjective complaints. Credible evidence is evidence you find to be believable.
C. Sample Interrogatories (Limitation on Lawsuit Option)
(Category 1) Has the plaintiff proven by a preponderance of the credible evidence that the decedent [insert name] died as a proximate result of the accident?
_____ Yes _____ No _____ Vote
(Category 2) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a dismemberment that was proximately caused by the accident?
_____ Yes _____ No _____ Vote
(Category 3) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a significant disfigurement or significant scarring that was proximately caused by the accident?
_____ Yes _____ No _____ Vote
(Category 4) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a displaced fracture that was proximately caused by the accident?
_____ Yes _____ No _____ Vote
(Category 5) Has the plaintiff proven by a preponderance of the credible evidence that she lost a fetus as a proximate result of the accident?
_____ Yes _____ No _____ Vote
(Category 6) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a permanent injury that was proximately caused by the accident?
_____ Yes _____ No _____ Vote
(Damages) What amount of money will fairly and reasonably compensate the plaintiff for all injuries that were proximately caused by the accident?
$______________________ _____ Vote
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[1] See N.J.S.A. 39:6A-8a. Though not numbered in the statute, the Limitation on Lawsuit Option within the Automobile Insurance Cost Reduction Act of 1998 (L.1998, c. 21 and c. 22) (“AICRA”), the categories are: (1) death; (2) dismemberment; (3) significant disfigurement or significant scarring; (4) displaced fractures; (5) loss of a fetus; (6) a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. The effective date of this provision of AICRA is March 22, 1999. Therefore, the Limitation on Lawsuit Option shall apply to individuals who, at the time of the accident, were insured under automobile liability insurance policies issued after March 22, 1999. By way of example, if an individual was involved in a motor vehicle collision on March 23, 1999, but was still covered under a policy issued before the effective date of the statute (March 22, 1999), he or she will be subject to the verbal threshold charge applicable to L.1988, c.119 effective January 1, 1989.
[2] This definition of “permanent injury” is taken directly from the Automobile Insurance Cost Reduction Act of 1998 (“AICRA”), N.J.S.A. 39:6A-8. In DiProspero v. Penn, 183 N.J. 477 (2005), the New Jersey Supreme Court held that the Legislature did not intend to require a plaintiff with a Type 6 injury to prove a “serious or substantial impact” on his or her life in order to pierce the verbal threshold. Therefore, a plaintiff need only prove a permanent injury, as defined in the statute, to recover for non-economic damages.
In order to recover damages in this case, plaintiff must prove by a preponderance of the evidence that [he] [she] sustained injuries which fit into one or more of the following categories:
Note to Judge
Charge 1, 2, 3, 4, 5, 6 or any combination of them, depending on the proofs in each case.
1. Death;
2. Dismemberment;
3. Significant disfigurement or significant scarring;
4. Displaced fracture;
5. Loss of a fetus;
6. A permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
If you find the injuries caused by the accident do not come within one of these categories, your verdict must be for the defendant. If you find the injuries caused by the accident do come within one of these categories, your verdict must be for the plaintiff.
B. Permanent Injury (Type 6)
In this case, the plaintiff alleges that [he] [she] suffered a permanent injury as a result of the motor vehicle accident. An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.[2]
Plaintiff must prove this claim through objective, credible medical evidence. Objective proof means the injury must be verified by physical examination or medical testing and cannot be based solely upon the plaintiff’s subjective complaints. Credible evidence is evidence you find to be believable.
C. Sample Interrogatories (Limitation on Lawsuit Option)
(Category 1) Has the plaintiff proven by a preponderance of the credible evidence that the decedent [insert name] died as a proximate result of the accident?
_____ Yes _____ No _____ Vote
(Category 2) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a dismemberment that was proximately caused by the accident?
_____ Yes _____ No _____ Vote
(Category 3) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a significant disfigurement or significant scarring that was proximately caused by the accident?
_____ Yes _____ No _____ Vote
(Category 4) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a displaced fracture that was proximately caused by the accident?
_____ Yes _____ No _____ Vote
(Category 5) Has the plaintiff proven by a preponderance of the credible evidence that she lost a fetus as a proximate result of the accident?
_____ Yes _____ No _____ Vote
(Category 6) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a permanent injury that was proximately caused by the accident?
_____ Yes _____ No _____ Vote
(Damages) What amount of money will fairly and reasonably compensate the plaintiff for all injuries that were proximately caused by the accident?
$______________________ _____ Vote
--------------------------------------------------------------------------------
[1] See N.J.S.A. 39:6A-8a. Though not numbered in the statute, the Limitation on Lawsuit Option within the Automobile Insurance Cost Reduction Act of 1998 (L.1998, c. 21 and c. 22) (“AICRA”), the categories are: (1) death; (2) dismemberment; (3) significant disfigurement or significant scarring; (4) displaced fractures; (5) loss of a fetus; (6) a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. The effective date of this provision of AICRA is March 22, 1999. Therefore, the Limitation on Lawsuit Option shall apply to individuals who, at the time of the accident, were insured under automobile liability insurance policies issued after March 22, 1999. By way of example, if an individual was involved in a motor vehicle collision on March 23, 1999, but was still covered under a policy issued before the effective date of the statute (March 22, 1999), he or she will be subject to the verbal threshold charge applicable to L.1988, c.119 effective January 1, 1989.
[2] This definition of “permanent injury” is taken directly from the Automobile Insurance Cost Reduction Act of 1998 (“AICRA”), N.J.S.A. 39:6A-8. In DiProspero v. Penn, 183 N.J. 477 (2005), the New Jersey Supreme Court held that the Legislature did not intend to require a plaintiff with a Type 6 injury to prove a “serious or substantial impact” on his or her life in order to pierce the verbal threshold. Therefore, a plaintiff need only prove a permanent injury, as defined in the statute, to recover for non-economic damages.
5.33A VERBAL THRESHOLD (TYPE 6, 7, 8 OR 9 INJURIES)
A. Introduction
In order to recover damages in this case, plaintiff must prove by a preponderance of the evidence that he sustained injuries which fit into one or more of the following categories:
(Note: Charge 1, 2, 3 or any combination of them, depending on the proofs in each case)
1. Permanent loss of use of a body organ, member, function or system (Type 6);
2. Permanent consequential limitation of use of a body organ or member. (Type 7); or,
3. Significant limitation of use of a body function or system (Type 8). If the injuries caused by the accident do not come within these categories, your verdict must be for defendant.
B. Permanent loss of use of a body organ, member, function or system (Type 6)
The first category is permanent loss of use of a body organ, member, function or system. In this case, the plaintiff alleges permanent loss of use of (insert body organ, member, function or system). In order to prevail, the plaintiff must prove all three of the following elements:
1. That he sustained a loss of use of his (insert body organ, member, function or system) .
In order to find that plaintiff sustained a loss of use of his (insert body organ, member, function or system , you must find either that the (insert body organ, member, function or system) no longer operates at all, or that it operates only in some limited way.See footnote 2 It is not necessary that there be a total loss of use of (insert body organ, member, function or system) .
Plaintiff must show proof of the injury by objective, credible evidence; that is, the proofs must be both objective and credible. Objective means that the evidence must be verified by physical examination and observation and
cannot be based solely on plaintiff's complaints. Credible means that the evidence is believable.
2. That the loss of use of (insert body organ, member, function or system) is permanent.
3. That the injury has had a serious impact on the plaintiff's life. This means that the plaintiff must prove that the injury has seriously affected one or more activities which were a significant and important component of the plaintiff's way of life.See footnote 3
C. Permanent consequential limitation of use of a body organ or member (Type 7)
The second category is permanent consequential limitation of use of a body organ or member. In this case, the plaintiff alleges permanent consequential limitation of use of (insert body organ or member) .
In order to prevail, the plaintiff must prove all three of the following elements:
1. That he sustained a consequential limitation of use of (insert body organ or member) .
The phrase “consequential limitation of use of a body organ or member” means that the limitation of use of a body organ or member must be significant. In order to fall into this category, the limitation of use cannot be merely mild or minor. Rather, it must be important, significant, and of some consequence.
It is not necessary that there be a total loss of use of (insert body organ or member) . You must find that the (insert body organ or member) has been limited or restricted in its operation in some significant way. A minor, mild or slight limitation is not consequential. Thus, in order for you to find that any of the plaintiff's injuries fall within this category, the plaintiff must prove that he has a limitation of use of his (insert body organ or member) that is of consequence and important in nature.
Plaintiff must show proof of the alleged injury by objective, credible evidence. That is, the proofs must be both objective and credible. Objective means that the evidence must be verified by physical examination and observation and cannot be based solely upon plaintiff's complaints. Credible means that the evidence is believable.
2. That the limitation of use of (insert body organ or member) is permanent.
3. That the injury has had a serious impact on the plaintiff's life. This means that the plaintiff must prove that the injury has seriously affected one or more activities which were a significant and important component of the plaintiff's way of life.See footnote 4
D. Significant limitation of use of a body function or system (Type 8)
The third category is significant limitation of use of a body function or system. In this case, the plaintiff alleges a significant limitation of use of (insert body function or system) .
In order to prevail, the plaintiff must prove:
1. That he sustained a significant limitation of use of his (insert body function or system) .
The phrase “significant limitation of use of a body function or system” means that the use of a body function or system is limited in a serious manner.
It is not necessary that there be a total loss of use of (insert body function or system) . You must find that there is a limitation of use of the (insert body function or system) which is significant, important or meaningful. A minor, mild or slight
limitation of use is not sufficient. For this category, the limitation of use of (insert body function or system) need not be permanent.
Plaintiff must show proof of the alleged injury by objective, credible evidence. That is, the proofs must be both objective and credible. Objective means that the evidence must be verified by physical examination and observation and cannot be based solely upon plaintiff's complaints. Credible means that the evidence is believable.
2. That the injury has had a serious impact on the plaintiff's life. This means that the plaintiff must prove that the injury has seriously affected one or more activities which were a significant and important component of the plaintiff's way of life.See footnote 5
E. Verbal Threshold (Type 9 Injuries) N.J.S.A.39:6A-8a
In order to recover damages in this case, plaintiff must prove by a preponderance of the evidence that the injury he/she sustained:
A medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that person's usual and customary daily activities for not less than 90 days during the 180
days immediately following the occurrence of the injury or impairment.See footnote 6
In order to prevail, the plaintiff must prove all three of the following elements:
1. Plaintiff must satisfy you of the injury or impairment [describe] by objective, credible medical evidence; that is, the proofs must be both objective and credible. Objective means that the evidence must be verified by physical examination and/or testing and cannot be based solely on plaintiff's complaints. Credible means that the evidence is believable.
2. That the injury or impairment [describe] prevented the plaintiff from performing substantially all of the material acts which made up the plaintiff's usual and customary daily activities.
In determining plaintiff's usual and customary daily activities you are to consider all of the activities which were a significant part of the plaintiff's usual daily routine. While you may find the plaintiff's employment to be a moral activity, you must give equal attention to the details of the plaintiff's other usual and customary activities such as marital, household, social, athletic or
recreational activities.See footnote 7 You are to consider all of the plaintiff's usual activities, not just a primary one.See footnote 8
3. Once you have determined what material acts constituted the plaintiff's usual and customary daily activities before the injury or impairment,See footnote 9 you must decide whether the plaintiff presented sufficient objective evidence showing that his injury or impairment [describe] prevented him from performing substantially all of these activities during at least 90 of the 180 days following the occurrence of the injury. The impact of the injury or impairment on these activities must have been to a great extent rather than a slight curtailment.See footnote 10
If you find that the plaintiff has established these three elements, then your verdict must be in favor of the plaintiff on this verbal threshold issue and you will answer the question "yes."
If you find that plaintiff has not proved each of these elements then you must answer the question "no."See footnote 11
F. Sample Interrogatories (Verbal Threshold Types 6, 7, 8 & 9)
1. Has the plaintiff sustained an injury, caused by this accident, consisting of a permanent loss of use of a body organ, member, function or system?
. Yes
. No
2. Has the plaintiff sustained an injury, caused by this accident, consisting of a permanent consequential limitation of use of a body organ or member?See footnote 12
. Yes
. No
3. Has the plaintiff sustained an injury, caused by this accident, consisting of the significant limitation of use of a body function or system?
. Yes
. No
4. Has the plaintiff sustained an injury, caused by this accident, which prevented the plaintiff from performing substantially all of his/her customary daily activities for at least 90 of the first 180 days following the accident?
. Yes
. No
IF YOU ANSWERED ANY OF THE ABOVE FOUR QUESTIONS “YES”, CONTINUE TO QUESTION 5. IF YOU ANSWERED ALL OF THE ABOVE QUESTIONS “NO”, CEASE DELIBERATIONS AND INFORM THE COURT YOU HAVE REACHED A VERDICT.
5 . What amount of money will fairly and reasonably compensate plaintiff for the injuries proven to be proximately caused by this accident?
$______________________
The Court may add negligence and proximate cause questions to these interrogatories to make up a verdict sheet.
--------------------------------------------------------------------------------
Footnote: 1 See N.J.S.A. 39:6A-8a. Though not numbered in the statute, the categories are: (1) death; (2) dismemberment; (3) significant disfigurement; (4) fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ, member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; (9) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
--------------------------------------------------------------------------------
Footnote: 2 Bassett v. Romano, 511 NYS 2d 298 (A.D. 2 Dept. 1987). Permanency may include persistent pain, operation of an organ in a limited way, or only with pain.
--------------------------------------------------------------------------------
Footnote: 3 Oswin v. Shaw, 129 N.J. 290, 318 (1992); Dabal v. Sodora, 260 NJ Super. 397, 401 (App. Div. 1992).
--------------------------------------------------------------------------------
Footnote: 4 Oswin v. Shaw, 129 NJ 290, 318 (1992); Dabal v. Sodora, 260 NJ Super. 397, 401 (App. Div. 1992).
--------------------------------------------------------------------------------
Footnote: 5 Oswin v. Shaw, 129 N.J. 290, 318 (1992); Dabal v. Sodora, 260 NJ Super. 397, 401 (App. Div. 1992).
--------------------------------------------------------------------------------
Footnote: 6 N.J.S.A. 39:6A-8a.
--------------------------------------------------------------------------------
Footnote: 7 See Jefferson v. Freeman, 296 N.J. Super. 54, 66 (App. Div. 1996) (holding that jury instructions which focused the jury's attention on the time plaintiff was absent from work at the exclusion of other aspects of plaintiff's daily activities were erroneous).
--------------------------------------------------------------------------------
Footnote: 8 See Jefferson v. Freeman at 63-64. See generally, Duffy v. O'Connell, 279 N.J. Super. 672 (App. Div. 1995).
--------------------------------------------------------------------------------
Footnote: 9 See Duffy v. O'Connell, 279 N.J. Super. 672, 677 (App. Div. 1995) (noting that the cataloging plaintiff's usual and customary daily activities is an obvious part of plaintiff's case).
--------------------------------------------------------------------------------
Footnote: 10 Jefferson v. Freedman, supra at 63.
--------------------------------------------------------------------------------
Footnote: 11 A jury questionnaire must be submitted to the jury on this issue: Did the plaintiff sustain an injury or impairment which prevent him/her from performing substantially all of the material activities which constitute his/her usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury or impairment -- yes or no?
--------------------------------------------------------------------------------
Footnote: 12 The Court, when going over this interrogatory with the jury, may want to state as follows: If you find permanent limitation of use, and that the limitation is consequential, as I have defined it, you must answer the question “Yes”. If you find that there is no permanent limitation, or the limitation is not consequential, you must answer the question “No”.
--------------------------------------------------------------------------------
Model Civil Jury Charges
In order to recover damages in this case, plaintiff must prove by a preponderance of the evidence that he sustained injuries which fit into one or more of the following categories:
(Note: Charge 1, 2, 3 or any combination of them, depending on the proofs in each case)
1. Permanent loss of use of a body organ, member, function or system (Type 6);
2. Permanent consequential limitation of use of a body organ or member. (Type 7); or,
3. Significant limitation of use of a body function or system (Type 8). If the injuries caused by the accident do not come within these categories, your verdict must be for defendant.
B. Permanent loss of use of a body organ, member, function or system (Type 6)
The first category is permanent loss of use of a body organ, member, function or system. In this case, the plaintiff alleges permanent loss of use of (insert body organ, member, function or system). In order to prevail, the plaintiff must prove all three of the following elements:
1. That he sustained a loss of use of his (insert body organ, member, function or system) .
In order to find that plaintiff sustained a loss of use of his (insert body organ, member, function or system , you must find either that the (insert body organ, member, function or system) no longer operates at all, or that it operates only in some limited way.See footnote 2 It is not necessary that there be a total loss of use of (insert body organ, member, function or system) .
Plaintiff must show proof of the injury by objective, credible evidence; that is, the proofs must be both objective and credible. Objective means that the evidence must be verified by physical examination and observation and
cannot be based solely on plaintiff's complaints. Credible means that the evidence is believable.
2. That the loss of use of (insert body organ, member, function or system) is permanent.
3. That the injury has had a serious impact on the plaintiff's life. This means that the plaintiff must prove that the injury has seriously affected one or more activities which were a significant and important component of the plaintiff's way of life.See footnote 3
C. Permanent consequential limitation of use of a body organ or member (Type 7)
The second category is permanent consequential limitation of use of a body organ or member. In this case, the plaintiff alleges permanent consequential limitation of use of (insert body organ or member) .
In order to prevail, the plaintiff must prove all three of the following elements:
1. That he sustained a consequential limitation of use of (insert body organ or member) .
The phrase “consequential limitation of use of a body organ or member” means that the limitation of use of a body organ or member must be significant. In order to fall into this category, the limitation of use cannot be merely mild or minor. Rather, it must be important, significant, and of some consequence.
It is not necessary that there be a total loss of use of (insert body organ or member) . You must find that the (insert body organ or member) has been limited or restricted in its operation in some significant way. A minor, mild or slight limitation is not consequential. Thus, in order for you to find that any of the plaintiff's injuries fall within this category, the plaintiff must prove that he has a limitation of use of his (insert body organ or member) that is of consequence and important in nature.
Plaintiff must show proof of the alleged injury by objective, credible evidence. That is, the proofs must be both objective and credible. Objective means that the evidence must be verified by physical examination and observation and cannot be based solely upon plaintiff's complaints. Credible means that the evidence is believable.
2. That the limitation of use of (insert body organ or member) is permanent.
3. That the injury has had a serious impact on the plaintiff's life. This means that the plaintiff must prove that the injury has seriously affected one or more activities which were a significant and important component of the plaintiff's way of life.See footnote 4
D. Significant limitation of use of a body function or system (Type 8)
The third category is significant limitation of use of a body function or system. In this case, the plaintiff alleges a significant limitation of use of (insert body function or system) .
In order to prevail, the plaintiff must prove:
1. That he sustained a significant limitation of use of his (insert body function or system) .
The phrase “significant limitation of use of a body function or system” means that the use of a body function or system is limited in a serious manner.
It is not necessary that there be a total loss of use of (insert body function or system) . You must find that there is a limitation of use of the (insert body function or system) which is significant, important or meaningful. A minor, mild or slight
limitation of use is not sufficient. For this category, the limitation of use of (insert body function or system) need not be permanent.
Plaintiff must show proof of the alleged injury by objective, credible evidence. That is, the proofs must be both objective and credible. Objective means that the evidence must be verified by physical examination and observation and cannot be based solely upon plaintiff's complaints. Credible means that the evidence is believable.
2. That the injury has had a serious impact on the plaintiff's life. This means that the plaintiff must prove that the injury has seriously affected one or more activities which were a significant and important component of the plaintiff's way of life.See footnote 5
E. Verbal Threshold (Type 9 Injuries) N.J.S.A.39:6A-8a
In order to recover damages in this case, plaintiff must prove by a preponderance of the evidence that the injury he/she sustained:
A medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that person's usual and customary daily activities for not less than 90 days during the 180
days immediately following the occurrence of the injury or impairment.See footnote 6
In order to prevail, the plaintiff must prove all three of the following elements:
1. Plaintiff must satisfy you of the injury or impairment [describe] by objective, credible medical evidence; that is, the proofs must be both objective and credible. Objective means that the evidence must be verified by physical examination and/or testing and cannot be based solely on plaintiff's complaints. Credible means that the evidence is believable.
2. That the injury or impairment [describe] prevented the plaintiff from performing substantially all of the material acts which made up the plaintiff's usual and customary daily activities.
In determining plaintiff's usual and customary daily activities you are to consider all of the activities which were a significant part of the plaintiff's usual daily routine. While you may find the plaintiff's employment to be a moral activity, you must give equal attention to the details of the plaintiff's other usual and customary activities such as marital, household, social, athletic or
recreational activities.See footnote 7 You are to consider all of the plaintiff's usual activities, not just a primary one.See footnote 8
3. Once you have determined what material acts constituted the plaintiff's usual and customary daily activities before the injury or impairment,See footnote 9 you must decide whether the plaintiff presented sufficient objective evidence showing that his injury or impairment [describe] prevented him from performing substantially all of these activities during at least 90 of the 180 days following the occurrence of the injury. The impact of the injury or impairment on these activities must have been to a great extent rather than a slight curtailment.See footnote 10
If you find that the plaintiff has established these three elements, then your verdict must be in favor of the plaintiff on this verbal threshold issue and you will answer the question "yes."
If you find that plaintiff has not proved each of these elements then you must answer the question "no."See footnote 11
F. Sample Interrogatories (Verbal Threshold Types 6, 7, 8 & 9)
1. Has the plaintiff sustained an injury, caused by this accident, consisting of a permanent loss of use of a body organ, member, function or system?
. Yes
. No
2. Has the plaintiff sustained an injury, caused by this accident, consisting of a permanent consequential limitation of use of a body organ or member?See footnote 12
. Yes
. No
3. Has the plaintiff sustained an injury, caused by this accident, consisting of the significant limitation of use of a body function or system?
. Yes
. No
4. Has the plaintiff sustained an injury, caused by this accident, which prevented the plaintiff from performing substantially all of his/her customary daily activities for at least 90 of the first 180 days following the accident?
. Yes
. No
IF YOU ANSWERED ANY OF THE ABOVE FOUR QUESTIONS “YES”, CONTINUE TO QUESTION 5. IF YOU ANSWERED ALL OF THE ABOVE QUESTIONS “NO”, CEASE DELIBERATIONS AND INFORM THE COURT YOU HAVE REACHED A VERDICT.
5 . What amount of money will fairly and reasonably compensate plaintiff for the injuries proven to be proximately caused by this accident?
$______________________
The Court may add negligence and proximate cause questions to these interrogatories to make up a verdict sheet.
--------------------------------------------------------------------------------
Footnote: 1 See N.J.S.A. 39:6A-8a. Though not numbered in the statute, the categories are: (1) death; (2) dismemberment; (3) significant disfigurement; (4) fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ, member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; (9) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
--------------------------------------------------------------------------------
Footnote: 2 Bassett v. Romano, 511 NYS 2d 298 (A.D. 2 Dept. 1987). Permanency may include persistent pain, operation of an organ in a limited way, or only with pain.
--------------------------------------------------------------------------------
Footnote: 3 Oswin v. Shaw, 129 N.J. 290, 318 (1992); Dabal v. Sodora, 260 NJ Super. 397, 401 (App. Div. 1992).
--------------------------------------------------------------------------------
Footnote: 4 Oswin v. Shaw, 129 NJ 290, 318 (1992); Dabal v. Sodora, 260 NJ Super. 397, 401 (App. Div. 1992).
--------------------------------------------------------------------------------
Footnote: 5 Oswin v. Shaw, 129 N.J. 290, 318 (1992); Dabal v. Sodora, 260 NJ Super. 397, 401 (App. Div. 1992).
--------------------------------------------------------------------------------
Footnote: 6 N.J.S.A. 39:6A-8a.
--------------------------------------------------------------------------------
Footnote: 7 See Jefferson v. Freeman, 296 N.J. Super. 54, 66 (App. Div. 1996) (holding that jury instructions which focused the jury's attention on the time plaintiff was absent from work at the exclusion of other aspects of plaintiff's daily activities were erroneous).
--------------------------------------------------------------------------------
Footnote: 8 See Jefferson v. Freeman at 63-64. See generally, Duffy v. O'Connell, 279 N.J. Super. 672 (App. Div. 1995).
--------------------------------------------------------------------------------
Footnote: 9 See Duffy v. O'Connell, 279 N.J. Super. 672, 677 (App. Div. 1995) (noting that the cataloging plaintiff's usual and customary daily activities is an obvious part of plaintiff's case).
--------------------------------------------------------------------------------
Footnote: 10 Jefferson v. Freedman, supra at 63.
--------------------------------------------------------------------------------
Footnote: 11 A jury questionnaire must be submitted to the jury on this issue: Did the plaintiff sustain an injury or impairment which prevent him/her from performing substantially all of the material activities which constitute his/her usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury or impairment -- yes or no?
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Footnote: 12 The Court, when going over this interrogatory with the jury, may want to state as follows: If you find permanent limitation of use, and that the limitation is consequential, as I have defined it, you must answer the question “Yes”. If you find that there is no permanent limitation, or the limitation is not consequential, you must answer the question “No”.
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Model Civil Jury Charges
5.20I DUTY OF A SUPERMARKET TO A BUSINESS INVITEE WALKING IN ONE OF THE AISLE
One who owns or operates a business establishment such as a supermarket and invites members of the public to enter for business purposes has a duty to exercise reasonable care for the safety of his/her customers. That duty includes the duty to use reasonable care to see to it that the premises are in reasonably safe condition for the use of his/her customers.
If you find that the premises were not in a reasonably safe condition because of failure to exercise such care because of failure to exercise such care (that is, subjected the customer to an unreasonable risk of harm), and defendant did not exercise reasonable care, then defendant was negligent.See footnote 1 On the other hand, if you find that the condition of the premises was reasonably safe (that is, did not subject the customer to an unreasonable risk of harm), then defendant was not negligent.
Plaintiff was a person to whom defendant owed the duty of exercising reasonable care to maintain the aisle in a reasonably safe condition for passage. Plaintiff had a right to assume that the floor of the defendant's store was free from obstruction as he/she walked down the aisle. This right existed until
he/she was aware or should have been aware of the hazard which allegedly caused the accident. The plaintiff is not required to maintain a continued surveillance of the floor to discover hazards; but if you find that immediately before the accident, plaintiff was not exercising due care for his/her own protection, he/she was negligent. On the other hand, if plaintiff was exercising due care, then he/she was not negligent.
Cases:
See Krackomberger v. Vornado, Inc., 119 N.J. Super. 380 (App. Div. 1972); Bozza v. Vornado, Inc., 42 N.J. 355, (1964); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1966).
--------------------------------------------------------------------------------
Footnote: 1Define constructive notice where applicable (See Charge 5.24B.10.).
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Model Civil Jury Charges
If you find that the premises were not in a reasonably safe condition because of failure to exercise such care because of failure to exercise such care (that is, subjected the customer to an unreasonable risk of harm), and defendant did not exercise reasonable care, then defendant was negligent.See footnote 1 On the other hand, if you find that the condition of the premises was reasonably safe (that is, did not subject the customer to an unreasonable risk of harm), then defendant was not negligent.
Plaintiff was a person to whom defendant owed the duty of exercising reasonable care to maintain the aisle in a reasonably safe condition for passage. Plaintiff had a right to assume that the floor of the defendant's store was free from obstruction as he/she walked down the aisle. This right existed until
he/she was aware or should have been aware of the hazard which allegedly caused the accident. The plaintiff is not required to maintain a continued surveillance of the floor to discover hazards; but if you find that immediately before the accident, plaintiff was not exercising due care for his/her own protection, he/she was negligent. On the other hand, if plaintiff was exercising due care, then he/she was not negligent.
Cases:
See Krackomberger v. Vornado, Inc., 119 N.J. Super. 380 (App. Div. 1972); Bozza v. Vornado, Inc., 42 N.J. 355, (1964); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1966).
--------------------------------------------------------------------------------
Footnote: 1Define constructive notice where applicable (See Charge 5.24B.10.).
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Model Civil Jury Charges
5.71 TAVERNKEEPERS SERVING MINORS AND INTOXICATED PERSONS (5/98)
NOTE TO JUDGES
These instructions are designed for cases arising under the Licensed Server Liability Act, N.J.S.A. 2A:22A-1 et seq. (“Act”). The instructions in Sections A-D should be used for the ordinary case where there is no issue of apportionment of liability.
The instructions in E-I address those cases where there is an issue of apportionment of liability based on either: (1) a claim of plaintiff's comparative negligence; or (2) a claim of plaintiff's injury was caused by another tortfeasor. Section E (General Introductory Instruction) and I (General Concluding Instruction) should be given in all cases where there is an issue of apportionment of liability. Section F should be given when the comparative negligence claim is based on plaintiff's negligence as a visibly intoxicated driver, and Section G should be given when that claim is based on plaintiff's negligence as a visibly intoxicated passenger. Section H is designed for those cases where the licensed alcoholic beverage server claims that plaintiff's injury was caused by the assaultive behavior of a patron.
A. NEGLIGENCE OF LICENSED ALCOHOLIC BEVERAGE SERVER (LABS)
In this case the plaintiff claims that the [name of licensed alcoholic beverage server] (and his/her employee)See footnote 1 was (were) negligent by serving
alcoholic beverages to [name] while he/she was visibly intoxicated (or, was known or reasonably should have known to be a minor). The plaintiff maintains that the negligence proximately caused (or, was a substantial factor in causing) an [event] in which plaintiff was injured. Plaintiff contends that at the time the alcoholic beverage was served, the (person) was visibly intoxicated (or, was known or reasonably should have been known to be a minor).
"Visibly intoxicated" means a state of intoxication accompanied by a perceptible act or series of acts which present clear signs of intoxication (and an "apparent minor" is a person under the age of 21 or an individual who under the circumstances was known or reasonably should have been known to be a minor).
If you find that the [name of licensed alcoholic beverage server] served, or permitted to be served, alcoholic beverages to a person when visibly intoxicated (or was known or reasonably should have been known to be a minor) then you must find the licensed alcoholic beverage server negligent. If you find that the [name of licensed alcoholic beverage server] did not serve alcoholic beverages to a visibly intoxicated person, then the [name of licensed alcoholic beverage server] was not negligent.
Cases:
Lee v. Kiku Restaurant, 127 N.J. 170 (1992); Rappaport v. Nichols, 31 N.J. 188 (1959); Geherty v. Moore, 238 N.J. Super. 463 (App. Div. 1990); Aliulis v. Tunnel Hill Corp., 114 N.J. Super. 205 (App. Div. 1971).
See also Fisch v. Bellshot, 135 N.J. 374, 382-386 (1994) (Licensed Server Liability Act provides exclusive definition of an alcoholic beverage server's negligence for all causes of action arising under Act, and jury should not be instructed that violation of administrative regulations is evidence of a defendant's negligence.)
Notes:
In the case of a sale to an apparent minor, see Rappaport v. Nichols, supra, 31 N.J. at p. 201 for the concept of selling the first drink which does "its share of the work."
Statute:
N.J.S.A. 2A:22A-1 et seq.
Cross-reference:
See negligence charges.
B. PROXIMATE CAUSE--INTERVENING CAUSE--SUBSTANTIAL FACTOR
If you find that the [name of licensed alcohol beverage server] did serve alcoholic beverages to [name of intoxicated person] when he was visibly intoxicated, you then must determine whether or not that conduct was a proximate cause of the [event]. By proximate cause we mean a cause which naturally and probably led to the [event] and resulting injuries. Sometimes an event results from two or more causes. Nevertheless, if a person's negligence is a substantial factor in causing an [event], that negligent person is held liable to a person so injured. Therefore, you must also determine whether the service of alcoholic beverages to [insert name of intoxicated person] was a substantial factor in bringing about the [event]. It makes no difference whether any other causes intervened and contributed to the [event] as long as the service of alcoholic beverages to [insert name of intoxicated person] was a substantial factor in causing the event.
C. FORESEEABLE CONSEQUENCE
In determining whether plaintiff is entitled to recover from the [name of licensed alcoholic beverage server], you must also consider whether the [event]
was a foreseeable consequence of the negligent service of alcoholic beverages. A foreseeable consequence is a natural and probable consequence of the service of alcoholic beverages to the visibly intoxicated person (or to a person who was known or should have been known to be a minor). It is the kind of event that is susceptible of being anticipated in advance of the service of alcoholic beverages by the exercise of that degree of care which the ordinary and prudent person would exercise under the circumstances existing at the time. However, it is not necessary that the defendant [name of licensed alcoholic beverage server] have anticipated this specific event as long as the event was a natural and probable consequence of the service of the alcoholic beverages.See footnote 2
D. SUMMARY
Thus, plaintiff is entitled to recover from the [name of licensed alcoholic beverage server], if plaintiff proves by the preponderance of evidence the following elements:
1. That defendant served alcoholic beverages to [name];
2. That when the alcoholic beverage was served the person was visibly intoxicated (or, was known or reasonably should have been known to be a minor);
3. That such service of alcoholic beverages was a proximate cause of the [event] and injury complained of; and
4. That the injury or damage was a foreseeable consequence of the negligent service of alcoholic beverages.
E. APPORTIONING FAULT WHERE CLAIM OF COMPARATIVE NEGLIGENCE OR JOINT TORTFEASORS (GENERAL INTRODUCTORY INSTRUCTION)
In this case, it is contended that [insert nature of claim, e.g., plaintiff was negligent by becoming voluntarily intoxicated and/or by driving his/her car while intoxicated; plaintiff was a fault by becoming voluntarily intoxicated and thereafter riding as a passenger with an intoxicated driver, or by other conduct that might suggest that he/she was negligent; (name of patron who assaulted plaintiff) caused the injury by his/her assaultive conduct].
If you conclude that plaintiff has proven his/her claim against [name of licensed alcoholic beverage server], you must then apportion fault between the [name of licensed alcoholic beverage server] and [name of plaintiff if comparative negligence or of other defendants if joint tortfeasors] based on the extent that each party's negligence [or other conduct, if assault] contributed to the event.
The general purpose of the Licensed Servers Liability Act is to impose on taverns financial responsibility for injuries proximately caused by the negligent service of alcoholic beverages. I will now instruct you on apportioning responsibility for the incident in this case. In allocating responsibility between [name of licensed alcoholic beverage server] and [name of plaintiff if comparative negligence or of other defendants if joint tortfeasors], you should hold the tavern responsible for negligent service to the extent that it influenced the behavior of persons whom the tavern should not have served.See footnote 3
[ADDITIONAL LANGUAGE WHEN PATRON IS UNDERAGE]
You should also be aware that taverns have a heightened duty to underage patrons under the Licensed Servers Liability Act. The Act deems the
licensed server negligent if it serves a person it knew or should have know was underage, regardless of that person's visible level of intoxication. This heightened duty was imposed because of the Legislature's recognition that minors as a class are less likely than adults to drink responsibly and more likely to become intoxicated and pose a danger of harm to othersSee footnote 4
F. COMPARATIVE NEGLIGENCE: WHEN PLAINTIFF IS VISIBLY INTOXICATED DRIVERSee footnote 5
As I just mentioned, it is contended that plaintiff was negligent by becoming voluntarily intoxicated and/or by driving his/her car while intoxicated.See footnote 6
The [name of licensed alcoholic beverage server] is responsible for its conduct in serving alcoholic beverages to a visibly intoxicated person.See footnote 7 An intoxicated person generally lacks the capacity to adequately evaluate his ability to drive. As a result, the tavern [or insert other appropriate word to refer to type of licensed alcoholic beverage server] is ordinarily responsible for the driver's decision to drive an intoxicated state. The defendant driver is, however, responsible for his conduct in drinking to the point of intoxication.See footnote 8
You are to consider the negligence of [name of intoxicated driver] in becoming voluntarily intoxicated, the negligence of the [name of licensed alcoholic beverage server] in serving a visibly intoxicated person and the nature and circumstances of the negligent operation of the vehicle. Based on all the relevant evidence you must allocate the responsibility for the negligent operation of that vehicle between [name of intoxicated driver] and [name of licensed alcoholic beverage server].
Cases:
The contributory negligence of the person served is not a bar to recovery under the statute or the pre-statute dram shop rule, although the plaintiff may be found to have been comparatively negligent. See N.J.S.A. 2A:22A-6(a); Soronen v. Olde Milford Inn, Inc., 46 N.J. 582 (1966); Lee v. Kiku Restaurant, 127 N.J. 170 (1992). As to the effect on recovery of the negligence on an injured third party, Aliulis v. Tunnel Hill Corp., 59 N.J. 508 (1971) held that, in the circumstances of that case (i.e., the injured third party had no real choice but to side with the intoxicated river in order to get home), the injured third party's negligence was not a bar.
However, later cases have clarified these decisions by requiring that the jury be instructed on principles of comparative
negligence Buckley v. Estate of Pirolo, 101 N.J. 68 (1985); Lee v. Kiku Restaurant, 127 N.J. 170 (1992).
This continues to be the state of the law under the statute. See N.J.S.A. 2A:15-5 et (eliminating contributory negligence as a bar to recovery and applying comparative negligence to determine damages) and N.J.S.A. 2A:15-5.2 (finding of facts regarding comparative negligence) should apply in all court actions under this Act. Buckley and Lee provide guidance on the specific elements of comparative negligence that should be charged under the statute.
G. COMPARATIVE NEGLIGENCE: WHEN PLAINTIFF IS PASSENGER
As I just mentioned, it is contended that plaintiff was at fault by becoming voluntarily intoxicated and thereafter riding as a passenger with an intoxicated driver, or by other conduct which might suggest that he/she was negligent.
The [name of licensed alcoholic beverage server] is responsible for his/her conduct in serving alcoholic beverages to a visibly intoxicated person. An intoxicated person generally lacks the capacity to assess adequately the risk of riding with an intoxicated driver. As a result, a tavern [or insert other appropriate word to refer to type of licensed alcoholic beverage server in case] ordinarily is responsible for the intoxicated passenger's decision to ride with the
driver. The intoxicated passenger is, however, responsible for his/her conduct in drinking to the point of intoxication.
You are to consider the negligence of [name of intoxicated passenger] in becoming voluntarily intoxicated, the negligence of the (name of licensed alcoholic beverage server) in serving a visibly intoxicated person, and the nature and circumstances of the negligent operation of the vehicle. Based on all of the relevant evidence, you must allocate the responsibility for plaintiff riding in the car driven by an intoxicated driver between the [name of licensed alcoholic beverage server] and [name of intoxicated passenger].
H. APPORTIONMENT OF FAULT: WHEN PLAINTIFF IS VICTIM OF ASSAULTIVE BEHAVIOR
NOTES
The Lee presumption in the ordinary case under the Licensed Alcoholic Beverage Servers Act (see note 6, supra) is not applicable to the case of an assaultive patron. Steele v. Kerrigan, 148 N.J. at 33. Instead, as the following instruction indicates, the jury should be instructed to consider the assaultive patron's capacity to initiate or refrain from volitional assaultive conduct, as well as other relevant evidence.
As I just mentioned, it is contended that the actions of [name of patron who assaulted plaintiff] caused the plaintiff's injuries. In this case, you must decide the extent to which [name of licensed alcoholic beverage server] negligence in serving alcohol to [name of the patron who assaulted plaintiff] contributed to the incident. You should apportion fault between [name of licensed alcoholic beverage server] and [name of the patron who assaulted plaintiff] on the basis of all the evidence, including the evidence of [name of licensed alcoholic beverage server] negligence in both commencing and continuing to serve [name of the patron who assaulted plaintiff], evidence of [name of the patron who assaulted plaintiff] fault in deciding to consume the alcohol, evidence concerning [name of the patron who assaulted plaintiff] actual degree of intoxication and his/her capacity to determine whether to refrain from or initiate assaultive behavior, and any evidence of the [name of the patron who assaulted plaintiff] predisposition to violence or other factors contributing to the incident. In sum, you are to apportion fault between [names of parties] based on all of the evidence pertaining to each party's role in the incident.See footnote 9
I. APPORTIONING FAULT WHERE CLAIM OF COMPARATIVE NEGLIGENCE OR JOINT TORTFEASORS (GENERAL CONCLUDING INSTRUCTION)
Based on these instructions, if you find the plaintiff was negligent (or if you find that [name of licensed alcoholic beverage server] and [name of other party] to be jointly liable for plaintiff's injuries), then the licensed alcoholic beverage server (and other party, where joint tortfeasors) shall be responsible for no more than that percentage share of the total damages that is equal to the percentage share of negligence attributable to each of them.
--------------------------------------------------------------------------------
Footnote: 1 Instructions on respondeat superior should be given if conduct of an employee is involved.
--------------------------------------------------------------------------------
Footnote: 2 In cases of an intentional assault by a patron, the following language should be inserted:
In general, assaultive behavior is considered one of the foreseeable risks of negligent service. However, you must still determine in this case whether the resulting injury to (name of plaintiff) was a foreseeable consequence of (name of licensed alcoholic beverage server) negligent service of alcoholic beverages to (name of patron who assaulted plaintiff). See Steele v. Kerrigan, 148 N.J. 134 (1997).
--------------------------------------------------------------------------------
Footnote: 3 Steele v. Kerrigan, 148 N.J. at 34. Although Steele involved an underage patron, the discussion in the opinion is generally applicable to all patrons.
--------------------------------------------------------------------------------
Footnote: 4 Id.
--------------------------------------------------------------------------------
Footnote: 5 These charges assume that the intoxicated person is the plaintiff driver or passenger. The charges should be appropriately adjusted if the intoxicated person is a defendant, third party plaintiff or cross-claimant.
--------------------------------------------------------------------------------
Footnote: 6 The typical principles of comparative negligence will apply to joint tortfeasors in ordinary dram-shop actions as they apply in all other negligence cases involving joint tortfeasors. Lee, supra, 127 N.J. 183-84. Accordingly, in the ordinary case the judge should not instruct the jury to determine the extent to which the person had retained some capacity to appreciate the risk of engaging in the activities that led to the incident. Instead, as the instructions in the text provide, there is a presumption that the intoxicated person lacked the capacity to evaluate the ensuing risks. However, there may be exceptional cases that require appropriate modifications of these instructions. (see note 7 below). (Footnote continued on next page).
It should also be recognized that there are types of conduct other than driving that may be the basis of the claimed liability or comparative negligence. Although the charge is modeled on a driving case, appropriate substitutions must be considered in those cases.
--------------------------------------------------------------------------------
Footnote: 7 In Fisch v. Bellshot, 135 N.J. at 391, the Supreme Court held that the Lee presumption set forth in note 6, supra., is inapplicable where 'exceptional circumstances' exist. In those cases, a jury should be instructed to consider the extent to which the person retained some capacity to appreciate the risk of engaging in the activity that led to the accident. Id. In Fisch, the Court found exceptional circumstances when the decedent was the tavern's bartender; she served herself despite the obligation not to drink while on duty; and her training and experience equipped her with an increased ability to assess the progression of intoxication and to understand the debilitating effects of excessive drinking. The question of whether 'exceptional circumstances' exist is an issue of law for the trial judge. Id. at 392.
--------------------------------------------------------------------------------
Footnote: 8 The Supreme Court in Lee noted a single exception to this rule. The Court stated:
[H]owever, under some circumstances an alcoholic may be a person who, in becoming intoxicated, could be excused from a failure to exercise reasonable care. (Citations omitted). Thus in the event a patron was known to the tavern's employees to be an alcoholic, the duty of the tavern to refrain from serving that patron could arise well before the patron reaches the stage of being visibly intoxicated. (Lee, supra at 185). (cont.)
If there is a defense raised that the plaintiff is an alcoholic and that the tavern knew it, the charge should be amended to reflect this holding. If the plaintiff were to establish this defense, the licensed alcoholic beverage server would be strictly liable for serving a visibly intoxicated person or minor.
--------------------------------------------------------------------------------
Footnote: 9 Steele v. Kerrigan, 148 N.J. at 34-35. Although Steele involved an underage patron, the discussion in the opinion is generally applicable to all patrons.
--------------------------------------------------------------------------------
Model Civil Jury Charges
These instructions are designed for cases arising under the Licensed Server Liability Act, N.J.S.A. 2A:22A-1 et seq. (“Act”). The instructions in Sections A-D should be used for the ordinary case where there is no issue of apportionment of liability.
The instructions in E-I address those cases where there is an issue of apportionment of liability based on either: (1) a claim of plaintiff's comparative negligence; or (2) a claim of plaintiff's injury was caused by another tortfeasor. Section E (General Introductory Instruction) and I (General Concluding Instruction) should be given in all cases where there is an issue of apportionment of liability. Section F should be given when the comparative negligence claim is based on plaintiff's negligence as a visibly intoxicated driver, and Section G should be given when that claim is based on plaintiff's negligence as a visibly intoxicated passenger. Section H is designed for those cases where the licensed alcoholic beverage server claims that plaintiff's injury was caused by the assaultive behavior of a patron.
A. NEGLIGENCE OF LICENSED ALCOHOLIC BEVERAGE SERVER (LABS)
In this case the plaintiff claims that the [name of licensed alcoholic beverage server] (and his/her employee)See footnote 1 was (were) negligent by serving
alcoholic beverages to [name] while he/she was visibly intoxicated (or, was known or reasonably should have known to be a minor). The plaintiff maintains that the negligence proximately caused (or, was a substantial factor in causing) an [event] in which plaintiff was injured. Plaintiff contends that at the time the alcoholic beverage was served, the (person) was visibly intoxicated (or, was known or reasonably should have been known to be a minor).
"Visibly intoxicated" means a state of intoxication accompanied by a perceptible act or series of acts which present clear signs of intoxication (and an "apparent minor" is a person under the age of 21 or an individual who under the circumstances was known or reasonably should have been known to be a minor).
If you find that the [name of licensed alcoholic beverage server] served, or permitted to be served, alcoholic beverages to a person when visibly intoxicated (or was known or reasonably should have been known to be a minor) then you must find the licensed alcoholic beverage server negligent. If you find that the [name of licensed alcoholic beverage server] did not serve alcoholic beverages to a visibly intoxicated person, then the [name of licensed alcoholic beverage server] was not negligent.
Cases:
Lee v. Kiku Restaurant, 127 N.J. 170 (1992); Rappaport v. Nichols, 31 N.J. 188 (1959); Geherty v. Moore, 238 N.J. Super. 463 (App. Div. 1990); Aliulis v. Tunnel Hill Corp., 114 N.J. Super. 205 (App. Div. 1971).
See also Fisch v. Bellshot, 135 N.J. 374, 382-386 (1994) (Licensed Server Liability Act provides exclusive definition of an alcoholic beverage server's negligence for all causes of action arising under Act, and jury should not be instructed that violation of administrative regulations is evidence of a defendant's negligence.)
Notes:
In the case of a sale to an apparent minor, see Rappaport v. Nichols, supra, 31 N.J. at p. 201 for the concept of selling the first drink which does "its share of the work."
Statute:
N.J.S.A. 2A:22A-1 et seq.
Cross-reference:
See negligence charges.
B. PROXIMATE CAUSE--INTERVENING CAUSE--SUBSTANTIAL FACTOR
If you find that the [name of licensed alcohol beverage server] did serve alcoholic beverages to [name of intoxicated person] when he was visibly intoxicated, you then must determine whether or not that conduct was a proximate cause of the [event]. By proximate cause we mean a cause which naturally and probably led to the [event] and resulting injuries. Sometimes an event results from two or more causes. Nevertheless, if a person's negligence is a substantial factor in causing an [event], that negligent person is held liable to a person so injured. Therefore, you must also determine whether the service of alcoholic beverages to [insert name of intoxicated person] was a substantial factor in bringing about the [event]. It makes no difference whether any other causes intervened and contributed to the [event] as long as the service of alcoholic beverages to [insert name of intoxicated person] was a substantial factor in causing the event.
C. FORESEEABLE CONSEQUENCE
In determining whether plaintiff is entitled to recover from the [name of licensed alcoholic beverage server], you must also consider whether the [event]
was a foreseeable consequence of the negligent service of alcoholic beverages. A foreseeable consequence is a natural and probable consequence of the service of alcoholic beverages to the visibly intoxicated person (or to a person who was known or should have been known to be a minor). It is the kind of event that is susceptible of being anticipated in advance of the service of alcoholic beverages by the exercise of that degree of care which the ordinary and prudent person would exercise under the circumstances existing at the time. However, it is not necessary that the defendant [name of licensed alcoholic beverage server] have anticipated this specific event as long as the event was a natural and probable consequence of the service of the alcoholic beverages.See footnote 2
D. SUMMARY
Thus, plaintiff is entitled to recover from the [name of licensed alcoholic beverage server], if plaintiff proves by the preponderance of evidence the following elements:
1. That defendant served alcoholic beverages to [name];
2. That when the alcoholic beverage was served the person was visibly intoxicated (or, was known or reasonably should have been known to be a minor);
3. That such service of alcoholic beverages was a proximate cause of the [event] and injury complained of; and
4. That the injury or damage was a foreseeable consequence of the negligent service of alcoholic beverages.
E. APPORTIONING FAULT WHERE CLAIM OF COMPARATIVE NEGLIGENCE OR JOINT TORTFEASORS (GENERAL INTRODUCTORY INSTRUCTION)
In this case, it is contended that [insert nature of claim, e.g., plaintiff was negligent by becoming voluntarily intoxicated and/or by driving his/her car while intoxicated; plaintiff was a fault by becoming voluntarily intoxicated and thereafter riding as a passenger with an intoxicated driver, or by other conduct that might suggest that he/she was negligent; (name of patron who assaulted plaintiff) caused the injury by his/her assaultive conduct].
If you conclude that plaintiff has proven his/her claim against [name of licensed alcoholic beverage server], you must then apportion fault between the [name of licensed alcoholic beverage server] and [name of plaintiff if comparative negligence or of other defendants if joint tortfeasors] based on the extent that each party's negligence [or other conduct, if assault] contributed to the event.
The general purpose of the Licensed Servers Liability Act is to impose on taverns financial responsibility for injuries proximately caused by the negligent service of alcoholic beverages. I will now instruct you on apportioning responsibility for the incident in this case. In allocating responsibility between [name of licensed alcoholic beverage server] and [name of plaintiff if comparative negligence or of other defendants if joint tortfeasors], you should hold the tavern responsible for negligent service to the extent that it influenced the behavior of persons whom the tavern should not have served.See footnote 3
[ADDITIONAL LANGUAGE WHEN PATRON IS UNDERAGE]
You should also be aware that taverns have a heightened duty to underage patrons under the Licensed Servers Liability Act. The Act deems the
licensed server negligent if it serves a person it knew or should have know was underage, regardless of that person's visible level of intoxication. This heightened duty was imposed because of the Legislature's recognition that minors as a class are less likely than adults to drink responsibly and more likely to become intoxicated and pose a danger of harm to othersSee footnote 4
F. COMPARATIVE NEGLIGENCE: WHEN PLAINTIFF IS VISIBLY INTOXICATED DRIVERSee footnote 5
As I just mentioned, it is contended that plaintiff was negligent by becoming voluntarily intoxicated and/or by driving his/her car while intoxicated.See footnote 6
The [name of licensed alcoholic beverage server] is responsible for its conduct in serving alcoholic beverages to a visibly intoxicated person.See footnote 7 An intoxicated person generally lacks the capacity to adequately evaluate his ability to drive. As a result, the tavern [or insert other appropriate word to refer to type of licensed alcoholic beverage server] is ordinarily responsible for the driver's decision to drive an intoxicated state. The defendant driver is, however, responsible for his conduct in drinking to the point of intoxication.See footnote 8
You are to consider the negligence of [name of intoxicated driver] in becoming voluntarily intoxicated, the negligence of the [name of licensed alcoholic beverage server] in serving a visibly intoxicated person and the nature and circumstances of the negligent operation of the vehicle. Based on all the relevant evidence you must allocate the responsibility for the negligent operation of that vehicle between [name of intoxicated driver] and [name of licensed alcoholic beverage server].
Cases:
The contributory negligence of the person served is not a bar to recovery under the statute or the pre-statute dram shop rule, although the plaintiff may be found to have been comparatively negligent. See N.J.S.A. 2A:22A-6(a); Soronen v. Olde Milford Inn, Inc., 46 N.J. 582 (1966); Lee v. Kiku Restaurant, 127 N.J. 170 (1992). As to the effect on recovery of the negligence on an injured third party, Aliulis v. Tunnel Hill Corp., 59 N.J. 508 (1971) held that, in the circumstances of that case (i.e., the injured third party had no real choice but to side with the intoxicated river in order to get home), the injured third party's negligence was not a bar.
However, later cases have clarified these decisions by requiring that the jury be instructed on principles of comparative
negligence Buckley v. Estate of Pirolo, 101 N.J. 68 (1985); Lee v. Kiku Restaurant, 127 N.J. 170 (1992).
This continues to be the state of the law under the statute. See N.J.S.A. 2A:15-5 et (eliminating contributory negligence as a bar to recovery and applying comparative negligence to determine damages) and N.J.S.A. 2A:15-5.2 (finding of facts regarding comparative negligence) should apply in all court actions under this Act. Buckley and Lee provide guidance on the specific elements of comparative negligence that should be charged under the statute.
G. COMPARATIVE NEGLIGENCE: WHEN PLAINTIFF IS PASSENGER
As I just mentioned, it is contended that plaintiff was at fault by becoming voluntarily intoxicated and thereafter riding as a passenger with an intoxicated driver, or by other conduct which might suggest that he/she was negligent.
The [name of licensed alcoholic beverage server] is responsible for his/her conduct in serving alcoholic beverages to a visibly intoxicated person. An intoxicated person generally lacks the capacity to assess adequately the risk of riding with an intoxicated driver. As a result, a tavern [or insert other appropriate word to refer to type of licensed alcoholic beverage server in case] ordinarily is responsible for the intoxicated passenger's decision to ride with the
driver. The intoxicated passenger is, however, responsible for his/her conduct in drinking to the point of intoxication.
You are to consider the negligence of [name of intoxicated passenger] in becoming voluntarily intoxicated, the negligence of the (name of licensed alcoholic beverage server) in serving a visibly intoxicated person, and the nature and circumstances of the negligent operation of the vehicle. Based on all of the relevant evidence, you must allocate the responsibility for plaintiff riding in the car driven by an intoxicated driver between the [name of licensed alcoholic beverage server] and [name of intoxicated passenger].
H. APPORTIONMENT OF FAULT: WHEN PLAINTIFF IS VICTIM OF ASSAULTIVE BEHAVIOR
NOTES
The Lee presumption in the ordinary case under the Licensed Alcoholic Beverage Servers Act (see note 6, supra) is not applicable to the case of an assaultive patron. Steele v. Kerrigan, 148 N.J. at 33. Instead, as the following instruction indicates, the jury should be instructed to consider the assaultive patron's capacity to initiate or refrain from volitional assaultive conduct, as well as other relevant evidence.
As I just mentioned, it is contended that the actions of [name of patron who assaulted plaintiff] caused the plaintiff's injuries. In this case, you must decide the extent to which [name of licensed alcoholic beverage server] negligence in serving alcohol to [name of the patron who assaulted plaintiff] contributed to the incident. You should apportion fault between [name of licensed alcoholic beverage server] and [name of the patron who assaulted plaintiff] on the basis of all the evidence, including the evidence of [name of licensed alcoholic beverage server] negligence in both commencing and continuing to serve [name of the patron who assaulted plaintiff], evidence of [name of the patron who assaulted plaintiff] fault in deciding to consume the alcohol, evidence concerning [name of the patron who assaulted plaintiff] actual degree of intoxication and his/her capacity to determine whether to refrain from or initiate assaultive behavior, and any evidence of the [name of the patron who assaulted plaintiff] predisposition to violence or other factors contributing to the incident. In sum, you are to apportion fault between [names of parties] based on all of the evidence pertaining to each party's role in the incident.See footnote 9
I. APPORTIONING FAULT WHERE CLAIM OF COMPARATIVE NEGLIGENCE OR JOINT TORTFEASORS (GENERAL CONCLUDING INSTRUCTION)
Based on these instructions, if you find the plaintiff was negligent (or if you find that [name of licensed alcoholic beverage server] and [name of other party] to be jointly liable for plaintiff's injuries), then the licensed alcoholic beverage server (and other party, where joint tortfeasors) shall be responsible for no more than that percentage share of the total damages that is equal to the percentage share of negligence attributable to each of them.
--------------------------------------------------------------------------------
Footnote: 1 Instructions on respondeat superior should be given if conduct of an employee is involved.
--------------------------------------------------------------------------------
Footnote: 2 In cases of an intentional assault by a patron, the following language should be inserted:
In general, assaultive behavior is considered one of the foreseeable risks of negligent service. However, you must still determine in this case whether the resulting injury to (name of plaintiff) was a foreseeable consequence of (name of licensed alcoholic beverage server) negligent service of alcoholic beverages to (name of patron who assaulted plaintiff). See Steele v. Kerrigan, 148 N.J. 134 (1997).
--------------------------------------------------------------------------------
Footnote: 3 Steele v. Kerrigan, 148 N.J. at 34. Although Steele involved an underage patron, the discussion in the opinion is generally applicable to all patrons.
--------------------------------------------------------------------------------
Footnote: 4 Id.
--------------------------------------------------------------------------------
Footnote: 5 These charges assume that the intoxicated person is the plaintiff driver or passenger. The charges should be appropriately adjusted if the intoxicated person is a defendant, third party plaintiff or cross-claimant.
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Footnote: 6 The typical principles of comparative negligence will apply to joint tortfeasors in ordinary dram-shop actions as they apply in all other negligence cases involving joint tortfeasors. Lee, supra, 127 N.J. 183-84. Accordingly, in the ordinary case the judge should not instruct the jury to determine the extent to which the person had retained some capacity to appreciate the risk of engaging in the activities that led to the incident. Instead, as the instructions in the text provide, there is a presumption that the intoxicated person lacked the capacity to evaluate the ensuing risks. However, there may be exceptional cases that require appropriate modifications of these instructions. (see note 7 below). (Footnote continued on next page).
It should also be recognized that there are types of conduct other than driving that may be the basis of the claimed liability or comparative negligence. Although the charge is modeled on a driving case, appropriate substitutions must be considered in those cases.
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Footnote: 7 In Fisch v. Bellshot, 135 N.J. at 391, the Supreme Court held that the Lee presumption set forth in note 6, supra., is inapplicable where 'exceptional circumstances' exist. In those cases, a jury should be instructed to consider the extent to which the person retained some capacity to appreciate the risk of engaging in the activity that led to the accident. Id. In Fisch, the Court found exceptional circumstances when the decedent was the tavern's bartender; she served herself despite the obligation not to drink while on duty; and her training and experience equipped her with an increased ability to assess the progression of intoxication and to understand the debilitating effects of excessive drinking. The question of whether 'exceptional circumstances' exist is an issue of law for the trial judge. Id. at 392.
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Footnote: 8 The Supreme Court in Lee noted a single exception to this rule. The Court stated:
[H]owever, under some circumstances an alcoholic may be a person who, in becoming intoxicated, could be excused from a failure to exercise reasonable care. (Citations omitted). Thus in the event a patron was known to the tavern's employees to be an alcoholic, the duty of the tavern to refrain from serving that patron could arise well before the patron reaches the stage of being visibly intoxicated. (Lee, supra at 185). (cont.)
If there is a defense raised that the plaintiff is an alcoholic and that the tavern knew it, the charge should be amended to reflect this holding. If the plaintiff were to establish this defense, the licensed alcoholic beverage server would be strictly liable for serving a visibly intoxicated person or minor.
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Footnote: 9 Steele v. Kerrigan, 148 N.J. at 34-35. Although Steele involved an underage patron, the discussion in the opinion is generally applicable to all patrons.
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Model Civil Jury Charges
5.52 PROFESSIONAL LIABILITY OF AN ARCHITECT/ENGINEER
A. General Duty Owing
In this action plaintiff contends that defendant was negligent because he/she did not comply with the standard of care that the law imposes upon him/her while performing the work of his/her contract with __________________. Plaintiff contends that as a result of defendant's negligence plaintiff suffered injury for which damages are sought.
To decide this case properly you must know the standard of care imposed by law by which defendant's responsibilities as an architect should be measured.
An architect represents that he/she has and will use the degree of knowledge, skill, judgment and taste ordinarily possessed and used by the average architect in the profession.See footnote 1 Further the architect's conduct must be measured by the standard architectural practice, in the same or similar communities, at the time the architect was performing his/her services. Thus an architect has the duty to have and to use that degree of judgment, knowledge, skill and taste which architects of ordinary
ability possess and exercise, in the same or similar communities, at the time the architect performs his/her services. This is the standard by which to judge the architect in this case.
The law does not expect or require perfection. Unsatisfactory results, alone, are not necessarily evidence of lack of skill or proper care. Thus, if you find that the architect has exercised that degree of knowledge, skill, judgment and taste which is possessed and used by the average architect, you may not find him/her liable for negligence even though unsatisfactory results may have occurred.
Further, where, according to standard architectural practice, the work involves matters to be subjected to the judgment of the architect, the architect is allowed to exercise that judgment. An architect is not liable if, in the exercise of that judgment, in accordance with accepted standard, a bad result occurs. If in the exercise of his/her judgment an architect selects one or two or more courses of action, each of which under the circumstances has substantial support as proper practice in the architectural profession, the architect is not negligent even if the course chosen produces a poor result.
However, an architect who departs from standard architectural practice cannot excuse himself/herself from the consequences by stating it was an exercise of his/her judgment. If the exercise of an architect's judgment causes him/her to do
that which standard architectural practice forbids, he/she is negligent. Similarly, an architect is negligent if his/her judgment causes him/her to omit doing something which under the circumstances is required by standard architectural practice.
Simply stated, then, the obligation or duty which the law imposes on an architect is to bring to his/her client that knowledge, skill, judgment and taste ordinarily possessed and exercised in similar situations, in the same or similar communities, in his/her field at the time of the undertaking. If you find that the defendant has complied with this standard, he/she is not liable to the plaintiff, regardless of the result of his/her work. On the other hand, if you find that the defendant has departed from this standard of care, and that such departure has resulted in injury or damage, then you should find the defendant liable for his/her negligence.
Cases:
For a definition and discussion of the scope of the duties owed by an architect to his/her client, see Sykes v. Propane Power Corp., 224 N.J. Super. 686 (App. Div. 1988); Walker Rogge, Inc. v. Chelsea Title and Guar. Co., 222 N.J. Super. 363 (App. Div. 1988), aff'd, 116 N.J. 517 (1989); Restatement (Second) of Torts, Section 299A (1975); Bloomsburg Mills v. Sordoni Construction Co., 164
A.2d 201, 203 (Pa. 1960); Bonadiman-McCain, Inc. v. Snow, 6 Cal Rrtr. 52, 60 (Cal App. 1960); Paxton v. Alameda Cty., 259 P.2d 934 (Cal. App. 1953); Chapel v. Clark, 76 N.W. 62 (Mich. 1898); Coombs v. Beede, 36 A. 104, 104-105 (Me. 1896). With respect to the fact that an architect is not an insurer, guarantor or warrantor of a perfect result, see Wills v. Black & West Architects, 344 P.2d 581 (Okla. 1959); Major v. Leary, 268 N.Y.S. 413 (App. Div. 1934).
B. Expert Testimony to Prove Standard of CareSee footnote 2
Negligence is conduct that falls below a standard of care required by law for the protection of persons or property from foreseeable risks of harm.
In a suit against an architect, jurors normally are not qualified to supply the standard of care by which to measure the defendant's conduct. Based upon their common knowledge alone, without technical training, jurors usually cannot know what conduct constitutes standard architectural practice. Therefore, ordinarily, when an architect is charged with negligence, the standard of practice by which his/her conduct is to be judged must be furnished by expert testimony; that is to
say, by the testimony of persons who by knowledge, training or experience are deemed qualified to testify and to express their opinions on standard architectural practice.
As jurors, you should not speculate or guess about the standards which the average architect should follow. In a case such as this, you as jurors must determine what is standard architectural practice from the testimony of the expert witnesses who have been heard in this case. After hearing such testimony and deciding what standard architectural practice is in the circumstances of this case, you as jurors must then determine whether the defendant has complied with or whether defendant has departed from that standard of care. If you find that the defendant has complied with this standard, he/she is not liable to the plaintiff, regardless of the result of his/her work. On the other hand, if you find that the defendant has departed from this standard of care, and that such departure has resulted in injury or damage, then you should find the defendant liable for his/her negligence.
Cases:
If the failure of the architect's performance is so clear that professional negligence may be found without the addition of expert testimony, this instruction
is necessary. As to the necessity of expert testimony in architectural malpractice cases, see Walker Rogge, Inc. v. Chelsea Title and Guar. Co., 222 N.J. Super. 363 (App. Div. 1988), aff'd, 116 N.J. 517 (1989); Covil v. Robert & Co., Assoc., 144 S.E.2d 450 (Ga. App. 1965); Pittman Construction Co. v. City of New Orleans, 178 So.2d 312 (La. App. 1965); Paxton v. Alameda Cty., 259 P.2d 934 (Cal. App. 1953).
C. Common Knowledge May Furnish Standard of Care
Negligence is the failure to comply with the standard of care required by law to protect a person from foreseeable risks of harm. Negligence in an architect's practice is the architect's failure to comply with the standard of care required by law in the performance of his/her duties. Usually it is necessary to establish the standard of care by expert testimony, that is, by testimony of persons who are qualified by their training, study and experience to give their opinions on subjects not generally understood by persons, such as jurors, who lack such special training or experience. In the usual case, standard architectural practice by which to judge defendant's conduct cannot be determined by the jury without the assistance of expert testimony.
However, in some cases, such as the case at hand, the jury may determine from its common knowledge and experience the standard of care by which to judge defendant's conduct. In this case, plaintiff contends that defendant violated the duty of care he/she owed to plaintiff by doing ______________/by failing to do ______________. In this case, therefore, it is for you, as jurors, to determine, based upon common knowledge and experience, what skill and care the average architect would have exercised in the same or similar circumstances. It is for you as jurors to say from your common knowledge and experience whether defendant did something which the average member of his/her profession would not have done or whether defendant failed to do something or failed to take some measure that the average member of his/her profession would have done or taken in the circumstances of this case.
[Note to the judge: Where there has been expert architectural testimony as to the standard of care but the standard is one which can also be determined by the jury from its common knowledge and experience, the jury should determine the standard of care after considering all the evidence in the case, including the expert architectural testimony, as well as its own common knowledge and experience.]
After determining the standard of care required in the circumstances of this case, you should then consider the evidence to determine whether defendant has complied with or departed from that standard of care. If you find that defendant
has complied with that standard, he/she is not liable to the plaintiff, regardless of the result of his/her work. On the other hand, if you find that the defendant has departed from that standard of care, and that such departure has resulted in an identifiable injury or damage, then you should find defendant liable for his/her negligence.
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Footnote: 1This charge is equally appropriate for other design professionals, such as: engineers, land surveyors, professional planners, etc. However, the term, “taste,” would be deleted from the standard applicable to professional engineers and other non-aesthetically oriented design professionals.
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Footnote: 2If the failure of the architect's performance is so clear that professional negligence may be found without the aid of expert testimony, this instruction is unnecessary.
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Model Civil Jury Charges
In this action plaintiff contends that defendant was negligent because he/she did not comply with the standard of care that the law imposes upon him/her while performing the work of his/her contract with __________________. Plaintiff contends that as a result of defendant's negligence plaintiff suffered injury for which damages are sought.
To decide this case properly you must know the standard of care imposed by law by which defendant's responsibilities as an architect should be measured.
An architect represents that he/she has and will use the degree of knowledge, skill, judgment and taste ordinarily possessed and used by the average architect in the profession.See footnote 1 Further the architect's conduct must be measured by the standard architectural practice, in the same or similar communities, at the time the architect was performing his/her services. Thus an architect has the duty to have and to use that degree of judgment, knowledge, skill and taste which architects of ordinary
ability possess and exercise, in the same or similar communities, at the time the architect performs his/her services. This is the standard by which to judge the architect in this case.
The law does not expect or require perfection. Unsatisfactory results, alone, are not necessarily evidence of lack of skill or proper care. Thus, if you find that the architect has exercised that degree of knowledge, skill, judgment and taste which is possessed and used by the average architect, you may not find him/her liable for negligence even though unsatisfactory results may have occurred.
Further, where, according to standard architectural practice, the work involves matters to be subjected to the judgment of the architect, the architect is allowed to exercise that judgment. An architect is not liable if, in the exercise of that judgment, in accordance with accepted standard, a bad result occurs. If in the exercise of his/her judgment an architect selects one or two or more courses of action, each of which under the circumstances has substantial support as proper practice in the architectural profession, the architect is not negligent even if the course chosen produces a poor result.
However, an architect who departs from standard architectural practice cannot excuse himself/herself from the consequences by stating it was an exercise of his/her judgment. If the exercise of an architect's judgment causes him/her to do
that which standard architectural practice forbids, he/she is negligent. Similarly, an architect is negligent if his/her judgment causes him/her to omit doing something which under the circumstances is required by standard architectural practice.
Simply stated, then, the obligation or duty which the law imposes on an architect is to bring to his/her client that knowledge, skill, judgment and taste ordinarily possessed and exercised in similar situations, in the same or similar communities, in his/her field at the time of the undertaking. If you find that the defendant has complied with this standard, he/she is not liable to the plaintiff, regardless of the result of his/her work. On the other hand, if you find that the defendant has departed from this standard of care, and that such departure has resulted in injury or damage, then you should find the defendant liable for his/her negligence.
Cases:
For a definition and discussion of the scope of the duties owed by an architect to his/her client, see Sykes v. Propane Power Corp., 224 N.J. Super. 686 (App. Div. 1988); Walker Rogge, Inc. v. Chelsea Title and Guar. Co., 222 N.J. Super. 363 (App. Div. 1988), aff'd, 116 N.J. 517 (1989); Restatement (Second) of Torts, Section 299A (1975); Bloomsburg Mills v. Sordoni Construction Co., 164
A.2d 201, 203 (Pa. 1960); Bonadiman-McCain, Inc. v. Snow, 6 Cal Rrtr. 52, 60 (Cal App. 1960); Paxton v. Alameda Cty., 259 P.2d 934 (Cal. App. 1953); Chapel v. Clark, 76 N.W. 62 (Mich. 1898); Coombs v. Beede, 36 A. 104, 104-105 (Me. 1896). With respect to the fact that an architect is not an insurer, guarantor or warrantor of a perfect result, see Wills v. Black & West Architects, 344 P.2d 581 (Okla. 1959); Major v. Leary, 268 N.Y.S. 413 (App. Div. 1934).
B. Expert Testimony to Prove Standard of CareSee footnote 2
Negligence is conduct that falls below a standard of care required by law for the protection of persons or property from foreseeable risks of harm.
In a suit against an architect, jurors normally are not qualified to supply the standard of care by which to measure the defendant's conduct. Based upon their common knowledge alone, without technical training, jurors usually cannot know what conduct constitutes standard architectural practice. Therefore, ordinarily, when an architect is charged with negligence, the standard of practice by which his/her conduct is to be judged must be furnished by expert testimony; that is to
say, by the testimony of persons who by knowledge, training or experience are deemed qualified to testify and to express their opinions on standard architectural practice.
As jurors, you should not speculate or guess about the standards which the average architect should follow. In a case such as this, you as jurors must determine what is standard architectural practice from the testimony of the expert witnesses who have been heard in this case. After hearing such testimony and deciding what standard architectural practice is in the circumstances of this case, you as jurors must then determine whether the defendant has complied with or whether defendant has departed from that standard of care. If you find that the defendant has complied with this standard, he/she is not liable to the plaintiff, regardless of the result of his/her work. On the other hand, if you find that the defendant has departed from this standard of care, and that such departure has resulted in injury or damage, then you should find the defendant liable for his/her negligence.
Cases:
If the failure of the architect's performance is so clear that professional negligence may be found without the addition of expert testimony, this instruction
is necessary. As to the necessity of expert testimony in architectural malpractice cases, see Walker Rogge, Inc. v. Chelsea Title and Guar. Co., 222 N.J. Super. 363 (App. Div. 1988), aff'd, 116 N.J. 517 (1989); Covil v. Robert & Co., Assoc., 144 S.E.2d 450 (Ga. App. 1965); Pittman Construction Co. v. City of New Orleans, 178 So.2d 312 (La. App. 1965); Paxton v. Alameda Cty., 259 P.2d 934 (Cal. App. 1953).
C. Common Knowledge May Furnish Standard of Care
Negligence is the failure to comply with the standard of care required by law to protect a person from foreseeable risks of harm. Negligence in an architect's practice is the architect's failure to comply with the standard of care required by law in the performance of his/her duties. Usually it is necessary to establish the standard of care by expert testimony, that is, by testimony of persons who are qualified by their training, study and experience to give their opinions on subjects not generally understood by persons, such as jurors, who lack such special training or experience. In the usual case, standard architectural practice by which to judge defendant's conduct cannot be determined by the jury without the assistance of expert testimony.
However, in some cases, such as the case at hand, the jury may determine from its common knowledge and experience the standard of care by which to judge defendant's conduct. In this case, plaintiff contends that defendant violated the duty of care he/she owed to plaintiff by doing ______________/by failing to do ______________. In this case, therefore, it is for you, as jurors, to determine, based upon common knowledge and experience, what skill and care the average architect would have exercised in the same or similar circumstances. It is for you as jurors to say from your common knowledge and experience whether defendant did something which the average member of his/her profession would not have done or whether defendant failed to do something or failed to take some measure that the average member of his/her profession would have done or taken in the circumstances of this case.
[Note to the judge: Where there has been expert architectural testimony as to the standard of care but the standard is one which can also be determined by the jury from its common knowledge and experience, the jury should determine the standard of care after considering all the evidence in the case, including the expert architectural testimony, as well as its own common knowledge and experience.]
After determining the standard of care required in the circumstances of this case, you should then consider the evidence to determine whether defendant has complied with or departed from that standard of care. If you find that defendant
has complied with that standard, he/she is not liable to the plaintiff, regardless of the result of his/her work. On the other hand, if you find that the defendant has departed from that standard of care, and that such departure has resulted in an identifiable injury or damage, then you should find defendant liable for his/her negligence.
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Footnote: 1This charge is equally appropriate for other design professionals, such as: engineers, land surveyors, professional planners, etc. However, the term, “taste,” would be deleted from the standard applicable to professional engineers and other non-aesthetically oriented design professionals.
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Footnote: 2If the failure of the architect's performance is so clear that professional negligence may be found without the aid of expert testimony, this instruction is unnecessary.
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Model Civil Jury Charges
5.51B LEGAL MALPRACTICE (Cont.)
E. Proximate Cause in Legal Malpractice Involving Inadequate or Incomplete Legal Advice (1/97)
Proximate cause means that the negligence of the [Defendant] was a substantial factor in bringing about harm to the [Plaintiff].
To find proximate cause, it is not necessary that the negligence of the defendant be the sole cause of the plaintiff's harm. The law recognizes that in the case of legal malpractice there may be any number of factors that led to the plaintiff's harm. However, in order for the defendant's conduct to be considered a proximate cause of the plaintiff's harm, the negligence of the defendant must have been a substantial factor in bringing about that harm, and in addition some harm must have been foreseeable.See footnote 1
For the harm to be considered foreseeable, it is not necessary that the precise harm that occurred here was foreseeable by the defendant. Rather if some harm from the defendant's negligence was within the realm of reasonable foreseeability, then the harm is considered foreseeable.
In sum, in order to find proximate cause, you must find that the negligence of the defendant in providing inadequate or incomplete legal advice was a substantial factor in bringing about the harm that occurred and that some harm to the plaintiff was foreseeable from the defendant's negligence.
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Footnote: 1 Conklin v. Hannoch Weisman, 145 N.J. 395, 418-22 (1996). The trial court should be aware that, in certain factual circumstances, foreseeability might be a "red herring," 145 N.J. at 420, and the language regarding foreseeability would be eliminated.
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Model Civil Jury Charges
Proximate cause means that the negligence of the [Defendant] was a substantial factor in bringing about harm to the [Plaintiff].
To find proximate cause, it is not necessary that the negligence of the defendant be the sole cause of the plaintiff's harm. The law recognizes that in the case of legal malpractice there may be any number of factors that led to the plaintiff's harm. However, in order for the defendant's conduct to be considered a proximate cause of the plaintiff's harm, the negligence of the defendant must have been a substantial factor in bringing about that harm, and in addition some harm must have been foreseeable.See footnote 1
For the harm to be considered foreseeable, it is not necessary that the precise harm that occurred here was foreseeable by the defendant. Rather if some harm from the defendant's negligence was within the realm of reasonable foreseeability, then the harm is considered foreseeable.
In sum, in order to find proximate cause, you must find that the negligence of the defendant in providing inadequate or incomplete legal advice was a substantial factor in bringing about the harm that occurred and that some harm to the plaintiff was foreseeable from the defendant's negligence.
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Footnote: 1 Conklin v. Hannoch Weisman, 145 N.J. 395, 418-22 (1996). The trial court should be aware that, in certain factual circumstances, foreseeability might be a "red herring," 145 N.J. at 420, and the language regarding foreseeability would be eliminated.
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Model Civil Jury Charges
5.51A LEGAL MALPRACTICE (6/79)
A. General Duty Owing
An action brought against an attorney alleging negligence in the practice of law is referred to as a malpractice action. In this action plaintiff contends that defendant did not comply with the standard care of which the law imposes upon him/her while attending to the legal needs of his/her client, the plaintiff. Plaintiff contends that as a result of defendant's malpractice plaintiff suffered injury for which damages are sought.
To decide this case properly, you must know the standard of care imposed by law which defendant's conduct as an attorney should be measured.
A person who is engaged in the general practice of law (or who is engaged as a specialist in a given area of law)See footnote 1 represents that he/she has the degree of knowledge and skill ordinarily possessed and used by others
engaged in the general practice of law (or as a specialist, as the case may be). The required knowledge and skill must be judged by the standard legal practice at the time the attorney represented the client. An attorney who undertakes to attend to the legal needs of a client represents also that he/she will use such knowledge, skill and care which attorneys of ordinary ability and skill possess and exercise. The law, therefore, imposes upon an attorney the duty or obligation to have and to use that degree of knowledge and skill which attorneys of ordinary ability and skill possess and exercise in the representation of a client, such as the plaintiff in this case. This is the standard by which to judge the defendant (a general practitioner or a specialist) in his/her representation of plaintiff in this case.
The law does not require that an attorney guarantee a favorable result. The law recognizes that the practice of law according to standard legal practice will not necessarily prevent a poor result. If the attorney has brought and applied the required knowledge and skill to his/her client, he/she is not liable simply because a favorable result has not been achieved or simply because bad results have occurred. The attorney is not an insurer, nor is he/she liable for every error in judgment or mistake. On the one hand, he/she is not to be held accountable for the consequences of every act
which may be held to be an error by a court. On the other hand, he/she is not immune from responsibility if he/she fails to employ in the work he/she undertakes that degree of reasonable knowledge and skill exercised by attorneys of ordinary ability and skill.
Where, according to standard legal practice, the work involves matters to be subjected to the judgment of the attorney, an attorney must be allowed the exercise of that judgment and he/she cannot be held liable if, in the exercise of that judgment, he/she has, nevertheless, made a mistake or an error in judgment. Where judgment must be exercised, the law does not require of the attorney infallible judgment. An attorney cannot be held liable for malpractice so long as he/she employs such judgment as is allowed by the standards of accepted legal practice. If, in fact, in the exercise of his/her judgment, an attorney selects one of two or more courses of action, each of which in the circumstances has substantial support as proper practice by the legal profession, he/she cannot be found guilty of malpractice if the course chosen produces a poor result.
But an attorney who departs from standard legal practice cannot excuse himself/herself from the consequences by saying it was an exercise of his/her judgment. If the exercise of an attorney's judgment causes him/her
to do that which standard legal practice forbids, the attorney would be guilty of malpractice. Similarly, an attorney whose judgment causes him/her to omit doing something which in the circumstances is required by standard legal practice is also guilty of malpractice.
Thus, the obligation or duty of care which the law imposes upon defendant is to bring to his/her client that degree of knowledge and skill which are ordinarily possessed and exercised in similar situations by attorneys or ordinary skill and ability. The attorney is obliged to use his/her knowledge, skill and judgment in an effort to perform the work he/she undertakes according to standard legal practice.
If you find that the defendant has complied with this standard, he/she is not liable to plaintiff, regardless of the result. On the other hand, if you find that defendant has departed from this standard of care, resulting in injury or damage, then you should find defendant liable for his/her malpractice.
Cases:
For definition and discussion of the scope of the duties of an attorney to client, see Sullivan v. Stout, 120 N.J.L. 304 (E.&.A. 1938); Morris v. Muller, 113 N.J.L. 46 (E. & A. 1934); McCullough v. Sullivan, 102 N.J.L. 381 (E. & A. 1925); Stewart v. Sbarro, 142 N.J. Super. 581 (App. Div. 1971); Passanante v. Yormack, 138 N.J. Super. 233 (App. Div. 1975). The duties of
attorney to client have been equated with those of physician to patient; thus, the charges on legal malpractice are similar in several respects to those on medical malpractice (Model Charge 5.36). See Stewart v. Sbarro, supra, quoting from the language of McCullough v. Sullivan, supra, 102 N.J.L. 381 at 385, to the effect that the duties and liabilities between an attorney and client are the same as those between a physician and patient.
New Jersey does not follow any version of the "locality" rule, and has imposed a standard measured by the profession without geographic consideration. See Stewart v. Sbarro, supra. The same is true with respect to medical malpractice. See Carbone v. Warburton, 11 N.J. 418 (1953).
While in a particular case the court may determine violation of the standard of care as a matter of law (see, e.g., Stewart v. Sbarro, supra, where the Appellate Division held that no expert testimony was required to support plaintiff's claim and that as a matter of law the defendant attorney was negligent, and also the situation referred to in Fuschetti v. Bierman, 128 N.J. Super. 290 (Law Div. 1974), where the court held that the failure of an attorney to commence an action within the period of the statute of limitations would ordinarily be considered neglect), usually the standard of care must be established by expert testimony with the trier of fact deciding the question of whether the attorney violated it. See, e.g., Wright v. Williams, 47 Cal. App.3d, 802, 121 Cal. Rptr. 194.
For the procedure involving in certain instances a "trial-within-a-trial," see Fuschetti v. Bierman, supra, which involved a legal malpractice claim for failure of an attorney to file a personal injury action within the period of the statute of limitations.
B. Specialist, Duty OfSee footnote 2
A specialist in a given area of law is one who devotes special study and attention to the practice of a particular field of the law. An attorney
who holds himself/herself out as a specialist in a particular field of law represents that, with regard to his/her specialty, he/she has and will employ not merely the knowledge and skill of a general practitioner but that he/she has and will employ that special degree of knowledge and skill (ordinarily) (normally) possessed and used by the average specialist in his/her field. Accordingly, when an attorney holds himself/herself out as a specialist and undertakes as such work for a client, the law imposes the duty upon that attorney to have and to use that degree of knowledge and skill which is (normally) (ordinarily) possessed and used by the average attorney who specializes in the practice of that particular field of law.
C. Expert Testimony To Prove Standard Of Care
Negligence is conduct which falls below a standard of care required by law for the protection of persons or property from foreseeable risks of harm. In the usual negligence case, it is not necessary for plaintiff to prove the standard of care by which defendant's conduct is to be measured. In the usual case, such as an automobile negligence action, it is sufficient for plaintiff to prove what the defendant did or failed to do, and what the circumstances were, and then it is for the jury to determine whether the defendant exercised such care as a reasonably prudent person would have exercised for
the safety of others. The standard of care is reasonable prudence to avoid injury to another, and the jury, in effect, supplies that standard by deciding what a reasonably prudent person would have done in the circumstances.
In the usual legal malpractice case, however, jurors are not competent to supply the standard of care by which to measure the defendant's conduct. Based upon their common knowledge alone, without technical training, jurors normally cannot know what conduct constitutes standard legal practice. Therefore, ordinarily, when an attorney is charged with negligence in the representation of a client, the standard of practice by which his/her conduct is to be judged must be furnished by expert testimony, that is to say, by the testimony of persons who by knowledge, training or experience are deemed qualified to testify and to express their opinions on legal subjects.
Where the subject matter of the claim is such that jurors cannot determine the standard of conduct and any departure therefrom on the basis of their common knowledge as laymen, then as jurors they should not speculate or guess about the standards by which the average attorney should conduct himself/herself in the circumstances. In a case such as this, you as jurors must determine what is standard legal practice from the testimony of the expert witnesses who have been heard in this case. After deciding what
the standard of care is, what standard legal practice is in the circumstances of this case, you as jurors must then determine whether defendant has conformed with or whether defendant has departed from that standard of care.
Cases and Notes:
See in this regard the Cases and Notes concerning expert testimony set forth in Part A, supra. If the failure of attorney performance is so clear that professional negligence may be found without the aid of expert testimony, this instruction is unnecessary. Wright v. Williams, 47 Cal. App.3d, 802, 121 Cal. Rptr. 194. Besides the question of the necessity of expert testimony to establish the standard of care, an ancillary question concerns the issue of admissibility of expert testimony on damages. See, e.g., Fuschetti v. Bierman, 128 N.J. Super. 290 (Law Div. 1974) where expert testimony concerning the reasonable settlement value of a personal injury claim was ruled inadmissible.
D. Common Knowledge May Furnish Standard Of Care
Negligence is the failure to comply with the standard of care required by law to protect a person from foreseeable risks of harm. Negligence in an attorney's legal practice, which is called malpractice, is the attorney's failure to comply with the standard of care required by law in the representation of his/her client. Usually it is necessary to establish the standard of care by expert testimony, that is, by testimony of persons how are qualified by their training, study and experience to give their opinions on subjects not
generally understood by persons, such as jurors, who lack such special training or experience. In the usual case, standard legal practice by which to judge defendant's conduct cannot be determined by the jury without the assistance of expert legal testimony.
However, in some cases, such as the case at hand, the jury may determine from its common knowledge and experience the standard of care by which to judge defendant's conduct. In this case, plaintiff contends that defendant violated the duty of care he/she owed to plaintiff by doing _________________/by failing to do __________________. In this case, therefore, it is for you, as jurors, to determine, based upon common knowledge and experience, what skill and care the average attorney practicing in defendant's field would have exercised in the same or similar circumstances. It is for you as jurors to say from your common knowledge and experience whether defendant did something which the average member of his/her profession would not have done or whether defendant failed to do something or failed to take some measure which the average member of his/her profession would have done or taken in the circumstances of this case in the representation of the plaintiff.
[Where there has been expert legal testimony as to the standard of care but the standard is one which can also be determined by the jury from its common knowledge and experience, the jury should determine the standard of care after considering all the evidence in the case, including the expert legal testimony, as well as its own common knowledge and experience.]
After determining the standard of care required in the circumstances of this case, you should then consider the evidence to determine whether defendant has complied with or departed from that standard of care. If you find that defendant has complied with that standard of care, he/she is not liable to plaintiff, regardless of the result. If you find that defendant has not complied with the standard of care, resulting in injury or damage to plaintiff, then you should find defendant guilty of malpractice and return a verdict for plaintiff.
E. Proximate Cause In Legal Malpractice Involving Inadequate or Incomplete Legal Advice (1/97)
Proximate cause means that the negligence of the [Defendant] was a substantial factor in bringing about harm to the [Plaintiff].
To find proximate cause, it is not necessary that the negligence of the defendant be the sole cause of the plaintiff's harm. The law recognizes that in the case of legal malpractice there may be any number of factors that led to the plaintiff's harm. However, in order for the defendant's conduct to be considered a proximate cause of the plaintiff's harm, the negligence of the defendant must have been a substantial factor in bringing about that harm, and in addition some harm must have been foreseeable.See footnote 3
For the harm to be considered foreseeable, it is not necessary that the precise harm that occurred here was foreseeable by the defendant. Rather if some harm from the defendant's negligence was within the realm of reasonable foreseeability, then the harm is considered foreseeable.
In sum, in order to find proximate cause, you must find that the negligence of the defendant in providing inadequate or incomplete legal advice was a substantial factor in bringing about the harm that occurred and that some harm to the plaintiff was foreseeable from the defendant's negligence.
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Footnote: 1Caveat: With the exception of R. 1:39 (Certification of Attorneys as Trial Attorneys), the Supreme Court has not promulgated rules authorizing attorneys to represent themselves as specialists. However, while there is no case law on the subject, the Committee is of the opinion that a charge imposing the duties of a specialist may be appropriate in a particular matter where the attorney has represented or held himself/herself out to the client as a specialist in such matters. Such charge would also of course be appropriate in a matter involving an attorney certified as a trial attorney pursuant to R. 1:39.
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Footnote: 2Caveat: See the caveat concerning a charge imposing the duty of a specialist set forth at Part A, supra.
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Footnote: 3 Conklin v. Hannoch Weisman, 145 N.J. 395, 418-22 (1996). The trial court should be aware that, in certain factual circumstances, foreseeability might be a "red herring," 145 N.J. at 420, and the language regarding foreseeability would be eliminated.
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Model Civil Jury Charges
An action brought against an attorney alleging negligence in the practice of law is referred to as a malpractice action. In this action plaintiff contends that defendant did not comply with the standard care of which the law imposes upon him/her while attending to the legal needs of his/her client, the plaintiff. Plaintiff contends that as a result of defendant's malpractice plaintiff suffered injury for which damages are sought.
To decide this case properly, you must know the standard of care imposed by law which defendant's conduct as an attorney should be measured.
A person who is engaged in the general practice of law (or who is engaged as a specialist in a given area of law)See footnote 1 represents that he/she has the degree of knowledge and skill ordinarily possessed and used by others
engaged in the general practice of law (or as a specialist, as the case may be). The required knowledge and skill must be judged by the standard legal practice at the time the attorney represented the client. An attorney who undertakes to attend to the legal needs of a client represents also that he/she will use such knowledge, skill and care which attorneys of ordinary ability and skill possess and exercise. The law, therefore, imposes upon an attorney the duty or obligation to have and to use that degree of knowledge and skill which attorneys of ordinary ability and skill possess and exercise in the representation of a client, such as the plaintiff in this case. This is the standard by which to judge the defendant (a general practitioner or a specialist) in his/her representation of plaintiff in this case.
The law does not require that an attorney guarantee a favorable result. The law recognizes that the practice of law according to standard legal practice will not necessarily prevent a poor result. If the attorney has brought and applied the required knowledge and skill to his/her client, he/she is not liable simply because a favorable result has not been achieved or simply because bad results have occurred. The attorney is not an insurer, nor is he/she liable for every error in judgment or mistake. On the one hand, he/she is not to be held accountable for the consequences of every act
which may be held to be an error by a court. On the other hand, he/she is not immune from responsibility if he/she fails to employ in the work he/she undertakes that degree of reasonable knowledge and skill exercised by attorneys of ordinary ability and skill.
Where, according to standard legal practice, the work involves matters to be subjected to the judgment of the attorney, an attorney must be allowed the exercise of that judgment and he/she cannot be held liable if, in the exercise of that judgment, he/she has, nevertheless, made a mistake or an error in judgment. Where judgment must be exercised, the law does not require of the attorney infallible judgment. An attorney cannot be held liable for malpractice so long as he/she employs such judgment as is allowed by the standards of accepted legal practice. If, in fact, in the exercise of his/her judgment, an attorney selects one of two or more courses of action, each of which in the circumstances has substantial support as proper practice by the legal profession, he/she cannot be found guilty of malpractice if the course chosen produces a poor result.
But an attorney who departs from standard legal practice cannot excuse himself/herself from the consequences by saying it was an exercise of his/her judgment. If the exercise of an attorney's judgment causes him/her
to do that which standard legal practice forbids, the attorney would be guilty of malpractice. Similarly, an attorney whose judgment causes him/her to omit doing something which in the circumstances is required by standard legal practice is also guilty of malpractice.
Thus, the obligation or duty of care which the law imposes upon defendant is to bring to his/her client that degree of knowledge and skill which are ordinarily possessed and exercised in similar situations by attorneys or ordinary skill and ability. The attorney is obliged to use his/her knowledge, skill and judgment in an effort to perform the work he/she undertakes according to standard legal practice.
If you find that the defendant has complied with this standard, he/she is not liable to plaintiff, regardless of the result. On the other hand, if you find that defendant has departed from this standard of care, resulting in injury or damage, then you should find defendant liable for his/her malpractice.
Cases:
For definition and discussion of the scope of the duties of an attorney to client, see Sullivan v. Stout, 120 N.J.L. 304 (E.&.A. 1938); Morris v. Muller, 113 N.J.L. 46 (E. & A. 1934); McCullough v. Sullivan, 102 N.J.L. 381 (E. & A. 1925); Stewart v. Sbarro, 142 N.J. Super. 581 (App. Div. 1971); Passanante v. Yormack, 138 N.J. Super. 233 (App. Div. 1975). The duties of
attorney to client have been equated with those of physician to patient; thus, the charges on legal malpractice are similar in several respects to those on medical malpractice (Model Charge 5.36). See Stewart v. Sbarro, supra, quoting from the language of McCullough v. Sullivan, supra, 102 N.J.L. 381 at 385, to the effect that the duties and liabilities between an attorney and client are the same as those between a physician and patient.
New Jersey does not follow any version of the "locality" rule, and has imposed a standard measured by the profession without geographic consideration. See Stewart v. Sbarro, supra. The same is true with respect to medical malpractice. See Carbone v. Warburton, 11 N.J. 418 (1953).
While in a particular case the court may determine violation of the standard of care as a matter of law (see, e.g., Stewart v. Sbarro, supra, where the Appellate Division held that no expert testimony was required to support plaintiff's claim and that as a matter of law the defendant attorney was negligent, and also the situation referred to in Fuschetti v. Bierman, 128 N.J. Super. 290 (Law Div. 1974), where the court held that the failure of an attorney to commence an action within the period of the statute of limitations would ordinarily be considered neglect), usually the standard of care must be established by expert testimony with the trier of fact deciding the question of whether the attorney violated it. See, e.g., Wright v. Williams, 47 Cal. App.3d, 802, 121 Cal. Rptr. 194.
For the procedure involving in certain instances a "trial-within-a-trial," see Fuschetti v. Bierman, supra, which involved a legal malpractice claim for failure of an attorney to file a personal injury action within the period of the statute of limitations.
B. Specialist, Duty OfSee footnote 2
A specialist in a given area of law is one who devotes special study and attention to the practice of a particular field of the law. An attorney
who holds himself/herself out as a specialist in a particular field of law represents that, with regard to his/her specialty, he/she has and will employ not merely the knowledge and skill of a general practitioner but that he/she has and will employ that special degree of knowledge and skill (ordinarily) (normally) possessed and used by the average specialist in his/her field. Accordingly, when an attorney holds himself/herself out as a specialist and undertakes as such work for a client, the law imposes the duty upon that attorney to have and to use that degree of knowledge and skill which is (normally) (ordinarily) possessed and used by the average attorney who specializes in the practice of that particular field of law.
C. Expert Testimony To Prove Standard Of Care
Negligence is conduct which falls below a standard of care required by law for the protection of persons or property from foreseeable risks of harm. In the usual negligence case, it is not necessary for plaintiff to prove the standard of care by which defendant's conduct is to be measured. In the usual case, such as an automobile negligence action, it is sufficient for plaintiff to prove what the defendant did or failed to do, and what the circumstances were, and then it is for the jury to determine whether the defendant exercised such care as a reasonably prudent person would have exercised for
the safety of others. The standard of care is reasonable prudence to avoid injury to another, and the jury, in effect, supplies that standard by deciding what a reasonably prudent person would have done in the circumstances.
In the usual legal malpractice case, however, jurors are not competent to supply the standard of care by which to measure the defendant's conduct. Based upon their common knowledge alone, without technical training, jurors normally cannot know what conduct constitutes standard legal practice. Therefore, ordinarily, when an attorney is charged with negligence in the representation of a client, the standard of practice by which his/her conduct is to be judged must be furnished by expert testimony, that is to say, by the testimony of persons who by knowledge, training or experience are deemed qualified to testify and to express their opinions on legal subjects.
Where the subject matter of the claim is such that jurors cannot determine the standard of conduct and any departure therefrom on the basis of their common knowledge as laymen, then as jurors they should not speculate or guess about the standards by which the average attorney should conduct himself/herself in the circumstances. In a case such as this, you as jurors must determine what is standard legal practice from the testimony of the expert witnesses who have been heard in this case. After deciding what
the standard of care is, what standard legal practice is in the circumstances of this case, you as jurors must then determine whether defendant has conformed with or whether defendant has departed from that standard of care.
Cases and Notes:
See in this regard the Cases and Notes concerning expert testimony set forth in Part A, supra. If the failure of attorney performance is so clear that professional negligence may be found without the aid of expert testimony, this instruction is unnecessary. Wright v. Williams, 47 Cal. App.3d, 802, 121 Cal. Rptr. 194. Besides the question of the necessity of expert testimony to establish the standard of care, an ancillary question concerns the issue of admissibility of expert testimony on damages. See, e.g., Fuschetti v. Bierman, 128 N.J. Super. 290 (Law Div. 1974) where expert testimony concerning the reasonable settlement value of a personal injury claim was ruled inadmissible.
D. Common Knowledge May Furnish Standard Of Care
Negligence is the failure to comply with the standard of care required by law to protect a person from foreseeable risks of harm. Negligence in an attorney's legal practice, which is called malpractice, is the attorney's failure to comply with the standard of care required by law in the representation of his/her client. Usually it is necessary to establish the standard of care by expert testimony, that is, by testimony of persons how are qualified by their training, study and experience to give their opinions on subjects not
generally understood by persons, such as jurors, who lack such special training or experience. In the usual case, standard legal practice by which to judge defendant's conduct cannot be determined by the jury without the assistance of expert legal testimony.
However, in some cases, such as the case at hand, the jury may determine from its common knowledge and experience the standard of care by which to judge defendant's conduct. In this case, plaintiff contends that defendant violated the duty of care he/she owed to plaintiff by doing _________________/by failing to do __________________. In this case, therefore, it is for you, as jurors, to determine, based upon common knowledge and experience, what skill and care the average attorney practicing in defendant's field would have exercised in the same or similar circumstances. It is for you as jurors to say from your common knowledge and experience whether defendant did something which the average member of his/her profession would not have done or whether defendant failed to do something or failed to take some measure which the average member of his/her profession would have done or taken in the circumstances of this case in the representation of the plaintiff.
[Where there has been expert legal testimony as to the standard of care but the standard is one which can also be determined by the jury from its common knowledge and experience, the jury should determine the standard of care after considering all the evidence in the case, including the expert legal testimony, as well as its own common knowledge and experience.]
After determining the standard of care required in the circumstances of this case, you should then consider the evidence to determine whether defendant has complied with or departed from that standard of care. If you find that defendant has complied with that standard of care, he/she is not liable to plaintiff, regardless of the result. If you find that defendant has not complied with the standard of care, resulting in injury or damage to plaintiff, then you should find defendant guilty of malpractice and return a verdict for plaintiff.
E. Proximate Cause In Legal Malpractice Involving Inadequate or Incomplete Legal Advice (1/97)
Proximate cause means that the negligence of the [Defendant] was a substantial factor in bringing about harm to the [Plaintiff].
To find proximate cause, it is not necessary that the negligence of the defendant be the sole cause of the plaintiff's harm. The law recognizes that in the case of legal malpractice there may be any number of factors that led to the plaintiff's harm. However, in order for the defendant's conduct to be considered a proximate cause of the plaintiff's harm, the negligence of the defendant must have been a substantial factor in bringing about that harm, and in addition some harm must have been foreseeable.See footnote 3
For the harm to be considered foreseeable, it is not necessary that the precise harm that occurred here was foreseeable by the defendant. Rather if some harm from the defendant's negligence was within the realm of reasonable foreseeability, then the harm is considered foreseeable.
In sum, in order to find proximate cause, you must find that the negligence of the defendant in providing inadequate or incomplete legal advice was a substantial factor in bringing about the harm that occurred and that some harm to the plaintiff was foreseeable from the defendant's negligence.
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Footnote: 1Caveat: With the exception of R. 1:39 (Certification of Attorneys as Trial Attorneys), the Supreme Court has not promulgated rules authorizing attorneys to represent themselves as specialists. However, while there is no case law on the subject, the Committee is of the opinion that a charge imposing the duties of a specialist may be appropriate in a particular matter where the attorney has represented or held himself/herself out to the client as a specialist in such matters. Such charge would also of course be appropriate in a matter involving an attorney certified as a trial attorney pursuant to R. 1:39.
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Footnote: 2Caveat: See the caveat concerning a charge imposing the duty of a specialist set forth at Part A, supra.
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Footnote: 3 Conklin v. Hannoch Weisman, 145 N.J. 395, 418-22 (1996). The trial court should be aware that, in certain factual circumstances, foreseeability might be a "red herring," 145 N.J. at 420, and the language regarding foreseeability would be eliminated.
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Model Civil Jury Charges
5.50I MEDICAL NEGLIGENCE (cont.)
I. Fraudulent Concealment of Medical Records(1) (7/02)
Upon request, physicians have a duty to provide a patient or a patient's representative with a true, unaltered and complete copy of all treatment records for any treatment or services rendered.(2) Corrections or changes to entries may be made only where the change is clearly identified as such, dated and initialed by the person making the change.(3) In fact, it is against the law in this State to alter medical records with the intent to deceive or mislead anyone.(4)
In this case you have heard evidence that Dr. [insert the doctor's name] concealed or altered his records in the following manner: [here describe the actions].
The elements that must be established by a plaintiff in a claim for Fraudulent Concealment of Medical Records are:
(1) that the defendant had a legal obligation to disclose evidence in connection with an existing or pending litigation;
(2) that the evidence was material to the litigation;
(3) that the plaintiff could not reasonably have obtained access to the evidence from another source;
(4) that the defendant intentionally withheld, altered or destroyed the evidence with the purpose to disrupt the litigation; and
(5) that the plaintiff was damaged in the underlying action by having to rely on an evidential record that did not contain the evidence defendant concealed.(5)
Note to Judge:
This charge should be followed by damages charges appropriate to the case, which may include punitive damages. See footnote 5, below.
The Rosenblit Court explained,
In sum, where an adversary has intentionally hidden or destroyed (spoliated) evidence necessary to a party's cause of action and that misdeed is uncovered in time for trial, plaintiff is entitled to a spoliation inference that the missing evidence would be unfavorable to the wrong doer and may also amend his or her complaint to add a claim for fraudulent concealment. Where the hiding or destruction is not made known until after the underlying litigation, in which plaintiff's case has been lost or impaired due to the missing evidence, a separate tort action for fraudulent concealment will lie. Id. at 411.
The trial should be bifurcated in Fraudulent Concealment cases. The Rosenblit Court added:
[T]hose counts will require bifurcation because the fraudulent concealment remedy depends on the jury's assessment of the underlying cause of action. In that instance, after the jury has returned a verdict in the bifurcated underlying action, it will be required to determine whether the elements of the tort of fraudulent concealment have been established, and, if so, whether damages are warranted.
The Appellate Division stated in In re Jascalevich License Revocation, 182 N.J. Super. 455, 471-472 (App. Div. 1982):
We are persuaded that a physician's duty to a patient cannot but encompass his affirmative obligation to maintain the integrity, accuracy, truth and reliability of the patient's medical record. His obligation in this regard is no less compelling than his duties respecting diagnosis and treatment of the patient since the medical community must, of necessity, be able to rely on those records in the continuing and future care of that patient. Obviously, the rendering of that care is prejudiced by anything in those records which is false, misleading or inaccurate. We hold, therefore, that a deliberate falsification by a physician of his patient's medical record, particularly when the reason therefor is to protect his own interests at the expense of his patient's, must be regarded as gross malpractice endanger ing the health or life of his patient.
(1)See Rosenblit v. Zimmerman, 166 N.J. 391 (2001); In re Jascalevich License Revocation, 182 N.J. Super. 455, 471-472 (App. Div. 1982).
(2)N.J.A.C. 13:35-6.5(c).
(3)N.J.A.C. 13:35-6.5(b)(2).
(4)N.J.A.C. 2C:21-4.1. Purposeful destruction, alteration or falsification of record relating to care of medical or surgical or podiatric patient in order to deceive or mislead.
(5)Id. at 406-407. The Rosenblit Court added: "We are satisfied that those elements properly reflect the application of fraudulent concealment principles in a litigation setting. We hold that the tort of fraudulent concealment, as adopted, may be invoked as a remedy for spoliation where those elements exist. Such conduct cannot go undeterred and unpunished and those aggrieved by it should be made whole with compensatory damages and, if the elements of the Punitive Damages Act, N.J.S.A. 2A:15-5.12, are met, punitive damages for intentional wrongdoing." Id.
Upon request, physicians have a duty to provide a patient or a patient's representative with a true, unaltered and complete copy of all treatment records for any treatment or services rendered.(2) Corrections or changes to entries may be made only where the change is clearly identified as such, dated and initialed by the person making the change.(3) In fact, it is against the law in this State to alter medical records with the intent to deceive or mislead anyone.(4)
In this case you have heard evidence that Dr. [insert the doctor's name] concealed or altered his records in the following manner: [here describe the actions].
The elements that must be established by a plaintiff in a claim for Fraudulent Concealment of Medical Records are:
(1) that the defendant had a legal obligation to disclose evidence in connection with an existing or pending litigation;
(2) that the evidence was material to the litigation;
(3) that the plaintiff could not reasonably have obtained access to the evidence from another source;
(4) that the defendant intentionally withheld, altered or destroyed the evidence with the purpose to disrupt the litigation; and
(5) that the plaintiff was damaged in the underlying action by having to rely on an evidential record that did not contain the evidence defendant concealed.(5)
Note to Judge:
This charge should be followed by damages charges appropriate to the case, which may include punitive damages. See footnote 5, below.
The Rosenblit Court explained,
In sum, where an adversary has intentionally hidden or destroyed (spoliated) evidence necessary to a party's cause of action and that misdeed is uncovered in time for trial, plaintiff is entitled to a spoliation inference that the missing evidence would be unfavorable to the wrong doer and may also amend his or her complaint to add a claim for fraudulent concealment. Where the hiding or destruction is not made known until after the underlying litigation, in which plaintiff's case has been lost or impaired due to the missing evidence, a separate tort action for fraudulent concealment will lie. Id. at 411.
The trial should be bifurcated in Fraudulent Concealment cases. The Rosenblit Court added:
[T]hose counts will require bifurcation because the fraudulent concealment remedy depends on the jury's assessment of the underlying cause of action. In that instance, after the jury has returned a verdict in the bifurcated underlying action, it will be required to determine whether the elements of the tort of fraudulent concealment have been established, and, if so, whether damages are warranted.
The Appellate Division stated in In re Jascalevich License Revocation, 182 N.J. Super. 455, 471-472 (App. Div. 1982):
We are persuaded that a physician's duty to a patient cannot but encompass his affirmative obligation to maintain the integrity, accuracy, truth and reliability of the patient's medical record. His obligation in this regard is no less compelling than his duties respecting diagnosis and treatment of the patient since the medical community must, of necessity, be able to rely on those records in the continuing and future care of that patient. Obviously, the rendering of that care is prejudiced by anything in those records which is false, misleading or inaccurate. We hold, therefore, that a deliberate falsification by a physician of his patient's medical record, particularly when the reason therefor is to protect his own interests at the expense of his patient's, must be regarded as gross malpractice endanger ing the health or life of his patient.
(1)See Rosenblit v. Zimmerman, 166 N.J. 391 (2001); In re Jascalevich License Revocation, 182 N.J. Super. 455, 471-472 (App. Div. 1982).
(2)N.J.A.C. 13:35-6.5(c).
(3)N.J.A.C. 13:35-6.5(b)(2).
(4)N.J.A.C. 2C:21-4.1. Purposeful destruction, alteration or falsification of record relating to care of medical or surgical or podiatric patient in order to deceive or mislead.
(5)Id. at 406-407. The Rosenblit Court added: "We are satisfied that those elements properly reflect the application of fraudulent concealment principles in a litigation setting. We hold that the tort of fraudulent concealment, as adopted, may be invoked as a remedy for spoliation where those elements exist. Such conduct cannot go undeterred and unpunished and those aggrieved by it should be made whole with compensatory damages and, if the elements of the Punitive Damages Act, N.J.S.A. 2A:15-5.12, are met, punitive damages for intentional wrongdoing." Id.
5.50H MEDICAL NEGLIGENCE (cont.)
H. Alteration of Medical Records(1) (7/02)
Physicians have a duty to ensure that all treatment records accurately reflect the treatment or services rendered.(2) Corrections or changes to entries may be made only where the change is clearly identified as such, dated and initialed by the person making the change.(3) In fact, it is against the law in this State to alter medical records with the intent to deceive or mislead anyone.(4)
In this case you have heard evidence that Dr. [insert the doctor's name] altered his records in the following manner: [here describe the actions].
The alteration of medical records is admissible as evidence of a defendant's own belief that the actual records do not support his defense. If you find that Dr. [insert the doctor's name] altered the medical records with the intent to deceive or mislead anyone, you may infer that the alteration of the records in this case occurred because
Dr. [insert the doctor's name] believed that the original record would have been unfavorable in the trial of this matter.(5)
Note to Judge:
See also, M.C.J.C. 5.36I, Fraudulent Concealment of Medical Records. The Rosenblit Court explained,
In sum, where an adversary has intentionally hidden or destroyed (spoliated) evidence necessary to a party's cause of action and that misdeed is uncovered in time for trial, plaintiff is entitled to a spoliation inference that the missing evidence would be unfavorable to the wrong doer and may also amend his or her complaint to add a claim for fraudulent concealment. Id. at 411.
The Appellate Division stated in In re Jascalevich License Revocation, 182 N.J. Super. 455, 471-472 (App. Div. 1982):
We are persuaded that a physician's duty to a patient cannot but encompass his affirmative obligation to maintain the integrity, accuracy, truth and reliability of the patient's medical record. His obligation in this regard is no less compelling than his duties respecting diagnosis and treatment of the patient since the medical community must, of necessity, be able to rely on those records in the continuing and future care of that patient. Obviously, the rendering of that care is prejudiced by anything in those records which is false, misleading or inaccurate. We hold, therefore, that a deliberate falsification by a physician of his patient's medical record, particularly when the reason therefor is to protect his own interests at the expense of his patient's, must be regarded as gross malpractice endanger ing the health or life of his patient.
In appropriate cases the Court may also charge: False in One, False in All.
(1)See Rosenblit v. Zimmerman, 166 N.J. 391 (2001); In re Jascalevich License Revocation, 182 N.J. Super. 455, 471-472 (App. Div. 1982).
(2)N.J.A.C. 13:35-6.5(b).
(3)N.J.A.C. 13:35-6.5(b)(2).
(4)N.J.A.C. 2C:21-4.1. Purposeful destruction, alteration or falsification of record relating to care of medical or surgical or podiatric patient in order to deceive or mislead.
(5)"A jury could infer from Dr. Zimmerman's behavior that he believed that Rosenblit's medical records would prejudice his position in the litigation. That belief could be significant to a jury faced with expert evidence in equipoise. To be sure, the alteration evidence would have had a substantial impact on Dr. Zimmerman's case. But that is what happens when there is powerful and persuasive evidence." Id. at 409-410.
Physicians have a duty to ensure that all treatment records accurately reflect the treatment or services rendered.(2) Corrections or changes to entries may be made only where the change is clearly identified as such, dated and initialed by the person making the change.(3) In fact, it is against the law in this State to alter medical records with the intent to deceive or mislead anyone.(4)
In this case you have heard evidence that Dr. [insert the doctor's name] altered his records in the following manner: [here describe the actions].
The alteration of medical records is admissible as evidence of a defendant's own belief that the actual records do not support his defense. If you find that Dr. [insert the doctor's name] altered the medical records with the intent to deceive or mislead anyone, you may infer that the alteration of the records in this case occurred because
Dr. [insert the doctor's name] believed that the original record would have been unfavorable in the trial of this matter.(5)
Note to Judge:
See also, M.C.J.C. 5.36I, Fraudulent Concealment of Medical Records. The Rosenblit Court explained,
In sum, where an adversary has intentionally hidden or destroyed (spoliated) evidence necessary to a party's cause of action and that misdeed is uncovered in time for trial, plaintiff is entitled to a spoliation inference that the missing evidence would be unfavorable to the wrong doer and may also amend his or her complaint to add a claim for fraudulent concealment. Id. at 411.
The Appellate Division stated in In re Jascalevich License Revocation, 182 N.J. Super. 455, 471-472 (App. Div. 1982):
We are persuaded that a physician's duty to a patient cannot but encompass his affirmative obligation to maintain the integrity, accuracy, truth and reliability of the patient's medical record. His obligation in this regard is no less compelling than his duties respecting diagnosis and treatment of the patient since the medical community must, of necessity, be able to rely on those records in the continuing and future care of that patient. Obviously, the rendering of that care is prejudiced by anything in those records which is false, misleading or inaccurate. We hold, therefore, that a deliberate falsification by a physician of his patient's medical record, particularly when the reason therefor is to protect his own interests at the expense of his patient's, must be regarded as gross malpractice endanger ing the health or life of his patient.
In appropriate cases the Court may also charge: False in One, False in All.
(1)See Rosenblit v. Zimmerman, 166 N.J. 391 (2001); In re Jascalevich License Revocation, 182 N.J. Super. 455, 471-472 (App. Div. 1982).
(2)N.J.A.C. 13:35-6.5(b).
(3)N.J.A.C. 13:35-6.5(b)(2).
(4)N.J.A.C. 2C:21-4.1. Purposeful destruction, alteration or falsification of record relating to care of medical or surgical or podiatric patient in order to deceive or mislead.
(5)"A jury could infer from Dr. Zimmerman's behavior that he believed that Rosenblit's medical records would prejudice his position in the litigation. That belief could be significant to a jury faced with expert evidence in equipoise. To be sure, the alteration evidence would have had a substantial impact on Dr. Zimmerman's case. But that is what happens when there is powerful and persuasive evidence." Id. at 409-410.
5.50G MEDICAL NEGLIGENCE (cont.)
G. Medical Judgment(1) (Extracted from 5.36A, 2/01; revised 3/02)
A doctor may have to exercise judgment when diagnosing and treating a patient. However, alternative diagnosis/treatment choices must be in accordance with accepted standard medical practice. Therefore, your focus should be on whether standard medical practice allowed judgment to be exercised as to diagnosis and treatment alternatives and, if so, whether what the doctor actually did to diagnose or treat this patient was accepted as standard medical practice. If you determine that the standard of care for treatment or diagnosis with respect to [specify what type(s) treatment or diagnosis is involved] did not allow for the choices or judgments the defendant doctor made here, then the doctor would be negligent.
(1) If a case does not involve a legitimate judgment call or two schools of thought, then the trial judge should omit this portion of the charge. In Velazquez v. Portadin, 163 N.J.677 (2000), the Supreme Court instructed that the judgment charge should be "limited to cases in which the physician exercised judgment in selecting among acceptable courses of action." Id. at 687. The Velazquez Court requires that "Court and counsel should analyze the parties' testimony and theories in detail, on the record, to determine whether the charge is applicable at all and, if so, to which specific issues. The charge should then be tailored accordingly." Id. at 690. The Supreme court explained that "the trial court's failure to untangle the facts in relation to the medical judgment charge left the jury free to excuse defendants based on the evidence of judgment in areas where no judgment was exercised. Because that error was not harmless, a new trial is necessary." Id. at 685. The Court therefore reversed a judgment for the defendants, explaining:
[T]he bulk of this case implicated the question of deviation from the standard of care, not judgment...Although one or possibly a few judgment issues may have been implicated, the heart of the case was about whether there was a deviation from the standard of care. The undifferentiated instruction on medical judgment misled the jury and thus improperly insulated the defendants from liability. . . Because the judgment charge was not tailored to the facts of this case, its coverage was overbroad and had the potential to improperly insulate defendants from liability. Accordingly, a new trial is required. Id. at 689-690.
The Velazquez Court held that whether fetal monitor strips were readable and what action was required if the fetal monitor strips were not readable did not involve issues of medical judgment.
If a case involves judgment issues on some theories of liability, but not on others, the charge should be tailored to those facts. Patton v. Amblo, 314 N.J. Super. 1 (App. Div. 1998), (trial judge committed reversible error when he failed to separate out what aspects of care involved judgment and which did not) and see Campos v. Firestone Tire and Rubber Company, 98 N.J. 198, 210 (1984). Medical malpractice practitioners should assist the court in framing tailored, objective statements of those issues which do involve legitimate dispute issues of judgme
A doctor may have to exercise judgment when diagnosing and treating a patient. However, alternative diagnosis/treatment choices must be in accordance with accepted standard medical practice. Therefore, your focus should be on whether standard medical practice allowed judgment to be exercised as to diagnosis and treatment alternatives and, if so, whether what the doctor actually did to diagnose or treat this patient was accepted as standard medical practice. If you determine that the standard of care for treatment or diagnosis with respect to [specify what type(s) treatment or diagnosis is involved] did not allow for the choices or judgments the defendant doctor made here, then the doctor would be negligent.
(1) If a case does not involve a legitimate judgment call or two schools of thought, then the trial judge should omit this portion of the charge. In Velazquez v. Portadin, 163 N.J.677 (2000), the Supreme Court instructed that the judgment charge should be "limited to cases in which the physician exercised judgment in selecting among acceptable courses of action." Id. at 687. The Velazquez Court requires that "Court and counsel should analyze the parties' testimony and theories in detail, on the record, to determine whether the charge is applicable at all and, if so, to which specific issues. The charge should then be tailored accordingly." Id. at 690. The Supreme court explained that "the trial court's failure to untangle the facts in relation to the medical judgment charge left the jury free to excuse defendants based on the evidence of judgment in areas where no judgment was exercised. Because that error was not harmless, a new trial is necessary." Id. at 685. The Court therefore reversed a judgment for the defendants, explaining:
[T]he bulk of this case implicated the question of deviation from the standard of care, not judgment...Although one or possibly a few judgment issues may have been implicated, the heart of the case was about whether there was a deviation from the standard of care. The undifferentiated instruction on medical judgment misled the jury and thus improperly insulated the defendants from liability. . . Because the judgment charge was not tailored to the facts of this case, its coverage was overbroad and had the potential to improperly insulate defendants from liability. Accordingly, a new trial is required. Id. at 689-690.
The Velazquez Court held that whether fetal monitor strips were readable and what action was required if the fetal monitor strips were not readable did not involve issues of medical judgment.
If a case involves judgment issues on some theories of liability, but not on others, the charge should be tailored to those facts. Patton v. Amblo, 314 N.J. Super. 1 (App. Div. 1998), (trial judge committed reversible error when he failed to separate out what aspects of care involved judgment and which did not) and see Campos v. Firestone Tire and Rubber Company, 98 N.J. 198, 210 (1984). Medical malpractice practitioners should assist the court in framing tailored, objective statements of those issues which do involve legitimate dispute issues of judgme
5.50F MEDICAL NEGLIGENCE (cont.)
F. Wrongful Birth or Life(1) (7/02)
Preliminary Note to Judge:
In Canesi v Wilson, 158 N.J. 490 (1999), the Supreme Court mandated that an informed consent charge be given in every wrongful birth case. The standard for counseling in all wrongful birth cases was expressly found to be the reasonable patient standard and not the professional standard of care. The Canesi Court held that a physician is required to ascertain enough of a patient's background "to assess what information might be useful to the patient's deliberative process and then to discuss that information with her . . . the reasonably prudent patient standard thus takes into account each woman's unique circumstances." Id. at 510. The Court explained that "because the patient's protectable interest is the personal right of self-determination, the doctor's duty of disclosure must be sufficient to enable her to make an informed and meaningful decision concerning whether or not to continue the pregnancy." Id. at 502.
The Canesi Court instructed that “[t]he violation of the interest in self-determination that undergirds a wrongful birth cause of action consists of the parents' lost opportunity to make the personal decision of whether or not to give birth to a child who might have birth defects.” Schroeder v. Perkel, supra, 87 N.J. at 66. The claim in a wrongful birth action can arise when a physician fails to provide adequate genetic counseling, see id. at 63, fails to detect a discoverable fetal defect or to inform the parents thereof, see Berman v. Allan, 80 N.J. 421 (1979), fails to interpret test results properly, see Procanik v. Cillo, 97 N.J. 339 (1984), or fails to warn of a child being born with a defect, see Harbeson v. Parke-Davis, Inc., 656 P.2d 483, 491 (Wash. 1983); see also Williams v. University of Chicago Hosp., 688 N.E.2d 130, 133 (Ill. 1997) (stating that in wrongful birth actions, parents allege that they would not have carried fetus "to term if it had not been for the defendant's negligence in prenatal testing, genetic prognosticating, or counseling [them] as to the likelihood of giving birth to a physically or mentally impaired child") (internal quotation and citation omitted.))" Canesi, supra, 158 N.J. at 501-502.
This case involves a claim that the defendant is liable for the wrongful birth or life of the plaintiff's child. The plaintiff contends that the defendant failed to tell her that by continuing her pregnancy she ran the risk of [here state the condition], and that had she known of the risk, she would have terminated the pregnancy. A woman has the right to decide for herself whether to continue or terminate her pregnancy.(2) The claim here is that the plaintiff was deprived of the right to make the personal decision of whether to give birth to a child who might have birth defects.(3)
In this case Dr. [here insert physician’s name] had a duty to explain, in words the patient could understand, all material information and risks necessary for the plaintiff to have made an informed decision concerning whether or not to continue the pregnancy.(4) A doctor is required to obtain enough information about a patient's background and her reasons for seeing the doctor to determine what information is material to the patient and to discuss that information with her.(5) Medical information is "material" when a reasonable woman, in what the physician knows or should know to be the patient's position, could attach significance to a risk of a birth defect in deciding whether to terminate the pregnancy or give birth to the child.(6)
Option A: [Use option A where the claim is that the defen dant failed to recommend or provide sufficient information about genetic counseling or screen ing; failed to perform a prenatal test, negli gently interpreted the prenatal test, failed to perform follow-up testing et cetera.]
In this case, the plaintiff contends that the doctor failed to [here describe the allegations, i.e., failed to provide the information that a reasonable patient would expect to be told about genetic counseling or screening, failed to recommend or provide sufficient information about genetic counseling or screening, failed to do follow up testing, failed to interpret an ultrasound or other prenatal test properly et cetera]. As a result, the plaintiff was not advised that by continuing her pregnancy she ran the risk of giving birth to a child with [state the condition], and that had she known of the risk of the birth defect she would have terminated the pregnancy. To prevail in a wrongful birth claim, the plaintiff must prove all of the following elements:
(1) the defendant negligently [describe the allegation, e.g., failed to recommend or provide sufficient information that a reasonable patient would expect to be told about genetic counseling or screening, failed to perform a prenatal test, negligently interpreted the prenatal test, failed to perform follow-up testing et cetera]; and
(2) if the test was properly performed [or interpreted et cetera], in some cases it would have disclosed the possibility of [state the condition];(7) and
(3) if the plaintiff was advised of the possibility of a [state the condition] birth defect, she would have terminated the pregnancy.
Option B: [Use option B only where the allega tion is that the defendant failed to disclose the risks of a birth defect associated with taking a particular medicine while pregnant.]
In this case, the plaintiff contends that the doctor failed to [describe the allegations, e.g., failed to disclose the risks of a birth defect associated with taking a particular medicine while pregnant et cetera]. As a result, the plaintiff was not advised that by continuing her pregnancy she ran the risk of giving birth to a child with [state the condition], and that had she known of the risk of the birth defect she would have terminated the pregnancy.
To prevail in a wrongful birth claim involving a birth defect resulting from taking a prescribed medicine while pregnant, the plaintiff must prove all of the following elements:
(1) that the undisclosed risk of the medication was material to a woman in the plaintiff's position;
(2) that the risk materialized,
(3) had the plaintiff known of that risk, she would have terminated her pregnancy.(8)
[The remainder of charge-all cases:]
The plaintiff does not have to prove that any doctor's negligence caused her child's birth defect. The question is whether the doctor's failure to disclose the risk of a birth defect deprived the plaintiff(s) of [her or their] right to decide whether to give birth to a child who could possibly have a birth defect.(9) (10)
If you conclude that the plaintiff would have had an abortion, if warned of the risk of a birth defect, the plaintiff is entitled to damages consisting of both:
(1) the special medical expenses and other extraordinary expenses attribut able to raising a child with a birth defect over the child's lifetime; and
(2) the emotional injury and anguish that the plaintiffs have suffered and will suffer in the future caused by losing the option to terminate the pregnancy and being compelled to take on the lifetime tasks and burdens of raising a disabled child.(11)
(1)Canesi v. Wilson, 158 N.J. 490 (1999); Procanik v. Cillo, 97 N.J. 339 (1984); Schroeder v. Perkel, 87 N.J. 53 (1981); and Berman v. Allen, 80 N.J. 421 (1979).
(2) "A wrongful birth cause of action is predicated on a woman's right to determine for herself whether or not to continue or terminate her pregnancy." Id. at 501.
(3)"The violation of the interest in self-determination that undergirds a wrongful birth cause of action consists of the parents' lost opportunity to make the personal decision of whether or not to give birth to a child who might have birth defects. Schroeder, supra, 87 N.J. at 66. The claim in a wrongful birth action can arise when a physician fails to provide adequate genetic counselling, see id. at 63, fails to detect a discoverable fetal defect or to inform the parents thereof, see Berman v. Allan, 80 N.J. 421 (1979), fails to interpret test results properly, see Procanik v. Cillo, 97 N.J. 339 (1984), or fails to warn of a child being born with a defect, see Harbeson v. Parke-Davis, Inc., 656 P.2d 483, 491 (Wash. 1983); see also Williams v. University of Chicago Hosp., 688 N.E.2d 130, 133 (Ill. 1997) (stating that in wrongful birth actions, parents allege that they would not have carried fetus "to term if it had not been for the defendant's negligence in prenatal testing, genetic prognosticating, or counseling [them] as to the likelihood of giving birth to a physically or mentally impaired child") (internal quotation and citation omitted))." Id.
(4)"Because the patient's protectable interest is the personal right of self-determination, the doctor's duty of disclosure must be sufficient to enable her to make an informed and meaningful decision concerning whether or not to continue the pregnancy." Id. at 502.
(5)"A physician . . . could reasonably be expected to ascertain enough of a patient's background, [and] her reasons for seeking pregnancy counseling . . . to assess what information might be useful to the patient's deliberative process and then to discuss that information with her." Id. at 510.
(6)Id. at 509.
(7)In Gardner v. Pawliw, 150 N.J. 359 (1997), the Court held:
When the prevailing standard of care indicates that a diagnostic test should be performed and that it is a deviation not to perform it, but it is unknown whether performing the test would have helped to diagnose or treat a pre-existent condition, the first prong of Scafidi does not require that the plaintiff demonstrate a reasonable medical probability that the test would have resulted in avoiding the harm. Rather, the plaintiff must demonstrate to a reasonable degree of medical probability that the failure to give the test increased the risk of harm from the pre-existent condition. A plaintiff may demonstrate an increased risk of harm even if such tests are helpful in a small proportion of cases. We reach that conclusion to avoid the unacceptable result that would accrue if trial courts in such circumstances invariably denied plaintiffs the right to reach the jury, thereby permitting defendants to benefit from the negligent failure to test and the evidentiary uncertainties that the failure to test created. Id. at 387.
See also, Reynolds v. Gonzales, N. J. (2002), holding, "[A] plaintiff may demonstrate an increased risk even if the test would have been helpful in just a small proportion of cases." (Citing Gardner, supra, 150 N.J. at 387.)
(8)"[A] plaintiff need not prove that the doctor's negligence caused her child's birth defect. Rather, the test of proximate causation is satisfied by showing that an undisclosed fetal risk was material to a woman in her position; the risk materialized, was reasonably foreseeable and not remote in relation to the doctor's negligence; and, had plaintiff known of that risk, she would have terminated her pregnancy." Id. at 506.
(9)"The appropriate proximate cause question ... is whether the doctors' inadequate disclosure deprived the parents of their deeply personal right to decide for themselves whether to give birth to a child who could possibly be afflicted with a physical abnormality." Id. at 515.
(10)In Lynch v. Scheininger, 162 N. J. 209 (2000), the Court held that where plaintiff is aware of the probability of a birth defect while plaintiff is still able to terminate the pregnancy, the jury may consider whether the plaintiff's decision to give birth to the child should be considered in mitigation of damages.
(11)"[A] woman asserting a wrongful birth claim who proves that she herself would have had an abortion if appraised of the risk of fetal defect is entitled to damages consisting of both the special medical expenses attributable to raising a child with a congenital impairment and the emotional injury attributable to the deprivation of the option to accept or reject a parental relationship with the child." Canesi, supra, 158 N.J. at 517-518.
Preliminary Note to Judge:
In Canesi v Wilson, 158 N.J. 490 (1999), the Supreme Court mandated that an informed consent charge be given in every wrongful birth case. The standard for counseling in all wrongful birth cases was expressly found to be the reasonable patient standard and not the professional standard of care. The Canesi Court held that a physician is required to ascertain enough of a patient's background "to assess what information might be useful to the patient's deliberative process and then to discuss that information with her . . . the reasonably prudent patient standard thus takes into account each woman's unique circumstances." Id. at 510. The Court explained that "because the patient's protectable interest is the personal right of self-determination, the doctor's duty of disclosure must be sufficient to enable her to make an informed and meaningful decision concerning whether or not to continue the pregnancy." Id. at 502.
The Canesi Court instructed that “[t]he violation of the interest in self-determination that undergirds a wrongful birth cause of action consists of the parents' lost opportunity to make the personal decision of whether or not to give birth to a child who might have birth defects.” Schroeder v. Perkel, supra, 87 N.J. at 66. The claim in a wrongful birth action can arise when a physician fails to provide adequate genetic counseling, see id. at 63, fails to detect a discoverable fetal defect or to inform the parents thereof, see Berman v. Allan, 80 N.J. 421 (1979), fails to interpret test results properly, see Procanik v. Cillo, 97 N.J. 339 (1984), or fails to warn of a child being born with a defect, see Harbeson v. Parke-Davis, Inc., 656 P.2d 483, 491 (Wash. 1983); see also Williams v. University of Chicago Hosp., 688 N.E.2d 130, 133 (Ill. 1997) (stating that in wrongful birth actions, parents allege that they would not have carried fetus "to term if it had not been for the defendant's negligence in prenatal testing, genetic prognosticating, or counseling [them] as to the likelihood of giving birth to a physically or mentally impaired child") (internal quotation and citation omitted.))" Canesi, supra, 158 N.J. at 501-502.
This case involves a claim that the defendant is liable for the wrongful birth or life of the plaintiff's child. The plaintiff contends that the defendant failed to tell her that by continuing her pregnancy she ran the risk of [here state the condition], and that had she known of the risk, she would have terminated the pregnancy. A woman has the right to decide for herself whether to continue or terminate her pregnancy.(2) The claim here is that the plaintiff was deprived of the right to make the personal decision of whether to give birth to a child who might have birth defects.(3)
In this case Dr. [here insert physician’s name] had a duty to explain, in words the patient could understand, all material information and risks necessary for the plaintiff to have made an informed decision concerning whether or not to continue the pregnancy.(4) A doctor is required to obtain enough information about a patient's background and her reasons for seeing the doctor to determine what information is material to the patient and to discuss that information with her.(5) Medical information is "material" when a reasonable woman, in what the physician knows or should know to be the patient's position, could attach significance to a risk of a birth defect in deciding whether to terminate the pregnancy or give birth to the child.(6)
Option A: [Use option A where the claim is that the defen dant failed to recommend or provide sufficient information about genetic counseling or screen ing; failed to perform a prenatal test, negli gently interpreted the prenatal test, failed to perform follow-up testing et cetera.]
In this case, the plaintiff contends that the doctor failed to [here describe the allegations, i.e., failed to provide the information that a reasonable patient would expect to be told about genetic counseling or screening, failed to recommend or provide sufficient information about genetic counseling or screening, failed to do follow up testing, failed to interpret an ultrasound or other prenatal test properly et cetera]. As a result, the plaintiff was not advised that by continuing her pregnancy she ran the risk of giving birth to a child with [state the condition], and that had she known of the risk of the birth defect she would have terminated the pregnancy. To prevail in a wrongful birth claim, the plaintiff must prove all of the following elements:
(1) the defendant negligently [describe the allegation, e.g., failed to recommend or provide sufficient information that a reasonable patient would expect to be told about genetic counseling or screening, failed to perform a prenatal test, negligently interpreted the prenatal test, failed to perform follow-up testing et cetera]; and
(2) if the test was properly performed [or interpreted et cetera], in some cases it would have disclosed the possibility of [state the condition];(7) and
(3) if the plaintiff was advised of the possibility of a [state the condition] birth defect, she would have terminated the pregnancy.
Option B: [Use option B only where the allega tion is that the defendant failed to disclose the risks of a birth defect associated with taking a particular medicine while pregnant.]
In this case, the plaintiff contends that the doctor failed to [describe the allegations, e.g., failed to disclose the risks of a birth defect associated with taking a particular medicine while pregnant et cetera]. As a result, the plaintiff was not advised that by continuing her pregnancy she ran the risk of giving birth to a child with [state the condition], and that had she known of the risk of the birth defect she would have terminated the pregnancy.
To prevail in a wrongful birth claim involving a birth defect resulting from taking a prescribed medicine while pregnant, the plaintiff must prove all of the following elements:
(1) that the undisclosed risk of the medication was material to a woman in the plaintiff's position;
(2) that the risk materialized,
(3) had the plaintiff known of that risk, she would have terminated her pregnancy.(8)
[The remainder of charge-all cases:]
The plaintiff does not have to prove that any doctor's negligence caused her child's birth defect. The question is whether the doctor's failure to disclose the risk of a birth defect deprived the plaintiff(s) of [her or their] right to decide whether to give birth to a child who could possibly have a birth defect.(9) (10)
If you conclude that the plaintiff would have had an abortion, if warned of the risk of a birth defect, the plaintiff is entitled to damages consisting of both:
(1) the special medical expenses and other extraordinary expenses attribut able to raising a child with a birth defect over the child's lifetime; and
(2) the emotional injury and anguish that the plaintiffs have suffered and will suffer in the future caused by losing the option to terminate the pregnancy and being compelled to take on the lifetime tasks and burdens of raising a disabled child.(11)
(1)Canesi v. Wilson, 158 N.J. 490 (1999); Procanik v. Cillo, 97 N.J. 339 (1984); Schroeder v. Perkel, 87 N.J. 53 (1981); and Berman v. Allen, 80 N.J. 421 (1979).
(2) "A wrongful birth cause of action is predicated on a woman's right to determine for herself whether or not to continue or terminate her pregnancy." Id. at 501.
(3)"The violation of the interest in self-determination that undergirds a wrongful birth cause of action consists of the parents' lost opportunity to make the personal decision of whether or not to give birth to a child who might have birth defects. Schroeder, supra, 87 N.J. at 66. The claim in a wrongful birth action can arise when a physician fails to provide adequate genetic counselling, see id. at 63, fails to detect a discoverable fetal defect or to inform the parents thereof, see Berman v. Allan, 80 N.J. 421 (1979), fails to interpret test results properly, see Procanik v. Cillo, 97 N.J. 339 (1984), or fails to warn of a child being born with a defect, see Harbeson v. Parke-Davis, Inc., 656 P.2d 483, 491 (Wash. 1983); see also Williams v. University of Chicago Hosp., 688 N.E.2d 130, 133 (Ill. 1997) (stating that in wrongful birth actions, parents allege that they would not have carried fetus "to term if it had not been for the defendant's negligence in prenatal testing, genetic prognosticating, or counseling [them] as to the likelihood of giving birth to a physically or mentally impaired child") (internal quotation and citation omitted))." Id.
(4)"Because the patient's protectable interest is the personal right of self-determination, the doctor's duty of disclosure must be sufficient to enable her to make an informed and meaningful decision concerning whether or not to continue the pregnancy." Id. at 502.
(5)"A physician . . . could reasonably be expected to ascertain enough of a patient's background, [and] her reasons for seeking pregnancy counseling . . . to assess what information might be useful to the patient's deliberative process and then to discuss that information with her." Id. at 510.
(6)Id. at 509.
(7)In Gardner v. Pawliw, 150 N.J. 359 (1997), the Court held:
When the prevailing standard of care indicates that a diagnostic test should be performed and that it is a deviation not to perform it, but it is unknown whether performing the test would have helped to diagnose or treat a pre-existent condition, the first prong of Scafidi does not require that the plaintiff demonstrate a reasonable medical probability that the test would have resulted in avoiding the harm. Rather, the plaintiff must demonstrate to a reasonable degree of medical probability that the failure to give the test increased the risk of harm from the pre-existent condition. A plaintiff may demonstrate an increased risk of harm even if such tests are helpful in a small proportion of cases. We reach that conclusion to avoid the unacceptable result that would accrue if trial courts in such circumstances invariably denied plaintiffs the right to reach the jury, thereby permitting defendants to benefit from the negligent failure to test and the evidentiary uncertainties that the failure to test created. Id. at 387.
See also, Reynolds v. Gonzales, N. J. (2002), holding, "[A] plaintiff may demonstrate an increased risk even if the test would have been helpful in just a small proportion of cases." (Citing Gardner, supra, 150 N.J. at 387.)
(8)"[A] plaintiff need not prove that the doctor's negligence caused her child's birth defect. Rather, the test of proximate causation is satisfied by showing that an undisclosed fetal risk was material to a woman in her position; the risk materialized, was reasonably foreseeable and not remote in relation to the doctor's negligence; and, had plaintiff known of that risk, she would have terminated her pregnancy." Id. at 506.
(9)"The appropriate proximate cause question ... is whether the doctors' inadequate disclosure deprived the parents of their deeply personal right to decide for themselves whether to give birth to a child who could possibly be afflicted with a physical abnormality." Id. at 515.
(10)In Lynch v. Scheininger, 162 N. J. 209 (2000), the Court held that where plaintiff is aware of the probability of a birth defect while plaintiff is still able to terminate the pregnancy, the jury may consider whether the plaintiff's decision to give birth to the child should be considered in mitigation of damages.
(11)"[A] woman asserting a wrongful birth claim who proves that she herself would have had an abortion if appraised of the risk of fetal defect is entitled to damages consisting of both the special medical expenses attributable to raising a child with a congenital impairment and the emotional injury attributable to the deprivation of the option to accept or reject a parental relationship with the child." Canesi, supra, 158 N.J. at 517-518.
5.50E MEDICAL NEGLIGENCE (cont.)
E. Pre-Existing Condition - Increased Risk/Loss of Chance - Proximate Cause (12/02)
Introductory Note to Judge:
In a series of cases, including Fosgate v. Corona, 66 N.J. 268 (1974); Evers v. Dollinger, 95 N.J. 399 (1984); Scafidi v. Seiler, 119 N.J. 93 (1990); Gardner v. Pawliw, 150 N.J. 359 (1997), and most recently Reynolds v. Gonzales, 172 N.J. 266 (2002), the New Jersey Supreme Court has established a modified standard of proximate cause for use in certain medical negligence cases. The following charge is to be used in cases where it is alleged that the plaintiff has a preexisting condition which creates a risk of harm and the defendant's negligence increases the risk of harm by depriving the plaintiff of a chance of recovery. Furthermore, in Reynolds, supra, the Supreme Court held that failure to specifically explain the charge in the context of the facts of the case was reversible error. Therefore, to assist trial judges and practitioners this Model Charge uses typical medical negligence theories as illustrative examples.
Additionally, in cases involving an allegation that the failure to perform a diagnostic test increased the risk of harm from a preexisting condition, the trial court must also give that portion of the charge derived from Gardner, supra, as indicated below.
In this case, [insert here a detailed factual description of the case, such as, (1) the plaintiff contends that she told the defendant that she felt a lump in her breast in January of 2000, that the defendant was negligent in not ordering a mammogram or other test for cancer until January 2001, and that as a result of the delay the cancer spread to her lungs, liver and brain, and is now likely to cause her death; or (2) the plaintiff contends that her husband went to the defendant hospital emergency room after suffering a heart attack. The plaintiff further asserts that the defendant negligently misdiagnosed her husband's heart attack, and sent her husband home, where he died.]
If you determine that the defendant was negligent, then you must also decide what is the chance that: [(1) the plaintiff would not be dying of cancer; or (2) the plaintiff's husband would not have died of the heart attack et cetera], if the defendant had not been negligent. Thus, if you decide that the defendant was negligent, then you must decide to what extent were the plaintiff's injuries caused by the preexisting medical condition and to what extent were the injuries caused by the defendant's negligence.
When the plaintiff came to the defendant, he/she had a preexisting condition [here describe the condition, e.g., breast cancer; heart attack et cetera] which by itself had a risk of causing the plaintiff the harm he/she ultimately experienced in this case. However, the plaintiff claims that the defendant's negligence increased that risk of harm and contributed to the ultimate injury [here describe the ultimate harm]. To establish that the defendant's negligence was a cause of his/her injuries or damages, the plaintiff must first prove that the defendant's negligence increased the risk of harm posed by plaintiff's preexisting condition.(1)
Second, the plaintiff must prove that the increased risk was a substantial factor in producing the ultimate harm or injury. If the negligent act was only remotely or insignificantly related to the ultimate harm or injury, then the negligent act does not constitute a substantial factor. However, the defendant's negligence need not be the only cause, nor even a primary cause, of an injury for the negligence to be a substantial factor in producing the ultimate harm or injury.(2) Whether the increased risk was a substantial factor is to be reflected in the apportionment of damages between the increased risk and the preexisting condition.(3) If under all of the circumstances here [here insert specific circumstances such as the delay in the diagnosis of the breast cancer or the heart attack] you find that the plaintiff may have suffered lesser injuries if the defendant was not negligent, then the defendant is liable for the plaintiff's increased injuries. On the other hand, if you find that the plaintiff would have suffered the same injuries even if the defendant was not negligent, then the defendant is not liable to the plaintiff.
[Add where the allegation is that the failure to perform a diagnostic test increased the risk of harm:]
If you determine that the defendant was negligent in not having a diagnostic test performed, in this case [here indicate the test(s)], but it is unknown whether performing the test would have helped to diagnose or treat a preexistent condition, the plaintiff does not have to prove that the test would have resulted in avoiding the harm. In such cases the plaintiff must merely demonstrate that the failure to give the test increased the risk of harm from the preexistent condition. A plaintiff may demonstrate an increased risk of harm even if such tests are helpful in a small proportion of cases.(4)
[In all cases continue here:]
If you find that the plaintiff has proven that the defendant was negligent, the plaintiff is not required to quantify or put a percentage on the extent to which the defendant's negligence added to all of the plaintiff's final injuries. In cases where the defendant's negligence accelerated or worsened the plaintiff's preexisting condition, the defe
Introductory Note to Judge:
In a series of cases, including Fosgate v. Corona, 66 N.J. 268 (1974); Evers v. Dollinger, 95 N.J. 399 (1984); Scafidi v. Seiler, 119 N.J. 93 (1990); Gardner v. Pawliw, 150 N.J. 359 (1997), and most recently Reynolds v. Gonzales, 172 N.J. 266 (2002), the New Jersey Supreme Court has established a modified standard of proximate cause for use in certain medical negligence cases. The following charge is to be used in cases where it is alleged that the plaintiff has a preexisting condition which creates a risk of harm and the defendant's negligence increases the risk of harm by depriving the plaintiff of a chance of recovery. Furthermore, in Reynolds, supra, the Supreme Court held that failure to specifically explain the charge in the context of the facts of the case was reversible error. Therefore, to assist trial judges and practitioners this Model Charge uses typical medical negligence theories as illustrative examples.
Additionally, in cases involving an allegation that the failure to perform a diagnostic test increased the risk of harm from a preexisting condition, the trial court must also give that portion of the charge derived from Gardner, supra, as indicated below.
In this case, [insert here a detailed factual description of the case, such as, (1) the plaintiff contends that she told the defendant that she felt a lump in her breast in January of 2000, that the defendant was negligent in not ordering a mammogram or other test for cancer until January 2001, and that as a result of the delay the cancer spread to her lungs, liver and brain, and is now likely to cause her death; or (2) the plaintiff contends that her husband went to the defendant hospital emergency room after suffering a heart attack. The plaintiff further asserts that the defendant negligently misdiagnosed her husband's heart attack, and sent her husband home, where he died.]
If you determine that the defendant was negligent, then you must also decide what is the chance that: [(1) the plaintiff would not be dying of cancer; or (2) the plaintiff's husband would not have died of the heart attack et cetera], if the defendant had not been negligent. Thus, if you decide that the defendant was negligent, then you must decide to what extent were the plaintiff's injuries caused by the preexisting medical condition and to what extent were the injuries caused by the defendant's negligence.
When the plaintiff came to the defendant, he/she had a preexisting condition [here describe the condition, e.g., breast cancer; heart attack et cetera] which by itself had a risk of causing the plaintiff the harm he/she ultimately experienced in this case. However, the plaintiff claims that the defendant's negligence increased that risk of harm and contributed to the ultimate injury [here describe the ultimate harm]. To establish that the defendant's negligence was a cause of his/her injuries or damages, the plaintiff must first prove that the defendant's negligence increased the risk of harm posed by plaintiff's preexisting condition.(1)
Second, the plaintiff must prove that the increased risk was a substantial factor in producing the ultimate harm or injury. If the negligent act was only remotely or insignificantly related to the ultimate harm or injury, then the negligent act does not constitute a substantial factor. However, the defendant's negligence need not be the only cause, nor even a primary cause, of an injury for the negligence to be a substantial factor in producing the ultimate harm or injury.(2) Whether the increased risk was a substantial factor is to be reflected in the apportionment of damages between the increased risk and the preexisting condition.(3) If under all of the circumstances here [here insert specific circumstances such as the delay in the diagnosis of the breast cancer or the heart attack] you find that the plaintiff may have suffered lesser injuries if the defendant was not negligent, then the defendant is liable for the plaintiff's increased injuries. On the other hand, if you find that the plaintiff would have suffered the same injuries even if the defendant was not negligent, then the defendant is not liable to the plaintiff.
[Add where the allegation is that the failure to perform a diagnostic test increased the risk of harm:]
If you determine that the defendant was negligent in not having a diagnostic test performed, in this case [here indicate the test(s)], but it is unknown whether performing the test would have helped to diagnose or treat a preexistent condition, the plaintiff does not have to prove that the test would have resulted in avoiding the harm. In such cases the plaintiff must merely demonstrate that the failure to give the test increased the risk of harm from the preexistent condition. A plaintiff may demonstrate an increased risk of harm even if such tests are helpful in a small proportion of cases.(4)
[In all cases continue here:]
If you find that the plaintiff has proven that the defendant was negligent, the plaintiff is not required to quantify or put a percentage on the extent to which the defendant's negligence added to all of the plaintiff's final injuries. In cases where the defendant's negligence accelerated or worsened the plaintiff's preexisting condition, the defe