5.10A NEGLIGENCE AND ORDINARY CARE – GENERAL model jury charge

5.10A                  NEGLIGENCE AND ORDINARY CARE – GENERAL model jury charge

         1.      Negligence may be defined as a failure to exercise, in the given circumstances, that degree of care for the safety of others, which a person of ordinary prudence would exercise under similar circumstances.  It may be the doing of an act which the ordinary prudent person would not have done, or the failure to do that which the ordinary prudent person would have done, under the circumstances then existing.

[Where a more detailed definition is desired, the following may be used:]

         2.      Negligence is the failure to use that degree of care, precaution and vigilance which a reasonably prudent person would use under the same or similar circumstances.  It includes both affirmative acts which a reasonably prudent person would not have done and the omission of acts or precautions which a reasonably prudent person would have done or taken in the circumstances.

         By “a reasonably prudent person” it is not meant the most cautious person nor one who is unusually bold but rather one of reasonable vigilance, caution and prudence.

         In order to establish negligence, it is not necessary that it be shown that the defendant had an evil heart or an intent to do harm.

         To summarize, every person is required to exercise the foresight, prudence and caution which a reasonably prudent person would exercise under the same or similar circumstances.  Negligence then is a departure from that standard of care.

Cases:

Negligence is defined as conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.  2 Restatement, Torts, Sec. 282; Harpell v. Public Service Coord. Transport, 20 N.J. 309, 316 (1956); Prosser, Torts, p. 119.

The defendant's conduct is compared with that which the hypothetical person of reasonable vigilance, caution and prudence would have exercised in the same or similar circumstances or conditions.  Overby v. Union Laundry Co., 28 N.J. Super. 100, 104 (App. Div. 1953), aff’d 14 N.J. 526 (1954); McKinley v. Slenderella Systems of Camden, N.J., Inc., 63 N.J. Super. 571  (App. Div. 1960).

"The conduct of the reasonable man will vary with the situation with which he is confronted.  The jury must therefore be instructed to take the circumstances into account; negligence is a failure to do what the reasonable man would do 'under the same or similar circumstances.'" Prosser, p. 125.

The above may be modified to cover cases involving property damage.

4.45 MOTOR VEHICLE LEMON LAW model jury charge

4.45                     MOTOR VEHICLE LEMON LAW model jury charge

         The purpose of the so-called New Jersey “Lemon Law” is to protect buyers or lessees when they buy or lease a motor vehicle and the manufacturer cannot correct defects in the vehicle.

         The lemon law does not apply to every defect in an automobile.  It is not a guarantee against every defect.  It applies to a defect that substantially impairs the use, value or safety of a vehicle.

         To establish his/her claim under the Lemon Law, the plaintiff must prove by a preponderance of the credible evidence each of the following five elements of the claim.  The elements are:

1.      The plaintiff purchased/leased a vehicle manufactured by the defendant, [insert the defendant’s name];

2.      The vehicle had nonconformity or nonconformities that is/are, a defect or defects that substantially impaired the use, value or safety of the vehicle.

         To substantially impair, the defect or condition must impair the use, value or safety in an important, essential or significant way.  When I use the term “substantial,” I do not mean a defect, impairment or condition that is minor, trivial or unimportant.

         In determining whether a defect or condition substantially impairs the use or value of the vehicle, you can consider whether the defects or conditions have shaken the plaintiff’s confidence in the vehicle.  If the defect has shaken the plaintiff’s confidence in the vehicle, this loss of confidence may be the basis for you to find that the defect has impaired the vehicle’s use or value.  You must consider this from both a subjective and objective point of view.

         From a subjective standpoint, the defects must be examined from the point of view of this particular plaintiff.  From an objective standpoint, the defects that allegedly have shaken the plaintiff’s confidence must be consistent with what a reasonable person in the plaintiff’s position would have believed under the same or similar circumstances.

         For example, in deciding whether a specific defect or condition substantially impairs the use or value of a vehicle, you may consider whether the specific defect or condition complained of, in fact caused the plaintiff to lose confidence in this vehicle.  Even if you find that the plaintiff’s confidence in the vehicle was shaken, you must also consider whether or not the specific defect or condition, if any, was such that a reasonable person would have lost confidence in the vehicle.

NOTE TO JUDGE

If the manufacturer raises either or both of the affirmative defenses set forth below, the following language would be appropriate.  N.J.S.A. 56:12-40.

         The manufacturer, in this case, has raised as a defense to the plaintiff’s claim that the alleged nonconformity does not substantially impair the use, value or safety of the vehicle and/or that the nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of the vehicle by someone other than the manufacturer or its dealer.  If you find the manufacturer has proven, by a preponderance of the evidence, that the alleged nonconformity does not substantially impair the use, value or safety of the vehicle and/or that the nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of the vehicle by someone other than the manufacturer or its dealer, then you must find that there is no nonconformity within the meaning of the “Lemon Law.”

[Charge Continues]

3.      The non-conformity occurred during the first 18,000 miles of use, or within two years after the date of original delivery to plaintiff, whichever is earlier.

4.      The plaintiff reported the non-conformity to the manufacturer or its dealer during the first 18,000 miles of use, or during the period of two years following the date of original delivery to the plaintiff, whichever is earlier.

5.      [insert the defendant’s name], through its authorized dealers, did not repair the non-conformity or non-conformities within a reasonable time.

NOTE TO JUDGE

The following language should be charged in those cases where it is alleged the conditions for the presumption have been met.  Note, the two year term and two year period specified shall be extended by any period of time during which repair services were not available to the consumer because of war, invasion or strike, or a fire, flood, or other natural disaster.  N.J.S.A. 56:12-33.

         It is presumed that a manufacturer or its dealer is unable to repair or correct a non-conformity within a reasonable time if, within the first 18,000 miles of operation, or during the period of 2 years following the date of original delivery of the motor vehicle to a consumer, whichever is the earlier date:

(a)     substantially the same non-conformity has been subject to repair three or more times by the manufacturer, or its dealer, and the nonconformity continued to exist; or

(b)          the motor vehicle was out of service by reason of repair for one or more nonconformities for a cumulative total of 20 or more calendar days.

(c)          since the original delivery of the motor vehicle and nonconformity continues to exist.

         This presumption, however, shall only apply against the manufacturer, if the manufacturer has received written notification, by or on behalf of the plaintiff, by certified mail, return receipt requested, of a potential claim pursuant to this law and has had one opportunity to repair or correct the defect or condition within 10 calendar days following receipt of the notification.  The notification by the plaintiff shall take place any time after the motor vehicle has had substantially the same nonconformity subject to repair two or more times or has been out of service by reason of repair for a cumulative total of 20 or more calendar days.

[Charge Continues]

         If you find by a preponderance of the evidence that the plaintiff has proven all five elements, then you must find for the plaintiff on the Lemon Law claim. 

         But, if you find that the plaintiff has failed to establish all five elements, then you will find for the defendant.

NOTE TO JUDGE

In the event that there are factual disputes as to any of the damage elements of a “Lemon Law” claim, the court should provide damage instructions.  See, N.J.S.A. 56:12-32 and 56:12-42.

In the event the parties have stipulated the amount of damages, the language set forth below would outline for the jury the ultimate outcome.  DiVigenze v. Chrysler Corp., 345 N.J. Super. 314 (App. Div. 2001).

         If then a plaintiff reports a nonconformity in a motor vehicle to the manufacturer or its dealer during the first 18,000 miles of operation, or during the period of two years following the date of the original delivery of the motor vehicle to the plaintiff, whichever is earlier, the manufacturer is required to make, arrangements with its dealer to make, within a reasonable period of time, all repairs necessary to correct the nonconformity.

         If the manufacturer is unable to correct nonconformity within a reasonable time, the manufacturer shall accept return of the motor vehicle from the plaintiff. The manufacturer shall also provide the plaintiff with a full refund of the purchase/lease price and any other charges, fees and costs, less a reasonable allowance for the use of the motor vehicle, which shall be calculated by the court.[1]

Lemon Law Model Jury Verdict Sheet

1.      Did the plaintiff prove that he/she purchased/leased a vehicle manufactured by the defendant?

         YES   _____________                      VOTE         _____________

         NO    _____________                      VOTE         _____________

         If your answer is “yes”, proceed to question 2.

If your answer is “no”, stop your deliberations and return your verdict.

2.             Did the plaintiff prove that the vehicle had nonconformity or nonconformities, which substantially impaired the use, value or safety of the vehicle?

         YES   _____________                      VOTE         _____________

         NO    _____________                      VOTE         _____________

         If your answer is “yes”, proceed to question 3.

If your answer is “no”, stop your deliberations and return your verdict.

3.             Did the plaintiff prove the non-conformity occurred during the first 18,000 miles of use or within 2 years after the date of original delivery to plaintiff, whichever is earlier?

         YES   ____________                        VOTE         _____________
NO    ____________                        VOTE         _____________

         If your answer is “yes”, proceed to question 4.

         If your answer is “no”, stop your deliberations and return your verdict.

4.      Did the plaintiff prove he/she reported the non-conformity to the manufacturer or its dealer during the first 18,000 miles of use or during the period of 2 years following the date of original delivery to the plaintiff, whichever is earlier?

         YES   ___________                          VOTE         ______________

         NO    ___________                          VOTE         ______________

         If your answer is “yes”, proceed to question 5.

If your answer is “no”, stop your deliberations and return your verdict.

5.      Did the plaintiff prove that the manufacturer, through its authorized dealers, did not repair the non-conformity or non-conformities within a reasonable time?

                  YES   ______________                     VOTE         ______________

                  NO    ______________                     VOTE         ______________  

[Insert specific damage question, if appropriate.]

See N.J.S.A. 56:12-32 and N.J.S.A. 56:12-42.

---

     [1] In the event there are claims for breach of expressed warranty on the sale of goods, or breach of implied warranty of fitness for a particular purpose.  See Model Civil Charges 4.21 and 4.22, respectively.

4.44 DEFICIENCY — SALE OF COLLATERAL AS COMMERCIALLY REASONABLE1 model jury charge

4.44                     DEFICIENCY — SALE OF COLLATERAL AS COMMERCIALLY REASONABLE1 model jury charge

         There are times when a person may borrow money to be able to buy (or lease) something, such as a motor vehicle.  In turn, the person borrowing the money may be required to give a security interest in the item purchased, as collateral to guaranty the debt to the lender.  If the money owed is not repaid to the lender as agreed, the lender may have the right to take possession of the item and sell it as may be commercially reasonable.  If the money obtained from the sale is not enough to pay off the debt, the lender may sue the borrower for the amount still owed.

         The plaintiff says that is what happened in this case.  The defendant, however, denies that the sale of the (item) was done in a commercially reasonable manner.

         When there is a dispute as to whether the sale of the secured collateral, in this case, the (item), took place in a commercially reasonable manner, the plaintiff (2/92)[2] — the creditor — has the burden of proving by the greater weight of the believable evidence that the method, manner, time, place and terms of the sale were commercially reasonable.[3]

         What do I mean when I say that you must measure plaintiff’s conduct in selling the (item) against the standard of commercial reasonableness?  Commercially reasonable would be a sale in the usual manner in any recognized market,[4] or a sale in conformity with reasonable commercial practices among dealers in the type of property sold.[5]  If there is no recognizable public market for the item, but the plaintiff is aware of a particular buyer with a need for the item, a private sale might be commercially reasonable.  However, ordinarily, the preferred method is a public sale.  That would be a sale by auction[6] where the public, particularly including the knowledgeable trade public, is invited by earlier advertisement to appear and bid for the item to be sold.  The item should be available for inspection by bidders before the sale. 

         The notice of sale “(1) . . . must be published sufficiently in advance of the sale to allow [potential] interested bidders an opportunity to participate.  (2) it must be aimed at the market reasonably expected to have an interest in purchasing collateral; (3) it must set out the exact time and place of the sale[7]; (4) it must sufficiently describe the collateral to be sold so as to allow potential bidders the opportunity to make an informed decision; and (5) it must be published in such a manner as to assure the best possible price.”[8]  Reasonable notice must also have been given to the defendant of the time and place of the proposed sale.[9]

         “Factors to be considered include the probable value of the security as determined by a reputable appraisal or reliable indicia of value consistent with the nature of the collateral; the cost of notice; the specialty or general nature of the market for the kinds of goods constituting the security; and the place of notice/place of sale.”[10]   

         The item must be offered and sold for cash to the highest responsible bidder, and bidders must know of the other bids and be permitted to raise their bids.[11]  The place of the sale must be accessible to the general public.

         The fact that a better price could have been obtained by a sale at a different time or in a different method than that selected by the plaintiff is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner.[12]  However, the plaintiff has “the obligation to make a good faith effort to obtain the highest possible price for the item.”[13]  A substantial difference between the price received and the (item’s) fair market value is relevant in deciding whether the sale was commercially reasonable.[14]  In determining the fair market value, it is the price at which the property would change hands between a willing buyer and a willing seller when the former is not under any compulsion to sell, both parties having reasonable knowledge of the relevant facts.[15]

         If the secured party either sells the collateral in the usual manner in any recognized market or if he/she sells at the price current in such market at the time of his/her sale or if he/she has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold, he/she has sold in a commercially reasonable manner.[16]

         The number of bidders at the sale may also be meaningful.

         Judge the conduct in selling the (item) by considering how well plaintiff has succeeded in realizing the maximum resale price without creating a great expense for that sale in keeping with prevailing trade practices among reputable and reasonable businesses engaged in the same or similar enterprises.[17]  Decide whether plaintiff has shown by the greater weight of the evidence that it sold the (item) in a commercially reasonable manner.  In calculating the amount due the plaintiff, the expenses of reparation and sale could be added to the indebtedness before crediting the fair market value of the security if there had been an appropriate sale.[18]  The plaintiff has “the burden of showing that a commercially reasonable sale of the collateral would have yielded less than the balance due.”[19]

         If you find that the sale was not conducted in a commercially reasonable manner, the next issue is whether the plaintiff is entitled to a deficiency. 

         If plaintiff has not established that the sale was commercially reasonable, there is “a presumption that the value of the collateral is equal to the amount of debt.  Unless this presumption is rebutted, no debt remains.”[20]

         To “overcome the presumption that the value of the collateral at least equaled the debt it secured, . . . plaintiff may introduce independent proof of the fair and reasonable value of the collateral (plus or minus any payments or charges incurred in disposing of the collateral) and comparing it with the price achieved at the actual sale.”[21]  The defendant may also present evidence as to the proof of value.[22]

         If you find that plaintiff has not rebutted the presumption that the fair and reasonable value of the collateral was equal to the amount of the debt, you must find in favor of the defendant.  If, on the other hand, plaintiff has satisfied its burden of showing that the fair and reasonable value of the collateral was less than the amount of the debt, you must find in plaintiff’s favor for the deficiency owed by the defendant.

         However, defendant may be entitled to damages for “the difference between the amount actually recovered and the amount that should have been recovered had there been a commercially reasonable sale.”[23]  Thus, the deficiency found to be due and owing to plaintiff may be offset by defendant’s damages.

---

     1This charge does not address the notice requirement under N.J.S.A. 12A:9-504(3).

     [2]T & W Ice Cream, Inc. v. Carriage Barn, Inc., 107 N.J. Super. 328 (Law Div. 1969); and Franklin St. Bank v. Parker, 136 N.J. Super. 476 (Cty. Dist. Ct. 1975).  See also White and Sumers, Uniform Commercial Code (2 ed.), Sec. 26-11.

       [3]N.J.S.A. 12A:9-504(3); Block v. Diana, 252 N.J. Super. 650, 657 (App. Div. 1992).

     [4]Some cases have held that there is no recognized market for used automobiles.  Norton v. Natl. Bank of Commerce, 398 S.W. 2d 538 (Ark. 1966); Commun. Mgmt. Assn. v. Tousely, 505 P.2d 1314 (Co. 1973); Turk v. St. Petersburg Bank and T. Co., 281 So. 2d 534 (Fla. 1973); Nelson v. Monarch Invest. Plan, 452 S.W. 2d 375 (Ky. 1970); Alliance Discount Corp. v. Shaw, 171 A. 2d 548 (Pa. 1961).

     [5]N.J.S.A. 12A:9-507(2).

     [6]U.C.C. Sec. 9-504, Comment 1 refers to Sec. 2-706 as a guide for determining when a sale is commercially reasonable.  Sec. 2-706, Comment 4 notes that a public sale is a sale by auction.

     [7]A creditor may not hold collateral for a long time to accumulate storage charges and increase deficiency, where no reason exists not to make prompt sale.  U.C.C. Sec. 9-504, Comment 6.

     [8]Security Sav. Bank v. Tranchitella, 249 N.J. Super. 234, 241 (App. Div. 1991); Three days’ notice of private sale of repossessed car deemed not commercially reasonable.  Franklin St. Bank v. Parker, 136 N.J. Super. 476 (Dist. Ct. 1975).

     [9]Block v. Diana at 9 (citing Security Sav. Bank v. Tranchitella).

     [10]Security Sav. Bank v. Tranchitella. 249 N.J. Super. 234, 240 (App. Div. 1991); N.J.S.A. 12A:9-504(3).

     [11]A sale on sealed bids has been held not to have been a public sale.  Offredi v. Huhla, 60 A. 2d 779 (Conn. 1948).

     [12]N.J.S.A. 12A:9-507(2).

     [13]Security Sav. Bank v. Tranchitella, 249 N.J. Super. 234, 243 (App. Div. 1991).

     [14]Mercantile Finan. Corp. v. Miller, 292 F. Supp. 797 (E.D. Pa. 1968): collateral having fair market value of $750,000 sold for $19,000.

     [15]Lavene v. Lavene, 162 N.J. Super. 187, 192 (Ch. Div. 1978).

     [16]N.J.S.A. 12A:9-507(2).

     [17]Franklin St. Bank v. Parker, 136 N.J. Super. 476 (Co. Dist. Ct. 1975).

     [18]Midlantic National Bank v. Coyne, 222 N.J. Super. 649, 655 (Law Div. 1987).  While there is no appellate court decision on the issue of whether the nature of the debtor’s relief is for the court or jury, in the case of Midlantic National Bank v. Coyne, the Honorable Leo Yanoff presented the issue to the jury.

     [19]Block v. Diana at 10.

     [20]Security Sav. Bank v. Tranchitella, 249 N.J. Super. 234, 244 (App. Div. 1991).

     [21]Id. at 245

     [22]Id.

     [23]Midlantic National Bank v. Coyne, 222 N.J. Super. 649, 655 (Law Div. 1987).  While there is no appellate court decision on the issue of whether the nature of the debtor’s relief is for the court or jury, in the case of Midlantic National Bank v. Coyne, the Honorable Leo Yanoff presented the issue to the jury.