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.
