7.12 DUTY OF PASSENGER IN AUTOMOBILE Civil model jury charge

CHARGE 7.12 — Page 1 of 3 

 7.12 DUTY OF PASSENGER IN AUTOMOBILE (Approved 5/91) 

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.] CHARGE 7.12 — Page 2 of 3 

[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 care as is reasonable 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 TO JUDGE 

The above applies where the relationship of master and servant or 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); Kaufmann v. Huss, 59 N.J. Super. 64 (App. Div. 1960). CHARGE 7.12 — Page 3 of 3 

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. Kaufmann 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). 

7.11 CARE REQUIRED OF CHILDREN Civil model jury charge

CHARGE 7.11 — Page 1 of 4 

 7.11 CARE REQUIRED OF CHILDREN (Approved 5/91) 

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 experience. 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. CHARGE 7.11 — Page 2 of 4 

If you decided that this child had the capacity to act negligently then 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 experience 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 TO JUDGE 

Between the time in life when a person is incapable of exercising the care and judgment necessary to avoid and avert danger, and the time when such person is in law an adult, 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 the 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). CHARGE 7.11 — Page 3 of 4 

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. The trial judge is first to view the matter and if he is of the opinion that the child, after a consideration of all relevant factors, does not have the capacity to be contributorily negligent and that reasonable men could not disagree, he then decides the question of capacity as a matter of law (emphasis added). But if the trial judge feels that reasonable men can disagree on the question of incapacity even though he himself would decide for or against incapacity, then he must allow the jury to decide the question of incapacity. The jury, if it finds the particular child at the time of the accident had capacity to be negligent, must then decide whether the particular child was negligent. Id. 354 

After a consideration of the authorities we adopt the view that a child of less than seven years of age is rebuttably presumed (emphasis added) to be incapable of negligence and hence the issue may not (emphasis added) 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 CHARGE 7.11 — Page 4 of 4 

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. Id. at 358 

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 negligent, 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 taught traffic safety regulations, his/her experience in caring for himself/herself in traffic, and any other evidence of the child's physical and mental capabilities. 

7.10 CONTRIBUTORY NEGLIGENCE Civil model jury charge

CHARGE 7.10 — Page 1 of 1 

 7.10 CONTRIBUTORY NEGLIGENCE (Approved 5/91) 

NOTE TO JUDGE 

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" no longer bars 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 are revised sections that present specific situations where negligence of the plaintiff may call for specific language to be charged. 

6.14 PROXIMATE CAUSE — WHERE THERE IS CLAIM OF INTERVENING OR SUPERSEDING CAUSE FOR JURY’S CONSIDERATION Civil model jury charge

CHARGE6.14—Page 1 of 3 

 6.14 PROXIMATE CAUSE — WHERE THERE IS CLAIM OF INTERVENING OR SUPERSEDING CAUSE FOR JURY’S CONSIDERATION (Approved 8/99) 

NOTE TO JUDGE 

This charge should be given in conjunction with Model Civil Charge 6.12 or 6.13 where there is also a jury question as to whether an intervening or superseding cause brought about the injury or harm. 

In this case, [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 [name of defendant or other party]’s negligence that you find that the intervening event caused the CHARGE6.14—Page 2 of 3 

accident/incident/event or injury/loss/harm, without [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, [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 [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 intervening causes that were foreseeable or that were normal incidents of the risk created does not relieve the defendant of liability.3 

1Davis v. Brooks, 280 N.J. Super. 406, 412 (App. Div. 1993). 

2Id. 

3Rappaport v. Nichols, 31 N.J. at 203; Cruz-Mendez v. ISU, 156 N.J. 556 (1999). CHARGE6.14—Page 3 of 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 [name of defendant or other party]’s negligence was not a proximate cause of the accident/incident/event or injury/loss/harm. 

6.13 PROXIMATE CAUSE — WHERE THERE IS CLAIM THAT CONCURRENT CAUSES OF HARM ARE PRESENT AND CLAIM THAT SPECIFIC HARM WAS NOT FORESEEABLE Civil model jury charge

CHARGE 6.13 — Page 1 of 2 

 6.13 PROXIMATE CAUSE — WHERE THERE IS CLAIM THAT CONCURRENT CAUSES OF HARM ARE PRESENT AND CLAIM THAT SPECIFIC HARM WAS NOT FORESEEABLE (Approved 5/98) 

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 Model Civil Charge 5.51B. 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 Model Civil Charge 6.12, which does not include foreseeability language. When there is a claim of an intervening or superseding cause, Model Civil Charge 6.14 should also be charged. 

To find proximate cause, you must first find that [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 CHARGE 6.13 — Page 2 of 2 

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/harm¹ 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 not to 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. 

¹It is important to note that the severity of injury or harm is not germane to a proximate cause finding.  

CHARGE 6.12 — Page 1 of 2 6.12 PROXIMATE CAUSE — WHERE THERE IS CLAIM THAT CONCURRENT CAUSES OF HARM WERE PRESENT Civil model jury charge

CHARGE 6.12 — Page 1 of 2 

 6.12 PROXIMATE CAUSE — WHERE THERE IS CLAIM THAT CONCURRENT CAUSES OF HARM WERE PRESENT (Approved 5/98) 

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 Model Civil Charge 6.13 for cases where the foreseeability of the injury or harm is an issue. Depending upon the facts of the case, Model Civil Charge 6.14 should be used in conjunction with Model Civil Charge 6.12 or 6.13 if there is an issue as to intervening or superseding causes. 

To find proximate cause, you must first find that [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 CHARGE 6.12 — Page 2 of 2 

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 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. 

6.11 PROXIMATE CAUSE — ROUTINE TORT CASE WHERE NO ISSUES OF CONCURRENT OR INTERVENING CAUSES, OR FORESEEABILITY OF INJURY OR HARM Civil model jury charge

CHARGE 6.11 — Page 1 of 2 

 6.11 PROXIMATE CAUSE — ROUTINE TORT CASE WHERE NO ISSUES OF CONCURRENT OR INTERVENING CAUSES, OR FORESEEABILITY OF INJURY OR HARM (Approved 8/99) 

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. Vuocolo 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/harm¹ 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 

¹When charging proximate cause on liability, use accident/incident/event, as appropriate. When charging proximate cause on damages, use injury/loss/harm, as appropriate. 

²Vuocolo 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. CHARGE 6.11 — Page 2 of 2 

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 [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 [name of plaintiff]’s injury/loss/harm. 

³Rappaport v. Nichols, 31 N.J. 188, 203 (1959). 

⁴The “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. 

⁵Vuocolo v. Diamond Shamrock Chem., 240 N.J. Super. at 294.  

6.10 PROXIMATE CAUSE — GENERAL CHARGE TO BE GIVEN IN ALL CASES civil model jury charge

CHARGE 6.10 — Page 1 of 2 

 6.10 PROXIMATE CAUSE — GENERAL CHARGE TO BE GIVEN IN ALL CASES (Approved 5/98) 

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 [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 [name of plaintiff or other party]’s claimed CHARGE 6.10 — Page 2 of 2 

injury/loss/harm. It is the duty of [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 partially¹ responsible for the injury/loss/harm. 

¹Omit “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).  

5.76 NEGLIGENT HIRINGCivil model jury charge

CHARGE 5.76 — Page 1 of 7 

 5.76 NEGLIGENT HIRING1 (4/07) 

A. Introduction 

The plaintiff, [insert the plaintiff’s name], alleges that the defendant, [insert the employer’s name], was negligent in the manner in which [he] [she] [it] hired and supervised [insert the alleged dangerous employee’s name]. The plaintiff further claims that as a result of [insert employer’s name]’s negligence, [he] [she] was exposed to [insert the alleged dangerous employee’s name], a dangerous individual, who ultimately [insert a brief description of the alleged damage or injury]. 

B. Duty Of An Employer Generally 

The mere happening of an unfortunate event does not provide a basis for liability. Liability is established only if it is proven that a person owing a duty to another breached that duty, and the breach of duty caused the injury or damages claimed. 

Generally, an employer is not liable for an employee’s criminal or tortious act, whether negligent or intentional, unless the act was committed during the course of, and within the scope of, employment. An exception exists in the case of 

1 The Court specifically recognized the tort of negligent hiring in DiCosala v. Kay, 91 N.J. 159, 174 (1982). The Appellate Division first identified the theory in Bennett v. T&F Distrib. Co., 117 N.J. Super. 429 (App. Div. 1971), cert. den. 60 N.J. 350 (1972). CHARGE 5.76 — Page 2 of 7 

a claim of negligent hiring. An employer may be held responsible for the criminal or wrongful acts of [his] [her] [its] employee, even if those acts occur outside the scope of employment, if the employer was negligent in the manner in which [he] [she] [it] hired, supervised or retained an inappropriate or unfit employee.2 

2 DiCosala v. Kay, 91 N.J. 159, 173 (1982). 

3 The focus of the tort of negligent hiring is on the risk the employer creates by exposing members of the public to a potentially dangerous individual. DiCosala v. Kay, 91 N.J. 159, 172 (1982). See Id. at 171 (citing Restatement 2d Agency, §213, Comment d: “Agent dangerous: The principal may be negligent because he has reason to know that the servant or other agent, because of his qualities, is likely to harm others in view of the work or instrumentalities entrusted to him….”). See also Bennett v. T&F Distrib. Co., 117 N.J. Super. 429, 445 (App. Div. 1971), cert. den. 60 N.J. 350 (1972) (“The protection of innocent third persons is a major interest in favor of a rule imposing a duty of reasonable care in the selection of employees or independent contractors who may have vicious propensities”). 

4 “The dangerous quality in the [employee] may consist of his incompetence or unskillfulness due to his youth or his lack of experience considered with reference to the act to be performed. An agent, although otherwise competent, may be incompetent because of his reckless or vicious disposition, and if an [employer], without exercising due care in selection, 

C. Negligent Hiring Exception 

An employer in a business providing services to the public has a duty to use reasonable care in selecting competent and fit employees for the work assigned to them. An employer is also bound to refrain from retaining the services of an unfit employee.3 

An unfit employee is one whose dangerous propensities make him or her inappropriate for a particular job assignment4 and who is likely to cause harm to the public if hired for that position. CHARGE 5.76 — Page 3 of 7 

employs a vicious person to do an act which necessarily brings him in contact with others while in the performance of a duty, he is subject to liability for harm caused by the vicious propensity….” DiCosala v. Kay, 91 N.J. 159, 171 (1982) (citing Restatement 2d Agency, §213, Comment d). 

5 Alternative Charge: “Therefore, for you to find (employer) liable for negligent hiring, you must first find (employer) negligent and then find that [his] [her] [its] negligence proximately caused the plaintiff’s injuries or damages.” 

6 An employer may not be held responsible under a theory of negligent hiring, supervision or retention for criminal or other wrongful acts of its employee if in the exercise of reasonable care and diligence, a reasonable employer would not have ascertained the employee’s incompetence, unfitness or dangerous propensities. In other words, the employer took reasonable care and diligence in researching that individual’s background, references, and other relevant information. 

7 DiCosala v. Kay, 91 N.J. 159, 173 (1982). 

D. Elements Explained 

In this matter, you may hold the employer liable for the plaintiff’s injuries or damages if you find that [he] [she] [it] was negligent in failing to exercise due care in hiring, supervising or retaining an unfit individual and that such negligence was a proximate cause of the plaintiff’s injuries or damages.5 

In order to find that the employer failed to exercise reasonable care in hiring the employee in question,6 you must find two things: 

One, [insert employer’s name] knew or had reason to know of the particular unfitness, incompetence or dangerous attributes of the employee, [insert dangerous employee’s name]7; and CHARGE 5.76 — Page 4 of 7 

8 DiCosala v. Kay, 91 N.J. 159, 173 (1982). But see Johnson v. Usdin Louis Co., Inc., 248 N.J. Super. 525 (App. Div. 1991), cert. den. 126 N.J. 386 (1991) (negligent hiring not found where the employer could not have reasonably foreseen the employee would steal nitric acid from the employer and use it to attack his wife and daughter.) 

9 For instance, the employer may hire someone without a license as a taxi driver. 

10 Using the same example of a taxi driver, the employer may check that the applicant has a license on his person but not check whether the license was revoked. Had the employer checked the status of the license, the employer would have a reason to know that the applicant was unlicensed. 

11 Lingar v. Live-In Companions, Inc., 300 N.J. Super. 22, 32 (1997). 

Two, [insert employer’s name] could have reasonably foreseen that hiring a person with the employee’s attributes created a risk of harm to others, whether on or off the premises.8 

An employer may be held liable if, during the hiring process or course of employment, the employer actually knew the employee had an inappropriate or dangerous characteristic, attribute or tendency that made the employee an unacceptable candidate for the position.9 An employer may also be held liable if reasonable investigation would have disclosed the employee’s undesirable characteristic, attribute or tendency.10 

In determining whether the employer exercised due care in this matter, you must examine all the circumstances surrounding the hiring and employment of the employee.11 Since there is no hard and fast rule as to what constitutes an CHARGE 5.76 — Page 5 of 7 

12 Insert the following if criminal history investigation is applicable: “In this case, the employee, [insert employee’s name], had an undisclosed and undiscovered criminal history which made [him] [her] unfit and dangerous for the duties of the position. Liability of [insert employer’s name], though, is not predicated solely upon [his] [her] [its] failure to investigate the criminal history of the applicant. With regard to the criminal record of a candidate for employment, you must consider the totality of the circumstances, and specifically: (a) What investigation, if any, the employer could have legally taken; and (b) What information was reasonably available to the employer at the time of hire. 

appropriate hiring process, you should consider all of the facts and circumstances of this particular case, including but not limited to: 

a) The employer’s application and interview process; 

b) The nature of the job; 

c) The checking of references; 

d) The nature and extent of information reasonably available to the employer at the time of hire, including access to public records of criminal or other convictions;12 

e) Whether such information was available to the employer through reasonable, and not extraordinary means, including extraordinary cost; 

f) The nature of the criminal conviction, if any; and 

g) Whether the pre-hiring investigation of the employee, if any, was adequate under the totality of the circumstances. CHARGE 5.76 — Page 6 of 7 

13 DiCosala v. Kay, 91 N.J. 159, 173 (1982). But see Johnson v. Usdin Louis Co., Inc., 248 N.J. Super. 525 (App. Div. 1991), cert. den. 126 N.J. 386 (1991) (Where the Appellate Division refused to find negligent hiring judging the employer could not have reasonably foreseen the employee would steal nitric acid from the employer and use it to attack his wife and daughter.) 

14 Johnson v. Usdin Louis Co., Inc., 248 N.J. Super. 525 (App. Div. 1991), cert. den. 126 N.J. 386 (1991) (quoting Hill v. Yaskin, 75 N.J. 139, 144 (1977)). 

15 The Foreseeability Charge, 5.10B, may be used to supplement. 

If you find the employer knew or could have known of the employee’s unfit characteristic, you must then decide whether the employer could have reasonably foreseen that such qualities created a risk of harm to others.13 

Foresight, not hindsight, is the standard by which an employer’s duty of care must be judged.14 The fact that one may look back now and decide the employee was unfit does not satisfy this element of the claim. The employer must be judged on what [he] [she] [it] had reason to know at the time the employee was hired or retained.15 In deciding if the employer knew or could have known about the employee’s characteristic and should have foreseen it to be dangerous, you may take into consideration the following: 

1) The nature of the work; 

2) The extent to which the employee would or would not be supervised; 

3) Whether the employee would have access to the home and valuables of the public in general, and the plaintiff in particular; and CHARGE 5.76 — Page 7 of 7 

16 Lingar v. Live-In Companions, Inc., 300 N.J. Super. 22, 23 (1997) discusses these factors at some length. 

17 DiCosala v. Kay, 91 N.J. 159, 174 (1982). 

18 Adapted from the Proximate Cause Products Liability, Charge 5.40I. 

4) The particular vulnerability, if any, of members of the public to abuse, harm or other loss caused by exposure to a potentially unsuitable, incompetent or dangerous employee.16 

E. Proximate Cause 

If you find the employer, [insert employer’s name], was negligent in the manner in which [he] [she] [it] hired the employee, [insert dangerous employee’s name], the employer still will not be liable for the plaintiff’s injury or damage unless you also find the employer’s negligence proximately caused the plaintiff’s injury or damage.17 

This means that, in order to find the employer liable, you must find that the employer’s negligence in hiring the unfit employee was a substantial factor that singly, or in combination with one or more other causes, brought about the plaintiff’s injury or damage.18 

5.75 NUISANCE Civil model jury charge

CHARGE 5.75 ― Page 1 of 3 

 5.75 NUISANCE (Approved 12/87) 

A. In General 

The plaintiff (_____________) alleges that the defendant (____________) created (and/or maintained) a nuisance on defendant’s property which resulted in damage suffered by plaintiff (and/or to plaintiff’s property). It is for you the members of the jury to determine whether the condition created (and/or maintained) by defendant constituted a nuisance. 

The word “nuisance,” as used here, means an unreasonable interference with the use and enjoyment of one’s land which results in material interference with the ordinary comfort of human existence, i.e., annoyance, inconvenience, discomfort or harm to the person or property of another. An owner of property has the right to the reasonable use of his/her land. In determining what is reasonable, you must weigh the utility of defendant’s conduct against the extent of the harm suffered by plaintiff. The question is not simply whether a person, here plaintiff, is annoyed or disturbed, but whether the annoyance or disturbance arises from an unreasonable use of defendant’s land. 

The creation of trifling annoyances or inconvenience does not constitute actionable nuisance. The test is whether the defendant’s activities about which plaintiff complains materially and unreasonably interferes with plaintiff’s use of CHARGE 5.75 ― Page 2 of 3 

his/her property (comforts or existence) according to the simple tastes and unaffected notions generally prevailing among plain people, not according to exceptionally refined, uncommon or luxurious habits of living. 

Cases: 

Sans v. Ramsey Golf & Country Club, Inc., 29 N.J. 438, 449 (1959); see also Berg v. Reaction Motors Div., 37 N.J. 396 (1962), as to strict liability for nuisance in creating air vibrations resulting in damage to plaintiff’s property (punitive damages denied); 4 Restatement, Torts, Chapter 40 (Private Nuisance); Prosser, Torts 389 et seq. (2d ed. 1955); 1 Harper and James, the Law of Torts, 64 et. seq. (1956). 

As between an “absolute nuisance” and “a nuisance growing out of negligence,” in the latter situation the issue of contributory negligence may be asserted as a defense. “The operative facts rather than the label should control and the result should justly be the same although the plaintiff affixes a nuisance label to the defendant’s negligent conduct.” Hartman v. Brigantine, 23 N.J. 530 (1957). Otherwise, assumption of risk has been said to be the proper defense in a case involving a nuisance. Thompson v. Petrozzello, 5 N.J. Misc. 645 (Sup. Ct. 1927). 

Any private erection obstructing a public street is prima facie a nuisance but one may stand teams and vehicles in front of his/her property for a reasonable time, he/she may obstruct the sidewalk temporarily to receive and deliver goods, he/she may pile building materials in front of a building during erection, and keep them there for a reasonable time, he/she may maintain scaffolds, etc., needed in the erection of outside walls: all of such uses are generally considered lawful unless unreasonable. Mann v. Max, 93 N.J.L. 191 (E. & A. 1919). 

Whether wild animals are said to be nuisance per se, ultra hazardous or abnormally dangerous, exposure of public to them creates serious risk of harm to others which cannot be eliminated by exercise of utmost care and the liability of all those producing that exposure shall be absolute. Eyrich v. Earl, 203 N.J. Super. 144 (App. Div. 1985). CHARGE 5.75 ― Page 3 of 3 

Scientific and social progress sometimes reasonably require a reduction in personal comfort; on the other hand, fact that device represents a scientific advance and has social utility does not mean that it is permissible at any cost. Rose v. Chaikin, 187 N.J. Super. 210 (Ch. Div. 1982). 

B. Blasting 

A person or corporation engaged in blasting operations becomes liable for damages to neighboring properties where such damage is proximately caused by such blasting operations. 

The defendant is liable for damages thus caused by its blasting operations even though it took reasonable precautions to prevent damage to the neighboring properties. 

Before you can find a verdict in favor of the plaintiff, __________________, and against the defendant, __________________, on the plaintiffs’ claim, you must find from the evidence: 

1. That the plaintiff was the owner of the property [describe property]; 

2. That the defendant actually engaged in blasting operations, causing explosives to be discharged [at the time and place alleged]; 

3. That the plaintiff’s building [or other property] was damaged; 

4. That such damage was proximately caused by the defendant’s blasting. 

Case: 

Berg v. Reaction Motors Div., 37 N.J. 396 (1962). 

5.74 DUTY OF TEACHERS AND SCHOOL PERSONNEL TO STUDENT Civil model jury charge

CHARGE 5.74 ― Page 1 of 2 

 5.74 DUTY OF TEACHERS AND SCHOOL PERSONNEL TO STUDENT (Approved 9/80) 

School personnel owe a duty to exercise reasonable care for the safety of students entrusted to them. This duty extends to supervisory care required for the student’s safety or well-being as well as to reasonable care for the student at school-sponsored activities in which the student participates. 

The standard of care is that degree of care which a person of ordinary prudence, charged with comparable duties, would exercise under the circumstances.1 

The duty may be violated not only by the commission of acts but also in the neglect or failure to act. 

The theory behind the duty is that the relationship between the child and school authorities is not a voluntary one but is compelled by law. The child must attend school and is subject to school rules and discipline. In turn, the school authorities are obligated to take reasonable precautions for his/her safety and well-being.2 

1 Caltavutro v. Passaic, 124 N.J. Super. 361 at 366 (App. Div. 1973). 

2 Jackson v. Hankinson & Bd. of Ed. of Shrewsbury, 51 N.J. 230 (1968). CHARGE 5.74 ― Page 2 of 2 

3 Titus v. Lindberg, 49 N.J. 66 (1967). 

The school personnel are accountable for injuries resulting from failure to discharge that duty. 

A teacher owes his/her pupils the duty of supervision and will be liable for injuries caused by failure to discharge that duty with reasonable care.3 

5.73 CARRIERS FOR HIRE Civil model jury charge

CHARGE 5.73 ― Page 1 of 16 

 5.73 CARRIERS FOR HIRE (Approved 6/88) 

A. General Duty of Common Carriers to Passengers 

In this case (you may find from the evidence that) the defendant is what is known in the law as a common carrier. A common carrier undertakes for pay to carry all persons who apply for passage, so long as there is room and there is no legal excuse for refusing.1 Typical common carriers are railroads, street cars, subways, elevated railroads, buses, steamships, airplanes, taxicabs and others similarly engaged in public transportation. 

A common carrier must exercise a high degree of care to protect its passengers from dangers that are known or are reasonably foreseeable. Carriers must use the utmost caution to protect their passengers, the kind of caution that is characteristic of a very careful and prudent person. A carrier must act with the highest possible care consistent with the nature of the undertaking involved.2 

1. Disabled Passenger 

Indeed, where the carrier, through its employees, is aware that a passenger about to board has a physical disability, the carrier owes that passenger an even 

1 Weehawken Tp. v. Erie Railroad Co., 20 N.J. 572, 581 (1956). 

2 Harpell v. Public Serv. Coord. Transp., 20 N.J. 309, 316-317 (1956); Pope v. Veterans Taxi Serv., 97 N.J. Super. 274, 277 (App. Div. 1967). CHARGE 5.73 ― Page 2 of 16 

greater degree of attention than if the passenger had no physical disability.3 

3 Carter v. Public Serv. Coord. Transp., 47 N.J. Super. 379, 388-389 (App. Div. 1957). 

4 Harpell v. Public Serv. Coord. Transp., 20 N.J. 309, 316-317 (1956). 

5 Id. 

2. Against Acts of Fellow Passengers 

This includes the duty to protect passengers from wrongful acts of co-passengers, if the utmost care could have prevented those acts from injuring a passenger. If a danger was known or reasonably could have been anticipated, the carrier has a duty to protect its passengers from any injury that could be caused by that danger.4 

3. As to Acts of Third Parties 

This includes the duty to protect passengers from wrongful acts of a third party, if the utmost care could have prevented those acts from injuring a passenger. If a danger was known or reasonably could have been anticipated, the carrier has a duty to protect its passengers from any injury that could be caused by that danger.5 

4. Sudden Stops or Jerks 

A common carrier must exercise a high degree of care in starting, stopping or decreasing the speed of a vehicle so as not to imperil the safety of passengers. 

A violent stop, jerk or lurch which would have been unlikely to occur if CHARGE 5.73 ― Page 3 of 16 

6 Gaglio v. Yellow Cab Co., 63 N.J. Super. 206, 209 (App. Div. 1960). 

7 Miller v. Public Serv. Coord. Transp., 7 N.J. 185, 187-188 (1951). 

8 Exton v. Central Railroad Co., 62 N.J.L. 7, 12 (Sup. Ct. 1898), aff’d 63 N.J.L. 356 (E.& A. 

proper care had been exercised justifies the inference of negligence in the operation or maintenance of the vehicle or its brakes.6 

1. Overcrowding 

The overcrowding of a passenger vehicle without more is not in and of itself negligent. However, it is well recognized that overcrowding creates dangers. A common carrier must exercise a high degree of care to protect its passengers from reasonably foreseeable dangers arising from overcrowding.7 

B. When Carrier-Passenger Relationship Starts 

1. At Station 

A person becomes a passenger when he/she enters upon the station grounds of the carrier through the approaches provided by the carrier and that person has the intention of becoming a passenger. If you find that (a) plaintiff entered the station grounds through the usual way provided for passengers and, (b) plaintiff had the intention of becoming a passenger by paying the fair (either before or after entering the [train]), then plaintiff had become a passenger. He/She therefore was entitled to the care owed by a carrier to a passenger.8 CHARGE 5.73 ― Page 4 of 16 

1899). 

9 As to transferring from one vehicle to another, see Walger v. Jersey City Railway Co., 71 N.J.L. 356 (Sup. Ct. 1904), and Rourke v. Hershook, 3 N.J. 422, 425 (1950). 

10 Martin v. West Jersey Railroad Co., 87 N.J.L. 648, 649 (E. & A. 1915); Bernadine v. Erie Railroad Co., 110 N.J.L. 338, 343 (E. & A. 1933). 

11 Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955); Bohn v. Hudson & Manhattan Railroad Co., 16 N.J. 180, 185 (1954). 

2. Boarding Vehicle9 

A person becomes a passenger when he/she boards the carrier’s vehicle, intending to become a passenger, and the carrier actually or impliedly consents to the person becoming a passenger. The person must be present at a proper time and in a proper manner and at some place under the control of the carrier to allow the carrier to have the opportunity to exercise the degree of care which the law requires on behalf of the passenger. The carrier must know the person intends to board the vehicle. Knowledge by the carrier may be either actual or what a reasonable carrier should have been aware of by reason of the acts and conduct of the person and by the facts and circumstances presented.10 

C. Duty as to Transportation Facilities 

A common carrier has a duty to exercise reasonable care in the construction and maintenance of station buildings, platforms and approaches, so that they are reasonably safe for passengers to use them.11 Passengers have a right to assume CHARGE 5.73 ― Page 5 of 16 

12 Bohn v. Hudson & Manhattan Railroad Co., 16 N.J. 180, 185 (1954). 

13 Ibid. 

14 Karmazin v. Penna. Railroad Co., 82 N.J. Super. 123, 130 (App. Div. 1964). 

15 Id. at 130-131. 

that those facilities are reasonably safe.12 If a carrier fails to meet this duty — by constructing or maintaining the property so as to make it likely to be a source of danger to passengers and others lawfully using the station13 — then the carrier is liable to persons who enter the facilities in response to the carrier’s invitation and are then injured as a result of the carrier’s negligence. 

[Add the following paragraph if a danger existed due to weather:] 

If there is a danger to passengers from the effects of weather, for example, a slippery condition due to ice, if that danger reasonably could be anticipated by the carrier, the carrier has a duty of a high degree of care to its passengers.14 In deciding whether the carrier met its duty, you should understand that the carrier must have had reasonable time to remove or remedy the condition resulting from the effects of weather.15 CHARGE 5.73 ― Page 6 of 16 

16 Horelick v. Penna. Railroad Co., 24 N.J. Super. 413, 417 (App. Div. 1953), aff’d, 13 N.J. 349, 354 (1953). 

17 After stating general duty, see Model Civil Charge 5.30A. 

18 Meelhein v. Public Serv. Coord. Transp., 121 N.J.L. 163, 164 (E.&A. 1938). 

19 Snell v. Coast Cities Coaches, 15 N.J. Super. 595, 599 (App. Div. 1951). 

[Add the following paragraph when carrier does not own or control facilities:] 

The carrier owes that duty of reasonable care to passengers even if it does not own or control the facilities. That duty cannot be changed by any agreement between the carrier and the terminal company.16 

D. Duty Owed on Discharge of Passenger17 

1. Place of Stopping Vehicle 

This includes the duty to select a reasonably safe place for the passenger to get off the vehicle and leave. If you find that the carrier, in selecting a place to unload plaintiff, failed to exercise its high degree of care, and as a result that brought about his/her injuries, you should find for plaintiff.18 But, understand, that a common carrier does not have a duty to anticipate every uneven surface or defect in the road or alongside of the road, and then stop the vehicle to avoid the remote possibility of a passenger stepping on some uneven surface or in a depression which, even though the carrier exercised reasonable watchfulness, did not appear to be dangerous.19 CHARGE 5.73 ― Page 7 of 16 

20 Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955). 

21 The statutory limitation on liability, N.J.S.A. 48:12-152, only applies to a railroad company, not to its employees. Potter v. Finch & Sons, 76 N.J. 499, 503 (1978). 

22 Benedict v. Podwats, 109 N.J. Super. 402, 407 (App. Div. 1970), aff’d 57 N.J. 219 (1970): “Indeed, the ascertainment of that status is an essential preliminary to the application of the 

2. Leaving Station 

This includes the duty to use reasonable care to provide a safe means for passengers to exit the station. The duty to passengers does not end when the passengers are safely carried to their destination, but continues on while they are leaving the station where they got off the vehicle.20 

E. Persons on Railroad Tracks 

Plaintiff says that he/she was injured when he/she was hit by a moving train. The railroad company21 claims that it lived up to its duty to plaintiff and, additionally, plaintiff was more responsible for the accident than it was. The first decision you’re going to have to make is what plaintiff’s status was, what category plaintiff was in when he/she was on the railroad tracks.22 The law says that when a person is on another’s property, that person falls into one of three possible categories: he/she is an invitee or a licensee or a trespasser. So when I say you must decide what status plaintiff had when the accident took place, that means that you are to determine whether plaintiff was an invitee, a licensee or a trespasser. That is important because, depending on your decision as to plaintiff’s status, there CHARGE 5.73 ― Page 8 of 16 

standard of care to be exercised by the land occupier.” 

23 Daggett v. DiTrani, 194 N.J. Super. 185, 189 (App. Div. 1984). 

24 Id. at 189-190. 

25 Handelman v. Cox, 39 N.J. 95, 105-110 (1963). Modify language of charge if the railroad company is possessor, but not owner, of railroad tracks. 

are different duties or standards of care that the railroad company was required to meet. In other words, if plaintiff was an invitee, the railroad company was obliged to meet a particular duty — to act in a certain way — toward plaintiff; if plaintiff was a licensee, there is a different duty that applied; and if plaintiff was a trespasser, then the railroad company owed a third kind of duty to him/her. 

I begin by describing what an invitee, a licensee and a trespasser each is. As you will see, the proper category for a particular person is determined by the circumstances that brought him or her onto another’s property.23 

An invitee is a person who is on another’s property for the benefit of the property owner,24 or because his/her visit was induced and encouraged by the owner.25 For example, if I am a homeowner and you are delivering fuel oil to me at my home, when you come onto my property, you would be an invitee since you would be there, at least in part, for my benefit, which is that I now have fuel oil available as I need it. Or, as another illustration, if I am a merchant operating a store open to the public, I am encouraging you to come into my store by being open to the public. Again, you would be an invitee. CHARGE 5.73 ― Page 9 of 16 

26 Snyder v. I. Jay Realty Co., 30 N.J. 303, 312 (1959). 

27 Ibid. 

28 N.J.S.A. 48:12-152. See also to Demetro v. Penna. Railroad Co., 90 N.J. Super. 308 (App. Div. 1966), where child held not a trespasser when she was killed after going onto tracks to push three smaller children from path of train. 

The next category is that of a licensee. A licensee is a person who, one, is not an invitee, and, two, is permitted to go onto another’s property.26 Routine customs and practices often allow you to decide whether a land owner permits or is willing to have another party come on to the property.27 Those customs may be such that it is entirely reasonable for someone to assume that his/her presence is permitted unless he/she is told otherwise. An example of a licensee might be someone who often cuts across a corner of one’s property as a shortcut, where there is no fence to prevent that. Or a licensee might be a neighbor who goes next door to borrow some tools or pay a social visit. 

The final category is a trespasser. A trespasser is someone who goes onto or remains on another’s property and is neither an invitee nor a licensee. A trespasser would be someone who is not on another’s property for the benefit of the owner, and who is neither invited nor allowed to go onto the property. We do have a law in New Jersey which says that it is unlawful for a person other than a railroad employee to walk along railroad tracks.28 However, merely because someone is on railroad tracks does not mean necessarily that it was unlawful. Look at all the CHARGE 5.73 ― Page 10 of 16 

29 By analogy to Baer v. Sorbello, 177 N.J. Super. 182, 184-185 (App. Div. 1981). 

30 See Eden v. Conrail, 87 N.J. 467 (1981), where plaintiff suffered an epileptic seizure while standing on railroad platform awaiting train and fell onto train tracks. 

31 Handleman v. Cox, 39 N.J. 95, 111 (1963). Note should be made of the potential assertion that a railroad can be classified as a dangerous instrumentality. See Renz v. Penn Central Corp., 87 N.J. 437, 462 (1981). 

circumstances29 under which plaintiff came to be on the railroad tracks. Did he/she mean to go onto the tracks or was he/she pushed onto the tracks? Did he/she become ill and, as a result, fall onto the tracks?30 

To repeat, the first thing you must decide is what plaintiff’s status was when he/she was on the railroad tracks. You do that by looking at all the evidence and then deciding was it more likely than not that plaintiff was an invitee; if not, then you judge whether all the evidence shows it was more likely than not that plaintiff was a licensee; if not, then plaintiff must have been a trespasser. 

If you decide that plaintiff was an invitee, then the railroad company had a duty to exercise ordinary and reasonable care to protect plaintiff. It had to take steps which were reasonable and prudent for plaintiff’s safety.31 CHARGE 5.73 ― Page 11 of 16 

32 Snyder, supra, at 316. 

33 Reilly v. Spiegelhalter, 100 N.J. Super. 276, 281-282 (App. Div. 1968). 

34 Ibid. 

35 The Supreme Court, in Renz, supra, at 463, expressly did not determine the nature of the standard of care or if the railroad is a dangerous instrumentality. 

36 Renz, supra, at 461. Wytupeck v. Camden, 25 N.J. 450, 463 (1957). 

If you decide that plaintiff was a licensee, then the railroad company had a duty to not perform acts which are willfully injurious.32 In other words, the railroad could not intentionally do something that would be highly likely to cause injury or death.33 And where there was a concealed danger known to be present, the railroad company was bound to give warning of it.34 

If you decide that the plaintiff was a trespasser,35 then the railroad company had a duty 

[Where plaintiff is adult trespasser] 

to refrain from acts which are willfully injurious, that is, the railroad could not intentionally set things up so as to make it highly likely that death or injury would result.36 

[Where plaintiff is infant trespasser] 

to the extent that it is foreseeable that a child would intrude onto the railroad tracks, to exercise reasonable care so as to protect a youngster against an unreasonable risk CHARGE 5.73 ― Page 12 of 16 

37 DeRobertis v. Randazzo, 94 N.J. 144, 157 (1983). 

38 Simmel v. N.J. Coop Co., 28 N.J. 1, 9 (1958). 

39 In Renz, supra, at 460, it was held that a trespasser is at least minimally negligent within scope of railroad immunity act, N.J.S.A. 48:12-152. 

of harm.37 What is reasonable care is measured by the foreseeability of a child trespassing and the extent of risk of harm. As the foreseeability of trespass increases and as the risk of harm increases than the more reasonable care must be used.38 

If a least five out of six of you have judged that the railroad company did not live up to its duty of care to plaintiff, you will then have decided that the company was negligent. The next question for you to decide is whether that negligence proximately caused plaintiff’s injury. By that, I simply mean that something happened to set the chain of events in motion to naturally and probably make the accident take place; in other words, was the company’s negligence, assuming you find it was negligent, a substantial factor in producing the accident? 

If you decide that the train company was negligent and that that negligence proximately caused plaintiff’s injury, you’re next going to have to determine the correctness of the company’s claim that plaintiff was also negligent. 

If you find that plaintiff was a trespasser, then I tell you as a matter of law that plaintiff was to some extent negligent.39 You then must go on to compare the CHARGE 5.73 ― Page 13 of 16 

40 Court should continue by charging principles of comparative negligence under N.J.S.A. 2A:15-5 et seq. 

41 Eden, supra, at 472-473. 

42 Eden, supra, at 472-473. 

43 Court should continue by charging principles of comparative negligence under N.J.S.A. 2A:15-5.1 et seq. 

44 Mershon v. Hobensack, 22 N.J.L. 372, 377 (Sup. Ct. 1850). 

negligence of the parties.40 

If you find that plaintiff was not a trespasser, it may still be that plaintiff was to some extent negligent. If you decide that plaintiff was not on the railroad tracks voluntarily, he/she was not necessarily negligent.41 But, based on all of the circumstances other than plaintiff’s involuntary presence on the tracks, such as the reasons leading up to plaintiff being in a position to end up on the tracks, not of his/her own accord, you must decide whether the train company has shown by the greater weight of the evidence that plaintiff was him/herself negligent.42 If you find that plaintiff was negligent to any extent, and that that negligence proximately caused his/her injury, as I have described that concept to you, you then must go on to compare the negligence of the parties.43 

F. Liability for Loss of or Damage to Goods Shipped 

In this case (you may find from the evidence that) the defendant is what is known in the law as a common carrier. A common carrier undertakes for pay to carry the goods of all persons who want to ship them.44 Typical common carriers CHARGE 5.73 ― Page 14 of 16 

45 NOPCO Chem. Div. v. Blaw-Knox Co., 59 N.J. 274, 281 (1971); W.J. Casey Trucking v. G.E., 151 N.J. Super. 151, 155 (Law Div. 1977). 

46 Although there are four exceptions, the court should charge only the exception which factually may apply to the case. 

47 Jos. Toker Co. v. Lehigh Valley Railroad Co., 12 N.J. 608, 612 (1953); see also, Silver Lining, Inc. v. Shein, 37 N.J. Super. 206, 211-212 (App. Div. 1955). 

are railroads, trucking companies, boats, airplanes and others similarly engaged. 

A common carrier is absolutely and totally responsible for the loss of or damage to property given to the carrier for transportation,45 with an exception that I shall describe to you in a moment.46 The shipper — that is, the person who ships the goods using a common carrier — need only prove, one, delivery of the property in good condition to the common carrier and, two, either failure to return the goods or the return of those goods in a damaged condition. If these are shown and there is no other proof, plaintiff is entitled to your verdict.47 Due care or lack of negligence by the carrier is not meaningful. 

I told you a minute ago that there is an exception which can excuse a carrier from its absolute responsibility to a shipper. I want to describe this to you now. 

[Charge Appropriate Exception, as Applicable, to Facts of Case:] 

[1. The exception comes about if the loss or damage was caused solely by an act of God. An act of God is a natural event such as lightning, violent winds or seas or other accident of nature without any intervention by people. If the loss CHARGE 5.73 ― Page 15 of 16 

48 NOPCO Chem. Div. v. Blaw-Knox Co., supra, at 281-282. 

or damage is caused by human conduct along with an act of God, the carrier is liable. The carrier is excused only if an act of God solely brought about the loss or damage.] 

[2. The exception comes about if the loss or damage was caused solely by public enemies, that is, an act of war. In that event, the carrier is not liable.] 

[3. The exception comes about if the loss or damage was caused solely by the inherent nature of the property. By that I mean that the goods were of such a nature as to spoil or deteriorate by the mere passage of time even though they are carried in a manner suitable for their transportation.48 For example, if eggs are being shipped, and if you find that eggs spoil with the passage of time, and if the carrier shipped the eggs in an appropriate and suitable manner, for instance, in a refrigerated truck, but despite that and solely because of the length of the trip and the time that it took, the eggs spoiled, then the carrier would not be liable. But if you find that the carrier delayed the transportation and that caused too much time to pass, then the carrier would be liable. The carrier has a duty to carry the shipment safely with due regard to its perishable nature.] CHARGE 5.73 ― Page 16 of 16 

49 W.J. Casey Trucking v. G.E., 151 N.J. Super. 151, 157-158 (Law Div. 1977); Lincoln Farm Products Corp. v. Central Railroad Co., 81 N.J. Suer. 161, 166-168 (App. Div. 1963). 

50 To be charged only if fourth exception is given. For basis, see Reich v. McGill, 119 N.J.L. 358, 361 (E.&A. 1937); Hill v. Adams Express Co., 82 N.J.L. 373, 377 (E.&A. 1911). 

[4. The exception comes about if the loss or damage was caused by the fault of the shipper. If the shipper packs the goods improperly and that improper packing is not apparent to the carrier by ordinary observation and the loss or damage results from the improper packing, the carrier is not liable. But if the improper packing is apparent and the carrier accepts the goods without a special agreement limiting its liability, the carrier is liable.49] 

The need or burden to prove that the loss or damage was caused solely by the exception that I have described to you is upon the carrier. The carrier must show, by the greater weight of the evidence, that the exception applies. [The need to prove that there was an agreement limiting its liability is also on the carrier and that agreement must be interpreted most favorably to the shipper and against the carrier.50]