7.31 COMPARATIVE
NEGLIGENCE: ULTIMATE OUTCOME Civil Model Jury Charge
I will
explain to you
the effect
of these percentages.
In order
for the plaintiff to recover against any defendant,
plaintiff's percentage 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. 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. [1],
[2],
[3],
[4],
[5],
[6],
[7],
[8],
[9],
[10]
[1] The ultimate outcome charge is required where
the jury apportions fault between plaintiff and
one or more defendants.
It is not to be used to tell a
jury the effect
of its apportioning
fault between or among joint tortfeasors. Brodsky
v.
Grinnel1 Haulers, Inc.,181 N .J. 102, 122 (2004). (Held
reversible error as " irrelevant"
to jury's function
of apportioning fault percentages and
"highly
prejudicial" to defendants).
[2] 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 "palpably unreasonable
conduct" 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 causes of his/her injuries rather than as a cause of the accident.
[3] As to the appropriateness of apportioning fault among settling and non-settling
defendants, See Young v. Latta, 123 N.J. 584 (1991).
[4] As to the appropriateness of
trier of fact allocating percentage of fault to Defendant dismissed from medical malpractice case for failure to timely serve Affidavit of Merit, See Burt v. W. Jersey Health Systems, 339 N.J. Super 296
(App. Div. 2001).
[5] As to the inappropriateness of trier of fact conside1ing negligence of employer immune from suit because of Workers' Compensation Act, See Ramos v. Browning Ferris Industries of Southern Jersey, Inc., I 03 N.J. 177 ( l 986).
[6] As to the appropriateness of trier of fact to determine comparative negligence of party dismissed following discharge in bankruptcy.
See Brodsky, Id at 116.
[7] For cases where comparative negligence and intentioned conduct are at issue and should be apportioned by a jury, See Steele v. Kerrigan, 148 N.J. l (1997); See also Blazic v. Aldrich, l24 N.J. 90 (1991).
[8] For inappropriateness of comparative negligence in product liability context. See Johansen v. Makita U.S.A., Inc., 128 N.J. 86 (1992). See also Cavanaugh v. Skil Corp ., 331 N.J. Super 134, 189 (App. Div. 1999), aff'd 164 N.J. l , 4 (2000) (Suter
rule applies in all workplace contexts, including construction sites). As to applicability of Suter supra to negligence in a factory setting, see Green v. Sterling Extender Corp.,
95 N.J. 263,(1984) and Ramos v. Silent Hoist and Crane Co., 256 N.J. Super 467 (App. Div. 1992).
[9] For appropriateness of comparative negligence appot1ioning in cases involving public entities, See Frugis v. Bracigliano, 177 N.J. 250 (2003). (Special charge for duty of school boards to ensure students safety from foreseeable harm of negligent and intentional conduct).
[10] As to the appropriateness of jury or judge to apportion fault in an environmental action and the effect of apportionment, See N.J.S.A. 2A:15-5 d (1) (2) (3).
