7.32 COMPARATIVE
NEGLIGENCE: INTERROGATORIES Civil Model Jury Charge NOTE TO JUDGE
The interrogatories selected by the Committee for
submission to the jury on the issue of comparative negligence represent a
compromise between the extremely general and the extremely specific type of
interrogatory and have been included in the model charge because it was thought
that they would have the widest possible application. Questions more general or more specific in
nature could be and should be utilized in a particular case where either more
specificity or more generality is required.
Thus, in a case where proximate cause is not a seriously contested
question, the court might properly choose to combine the questions of
negligence and proximate cause into one question. The same would be true with respect to
questions bearing on plaintiff's negligence and causal relationship to that
question and the cause of the accident.
This charge deals only with the simplest of
factual situations wherein one plaintiff is suing one defendant. Where a counterclaim is asserted, the same
six questions should be submitted with an additional question being put to the
jury in such a case requiring them to evaluate the defendant's damage claims. In cases dealing with multiple plaintiffs'
injuries, question 3, 4 and 6 would have to be submitted with respect to each
additional plaintiff. For each
additional defendant, sued as a joint-tortfeasor, interrogatory questions 1 and
2 would have to be submitted for each defendant so joined.
1. Follow
usual form of charge with respect to the nature of the jury's function as
distinguished from the court's obligations in the trial of the case, including
charges concerning credibility, use of pretrial discovery devices, expert
witnesses, and the like.
2. Follow
with the normal charge concerning burden of proof in the context of the
elements of the plaintiff's case with respect to which he or she has the burden
of proof.
3. Define
the term "negligence" generally and as applied to this specific case,
as you would in a normal charge involving concepts of negligence and proximate
cause.
4. The Committee
recommends that the term "contributory negligence" be omitted and the
term "plaintiff's negligence" used in its place. Define this term in the same manner in which
contributory negligence has heretofore been defined, leaving out any portions
of that model charge which suggest to the jury that degrees of negligence
between a plaintiff and a defendant are irrelevant.
5. This
portion of the charge should be followed by a more detailed description of the
jury's function with respect to evaluating the quantum of negligence on the
part of all parties, comparing their respective degrees of fault with respect
to the accident, and computing or translating these degrees of fault into a
percentage of the total amount of negligence causing the accident.
6. Read the specific interrogatories (section
B below) to the jury together with an explanation of each one (section A
below).
7. Define
for the jury the several measures of damages applicable to this specific case
and follow with an explanation that the full amount of plaintiff's loss is to
be calculated irrespective of fault, or degrees thereof, or irrespective of
whose obligation the payment of damages is finally determined to be.
A. Explanation of Interrogatories
I
have just described to you the various concepts with which you are going to
have to deal in deciding the present case.
To assist you in reaching a verdict you will have with you in the jury
room a form consisting of questions calling for certain answers. Your duty will be discharged by answering
such of these questions as under the evidence and the court's instructions it
becomes necessary to answer in order to arrive at a complete verdict.
Question
#1 deals with plaintiff's allegations as to defendant's negligence. In order to answer this question you are
going to have to decide whether the plaintiff has sustained his/her burden of
proof with respect to defendant's negligence.
I am going to read to you question #1; it reads:
Was
defendant, ______________, negligent?
Yes
__________
No __________
If
you conclude that plaintiff has failed to sustain the burden of proving
defendant's negligence, the answer to question #1 would be "No"; you
would check the appropriate answer and then you have no need to answer further
questions but you would return your verdict at this point. If, however, on the other hand, you conclude
that plaintiff has proven defendant's negligence, you will answer question #1
"Yes" and proceed to answer question #2.
Question
#2 deals with plaintiff's allegations that defendant's negligent conduct was a
proximate cause of the accident (injuries) to plaintiff. Question #2 reads as follows:
Was the negligence of defendant,
___________________, a proximate cause of the accident?
Yes
__________
No __________
If
you find the plaintiff has failed to prove that the negligent conduct of the
defendant was a proximate cause of the accident, then you will answer question
#2 "No" and check the appropriate answer on the form. If that should be your answer to question #2,
you would not need to answer further questions but would return the verdict at
this point. However, if you conclude that
the plaintiff has met the burden of proving that defendant's negligent conduct
was a proximate cause of this accident, then you will answer question #2
"Yes", check the appropriate answer, and proceed to deal with
question #3.
Question
#3 deals with defendant's allegation that plaintiff was negligent. Question #3 reads as follows:
Was plaintiff negligent?
Yes
__________
No __________
If
you find the defendant has failed to meet its burden of proving plaintiff's
negligence, you will answer question #3 "No", check the appropriate
answer to question #3, and then pass directly on to the damage question,
question #6, which is described on the form as a "damage
question". If, on the other hand,
you find the defendant has proven the plaintiff was negligent, you will answer
question #3 "Yes" and go on to deal with question #4.
Question
#4 deals with defendant's allegations that plaintiff's negligence was a
proximate cause of the accident.
Question #4 reads as follows:
Was
plaintiff's negligence a proximate cause of the accident?
Yes
__________
No __________
If
you find that the defendant has met its burden of proving that the plaintiff's
negligence was a proximate cause of this accident, then you will answer question
#4 "Yes", check the appropriate answer on the form and return your
verdict at this point.[1] However, if you find, on the other hand, that
defendant has failed to prove plaintiff's negligent conduct was a proximate
cause of the accident, then you will answer question #4 "No" and go
on to answer question #6, which is the question requiring evaluation of
damages.
After
you have answered those questions these instructions have required you to
answer, examine your answers. If you
find that the answers to all four questions are "Yes", then you will
have to answer question #5. In other
words, if you find from your answers that you have concluded that both the
defendant and the plaintiff were negligent and that their respective negligent
conduct was a proximate cause of the accident, then you are going to have
another task to perform and another question to answer - question #5. You are going to have to evaluate the conduct
of both the plaintiff and the defendant with a view to determining the degree
of fault attributable to each with respect to this accident, and express that
degree of fault in terms of a percentage figure — taking the combined fault of
all parties to this lawsuit as being 100%.
In
other words, you shall assume that the negligence of all parties to this
lawsuit is taken to be 100%; then determine what percentage of that total
amount of negligence is to be attributable to defendant and what percentage of
that total negligence is to be attributable to the plaintiff. Your answer will be expressed in percentage
terms and the total of all percentages which you assign to each party must add
up to 100%.
Thus, I will now read to
you question #5. You will note that it
recites the instructions that I have just given you in oral form. Question #5 reads as follows:
If
you find that you have answered all the previous four questions
"Yes", i.e., you have found that both the plaintiff and the
defendant were negligent and that their respective negligent conduct
proximately caused the accident, then you must answer this question — taking
the combined negligence of all parties to this lawsuit which proximately
contributed to the happening of this accident as being 100% — what percentage
of such total negligence is attributable to:
a. Defendant _______________ Answer _______%
b. Plaintiff _______________ Answer _______%
TOTAL
100 %
[NOTE: The question and the instructions will
have to be modified to accommodate the number of claims, the number of
plaintiffs, and the number of defendants.]
If
you have determined that the defendant was solely negligent or that both
plaintiff and defendant were negligent, it then becomes your duty to determine
the amount of money which would reasonably compensate plaintiff for the
injuries proximately caused by the accident in question. For that reason, I am going to give you
instructions with respect to the measure of damages in a case such as the
present one, for your guidance, in the event you need to consider this
question.
[Proceed
with your charge on damages.]
After having considered the evidence in
this case bearing on plaintiff's injuries and their consequences, you will
determine what amount of money would fairly and reasonably compensate plaintiff
for his/her injuries and losses proximately resulting from the accident in
accordance with the law as just given you and state the dollar amount of your
conclusion in answer to question #6 which, you will note, requires a lump sum
dollar amount. The evaluation of
plaintiff's injuries and damages in money terms should be made irrespective of
which party is at fault or to what degree, or who is ultimately to pay any damages
that may be assessed. Here, you, members
of the jury, are only concerned with evaluating plaintiff's injuries and
damages without regard to whose fault proximately caused them. Question #6 reads as follows:
What
amount of money would reasonably
and
fairly compensate the plaintiff
for
his/her injuries and losses?
$______________
B. Interrogatories
As
to Liability
1. Was defendant, ___________________,
negligent? Yes
____ No ____
2. Was the negligence of defendant,
__________________,
a proximate
cause
of the accident? Yes
____ No ____
3. Was plaintiff negligent? Yes ____
No ____
4. Was plaintiff's negligence a proximate
cause
of the accident? Yes
____ No ____
5. If
you find that you have answered all the previous four questions Yes, i.e.,
you have found that both the plaintiff and the defendant were negligent and
that their respective negligent conduct proximately caused the accident, then
you must answer this question — taking the combined negligence of all parties
to this lawsuit which proximately contributed to the happening of this accident
as being 100% — what percentage of such total negligence is attributable to:
a. Defendant ________________ Answer _______%
b. Plaintiff ________________ Answer _______%
TOTAL
100 %
As
to Damages
6. What
amount of money would reasonably
and fairly compensate the
plaintiff
for his/her injuries and
losses?
