The defendant contends that the accident was caused by an act of God without any negligence on his/her part and that he/she is thereby exonerated from responsibility for the plaintiff's injuries (or damage).
An act of God is an unusual, extraordinary and unexpected manifestation of the forces of nature, or a misfortune or accident arising from inevitable necessity which cannot be prevented by reasonable human foresight and care. If plaintiff's injuries were caused by such an event without any negligence on the part of the defendant, the defendant is not liable therefor.
However, if the defendant has been guilty of negligence which was an efficient and cooperative cause of the mishap, so that the accident was caused by both the forces of nature and the defendant's negligence, the defendant is not excused from responsibility.
In other words, if the defendant was negligent and his/her negligence contributed as an efficient and cooperating cause to the happening of the mishap and the injuries which proximately resulted therefrom, it is immaterial that an act of God was also a concurring cause.
Cases:
An "act of God" comprehends all misfortune and accidents arising from inevitable necessity which human prudence could not foresee or prevent. Meyer Bros. Hay & Grain Co. v. National Malting Co., 124 N.J.L. 321 (Sup. Ct. 1940).
An "act of God" is an unusual, extraordinary, sudden and unexpected manifestation of the forces of nature which cannot be prevented by heman care, skill of foresight. 38 Am. Jur., Negligence, Sec. 7, 649; Carlson v. A. & P. Corrugated Box Corp., 72 A.2d. 290, 364 Penna. 216 (1950).
The significance of an "act of God" as a defense is that when it is the sole cause of damage, it exempts defendant from liability for negligence. Meyer Bros. Hay & Grain Co. v. National Malting Co., 124 N.J.L. 321 (Sup. Ct. 1940).
It is the well established principle that where a defendant has been guilty of negligence which is an efficient and cooperating cause of the mishap, the defendant is not exonerated from liability by proof that an "act of God" was a concurring cause. Cora v. Trowbridge Outdoor Adv. Corp., 18 N.J. Super. 1 (App. Div. 1952).
When there has been a finding of wrongdoing which is an efficient and cooperative cause of the mishap, the wrongdoer is not relieved from liability by proof that an "act of God" was a concurring cause. Hopler v. Morris Hills Regional District, 45 N.J. Super. 409 (App. Div. 1957). Reducing this principle to the terseness of a maxim, "he whose negligence joins with an 'act of God' in producing injury is liable therefor." 38 Am. Jur. Negligence. Sec. 65, 719; Cora v. Trowbridge Outdoor Adv. Corp., supra, p. 4.
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Model Civil Jury Charges
Friday, August 10, 2007
5.10D RES IPSA LOQUITUR
In any case in which there is a claim that the defendant was negligent, it must be proven to you that the defendant breached a duty of reasonable care which was a proximate cause of the plaintiff's injuries.See footnote 111
Generally, the mere fact that an accident happened, with nothing more, does not provide proof that the accident was a result of negligence.See footnote 2
In a negligence case, the plaintiff must prove that there was some specific negligent act or omission by the defendant which proximately caused the accident. However, in certain circumstances, the very happening of an accident may be an indication of negligence.
Thus, the plaintiff may, by providing facts and circumstances, establish negligence by circumstantial evidence. If the instrumentality causing the injury was in the exclusive control of the defendant, and if the circumstances surrounding the happening were of such a nature that in the ordinary course of events the incident would not have occurred if the person (entity) having control of the instrumentality had used reasonable care under the circumstances, the law permits, but does not require, the jury to infer negligence from the happening of the incident.
Plaintiff's voluntary actSee footnote 3 or neglect contributing to the occurrence prevents the inference from being drawn. However, the mere fact that plaintiff was present does not defeat the inference. Rather, you must find that plaintiff's action or negligent was a proximate cause of the occurrence to prevent the inference.See footnote 4
For instance, assume someone was walking on a sidewalk under a piano, which was being lifted by a crane to go into the upper floor, and assume further that the piano fell onto the pedestrian. The falling piano would be an indication of negligence, since pianos do not usually fall from the sky without someone being negligent. The mere fact that the pedestrian was present is not a voluntary act or neglect.See footnote 5
In summary, if you find by the greater weight of the evidence that at the time of the incident (1) the defendant had exclusive control of the instrumentality causing the occurrence, (2) that the circumstances were such that in the ordinary course of events the incident would not have occurred if the defendant had exercised reasonable care and (3) plaintiff's voluntary act or negligence did not
contribute to the occurrence, then you may infer that the defendant was negligent.See footnote 611
[WHERE "EXCLUSIVE CONTROL" IS IN ISSUE]
As to the requirement of "defendant having exclusive control", this implies that the control was of such type that the probabilities that the negligent act was caused by someone else is so remote that it is fair to permit an inference of negligence by defendant.See footnote 711
11
If you infer that the defendant was negligent, then the plaintiff need not point out any specific conduct or inaction by the defendant that was a breach of his/her duty of reasonable care. This inference was drawn, even if plaintiff has introduced some evidence of defendant's specific negligence.
[IF DEFENDANT PROVIDES EXPLANATION, ADD:]
If you do infer that the defendant was negligent, then you should consider the defendant's explanation of the accident. If the explanation causes you to believe that it is no longer reasonable to infer that the defendant was negligent, then the defendant is entitled to your verdict.See footnote 8 But if giving fair weight to all of the worthwhile evidence, you decide that it is more likely than not that the defendant was negligent, then your verdict should be for the plaintiff.
TREATISE REFERENCES
3 Modern Tort Law (1977), by James A. Dooley, §48.21, p. 349. 4 F. Harper and F. James, The Law of Torts, (2nd Ed.) §19.12, p. 78.
"The inference arising from a res ipsa loquitur case may, however, be destroyed by sufficiently conclusive evidence that it is not in reality a res ipsa loquitur case. If the defendant produces evidence which is so conclusive as to leave no doubt that the event was caused by some outside agency for which he/she was not responsible, or that it was of a kind which commonly occurs without negligence on the part of anyone and could not be avoided by the exercise of all
reasonable care, he/she may be entitled to a directed verdict." 2 Restatement (Second) of Torts §328 E, comment o, p. 166.
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Footnote: 1 Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288 (1984).
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Footnote: 2 Buckelew v. Grossbard, 87 N.J. 512, 525 (1981).
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Footnote: 3 Stec. v. Richardson, 75 N.J. 304, 308 (1978); Rose v. Port of N.Y. Auth., 61 N.J. 129, 136 (1972); Vespe v. Chemirad Corp., 37 N.J. 56, 70-71 (1962); Kahalili v. Rosecliff Realty, Inc., 26 N.J. 596, 606 (1958).
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Footnote: 4 Refer to footnote number 6 below.
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Footnote: 5 Refer to footnote number 3 above.
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Footnote: 6 In the event of evidence the plaintiff did contribute to the occurrence but no evidence of contribution to the instrumentality, state at (3), "...that there is no indication in the circumstances that the object causing the injury was the result of plaintiff's neglect."
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Footnote: 7 Note that in Bornstein v. Metropolitan Bottling Co., 26 N.J. 263 (1958), the New Jersey Supreme Court held the doctrine of res ipsa loquitur applied to a defendant bottler who had delivered filled soda bottles to a luncheonette and where one of those bottles exploded and injured the plaintiff who was an employee of the luncheonette. The court found that even though possession and control of the bottles had been transferred to the luncheonette, there was no rational ground for imputing presumed negligence to the luncheonette where there was no suggestion of careless handling of the bottle by the luncheonette. Id. at 274. See J. Francis' pointed observation in concurrence at p. 275. Note also that the plaintiff has the burden of excluding the negligence of an intervening person in possession or control.
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Footnote: 8 In Bornstein, supra, at 273, the court noted that res ipsa loquitur "is not ordinarily applicable 'if it is equally probable that the negligence was that of someone other than the defendant,' but the plaintiff 'need not exclude all other persons who might possibly have been responsible where the defendant's negligence appears to be the more probable explanation of the accident.'" Quoting from Zentz v. Coca-Cola Bottling Co. of Fresno, 247 P. 2d 344 (Sup. Ct. Cal. 1952). See also Lynch v. Galler Seven-Up Pre-Mix Corp., 74 N.J. 146, 154 (1977).
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Model Civil Jury Charges
Generally, the mere fact that an accident happened, with nothing more, does not provide proof that the accident was a result of negligence.See footnote 2
In a negligence case, the plaintiff must prove that there was some specific negligent act or omission by the defendant which proximately caused the accident. However, in certain circumstances, the very happening of an accident may be an indication of negligence.
Thus, the plaintiff may, by providing facts and circumstances, establish negligence by circumstantial evidence. If the instrumentality causing the injury was in the exclusive control of the defendant, and if the circumstances surrounding the happening were of such a nature that in the ordinary course of events the incident would not have occurred if the person (entity) having control of the instrumentality had used reasonable care under the circumstances, the law permits, but does not require, the jury to infer negligence from the happening of the incident.
Plaintiff's voluntary actSee footnote 3 or neglect contributing to the occurrence prevents the inference from being drawn. However, the mere fact that plaintiff was present does not defeat the inference. Rather, you must find that plaintiff's action or negligent was a proximate cause of the occurrence to prevent the inference.See footnote 4
For instance, assume someone was walking on a sidewalk under a piano, which was being lifted by a crane to go into the upper floor, and assume further that the piano fell onto the pedestrian. The falling piano would be an indication of negligence, since pianos do not usually fall from the sky without someone being negligent. The mere fact that the pedestrian was present is not a voluntary act or neglect.See footnote 5
In summary, if you find by the greater weight of the evidence that at the time of the incident (1) the defendant had exclusive control of the instrumentality causing the occurrence, (2) that the circumstances were such that in the ordinary course of events the incident would not have occurred if the defendant had exercised reasonable care and (3) plaintiff's voluntary act or negligence did not
contribute to the occurrence, then you may infer that the defendant was negligent.See footnote 611
[WHERE "EXCLUSIVE CONTROL" IS IN ISSUE]
As to the requirement of "defendant having exclusive control", this implies that the control was of such type that the probabilities that the negligent act was caused by someone else is so remote that it is fair to permit an inference of negligence by defendant.See footnote 711
11
If you infer that the defendant was negligent, then the plaintiff need not point out any specific conduct or inaction by the defendant that was a breach of his/her duty of reasonable care. This inference was drawn, even if plaintiff has introduced some evidence of defendant's specific negligence.
[IF DEFENDANT PROVIDES EXPLANATION, ADD:]
If you do infer that the defendant was negligent, then you should consider the defendant's explanation of the accident. If the explanation causes you to believe that it is no longer reasonable to infer that the defendant was negligent, then the defendant is entitled to your verdict.See footnote 8 But if giving fair weight to all of the worthwhile evidence, you decide that it is more likely than not that the defendant was negligent, then your verdict should be for the plaintiff.
TREATISE REFERENCES
3 Modern Tort Law (1977), by James A. Dooley, §48.21, p. 349. 4 F. Harper and F. James, The Law of Torts, (2nd Ed.) §19.12, p. 78.
"The inference arising from a res ipsa loquitur case may, however, be destroyed by sufficiently conclusive evidence that it is not in reality a res ipsa loquitur case. If the defendant produces evidence which is so conclusive as to leave no doubt that the event was caused by some outside agency for which he/she was not responsible, or that it was of a kind which commonly occurs without negligence on the part of anyone and could not be avoided by the exercise of all
reasonable care, he/she may be entitled to a directed verdict." 2 Restatement (Second) of Torts §328 E, comment o, p. 166.
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Footnote: 1 Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288 (1984).
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Footnote: 2 Buckelew v. Grossbard, 87 N.J. 512, 525 (1981).
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Footnote: 3 Stec. v. Richardson, 75 N.J. 304, 308 (1978); Rose v. Port of N.Y. Auth., 61 N.J. 129, 136 (1972); Vespe v. Chemirad Corp., 37 N.J. 56, 70-71 (1962); Kahalili v. Rosecliff Realty, Inc., 26 N.J. 596, 606 (1958).
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Footnote: 4 Refer to footnote number 6 below.
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Footnote: 5 Refer to footnote number 3 above.
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Footnote: 6 In the event of evidence the plaintiff did contribute to the occurrence but no evidence of contribution to the instrumentality, state at (3), "...that there is no indication in the circumstances that the object causing the injury was the result of plaintiff's neglect."
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Footnote: 7 Note that in Bornstein v. Metropolitan Bottling Co., 26 N.J. 263 (1958), the New Jersey Supreme Court held the doctrine of res ipsa loquitur applied to a defendant bottler who had delivered filled soda bottles to a luncheonette and where one of those bottles exploded and injured the plaintiff who was an employee of the luncheonette. The court found that even though possession and control of the bottles had been transferred to the luncheonette, there was no rational ground for imputing presumed negligence to the luncheonette where there was no suggestion of careless handling of the bottle by the luncheonette. Id. at 274. See J. Francis' pointed observation in concurrence at p. 275. Note also that the plaintiff has the burden of excluding the negligence of an intervening person in possession or control.
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Footnote: 8 In Bornstein, supra, at 273, the court noted that res ipsa loquitur "is not ordinarily applicable 'if it is equally probable that the negligence was that of someone other than the defendant,' but the plaintiff 'need not exclude all other persons who might possibly have been responsible where the defendant's negligence appears to be the more probable explanation of the accident.'" Quoting from Zentz v. Coca-Cola Bottling Co. of Fresno, 247 P. 2d 344 (Sup. Ct. Cal. 1952). See also Lynch v. Galler Seven-Up Pre-Mix Corp., 74 N.J. 146, 154 (1977).
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Model Civil Jury Charges
5.10C UNDERTAKING VOLUNTARILY ASSUMED (pre-1984)
(1) One who in the absence of a legal obligation to do so voluntarily undertakes to render a service for the protection of the safety of another may become liable to him/her for the failure to perform, or the failure to exercise reasonable care in the performance of that service. His/Her responsibility, however, is only commensurate with the extent of his/her voluntary undertaking and his/her liability does not arise unless it appears from the evidence that his/her negligence had a proximate casual relationship to the occurrence of the mishap which brought about the injuries.
Cases:
Gudnestad v. Seaboard Coal Dock Co., 27 N.J. Super. 227 (App. Div. 1953); Wolcott v. N.Y. and L.B.R.R. Co., 68 N.J.L. 421 (Sup. Ct. 1902).
THE FOLLOWING MAY BE ALTERNATIVELY CHARGED WHERE APPLICABLE:
(2) Where a defendant has gratuitously undertaken to do an act or to perform a service recognizably necessary to another's bodily safety and there is reasonable reliance thereon, the defendant will be liable for the harm sustained by the other party resulting from defendant's failure to exercise reasonable care to carry out the undertaking.
Cases:
Johnson v. Souza, 71 N.J. Super. 240 (App. Div. 1961); Restatement, Torts, Sec. 325, p. 831 (1934): Miller v. Muscarelle, 67 N.J. Super. 305 (App. Div. 1961).
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Model Civil Jury Charges
Cases:
Gudnestad v. Seaboard Coal Dock Co., 27 N.J. Super. 227 (App. Div. 1953); Wolcott v. N.Y. and L.B.R.R. Co., 68 N.J.L. 421 (Sup. Ct. 1902).
THE FOLLOWING MAY BE ALTERNATIVELY CHARGED WHERE APPLICABLE:
(2) Where a defendant has gratuitously undertaken to do an act or to perform a service recognizably necessary to another's bodily safety and there is reasonable reliance thereon, the defendant will be liable for the harm sustained by the other party resulting from defendant's failure to exercise reasonable care to carry out the undertaking.
Cases:
Johnson v. Souza, 71 N.J. Super. 240 (App. Div. 1961); Restatement, Torts, Sec. 325, p. 831 (1934): Miller v. Muscarelle, 67 N.J. Super. 305 (App. Div. 1961).
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Model Civil Jury Charges
5.10B FORESEEABILITY (AS AFFECTING NEGLIGENCE) (pre-1984)
5.11 FORESEEABILITY (AS AFFECTING NEGLIGENCE) (pre-1984)
In determining whether reasonable care has been exercised, you will consider whether the defendant ought to have foreseen, under the attending circumstances, that the natural and probable consequence of his/her act or omission to act would have been some injury. It is not necessary that the defendant have anticipated the very occurrence which resulted from his/her wrongdoing but it is sufficient that it was within the realm of foreseeability that some harm might occur thereby. The test is the probable and foreseeable consequences that may reasonably be anticipated from the performance, or the failure to perform, a particular act. If an ordinary person, under similar circumstances and by the use of ordinary care could have foreseen the result, [i.e., that some injury or damage would probably result] and either would not have acted or, if he/she did act, would have taken precaution to avoid the result, then the performance of the act or the failure to take such precautions would constitute negligence.
Cases:
Lutz v. Westwood Transportation Co., 31 N.J. Super. 285 (App. Div. 1954), certification denied, 16 N.J. 205 (1954); Glaser v. Hackensack Water Co., 49 N.J. Super. 591 (App. Div. 1958); Martin v. Bengue, Inc., 25 N.J. 359 (1957); Menth v. Breeze Corporation, Inc., 4 N.J. 428 (1950); Andreoli v. Natural Gas Co., 57 N.J. Super. 356 (App. Div. 1959); Avedisian v. Admiral Realty Corp., 63 N.J. Super. 129 (App. Div. 1960); 2 Ohio Jury Instructions, Civil, 7.12; see also instructions below as to Proximate Cause.
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Model Civil Jury Charges
In determining whether reasonable care has been exercised, you will consider whether the defendant ought to have foreseen, under the attending circumstances, that the natural and probable consequence of his/her act or omission to act would have been some injury. It is not necessary that the defendant have anticipated the very occurrence which resulted from his/her wrongdoing but it is sufficient that it was within the realm of foreseeability that some harm might occur thereby. The test is the probable and foreseeable consequences that may reasonably be anticipated from the performance, or the failure to perform, a particular act. If an ordinary person, under similar circumstances and by the use of ordinary care could have foreseen the result, [i.e., that some injury or damage would probably result] and either would not have acted or, if he/she did act, would have taken precaution to avoid the result, then the performance of the act or the failure to take such precautions would constitute negligence.
Cases:
Lutz v. Westwood Transportation Co., 31 N.J. Super. 285 (App. Div. 1954), certification denied, 16 N.J. 205 (1954); Glaser v. Hackensack Water Co., 49 N.J. Super. 591 (App. Div. 1958); Martin v. Bengue, Inc., 25 N.J. 359 (1957); Menth v. Breeze Corporation, Inc., 4 N.J. 428 (1950); Andreoli v. Natural Gas Co., 57 N.J. Super. 356 (App. Div. 1959); Avedisian v. Admiral Realty Corp., 63 N.J. Super. 129 (App. Div. 1960); 2 Ohio Jury Instructions, Civil, 7.12; see also instructions below as to Proximate Cause.
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Model Civil Jury Charges
5.10A NEGLIGENCE AND ORDINARY CARE - GENERAL (pre-1984)
5.10 NEGLIGENCE AND ORDINARY CARE - GENERAL (pre-1984)
A. Definition
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 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, ca
A. Definition
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 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, ca
5.12 NEGLIGENCE — GROSS
Gross negligence is the want or absence of, failure to exercise slight care or diligence. Draney v. Bachman, 138 N.J. Super. 503, 509-510 (Law Div. 1976) quoting Oliver v. Kantor, 122 N.J.L. 528, 532 (Sup. Ct. 1939), aff’d 124, N.J.L. (E.&A. 1941).
The facts of a particular case may require examination of relevant case law or certain statutes which utilize the term gross negligence to decide if the court should charge gross negligence to the jury or the different concepts of willful and wanton or recklessness. In Draney, supra gross negligence was applied to a defendant driver who failed to prevent her car from running off the roadway thereby injuring the plaintiff passenger. In Shick v. Ferolito, 167 N.J. 7, 20 (2001) a plaintiff who was struck in the eye by a golf ball was required to prove “recklessness” to recover from the defendant who failed to announce his tee shot at a golf course.
The Legislature has extended liability immunity for certain classes of individuals and organizations engaged in government, public or beneficial services and activities. Liability immunity is often qualified and immunity often does not extend to acts or omissions that are grossly negligent. For example, N.J.S.A. 2A:53A-7.1b (volunteer officers of nonprofit organizations have no immunity from willful, wanton or grossly negligent acts of commission or omission), N.J.S.A. 2A:62A-6 (school and volunteer sports coaches and officials), N.J.S.A. 2A:62A-9 (persons who attempt to mitigate hazardous spills), N.J.S.A. 2A:62A-12 to 14 (condominium associations), N.J.S.A. 2A:62A-15 (local emergency planning committees).
Gross negligence occurs on the continuum between ordinary negligence and intentional misconduct. The continuum runs from (1) ordinary negligence, through (2) gross negligence, (3) willful and wanton misconduct, (4) reckless misconduct to (5) intentional misconduct. The difference between negligence and gross negligence is a matter of degree. Monaghan v. Holy Trinity Church, 275 N.J. Super. 594, 599 (App. Div. 1994); Stuyvesant Assoc. v. Doe, 221 N.J. Super. 340, 344 (Law Div. 1987). Gross negligence does not imply willful or wanton misconduct or willfulness. Stuyvesant Associates, supra. “Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes.” G.S. v. Dept. Human Serv. DYFS, 157 N.J.161, 179 (1999).
The Committee observes that gross negligence and willful and wanton misconduct are sometimes combined in qualified immunity statutes. For example, N.J.S.A. 62A-27c, states, “[t]his subsection (defibrillator use for emergency care) shall not immunize a person for any act of gross negligence or willful or wanton misconduct.” The terms are not equivalent and their meaning, within the context of a particular statute, must be analyzed to determine the minimal conduct that eliminates an immunity defense.
The punitive damages statute, N.J.S.A. 2A:15-5.10, defines “wanton and willful disregard” as a deliberate act or omission with knowledge of a high degree of probability of harm to another and reckless indifference to the consequences of such act or omission.
The comparative negligence statute recognizes gross negligence as only different in degree from ordinary negligence. Draney v. Bachman, supra. Ordinary and gross negligence will generally only support a claim for compensatory damages, while willful and wanton misconduct will support punitive damages. Edwards v. Our Lady of Lourdes Hospital, 217 N.J. Super. 448, 462 (App. Div. 1987); N.J.S.A. 2A:15‑5.12. Mere negligence, no matter how gross, will not suffice as a basis for punitive damages. Smith v. Whitaker, 160 N.J. 221 (1999) citing. DiGiovanni v. Pessel, 55 N.J. 188, 190 (1970); Schick v. Ferolito, 167 N.J. 7 (2001) (Verniero, J. concurring/dissenting opinion).
In defense to the plaintiff's claims, the defendant, [insert the defendant’s name], claims to have been acting within the course and scope of his/her duties as [insert the defendant’s claimed position and membership in an organization or governmental activity with qualified immunity from suit, e.g., compensated sports official, fire fighter, a member of a state professional board, an organization or entity deemed operating in the public interest].
If you find that the defendant, [insert the defendant’s name], was exercising or discharging a function associated with [insert the appropriate organization or government activity] and that the defendant was acting within the course and scope of his/her official duties, then in order to find for the plaintiff and impose liability upon the defendant, [insert the defendant’s name], you must determine that:
(1) The defendant [insert the defendant’s name] was grossly negligent, as I will hereafter define the term; and
(2) The defendant’s [insert the defendant’s name] gross negligence was a cause of the plaintiff's loss.
To determine gross negligence you should consider what a reasonable person would or would not do under the same or similar circumstances as shown by the evidence.
Negligence is the failure to exercise ordinary or reasonable care; that is: what would be the conduct of an ordinarily prudent, careful person in the same or similar circumstances as the defendant found himself. The defendant's conduct is then measured against what an ordinarily prudent, careful person would have done or would have avoided doing.
In this case, the plaintiff must prove more than negligence. The plaintiff must prove gross negligence.
I will now define gross negligence for you. Gross negligence is an act or omission, which is more than ordinary negligence, but less than willful or intentional conduct. Gross negligence refers to a person’s conduct where an act or failure to act creates an unreasonable risk of harm to another because of the person’s failure to exercise slight care or diligence. [1]
To find gross negligence the facts as you find them at the time the defendant acted or failed to act must be such that the consequences of the defendant’s conduct could reasonably have been foreseen. It must appear that the injury was not the result of inattention, mistaken judgment or the failure to exercise ordinary or reasonable care. Rather it must appear that the injury was the natural and probable result of the failure to exercise slight care or diligence.
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[1] To aid the jury’s grasp of this concept, the court may give examples of gross negligence that convey the notion that it (1) is the failure to exercise a slight degree of care, (2) is lack of even scant care, (3) implies the absence of care or indifference to others, (4) thoughtless disregard to the consequence that may follow from an act, (5) an act done with utter unconcern for the safety of others, or (6) an “omission of slight care that even an inattentive and thoughtless person never fails to take of their own concerns” Capezzaro v. Winfrey, 153 N.J. Super. 267 (App. Div. 1977) quoting Dudley v. Camden and Phila. Ferry Co., 42 N.J.L. 25, 27 (Sup. Ct. 1880).
The facts of a particular case may require examination of relevant case law or certain statutes which utilize the term gross negligence to decide if the court should charge gross negligence to the jury or the different concepts of willful and wanton or recklessness. In Draney, supra gross negligence was applied to a defendant driver who failed to prevent her car from running off the roadway thereby injuring the plaintiff passenger. In Shick v. Ferolito, 167 N.J. 7, 20 (2001) a plaintiff who was struck in the eye by a golf ball was required to prove “recklessness” to recover from the defendant who failed to announce his tee shot at a golf course.
The Legislature has extended liability immunity for certain classes of individuals and organizations engaged in government, public or beneficial services and activities. Liability immunity is often qualified and immunity often does not extend to acts or omissions that are grossly negligent. For example, N.J.S.A. 2A:53A-7.1b (volunteer officers of nonprofit organizations have no immunity from willful, wanton or grossly negligent acts of commission or omission), N.J.S.A. 2A:62A-6 (school and volunteer sports coaches and officials), N.J.S.A. 2A:62A-9 (persons who attempt to mitigate hazardous spills), N.J.S.A. 2A:62A-12 to 14 (condominium associations), N.J.S.A. 2A:62A-15 (local emergency planning committees).
Gross negligence occurs on the continuum between ordinary negligence and intentional misconduct. The continuum runs from (1) ordinary negligence, through (2) gross negligence, (3) willful and wanton misconduct, (4) reckless misconduct to (5) intentional misconduct. The difference between negligence and gross negligence is a matter of degree. Monaghan v. Holy Trinity Church, 275 N.J. Super. 594, 599 (App. Div. 1994); Stuyvesant Assoc. v. Doe, 221 N.J. Super. 340, 344 (Law Div. 1987). Gross negligence does not imply willful or wanton misconduct or willfulness. Stuyvesant Associates, supra. “Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes.” G.S. v. Dept. Human Serv. DYFS, 157 N.J.161, 179 (1999).
The Committee observes that gross negligence and willful and wanton misconduct are sometimes combined in qualified immunity statutes. For example, N.J.S.A. 62A-27c, states, “[t]his subsection (defibrillator use for emergency care) shall not immunize a person for any act of gross negligence or willful or wanton misconduct.” The terms are not equivalent and their meaning, within the context of a particular statute, must be analyzed to determine the minimal conduct that eliminates an immunity defense.
The punitive damages statute, N.J.S.A. 2A:15-5.10, defines “wanton and willful disregard” as a deliberate act or omission with knowledge of a high degree of probability of harm to another and reckless indifference to the consequences of such act or omission.
The comparative negligence statute recognizes gross negligence as only different in degree from ordinary negligence. Draney v. Bachman, supra. Ordinary and gross negligence will generally only support a claim for compensatory damages, while willful and wanton misconduct will support punitive damages. Edwards v. Our Lady of Lourdes Hospital, 217 N.J. Super. 448, 462 (App. Div. 1987); N.J.S.A. 2A:15‑5.12. Mere negligence, no matter how gross, will not suffice as a basis for punitive damages. Smith v. Whitaker, 160 N.J. 221 (1999) citing. DiGiovanni v. Pessel, 55 N.J. 188, 190 (1970); Schick v. Ferolito, 167 N.J. 7 (2001) (Verniero, J. concurring/dissenting opinion).
In defense to the plaintiff's claims, the defendant, [insert the defendant’s name], claims to have been acting within the course and scope of his/her duties as [insert the defendant’s claimed position and membership in an organization or governmental activity with qualified immunity from suit, e.g., compensated sports official, fire fighter, a member of a state professional board, an organization or entity deemed operating in the public interest].
If you find that the defendant, [insert the defendant’s name], was exercising or discharging a function associated with [insert the appropriate organization or government activity] and that the defendant was acting within the course and scope of his/her official duties, then in order to find for the plaintiff and impose liability upon the defendant, [insert the defendant’s name], you must determine that:
(1) The defendant [insert the defendant’s name] was grossly negligent, as I will hereafter define the term; and
(2) The defendant’s [insert the defendant’s name] gross negligence was a cause of the plaintiff's loss.
To determine gross negligence you should consider what a reasonable person would or would not do under the same or similar circumstances as shown by the evidence.
Negligence is the failure to exercise ordinary or reasonable care; that is: what would be the conduct of an ordinarily prudent, careful person in the same or similar circumstances as the defendant found himself. The defendant's conduct is then measured against what an ordinarily prudent, careful person would have done or would have avoided doing.
In this case, the plaintiff must prove more than negligence. The plaintiff must prove gross negligence.
I will now define gross negligence for you. Gross negligence is an act or omission, which is more than ordinary negligence, but less than willful or intentional conduct. Gross negligence refers to a person’s conduct where an act or failure to act creates an unreasonable risk of harm to another because of the person’s failure to exercise slight care or diligence. [1]
To find gross negligence the facts as you find them at the time the defendant acted or failed to act must be such that the consequences of the defendant’s conduct could reasonably have been foreseen. It must appear that the injury was not the result of inattention, mistaken judgment or the failure to exercise ordinary or reasonable care. Rather it must appear that the injury was the natural and probable result of the failure to exercise slight care or diligence.
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[1] To aid the jury’s grasp of this concept, the court may give examples of gross negligence that convey the notion that it (1) is the failure to exercise a slight degree of care, (2) is lack of even scant care, (3) implies the absence of care or indifference to others, (4) thoughtless disregard to the consequence that may follow from an act, (5) an act done with utter unconcern for the safety of others, or (6) an “omission of slight care that even an inattentive and thoughtless person never fails to take of their own concerns” Capezzaro v. Winfrey, 153 N.J. Super. 267 (App. Div. 1977) quoting Dudley v. Camden and Phila. Ferry Co., 42 N.J.L. 25, 27 (Sup. Ct. 1880).
Friday, July 13, 2007
4.45 MOTOR VEHICLE LEMON LAW
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.
Judge’s Note
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.”
Judge’s Note - 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.
Judge’s Note
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.
Judge’s Note - 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.
Judge’s Note
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 Jury Charges No. 4.21 and 4.22, respectively.
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.
Judge’s Note
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.”
Judge’s Note - 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.
Judge’s Note
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.
Judge’s Note - 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.
Judge’s Note
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 Jury Charges No. 4.21 and 4.22, respectively.
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