7.16 NEGLIGENCE — WHERE A PARTY'S ACTS OR MISCONDUCT ARE WILLFUL, WANTON OR MALICIOUS OR IN RECKLESS DISREGARD OF ONE'S SAFETY OR ARE INTENTIONAL ACTS Civil Model Jury Charge

7.16            NEGLIGENCE — WHERE A PARTY'S ACTS OR MISCONDUCT ARE WILLFUL, WANTON OR MALICIOUS OR IN RECKLESS DISREGARD OF ONE'S SAFETY OR ARE INTENTIONAL ACTS  Civil Model Jury Charge

(Approved 10/91)

         In this case, (one party) alleges that the acts of misconduct of (other party) were willful, wanton or malicious, or intentional.  If you find that the act, or failure to act, by that party was willful, wanton or malicious, or intentional conduct and that her/his action, or inaction substantially contributed to the harm, then you are to apportion the fault of all parties.  In other words, you are to apportion the total responsibility to each party depending on the degree of fault you assess to each party, including the fault attributable to a willful, wanton or malicious tortfeasor or a tortfeasor who acts in reckless disregard of one's safety, or a tortfeasor who acts intentionally.

NOTE TO JUDGE

If the above is charged, jury should also be given definitions of willful, wanton and malicious or of intentional acts as well as proximate cause.

The law expressed in Draney v. Bachman, 138 N.J. Super. 503 (Law Div. 1976) was found to have been "eroded by subsequent developments in the law of comparative fault".  See McCann v. Lester, 239 N.J. Super. 601 (App. Div. 1990) at page 609, holding that overall fault of all parties is to be measured (compared). 

In Blazovic v. Andrich, 124 N.J. 90 (1990), McCann is cited with approval.  Blazovic then holds that intentional acts are likewise to be compared.

7.15 NEGLIGENCE - CARE REQUIRED OF PEDESTRIAN ON SIDEWALK Civil Model Jury Charge

7.15                     NEGLIGENCE - CARE REQUIRED OF PEDESTRIAN ON SIDEWALK  Civil Model Jury Charge

(Approved 5/91)

         A.      In General

         A pedestrian using the sidewalk must act with the same amount of care for her/his own protection as a reasonably careful person would have exercised under similar circumstances.  In order to determine whether or not the pedestrian acted reasonably, you must decide whether a reasonably careful person would have discovered the danger which existed in this case and would have avoided it.

Cases:

The above rule applies when the defect is in the sidewalk itself.  Milstrey v. Hackensack, 6 N.J. 400-414 (1951); Saco v. Hall, 1 N.J. 377 (1949); Kelly v. Limbeck, 86 N.J.L. 471 (Sup. Ct. 1914); Citro v. Stevens Institute of Technology, 55 N.J. Super. 295 (App. Div. 1959).

NOTE TO JUDGE

When dealing with structures not necessarily components of sidewalks, such as drains, grates and cellar doors, the following section (B) may be found to apply where plaintiff has no prior knowledge thereof.

         B.      Artificially Created Conditions for Private Use

         A pedestrian using the sidewalk is required to exercise reasonable care for her/his own safety, however, a pedestrian is entitled to assume that there is no dangerous impediment or pitfall on any part of the sidewalk.  The law does not require that a pedestrian anticipate dangerous conditions.  A pedestrian is not negligent merely because she/he does not look for dangerous conditions; however, when or if a pedestrian sees or is aware of a dangerous condition, then she/he must exercise reasonable care to avoid that condition.

[Also See NOTE TO JUDGE under A. above.]

Cases:

Saco v. Hall, 1 N.J. 377 (1949); Krug v. Warner, 28 N.J. 174, 183 (1958); Taverna v. Hoboken, 43 N.J. Super. 160, 164 (App. Div. 1956).

CHARGE 7.14 — Page 1 of 1 7.14 NEGLIGENCE — EFFECT OF PHYSICAL IMPAIRMENTCivil Model Jury Charge

CHARGE 7.14 — Page 1 of 1 7.14 NEGLIGENCE — EFFECT OF PHYSICAL IMPAIRMENTCivil Model Jury Charge
(Approved 5/91)
A person with a physical impairment is required to act with the same degree of care as an ordinary careful person with a similar impairment or disability would have exercised under the same or similar circumstances.
Cases:
Berger v. Shapiro, 30 N.J. 89, 102 (1959); Butelli v. J.C.H. & R. El. Ry. Co., 59 N.J.L. 302, 306 (Sup. Ct. 1896); 2 Harper & James, The Law of Torts §16.7.

7.13 NEGLIGENCE – INTOXICATION Civil Model Jury Charge

7.13            NEGLIGENCE – INTOXICATION   Civil Model Jury Charge (Approved 5/91)

         A.      In General

         A person who voluntarily has become intoxicated is required to act with the same care as a person who is sober.  So long as such a person who is voluntarily intoxicated acts with the same degree of care for her/his own safety which an ordinary careful and sober person would exercise under the same or similar circumstances, then the intoxicated person is not comparatively negligent.  But if you find that, by reason of her/his own voluntary abuse of intoxicating liquor, the plaintiff exposed herself/himself to a dangerous situation and sustained bodily injuries which a sober person in the exercise of ordinary foresight and care would have avoided, then you find that the voluntary intoxicated person has acted negligently.

NOTE TO JUDGE

It has been held that negligence is not necessarily to be inferred from proof of intoxication and that a drunken person may be careful.  Bageard v. Consolidated Traction Co., 64 N.J.L. 316 (E. & A. 1900).

Cases:

Petrone v. Margolis, 20 N.J. Super. 180, 188 (App. Div. 1952); Bowman v. C.R.R. of N.J., 27 N.J. Super. 370 (App. Div. 1953).

         B.      Riding with Intoxicated Driver

         A passenger in an automobile must act with appropriate care for her/his own safety as the demands of the situation reasonably require.  To determine whether or not the plaintiff was negligent by voluntarily riding in a motor vehicle which was operated by an intoxicated person, you must decide whether an ordinary cautious and careful person, under the same or similar circumstances, would have risked riding with the driver.  You must consider three factual issues:

         1.      Did the plaintiff voluntarily ride in an automobile operated by a person under the influence of intoxicating liquor/drugs after the plaintiff knew, or, in the exercise of reasonable care, should have known, of the driver's condition?

         2.      Would a reasonably cautious and careful person have avoided the risk of riding with such a driver under the same or similar circumstances?

         3.      Was the intoxication of the driver a substantial contributing cause of the incident and the resulting injuries?

If the answer to the three questions is yes, then the plaintiff was comparatively negligent.  If you answer any of the three questions no, then the plaintiff was not comparatively negligent.

Cases:

Petrone v. Margolis, 20 N.J. Super. 180, 188 (App. Div. 1952); Bowman v. C.R.R. of N.J., 27 N.J. Super. 370 (App. Div. 1953).