5.72 NEGLIGENCE — PROPRIETOR’S DUTY OF CARE TO PATRONS AGAINST CRIMINAL ACTIVITY OF THIRD PERSONS Civil model jury charge

CHARGE 5.72 ― Page 1 of 3 

 5.72 NEGLIGENCE — PROPRIETOR’S DUTY OF CARE TO PATRONS AGAINST CRIMINAL ACTIVITY OF THIRD PERSONS (Approved 11/99) 

The owner/operator of [insert type of business entity involved, i.e. store, restaurant, office etc.] owes a duty of reasonable care to its [insert word describing people using the premises, i.e. customer, patron, etc.] to provide a reasonably safe place to [insert words describing plaintiff’s use of the premises, i.e. shop, conduct business, enter the building, etc.]. It is a duty to take steps that are reasonable and prudent under all the circumstances for a [insert word describing people using the premises, i.e. customers, patrons, etc.] safety. The duty owed requires the owner/operator of a [insert type of business entity involved, i.e. store, restaurant, office etc.] to exercise ordinary care to protect [insert word describing people using the premises, i.e. customers, patrons, etc.] from potential injury inflicted by individuals that the owner/operator could have reasonably foreseen might be present on the premises.1 This legal duty of care does not make [insert type of business entity involved, i.e. stores, restaurants, businesses etc.] guarantors of a [insert word describing people using the premises, i.e. customer’s, patron’s, etc.] safety. However, if criminal activity on the premises is reasonably foreseeable, then the [insert type of business entity involved, i.e. store, restaurant, office etc.] 

1 See Butler v. Acme Markets, Inc., 89 N.J. 270 (1982) stating that whether a business owner breaches a duty is a jury question. CHARGE 5.72 ― Page 2 of 3 

had a duty to take reasonable steps to protect its [insert word describing people using the premises, i.e. customers, patrons etc.] from that danger. 

2 See Morris v. Krauszer’s Food Stores, Inc., 300 N.J. Super. 529 (App. Div.), which adopted the dissenting opinion set forth in Clohesy v. Food Circus Supermarkets, Inc., 293 N.J. Super. 217 (App. Div. 1996). The totality of the circumstances approach best accords with the fundamental purposes of tort law as set forth in Butler and exemplified by the “solid and growing national trend of authority.” See Clohesy, supra, 293 N.J. Super. 243 (dissenting opinion, quoting Sharp v. W.H. Moore, Inc., 118 Idaho 297, 301, 796 P., 506, 510, 2d (Idaho 1990)). 

When determining whether or not criminal activity on defendant’s property was reasonably foreseeable, you may consider the following factors: prior criminal acts that occurred on or around defendant’s property even if not as bad as the one committed against the plaintiff; the property’s size and location; the absence of adequate security; the architectural design of the building in relation to the area where the crime occurred (for example: the size of the parking lot); the type of business defendant operates; the nature and circumstances of nearby businesses; and the increasing level of crime in the general neighborhood. You, the jury, must look at the totality of the circumstances to decide whether or not the defendant should have reasonably foreseen the danger.2 

To summarize: if the place or character of the defendant’s business, including notice of prior criminal activity in the area, is such that a reasonably prudent [insert type of business entity involved, i.e. store, restaurant, office, etc.] would anticipate criminal actions by third persons against a [insert work describing CHARGE 5.72 ― Page 3 of 3 

people using the premises, i.e. customer, patron, etc.], then defendant had a duty to take reasonable precautions against that danger. A failure to take such measures would constitute negligence. 

5.71 TAVERN KEEPERS SERVING MINORS AND INTOXICATED PERSONS Civil model jury charge

CHARGE 5.71 ―Page 1 of 12 

 5.71 TAVERN KEEPERS SERVING MINORS AND INTOXICATED 

PERSONS (3/10) 

NOTE TO JUDGE 

These instructions are designed for cases arising under the Licensed Server Liability Act, N.J.S.A. 2A:22A-1 et seq. (“Act”). The instructions in Sections A-D should be used for the ordinary case where there is no issue of apportionment of liability. 

The instructions in E-I address those cases where there is an issue of apportionment of liability based on either: (1) a claim of plaintiff’s comparative negligence; or (2) a claim of plaintiff’s injury was caused by another tortfeasor. Section E (General Introductory Instruction) and I (General Concluding Instruction) should be given in all cases where there is an issue of apportionment of liability. Section F should be given when the comparative negligence claim is based on plaintiff’s negligence as a visibly intoxicated driver, and Section G should be given when that claim is based on plaintiff’s negligence as a visibly intoxicated passenger. Section H is designed for those cases where the licensed alcoholic beverage server claims that plaintiff’s injury was caused by the assaultive behavior of a patron. 

A. Negligence of Licensed Alcoholic Beverage Server (LABS) 

In this case the plaintiff claims that the [name of licensed alcoholic beverage server] (and his/her employee)1 was (were) negligent by serving alcoholic beverages to [name] while he/she was visibly intoxicated (or, was known or reasonably should have known to be a minor). The plaintiff maintains that the negligence proximately caused (or, was a substantial factor in causing) an [event] in which plaintiff was 

1 Instructions on respondeat superior should be given if conduct of an employee is involved. CHARGE 5.71 ―Page 2 of 12 

injured. Plaintiff contends that at the time the alcoholic beverage was served, the (person) was visibly intoxicated (or, was known or reasonably should have been known to be a minor). 

"Visibly intoxicated" means a state of intoxication accompanied by a perceptible act or series of acts which present clear signs of intoxication (and an "apparent minor" is a person under the age of 21 or an individual who under the circumstances was known or reasonably should have been known to be a minor). 

If you find that the [name of licensed alcoholic beverage server] served, or permitted to be served, alcoholic beverages to a person when visibly intoxicated (or was known or reasonably should have been known to be a minor) then you must find the licensed alcoholic beverage server negligent. If you find that the [name of licensed alcoholic beverage server] did not serve alcoholic beverages to a visibly intoxicated person, then the [name of licensed alcoholic beverage server] was not negligent. 

Cases:

Lee v. Kiku Restaurant, 127 N.J. 170 (1992); Rappaport v. Nichols, 31 N.J. 188 (1959); Geherty v. Moore, 238 N.J. Super. 463 (App. Div. 1990); Aliulis v. Tunnel Hill Corp., 114 N.J. Super. 205 (App. Div.), afff’d, 59 N.J. 508 (1971). 

See also Fisch v. Bellshot, 135 N.J. 374, 382-386 (1994) (Licensed Server Liability Act provides exclusive definition of an alcoholic beverage server’s negligence for all causes of action arising under Act, CHARGE 5.71 ―Page 3 of 12 

and jury should not be instructed that violation of administrative regulations is evidence of a defendant’s negligence.) 

NOTE TO JUDGE 

(1) In the case of a sale to an apparent minor, see Rappaport v. Nichols, 31 N.J. 188, 201 (1959) for the concept of selling the first drink which does "its share of the work" (citing Taylor v. Wright, 17 A. 677, 678 (1889)). 

(2) In cases where licensed alcoholic beverage server hosts a party that permits the self-service of alcohol, see Mazzcano v. Estate of Kinnerman, 197 N.J. 307 (2009) for the concept that self- service constitutes service of alcohol under the Licensed Alcoholic Beverage Server Fair Liability Act (the “Dram Shop Act”), N.J.S.A. 2A:22A-1 to -7. 

Statute: 

N.J.S.A. 2A:22A-1 et seq. 

Cross-reference: 

See negligence charges. 

B. Proximate Cause ― Intervening Cause ― Substantial Factor 

If you find that the [name of licensed alcohol beverage server] did serve alcoholic beverages to [name of intoxicated person] when he/she was visibly intoxicated, you then must determine whether or not that conduct was a proximate cause of the [event]. By proximate cause we mean a cause which naturally and probably led to the [event] and resulting injuries. Sometimes an event results from CHARGE 5.71 ―Page 4 of 12 

two or more causes. Nevertheless, if a person's negligence is a substantial factor in causing an [event], that negligent person is held liable to a person so injured. Therefore, you must also determine whether the service of alcoholic beverages to [insert name of intoxicated person] was a substantial factor in bringing about the [event]. It makes no difference whether any other causes intervened and contributed to the [event] as long as the service of alcoholic beverages to [insert name of intoxicated person] was a substantial factor in causing the event. 

C. Negligence of Visibly Intoxicated Plaintiff 

In determining whether plaintiff is entitled to recover from the [name of licensed alcoholic beverage server], you must also consider whether the [event] was a foreseeable consequence of the negligent service of alcoholic beverages. A foreseeable consequence is a natural and probable consequence of the service of alcoholic beverages to the visibly intoxicated person (or to a person who was known or should have been known to be a minor). It is the kind of event that is susceptible of being anticipated in advance of the service of alcoholic beverages by the exercise of that degree of care which the ordinary and prudent person would exercise under the circumstances existing at the time. However, it is not necessary that the defendant [name of licensed alcoholic beverage server] have anticipated this specific event as CHARGE 5.71 ―Page 5 of 12 

2 In cases of an intentional assault by a patron, the following language should be inserted: 

In general, assaultive behavior is considered one of the foreseeable risks of negligent service. However, you must still determine in this case whether the resulting injury to (name of plaintiff) was a foreseeable consequence of (name of licensed alcoholic beverage server) negligent service of alcoholic beverages to (name of patron who assaulted plaintiff). See Steele v. Kerrigan, 148 N.J. 1, 34 (1997). 

long as the event was a natural and probable consequence of the service of the alcoholic beverages.2 

D. Comparative Negligence 

Thus, plaintiff is entitled to recover from the [name of licensed alcoholic beverage server], if plaintiff proves by the preponderance (greater weight) of evidence the following elements: 

1. That defendant served alcoholic beverages to [name]; 

2. That when the alcoholic beverage was served the person was visibly intoxicated (or, was known or reasonably should have been known to be a minor); 

3. That such service of alcoholic beverages was a proximate cause of the [event] and injury complained of; and 

4. That the injury or damage was a foreseeable consequence of the negligent service of alcoholic beverages. 

E. When Joint Tortfeasor 

In this case, it is contended that [insert nature of claim, e.g., plaintiff was negligent by becoming voluntarily intoxicated and/or by driving his/her car while CHARGE 5.71 ―Page 6 of 12 

3 Steele v. Kerrigan, supra at 34. Although Steele involved an underage patron, the discussion in the opinion is generally applicable to all patrons. 

intoxicated; plaintiff was at fault by becoming voluntarily intoxicated and thereafter riding as a passenger with an intoxicated driver, or by other conduct that might suggest that he/she was negligent; (name of patron who assaulted plaintiff) caused the injury by his/her assaultive conduct]. 

If you conclude that plaintiff has proven his/her claim against [name of licensed alcoholic beverage server], you must then apportion fault between the [name of licensed alcoholic beverage server] and [name of plaintiff if comparative negligence or of other defendants if joint tortfeasors] based on the extent that each party’s negligence [or other conduct, if assault] contributed to the event. 

The general purpose of the Licensed Servers Liability Act is to impose on taverns financial responsibility for injuries proximately caused by the negligent service of alcoholic beverages. I will now instruct you on apportioning responsibility for the incident in this case. In allocating responsibility between [name of licensed alcoholic beverage server] and [name of plaintiff if comparative negligence or of other defendants if joint tortfeasors], you should hold the tavern responsible for negligent service to the extent that it influenced the behavior of persons whom the tavern should not have served.3 CHARGE 5.71 ―Page 7 of 12 

4 Ibid. 

5 These charges assume that the intoxicated person is the plaintiff driver or passenger. The charges should be appropriately adjusted if the intoxicated person is a defendant, third party plaintiff or cross-claimant. 

6 The typical principles of comparative negligence will apply to joint tortfeasors in ordinary dram-shop actions as they apply in all other negligence cases involving joint tortfeasors. Lee, supra, 127 N.J. at 183-84. Accordingly, in the ordinary case the judge should not instruct the jury to determine the extent to which the person had retained some capacity to appreciate the risk of engaging in the activities that led to the incident. Instead, as the instructions in the text provide, there is a presumption that the intoxicated person lacked the capacity to evaluate the ensuing risks. However, there may be exceptional cases that require appropriate modifications of these instructions (see note 7 below). 

It should also be recognized that there are types of conduct other than driving that may be the basis of the claimed liability or comparative negligence. Although the charge is modeled on a driving case, appropriate substitutions must be considered in those cases. 

[Additional Language When Patron Is Underage] 

You should also be aware that taverns have a heightened duty to underage patrons under the Licensed Servers Liability Act. The Act deems the licensed server negligent if it serves a person it knew or should have known was underage, regardless of that person’s visible level of intoxication. This heightened duty was imposed because of the Legislature’s recognition that minors as a class are less likely than adults to drink responsibly and more likely to become intoxicated and pose a danger of harm to others4 

F. Comparative Negligence: When Plaintiff Is Visibly Intoxicated Driver5 

As I just mentioned, it is contended that plaintiff was negligent by becoming voluntarily intoxicated and/or by driving his/her car while intoxicated.6 CHARGE 5.71 ―Page 8 of 12 

7 In Fisch v. Bellshot, 135 N.J. at 391, the Supreme Court held that the Lee presumption set forth in note 6, supra., is inapplicable where “exceptional circumstances” exist. In those cases, a jury should be instructed to consider the extent to which the person retained some capacity to appreciate the risk of engaging in the activity that led to the accident. Ibid. In Fisch, the Court found exceptional circumstances when the decedent was the tavern’s bartender; she served herself despite the obligation not to drink while on duty; and her training and experience equipped her with an increased ability to assess the progression of intoxication and to understand the debilitating effects of excessive drinking. The question of whether “exceptional circumstances” exist is an issue of law for the trial judge. Id. at 392. 

8 The Supreme Court in Lee noted a single exception to this rule. The Court stated: 

[H]owever, under some circumstances an alcoholic may be a person who, in becoming intoxicated, could be excused from a failure to exercise reasonable care. (Citations omitted). Thus in the event a patron was known to the tavern’s employees to be an alcoholic, the duty of the tavern to refrain from serving that patron could arise well before the patron reaches the stage of being visibly intoxicated. (Lee, supra at 185). 

If there is a defense raised that the plaintiff is an alcoholic and that the tavern knew it, the charge should be amended to reflect this holding. If the plaintiff were to establish this defense, the licensed alcoholic beverage server would be strictly liable for serving a visibly intoxicated person or minor. 

The [name of licensed alcoholic beverage server] is responsible for its conduct in serving alcoholic beverages to a visibly intoxicated person.7 An intoxicated person generally lacks the capacity to adequately evaluate his ability to drive. As a result, the tavern [or insert other appropriate word to refer to type of licensed alcoholic beverage server] is ordinarily responsible for the driver's decision to drive an intoxicated state. The defendant driver is, however, responsible for his/her conduct in drinking to the point of intoxication.8 

You are to consider the negligence of [name of intoxicated driver] in becoming voluntarily intoxicated, the negligence of the [name of licensed alcoholic beverage CHARGE 5.71 ―Page 9 of 12 

server] in serving a visibly intoxicated person and the nature and circumstances of the negligent operation of the vehicle. Based on all the relevant evidence you must allocate the responsibility for the negligent operation of that vehicle between [name of intoxicated driver] and [name of licensed alcoholic beverage server]. 

Cases: 

The contributory negligence of the person served is not a bar to recovery under the statute or the pre-statute dram shop rule, although the plaintiff may be found to have been comparatively negligent. See N.J.S.A. 2A:22A-6(a); Soronen v. Olde Milford Inn, Inc., 46 N.J. 582 (1966); Lee v. Kiku Restaurant, 127 N.J. 170 (1992). As to the effect on recovery of the negligence on an injured third party, Aliulis v. Tunnel Hill Corp., 59 N.J. 508 (1971) held that, in the circumstances of that case (i.e., the injured third party had no real choice but to ride with the intoxicated driver in order to get home), the injured third party's negligence was not a bar. 

However, later cases have clarified these decisions by requiring that the jury be instructed on principles of comparative negligence Buckley v. Estate of Pirolo, 101 N.J. 68 (1985); Lee v. Kiku Restaurant, 127 N.J. 170 (1992). 

This continues to be the state of the law under the statute. See N.J.S.A. 2A:15-5 et seq. (eliminating contributory negligence as a bar to recovery and applying comparative negligence to determine damages) and N.J.S.A. 2A:15-5.2 (finding of facts regarding comparative negligence) should apply in all court actions under this Act. Buckley and Lee provide guidance on the specific elements of comparative negligence that should be charged under the statute. CHARGE 5.71 ―Page 10 of 12 

G. Comparative Negligence: When Plaintiff Is Passenger 

As I just mentioned, it is contended that plaintiff was at fault by becoming voluntarily intoxicated and thereafter riding as a passenger with an intoxicated driver, or by other conduct which might suggest that he/she was negligent. 

The [name of licensed alcoholic beverage server] is responsible for his/her conduct in serving alcoholic beverages to a visibly intoxicated person. An intoxicated person generally lacks the capacity to assess adequately the risk of riding with an intoxicated driver. As a result, a tavern [or insert other appropriate word to refer to type of licensed alcoholic beverage server in case] ordinarily is responsible for the intoxicated passenger's decision to ride with the driver. The intoxicated passenger is, however, responsible for his/her conduct in drinking to the point of intoxication. 

You are to consider the negligence of [name of intoxicated passenger] in becoming voluntarily intoxicated the negligence of the (name of licensed alcoholic beverage server) in serving a visibly intoxicated person, and the nature and circumstances of the negligent operation of the vehicle. Based on all of the relevant evidence, you must allocate the responsibility for plaintiff riding in the car driven by an intoxicated driver between the [name of licensed alcoholic beverage server] and [name of intoxicated passenger]. 

H. Apportionment of Fault: When Plaintiff Is Victim of Assaultive CHARGE 5.71 ―Page 11 of 12 

Behavior 

NOTE TO JUDGE 

The Lee presumption in the ordinary case under the Licensed Server Liability Act (see note 6, supra) is not applicable to the case of an assaultive patron. Steele v. Kerrigan, supra at 33. Instead, as the following instruction indicates, the jury should be instructed to consider the assaultive patron’s capacity to initiate or refrain from volitional assaultive conduct, as well as other relevant evidence. 

As I just mentioned, it is contended that the actions of [name of patron who assaulted plaintiff] caused the plaintiff’s injuries. In this case, you must decide the extent to which [name of licensed alcoholic beverage server]’s negligence in serving alcohol to [name of the patron who assaulted plaintiff] contributed to the incident. You should apportion fault between [name of licensed alcoholic beverage server] and [name of the patron who assaulted plaintiff] on the basis of all the evidence, including the evidence of [name of licensed alcoholic beverage server] negligence in both commencing and continuing to serve [name of the patron who assaulted plaintiff], evidence of [name of the patron who assaulted plaintiff] fault in deciding to consume the alcohol, evidence concerning [name of the patron who assaulted plaintiff]’s actual degree of intoxication and his/her capacity to determine whether to refrain from or initiate assaultive behavior, and any evidence of [name of the patron who assaulted plaintiff]’s predisposition to violence or other factors contributing to CHARGE 5.71 ―Page 12 of 12 

9 Steele v. Kerrigan, supra at 34-35. Although Steele involved an underage patron, the discussion in the opinion is generally applicable to all patrons. 

the incident. In sum, you are to apportion fault between [names of parties] based on all of the evidence pertaining to each party’s role in the incident.9 

I. Apportioning Fault Where Claim of Comparative Negligence or Joint Tortfeasors (General Concluding Instruction) 

Based on these instructions, if you find the plaintiff was negligent (or if you find that [name of licensed alcoholic beverage server] and [name of other party] to be jointly liable for plaintiff’s injuries), then the licensed alcoholic beverage server (and other party, where joint tortfeasors) shall be responsible for no more than that percentage share of the total damages that is equal to the percentage share of negligence attributable to each of them. 

5.70 PARENTAL SUPERVISION – UN-EMANCIPATED CHILD FOR PERSONAL INJURIES Civil model jury charge

CHARGE 5.70 ― Page 1 of 1 

 5.70 PARENTAL SUPERVISION – UN-EMANCIPATED CHILD FOR PERSONAL INJURIES (Approved 2/92) 

A parent is liable for injuries to his or her un-emancipated child only if the parental supervision or lack of it is willful or wanton.1 

The words “willful or wanton” mean conduct or inaction which is less than an intention to harm. To establish that conduct or inaction is willful or wanton, it is not necessary that the defendant parent recognize his/her (the parent’s) conduct (or inaction) as being extremely dangerous; it is sufficient that he/she (the parent) knew, or had reason to know, of circumstances which would cause a reasonable person to realize the highly dangerous character of his/her (the parent’s) conduct (or inaction).2 

1Mancinelli v. Crosby, 247 N.J. Super. 456, 463 (App. Div. 1991). (How to safely cross street not subject to immunity.) Murray by Olson v. Shimalla, 231 N.J. Super. 103 (App. Div. 1989). (Storing gasoline.) Foldi v. Jeffries, 93 N.J. 533, 548, (1983). 

2McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 306 (1970).  

5.60B ANIMAL WITH VICIOUS OR DANGEROUS TRAIT OR PROPENSITY1 (OTHER THAN AN OWNER DOG BITE CASE Civil model jury charge

CHARGE 5.60B ― Page 1 of 3 

 5.60B ANIMAL WITH VICIOUS OR DANGEROUS TRAIT OR PROPENSITY1 (OTHER THAN AN OWNER DOG BITE CASE2) (Approved 9/80) 

If you find that the plaintiff, __________________, was injured by the (animal) owned or kept by the defendant, _______________, you will then proceed to determine the following: 

1. That the (animal) had a vicious or dangerous trait or propensity; 

2. That the defendant, ____________________, knew or, in the exercise of reasonable care, should have known of the particular vicious or dangerous trait or propensity in the (animal) which caused the plaintiff’s injuries. 

Vicious or dangerous trait or propensity means a natural inclination or habitual tendency to do and act endangering a person/property. You may consider the attack on the plaintiff; the results of that attack; the (animal’s) disposition when people approached it; its mischievousness, playfulness or over-demonstrated affection; and whether it had attacked any other person/ property. 

1 Negligence charge should be used where applicable for injuries by animals other than with vicious propensities. 

2 See Strict Liability statute, N.J.S.A. 4:19-16. CHARGE 5.60B ― Page 2 of 3 

To find a vicious or dangerous trait or propensity, it is not necessary to find the (animal) had previously bitten/attacked/did the same act to someone/something. 

On the other hand, the mere barking of a dog or other articulations of an animal or an isolated straining of a leash, would not necessarily demonstrate vicious or dangerous trait or propensity of the animal. You may find that the (animal) had vicious or dangerous propensities only if the nature and frequency of its acts furnished reasonable ground to believe that it might cause an injury by biting/overzealousness/mischievousness/playfulness/ over-demonstrated affection. 

You must also conclude that the defendant, __________________, knew or had reason to know of the vicious or dangerous trait or propensity of the (animal). 

If you find that the plaintiff has failed to sustain his/her burden of establishing any of the foregoing elements, you will then find in favor of the defendant. However, if you find that the plaintiff has sustained his/her burden of establishing each of the foregoing elements, you will find in favor of the plaintiff and then proceed to the question of damages. CHARGE 5.60B ― Page 3 of 3 

The plaintiff has the burden of establishing by the preponderance of the evidence that the injuries he/she suffered proximately resulted from such vicious or dangerous trait or propensity. 

Cases: 

Mascola v. Mascola, 168 N.J. Super. 122 (App. Div. 1979) (dog bite statute does not include temporary keepers of dogs, knowledge of viciousness needed). 

Jannuzzelli v. Wilkens, 158 N.J. Super. 36 (App. Div. 1978) (propensity of dog to jump up on people). 

Barber v. Hochstrasser, 136 N.J.L. 76, 79 (Sup. Ct. 1947) (a person can be liable as a joint owner or keeper if he/she has knowledge of the dog’s vicious propensities). 

5.60A STATUTORY OWNER - DOG BITE LIABILITY Civil model jury charge

CHARGE 5.60A ― Page 1 of 4 

 5.60A STATUTORY OWNER - DOG BITE LIABILITY 

(N.J.S.A. 4:19-16)1 (12/09) 

Plaintiff, ___________________, alleges that he/she was injured as a result of a bite from a dog owned by the defendant, __________________. 

The liability of an owner of a dog is one imposed by statute, namely N.J.S.A. 4:19-16, which in its pertinent parts reads as follows: 

The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner’s knowledge of such viciousness. 

[The remaining part or parts of the statute should be charged where applicable.] 

For the purpose of this section, a person is lawfully upon the private property of such owner when he/she is on the property in the performance of any duty imposed upon him by the laws of this state or the laws or postal regulations of the United States, or when he/she is on such property upon the invitation, express or implied, of the owner thereof. 

In order for you to find the defendant, _____________ liable, the plaintiff, ______________, must establish by a preponderance of the evidence the following elements: 

1 This charge is to be used only in statutory liability situations. As to common law liability, see Model Civil Charge 5.75. CHARGE 5.60A ― Page 2 of 4 

2 See DeVivo v. Anderson, 410 N.J. Super. 175 (Law Div. 2009), where the trial court granted summary judgment to the plaintiff finding that all elements of the cause of action were established even where the skin was not broken by the bite. The court reasoned that there is no explicit requirement in N.J.S.A. 4:19-16 that the injury result in broken skin. 

3 Where an issue of fact exists as to whether defendant is the owner of the dog involved or as to whether the plaintiff was unlawfully on or in a private place when the biting occurred, it may be necessary to supplement this charge with additional instructions as to absolute liability of owners and keepers of vicious animals and/or the duty, under ordinary negligence theories, of the owner of premises to invitees, licensees, infant trespassers, and other trespassers who come upon the premises where the dog is kept, see DeRobertis v. Randazzo, 94 N.J. 144 (1983); Mascola v. Mascola, 168 N.J. Super. 122 (App. Div. 1979); Nakhla v. Singer-Shoprite, 205 N.J. Super. 184 (App. Div. 1985), certif. denied, 102 N.J. 399 (1986). 

1. That the defendant, ___________________, was the owner of the dog in question; 

2. That the plaintiff, ___________________, was on or in a public place or lawfully on or in a private place, including the property of the defendant, and finally 

3. That the dog did bite the plaintiff while in such a place.2 

If you find that the plaintiff, __________________, has failed to establish any of the foregoing elements, your verdict will be in favor of the defendant,3 _____________. 

In deciding whether the plaintiff was on or in a public place or lawfully on or in a private place, including the property of the defendant, you should note that anyone whose presence is expressly or impliedly permitted on the property is CHARGE 5.60A ― Page 3 of 4 

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

5 Where there is an issue of comparative negligence, that charge should be inserted. See Foy v. Dayko, 82 N.J. Super. 8, 14 (App. Div. 1964) “[T]he Legislature did not intend to abolish the defense of contributory negligence in enacting [the dog bite statute].” 

entitled to the protection of the statute I have just read; the permission extends to all areas which the plaintiff may reasonably believe to be included within its scope.4 

If you find that the plaintiff, ___________________, has established each of the foregoing elements, your verdict will be in favor of the plaintiff,5 _________________. 

NOTE TO JUDGE 

You will note that the statute imposes liability on an owner, regardless of the former viciousness of such dog or the owner’s knowledge of such viciousness. 

If you conclude in favor of the plaintiff, ___________, you must then proceed to the question of damages. 

A. Dog Bite Liability — Plaintiff’s Comparative Negligence/Burden of Proof 

In a case such as this where the defendant has raised the negligence of the CHARGE 5.60A ― Page 4 of 4 

6 Budai v. Teague, 212 N.J. Super. 522 (Law Div. 1986); see also Dranow v. Kolmar, 92 N.J.L. 114, 116-17 (1918). 

plaintiff as a defense, the defendant has the burden of proof. This means that the defendant has the burden to prove plaintiff’s “unreasonable and voluntary exposure to a known risk.” This means that the plaintiff “knew” the dog had a propensity to bite either because of the dog’s known viciousness or because of the plaintiff’s deliberate acts intended to incite the animal. For example, one who beats or torments a dog has no call upon the owner if in self-defense the dog bites back.6 

5.52 PROFESSIONAL LIABILITY OF AN ARCHITECT/ENGINEER model jury charge

 5.52 PROFESSIONAL LIABILITY OF AN ARCHITECT/ENGINEER   model jury charge  

A. General Duty Owing 

In this action plaintiff contends that defendant was negligent because he/she did not comply with the standard of care that the law imposes upon him/her while performing the work of his/her contract with __________________. Plaintiff contends that as a result of defendant's negligence plaintiff suffered injury for which damages are sought. 

To decide this case properly you must know the standard of care imposed by law against which defendant's responsibilities as an architect should be measured. 

An architect represents that he/she has and will use the degree of knowledge, skill, judgment and taste ordinarily possessed and used by the average architect in the profession.1 Further, the architect’s conduct must be measured by the standard architectural practice, in the same or similar communities, at the time the architect was performing his/her services. Thus an architect has the duty to have and to use that degree of judgment, knowledge, skill and taste which architects of ordinary ability possess and exercise, in the same or similar communities, at the time the 

1 This charge is equally appropriate for other design professionals, such as: engineers, land surveyors, professional planners, etc. However, the term “taste” would be deleted from the standard applicable to professional engineers and other non-aesthetically oriented design professionals. CHARGE 5.52 ― Page 2 of 7 

architect performs his/her services. This is the standard by which to judge the architect in this case. 

The law does not expect or require perfection. Unsatisfactory results, alone, are not necessarily evidence of lack of skill or proper care. Thus, if you find that the architect has exercised that degree of knowledge, skill, judgment and taste which is possessed and used by the average architect, you may not find him/her liable for negligence even though unsatisfactory results may have occurred. 

Further, where, according to standard architectural practice, the work involves matters to be subjected to the judgment of the architect, the architect is allowed to exercise that judgment. An architect is not liable if, in the exercise of that judgment, in accordance with accepted standard, a bad result occurs. If in the exercise of his/her judgment an architect selects one or two or more courses of action, each of which under the circumstances has substantial support as proper practice in the architectural profession, the architect is not negligent even if the course chosen produces a poor result. 

However, an architect who departs from standard architectural practice cannot excuse himself/herself from the consequences by stating it was an exercise of his/her judgment. If the exercise of an architect's judgment causes him/her to do that which standard architectural practice forbids, he/she is negligent. Similarly, an architect is CHARGE 5.52 ― Page 3 of 7 

negligent if his/her judgment causes him/her to omit doing something which under the circumstances is required by standard architectural practice. 

Simply stated, then, the obligation or duty which the law imposes on an architect is to bring to his/her client that knowledge, skill, judgment and taste ordinarily possessed and exercised in similar situations, in the same or similar communities, in his/her field at the time of the undertaking. If you find that the defendant has complied with this standard, he/she is not liable to the plaintiff, regardless of the result of his/her work. On the other hand, if you find that the defendant has departed from this standard of care, and that such departure has resulted in injury or damage, then you should find the defendant liable for his/her negligence. 

Cases: 

For a definition and discussion of the scope of the duties owed by an architect to his/her client, see Sykes v. Propane Power Corp., 224 N.J. Super. 686 (App. Div. 1988); Walker Rogge, Inc. v. Chelsea Title and Guar. Co., 222 N.J. Super. 363 (App. Div. 1988), aff’d, 116 N.J. 517 (1989); Restatement (Second) of Torts, Section 299A (1975); Bloomsburg Mills v. Sordoni Construction Co., 164 A.2d 201, 203 (Pa. 1960); Bonadiman-McCain, Inc. v. Snow, 6 Cal Rrtr. 52, 60 (Cal App. 1960); Paxton v. Alameda Cty., 259 P.2d 934 (Cal. App. 1953); Chapel v. Clark, 76 N.W. 62 (Mich. 1898); Coombs v. Beede, 36 A. 104, 104-105 (Me. 1896). With respect to the fact that an architect is not an insurer, guarantor or warrantor of a perfect result, see Wills v. Black & West Architects, 344 P.2d 581 (Okla. 1959); Major v. Leary, 268 N.Y.S. 413 (App. Div. 1934). CHARGE 5.52 ― Page 4 of 7 

2 If the failure of the architect’s performance is so clear that professional negligence may be found without the aid of expert testimony, this instruction is unnecessary. 

B. Expert Testimony to Prove Standard of Care2 

Negligence is conduct that falls below a standard of care required by law for the protection of persons or property from foreseeable risks of harm. 

In a suit against an architect, jurors normally are not qualified to supply the standard of care by which to measure the defendant's conduct. Based upon their common knowledge alone, without technical training, jurors usually cannot know what conduct constitutes standard architectural practice. Therefore, ordinarily, when an architect is charged with negligence, the standard of practice by which his/her conduct is to be judged must be furnished by expert testimony; that is to say, by the testimony of persons who by knowledge, training or experience are deemed qualified to testify and to express their opinions on standard architectural practice. 

As jurors, you should not speculate or guess about the standards which the average architect should follow. In a case such as this, you as jurors must determine what is standard architectural practice from the testimony of the expert witnesses who have been heard in this case. After hearing such testimony and deciding what standard architectural practice is in the circumstances of this case, you as jurors must then determine whether the defendant has complied with or whether defendant has CHARGE 5.52 ― Page 5 of 7 

departed from that standard of care. If you find that the defendant has complied with this standard, he/she is not liable to the plaintiff, regardless of the result of his/her work. On the other hand, if you find that the defendant has departed from this standard of care, and that such departure has resulted in injury or damage, then you should find the defendant liable for his/her negligence. 

Cases: 

If the failure of the architect's performance is so clear that professional negligence may be found without the addition of expert testimony, this instruction is necessary. As to the necessity of expert testimony in architectural malpractice cases, see Walker Rogge, Inc. v. Chelsea Title and Guar. Co., 222 N.J. Super. 363 (App. Div. 1988), aff’d, 116 N.J. 517 (1989); Covil v. Robert & Co., Assoc., 144 S.E.2d 450 (Ga. App. 1965); Pittman Construction Co. v. City of New Orleans, 178 So.2d 312 (La. App. 1965); Paxton v. Alameda Cty., 259 P.2d 934 (Cal. App. 1953). 

C. Common Knowledge May Furnish Standard of Care 

Negligence is the failure to comply with the standard of care required by law to protect a person from foreseeable risks of harm. Negligence in an architect's practice is the architect's failure to comply with the standard of care required by law in the performance of his/her duties. Usually it is necessary to establish the standard of care by expert testimony, that is, by testimony of persons who are qualified by their training, study and experience to give their opinions on subjects not generally CHARGE 5.52 ― Page 6 of 7 

understood by persons who lack such special training or experience. In the usual case, standard architectural practice by which to judge defendant's conduct cannot be determined by the jury without the assistance of expert testimony. 

However, in some cases, such as the case at hand, the jury may determine from its common knowledge and experience the standard of care by which to judge defendant's conduct. In this case, plaintiff contends that defendant violated the duty of care he/she owed to plaintiff by doing ______________/by failing to do ______________. In this case, therefore, it is for you, as jurors, to determine, based upon common knowledge and experience, what skill and care the average architect would have exercised in the same or similar circumstances. It is for you as jurors to say from your common knowledge and experience whether defendant did something which the average member of his/her profession would not have done or whether defendant failed to do something or failed to take some measure that the average member of his/her profession would have done or taken in the circumstances of this case. 

NOTE TO JUDGE 

Where there has been expert architectural testimony as to the standard of care but the standard is one which can also be determined by the jury from its common knowledge and experience, the jury should determine the standard of care after considering all the evidence in the case, including the expert architectural testimony, as well as its own common knowledge and experience. CHARGE 5.52 ― Page 7 of 7 

After determining the standard of care required in the circumstances of this case, you should then consider the evidence to determine whether defendant has complied with or departed from that standard of care. If you find that defendant has complied with that standard, he/she is not liable to the plaintiff, regardless of the result of his/her work. On the other hand, if you find that the defendant has departed from that standard of care, and that such departure has resulted in an identifiable injury or damage, then you should find defendant liable for his/her negligence.    

5.51B PROXIMATE CAUSE IN LEGAL MALPRACTICE INVOLVING INADEQUATE OR INCOMPLETE LEGAL ADVICE model jury charge

 5.51B PROXIMATE CAUSE IN LEGAL MALPRACTICE INVOLVING INADEQUATE OR INCOMPLETE LEGAL ADVICE  model jury charge

Proximate cause means that the negligence of the [Defendant] was a substantial factor in bringing about harm to the [Plaintiff]. 

To find proximate cause, it is not necessary that the negligence of the defendant be the sole cause of the plaintiff's harm. The law recognizes that in the case of legal malpractice there may be any number of factors that led to the plaintiff's harm. However, in order for the defendant's conduct to be considered a proximate cause of the plaintiff's harm, the negligence of the defendant must have been a substantial factor in bringing about that harm, and in addition some harm must have been foreseeable.1 

For the harm to be considered foreseeable, it is not necessary that the precise harm that occurred here was foreseeable by the defendant. Rather if some harm from the defendant's negligence was within the realm of reasonable foreseeability, then the harm is considered foreseeable. 

In sum, in order to find proximate cause, you must find that the negligence of the defendant in providing inadequate or incomplete legal advice was a substantial factor in bringing about the harm that occurred and that some harm to the plaintiff was foreseeable from the defendant's negligence. 

1 Conklin v. Hannoch Weisman, 145 N.J. 395, 418-22 (1996). The trial court should be aware that, in certain factual circumstances, foreseeability might be a "red herring," 145 N.J. at 420, and the language regarding foreseeability would be eliminated.