7.12 DUTY OF PASSENGER IN AUTOMOBILE Civil model jury charge

CHARGE 7.12 — Page 1 of 3 

 7.12 DUTY OF PASSENGER IN AUTOMOBILE (Approved 5/91) 

A passenger in an automobile must act with the same amount of care and caution for her/his own safety as an ordinary careful person would exercise under like circumstances. A passenger has the right to assume that the driver will exercise proper care and caution in driving the automobile. Until a passenger knows, or in the exercise of reasonable care should know, that the driver is incapable of operating the automobile or is operating the automobile in a negligent manner, there is no duty for the passenger to supervise the driving, to keep a lookout for danger, or to warn of a danger of which a passenger reasonably believes the driver is aware. 

[The following may be added where appropriate: 

However, while the passenger ordinarily has no duty to control or direct the driver, there is a point where reliance upon the driver ends and the duty to act begins. Thus, when it should become apparent to a reasonably careful person that the vehicle is being driven negligently, the reasonable passenger must protest or otherwise persuade the driver to drive carefully. Further if such protests are disregarded, there is a duty for the passenger to leave the car when a reasonable opportunity is afforded, if you determine that a reasonably careful person would do so under similar circumstances.] CHARGE 7.12 — Page 2 of 3 

[Alternative: 

While a passenger who has no control over the car is not responsible for the negligence of the operator of an automobile, still the passenger is required to act with such care as is reasonable for her/his own safety within the circumstances of the case. 

A passenger in a car, in the absence of any facts or circumstances indicating the contrary, can reasonably anticipate that the driver, who has exclusive control and management of the vehicle, will not proceed in a dangerous situation, or fail to keep the speed of the vehicle within proper limits. A proper passenger need not anticipate that a driver will improperly increase the risks common to travel.] 

NOTE TO JUDGE 

The above applies where the relationship of master and servant or principal and agent, or mutual responsibility in a common enterprise, does not exist. 

Cases: 

A passenger is bound to exercise such care for his/her own safety as the exigencies of the situation require. Melone v. J.C.P. & L. Co., 18 N.J. 163 (1955); Ambrose v. Cyphers, 29 N.J. 138, 150-151 (1959); Falicki v. Camden Co. Bev. Co., 131 N.J.L. 590 (E. & A. 1944). An invitee is duty bound to warn a driver only of known and appreciated peril if a reasonably prudent person would have given such warning under the same or similar circumstances and the risk could thereby have been averted. Kaufman v. P.R.R., 2 N.J. 318, 323 (1949); Kaufmann v. Huss, 59 N.J. Super. 64 (App. Div. 1960). CHARGE 7.12 — Page 3 of 3 

A peril can be said to be known and appreciated when the passenger is (1) aware of the danger, and (2) circumstances indicate to the passenger that the driver is unaware of it. Kaufmann v. Huss, 59 N.J. Super. at p. 76. 

It is a question for the jury whether a passenger, by his/her own overindulgence, contributed to his/her injury. Petrone v. Margolis, 20 N.J. Super. 180 (App. Div. 1952); Bowman v. C.R.R. of N.J., 27 N.J. Super. 370 (App. Div. 1953). 

7.11 CARE REQUIRED OF CHILDREN Civil model jury charge

CHARGE 7.11 — Page 1 of 4 

 7.11 CARE REQUIRED OF CHILDREN (Approved 5/91) 

A. In General (7 years and Older) 

A child, old enough to be capable of negligence, is required to act with the same amount of care as children of similar age, judgment and experience. In order for you to determine whether a child has acted negligently, you should take into consideration the child's age, intelligence and experience. Also you must consider the child's capacity to understand and avoid the danger to which he/she was exposed in the actual circumstances and situation in this case. You, the jury, must decide the factual question of whether this child was comparatively negligent. 

B. Where Child Under 7 Years 

There is a presumption in the law that a child under the age of seven years is not capable of acting negligently. You may reject this presumption only if the party who is claiming the child was negligent proves that this particular child had the experience and the capacity to avoid the danger which was present in this situation. CHARGE 7.11 — Page 2 of 4 

If you decided that this child had the capacity to act negligently then you must review the facts to see if the child failed to use that amount of care to avoid the danger which should have been exercised by children with like experience and intelligence. 

Cases:

Bush v. N.J. & N.Y. Transit Co., Inc., 30 N.J. 345 (1959); Dillard v. Fue, 65 N.J. Super. 234 (App. Div. 1961). 

NOTE TO JUDGE 

Between the time in life when a person is incapable of exercising the care and judgment necessary to avoid and avert danger, and the time when such person is in law an adult, responsibility depends on matters of fact and in this transition period such person may or may not be guilty of contributory negligence. 

The degree of care required of a child old enough to be capable of negligence, is such as is usually exercised by persons of similar age, judgment and experience. In order to determine whether such a child has been guilty of contributory negligence, it is necessary to take into consideration the age of the child, and its experience and capacity to understand and avoid the danger to which it is exposed in the actual circumstances and situation under investigation. 

Nichols v. Grunstein, 105 N.J.L. 363 (E. & A. 1929); Dillard v. Fue, 65 N.J. Super. 234 (App. Div. 1961). CHARGE 7.11 — Page 3 of 4 

As to children under 7, New Jersey follows the rebuttable presumption rule. Thus in Bush v. N.J. & N.Y. Transit Co., 30 N.J. 345 (1959), the Supreme Court held: 

The question of capacity or incapacity is simply a factual inquiry, and is whether the particular child has the capacity to be contributorily negligent, i.e., act unreasonably under the circumstances, in light of the age, training, judgment and other relevant factors applying to the child, and the test to be applied is that applicable to any other question of fact. The trial judge is first to view the matter and if he is of the opinion that the child, after a consideration of all relevant factors, does not have the capacity to be contributorily negligent and that reasonable men could not disagree, he then decides the question of capacity as a matter of law (emphasis added). But if the trial judge feels that reasonable men can disagree on the question of incapacity even though he himself would decide for or against incapacity, then he must allow the jury to decide the question of incapacity. The jury, if it finds the particular child at the time of the accident had capacity to be negligent, must then decide whether the particular child was negligent. Id. 354 

After a consideration of the authorities we adopt the view that a child of less than seven years of age is rebuttably presumed (emphasis added) to be incapable of negligence and hence the issue may not (emphasis added) be submitted to the jury in the absence of evidence of training and experience from which the jury could infer that the child was capable of understanding and avoiding the danger of injury involved in the circumstances of the case. . . . If evidence of capacity is introduced, then the trial judge must determine if such evidence is sufficient so that reasonable men might disagree concerning the question of whether the child CHARGE 7.11 — Page 4 of 4 

had the capacity to perceive the task and avoid the danger to himself. If the answer is in the affirmative and if there is further evidence that the child did not act in a manner which would be expected of a child of similar age, judgment and experience, then the question of contributory negligence must be submitted to the jury. Id. at 358 

N.B. The trial judge must instruct the jury that there is a presumption of incapacity, that it is first to determine whether there is such evidence sufficient to overcome the presumption of incapacity and to render the child capable of being contributorily negligent, and, then, if the jury finds that the child is capable, it must determine whether the child was contributorily negligent under the facts of the particular case. 

Additional factors which might be introduced to show that a child was capable of negligence whereas the average child the same age would not be, are, for example, his/her attending school, his/her being taught traffic safety regulations, his/her experience in caring for himself/herself in traffic, and any other evidence of the child's physical and mental capabilities. 

7.10 CONTRIBUTORY NEGLIGENCE Civil model jury charge

CHARGE 7.10 — Page 1 of 1 

 7.10 CONTRIBUTORY NEGLIGENCE (Approved 5/91) 

NOTE TO JUDGE 

Causes of action in negligence arising on and after August 22, 1973 are governed by the comparative negligence statute N.J.S.A. 2A:15-5 et seq. That statute changed the existing law. Thereafter a finding of "Contributory Negligence" no longer bars a plaintiff's claim unless that negligence was greater than the negligence of the defendant (or the combined negligence of all defendants). "Any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering". 

Retained are revised sections that present specific situations where negligence of the plaintiff may call for specific language to be charged. 

6.14 PROXIMATE CAUSE — WHERE THERE IS CLAIM OF INTERVENING OR SUPERSEDING CAUSE FOR JURY’S CONSIDERATION Civil model jury charge

CHARGE6.14—Page 1 of 3 

 6.14 PROXIMATE CAUSE — WHERE THERE IS CLAIM OF INTERVENING OR SUPERSEDING CAUSE FOR JURY’S CONSIDERATION (Approved 8/99) 

NOTE TO JUDGE 

This charge should be given in conjunction with Model Civil Charge 6.12 or 6.13 where there is also a jury question as to whether an intervening or superseding cause brought about the injury or harm. 

In this case, [name of defendant or other party] claims that the accident/incident/event or plaintiff’s injury/loss/harm was caused by an independent intervening cause and, therefore, that [name of defendant or other party] was not a contributing factor to the accident/incident/event or injury/loss/harm. 

An intervening cause is the act of an independent agency that destroys the causal connection between the defendant’s [or other party’s] negligence and the accident/incident/event or injury/loss/harm. To be an intervening cause the independent act must be the immediate and sole cause of the accident/incident/event or injury/loss/harm. The intervening cause must be one that so completely supersedes the operation of [name of defendant or other party]’s negligence that you find that the intervening event caused the CHARGE6.14—Page 2 of 3 

accident/incident/event or injury/loss/harm, without [name of defendant or other party]’s negligence contributing to it in any material way.1 In that case liability will not be established because [name of defendant or other party]’s negligence is not a proximate cause of the accident/incident/event or injury/loss/harm. 

However, [name of defendant or other party] would not be relieved from liability for his/her/its negligence by the intervention of acts of third persons, if those acts were reasonably foreseeable. By that I mean, that the causal connection between [name of defendant or other party]’s negligence and the accident/incident/event or injury/loss/harm is not broken if the intervening cause is one that might, in the natural and ordinary course of things, be anticipated as not entirely improbable.2 Where the intervention of third parties is reasonably foreseeable, then there still may be a causal connection between the defendant’s [or other party’s] negligence and the accident/incident/event or injury/loss/harm. The fact that there were intervening causes that were foreseeable or that were normal incidents of the risk created does not relieve the defendant of liability.3 

1Davis v. Brooks, 280 N.J. Super. 406, 412 (App. Div. 1993). 

2Id. 

3Rappaport v. Nichols, 31 N.J. at 203; Cruz-Mendez v. ISU, 156 N.J. 556 (1999). CHARGE6.14—Page 3 of 3 

You must determine whether the alleged intervening cause was an intervening cause that destroyed the substantial causal connection between the defendant’s negligent actions (or omissions) and the accident/incident/event or injury/loss/harm. If it did, then [name of defendant or other party]’s negligence was not a proximate cause of the accident/incident/event or injury/loss/harm. 

6.13 PROXIMATE CAUSE — WHERE THERE IS CLAIM THAT CONCURRENT CAUSES OF HARM ARE PRESENT AND CLAIM THAT SPECIFIC HARM WAS NOT FORESEEABLE Civil model jury charge

CHARGE 6.13 — Page 1 of 2 

 6.13 PROXIMATE CAUSE — WHERE THERE IS CLAIM THAT CONCURRENT CAUSES OF HARM ARE PRESENT AND CLAIM THAT SPECIFIC HARM WAS NOT FORESEEABLE (Approved 5/98) 

NOTE TO JUDGE 

This instruction is based on the Supreme Court’s decision in Conklin v. Hannoch Weisman, 145 N.J. at 416-22, and is designed to apply to appropriate negligence cases other than the legal malpractice situation discussed in Conklin. See also Yun v. Ford Motor Co., 276 N.J. Super. 142 (App. Div. 1994), rev’d, 143 N.J. 162, 163 (1996) (relying on reasons stated in Baime, J.A.D., dissenting opinion, 276 N.J. Super at 159). For the proximate cause charge in legal malpractice cases, see Model Civil Charge 5.51B. This charge can also be modified to cover “failure to act” cases. 

However, when foreseeability is a “red herring” in a particular case, Conklin, 145 N.J. at 420, it might be more appropriate to charge Model Civil Charge 6.12, which does not include foreseeability language. When there is a claim of an intervening or superseding cause, Model Civil Charge 6.14 should also be charged. 

To find proximate cause, you must first find that [name of defendant or party]’s negligence was a cause of the accident/incident/event. If you find that [name of defendant or other party]’s negligence is not a cause of the accident/incident/event, then you must find no proximate cause. 

Second, you must find that [name of defendant or other party] negligence was a substantial factor that singly, or in combination with other causes, brought about the injury/loss/harm claimed by [name of plaintiff]. By substantial, it is meant that it was not a remote, trivial or inconsequential cause. The mere circumstance that there may also be another cause of the injury/loss/harm does not CHARGE 6.13 — Page 2 of 2 

mean that there cannot be a finding of proximate cause. Nor is it necessary for the negligence of [name of the defendant or other party] to be the sole cause of [name of plaintiff]’s injury/loss/harm. However, you must find that [name of defendant or other party]’s negligence was a substantial factor in bringing about the injury/loss/harm. 

Third, you must find that some injury/loss/harm to [name of plaintiff] must have been foreseeable. For the injury/loss/harm to be foreseeable, it is not necessary that the precise injury/loss/harm that occurred here was foreseeable by [name of defendant or other party]. Rather, a reasonable person should have anticipated the risk that [name of defendant or other party]’s conduct [omission] could cause some injury/loss/harm¹ suffered by [name of plaintiff]. In other words, if some injury/loss/harm from [name of defendant or other party]’s negligence was within the realm of reasonable foreseeability, then the injury/loss/harm is considered foreseeable. On the other hand, if the risk of injury/loss/harm was so remote as not to be in the realm of reasonable foreseeability, you must find no proximate cause. 

In sum, in order to find proximate cause, you must find that the negligence of [name of defendant or other party] was a substantial factor in bringing about the injury/loss/harm that occurred and that some harm to [name of plaintiff] was foreseeable from [name of defendant or other party]’s negligence. 

¹It is important to note that the severity of injury or harm is not germane to a proximate cause finding.  

CHARGE 6.12 — Page 1 of 2 6.12 PROXIMATE CAUSE — WHERE THERE IS CLAIM THAT CONCURRENT CAUSES OF HARM WERE PRESENT Civil model jury charge

CHARGE 6.12 — Page 1 of 2 

 6.12 PROXIMATE CAUSE — WHERE THERE IS CLAIM THAT CONCURRENT CAUSES OF HARM WERE PRESENT (Approved 5/98) 

NOTE TO JUDGE 

This charge is designed to address the more complex case where a defendant’s (or a party’s) negligent conduct combines with other causes that lead to the plaintiff’s injury (or harm). Conklin v. Hannoch Weisman, 145 N.J. at 417; Camp v. Jiffy Lube #114, 309 N.J. Super. at 309. However, the present charge is not intended to address those causes where there is an issue as to: (1) the foreseeability of the injury or harm; or (2) an intervening or superseding cause. The trial judge should employ Model Civil Charge 6.13 for cases where the foreseeability of the injury or harm is an issue. Depending upon the facts of the case, Model Civil Charge 6.14 should be used in conjunction with Model Civil Charge 6.12 or 6.13 if there is an issue as to intervening or superseding causes. 

To find proximate cause, you must first find that [name of defendant or other party]’s negligence was a cause of the accident/incident/event. If you find that [name of defendant or other party] is not a cause of the accident/incident/event, then you must find no proximate cause. 

Second, you must find that [name of defendant or other party]’s negligence was a substantial factor that singly, or in combination with other causes, brought about the accident/incident/event or injury/loss/harm claimed by [name of plaintiff]. By substantial, it is meant that it was not a remote, trivial or CHARGE 6.12 — Page 2 of 2 

inconsequential cause. The mere circumstance that there may also be another cause of the accident/incident/event or injury/loss/harm does not mean that there cannot be a finding of proximate cause. Nor is it necessary for the negligence of [name of defendant or other party] to be the sole cause of accident/incident/event or injury/loss/harm. If you find that [name of defendant or other party]’s negligence was a substantial factor in bringing about the accident/incident/event or injury/loss/harm, then you should find that [name of defendant or other party]’s negligence was a proximate cause of the accident/incident/event or injury/loss/harm. 

6.11 PROXIMATE CAUSE — ROUTINE TORT CASE WHERE NO ISSUES OF CONCURRENT OR INTERVENING CAUSES, OR FORESEEABILITY OF INJURY OR HARM Civil model jury charge

CHARGE 6.11 — Page 1 of 2 

 6.11 PROXIMATE CAUSE — ROUTINE TORT CASE WHERE NO ISSUES OF CONCURRENT OR INTERVENING CAUSES, OR FORESEEABILITY OF INJURY OR HARM (Approved 8/99) 

NOTE TO JUDGE 

This charge is designed to address proximate cause in the routine tort case when there is no issue as to concurrent or intervening causes or foreseeability. Beyond the “but for” instruction, the charge also contains substantial factor language to guide the jury’s deliberations in those cases when the injury or harm might have been sustained even if the actor had not been negligent. Vuocolo v. Diamond Shamrock Chem., 240 N.J. Super. 289, 294-95 (App. Div. 1990), certif. denied, 122 N.J. 333 (1990). However, unless there is any serious issue relating to causation, the “substantial factor” portion of the charge can be abbreviated in the fashion suggested below. 

By proximate cause, I refer to a cause that in a natural and continuous sequence produces the accident/incident/event and resulting injury/loss/harm and without which the resulting accident/incident/event or injury/loss/harm¹ would not have occurred.² A person who is negligent is held responsible for any accident/incident/event or injury/loss/harm that results in the ordinary course of 

¹When charging proximate cause on liability, use accident/incident/event, as appropriate. When charging proximate cause on damages, use injury/loss/harm, as appropriate. 

²Vuocolo v. Diamond Shamrock Chem., 240 N.J. Super. at 294; Cruz-Mendez v. ISU, 156 N.J. 556 (1999). This language has been disapproved in those cases where there are concurrent or intervening causes of harm, Conklin v. Hannoch Weisman, 145 N.J. 395, 419 (1996), but can (continued on next page) still be employed in the routine case when a claim of concurrent or intervening cause is not raised. CHARGE 6.11 — Page 2 of 2 

events from his/her/its negligence.³ This means that you must first find that the resulting accident/incident/event or injury/loss/harm to [name of plaintiff or other party] would not have occurred but for the negligent conduct of [name of defendant or other party].⁴ Second, you must find that [name of plaintiff or defendant] negligent conduct was a substantial factor in bringing about the resulting accident or injury/loss/harm.⁵ By substantial, I mean that the cause is not remote, trivial or inconsequential. 

If you find that [name of defendant or other party]’s negligence was a cause of the accident/incident/event and that such negligence was a substantial factor in bringing about the injury/loss/harm, then you should find that [name of defendant or other party] was a proximate cause of [name of plaintiff]’s injury/loss/harm. 

³Rappaport v. Nichols, 31 N.J. 188, 203 (1959). 

⁴The “but for” test for the routine case is derived from Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996); and Camp v. Jiffy Lube #114, 309 N.J. Super. 305 (App. Div. 1998). See also, Cruz-Mendez v. ISU, supra. 

⁵Vuocolo v. Diamond Shamrock Chem., 240 N.J. Super. at 294.