4.10D D. FORM OF CONTRACT

Civil Model Jury Charge  4.10D  FORM OF CONTRACT

 (Approved 5/98) 

There is no requirement that a contract be in writing, that it be dated, or that it be signed by either party.1 It can be entirely oral, or it can be partly oral and partly in writing. 

A contract can be made of several different documents if the parties intended that their agreement would include the various documents together. 

1Unless the Statute of Frauds or some other statute applies and requires that a particular agreement is in writing.  

Statute of Limitations and tolling 2A:14-2 Actions for injury caused by wrongful act negligence

Statute of Limitations and tolling

2A:14-2   Actions for injury caused by wrongful act negligence, appointment of guardian ad litem.
2A:14-2. a. Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this  State shall be commenced within two years next after the cause of any such action shall have accrued; except that an action by or on behalf of a minor that has accrued for medical malpractice for injuries sustained at birth shall be commenced prior to the minor's 13th birthday.

b.In the event that an action by or on behalf of a minor that has  accrued for medical malpractice for injuries sustained at birth is not commenced by the minor's parent or guardian prior to the minor's 12th birthday, the minor or a person 18 years of age or older designated by the minor to act on the minor's behalf may commence such an action.  For this purpose, the minor or designated person may petition the court for the appointment of a guardian ad litem to act on the minor's behalf.

L.1951 (1st SS), c.344; amended 2004, c.17, s.3.

 
2A:14-2.1.  2 years;  action by parent or other person for injury to minor child;  joinder with action on behalf of minor child
    Where a parent or other person has a claim for damages suffered by him because of an injury to a minor child caused by the wrongful act, neglect or default of any person within this State, an action at law upon such claim may be commenced by the said parent or other person within the same period of time as provided by law in the case of the said minor child so injured, provided that, if an action is commenced by or on behalf of the said minor child, the said claim of the parent or other person shall be asserted and maintained in such action brought on behalf of the injured minor child either as a plaintiff or third party plaintiff and if not so asserted shall be barred by the judgment  in the action brought on behalf of said injured minor child.

     L.1964, c. 214, s. 1.

 
2A:14-3.  1 year;  libel or slander
    Every action at law for libel or slander shall be commenced within 1 year next after the publication of the alleged libel or slander.

      Section: 2A:14-21: Disabilities affecting limitation; action on behalf of minor.

          

2A:14-21. If a person entitled to commence an action or proceeding specified in N.J.S.2A:14-1 to 2A:14-8 or N.J.S.2A:14-16 to 2A:14-20 or to a right or title of entry under N.J.S.2A:14-6 is under the age of 18 years or a person who has a mental disability that prevents the person from understanding his legal rights or commencing a legal action at the time the cause of action or right or title accrues, the person may commence the action or make the entry, within the time as limited by those statutes, after reaching majority or having the mental capacity to pursue the person's lawful rights. Notwithstanding the provisions of this section to the contrary, an action by or on behalf of a minor that has accrued for medical malpractice for injuries sustained at birth shall be commenced prior to the minor's 13th birthday, as provided in N.J.S.2A:14-2.

7.13 NEGLIGENCE – INTOXICATION Civil model jury charge

CHARGE 7.13 — Page 1 of 2 

 7.13 NEGLIGENCE – INTOXICATION (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). CHARGE 7.13 — Page 2 of 2 

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). 

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.