5.40J COMPARATIVE FAULT

5.40J           Comparative Fault[1] (9/09)

          Defendant contends that plaintiff was at fault for the happening of the accident.  To prevail on this claim, defendant must prove that plaintiff deliberately and knowingly acted in such a way as to create or materially increase a risk of injury and that such action was a proximate cause of the accident.  Mere failure to discover a defect in the product or to guard against the possibility of its existence is not a defense.  In other words, defendant must prove plaintiff had actual knowledge of the particular danger and knowingly and voluntarily encountered that risk before it can be found that plaintiff was at fault.

Source: https://njcourts.gov/attorneys/civilcharges.html

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[1]  This defense is applicable to a workplace injury where the worker deliberately and knowingly acted in such a way as to create or materially increase a risk of injury.  The seminal case on employee comparative negligence is Suter v. San Angelo Foundry & Machine Company, 81 N.J. 151 (1979).  Suter held that an employee, engaged at his assigned task on a plant machine, has no “meaningful choice” in whether to use the allegedly defective machine, therefore the employee cannot be said to be guilty of comparative negligence.  Suter at 167.   Later cases clarified the point and held that, in specific instances where there is evidence that an employee did have a meaningful choice; the employee’s fault can and should be considered by the jury. 

Caution:  Butler v. PPG Industries, Inc., 201 N.J. Super. 558 (App. Div. 1985) is the only reported decision since Suter where it was found that the issue of the employee’s comparative fault was properly left to the jury to decide.  In Butler, the evidence indicated that the plaintiff employee was aware of the specific dangers associated with using a caustic chemical but used it without wearing safety gear or protective clothing supplied to him.  See also, Cavanaugh v. Skil Corp., 231 N.J. Super. 134 (App. Div. 1999), aff’d 164 N.J. 1 (2000) where it was held that where an employee intentionally circumvents a safety device, his behavior is properly considered by the jury on the issue of proximate cause but not on comparative fault.