If you find that the plaintiff and one
or more individuals or entities were [negligent/at
fault] and proximately caused the [accident/injury],
then you must compare the [negligent conduct/fault]
of those individuals or entities in terms of percentages. You will attribute to each of them that
percentage that you find describes or measures his/her/its [negligent contribution/fault] in
proximately causing the [accident/injury].
The percentages must add up to 100%. You should not allocate any percentage to any individual
or entity who you have found was not both [negligent/at
fault] and a proximate cause of the [accident/injury].
I will explain to you the effect of
these percentages. In order for the
plaintiff to recover against any defendant, plaintiff’s percentage of fault
must be 50% or less. If the plaintiff’s percentage
is more than 50%, he/she will not recover damages at all and your deliberations
are concluded and you should not make any determination as to damages. A plaintiff whose percentage is 50% or less
will recover from any defendant, whose fault you have found was a proximate
cause of the [accident/injury].
NOTE TO JUDGE
The ultimate outcome
charge is required where the jury apportions negligence (fault) between
plaintiff and one or more tortfeasor. It is not to be used to tell a jury the
effect of its apportioning negligence (fault) between or among joint
tortfeasors when plaintiff is not negligent (at fault). Brodsky v. Grinnel1 Haulers, Inc., 181 N.J. 102, 122 (2004) (holding reversible error as “irrelevant” to
jury’s function of apportioning fault percentages and “highly prejudicial” to
tortfeasors). “New Jersey law favors the
apportionment of fault among responsible parties.” Verni
ex rel. Burstein v. Stevens, 387 N.J.
Super. 160, 206 (2006), certif.
denied, 189 N.J. 429 (2007). “The
guiding principle of our State’s comparative fault system has been the
distribution of loss “in proportion to the respective faults of the parties
causing that loss.” Brodsky, 181 N.J. at
114. Apportionment of fault is favored
under New Jersey law and is mandated when liability is in dispute. Boryszewski
v. Burke, 380 N.J. Super. 361,
374 (App. Div. 2005), certif. denied,
186 N.J. 242 (2006). The quantum of
evidence required to qualify for an apportionment charge is low. Id. See
also R. 4:5-1(b); Holloway v. State, 125 N.J. 386, 400-401 (1991) (The Joint
Tortfeasors Contribution Law “was enacted to promote the fair sharing of
judgment by joint tortfeasors and to prevent a plaintiff from arbitrarily
selecting his or her victim.”).
Fault should be used
where the cause of action involves liability for non-negligent conduct. See,
e.g., fn. 9, infra. See also fn. 3, infra.
If one of the
parties’ liability is based on strict liability or statutory liability, such as
for a dangerous condition of public property, N.J.S.A. 59:4-2, you should substitute a suitable phrase like
“produced an unfit product” or “palpably unreasonable conduct” for negligent.
Suitable change should be made elsewhere in the charge, where the word
“negligent” or negligence” appears. See
Williams v. Phillipsburg, 171 N.J.
Super. 278 (App. Div. 1979). There also are instances in which the term
“accident” is inappropriate. “Incident’’ or “event” may be suitable
substitutions. Where the plaintiff’s negligence (fault) did not cause the
accident (liability) but may have contributed to his/her injuries (damages),
then his/her negligence (fault) is best discussed as one of the causes of
his/her injuries (damages) rather than as a cause of the accident (liability).
The use of the
phrase “individual or entity” is to bring this charge in line with the Supreme
Court’s decision in Krzykalski v. Tindall,
232 N.J. 525 (2018), holding that a
jury properly apportioned fault between a named party defendant and a known but
unidentified “John Doe” defendant.
Notably, the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8, requires “the ‘jury to make a
good-faith allocation of the percentages of negligence among joint tortfeasors
based on the evidence -- not based on the collectability or non-collectability”
of the tortfeasors’ respective shares of the damages.’” Id. at 535.
As to the appropriateness
of apportioning negligence (fault) among settling and non-settling defendants, See Young v. Latta, 123 N.J. 584 (1991).
As to the
appropriateness of trier of fact allocating percentage of negligence (fault) to
Defendant dismissed from medical malpractice case for failure to timely serve
Affidavit of Merit, See Burt v. W. Jersey
Health Systems, 339 N.J. Super
296 (App. Div. 2001).
As to the
inappropriateness of trier of fact considering negligence (fault) of employer
immune from suit because of Workers’ Compensation Act, See Ramos v. Browning Ferris Industries of Southern Jersey, Inc.,
103 N.J. 177 (1986).
As to the
appropriateness of trier of fact to determine comparative negligence (fault) of
party dismissed following discharge in bankruptcy. See Brodsky, 181 N.J. at
116.
For cases where
comparative negligence and intentioned conduct are at issue and should be
apportioned by a jury, See Steele v.
Kerrigan, 148 N.J. 1 (1997); See also Blazovic v. Aldrich, 124 N.J. 90 (1991). A comparison between the plaintiff’s conduct
and defendant’s conduct is appropriate even when the plaintiff has acted in a
wanton, willful, or reckless manner. See McCann v. Lester, 239 N.J. Super.
601, 609-610 (App. Div. 1990).
For
inappropriateness of comparative negligence in product liability context. See Johansen v. Makita U.S.A., Inc., 128
N.J. 86 (1992). See also Cavanaugh v. Skil Corp., 331 N.J. Super 134, 189 (App. Div. 1999), aff’d, 164 N.J. 1, 4
(2000) (Suter rule applies in all
workplace contexts, including construction sites). As to applicability of Suter to negligence in a factory setting, see Green v. Sterling Extender Corp.,
95 N.J. 263 (1984) and Ramos v. Silent Hoist and Crane Co., 256
N.J. Super. 467 (App. Div. 1992).
For appropriateness
of comparative negligence (fault) in cases involving public entities, See Frugis v. Bracigliano, 177 N.J. 250 (2003) (Special charge for duty
of school boards to ensure students safety from foreseeable harm of negligent
and intentional conduct). See also Jones v. Morey’s Pier, Inc., 230 N.J. 142 (2017) (permitting the potential for apportionment of
liability where public entity defendant was immune pursuant to the Tort Claims
Act and where other defendants were permitted to establish that the public
entity defendant was still at fault and was a proximate cause of plaintiff’s
injury).
As to the
appropriateness of jury or judge to apportion negligence (fault) in an
environmental action and the effect of apportionment, See N.J.S.A. 2A:15-5 d
(1) (2) (3).
The ultimate outcome
charge is not to be confused with whether contribution has been sought among
joint tortfeasors. Each party alleged to
be negligent (at fault) is entitled to know the extent of his/her/its/their own
negligence (fault). Bolz v. Bolz, 400 N.J. Super.
154 (App. Div. 2008). Cf. R. 4:7-5(c) (“A non-settling
defendant’s failure to have asserted a cross-claim for contribution against a
settling defendant, however, shall not preclude an allocation of a percentage
of negligence by the finder of fact against the settling defendant or a credit
in favor of the non-settling defendant consistent with that allocation,
provided plaintiff was fairly apprised prior to trial that the liability or the
settling defendant remained an issue and was accorded a fair opportunity to
meet that issue at trial.”).
Source: https://njcourts.gov/attorneys/civilcharges.html
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