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821COMPARATIVE NEGLIGENCE ULTIMATE OUTCOME (493)

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821COMPARATIVE NEGLIGENCE ULTIMATE OUTCOME (493)

     CHARGE 7.31 Page 1 of 14

7.31 COMPARATIVE NEGLIGENCE: ULTIMATE OUTCOME

    (Approved 3/00)

     A. In Cases Involving Only One Defendant and Plaintiff is Alleged to

    Have Been Negligent

    1 If you find that both the plaintiff and the defendant were negligent, and

    proximately caused the accident, then you must compare their negligent conduct in

    terms of percentages. You will attribute to each of them that percentage that you find

    describes or measures his/her negligent contribution to the happening of the accident.

     The percentages must add up to 100%.

     I will explain to you the effect of these percentages. If you attribute to the

    plaintiff a percentage of negligent conduct of 50% or less, then the court will reduce

    his/her recovery of damages by his/her percentage of the negligence that proximately

    caused the accident. If you attribute to the plaintiff a percentage greater than 50%,

    then he/she will not recover damage from the defendant at all.

     1 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 “at fault” 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 did not cause the accident but may have contributed to his/her injuries, as in the case of an auto

    passenger, then his/her negligence is best discussed as one of the causes of his/her injuries rather than

    as a cause of the accident.

     CHARGE 7.31 Page 2 of 14

In that event, you must stop your deliberations without making any determination as

    2to damages.

     B. In Cases Involving Two Defendants and Plaintiff is Alleged to Have

    Been Negligent

     1. Where the cause of action occurred prior to December 6, 1982:

    Pre L. 1982, c. 191 (N.J.S.A. 2A:15.1 et seq.)

     If you find that the plaintiff and one or both of the defendants were negligent

    and proximately caused the accident, then you must compare the negligent conduct

    of those parties in terms of percentages. You will attribute to each of them that

    percentage that you find describes or measures his/her negligent contribution to the

    happening of the accident. The percentages must add up to 100%. You should not

    allocate any percentage to any party who you have found was not both negligent and

    a proximate cause of the accident.

     I will explain to you the effect of these percentages. In order for the plaintiff

    to recover against any defendant, plaintiff's percentage of negligent conduct must be

    50% or less and may not be greater than the defendant from whom he/she seeks

    recovery. Thus, a plaintiff whose percentage is more than 50% will not recover

    damages at all. A plaintiff whose percentage is 50% or less will recover from any

    defendant whose percentage is, the same as, or more than that of plaintiff. If you find

     2 See Johnson v. Salem Corp., 97 N.J. 78, 97 (1984) as to direction that juries are not to

    consider damages if a verdict of no cause of action is to be entered.

     CHARGE 7.31 Page 3 of 14

that plaintiff's negligence is 50% or less, but greater than that of each of the

    defendants, plaintiff will recover no damages, even if the total negligence of all

    defendants is greater than that of plaintiff.

     In the event that you conclude under either of the preceding alternatives that

    plaintiff is not entitled to recover, you should conclude your deliberations without

    3considering plaintiff's claim for damages.

     If you attribute to the plaintiff a percentage of negligence of 50% or less, then

    the court will reduce any damages to which plaintiff is entitled by that percentage.

     2. Where the cause of action occurred on or after December 6,

    1982: Post L. 1982, c. 191 (N.J.S.A. 2A:15-5.1 et seq.) and

    before December 18, 1987 (N.J.S.A. 2A:15-5.3)

     If you find that the plaintiff and one or both of the defendants were negligent

    and proximately caused the accident, then you must compare the negligent conduct

    of those parties in terms of percentages. You will attribute to each of them that

    percentage that you find describes or measures his/her negligent contribution to the

    happening of the accident. The percentages must add up to 100%. You should not

    allocate any percentage to any party who you have found was not both negligent and

    a proximate cause of the accident.

     3 See footnote 2.

     CHARGE 7.31 Page 4 of 14

     I will explain to you the effect of these percentages. In order for the plaintiff

    to recover against any defendant, plaintiff's percentage of negligent conduct 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

    4determination as to damages. A plaintiff whose percentage is 50% or less will

    recover from any defendant whose negligent conduct you have found was a

    proximate cause of the accident.

     If you attribute to the plaintiff a percentage of 50% or less, then the court will

    reduce his/her recovery of damage by his/her percentage of negligence.

    3. Where the cause of action, other than medical malpractice

    5causes of action, arose on or after December 18, 1987, L. 61987, c. 325, ?1 and ?2 (N.J.S.A. 2A:15-5.2 et seq.) and was

    filed before September 27, 1995, L. 1997, c. 90, and where the

    cause of action is based on medical malpractice, and was filed 7before June 29, 1995, L. 1997, c. 90.

     4 See footnote 2. 5 This section does not apply to an “environmental tort action”, see N.J.S.A. 2A:15-5.3(d), or to a defendant which is a public entity. N.J.S.A. 59:9-3.1. 6 Jury should determine the amount of economic and non-economic damages which would be

    recoverable by the plaintiff regardless of any consideration of negligence; i.e., the full value of the plaintiff's damages. See N.J.S.A. 2A:15-5.3(b) & (f)(2).

    7 The applicability date of September 27, 1995 for non-medical malpractice cases applies only

    to those actions in which there has been no final judgment.

     CHARGE 7.31 Page 5 of 14

     If you find that more than one party was negligent and proximately caused the

    accident, then you must compare the negligent conduct of those parties in terms of

    percentages. You will attribute to each of them that percentage which you find

    describes or measures his/her negligent contribution to the happening of the accident.

     The percentages must add up to 100%. You should not allocate any percentage to

    any party who you have found was not both negligent and a proximate cause of the

    accident.

     I will explain to you the effect of your allocation of percentages. In order for

    the plaintiff to recover against any defendant, plaintiff's percentage of negligent

    8conduct 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. You should

    9not then make any determination as to damages.

     A plaintiff whose percentage is 50% or less will recover from any defendant

    whose negligent conduct was a proximate cause of the accident. However, the court

    will reduce his/her recovery by that percentage you find measures the plaintiff's

    contribution to the happening of the accident. The allocation you make among the

    defendants will determine how much of the plaintiff's damages they will pay.

     8 See footnote 1. 9 See footnote 2.

     CHARGE 7.31 Page 6 of 14

    [The following language is optional and is not ordinarily given.]

     In this respect the law distinguishes between two types of damages economic and non-economic.

     Let me explain the difference between “economic” and “non-economic” damages:

     “Economic damages” means financial or money loss and is limited to past and

    future lost wages and medical expenses.

     “Non-economic damages” means subjective, non-monetary losses, including, but not limited to, disability and impairment, pain and suffering, loss of enjoyment

    of life, inconvenience, mental anguish, emotional distress, loss of society and

    companionship, loss of consortium, and destruction of the parent-child relationship.

    As to the effect of your allocation of negligence among the defendants, plaintiff may

    recover all of his/her damages from a defendant found to be 60% or more responsible

    for the total damages. A plaintiff may recover from a defendant found to be more

    than 20% but less than 60% responsible for the damages the full amount of economic

    damages plus the percentage of non-economic damages that you find are directly

    10attributable to that defendant’s negligence.

     10 See footnote 1.

     CHARGE 7.31 Page 7 of 14

     Plaintiff may recover from a defendant found to be 20% or less responsible for

    the damages only that percentage of the damages directly attributable to that

    11defendant’s negligence.

     Any defendant who is compelled to pay more than his/her actual percentage

    share may seek reimbursement from the other joint tortfeasors.

    4. Where the cause of action is based upon medical malpractice

    and filed after June 29, 1995, L. 1995, c. 140, or, in all other 12causes of action, filed after September 27, 1995.

     If you find that the plaintiff and one or both of the defendants were negligent

    and proximately caused the injury, then you must compare the negligent conduct or

    fault of those parties in terms of percentages. You will attribute to each of them that

    percentage that you find describes or measures his/her negligent contribution to the

    happening of the accident. The percentages must add up to 100%. You should not

    allocate any percentage to any party who you have found was not both negligent or

    at fault and a proximate cause of the accident.

     I will explain to you the effect of these percentages. In order for the plaintiff

    to recover against any defendant, plaintiff's percentage of negligent conduct or 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

     11 See footnote 1. 12 See footnote 7.

     CHARGE 7.31 Page 8 of 14

     13make any determination as to damages. A plaintiff whose percentage is 50% or less will recover from any defendant whose negligent conduct or fault you have

    found was a proximate cause of the accident.

     The allocation that you make among the defendants will determine how much

    of the plaintiff’s damages each defendant will pay.

    [The following language is optional.]

     As to the effect of your allocation of defendants’ negligence or fault, plaintiff

    may recover the full amount of his damages from any defendant found to be 60% or

    more responsible for the total damages. A defendant whose share of responsibility

    for the total damages is less than 60% shall pay only that percentage of the total

    damages to the plaintiff attributable to him/her/it.

     Any defendant who is compelled to pay more than his/her/its actual

    percentage share may seek reimbursement from the other joint tortfeasors.

     13 See footnote 2.

     CHARGE 7.31 Page 9 of 14

    C. In Cases Involving Two Defendants With Cross-Claims For 14Contribution and Plaintiff is Not Alleged to Have Been Negligent

     1. Where the cause of action arose prior to December 18, 1987.

     If you find that both defendants were negligent and proximately caused the

    15accident, then you must compare their negligent conduct in terms of percentages. You will attribute to each of them that percentage which you find describes or

    16measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%.

     I will explain to you the effect of these percentages. The percentages you find

    will decide the dispute between the defendants regarding responsibility for the

    1718accident but will not affect the plaintiff at all.

     14 The ultimate outcome charge is required where plaintiff and one defendant may both be

    causally negligent. It is not clear that the charge is required where plaintiff is not negligent but two

    defendants have cross-claims. The Committee recommends it. Regarding other possible combinations,

    such as the second example given above, the Supreme Court's warning in Roman v. Mitchell, 82 N.J. 336, 346-47 (1980), as follows should be observed:

    . . . in a complex case involving multiple issues and numerous parties,

    the trial court, in the exercise of sound discretion, could withhold the

    instruction if it would tend to mislead or confuse the jury.

     15 See footnote 1. 16 See footnote 1. 17 See note 1. 18 EXCEPT where a defendant is a public entity or public employee in which case N.J.S.A. 59:9-3.1 applies to limit liability to “no more than that percentage share of the damages which is equal

    to the percentage of the negligence attributable to that public entity or public employee . . .”

     CHARGE 7.31 Page 10 of 14

    2. Where the cause of action, other than medical malpractice 19causes of action, arose on or after December 18, 1987, L.

    1987, c. 325, ?1 and ?2 (N.J.S.A. 2A:15-5.2 et seq.) and was

    filed before September 27, 1995, L. 1997, c. 90, and where the

    cause of action is based on medical malpractice, and was filed 2021before June 29, 1995, L. 1997, c. 90.

     If you find that both defendants were negligent and proximately caused the

    accident, then you must compare their negligent conduct in terms of percentages.

    You will attribute to each of them that percentage which you find describes or

    measures his/her negligent contribution to the happening of the accident. The

    percentages must add up to 100%.

     I will explain to you the effect of these percentages. The percentages you find

    will decide the dispute between the defendants regarding responsibility for the

    accident but will not affect the plaintiff at all.

     The allocation you make among the defendants will determine how much of

    the plaintiff's damages they will pay.

    [The following language is optional.]

     19 This section does not apply to an “environmental tort action”, see N.J.S.A. 2A:15-5.3(d), or to a defendant which is a public entity. N.J.S.A. 59:9-3.1. 20 Jury should determine the amount of economic and non-economic damages which would be

    recoverable by the plaintiff regardless of any consideration of negligence; i.e., the full value of the plaintiff's damages. See N.J.S.A. 2A:15-5.3(b) & (f)(2).

    21 The applicability date of September 27, 1995 for non-medical malpractice cases applies only

    to those actions in which there has been no final judgment.

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