7.31 COMPARATIVE NEGLIGENCE: ULTIMATE OUTCOME (Approved 3/00) A. In Cases Involving Only One Defendant and Plaintiff is Alleged to Have Been Negligent

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1 CHARGE 7.31 Page 1 of COMPARATIVE NEGLIGENCE: ULTIMATE OUTCOME (Approved 3/00) A. In Cases Involving Only One Defendant and Plaintiff is Alleged to Have Been Negligent If you find that both the plaintiff and the defendant were negligent, 1 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.

2 CHARGE 7.31 Page 2 of 14 In that event, you must stop your deliberations without making any determination as to damages. 2 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.

3 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 considering plaintiff's claim for damages. 3 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: 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.

4 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 determination as to damages. 4 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 causes of action, 5 arose on or after December 18, 1987, L. 1987, c. 325, 1 and 2 (N.J.S.A. 2A: et seq.) 6 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 before June 29, 1995, L. 1997, c See footnote 2. 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: 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.

5 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 conduct 8 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 not then make any determination as to damages. 9 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 9 See footnote 1. See footnote 2.

6 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 attributable to that defendant s negligence See footnote 1.

7 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 defendant s negligence. 11 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 causes of action, filed after September 27, 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 make See footnote 1. See footnote 7.

8 CHARGE 7.31 Page 8 of 14 any determination as to damages. 13 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.

9 CHARGE 7.31 Page 9 of 14 C. In Cases Involving Two Defendants With Cross-Claims For Contribution and Plaintiff is Not Alleged to Have Been Negligent Where the cause of action arose prior to December 18, If you find that both defendants were negligent and proximately caused the accident, then you must compare their negligent conduct in terms of percentages. 15 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. 16 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 17 but will not affect the plaintiff at all 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, (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 See footnote See note 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...

10 CHARGE 7.31 Page 10 of Where the cause of action, other than medical malpractice causes of action, 19 arose on or after December 18, 1987, L. 1987, c. 325, 1 and 2 (N.J.S.A. 2A: 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 before 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: 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.

11 CHARGE 7.31 Page 11 of 14 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 lost wages, lost earnings, loss or impairment of earning capacity as well as medical services, dental services, hospital expenses, medicine, medical supplies, therapy and any other medical treatment 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. A defendant found to be 60% or more responsible for the total damages is liable to the plaintiff for the total amount of the award. A defendant found to be more than 20% but less than 60% responsible for the damages is liable for the full amount of economic damages plus the percentage of non-economic damages you find are directly attributable to his/her negligence See footnote 1.

12 CHARGE 7.31 Page 12 of 14 Any defendant who is compelled to pay more than his/her percentage share may seek reimbursement from the other joint tortfeasors. Therefore, you will attribute to each defendant the percentage that describes or measures that defendant's contribution to the happening of the accident. 3. Where the cause of action is based upon medical malpractice and filed after June 29, 1995, L. 1995, c. 140, or, in all other causes of action, filed after September 27, The allocation you make among the defendants will determine how much of the plaintiff's damages each defendant will pay. A defendant found to be 60% or more responsible for the total damages is liable to the plaintiff for the total amount of the award. A defendant found to be less than 60% responsible for the damages is liable only for the amount of damages directly attributable to his/her negligence or fault. 24 Any defendant who is compelled to pay more than his/her percentage share may seek reimbursement from the other joint tortfeasors. Therefore, you will attribute to each defendant the percentage that describes or measures that defendant's contribution to the happening of the accident See footnotes 20 and 21. See footnote 1.

13 CHARGE 7.31 Page 13 of 14 D. Environmental Torts 1. Where the cause of action was filed after September 27, 1995 and no final judgment has been entered, L. 1997, c. 90. If the court determines that the claim is based on an environmental tort it must then determine if fault can be apportioned. 25 IF FAULT CANNOT BE APPORTIONED: The plaintiff may recover the full amount of the compensatory damages from any party determined to be liable. Any defendant who is compelled to pay more than his/her percentage share may seek reimbursement from the other joint tortfeasors. 26 However, if you find a defendant to be 5% or less at fault for the injury, the plaintiff may recover only that percentage of the damages from such defendant. IF FAULT CAN BE APPORTIONED: 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 25 The definition of an environmental tort is found at N.J.S.A. 2A:15-5.3(f). 26 This situation presents an interesting quandary. It applies only when the fault cannot be apportioned. However, allocation among the defendants for contribution purposes requires some form of allocation. It would appear that in this circumstance, allocation must be on some theory other than fault, e.g., market share allocation.

14 CHARGE 7.31 Page 14 of 14 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 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 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 make any determination as to damages. 27 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 injury. The allocation that you make among the defendants will determine how much of the plaintiff s damages they will pay. As to the effect of your allocation of defendants negligence or fault, plaintiff may recover from any defendant only that percentage of the total damages attributable to that defendant See footnote 2. Where there is an insolvent, non-settling party, that party s proportionate share shall be allocated to each of the other non-settling parties whose degree of fault exceeds 5% in a pro rata manner. This should be done by the court when molding the verdict.