N.J. Model Civil Jury Charge 1.17

1.17 INSTRUCTIONS TO JURY IN CASES IN WHICH ONE OR

MORE DEFENDANTS HAVE SETTLED WITH THE

PLAINTIFF (Approved 05/1997; Revised 01/2025)

[Name] was originally named as a defendant in this case. [Choose appropriate

option: Before the trial started/During the trial,] plaintiff and [named defendant(s)]

resolved their differences. As a result, [name] will not be present or represented by

an attorney during this trial.

You are not to speculate as to the reasons why the plaintiff and [defendant]

settled their dispute. You should not be concerned about the amount, if any, that

may have been paid to resolve the claim against [defendant]. You must decide the

case based on the evidence you find credible and the law presented at this trial.

Initially you will have to decide whether or not the remaining defendants were

negligent, proximately causing the accident. The burden of proof on these issues is

on plaintiff [name]. If you find that one or more of the remaining defendants were

negligent and that such negligence was a proximate cause of the accident, you must

next consider the conduct of the settling defendant. You will have to determine

whether or not the settling defendant [name] was negligent and a proximate cause of

the accident. The burden of proving that the settling defendant was at fault is on the

remaining defendant(s).

In the event that you find that a settling defendant was negligent and a

proximate cause of the accident, you must apportion fault in terms of percentages

among/between the settling defendant(s) and the remaining defendant(s).

NOTE TO JUDGE

In Hernandez v. Chekenian , 447 N.J. Super. 355 (Law Div. 2016),

Judge Rea held that Model Civil Jury Charges 1.11G and 1.17 should

only be used in cases where the defendant settles during trial. It should

not be given when defendants settle before the trial begins because it is

irrelevant and unduly prejudicial. In dicta, he questioned the use of the

terms “settlement” and “settled” as being irrelevant as well as

prejudicial. This case, while published, has not been the subject of

appellate review. But see Theobold v. Angelos, 40 N.J. 295 (1963), in

which the New Jersey Supreme Court held that jurors have to be told

the facts of a settlement in order to avoid juror speculation and that the

danger of this speculation arises whenever a jury is asked to make a

liability determination regarding an absent party, regardless of whether

that party appeared for any portion of the trial.

Cases:

Theobald v. Angelos, 44 N.J. 228 (1965); Cartel Capital Corporation

v. Fireco of New Jersey, 81 N.J. 548, 569 (1980); Kiss v. Jacobs, 138

N.J. 278, 283 (1994) (fact finder must assess the negligence of the

settling defendant as to the non-settling defendant ); Shatz v. TEC

Technical Adhesives, 174 N.J. Super. 135 (App. Div. 1980) (defendant

has the burden of proving that a settling defendant was negligent). As

to whether settlements are admissible into evidence, see Shankman v.

State, et al., 184 N.J. 187, 207-208 (2005).