N.J. Model Civil Jury Charge 5.10F

5.10F NEGLIGENCE — EMOTIONAL DISTRESS FROM

WITNESSING SERIOUS INJURY TO AN INTIMATE

FAMILY MEMBER (Approved 5/84)

In this case, plaintiff seeks to rec over against the defendant on his/her own

behalf, contending that de fendant’s negligence caused the plaintiff severe

emotional and mental distress as a result of observing the injury to [victim’s name]

for which injury plaintiff contends the defendant’s negligence was responsible.

NOTE TO JUDGE

If the court has already instructed the jury on the issue of liability vis-a-vis the victim and the defendant, use the following instruction.

You should understand that if you have found in accordance with my

previous instructions that the injury to (victim’s name) was not a result of

defendant’s negligence, then the plaintiff who witnessed the injury cannot recover

damages from the defendant for emotional distress.

NOTE TO JUDGE

If the court has not previously instructed the jury on liability vis-a-vis

the victim and the defendant, use the following instruction.

You the jury, must determine, whethe r the injury to (victim’s name) was

caused by the negligence of the defendant. If you find that the injury was not a

result of defendant’s negligence, then the plaintiff who witnessed the injury cannot

recover damages from the defendant for emotional distress. These are the criteria

by which you are to determine whether th e defendant was negligent for causing

injury to (victim’s name):

NOTE TO JUDGE

Here give instructions regarding the traditional elements of the cause

of actions vis-a-vis the victim and the defendant.

If you have determined that [victim’s name]’s injury was caused by the

negligence of the defendant, then you must consider whether the plaintiff has

proven the following elements by a fair preponderance of the evidence.

1

1The Committee on Model Jury Charges, Civil, recognizes that the existence of a “marital or

intimate familial relationship” is an essential element of the cause of action for negligent

infliction of emotional distress. Portee v. Jaffee , 84 N.J. 88, 98-99 (1980). However, the

Committee believes that the court should decide this element as a matter of law since it goes to

the heart of the existence or non-existence of defendant’s duty. While the issue was not

specifically addressed in Portee, it was held to be an issue for the court in Dillon v. Leqq, 441

P.2d 912 (Cal. Sup. Ct. 1968) and the subsequent case of Mobaldi v. Board of Regents, 127 Cal.

Retr. 720 (Cal. App. Ct. 1976). The New Jersey Supreme Court in Portee relied heavily on the

Dillon decision.

1. That the defendant’s negligence (fault) caused serious bodily injury

(or death) to (victim’s name).

2. That plaintiff in fact witnessed the accident or event which caused

serious bodily-injury (or death) to (victim’s name).

3. That plaintiff experienced severe emotional distress as a result of the

observation of the accident or event.

If plaintiff has proven each of these el ements by a fair preponderance of the

evidence then the defendant is liable to the plaintiff for money damages resulting

from the infliction of emotional distress. You must then set an amount of money

damages which will compensate plaintiff for the mental and emotional anguish,

distress and harm suffered by plaintiff.

NOTE TO JUDGE

Here insert standard charge for special damages, disability and pain

and suffering where appropriate under the evidence.

NOTE TO JUDGE

The court should instruct the jury th at the plaintiff’s verdict will be

reduced by the percentage of the victim’s negligence, if any, as well

as the percentage of plaintiff’s negligence, if appropriate under the

evidence. See Portee v. Jaffee, 84 N.J. 88, 101-102 (1980).