N.J. Model Civil Jury Charge 5.20H

5.20H DANGEROUS INSTRUMENTALITIES OR CONDITIONS

(Approved before 1983)

A. In General

The law imposes upon a defendant the duty to exercise the care that a

reasonably prudent person would exercise under all the circumstances confronting

him/her at a particular time. Failure to exercise such care constitutes negligence.

Obviously the risk of harm will vary with the circumstances. In some

settings that risk is greater than in ot hers, and, when this is so, a reasonably

prudent person will exercise a greater am ount of care, that is, care in proportion

to the increased risk.

Whoever uses a highly destructive ag ency is held to a correspondingly high

degree of care toward all persons who in the exercise of their lawful right may

come in contact with it.

The responsibility imposed is the use of reasonable care consistent with the

dangerous instrumentality employed and a proper anticipation of the results which

could be reasonably foreseen.

[Where applicable the following may be added:]

(See Beck v. Monmouth Lumber Co ., 137 N.J.L. 268,

273 (E. & A. 1947) and other cases cited below.)

Ordinarily, the adoption and operation of a method which accords with that

in general use by well regulated companie s satisfies the duty of due care owed.

But the care which must be exercised over the construction and maintenance of a

highly destructive agency requires more than the use of mere mechanical skill and

approved mechanical appliances. It also includes circumspection and foresight

with regard to reasonably probable contingencies.

It is for you to determine from the evidence whether the defendant used

reasonable care under the circumstan ces, considering the dangerous

instrumentality employed and a proper an ticipating of the results which could

reasonably have been foreseen.

Cases:

ELECTRICITY

Beck v. Monmouth Lumber Co., 137 N.J.L. 268, 273 (1947); Adams

v. Atlantic City Electric Co ., 120 N.J.L. 357 (E. & A. 1938); Heyer

v. Jersey Central Power & Light Co ., 106 N.J.L. 211 (E. & A.

1929); Manning v. Public Service Elec. & Gas Co ., 58 N.J. Super.

386, 395 (App. Div. 1959); Robbins v. Thies, 117 N.J.L. 389, 393

(E. & A. 1936); cf. Berg v. Reaction Motors Div ., 37 N.J. 396

(1962).

A number of the above cases set forth a more minute specification of

the duty owing.

GAS

Seward v. Natural Gas Co ., 11 N.J. Super. 144 (App. Div. 1950)

rev’d in 8 N.J. 45 (1952); Guzzi v. Jersey Central Power & Light Co.,

12 N.J. 251, 257 (1953); Harty v. Elizabethtown Consolidated Gas

Co., 11 N.J. Misc . 382 (C.P. 1933); Farrell v. N.J. Power & Light

Co., 111 N.J.L. 526 (E. & A. 1933); Andreoli v. Natural Gas Co., 57

N.J. Super. 356 (App. Div. 1959), but see Araujo v. N.J. Natural Gas

Co., 62 N.J. Super. 88 (App. Div. 1960).

EXPLOSIVES

McAndrew v. Collerd, 42 N.J.L . 189 (E. & A. 1880). Absolute

liability imposed for damage due to storage of explosives within city

limits. Referred to in Majestic Realty Associates, Inc. v. Toti

Contracting Co., 30 N.J. 425, 434 (1959).

But in Black Tom Explosion case, N.J. Fidelity Ins. Co. v. Lehigh

Valley R.R., 92 N.J.L. 467, 470 (E. & A. 1918) th e court said that a

high degree of care is required, which means a “d egree of care

commensurate with the risk of danger.” See also Berg v. Reaction

Motors Div., supra.

DEMOLITION OF BUILDING

Majestic Realty Associates, Inc. v. Toti Contracting Co., 30 N.J. 425,

434-438 (1959).

FIREARMS

Davis v. Hellwig, 21 N.J. 412, 415 (1956). “Courts have universally

regarded loaded firearms as dangerous instruments and have ascribed

an elevated degree of r easonable care to be exercised in their use.”

Peer v. Newark, 71 Super. 12 (App. Div. 1961); certif. denied, 36 N.J.

300; Wimberly v. Paterson, 75 N.J. Super. 584, 596 (App. Div. 1962).

X-RAY MACHINES

Kress v. Newark, 9 N.J. Super. 70 (App. Div. 1950), rev’d, 8 N.J. 562;

Rakowski v. Raybestos-Manhattan, Inc., 5 N.J. Super. 203, 207 (App.

Div. 1949), certif. denied, 3 N.J. 502 (1949).

ROLLER COASTER AND SIMILAR DEVICES

Kahalili v. Rosecliff Realty, Inc ., 26 N.J . 595, 603 (1958) “care

commensurate with the reasonably foreseeable risk of harm, such as

would be reasonable in the light of the apparent risk.” Garafola v.

Rosecliff Realty Co., 24 N.J. Super. 28 (App. Div. 1952).

FIREWORKS

Zpenzierato v. Our Lady of Mt. Virgin, 112 N.J.L. 93 (1933).