N.J. Model Civil Jury Charge 5.33

5.33 LIMITATION ON LAWSUIT OPTION 1,2 (Approved 11/2000;

Revised 04/2018)

A. Introduction

In order to recover damages in this case, plaintiff must prove by a

preponderance of the evidence that he/she sustained injuries which fit into one or

more of the following categories:

NOTE TO JUDGE

Charge 1, 2, 3, 4, 5, 6 or any combination of them, depending on the

proofs in each case.

In cases with two or more defendants, some of whom have available

the L imitation on Lawsuit Option defense and others who do not,

charge the following:

The jury should answer two specific interrogatories as to each

defendant: (1) was this defendant negligent; (2) if so, did the

1 See N.J.S.A. 39:6A-8a. The Limitation on Lawsuit Option within the Automobile Insurance Cost

Reduction Act (AICRA) of 1998 (L.1998, c. 21 and c. 22) (“AICRA”), identifies the following

categories: (1) death; (2) dismemberment; (3) significant disfigurement or significant scarring; (4)

displaced fractures; (5) loss of a fetus; (6) a permanent injury within a reasonable degree of medical

probability, other than scarring or disfigurement. The effective date of this provision of AICRA

is March 22, 1999. Therefore, the Limitation on Lawsuit Option shall apply to individuals who,

at the time of the accident, were insured under automobile liability insurance policies issued after

March 22, 1999. By way of example, if a n individual was involved in a motor vehicle collision

on March 23, 1999, but was still covered under a policy issued before the effective date of the

statute (March 22, 1999), he or she will be subject to the verbal threshold charge applicable to

L.1988, c.119 effective January 1, 1989.

2 This charge was previously designated as 5.33B. Former charge 5.33A – the verbal threshold

charge applicable to L.1988, c.119, effective January 1, 1989 – applied only to individuals covered

under policies issued before March 22, 1999 (the effective date of the current statute). In 2018,

former charge 5.33A was deemed outdated and therefore rescinded. However, to the extent an

individual is covered under a policy issued before March 22, 1999, he or she will be subject to the

former statute, L.1988, c.119 effective January 1, 1989.

negligence proximately cause plaintiff’s injuries? If more than one

defendant was negligent and the ir negligence proximately caused

plaintiff’s injuries, the jury has to find what percentage of the total

negligence or fault is attributable to each defendant. Once the jury

answers those questions, it should then determine whether or not

plaintiff satisfied the applicable threshold which applies to a defendant.

Then the jury should affix damages. Bolz v. Bolz, 400 N.J. Super. 154

(App. Div. 2008).

1. Death;

2. Dismemberment;

3. Significant disfigurement or significant scarring;

4. Displaced fracture;

5. Loss of a fetus;

6. A permanent injury within a reasonable degree of medical

probability, other than scarring or disfigurement.

If you find that none of the injuries caused by the accident come within one

of these categories, your verdict must be for the defendant. If you find that at least

one of the injuries caused by the accident comes within one of these categories, your

verdict must be for the plaintiff.

B. Significant Disfigurement or Significant Scarring (Type 3)

(Revised 06/2007)

In this case, the plaintiff alleges and has the burden to prove that he/she

suffered a significant disfigurement or significant scarring as a result of the motor

vehicle accident. An injury shall be considered a significant disfigurement or

significant sc arring if a reasonable person would find that the disfigurement or

scarring renders plaintiff’s appearance unattractive, objectionable, or as the subject

of pity or scorn, or that such condition individually or collectively substantially

detracts from plaintiff’s appearance or impairs or injures the beauty, symmetry, or

appearance of the plaintiff so as to render the bearer unsightly, misshapen or

imperfect deforming him /her in some manner. You shall consider as factors in

making this determination the appearance, coloration, existence, size and shape of

plaintiff’s disfigurement or scar[s] along with the characteristics of surrounding skin

and the remnants of the healing process and other cosmetically important matters.

C. Permanent Injury (Type 6) (Revised 03/2017)

In this case, the plaintiff alleges that he/she suffered a permanent injury as a

result of the motor vehicle accident. An injury shall be considered permanent when

the body part or organ, or both, has not healed to function normally and will not heal

to function normally with further medical treatment.3

Plaintiff must prove this claim through objective, credible medical evidence.

Objective proof means the injury must be verified by physical examination or medical

3 This definition of “permanent injury” is taken directly from the AICRA of 1998, N.J.S.A. 39:6A-

8. In DiProspero v. Penn, 183 N.J. 477 (2005), the New Jersey Supreme Court held that the

Legislature did not intend to require a plaintiff with a Type 6 injury to prove a “serious or

substantial impact” on his or her life in order to pierce the verbal threshold. Therefore, a plaintiff

need only prove a permanent injury, as defined in the statute, to recover for non- economic

damages.

testing and cannot be based solely upon the plaintiff’s subjective complaints. Credible

evidence is evidence you find to be believable.

If you determine that any one of the injuries contended by [Plaintiff]

constitutes a permanent injury, then in that event, you should award damages to

[Plaintiff], in accordance with these instructions for all his/her injuries that you

determine to have been proximately caused by the negligence of the defendant,

including those injuries that you find to be non-permanent.4

4 Johnson v. Scaccetti, 192 N.J. 256 (2007).