N.J. Model Civil Jury Charge 5.40I

5.40I PROXIMATE CAUSE (Approved 2/89; Revised 11/2023)

A. In General

The last requirement for holding a defendant liable is that the defect,

whatever you find it to be, must have been a proximate cause of the accident.

Proximate cause means that the defect in the product was a substantial factor which

singly, or in combination with another cause, brought about the accident. Plaintiff

need not prove that the very accident which occurred could have been anticipated

so long as it was within the rea lm of f oreseeability that some harm could result

from the defect in question. 1 If the product in question, however, does not add to

the risk of the occurrence of the particular accident and hence was not a

contributing factor in the happening of the accident [or if there was an independent

intervening cause of the accident], then plaintiff has failed to establish that a

particular product defect was a proximate cause of the accident.2

1 In toxic tort (i.e., asbestos exposure) cases where the plaintiff has presented competent and

credible evidence that even a minimal exposure to the substance can cause the claimed injury or

disease, it may be appropriate for the court to instruct the jury that a substantial factor is an

“efficient cause” of the claimed injury or disease and not a remote or trivial cause having only an

insignificant connection with the harm, but that liability should not attach based on casual or

minimal contact with the product or imposed based on mere guesswork. See Fowler v. Akzo

Nobel Chemicals, Inc., 251 N.J. 300 (2022).

2 See Soler v. Castmaster, Div. of H.P.M. Corp., 98 N.J. 137 (1983), and Brown v. United States

Stove Co., 98 N.J . 155 (1984) , where there is an issue of misuse/abnormal use or substantial

alteration affecting proximate cause. Where there is misuse/abnormal use or substantial alteration

after leaving the control of a defendant , the critical question on the issue of pr oximate cause

(An intervening cause is the act of an independent agency which destroy s

the c ausal conn ection between the effect of the defect in the product and the

accident, the independent act being the immediate and sole cause in which case the

liability will not be established because the defect in the product is not the

proximate cause of the injury. However, the defendant would not be relieved from

liability for its defective product by the intervention of acts of third persons if those

acts were reasonably foreseeable , and hence there is a substantial causal

connection between the product defect and the accident.)3

B. Limiting Instruction Where Comparative Negligence is N ot

Applicable — Plaintiff’s Conduct May Only Be Considered on

Issue of Proximate Cause4 (Approved 4/95)

You have heard evidence about how [P laintiff] was using the [product].

When you are deciding whether the [product] was defective, you are not permitted

becomes whether the original defect in the product constitutes a proximate cause of the injury

despite a subsequent alteration or misuse /abnormal use. Misuse/abnormal us e or substantial

alteration will not relieve a de fendant’s responsibility unless the proximate cause of the injury is

the misuse/abnormal use or substantial alteration. Soler, 98 N.J. at 149.

3 Navarro v. George Koch & Sons, Inc., 211 N.J. Super. 558, 573 (App. Div. 1986), and Butler v.

PPG Industries, Inc., 201 N.J. Super. 558, 564 (App. Div. 1985), may be understood as discussions

of a burden of production rather than p ersuasion. So construed they clearly conform t o Brown,

supra, and prior law.

4 T he conduct of the plaintiff may not be the only action which renders the product’s defect an

insignificant element in the happening of the accident. See, e.g., Fabian v. Minster Machine Co.,

258 N.J. Super. 261, 276-277 (App. Div. 1992), where the c ourt notes in its discussion of the

“empty chair” defense that the conduct of the employer, a co -employee, or defendant who has

to consider the [Plaintiff’s] conduct.

If you find the [product] was defective, then you must decide whether the

defect was a pro ximate cause of t he accident. At this po int, you may consider the

[Plaintiff’s] conduct.

If you decide that the [product] defect was the only cause of the accident,

then you must find that that defect proximately caused the accident.

If you decide that the [product] defect was a partial or c ontributory cause,

then you must also find that the [product] defect was a proximate cause of the

accident, even if the [Plaintiff’s] conduct was also a partial or contributory cause.5

On the other hand, if you decide that the [Plaintiff’s] conduct was th e only

cause, then you must find that the [product] defect was not a proximate cause of

the accident.

already settled are factors which may be relied upon to show that the defect was not a proximate

cause of the accident.

5 Tobia v. Cooper Medical Center, 136 N.J. 335, 341-44 (1994); Jurado v. Western Gear Works,

131 N.J. 375, 388 (1993); Johansen v. Makita USA, Inc., 128 N.J. 86, 102-03 (1992); Brown, 98

N.J. at 171.