N.J. Model Civil Jury Charge 5.40J

5

.40J COMPARATIVE FAULT 1 (9/09)

Defendant contends that plaintiff was at fault for the happening of the accident.

To prevail on this claim, defendant mu st prove that plaintiff deliberately and

knowingly acted in such a way as to create or materially increase a risk of injury and

that such action was a proximate cause of the accident. Mere failure to discover a

defect in the product or to guard against the possibility of its existence is not a

defense. In other words, defendant must prove plaintiff had actual knowledge of the

particular danger and knowingly and voluntarily encountered that risk before it can be

found that plaintiff was at fault.

1 This defense is applicable to a workplace in jury where the worker deliberately and knowingly

acted in such a way as to create or materially increase a risk of injury. The seminal case on

employee comparative negligence is Suter v. San Angelo Foundry & Machine Company , 81 N.J.

151 (1979). Suter held that an employee, engaged at his assigned task on a plant machine, has

no “meaningful choice” in whether to use the allegedly defective machine, therefore the

employee cannot be said to be guilty of comparative negligence. Suter at 167. Later cases

clarified the point and held that, in specific inst ances where there is evidence that an employee

did have a meaningful choice; the employee’s fault can and should be considered by the jury.

Caution: Butler v. PPG Industries, Inc. , 201 N.J. Super. 558 (App. Div. 1985) is the only

reported decision since Suter where it was found that the issue of the employee’s comparative

fault was properly left to the jury to decide. In Butler, the evidence indicated that the plaintiff

employee was aware of the specific dangers associat ed with using a caustic chemical but used it

without wearing safety gear or protectiv e clothing supplied to him. See also, Cavanaugh v. Skil

Corp., 231 N.J. Super. 134 (App. Div. 1999), aff’d 164 N.J. 1 (2000) where it was held that

where an employee intentionally circumvents a safety device, his behavior is properly

considered by the jury on the issue of proximate cause but not on comparative fault.