N.J. Model Civil Jury Charge 7.22

7.22 THIRD PARTY ACTION UNDER LONGSHOREMAN'S AND

HARBOR WORKERS COMPENSATION ACT —

COMPARATIVE NEGLIGENCE (Approved before 1985)

If in accordance with the principles of law heretofore gi ven you, you find that

the defendant was negligent and that plai ntiff was contributory negligent, you will

apply the following principle of law commonly referred to as the law of comparative

negligence.

In an action such as this, to recover da mages for personal injuries, the fact that

the plaintiff may have been guilty of contributory negligence shall not bar a recovery

but the damages shall be diminished by the jury in proportion to the amount of

negligence attributable to such employee.

This provision which deals with the e ffect of the plaintiff's contributory

negligence upon the amount of his/her recovery, states two principles of law:

ƒ The fact that the plainti ff may have been guilty of

contributory negligence shall not bar a recovery, but

ƒ if the plaintiff is guilty of contributory negligence

the effect of such contributory negligence is that the

damages the plaintiff is entitled to shall be

diminished by you in proportion to the amount of

such contributory negligence.

These provisions of law are applicable to the facts in this case in the following

manner:

First, ascertain the amount of damages that the plaintiff would be entitled to

without reference to his/her contributory negligence.

Second, ascertain the proportion or pe rcentage of such amount of damages

which is attributable to plaintiff's contributory negligence.

Third, diminish the amount ascertained in the first step by the proportion or

percentage of contributory negligence ascertained in the second step.

The amount remaining is the amount the plaintiff is entitled to.

Alternate Charge

If in accordance with the principles of law heretofore gi ven you, you find that

the defendant was negligent and that plai ntiff was contributory negligent, you will

apply the following principle of law commonly referred to as the law of comparative

negligence.

In an action such as this, to recover da mages for personal injuries, the fact that

the plaintiff may have been guilty of contributory negligence shall not bar a recovery

but the damages shall be diminished by the jury in proportion to the amount of

negligence attributable to such employee.

This provision which deals with the e ffect of the plaintiff's contributory

negligence upon the amount of his/her recovery, states two principles of law:

ƒ The fact that the plainti ff may have been guilty of

contributory negligence shall not bar a recovery, but

ƒ if the plaintiff is guilty of contributory negligence

the effect of such contributory negligence is that the

damages the plaintiff is entitled to shall be

diminished by you in proportion to the amount of

such contributory negligence.

To explain how to apply the doctrine of comparative negligen ce to the facts of

this case, I shall use an illustration.

You may determine that the amount of the plaintiff's damages for his/her

personal injuries was X dollars and that the percentage or proportion of that amount

of X dollars which is attributable to th e plaintiff because of his/her contributory

negligence is 50%. You would compute what 50% of X dollars is, that is, 50 cents

times each of X dollars, and diminish the amount of X dollars by 50% or 50 cents out

of each dollar, which would leave the amount 50% of X dollars to which the plaintiff

would be entitled in your verdict.

You may determine that the amount of the plaintiff's damages for his/her

personal injuries was X dollars and that the percentage or proportion of that amount

of X dollars which is attributable to th e plaintiff because of his/her contributory

negligence is 10%. You would compute what 10% of X dollars is, that is, 10 cents

times each of X dollars, and diminish the amount of X dollars by 10% or 10 cents out

of each dollar, which would leave the amount of 90% of X dollars to which the

plaintiff would be entitled in your verdict.

You may determine that the amount of the plaintiff's damages for his/her

personal injuries was X dollars and that the percentage or proportion of that amount

of X dollars which is attributable to th e plaintiff because of his/her contributory

negligence is 90%. You would compute what 90% of X dollars is, that is, 90 cents

times each of X dollars, and diminish the amount of X dollars by 90% or 90 cents out

of each dollar, which would leave the amount 10% of X dollars to which the plaintiff

would be entitled in your verdict.

Cases:

Reed v. S.S. Yaka, 373 U.S. 410, 10 L.Ed.2d 448, 83 S.Ct. 1349 (1963);

United N.Y. & N.J. Pilots Asso. v. Halecki, 358 U.S. 613, 3 L.Ed.2d 541,

79 S.Ct. 417 (1959); Romero v. International Terminal Operat. Co., 358

U.S. 354, 3 L.Ed.2d 368, 79 S.Ct. 468 (1959); Kermarec v. Compagnie

Generale Transatlantique, 348 U.S. 625, 3 L.Ed .2d 550, 79 S.Ct. 406

(1959); Pope and Talbot, Inc. v. Hawn, 346 U.S. 406, 98 L.Ed. 143, 74

S.Ct. 202 (1953); Caldarola v. Eckert, 332 U.S. 155, 91 L.Ed. 1968, 67

S.Ct. 1569 (1947).

NOTE TO JUDGE

Title 33 (Navigation and Navigable Waters) Chapt. 10, Sec. 901 et seq.

of the U.S. Code , is the Longshoremen's and Harbor Workers'

Compensation Act.

The remedy under this Act is exclusive and in place of all other liability

of such employer to his/her employee or legal representative.

In addition to the foregoing remedy, longshoremen and harbor workers

may also have a third-party acti on against the vessel or its owner

grounded on negligence or unseaworthin ess or both. Such an action

may be and generally is brought in a Federal District Court. However,

the action under either theory may also be brought in a state court of the

state in whose territorial waters the injury occurred or where jurisdiction

over the parties may be obtained. In such cases the Federal Maritime

Law prevails with the comparative negligence rule applying.

Third-party actions under the Longs horemen's and Harbor Workers'

Compensation Act may be tried in state courts. See Title 33 U.S.C.A.,

Sec. 933; Paxos v. Jarka Corp. 314 Pa. 148, 171 A. 468 (Sup. Ct. 1934);

Kermarec v. Compagnie Generale Transatlantique , 348 U.S. 625, 3

L.Ed.2d 550, 79 Sup Ct. 406 (1959).

Compensation is payable irrespective of fault in respect to disability or

death of an employee if the disability or death results from an injury

occurring upon the navigable waters of the United States (including any

dry dock).