N.J. Model Civil Jury Charge 7.30

CHARGE 7.30 –—Page 1 of 9

7.30 COMPARATIVE NEGLIGENCE (AUTO) — ALL ISSUES

(Approved 6/1989; Revised 12/2011)

SUGGESTED CHECK LIST

CONTENTIONS

FUNCTIONS OF JUDGE AND JURY

COMMENTS OF COURT AND COUNSEL

DETERMINATION BASED ON EVIDENCE

COMBINED BURDEN OF PROOF (7.30A)

- PREPONDERANCE

CREDIBLE EVIDENCE (7.30B)

- WITNESSES AND THEIR CREDIBILITY

- EXPERT (IF APPLICABLE)

- FALSE IN ONE, FALSE IN ALL (IF APPLICABLE)

COMBINED DEFINITION OF NEGLIGENCE (7.30C)

- FORESEEABILITY (IF NECESSARY ONLY)

PROXIMATE CAUSE (7.30D)

- GENERAL DUTY OF DRIVER (IF APPLICABLE)

COMPARATIVE NEGLIGENCE — LIABILITY (7.30E)

1. INTRODUCTION

2. ORDER OF DELIBERATION

CHARGE 7.30 –—Page 2 of 9

COMPARATIVE NEGLIGENCE — DAMAGES (7.30F)

1. INTRODUCTION

2. DAMAGES MUST BE PROXIMATELY CAUSED

- RULES OF DAMAGES (INSERT ALL APPROPRIATE ITEMS

OF DAMAGE)

- DAMAGES — EFFECT OF INSTRUCTIONS

3. ORDER OF DELIBERATIONS

VERDICT

CLOSING

SAMPLE JURY VERDICT FORM (7.30G)

CHARGE 7.30 –—Page 3 of 9

A. Combined Burden Of Proof

Now where, as here, a plaintiff seeks to prove liability as to defendant, it is the

plaintiff's burden to prove the negligence of the defendant by a preponderance or

greater weight of the credible evidence. He/She must prove not only that defendant

was negligent, but that such negligence was a proximate cause of the accident.

The mere happening of an accident itself provides no basis for liability;

liability in this case must be proven.

Because defendant has charged the plai ntiff with negligence, it is his/her

burden to prove that plaintiff was negligent and that such negligence was a proximate

cause of the accident. Defendant also must prove his/her charge by a preponderance

or greater weight of the credible evidence.

B. Credible Evidence

Credible evidence means evidence which in the li ght of reason and common

sense is worthy of belief. In order to be believed, testimony should not only proceed

from the mouth of credible witnesses but it also must be credible in itself. It must be

such that the common experience of men and women can approve as probable in the

circumstances.

1

Proof of "possibility" as distinguished from "probability" is not enough.

1Spagnuolo v. Bonnet, 16 N.J. 546, 554-555 (1954); see also Gallo v. Gallo, 66 N.J. Super. 1, 5

(App. Div. 1961). But see State v. Queen, 221 N.J. Super. 601, 609 (App. Div. 1988).

CHARGE 7.30 –—Page 4 of 9

It follows, therefore, that if the eviden ce is in equal balance, the party who has

the burden of proof with respect thereto has not sustained that burden. (Insert Scales

of Justice example if desired).

The right of each party to have the other party bear the required burden is a

substantial one and not a mere matter of form.

C. Combined Definition of Negligence

Negligence is defined as a failure to exercise in the given circumstances that

degree of care for the safety of others which a reasonably prudent person would

exercise under the same or similar circumstances. Negligence may be the doing of an

act which the reasonably prudent person would not have done, or it may be the failure

to do that which the reasonably prudent person would have done under the

circumstances then existing. Negligence is a departure from that standard of care.

By a "reasonably prudent person" it is meant not the most cautious person nor

one who is unusually bold, but rather a person of reasonable caution and prudence.

Thus, each party in this case was re quired to exercise the foresight, the

prudence and the caution which a reasonably prudent person would exercise under the

same or similar circumstances. You must determine whether each party in this case

has conformed to or departed from the standard of care.

CHARGE 7.30 –—Page 5 of 9

D. Proximate Cause

Each party must not only prove the negligence of the other party by

preponderance or greater weight of the credible evidence, but also that this negligence

was a proximate cause of the accident.

By proximate cause it is meant that the negligent conduct of a party was an

efficient cause of the accident, that it necessarily set the other causes in motion and

naturally and probably led to the accident in question.

E. Comparative Negligence — Liability

1. Introduction

If you find that more than one party has established his/her burden of proof as

to negligence, as defined by the court, you must then compare the negligence of those

parties. The total amount of negligence is 100%. The figure that you arrive at should

reflect the total percentage of negligence attributed to each party with respect to the

happening of the accident. A comparison of negligence is made only if the

negligence of more than one party proximately caused the accident.

2. Order of Deliberation

A jury verdict form has been prepared and will now be distributed to you so

that you may follow the court's instructions with respect thereto. When completed

this will be your verdict in this case.

CHARGE 7.30 –—Page 6 of 9

Question No. 1 reads:

Was defendant ______________ negligent, wh ich negligence was a proximate

cause of the accident?

Yes ____ No ____

[In an appropriate case the question should be split up in

two parts where causation is a separate issue].

If you find that defendant was negligent and that this negligence was a

proximate cause of the accident, mark "Yes " as to Question No. 1 and proceed to

Question No. 2. If you find to the contrary, mark "No" as your answer, cease

deliberations and return your verdict.

Question No. 2 reads:

Was plaintiff ______________ negligent, wh ich negligence was a proximate

cause of the accident?

Yes ____ No ____

[Again, if causation is a separa te issue, this question can

also be split up].

If you find that plaintiff was negligent and that the negligence was a proximate

cause of the accident, mark "Yes" as your answer and proceed to Question No. 3. If

you find to the contrary, mark "No" as your answer and proceed to Question No. 4 on

damages.

CHARGE 7.30 –—Page 7 of 9

Question No. 3 reads:

Defendant ___________%

Plaintiff ___________%

Total 100

%

This question asks you to compare the ne gligence of each party with respect to

the happening of the accident, which should be reflected in a percentage figure

ranging from 1% to 99%. The combined neg ligence of all parties shall total 100%.

This question is only to be answered where the an swer to both Question No. 1 and

No. 2 is "Yes". When you arrive at the appropriate figure, mark your verdict form

and proceed to Question No. 4 on damages.

F. Comparative Negligence - Damages

1. Introduction

If you determine that defenda nt was solely negligent or that both parties were

negligent, it then becomes your duty to determine the amount of money, if any, to be

awarded to plaintiff(s). For that reason, I will now instruct you with respect to the

measure of damages in this case in the event that you need to consider this question.

CHARGE 7.30 –—Page 8 of 9

2. Damages Must Be Proximately Caused

It is the duty of the plaintiff to prove by preponderance or the greater weight of

the credible evidence that the injuries and damages for which compensation is sought

proximately resulted from the accident. It is not enough for a plaintiff to prove a mere

possibility that a particular injury or claimed item of damage resulted from the

accident. Speculation is not enough. It must be shown that the injury or damage was

the natural and probable consequence of the accident.

3. Order of Deliberation

I now refer you back to your jury verdict form.

Question No. 4 reads:

Damages to plaintiff: $__________________

After considering the evidence relating to the plaintiff's injuries and their

consequences, you will determine what amount of money would fairly and reasonably

compensate plaintiff for his/her injuries and losses proximately resulting from the

accident and state the dollar amount as your answer to Question No. 4 in one lump

sum. The evaluation of plaintiff's injuries and damages should be made irrespective

as to which party is at fault or to what degree or who is ultimately to pay. You are to

be concerned only with evaluating the plaintiff's injuries and damages without regard

to whose fault proximately caused them.

CHARGE 7.30 –—Page 9 of 9

G. Sample Jury Verdict Form

1. Was defendant _____________ ne gligent, which negligence was a proximate

cause of the accident?

Yes ____ No ____

If "Yes" proceed to Question No. 2.

If "No" cease deliberations and return your verdict.

2. Was plaintiff ______________ negligent, which negligence was a proximate

cause of the accident?

Yes ____ No ____

If "Yes" proceed to Question No. 3 and No. 4.

If "No" proceed directly to Question No. 4.

3. Comparison of each party's negligence -- to be answered only

if answers to

Questions No. 1 and No. 2 are "Yes".

Defendant ___________%

Plaintiff ___________%

Total 100

%

4. Plaintiff's total damages: $____________________