N.J. Model Civil Jury Charge 7.32

7.32 COMPARATIVE NEGLIGENCE: INTERROGATORIES

(Approved before 1985)

NOTE TO JUDGE

The interrogatories selected by the Committee for submission to the jury

on the issue of comparative negligence represent a compromise between

the extremely general and the extrem ely specific type of interrogatory

and have been included in the model charge because it was thought that

they would have the widest possible application. Questions more

general or more specific in nature could be and should be utilized in a

particular case where either more specificity or more generality is

required. Thus, in a case where pr oximate cause is not a seriously

contested question, the court might properly choose to combine the

questions of negligence and proximate cause into one question. The

same would be true with respect to questions bearing on plaintiff's

negligence and causal relationship to that question and the cause of the

accident.

This charge deals only with the simp lest of factual situations wherein

one plaintiff is suing one defendant. Where a counterclaim is asserted,

the same six questions should be submitted with an additional question

being put to the jury in such a case requiring them to evaluate the

defendant's damage claims. In cases dealing with multiple plaintiffs'

injuries, question 3, 4 and 6 would have to be submitted with respect to

each additional plaintiff. For each additional defendant, sued as a joint-

tortfeasor, interrogatory questions 1 and 2 would have to be submitted

for each defendant so joined.

1. Follow usual form of charge with respect to the nature of

the jury's function as distinguished from the court's

obligations in the trial of the case, including charges

concerning credibility, use of pretrial discovery devices,

expert witnesses, and the like.

2. Follow with the normal charge concerning burden of proof

in the context of the elements of the plaintiff's case with

respect to which he or she has the burden of proof.

3. Define the term "negligence" generally and as applied to

this specific case, as you would in a normal charge

involving concepts of negligence and proximate cause.

4. The Committee recommends that the term "contributory

negligence" be omitted and the term "plaintiff's negligence"

used in its place. Define this term in the same manner in

which contributory negligence has heretofore been defined,

leaving out any portions of that model charge which

suggest to the jury that de grees of negligence between a

plaintiff and a defendant are irrelevant.

5. This portion of the charge should be followed by a more

detailed description of the jury's function with respect to

evaluating the quantum of ne gligence on the part of all

parties, comparing their respective degrees of fault with

respect to the accident, and computing or translating these

degrees of fault into a percen tage of the total amount of

negligence causing the accident.

6. Read the specific interrogato ries (section B below) to the

jury together with an explanation of each one (section A

below).

7. Define for the jury the several measures of damages

applicable to this specific case and follow with an

explanation that the full amount of plaintiff's loss is to be

calculated irrespective of fau lt, or degrees thereof, or

irrespective of whose obligation the payment of damages is

finally determined to be.

A. Explanation of Interrogatories

I have just described to you the various concepts with which you are going to

have to deal in deciding the present case. To assist you in reaching a verdict you will

have with you in the jury room a form consisting of questions calling for certain

answers. Your duty will be discharged by answering such of these questions as under

the evidence and the court's instructions it becomes necessary to answer in order to

arrive at a complete verdict.

Question #1 deals with plaintiff's allegati ons as to defendant's negligence. In

order to answer this question you are going to have to decide whether the plaintiff has

sustained his/her burden of proof with respect to defendant's negligence. I am going

to read to you question #1; it reads:

Was defendant, ______________, negligent?

Yes __________

No __________

If you conclude that plaintiff has fa iled to sustain the burden of proving

defendant's negligence, the answer to question #1 would be "No"; you would check

the appropriate answer and then you have no need to answer further questions but you

would return your verdict at this point. If, however, on the other hand, you conclude

that plaintiff has proven defendant's negligence, you will answer question #1 "Yes"

and proceed to answer question #2.

Question #2 deals with plaintiff's allega tions that defendant's negligent conduct

was a proximate cause of the accident (injur ies) to plaintiff. Question #2 reads as

follows:

Was the negligence of defendant, ___________________, a proximate cause

of the accident?

Yes __________

No __________

If you find the plaintiff has failed to pr ove that the negligent conduct of the

defendant was a proximate cause of the accident, then you will answer question #2

"No" and check the appropriate answer on the form. If that should be your answer to

question #2, you would not need to answer further questions but would return the

verdict at this point. However, if you conclude that the plaintiff has met the burden of

proving that defendant's negligent conduct was a proximate cause of this accident,

then you will answer question #2 "Yes", check the appropriate answer, and proceed to

deal with question #3.

Question #3 deals with defendant's alle gation that plaintiff was negligent.

Question #3 reads as follows:

Was plaintiff negligent?

Yes __________

No __________

If you find the defendant has failed to meet its burden of proving plaintiff's

negligence, you will answer question #3 "N o", check the appropriate answer to

question #3, and then pass directly on to the damage question, question #6, which is

described on the form as a "damage ques tion". If, on the other hand, you find the

defendant has proven the plaintiff was negligent, you will answer question #3 "Yes"

and go on to deal with question #4.

Question #4 deals with defendant's allega tions that plaintiff's negligence was a

proximate cause of the accident. Question #4 reads as follows:

Was plaintiff's negligence a pr oximate cause of the accident?

Yes __________

No __________

If you find that the defendant has met its burden of proving that the plaintiff's

negligence was a proximate cause of this accident, then you will answer question #4

"Yes", check the appropriate answer on the form and return your verdict at this point.1

However, if you find, on the other hand, that defendant has failed to prove plaintiff's

negligent conduct was a proximate cause of the accident, then you will answer

question #4 "No" and go on to answer question #6, which is the question requiring

evaluation of damages.

After you have answered those questions these instructions have required you

to answer, examine your answers. If you find that the answers to all four questions

are "Yes", then you will have to answer question #5. In other words, if you find from

your answers that you have concluded that both the defendant and the plaintiff were

negligent and that their respective neglig ent conduct was a proximate cause of the

accident, then you are going to have another task to perform and another question to

answer - question #5. You are going to ha ve to evaluate the conduct of both the

plaintiff and the defendant with a view to determining the degree of fault attributable

to each with respect to this accident, and e xpress that degree of fault in terms of a

percentage figure — taking the combined fault of all parties to this lawsuit as being

100%.

In other words, you shall assume that the negligence of all parties to this

1 In trials wherein both liability and damages ar e in issue, the jury will then be instructed to

proceed to consider the damages phase of the case.

lawsuit is taken to be 100%; then determine what percentage of that total amount of

negligence is to be attributable to defendant and what percen tage of that total

negligence is to be attributab le to the plaintiff. Your answer will be expressed in

percentage terms and the total of all percentages which you assign to each party must

add up to 100%.

Thus, I will now read to you question #5. You will note that it recites the

instructions that I have just given you in oral form. Question #5 reads as follows:

If you find that you have answered all the previous four questions "Yes", i.e.,

you have found that both the plaintiff and the defendant were negligent and that their

respective negligent conduct proximately caused the accident, then you must answer

this question — taking the combined negligen ce of all parties to this lawsuit which

proximately contributed to the happening of this accident as being 100% — what

percentage of such total negligence is attributable to:

a. Defendant _______________ Answer _______%

b. Plaintiff _______________ Answer _______%

T O T A L 100

%

[NOTE: The question and the instructio ns will have to be modified to

accommodate the number of claims , the number of plaintiffs, and

the number of defendants.]

If you have determined that the defenda nt was solely negligent or that both

plaintiff and defendant were negligent, it then becomes your duty to determine the

amount of money which would reasonably co mpensate plaintiff for the injuries

proximately caused by the accident in question. For that reason, I am going to give

you instructions with respect to the measure of damages in a case such as the present

one, for your guidance, in the event you need to consider this question.

[Proceed with your charge on damages.]

After having considered th e evidence in this case bearing on 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 in accordance with the la w as just given you and state the dollar

amount of your conclusion in answer to question #6 which, you will note, requires a

lump sum dollar amount. The evaluation of plaintiff's injuries and damages in money

terms should be made irrespective of which party is at fault or to what degree, or who

is ultimately to pay any damages that may be assessed. Here, you, members of the

jury, are only concerned with evaluating pl aintiff's injuries and damages without

regard to whose fault proximately caused them. Question #6 reads as follows:

What amount of money would reasonably

and fairly compensate the plaintiff

for his/her injuries and losses?

$______________

B. Interrogatories

As to Liability

1. Was defendant, ___________________,

negligent? Yes ____ No ____

2. Was the negligence of defendant,

__________________, a proximate

cause of the accident? Yes ____ No ____

3. Was plaintiff negligent? Yes ____ No ____

4. Was plaintiff's negligence a proximate

cause of the accident? Yes ____ No ____

5. If you find that you have answered a ll the previous four questions Yes,

i.e., you have found that both the plai ntiff and the defendant were

negligent and that their respective negligent conduct proximately caused

the accident, then you must answer this question — taking the combined

negligence of all parties to this lawsuit which proximately contributed to

the happening of this accident as being 100% — what percentage of

such total negligence is attributable to:

a. Defendant ________________ Answer _______%

b. Plaintiff ________________ Answer _______%

T O T A L 100

%

As to Damages

6. What amount of money would reasonably

and fairly compensate the plaintiff

for his/her injuries and losses?

$ ______________