N.J. Model Civil Jury Charge 8.50

8.50 INVASION OF PRIVACY DAMAGES (01/2016)

NOTE TO JUDGE

A plaintiff who has established a cause of action for invasion of

privacy is entitled to recover damages for (1) the harm to the

plaintiff’s interest in privacy resulting from the invasion; (2) mental

distress proved to have been suffered if it is of a kind that normally

results from such an invasion; and (3) any special damages that

plaintiff can prove of which the invasion is a legal cause.

Restatement, Torts 2d, § 652H (1977).

A. Damages — General Instructions

[Plaintiff] seeks to recover damages for the invasion of his/her privacy .

Damages are sought by [plaintiff] for recovery of the money value of his/her

loss(es). I will now explain the law on compensatory damages.1

If [plaintiff] has established the essential elements of his/her claim as

explained in these instructions, (s)he is entitled to compensatory damages for all

of the detrimental effects of the invasion of his/her privacy. In assessing damages

you may consider and award damages to compensate [plaintiff] for (a) the harm

to his/her interest in privacy resulting from the invasion; (b) his/her emotional

distress proved to be suffered if it is of a kind that normally results from such an

1 Where punitive damages are being sought, they should be addressed separately where

appropriate. See subsection (F).

invasion and is reasonable in extent ; a nd (c) actual damages caused by the

invasion. Damages awarded for such purposes are compensatory.2

Cases:

Rumbauskas v. Cantor, 138 N.J. 173, 179 (1994) (citing Canessa v. J.I. Kislak,

Inc., 97 N.J. Super. 327 (Law. Div. 1967)); Rumbauskas v. Cantor , 266 N.J.

Super. 399, 404 (App. Div. 1993), judgment reversed by, 138 N.J. 173 (1994)

(citing Restatement of Torts § 652H); Faber v. Condecor, 195 N.J. Super. 81, 90-

91 (App. Div. 1984); Carleen v. TJX Companies, 2009 WL 3081969 (App. Div.

Sept. 17, 2009) at *2; Restatement (Second) of Torts § 652H (1977).

B. Compensatory Damages (Damages for Harm to Plaintiff’s Privacy

Interest)

[Plaintiff] seeks recovery for damages which the law presumes to follow

naturally and necessarily from the invasion of privacy and which are recoverable

by [plaintiff] without proof of causation and without proof of actual injury or

2 Compensatory damages are further classified in defamation law as general damages and

actual damages. The Committee feels that these should, wherever possible, be generally

referred to as compensatory damages for ease of understanding by the jury. Howev er it is

critical for the judge to recognize that the Supreme Court in Rocci v. Ecole Secondaire , 165

N.J. 149 (2000), states that in defamation actions by a public or private citizen regarding a

matter of public interest or concern the plaintiff must prove actual damages (general damages

for slander per se or libel will not be presumed ). The doctrine of whether presumed damages

should apply to claims made by a private figure plaintiff where no public interest is implicated

was answered in the affirmative by the Supreme Court in the case of W.J.A. v. D.A., 210 N.J.

229 (2012). Because of the similarity between presumed damages in defamation cases and

invasion of privacy cases, see Rumbauskas v. Cantor , 266 N.J. Super. 399, 404 (App. Div.

1993), judgment re versed by, 138 N.J. 173 (1994), it is the Committee ’s opinion that the

standards applicable to defamation claims apply to invasion of privacy claims. See, e.g.,

DeAngelis v. Hill, 180 N.J. 1, 19 (2004) (“A false light claim against a public official, similar

to a defamation claim, utilizes the actual malice standard”).

pecuniary loss.3 The law recognizes that there may not always be direct evidence

of the amount of damage caused by invasion of privacy or the amount of money

that would compensate for the injury.4

Therefore, you are permitted to award nominal damages to compensate

[plaintiff] for any injury to his/her privacy interest, which you have found (s)he

sustained.5 Nominal damages are a small amount of money damages that are not

3 Rumbauskas v. Cantor, 266 N.J. Super. 399, 404 (App. Div. 1993), judgment reversed by,

138 N.J. 173 (1994) (citing Restatement of Torts § 652H); Restatement (Second) of Torts §

652H(a).

4 Faber v. Condecor, 195 N.J. Super. 81, 90-91 (App. Div. 1984) (citing Fairfield v.

American Photocopy Co., 291 P.2d 194, 198 (Ct.App. 1955).

5 General damages for a per se invasion of privacy are akin to the general, or presumed, damages

available for defamation per se. See, Rumbauskas, supra, 266 N.J. Super. at 404 (“Apart from

the emotional reaction the individual plaintiff may or may not suffer from the intrusion, the

harm to the plaintiff's interest in privacy is itself a loss to be compensated in damages. Intrusion

upon seclusion, like defamation per se, is actionable in the absence of proof of resulting special

harm”) (citing Hall v. Heavey, 195 N.J. Super. 590, 594-95, 481 A.2d 294 (App. Div. 1984);

Restatement §§ 69-70; Gertz v. Robert Welch, Inc., 418 U.S. 323, 349-50, 94 S.Ct. 2997, 3011-

12, 41 L.Ed.2d 789 (1974)).

The continuing availability of general or presumed damages in defamation cases for injury to

reputation has been called into question by Rocci v. Ecole Seco ndaire, 165 N.J. 149 (2000).

The language in Rocci appears to refer only to cases involving matters of public concern or

public interest, which was the situation in Sisler , rather than to private person/private concern

defamation cases. See Sisler v. Gannett Co., supra at 280 n. 5, where the New Jersey Supreme

Court appears to adopt the plurality opinion in Dun n and Bradstreet, Inc. v. Greenmoss

Builders, Inc., 472 U.S. 749, 759-62, 105 S.Ct. 2939, 2944-46, 86 L.Ed. 593, 604 (1985) (in

private person/private concern defamation actions, presumed and punitive damages may be

awarded without necessity to show “actual malice,” i.e. , knowledge of falsity or reckless

disregard of truth). However, clarification of this issue must await further decisional l aw as

stated in Rocci v. Ecole Secondaire, supra (“In situations where the actual malice standard

applies, a defamation plaintiff cannot rely on the doctrine of presumed damages absent a finding

that the defendant published a statement with knowledge that it was false and with reckless

disregard of whether it was false or not”), quoting N.Y. Times v. Sullivan, 376 U.S. 254 (1964)).

designed to compensate a plaintiff for actual economic or noneconomic losses but

are awarded for the infraction of a legal right where the extent of the loss is not

shown or where the right is one not dependent upon loss or damage.6

No fixed standard exists for deciding the amount of nominal damages for

invasion of privacy. You must use your judgment to decide a reasonable amount

based on the evidence and your common sense. Among the factors you may

consider are (a) the location of the alleged invasion, (b) the means used, (c) the

severity of the alleged invasion, (d) the frequency and duration of the alleged

invasion and (e) the defendant’s purpose behind the alleged invasion.7

C. Past Emotional Distress In An Invasion of Privacy Case

NOTE TO JUDGE

A plaintiff who has proven an invasion of privacy is entitled to recover

damages for emotional distress, even if the injury suffered is mental

anguish alone. Expert testimony is not required. Faber v. Condecor,

195 N.J. Super. 81, 9 0-92 (App. Div. 1984); Carleen v. TJX

Companies, 2009 WL 3081969 (App. Div. Sept. 17, 2009) at *2;

Restatement (Second) of Torts § 652H(b) (1977).

Because of the similarity between presumed damages in defamation cases and invasion of

privacy cases, it is the Committee’s opinion that the standards applicable to defamation claims

apply to invasion of privacy claims. See, e.g., DeAngelis v. Hill, 180 N.J. 1, 19 (2004) (“A false

light claim against a public official, similar to a defamation claim, utilizes the actual malice

standard”).

6 W.J.A. v. D.A., 210 N.J. 229, 240-41 (2012).

7 See Polay v. McMahon, 468 Mass. 379, 383 (2014) (establishing factors to be used to

determine the seriousness of an invasion of privacy).

However, in Battaglia v. United Parcel Service, Inc. , 214 N.J. 518

(2013), the Supreme Court held that it was error for a court to instruct

a jury in an employment law case to consider life expectancy in

connection with emotional distress damages where the plaintiff did not

offer any expert testimony as to the perman ency of the emotional

distress. The Court held that while an employment law plaintiff can

claim emotional distress damages without expert testimony, such

damages are limited to past emotional distress through the time of trial.

For an employment law plaintiff to claim future emotional distress, he

or she must offer expert testimony as to the permanency of the distress.

Id. at 551-55.

The Court has not decided whether a plaintiff who proves an invasion

of privacy may recover damages for future emotional distress without

expert testimony. However, in the Committee’s opinion, it is likely

that the Court would apply the requirement of expert testimony for

such damages established by Battaglia in invasion of privacy cases.

Accordingly, the following charge is intended for use in cases in which

the plaintiff has not offered expert testimony and is claiming damages

only for past emotional distress through the time of trial. Charge 8.50

D. should be used if the plaintiff is claiming future emotional distress

based on expert testimony regarding permanency.

A plaintiff who is awarded a verdict is entitled to fair and reasonable

compensation for any emotional distress (s)he has actually suffered if it is of a kind

that normally results from such an invasion and reasonable in its extent .

8 The

plaintiff here is not seeking damages for emotional distress continuing into the

8 Tellado v. Time-Life Books, Inc., 643 F.Supp. 904, 907-10 (D.N.J. 1986); Faber v.

Condecor, 195 N.J. Super. 81, 90-92 (App. Div. 1984); Carleen v. TJX Companies, 2009 WL

3081969 (App. Div. Sept. 17, 2009) at *2; Palmer v. Schonhorn Enterprises, Inc., 96 N.J.

Super. 72 (Ch.Div. 1967); Restatement (Second) of Torts § 652H (1977).

future; rather, (s)he is only seeking damages for the emotional distress (s)he has

suffered from the date of the defendant’s unlawful conduct through the date of your

verdict. Emotional distress includes embarrassment, humiliation, indignity, and

other mental anguish. The measure of damages is what a reasonable person would

consider to be adequate and just under all the circumstances of the case to

compensate plaintiff for his/her emotional distress.

You should consider the nature, character, and seriousness of any emotional

distress. You must also consider the duration of the emotional distress, as any award

you make must cover the damages suffered by plaintiff to the present time. Plaintiff

has the burden of proving his/her damages through credible, competent evidence,

although (s)he does not have to offer any witnesses to corroborate his/her emotional

distress; the distress need not be permanent; physical or psychological symptoms

are not necessary; and plaintiff need not have obtained any type of professional

treatment.9 The plaintiff’s testimony standing alone is enough to support an award

of emotional distress damages. On the other hand, you are free to disbelieve all or

part of the plaintiff’s testimony, and if you do, you should act accordingly by either

9 Tarr v. Ciasulli, 181 N.J. 70, 81 (2004).

reducing the amount of damages you award for emotional distress or by not

awarding any emotional distress damages at all.

The law does not provide you with any table, schedule or formula by which

a person's emotional distress may be measured in terms of money. The amount is

left to your sound discretion. You are to use your discretion to attempt to make

plaintiff whole, so far as money can do so, based upon reason and sound judgment,

without any passion, prejudice, bias or sympathy. You each know from your

common experience the nature of emotional distress and you also know the nature

and function of money. The task of equating the two so as to arrive at a fair and

reasonable award of damages requires a high order of human judgment. For this

reason, the law can provide no better yardstick for your guidance than your own

impartial judgment and experience.

You are to exercise sound judgment as to what is fair, just and reasonable

under all the circumstances. You should consider all of the evidence presented by

the parties on the subject of plaintiff’s emotional distress. After considering the

evidence, you shall award a lump sum of money that will fairly and reasonably

compensate plaintiff for any emotional distress you find [s]he has proven.

D. Past, Present and Future Emotional Distress In An Invasion of Privacy

Case

A plaintiff who is awarded a verdic t is entitled to fair and reasonable

compensation for any emotional distress (s)he has actually suffered if it is of a kind

that normally results from such an invasion and is reasonable in its extent .10

“Emotional distress” includes embarrassment, humilia tion, indignity, and other

mental anguish.

The measure of damages is what a reasonable person would consider to be

adequate and just under all the circumstances of the case to compensate plaintiff for

his/her emotional distress. You may consider the plaintiff’s age, usual activities,

occupation, family responsibilities and similar relevant facts in evaluating the

probable consequences of the [invasion of privacy] on plaintiff’s emotional state.

You should consider the nature, character, severity and duration of the emotional

distress in determining how much to award, as any award you make must cover the

damages suffered by plaintiff since the [invasion of privacy] to the present time and

into the future if you find that plaintiff’s emotional distress has continued to the

present time and can reasonably be expected to continue into the future.

10 Faber v. Condecor, 195 N.J. Super. 81, 90-92 (App. Div. 1984); Carleen v. TJX

Companies, 2009 WL 3081969 (App. Div. Sept. 17, 2009) at *2; Restatement (Second) of

Torts § 652H (1977), Comment b.

Plaintiff has the burden of proving his/her damages through credible,

competent evidence. To recover damages for past or present emotional distress,

plaintiff does not have to present corroborating testimony from any witness; the

distress need not be permanent; physical or psychological symptoms are not

necessary; and plaintiff need not have obtained any type of professional treatment.

11

The plaintiff’s testimony standing alone may be sufficient to support an award of

past or present emotional distress damages. On the other hand, you are free to

disbelieve all or part of the plaintiff’s testimony and, if you do, you should act

accordingly by either reducing the am ount of damages you award or by not

awarding any emotional distress damages at all.

Unlike past or present emotional distress, the law requires a plaintiff to prove

that his/her emotional distress will continue into the future through evidence of

permanence or other likely duration in the form of expert testimony. This ensures

that the plaintiff will be made whole while preventing an improper award of damage

based on conjecture or speculation.

12 Therefore, in determining whether plaintiff

has suffered emotional distress that will continue into the future, you should

consider the testimony of plaintiff’s expert in addition to the other evidence

11 Battaglia v. United Parcel Service, Inc., 214 N.J. 518, 551-555 (2013); Tarr v. Ciasulli, 181

N.J. 70, 81 (2004).

12 Battaglia, 214 N.J. at 553.

presented by the parties. If, after considering all of the evidence, you find plaintiff’s

expert’s testimony on plaintiff’s future emotional distress credible, you should

award plaintiff damages for future emotional distress. If, after considering all of the

evidence, you do not find plaintiff’s expert’s testimony on plaintiff’s future

emotional distress credibl e, you should not award future emotional distress

damages. You should keep in mind that you can award past or present emotional

distress damages even if you do not find that the plaintiff has proven future

emotional distress.

The law does not provide you with any table, schedule or formula by which

a person's emotional distress may be measured in terms of money. The amount is

left to your sound discretion. You are to use your discretion to attempt to make

plaintiff whole, so far as money can do so, based upon reason and sound judgment,

without any passion, prejudice, bias or sympathy. You each know from your

common experience the nature of emotional distress and you also know the nature

and function of money. The task of equating the two so as to arrive at a fair and

reasonable award of damages requires a high order of human judgment. For this

reason, the law can provide no better yardstick for your guidance than your own

impartial judgment and experience.

You are to exercise sound judgment as to what is fair, just and reasonable

under all the circumstances. You should consider all the evidence presented by both

parties on the subject of plaintiff’s emotional distress, including the testimony of the

doctor(s) who appeared. After considering the evidence, you shall award a lump

sum of money that will fairly and reasonably compensate plaintiff for his/her

emotional distress you find that (s)he has proven.

E. Compensatory Damages (Actual/Special Damages)13

[Plaintiff] seeks compensatory damages for particular material, economic

or financial losses suf fered directly by him/her as the proximate result of the

invasion of privacy. These compensatory damages are sometimes referred to as

special damages. These damages are never presumed; they must be specified by

[plaintiff] and proved by the evidence. [Plaintiff] must show you what the special

loss was and by what sequence of connected events it was produced by the

invasion of privacy. [Plaintiff] can recover these damages only if you determine

13 These instructions should only be given when the plaintiff has properly asserted special

damages.

that [defendant’s] conduct was a substantial factor in causing [plaintiff’s]

material, economic or financial losses. Evidence of embarrassment, mental

suffering or physical sickness will not, without more, entitle [plaintiff] to these

damages.

If you find that [plaintiff] is entitled to recover from [defendant], you may

consider the following factors in determining the amount of damages that would

justly and fairly compensate the plaintiff [use such of the following as the evidence

warrants]: (a) the fair market value of the use of plaintiff’s (name, picture); (b)

the value of plaintiff’s (name, picture) to the defendant; (c) the actual monetary

harm resulting to plaintiff; and (d) the harm to [plaintiff’s] reputation. “Actual

monetary harm” means those economic losses that the plaintiff has sustained to

date and/or is reasonably certain to suffer in the future in respect to property,

business, trade, profession or occupation, which were proximately caused by the

alleged invasion of privacy. “Actual monetary harm” includes but is not limited

to the actual amount of money that plaintiff has expended or will expend as a

result of the alleged invasion of privacy as well as all past and future lost income

plaintiff has sustained as a result of the alleged invasion of privacy.14

14 See Cal. Jury Instr. 7.27 Invasion of Privacy by False Light – Damages (Sept. 2015); Cal.

Jury Instr. 7.28 Damages (Sept. 2015); Judicial Council of California Civil Jury Instruction

1820 Damages (Sept. 2015); Colorado Jury Instructions, 4th, Civil 28:14 Invasion of Privacy –

Here, [plaintiff] claims that (s) he suffered certain spec ific damage as a

result of the invasion of privacy. I shall now outline the specific damages claimed

by [plaintiff].

[Here the trial judge should outline the claime d actual damage and discuss, if

appropriate, the parties’ respective contentions concerning the evidence.]

F. Punitive Damages ( For Defamation Actions Filed On or After

10/27/95)15

NOTE TO JUDGE

This charge incorporates the statutory changes in P. L. 1995, c. 142,

N.J.S.A. 2A:15-5.9 et seq. , the Punitive Damages Act , and should

only be used for causes of action filed on or after October 27, 1995.16

The Punitive Damages Act includes t he following procedural

requirements:

(a) Punitive Damages must be specifically prayed for in the

complaint.

(b) Actions involving punitive damages shall, if requested by any

defendant, be conducted in a bifurcated trial. However, in

light of Herman v. Sunshine Chemical Specialties , 133 N.J.

329, 342 (1993), the trial c ourt should conduct a bifurcated

trial on punitive damages even if the defendant has not made

Damages (June 2015); New York Pattern Jury Instructions – Civil 3:46 Intentional Torts –

Right of Privacy – Damages (Dec. 2014); Restatement (Second) of Torts, § 652H.

15 The Committee believes that the trial judge has discretion to decide whether to explain at the

outset of a trial that there is a request for punitive damages. In any event, the trial judge should

take into account the possible length of the bifurcated procedures in a punitive damages action

when discussing the trial days it will take to complete the case.

16 On the effective date of the Punitive Damages Act , see NOTE TO JUDGE in Model Civil

Charge 8.60 “Damages—Punitive.”

such a request. The statute also requires a bifurcated trial with

the liability and damages phase of a punitive damage s action

tried separately at the second sta ge of the bifurcated trial.

Evidence relevant only to punitive damages shall not be

admissible in the liability and compensa tory damages phase.

This differs from the manner in which punitive damages

actions arising before the effective date of the Puniti ve

Damages Act are tried. ( See NOTE TO JUDGE in Model

Civil Charge 8.60.)

(c) Punitive damages may be awarded only if compensatory

damages have been awarded. Nominal damages cannot

support an award of punitive damages.

(d) When there are two or more defendants, an award of punitive

damages must be specific as t o each defendant and each

defendant is liable only for the award made against him or her.

(e) There is a cap on punitive damages — five times the amount

of compensatory damages or $350,000, whic hever is greater.

The jury shall not be informed that there is a cap on punitive

damages.

(f) Before entering judgment for punitive damages, the trial judge

must ascertain whether the award is reasonable and justified in

light of the purposes of punitive dama ges. The judge may

reduce or eliminate the award if the judge considers that such

action is necessary to satisfy the requirements of the statute.

N.J.S.A. 2A:15-5.14(a).

If you find that [defendant] has [insert a description of the specific invasion

of privacy giving rise to a claim for punitive damages], you must consider whether

or not to award punitive damages to [plaintiff]. Punitive damages are awarded as

a punishment of [defendant]. A plaintiff is not automatically entitled to punitive

damages simply because you have found that a defendant has [insert a description

of the specific invasion of privacy giving rise to a claim for punitive damages] or

because you have awarded damages to compensate the plaintiff for his/her losses.

You may award punitive damages only if the plaintiff has proven certain matters,

as I explain to you.

The purposes of punitive damages are different from the purposes of

compensatory damages. Compensatory damages are intended to compensate a

plaintiff for the actual injury or loss plaintiff suffered as a result of the defendant’s

misconduct. In contrast, punitive damages are intended to punish a wrongdoer

and to deter the wrongdoer from similar wrongful conduct in the future. 17

Punitive damages are designed to require the wrongdoer to pay an amount of

money sufficient to punish him/her for particular conduct and to deter [defendant]

from misconduct in the future.

I will now explain how you determine whether punitive damages will be

awarded to [plaintiff]. To support an award of punitive damages you must find

that [plaintiff] has proved, by clear and convincing evidence, that the harm

suffered by him/her was the result of [defendant’s] conduct

18 and that either (1)

17 Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48-49 (1984); DiGiovanni v.

Pessel, 55 N.J. 188, 190-91 (1970).

18 N.J.S.A. 2A:15-5.12(a).

[defendant’s] conduct was malicious or (2) [defendant] acted in wanton and

willful disregard of another’s rights. Malicious conduct is intentional wrongdoing

in the sense of an evil-minded act. Willful or wanton conduct is a deliberate act

or omission with knowledge or a high degree of probability of harm to another

who foreseeably might be harmed by [defendant’s] acts or omissions and reckless

indifference to the consequence of the acts or omissions.

NOTE TO JUDGE

When the plaintiff is a public official or private figure, and the

invasion of privacy relates to an issue of a public concern, the jury

instructions on punitive damages must contain the following:

(1) The jury must be instructed that punitive damages can

only be awarded if the plaintiff demonstrates that the

defendant knew the statement to be f alse or acted in

reckless disregard of its truth or falsity.

19

(2) The jury must be instructed that plaintiff’s burden of

proof is “with convinc ing clarity” or by “clear and

convincing evidence.”

20

These two modifications apply to non-media as well as to media

defendants.

21

19 Burke v. Dei ner, 97 N.J. 465, 477 n.2 (1984); Vassallo v. Bell , 221 N.J. Super. 347, 374

(App. Div. 1987); Gertz v. Robert Welch, Inc., 418 U.S. 323, 349-50 (1974).

20 Lawrence v. Bauer Pub. & Print., Ltd., 89 N.J. 451, 466, 468 (1982); Burke v. Deiner, supra

at 481. See also Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J. 125, 155 (1986).

21 Dairy Stores, Inc. v. Sentinel Pub. Co., supra at 153. See also, Turf Lawnmowers Repair v.

Bergen Record Corp., 139 N.J. 392, 402-403 (1995).

Because the Punitive Damages Act now requires the “clear and

convincing” standard of proof, the only significant modification for

this category of cases is (1) above.

To prevail on this claim, [plaintiff] must prove certain factors by clear and

convincing evidence to be awarded punitive damages. Clear and convincing

evidence means that standard of evidence which leaves no serious or substantial

doubt about the correctness of the conclusio ns drawn from the evidence. This

standard does not mean that the plaintiff must persuade you beyond a reasonable

doubt, but it does require more than a preponderance of evidence.

In determining whether punitive damages are to be awarded, c onsider all

relevant evidence, including but no t limited to the following: (1) the likelihood,

at the relevant time, that serious harm would arise from [defendant’s] conduct; (2)

[defendant’s] awareness or reckless disregard of the likelihood that such serious

harm would arise from [defendant’s] conduct; (3) the conduct of [defendant] upon

learning that its initial conduct w ould likely cause harm; and (4) the duration of

the conduct or any concealment of that conduct by [defendant].

22

22 See N.J.S.A. 2A:15-5.12(b). Sec. 5.12(b) provides that the trier of fact must consider these

four factors in determining whether punitive damages should be aw arded. However, the trier

of fact may consider additional factors since the four statutory factors are not intended to be

exclusive.

If you decide that the defendant has engaged in the type of wrongdoing that

justifies punitive damages, you must then decide the amount of punitive damages

that should be awarded. In determining that amount, you must consider all

relevant evidence, including but not limited to, evidence of the four factors that I

previously mentioned to you in connection with your determination as to whether

punitive damages should be awarded at all. As you may recall, these factor s are

(1) the likelihood, at the relevant time, that serious harm would arise from

[defendant’s] conduct; (2) the [defendant’s] awareness or reckless disregard of

the likelihood that such serious harm would arise from [defendant’s] conduct; (3)

the conduct of [defendant] upon learning that its initial conduct would likely cause

harm; and (4) the duration of the conduct of any concealment of it by [defendant].

In addition to these factors, you should also consider the profitability of the

misconduct to [defendant]; consider when the misconduct was terminated; and

consider the financial condition of [defendant] or the [defendant’s] ability to pay

the punitive damages award.23

23 See N.J.S.A. 2A:15-5.12(c). Sec. 5.12(c) provides that the trier of fact must consider these

factors in determining the amount of punitive damages that should be awarded. However, the

trier of fact may consider additional factors, if appropriate, since the statutory factors are not

intended to be exclusive. See, e.g ., the factors in Model Civil Charge 8.60 ( i.e., nature of the

wrongdoing; the extent of the harm inflicted by the wrongdoing; the intent of the defendant; or

the effect of the judgment on the defendant). The trial judge should also instruct the jurors on

any other aggravating or mitigating factors, if warr anted by the evidence that may justify an

increase or reduction in the amount of punitive damages. With regard to the “financial

Finally, there must be a reasonable relationship between the actual injury

and the punitive damages.24

After considering all these factors, exercise your judgme nt and determine

(1) whether punitive damages should be awarded and (2) , if so, what the proper

amount should be.

condition” factor, see Herman v. Sunshine Chemical Specialities, Inc., 133 N.J. 339, 345

(1993).

24Fischer v. Johns-Manville Corp., 103 N.J. 643, 675 (1986).