Kenneth Vercammen is a Middlesex County Trial Attorney who has published 130 articles in national and New Jersey publications on Criminal Law, Probate, Estate and litigation topics.

He was awarded the NJ State State Bar Municipal Court Practitioner of the Year.

He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters.

To schedule a confidential consultation, call us or New clients email us evenings and weekends via contact box www.njlaws.com.

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500

Thursday, December 28, 2017

Civil Model Jury Charge 5.30L EFFECT OF INTOXICATION ON DUTY OWING (By Automobile Driver)

5.30L Effect of Intoxication on Duty Owing (By Automobile Driver) (Approved before 1983)

http://www.judiciary.state.nj.us/civil/civindx.html
The driver of a vehicle is required to exercise the care which a reasonably prudent and sober person could exercise under the same or similar circumstances. The fact that a driver of a vehicle has been drinking and gives the appearance of being under the influence of alcohol does not in itself necessarily constitute negligence. However, it is proper evidence to be considered and weighed by you, along with all of the other evidence in the case, in determining whether negligence has been established.
If a person, although intoxicated, drives his/her vehicle in a proper manner and as a reasonably prudent and sober man would, he/she cannot be held liable for damage inflicted by his/her vehicle merely because he/she was intoxicated at the time. On the other hand, voluntary intoxication does not excuse his/her failure to exercise that degree of care, in the conduct and management of his/her vehicle, which would be exercised by a reasonably prudent and sober driver under the same or similar circumstances. If he/she does not exercise that degree of care, he/she is negligent, whether the failure to do so is caused by intoxication or not.

NOTE TO JUDGE
This charge may be modified to apply to other situations where the sobriety of a party is an issue.
Cases:
Roether v. Pearson, 36 N.JSuper. 465 (App. Div. 1955); Petrone v. Margolis, 20 N.JSuper. 180 (App. Div. 1952); Tabor v. OGrady, 61 N.J.Super. 446 (App. Div. 1960).

Civil Model Jury Charge 5.30K NONUSE OF SEATBELT ON ISSUE OF NEGLIGENCE

5.30K Nonuse of Seatbelt on Issue of Negligence1 (Approved 6/89)

http://www.judiciary.state.nj.us/civil/civindx.html

Some of the evidence presented in this case bears upon defendants contention that plaintiff was not wearing a seatbelt at the time of the accident.This contention is not relevant in deciding who is at fault for causing the accident.[2] However, it may be important in determining the amount of money that the plaintiff may recover for any injuries he/she received. I will talk about that with you in a few minutes.[3]


[1]Waterson v. General Motors Corp., 111 N.J. 238, 264 (1988): Consequently, the relevant inquiry is not whether the failure to use a seatbelt contributed to the cause of the accident but whether the nonuse of a seatbelt contributed to plaintiffs injuries.
[2]This charge is not intended to address cases where nonuse of a seatbelt is alleged to have contributed to the happening of the accident itself.Watersonsupra note 1, at 268 n. 5.
[3]This refers to Model Civil Charge 8.21.

Civil Model Jury Charge 5.30J DUTY OF CARE PROCEEDING THROUGH INTERSECTION WITH GREEN LIGHT [The Favored Driver]

5.30J Duty of Care Proceeding Through Intersection with Green Light [The Favored Driver] (Approved 1977)
http://www.judiciary.state.nj.us/civil/civindx.html

Our motor vehicle laws set forth a standard of conduct to be exercised by the driver of a motor vehicle while approaching and proceeding through an intersection controlled by a traffic control device.
N.J.S.A. 39:4-81 in pertinent part provides:
The driver of every vehicle . . . shall obey the instructions of any official traffic control device placed in accordance with the traffic act.
N.J.S.A. 39:4-105 in pertinent part provides:
A three-color system shall be used; red, amber, and green. Green means permission for traffic to go, subject to the safety of others. . . . Red means traffic to stop before entering the intersection or crosswalk and remain standing until green is shown alone.
These motor vehicle laws provide that the driver of a motor vehicle proceeding on a street with a red light confronting him/her is obligated to stop before entering the intersection and is to remain standing until the light turns green for that driver.

The driver proceeding into (through) an intersection with a green light does not have an unqualified right to proceed. He/She is obligated to exercise reasonable care, which includes making reasonable observations for traffic traveling on an intersection street. That is not to say that a driver proceeding into (through) an intersection on a green light has the same duty of making observations that a driver, for example, with a stop sign confronting him would be obligated to make. What it does mean is that the driver favored with the green light must make reasonable observations and depending on the circumstances you may conclude that that driver acted reasonably if he/she made only cursory observations for traffic proceeding on an intersecting street, whereas in other circumstances the same type of observation would not be considered reasonable.
Failure on the part of the driver favored with the green light to exercise such care while proceeding through the intersection is evidence to be considered by you in determining whether that driver was negligent in the operation of his/her motor vehicle.
NOTE TO JUDGE
Also consider whether the jury should be instructed as follows:

If you find that one of the drivers proceeded through a red light, that driver would be negligent and your consideration should be directed to whether such negligence was a proximate cause of the accident within the meaning and definition of that term previously given.
NOTE TO JUDGE
It is also presumed the jury has been previously instructed that the duty of reasonable care by users of the roadway is mutual and reciprocal and ordinarily each driver may assume that any other driver will observe that standard of conduct in the use thereof.

Civil Model Jury Charge 5.30I DUTY OF CARE: DRIVER OF MOTOR VEHICLE PROCEEDING THROUGH AN INTERSECTION WITH A FLASHING AMBER TRAFFIC CONTROL DEVICE

5.30I Duty Of Care: Driver Of Motor Vehicle Proceeding Through An Intersection With A Flashing Amber Traffic Control Device(Revised 6/07)

http://www.judiciary.state.nj.us/civil/civindx.html

Our motor vehicle laws set forth a standard of conduct to be exercised by the driver of a motor vehicle while approaching and proceeding through an intersection controlled by a flashing amber traffic control device.
N.J.S.A. 39:4-119(b) provides:
Flashing amber: The amber lens when illuminated with rapid intermittent flashes shall indicate the presence of danger and require drivers to proceed only with caution.
The above provision requires that the motorist proceed only with caution when approaching and proceeding through an intersection controlled by a flashing amber traffic control device. This is a factor for you to consider in determining whether the drivers conduct was negligent under the circumstances.

Civil Model Jury Charge 5.30H DUTY OF CARE: DRIVER OF MOTOR VEHICLE PROCEEDING THROUGH AN INTERSECTION CONTROLLED BY A STOP SIGN/FLASHING RED TRAFFIC CONTROL DEVICE

5.30H Duty Of Care: Driver Of Motor Vehicle Proceeding Through An Intersection Controlled By A Stop Sign/Flashing Red Traffic Control Device (Revised 6/07)[1]
http://www.judiciary.state.nj.us/civil/civindx.html
Our motor vehicle laws set forth a standard of conduct to be exercised by the driver of a motor vehicle while approaching and proceeding through an intersection controlled by a [stop sign] [flashing red traffic control device].
NOTE TO JUDGE
Use whichever of the following is appropriate based upon the configuration of the intersection:
N.J.S.A. 39:4-144 provides in pertinent part:
No driver of a vehicle . . . shall enter upon or cross an intersecting street marked with a stop sign unless he has first brought his vehicle . . . to a complete stop at a point within 5 feet of the nearest crosswalk or stop line marked upon the pavement at the near side of the intersecting street and shall proceed only after yielding the right of way to all traffic on the intersecting street which is so close as to constitute an immediate hazard.
N.J.S.A. 39: 4-110(a) provides:
Flashing red: The red lens when illuminated with rapid intermittent flashes shall require drivers to come to a complete stop before entering or crossing the intersection. The driver shall proceed only after yielding the right of way to all traffic on the intersecting street, which traffic is so close as to constitute an immediate hazard.
The above provision requires that the motorist stop and make observations while stopped before proceeding. It also requires the motorist to continue to make observations as he or she enters and crosses the intersecting street as the circumstances at the particular intersection reasonably require. The presence of permanent or temporary obstructions to the view of the motorist, such as buildings, billboards, parked cars, crowded sidewalks, etc., does not obviate the duty of the motorist to make continual reasonable observations as he or she proceeds through the intersection, and is a factor for you to consider in determining whether the drivers conduct was negligent under the circumstances.


[1] See generally Cresse v. Parsekian, 81 N.J. Super. 536, 545-46 (App. Div. 1964), affd 43
N. J. 326 (1964); State v. Jamerson, 153 N.J. 318 (1998).

5.30H Duty Of Care: Driver Of Motor Vehicle Proceeding Through An Intersection Controlled By A Stop Sign/Flashing Red Traffic Control Device (Revised 6/07)[1]
http://www.judiciary.state.nj.us/civil/civindx.html
Our motor vehicle laws set forth a standard of conduct to be exercised by the driver of a motor vehicle while approaching and proceeding through an intersection controlled by a [stop sign] [flashing red traffic control device].
NOTE TO JUDGE
Use whichever of the following is appropriate based upon the configuration of the intersection:
N.J.S.A. 39:4-144 provides in pertinent part:
No driver of a vehicle . . . shall enter upon or cross an intersecting street marked with a stop sign unless he has first brought his vehicle . . . to a complete stop at a point within 5 feet of the nearest crosswalk or stop line marked upon the pavement at the near side of the intersecting street and shall proceed only after yielding the right of way to all traffic on the intersecting street which is so close as to constitute an immediate hazard.
N.J.S.A. 39: 4-110(a) provides:
Flashing red: The red lens when illuminated with rapid intermittent flashes shall require drivers to come to a complete stop before entering or crossing the intersection. The driver shall proceed only after yielding the right of way to all traffic on the intersecting street, which traffic is so close as to constitute an immediate hazard.
The above provision requires that the motorist stop and make observations while stopped before proceeding. It also requires the motorist to continue to make observations as he or she enters and crosses the intersecting street as the circumstances at the particular intersection reasonably require. The presence of permanent or temporary obstructions to the view of the motorist, such as buildings, billboards, parked cars, crowded sidewalks, etc., does not obviate the duty of the motorist to make continual reasonable observations as he or she proceeds through the intersection, and is a factor for you to consider in determining whether the drivers conduct was negligent under the circumstances.


[1] See generally Cresse v. Parsekian, 81 N.J. Super. 536, 545-46 (App. Div. 1964), affd 43
N. J. 326 (1964); State v. Jamerson, 153 N.J. 318 (1998).

Civil Model Jury Charge 5.30G DUTY OF AUTOMOBILE DRIVER TO MAKE OBSERVATIONS

5.30G Duty of Automobile Driver to Make Observations (Approved before 1983)
http://www.judiciary.state.nj.us/civil/civindx.html
1. For Traffic Conditions
The law imposes upon the driver of an automobile the duty of exercising such care as is reasonable under all the circumstances confronting him/her at the particular time. This duty requires motorists to use our streets and highways with reciprocal regard for the rights of others who may also be using them. Thus a motorist is required to make such observations for traffic and vehicles which are in or may come into his/her path of travel, as a reasonably prudent person would make.
Cases:
Ambrose v. Cyphers, 29 N.J. 138 (1959); Bedford v. Hurff, 9 Misc. 15 (Sup. Ct. 1930); Poole v. Twentieth Centrury Operating Co., 121 N.J.L. 244 (E. & A. 1938); Trout v. Bright, 10 Misc. 914 (D.C. 1932); Crisciotti v. Greatrex, 9 N.JSuper. 26 (App. Div. 1950); Hyman v. Bierman, 130 N.J.L. 170 (E. & A. 1943); Schaublin v. Leber, 50 N.JSuper. 506 (App. Div. 1953).
Statutory duty to make observations: N.J.S.A. 39:4-53, driver to have clear view; N.J.S.A. 39:4-125, view on curve, grade, etc.; N.J.S.A. 39:3-74, windshield to permit clear view; N.J.S.A. 39:4-55, view on curve; N.J.S.A. 39:4-86, passing only where clearly visible. N.J.S.A. 39:4-37.1, blind persons.

The duty to exercise reasonable care between persons using a public highway is mutual. An approaching driver is justified in assuming, until he/she discovers that it is contrary to the fact, that all other users of the highway will exercise reasonable care in their use of the highway.
Tischler v. Steinholtz, 99 N.J.L. 150, 151 (E. & A. 1923); German v. Harris, 106 N.J.L. 521, 523 (E. & A. 1930); Nile v. Phillips Express Co., 118N.J.L. 455, 460 (E. & A. 1937); Cole v. Twentieth Century Operating Co., 121 N.J.L. 244, 248 (E. & A. 1938); Van Rensselaer v. Viorst, 136 N.J.L. 628, 631 (E. & A. 1947).
2. For Pedestrians
Vehicular operators and pedestrians have a common right to the use of a public highway. Their rights and duties are mutual and relative and each is charged with a duty of reasonable care, commensurate with the risk of danger involved in the particular circumstances. Thus a motorist is required to make such observations for pedestrians who are in, or may come into his/her path of travel, as a reasonably prudent person would make.
Cases:
Poole v. Twentieth Century Operating Co., 121 N.J.L. 244 (E. & A. 1938); Van Rensselaer v. Viorst, 136 N.J.L. 628 (E. & A. 1948); LeBavin v. Suburban Gas Co., 134 N.J.L. 10 (E. & A. 1946).
The general rule is that the vigilance and care required of the operator of a motor vehicle may vary in respect to persons of different ages or physical conditions. He/She must increase his/her exertions in order to avoid danger to children whom he/she may see, or by the exercise of reasonable care should see, on or near the highway. Children are entitled to care proportionate to their inability to foresee and avoid danger.
Rosenberg v. Holt, 102 N.J.L. 159 (E. & A. 1925); Eastmond v. Wachstein, 4 Misc. 966 (Sup. Ct. 1926); Ferris v. McArdle, 92 N.J.L. 580 (E. & A. 1919); Greco v. Schmidt, 101 N.J.L. 554 (E. & A. 1925); Sembler v. Scott, 130 N.J.L. 184 (E. & A. 1943); Balog v. Mitchell Co., 3 Misc. 1000 (Sup. Ct. 1925); Silberstein v. Showell, Fryer & Co., 109 Atl. 701 (1920); Mulhern v. Philadelphia Home-Made Bread Co., 101 Atl. 74; 5A AmJur.,Automobiles & Highway Traffic Secs. 439, 440, 444.
School Zones N.J.S.A. 39:4-167; Playgrounds, N.J.S.A. 39:4-168; Caution Signs, N.J.S.A. 39:4-166.
3. Where View Obstructed at Intersection
The fact that an operator of an automobile cannot see up an intersecting street until he/she is actually in it, does not obligate him/her to get out of the car and look up and down the street before proceeding over or into it. A person is not required to extend his/her vision beyond a point where vehicles traveling at a lawful speed would threaten his/her safety. The duty imposed upon a motorist in such situation is to approach the obscured intersection with reasonable care and caution, commensurate with the risk involved. This duty requires the motorist to have his/her vehicle under proper control, to operate it at an appropriate speed and to make such reasonable and effective observations as a reasonably prudent person would make, commensurate with the risk of danger involved.

Cases:
Moser v. Castles Ice Cream Co., 2 Misc. 1029 (Sup. Ct. 1924); Wilson v. Kuhn, 3 Misc. 1032 (Sup. Ct. 1925); Abel v. Seek Baking Co., 4 Misc. 213 (Sup. Ct. 1926); Boyer v. Great At. & c., 99 N.J.L. 451 (E. & A. 1924); Rich v. Eldredge, 106 N.J.L. 181 (E. & A. 1929); Rizio v. P.S., 128, N.J.L. 60 (E. & A. 1942); LeBavin v. Suburban Gas Co., 134 N.J.L. 10 (E. & A. 1946); Neidig v. Fisher, 123 N.J.L. 242 (E. & A. 1939); Webber v. McCormick, 63 N.JSuper. 409 (App. Div. 1960); Schuttler v. Reinhardt, 17 N.JSuper. 480 (App. Div. 1952).
4. Where Vision Impaired
Where the view of the roadway ahead is impaired by obstructions to view caused by darkness, fog, rain on glass or other such obstruction, there is a duty to exercise care commensurate with the risk of the hazard presented. The operator of a motor vehicle in such a situation is required to exercise reasonable care, that is, such care as the existing conditions require, to have his/her vehicle under such control as to be able to stop, if necessary, to avoid harm to others on the highway. In addition, while operating a vehicle in the night time, the operator is required to anticipate that other vehicles and persons may be on the highway and must use reasonable care to so adjust his/her lights that he/she can observe vehicles or pedestrians at a sufficient distance to avoid contact with them at the speed he/she is traveling.
Cases:
Ball v. Camden & Trenton Ry. Co., 76 N.J.L. 539 (E. & A. 1909); Anderson v. Public Service Corporation, 81 N.J.L. 700 (E. & A. 1911); Crisciotti v. Creatrex, 9 N.JSuper. 26 (App. Div. 1950); Osbun v. DeYoung, 99 N.J.L. 204 (E. & A. 1923); Garvey v. Public Service & c., Transport, 136N.J.L. 533 (E. & A. 1943); Madde v. Lindberg, 12 N.JSuper. 248 (App. Div. 1951); Hartpence v. Grouleff, 15 N.J. 545 (1954); Greenfield v. Dusseault, 60 N.JSuper. 436 (App. Div. 1960); Spear v. Hummer, 11 Misc. 709 (Sup. Ct. 1933), 42 A.L.R. 2d 13 (1926).
5. Temporary Blindness of Driver as Affecting Duty
No person is entitled to drive a car on a public street or highway while blind, even temporarily. Where street lights, headlights or other lights or reflections of light have the effect of causing temporary blindness, it is his/her duty to stop his/her car and thereafter to proceed only when the temporary blindness has passed.
Cases:
Osbun v. DeYoung, 99 N.J.L. 204, affdsee Martin v. DeYoung, 99 N.J.L. 284 (E. & A. 1923); Robinson v. Mutnick, 102 N.J.L. 22 (Sup. Ct. 1925);Devine v. Chester, 7 Misc. 131 (Sup. Ct. 1929); Hammond v. Morrison, 90 N.J.L. 15 (Sup. Ct. 1917); 22 A.L.R. 2d 292 (1923); Windshields,N.J.S.A. 39:4-126.

6. Duty as to Obstacles and Defects in Streets
The law does not impose upon a motorist an absolute duty to observe and avoid obstacles and defects in a street or highway. The operator of a vehicle has the right to place reasonable reliance upon proper preservation of a street or highway in a reasonably safe condition. But where a defect or obstacle is obvious or clearly visible or where reasonable observation would disclose it in time to avoid or prepare for it, the operator of an automobile is liable for failure to exercise reasonable care to avoid it [or its effects].
Cases:
Geise v. Mercer Bottling Co., 87 N.J.L. 224 (1915); Volinsky v. Public Service Coordinated Transport, 5 N.JSuper. 320 (App. Div. 1949); Messier v. City of Clifton, 24 N.JSuper. 133 (App. Div. 1952); Hallett v. Wm. Eisenberg & Sons, Inc., 116 N.J.L. (E. & A. 1935); Rapp v. Public Service Coordinated Transport, etc. (1952); Robinson v. Mutnick, 102 N.J.L. 22 (Sup. Ct. 1925); Bowen v. Healys Inc., 16 N.J. Misc. 113 (Sup. Ct. 1938);Fisher v. Healys Special Tours, Inc., 121 N.J.L. 198 (E. & A. 1938); Yanas v. Hogan, 133 N.J.L. 188 (Sup. Ct. 1945).
7. Duty as to Persons under Disability
The operator of a car is bound to consider the lack of capacity of those in his/her way to care for their own safety, when such incapacity is known or should be known by him/her in the exercise of reasonable care. Where the driver of a vehicle actually observes that a person is under disability he/she is under a duty to exercise reasonable care to avoid injury to him/her, having this incapacity in mind. This rule applies to persons who are rendered helpless or whose capacity for self-protection is limited due to infancy, intoxication, illness or other causes. A driver under such circumstances is required to exercise a degree of care commensurate with risk of danger involved. [The mere fact that a pedestrian is intoxicated does not confer a right upon the driver to run him/her down.]
Cases:
Eichinger v. Krause, 105 N.J.L. 402 (E. & A. 1929); blind persons, N.J.S.A. 39:4-37.1; Confone v. Gnassi, 5 Misc. 343 (Sup. Ct. 1927); Bageard v. Consolidated Traction, 64 N.J. 316 (E. & A. 1900); Petrone v. Margolis, 29 N.JSuper. 180 (App. Div. 1952); Tabor v. OGrady, 61 N.JSuper. 446 (App. Div. 1960).

Civil Model Jury Charge 5.30F LIABILITY FOR INJURY DUE TO MECHANICAL DEFECT OR FAILURE

5.30F Liability for Injury Due to Mechanical Defect or Failure (Approved before 1984)
http://www.judiciary.state.nj.us/civil/civindx.html

1. Liability of Owner in General
The law imposes upon the owner of a motor vehicle the duty of exercising reasonable care to have such vehicle in safe condition and properly equipped and maintained for use upon the highway. This duty includes the obligation of exercising reasonable care in the inspection of the vehicle for defects or other conditions which would render its use unsafe. An owner of a vehicle is chargeable with knowledge of such defects or conditions in the vehicle as a reasonable inspection would reveal. For failure to perform this duty a defendant is liable in money damages to one who suffers injury thereby.
In order for the defendant to be liable, it is necessary that you find that the defect or condition existed, that it was known to the defendant or could have been discovered by him/her in the exercise of reasonable care on his/her part, and that it was the, or a, proximate cause of the plaintiffs injury.
NOTE TO JUDGE
The above or the alternate form hereunder would be applicable where the use of the vehicle is by the owner or his/her agent, or, with reference to the condition of the vehicle, where the owner entrusts it to another for operation upon the highway. It is not intended to cover defects which originate after the vehicle leaves the possession of the owner or his/her agent.

See separate charges as to liability for breach of warranty (Model Civil Charges 4.21 and 4.22) as in Henningson v. Bloomfield Motorset al., 33N.J. 358 (1960).
ALTERNATE FORM
It is the duty of the owner of the motor vehicle to exercise reasonable care to see that it is in a reasonably safe condition for operation upon the highway, and that it is so equipped and maintained as not to become a hazard to other users thereof. The failure on the part of the owner to exercise reasonable care as to the equipment, inspection or maintenance of the vehicle constitutes negligence and renders him/her liable for damage to the person or property of another who may be harmed as a proximate result thereof. If the defect or condition which brought about the plaintiffs injury could have been discovered by the defendant, in the exercise of reasonable care on his/her part, it is no defense that he/she had no actual knowledge of the defect. However, if the defective condition in question was not known to the defendant and could not have been discovered by him in the exercise of ordinary care on his/her part, he/she was not negligent and hence would not be liable for the plaintiffs injury.
NOTE TO JUDGE
The circumstances of the individual cases will dictate which of the above alternative forms should be used. It should be kept in mind that the liability of the owner may extend to injuries sustained by the operator of the vehicle if he/she was exercising reasonable care.
Either of the above versions may be modified to cover the obligation of one other than the owner. Albert v. Feldstein, 21 N.JSuper. 503 (App. Div. 1952).

NOTE TO JUDGE

See the American Law Institutes Restatement of Torts, 402A (1964 Revision).
As to obligation of one who operates a vehicle under a governmental franchise, see Felbrant v. Able, 80 N.JSuper. 537 (App. Div. 1964); Honey v. Brown, 22 N.J. 433 (1952).
As to liability of garage repairman, see Zierer v. Daniels, 40 N.JSuper. 130 (App. Div. 1956).
As to liability of owner of car when driven by repairmans employee, see Ford v. Fox, 8 N.JSuper. 80 (App. Div. 1950).
A manufacturer and a dealer are liable, regardless of privity, for injuries sustained by the wife of the buyer of a vehicle by reason of a defect therein. Henningson v. Bloomfield Motorset al., 33 N.J. 353 (1960) (breach of warranty case); see alsoPabon v. Hackensack Auto Sales, Inc., 63N.JSuper. 476 (App. Div. 1960).
RES IPSA LOQUITUR.
Where through an instrumentality under the exclusive control of the defendant there is an occurrence which in the ordinary course of things would not take place if the person in control were exercising reasonable care, the occurrence thereof in the absence of explanation has been held to beprima facie evidence of negligence in certain cases. Rapp v. Butler-Newark Bus Company, 103 N.J.L. 512 (1927) (rear wheel of bus came off);Gaglio v. Yellow Cab Co., 63 N.JSuper. 206 (1960) (front wheel locked). It is to be noted that the above cases involved passengers in common carrier vehicles. See, however, 24 A.L.R. 2d. 161 (1952).

DEFECTIVE ACCELERATOR.
Hennig v. Booth, 4 N.J. Misc. 150; 132 A. 294 (Sup. Ct. 1926).
DEFECTIVE STEERING MECHANISM.
Brenson v. Scott, 9 N.J. Misc. 1320; 157 A. 550 (Sup. Ct. 1931).
FAULTY BRAKES.
Stiegler v. Neuweiler, 91 N.J.L. 273 (E. & A. 1917); Schriener v. Del. L. & W.R.R., 98 N.J.L. 899 (E. & A. 1923); Feury v. Reid Ice Cream Co., 2N.J. Misc. 1008; 126 A. 462 (Sup. Ct. 1924); Hinsch v. Amirkanian, 7 N.J. Misc. 274; 145 A. 232 (Sup. Ct. 1929); Wilkerson v. Walsh, 115 N.J.L. 243 (E. & A. 1935); Alpert v. Feldstein, 21 N.JSuper. 503 (1952).
DEFECTIVE ROAD LIGHTING EQUIPMENT.
(See N.J.S.A. 39:3-53 et sec.); Maini v. Hassler, 38 N.JSuper. 81 (App. Div. 1955); Zauber v. VanWagoner, 12 N.J. Misc. 473; 172 A. 730 (Sup. Ct. 1934); Hamilton v. Althouse, 115 N.J.L. 248 (E. & A. 1935); Gunnion v. Fern, 6 N.J. Misc. 26; 139 A. 893 (Sup. Ct. 1928); Halrin v. Tillon, 2N.J. Misc. 1100; 126 A. 665 (Sup. Ct. 1924); Trefty v. Kirby, 7 N.J. Misc. 555; 126 A. 665 (Sup. Ct. 1929); Jacobus v. McEwan, 2 N.J. Misc. 196 (Sup. Ct. 1924); Julich v. T.A. Gillespie Co., 7 N.J. Misc. 630; 146 A. 785 (Sup. Ct. 1929); Osbun v. DeYound, 99 N.J.L. 284 (E. & A. 1923); Steber v. Malanka, 14 N.J. Misc. 141; 182 A. 890 (Sup. Ct. 1936), affd, 117 N.J.L. 443 (E. & A. 1937); Honey v. Brown, 22 N.J. 443 (1956); Mattero v. Silverman, 79 N.JSuper. 449 (App. Div. 1963); Nicolosi v. Knight, 135 N.J.L. 515 (E. & A. 1947).
LIABILITY UNDER I.C.C. USAGE.
Where independent contractor who used truck of one having an interstate commerce license, was negligent in parking the truck on shoulder of highway without rear lights of truck being lighted and automobile ran into truck, the one who had the Interstate Commerce Commission license was liable for injuries sustained by the driver and occupants of automobile. Honey v. Brown, 22 N.J. 433 (1956).
ADDITIONAL NOTES AS TO DEFECTS IN GENERAL
Lights, driving without, or with improper. 21 A.L.R. 2d 7 (1952); 21 A.L.R. 2d 209 (1952); 67 A.L.R. 2d 118 (1959).
Tires, blowout or other failure of. 24 A.L.R. 2d 16 (1952).
Wheel, detached, res ipsa loquitur, 46 A.L.R. 2d 110 (1956).
Steering mechanism, break of, or defect in. 23 A.L.R. 2d 539 (1952).
Rear view mirror, lack or inadequacy of. 27 A.L.R. 2d 1040 (1953).
Inhalation of gases or fumes from motor vehicle exhaust, owners or operators liability for passengers injury or death. 56 A.L.R. 2d 1099 (1957).
2. Liability of Bailor for Consideration
The bailor of a motor vehicle for the mutual benefit of the parties is under a duty to use reasonable care and diligence to furnish a vehicle which is reasonably fit for the purpose for which it is to be used. This duty includes the obligation of making a reasonable inspection of the vehicle for defects or conditions liable to constitute a source of danger, and to correct such defect or give warning to the prospective user of such defects or conditions of which the bailor has knowledge.
Cases:
RestatementTorts, 392; Nelson v. Frehauf Trailer Co., 20 N.JSuper. 198 (1952) affd 11 N.J. 413 (1953); Mason v. Niewinski, 66 N.JSuper. 358 (App. Div. 1961); Union County U-Drive It v. Blomely, 48 N.JSuper. 252 (App. Div. 1958); M. Dietz & Sons, Inc. v. Miller, 43 N.J. Super. 334, (App. Div. 1957); Schimek v. Gibb

Truck Rental Agency, 69 N.JSuper. 590 (App. Div. 1961); Bratka v. Castles Ice Cream Co., 40 N.JSuper. 576 (App. Div. 1956); also, 46 A.L.R. 2d 404 (1956) 60 A.L.R. 2d 350 (1958).
3. Manufacturers Liability
The manufacturer of an article, such as an automobile, which while not inherently dangerous, may become so when put to the use for which it is intended, owes to the public the duty of employing reasonable care, skill and diligence in its manufacture, assembly and inspection, and of exercising reasonable diligence to see that it is reasonably fit for the purpose for which it is intended. This duty of reasonable care extends not only to the purchaser of the vehicle but to all persons who may reasonably be expected to use the vehicle or be in the vicinity of its use.
Cases:
Heckel v. Ford Motor Co., 101 N.J.L. 385, 387 (1925); Henningson v. Bloomfield Motorset al., 33 N.J. 358 (1960); Pabon v. Hackensack Auto Sales, Inc., 63 N.JSuper. 476 (App. Div. 1960). See also, ODonnell v. Asplundh, 13 N.J. 319 (1953); Clark v. Standard, 8 N.J. Misc. 284 (1930);Sinatra v. National X-ray, 26 N.J. 546 (1958).
The duty of inspection for the purpose of locating latent as well as patent defects which could be ascertained by the exercise of reasonable care on its part. Sinatra v. National X-raysupra.
It is not enough that the defendant shows that it required reasonable tests of its equipment but it must appear that these tests were actually applied in a reasonably careful manner. ODonnell v. Asplundh Tree Expertsupra.

Civil Model Jury Charge 5.30E EFFECT OF BLACK OUT

5.30E Effect of Black Out (Approved before 1984)
http://www.judiciary.state.nj.us/civil/civindx.html
The fact that the automobile operated by defendant left the highway (or crossed the center line of a two way road, etc.) is evidence from which you may infer that the accident was brought about by the negligence of the defendant and calls upon him/her for an explanation of the reason for the unusual course of the vehicle.
Defendants explanation is that immediately before the occurrence, he/she became unconscious (had a heart attack, etc.). He/She contends that he/she was not negligent because in his/her then condition he/she could not control the automobile and the period of unconsciousness came on suddenly without fault on his/her part.
It is not negligence to lose control of an automobile by reason of sudden unconsciousness (heart attack, etc.). A person who causes an accident by reason of such an attack is not held responsible for that which is not of his/her doing and is beyond his/her control.

However, where a person is suffering from a disease or condition which he/she knows, or which a reasonable person in his/her position should know, makes him/her subject to fainting or weak spells or seizures of a kind which may imperil his/her control of the vehicle, it may indicate lack of due care for such a person to drive on a public highway.
Evidence that defendant has previously suffered from a similar attack or attacks may be considered by you in determining whether defendant had such warning that an ordinarily prudent person in his/her position should have foreseen the danger and, in the exercise of reasonable care, should have refrained from operating an automobile or taken other precautions.
Taking into consideration all of the credible evidence with respect to the manner in which defendant operated his/her automobile, with respect to the defendants alleged blackout (or other seizure) just before the accident, and with respect to defendants prior knowledge of his/her own condition and his/her susceptibility to blackout, the plaintiff has the burden of establishing by the preponderance of the evidence that the defendant was negligent and that his/her negligence brought about the accident.
Cases:
Res Ipsa Loquitur: Bevilacqua v. Sutter, 26 N.JSuper. 394, (App. Div. 1953) (crossing highway and striking pole); Spill v. Stoeckert, 125 N.J.L. 382, (E. & A. 1940) (leaving pavement and overturning); Smith v. Kirby, 115 N.J.L. 225, (E. & A. 1935) (leaving highway and striking tree).
Burden of explanation, not exculpation, is on defendant: Kahalili v. Rosecliff Realty, Inc., 26 N.J. 595, 66 A.L.R. 2d 680 (1958).
Sudden unconsciousness is not negligence: ProsserLaw of Torts, 2nd ed., (1955) p. 117 note 12; State v. Shiren, 15 N.JSuper. 440 (App. Div. 1951) (blackout caused by illness negates criminal negligence) Annotation 28 A.L.R. 2d (1953) at p. 35, et seq.
Driving after warning of susceptibility to blackout may be negligence: In re Lewis, 11 N.J. 217 (1953) (Criminal negligence); Kreis v. Owens, 38N.JSuper. 148 (App. Div. 1955) (Civil negligence).
Burden of proof: Unavoidable accident is not an affirmative defense. It amounts to a denial of negligence. Cohen v. Kaminetsky, 36 N.J. 276 (1961).
Res Ipsa Loquitur does not shift burden of proof: 65 C.J.SNegligence, Sec. 220 (9) (b); Bornstein v. Metropolitan Bottling Co., 26 N.J. 263 (1958); Kahalili v. Rosecliff Realty, Inc., 26 N.J. 595, 66 A.L.R2d 680 (1958).


Civil Model Jury Charge 5.30D VIOLATION OF TRAFFIC ACT

5.30D Violation of Traffic Act (Approved 8/99)
http://www.judiciary.state.nj.us/civil/civindx.html

Note to Judge

In Ewing v. Burke, 316 N.J. Super. 287 (App. Div. 1998), the Appellate Division held that the trial court committed plain error in failing to modify the model charges to include reference to a relevant motor vehicle statute that was applicable to the facts and circumstances of the particular case.The Appellate Division stated: Ordinarily, therefore, if there is evidence tending to establish that a vehicle was operated in violation of a motor vehicle statute, the statutory duty should be charged to the jury in order to assist the jury in arriving at the appropriate verdict. Id. at 294.
In this case, in support of the charge of negligence made, it is asserted that the defendant violated a provision of the motor vehicle laws. The provision referred to is known as N.J.S.A. ________ and reads as follows: ________ The statute in question has set up a standard of conduct for the users of our streets and highways. If you find that the defendant has violated that standard of conduct, such violation is evidence to be considered by you in determining whether negligence, as I have defined that term to you, has been established. You may find that such violation constituted negligence on the part of the defendant, or you may find that it did not constitute such negligence. Your finding on this issue may be based on such violation alone, but in the event that there is other or additional evidence bearing upon that issue, you will consider such violation together with all such additional evidence in arriving at your ultimate decision as to defendants negligence.
Cases:
Philips v. Scrimente, 66 N.J. Super. 157 (App. Div. 1961). The above may be modified to cover violations of certain other statutes or ordinances which set up a standard of conduct to be observed in given circumstances for the benefit of the class to which plaintiff belongs. Evers v. Davis, 86N.J.L. 196 (E. & A. 1914); Moores Trucking Co. v. Gulf Tire & Supply Co., 18 N.J. Super. 467 (App. Div. 1952).
1. Evidence of Negligence (Approved 6/71)
In this case, in support of the charge of negligence made, it is asserted that the defendant violated a provision of the motor vehicle laws. The provision referred to is known as N.J.S.A. ____ and reads as follows: _________________.
Now the statute in question has set up a standard of conduct for the users of our streets and highways. If you find that the defendant has violated that standard of conduct, such violation is evidence to be considered by you in determining whether negligence, as I have defined that term to you, has been established. You may find that such violation constituted negligence on the part of the defendant, or you may find that it did not constitute such negligence. Your finding on this issue may be based on such violation alone, but in the event that there is other or additional evidence bearing upon that issue, you will consider such violation together with all such additional evidence in arriving at your ultimate decision as to defendants negligence.
Cases:
Philips v. Scrimente, 66 N.JSuper. 157 (App. Div. 1961). The above may be modified to cover violations of certain other statutes or ordinances which set up a standard of conduct to be observed in given circumstances for the benefit of the class to which plaintiff belongs. Evers v. Davis, 86N.J.L. 196 (E. & A. 1914); Moores Trucking Co. v. Gulf Tire & Supply Co., 18 N.JSuper. 467 (App. Div. 1952). See numbered paragraph 2, which follows, pertaining to those cases in which the violation of a statute is negligence and not merely evidence of negligence.
2. Violation of Motor Vehicle Act is Negligence (Approved 6/71)
Defendant denies that he/she violated this section of the motor vehicle laws and makes the following contention concerning the operation of his/her motor vehicle: ____________________________________________________.

The statute in question establishes a standard of conduct for motorists using our streets and highways. If you find that defendant has violated this statute by following another vehicle more closely than is reasonable and prudent, having due regard to the speed of the preceding vehicle and the traffic upon and condition of the highway, such conduct is negligence on defendants part.

NOTE TO JUDGE

There are some cases where the violation of a section of the motor vehicle laws is negligence as a matter of law and not merely evidence of negligence. In Dolson v. Anastasia, 55 N.J. 2, 9-11 (1969), the Court held that the failure to maintain a reasonably safe distance behind the car ahead is negligence and a jury should be so instructed. . . .This does not mean however, that such conduct is only evidence of negligence because it violates a statute. In Dolson, defendant struck plaintiffs vehicle in the rear. The Court noted that defendant did not contend that plaintiff came to a sudden stop nor that he/she thought plaintiff intended to proceed slowly through the intersection rather than stop or turn. In the absence of any reasonable justification or explanation for striking plaintiff in the rear, the Court held the violation of the statute on following too closely is negligence. The Court noted further that it did not consider a binding instruction as to liability because no motion to that effect had been made at trial nor contended on appeal.
In an appropriate case it would appear that no issue would be presented for the jury as to defendants negligence, once proof of the violation of a particular motor vehicle statute has been established without evidence to explain such violation. In some cases, however, an issue may be presented for the jury as to whether a violation occurred or whether an adequate explanation is to be found in the evidence. In such a case where the particular statute violated requires a conclusion of negligence the jury should be instructed as follows:
In this case, plaintiff argues that defendant was negligent because defendant violated a provision of the motor vehicle laws. The provision referred to, N.J.S.A. 39:4-89, is as follows:
The driver of a vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of the preceding vehicle and the traffic upon, and condition of, the highway.