Civil Model Jury Charge 5.40D-1 Design Defect-Generally

5.40D-1 Design Defect Generally (Approved 4/99; Revised 5/10) Note to Judge A design defect may be established by different methods. One method is the Consumer Expectations Test. Another method is applying the Reasonable Safer Design standard or the Risk-Utility Analysis.[1] The Consumer Expectations Test[2] typically applies where the product like a bicycle whose brakes do not hold because of an improper design is self-evident(ly)...not reasonably suitable and safe and fails to perform, contrary to the users reasonable expectation that it would safely do the jobs for which it was built. Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 170-171 (1979). The design of a product is obviously defective when there are no relevant considerations which make the danger inherent in the product, or reasonably necessary to its functioning. In this respect, such defects are akin to manufacturing defect cases in which the defect is proven by circumstantial evidence.For such a product the usual Risk-Utility Analysis is unnecessary. The only material question is whether the product has been so designed that it poses a danger that is contrary to the users reasonable expectations. See N.J.S.A. 2A:58C-2, note 3 below. A product falling within the Consumer Expectations Test category was a food slicing machine which was not equipped with an interlocked safety device to stop the blade from running after the guard was removed to wipe clean the blade. Mettinger, supra, note 1.[3] The existence of a defect can be proven by circumstantial evidence. Myrlak v. Port Authority of New York and New Jersey et al., 157 N.J. 84 (1999) [adopting Indeterminate Product Test of section 3 of the Restatement (Third) of Torts: Products Liability]. Another method of proving the existence of a design defect is the Risk- Utility Analysis. There the defect is established by proof that the products risks or dangers outweigh its usefulness and therefore, a reasonably careful manufacturer or seller would not have sold the product at all in the form in which it was sold. This involves a balancing or weighing of a number of factors known as risk/utility factors. Cepeda v. Cumberland Engineering Co., 76 N.J.152 (1978); OBrien v. Muskin Corp., supra[4]; Brown v. U.S. Stove, 98 N.J. 155, 173 (1984); Michalko v. Cooke Color & Chemical Co., 91 N.J. 386 (1982); N.J.S.A. 2A:58C-2[5]. In many or perhaps most cases the core issue is whether or not a Reasonable Safer Design would have reduced the risk or dangers of the product to the greatest extent possible consistent with the products continued utility, i.e., without impairing its usefulness and without making it too expensive for it to be reasonably marketable. In such cases, only the charge on reasonable safer design need be given. There, the plaintiff has only to show the existence of a safe and reasonably feasible alternative to the defendants product and that, in light of the omitted safer alternative, the product was not reasonably safe as manufactured or sold. Lewis v. American Cyanamid Co., supra; Smith v. Keller Ladder Co., 275 N.J. Super. 280 (App. Div. 1994).[6] TheRestatement (Third) of Torts: Products Liability is fundamentally consistent with New Jerseys products liability case law and statute regarding product defect.[7] There are three affirmative statutory defenses to certain design defect claims.[8] They are: 1) there was not a practical and technically feasible alternative design, 2) the harm was caused by an unsafe aspect of the product that is an inherent characteristic[9] of the product[10], and 3) the harm was caused by an unavoidably unsafe aspect of the product and the product was accompanied by an adequate warning or instruction. [1] The Committee has weighed the phrases alternative safer design, reasonable alternative design and reasonable safer design. We have concluded that they are identical substantively but that the phrase reasonable safer design most clearly conveys the plaintiffs burden that the designers choice was unreasonable because it omitted an alternative that was practical, feasible, and safer overall. Lewis v. American Cyanamid, 155 N.J. 544, 571 (1998). The principle is expressed in the Restatement (Third) of Torts: Products Liability, (b), Reporters Note, Cmt f: 2. The proposition that, in order to determine that a design is not reasonably safe, the alternative must contribute to greater overall safety needs no citation; it is axiomatic. If the alternative design proffered by the plaintiff does not make the product safer, let alone if it makes it more dangerous, such an alternative is not reasonable. In such a case, the fact that the alternative design would have avoided injury in a specific case is of no moment. [2] This theory is usually not charged. It should be charged only in cases where the Risk-Utility Analysis is not appropriate. See, for example Suter v. San Angelo Foundry & Machine Co., supra; Feldman v. Lederle Laboratories, 97 N.J. 429 (1984); Mettinger v. W.W. Lowensten, Inc., 292 N.J. Super. 293 (App. Div. 1996), modified o.b., 153 N.J. 371 (1998); and OBrien v. Muskin, 94 N.J. 169 (1983). [3] Consumer expectations also may be a defense, under N.J.S.A. 2A:58C-3(a)(2). For example, if a reasonable consumer expects a knife blade to be sharp, its sharpness, although dangerous, is not a defect. The defense does not apply to equipment used in the workplace or to dangers that can be feasibly eliminated without impairing the usefulness of the product. [4]OBrien has been limited by statute, N.J.S.A. 2A:58C‑3b. An alternative safer design need not be shown if the court, on the basis of clear and convincing evidence, makes all of the following determinations: (1) The product is egregiously unsafe or ultra-hazardous; (2) The ordinary user or consumer of the product cannot reasonably be expected to have knowledge of the products risks, or the product poses a risk of serious injury to persons other than the user or consumer; and (3) The product has little or no usefulness. [5] N.J.S.A. 2A:58C‑2. A manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it: a. deviated from the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae, or b. failed to contain adequate warnings or instructions, or c. was designed in a defective manner. [6] Citing Restatement (Third) of Torts at 2(b) (Tent. Draft No. 1 1994): Under this provision, to establish a prima facie case of defect, plaintiff must prove the availability of a technologically feasible and practical alternative design that would have reduced or prevented plaintiffs harm. Id., comment d. This principle has now been adopted in the final version of the American Law Institutes Third Restatement of the Law Torts: Products Liability, adopted, May 22, 1997, which provides, in section 2(b): Section 2. Categories of Product Defect A product ... (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the (cont.) adoption of a Reasonable Alternative Design ... and the omission of the alternative design renders the product not reasonably safe. The Reporters, in Comment d. Design defects: general considerations, remark: Assessment of a product design in most instances requires a comparison between an alternative design and the product design that caused the injury, undertaken from the point of view of a reasonable person. [7] Congiusti v. Ingersoll-Rand, 306 N.J. Super. 126, 138-139 (App. Div. 1997) [(I)n this case, as in most other design defect cases that are not controlled by the absolute defenses to design defect claims in the Products Liability Act, N.J.S.A. 2A:58C‑3a, the issue centers upon whether, in the words of the Restatement (Third) of Torts: Products Liability at 2(b) (1997 Proposed Final Draft), there was a Reasonable Alternative Design ... and the omission of the alternative design renders the product not reasonably safe.]; Grzanka v. Pfeifer, 301 N.J. Super. 563 (App. Div. 1997) [Plaintiff must show not only alternative design, but reasonably foreseeable risk such that the the omission of the alternative design renders the product not reasonably safe...]; but see Saez v. S&S Corrugated Paper Machinery Co., 302 N.J. Super. 545 (App. Div. 1997) [Third Restatement strongly criticizes New Jersey law on product line successors liability.] See also, William A. Dreier, Design Defects Under the Proposed Section 2(b) of the Restatement (Third) of Torts: Products Liability - a Judges View, 30 U. of Michigan Journal of Law Reform 221 (1997); William A. Dreier, The Restatement (Third) of Torts:Products Liability and New Jersey LawNot Quite Perfect Together, 50 Rutgers Law Review 2059 (1998), reprinted in Dreier, et al., New Jersey Products Liability and Toxic Torts Law (Gann 1999). [8] N.J.S.A. 2A:58C‑3. Defenses a. In any product liability action against a manufacturer or seller for harm allegedly caused by a product that was designed in a defective manner, the manufacturer or seller shall not be liable if: (1) At the time the product left the control of the manufacturer, there was not a practical and technically feasible alternative design that would have prevented the harm without substantially impairing the reasonably anticipated or intended function of the product; or (2) The characteristics of the product are known to the ordinary consumer or user, and the harm was caused by an unsafe aspect of the product that is an inherent characteristic of the product and that would be recognized by the ordinary person who uses or consumes the product with the ordinary knowledge common to the class of persons for whom the product is intended, except that this paragraph shall not apply to industrial machinery or other equipment used in the workplace and it is not intended to apply to dangers posed by products such as machinery or equipment that can feasibly be eliminated without impairing the usefulness of the product; or (3) The harm was caused by an unavoidably unsafe aspect of the product and the product was accompanied by an adequate warning or instruction as defined in section 4 of this act. b. The provisions of paragraph (1) of subsection a. of this section shall not apply if the court, on the basis of clear and convincing evidence, makes all of the following determinations: (1) The product is egregiously unsafe or ultra-hazardous; (2) The ordinary user or consumer of the product cannot reasonably be expected to have knowledge of the products risks, or the product poses a risk of serious injury to persons other than the user or consumer; and (3) The product has little or no usefulness. c. No provision of subsection a. of this section is intended to establish any rule, or alter any existing rule, with respect to the burden of proof. [9] Roberts v. Rich Foods, 139 N.J. 365, 380, 382 (1995) explains that: an inherent danger arises from an aspect of the product that is indispensable to its intended use...a feature of a product that is desirable but not necessary is not an inherent characteristic: an inherent characteristic is an essential characteristic. The elimination of an essential characteristic might not render the product totally useless, but it would measurably reduce the products appropriateness for its central function. We make one final observation about jury evaluation of the second exception to the 3(a)(2) defense: juries will inevitably weigh the extent to which the elimination of the inherent danger would impair usefulness against the extent to which the change would improve a hazardous condition. See also Mercer Mutual Ins. Co. v. Proudman, et al., 396 N.J. Super. 309, certif. denied, 194 N.J. 270 (2007). [10] Since most product liability cases involve equipment used in the workplace, this defense is usually inapplicable. N.J.S.A. 2A:58C-3(a)(2). Source: http://www.judiciary.state.nj.us/civil/civindx.html

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Civil Model Jury Charge 1.19 BURDEN OF PROOF - CLEAR AND CON

1.19 BURDEN OF PROOF - CLEAR AND CONVINCING EVIDENCE With regard to (state here the factual issue(s) to be proved) it is the obligation of (state here the party or parties upon whom the burden of proof rests) to prove those allegations by clear and convincing evidence. Clear and convincing evidence is evidence that produces in your minds a firm belief or conviction that the allegations sought to be proved by the evidence are true. It is evidence so clear, direct, weighty in terms of quality, and convincing as to cause you to come to a clear conviction of the truth of the precise facts in issue. The clear and convincing standard of proof requires that the result shall not be reached by a mere balancing of doubts or probabilities, but rather by clear evidence which causes you to be convinced that the allegations sought to be proved are true. Note: Clear and convincing establishes a standard of proof falling somewhere between the traditional standards of preponderance of the evidence and beyond a reasonable doubt. It is an exception to the rule requiring proof by a preponderance of the evidence in civil cases and proof beyond a reasonable doubt in criminal cases. Although the committee does not recommend it, it nonetheless recognizes that some judges may feel more comfortable in defining the usual civil standard, preponderance of the evidence, as well as the criminal standard, beyond a reasonable doubt, as an aid to the jury in understanding what clear and convincing evidence means. If such an election is made, the judge should consult the standard civil charge for preponderance of the evidence and criminal charge 1.104 for proof beyond a reasonable doubt. Accordingly, depending on the specific circumstances, this standard is mandated by both case law and statute. The following is a non-exclusive list of the instances where the clear and convincing standard is the applicable burden of proof; please note that most of the following citations involve matters ruled upon by a judge without a jury. They have been listed solely for any research benefit they might provide. -- to prove a claim under Statute of Frauds, Statute of Wills, or the parole evidence rule. Herman and MacLean v. Huddleston, 459 U.S. 375, 74 L.Ed.2d 548, 549, 103 S.Ct. 683 (1983). -- the adverse parties are at a gross disadvantage in disputing an allegation. State v. Sugar, 100 N.J. 214 (1985). -- when the threatened loss resulting from civil proceedings is comparable to the consequences of a criminal proceeding. In re Polk License Revocation, 90 N.J. 550, 563 (1982). -- before a decision is made to withdraw a life sustaining treatment from an incompetent nursing home patient. Matter of Conroy, 98 N.J. 321, 382 (1985). -- in a civil commitment proceeding. Addington v. Texas, 441 U.S. 418, 60 L.Ed.2d 323, 99 S.Ct. 1804 (1079). -- whenever the interests of the natural parents in the care, custody and management of their child are threatened. Santosky v. Kramer, 455 U.S. 754, 71 L.Ed.2d 599, 102 S.Ct. 1388 (1982). -- where the circumstances or issues are so unusual or difficult that proof by a lower standard will not serve to generate confidence in the ultimate factual determination. In re Polk License Revocation, supra at 568. -- cases involving defamation or where the defendant has a qualified immunity or privilege. Burke v. Deiner, 97 N.J. 465, 481 (1984). -- discipline or disbarment proceedings against an attorney, In re Pennica, 36 N.J. 401 (1962); In re Racmiel, 90 N.J. 646, 661 (1982). -- proving fraud. Minter v. Bendix Aviation Corp., 26 N.J. Super. 268, 274 (App. Div. 1953). When the allegation of fraud is presented as an affirmative defense and is actually a claim of non-entitlement to alleged contractural benefits or is tantamount to a claim of breach of contract on the part of a plain-tiff, the standard of proof is the usual greater weight of the evidence standard. See Italian Fisherman v. Commercial Un. Assur., 215 N.J. Super. 278 (App. Div. 1987) (defendant insurance companys affirmative defense of arson on the part of the insured, as well as the incidental torts of fraud and false swearing involved in the presentation of the claim for fire damage, must be proved by the preponderance of the evidence and not by clear and convincing proof). However, see also Batka v. Liberty Mutual, 704 F.2d 684 (3 Cir. 1983) which held that where insurance company asserts fraud in the inducement to the contract the allegation must be proved by clear and convincing proof. -- proving a public nuisance. Township of Cherry Hill, N.J. v. N.J. Racing Commission, 131 N.J. Super. 125 (Law Div. 1974), affd o.b., 131 N.J. Super. 482 (App. Div. 1974). -- challenging special assessments. McNally v. Township of Teaneck, 132 N.J. Super. 441 (Law Div. 1975), mod. 75 N.J. 33 (1977). -- amending an election petition. Lepre v. Caputo, 131 N.J. Super. 118 (App. Div. 1974). -- showing that sterilization is in the best interests of an incompetent person and that the person to be sterilized lacks the capacity to consent or withhold consent. In re Grady, 85 N.J. 235 (1981). -- establishing that officers of a corporation seeking a casino license or an applicant for a casino key employee license possess good character, honesty and integrity. In re Boardwalk Casino License Application, 180 N.J. Super. 324 (App. Div. 1981), mod. on oth. grds. 90 N.J. 361 (1982), app. dism. 459 U.S. 1081, 74 L.Ed.2d 927, 103 S.Ct. 562 (1982); In re Tufi Application, 182 N.J. Super. 631, 638 (App. Div. 1981), certif. den 91 N.J. 189 (1982). -- demonstrating that persons connected with an applicant for a license for the collection, transportation, treatment, storage and disposal of solid wastes, who have been previously convicted of a serious crime, have since been rehabilitated. N.J.S.A. 13:1E-133. -- overcoming the presumption that the facts related in a sheriffs return of service are true. Garley v. Waddington, 177 N.J. Super. 173 (App. Div. 1981). -- demonstrating that government action constitutes a taking of property. Matter of Egg Harbor Associates (Bayshore Centre), 94 N.J. 358, 374, showing that a rent control ordinance has a widespread confiscatory effect upon efficient landlords. Helmsley v. Borough of Fort Lee, 78 N.J. 200 (1978), app. dism. 440 U.S. 978, 60 L.Ed.2d 237, 99 S.Ct. 1178 (1979); Orange Taxpayers Council, Inc. v. City of Orange, 169 N.J. Super. 288 (App. Div. 1979), affd. 83 N.J. 246 (1980). -- showing that an attorneys extrajudicial speech truly jeopardized the fairness of an ongoing trial. In re Hinds, 90 N.J. 604, 626 (1982). -- justifying the debarment of a contractor from doing any further business with the State. N.J.A.C. 17:12-7.3(a)5; Keys Martin & Co. v. Director, Div. of Purchase, 99 N.J. 244, 263 (1985). -- establishing that a contract should be reformed. St. Pius X House of Retreats v. Camden, 88 N.J. 571, 580-581 (1982). -- overcoming the presumption that the value of a partners interest in a professional partnership is accurately reflected by the value ascribed to it in a buy-sell agreement. Stern v. Stern, 66 N.J. 340, 346-347 (1975). -- showing that there was inadequate consideration for a mortgage. Continental Bank of Pa. v. Barclay Riding Acad., 93 N.J. 153, 170 (1983), cert. den. 464 U.S. 994 (1983); Federal Beneficial Assn. v. Eastern Land Co., 96 N.J. Eq. 628, 631 (E. & A. 1924). -- overcoming the presumption that the last of two or more marriages is valid. Newburgh v. Arrigo, 88 N.J. 529, 538 (1982). -- showing a waiver of the newspersons privilege. N.J.S.A. 2A:84A-21.3B (Rule 27). -- overcoming the presumption of validity attaching to a certification received by a municipality for its plan for providing for its fair share of low and moderate income housing from the State Council on Affordable Housing. N.J.S.A. 52:27D-317. -- a trial judge should not set aside a jury verdict as against the weight of the evidence unless it clearly and convincingly appears that allowing the verdict to stand would work a manifest denial of justice under the law. R. 3:20-1; R. 4:49-1(a). The same standard applies to an appellate court which is asked to overturn a trial courts denial of a motion for a new trial on the ground that the verdict was against the weight of the evidence. State v. Carter, 91 N.J. 86, 96 (1982). See State v. Sims, 65 N.J. 359, 373-374 (1974); R. 2:10-1. CAUTION: MOST OF THE FOREGOING CASES ARE NON-JURY CASES; THESE CASES ARE BROUGHT TO YOUR ATTENTION AS EXAMPLES OF THE APPLICATION OF THE CLEAR AND CONVINCING STANDARD. SEE ALSO: -- Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162; In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 399 (App. Div. 1981), modified on other grounds, 90 N.J. 361 (1982); Lepre v. Caputo, 131 N.J. Super. 118, 124 (L. Div. 1974); New Jersey Rules of Evidence, Comments 5 and 7 to Rule 1(4), at 35 and 46 (1986 ed.). Model Civil Jury Charges

Civil Model Jury Charge 5.40C Failure to Warn/Instruct

5.40C Failure to Warn/Instruct[1]

(Approved 3/00; Revised 10/01)

Let me now discuss the law governing the plaintiffs claim of failure to warn.

If a product fails to contain an adequate warning or instructions, it is defective. [Plaintiff] says the [Product] did not contain an adequate warning or instruction because [insert short factual description of plaintiffs contention why the warning was inadequate]. [Defendant] says the [Product]did contain an adequate warning or instruction because [insert short factual description].

The [Defendant] as the manufacturer or seller of a product had a duty to provide adequate warnings or instructions about the dangers the[Product] may present. [Defendant] had this duty even if the [Product] were perfectly designed and manufactured. To decide the plaintiffs failure to warn claim you must determine what warnings and instructions the defendant provided and whether those warnings and instructions were adequate.

Lets talk about what a warning or instruction is. Warnings or instructions may consist of statements that a product should not be used at all under certain circumstances, that it should be used only in a particular way, or that it should be used with particular care. Warnings or instructions may be in the form of words, symbols or pictures. They must be in a form which will effectively convey the information essential to make the use of the product reasonably safe.

To be adequate, the warning or instruction must be the kind of warning or instruction which a reasonably prudent manufacturer or seller in the same or similar circumstances would have provided to people intended to use the product. Adequate information may be required to be given to others in the chain of distribution of the product such as from the manufacturer and the seller to the buyer, or from the manufacturer and the seller directly to the user.[2] An adequate warning or instruction will communicate sufficient information on the dangers of the product and how to use the product safely. When deciding whether the information provided is adequate, you should take into account the characteristics of the people reasonably expected to use the product and ordinary common knowledge.[3]

In deciding whether the warning or instruction given in this case was adequate, you must assume the [Name of Defendant Manufacturer/Seller]knew of the dangers of the [Product] at the time [Product] was sold/distributed. With that assumption you must then decide whether the[Defendant] acted in a reasonable, prudent manner in marketing the [Product] without any warnings/with the particular form of warning that was provided.

[Charge when applicable:]

In this case [Defendant] contends that [describe danger] was not knowable at the time the [Product] was manufactured/sold. If [Defendant]proves that the danger in question was not knowable by it at the time of manufacture or sale, then it had no duty to warn of the danger and cannot be held liable for failure to do so.[4] In evaluating this defense of [Defendant], you may consider evidence relating to [Defendants] knowledge of the danger of the [Product]. A duty to warn arises if [Defendant] (the manufacturer/seller) actually knew or should have known of the need to issue a particular warning.

In determining what [Defendant] should have known, you must understand that the law requires a manufacturer/seller to keep reasonably familiar with and to know reliable information generally available or reasonably obtainable in the industry. In that regard, [Defendant] is deemed to be an expert in its field.[5] This information may come from experts and literature in the field. Moreover, information from other sources such as complaints from users, sellers or distributors of an untoward effect of a product may be sufficient to require an appropriate warning.

[Charge when applicable:]

A manufacturer or seller such as [Defendant] may also have responsibility to warn purchasers and consumers of dangers discovered after the product was sold/distributed. This duty arises when subsequently obtained knowledge, both actual or constructive, was available either at the time of distribution or in sufficient time before the accident/injury so that an effective and reasonable supplemental warning could have been given. In this regard it is the defendant who must prove that the information about the danger was not reasonably available or obtainable either at the time of distribution or in sufficient time before the accident/injury.[6]

To establish a claim of failure to warn, [Plaintiff] must prove all of the following elements by a preponderance (greater weight) of the credible evidence:

l. That the [Product] failed to contain an adequate warning/instruction.

2. That the failure to adequately warn/instruct existed before the [Product] left the control of the [Defendant].

3. [Use only when misuse or intentional alteration is an issue and use only applicable portion.] That when the accident happened the[Product] was not being misused, or it had not been substantially altered in a way that was not reasonably foreseeable.

[Plaintiff] must prove that at the time of the accident the [Product] was being used properly for its intended purposes or for an intended or reasonably foreseeable purpose. To prove this, plaintiff must show that the product was not being misused in a way that was neither intended nor was reasonably foreseeable. In this case, the [Defendant] contends that at the time of the accident the [Product] was being misused. [Set forth a brief factual description of this dispute.]

[Plaintiff] must also show that when he/she used the [Product], it had not been substantially altered since it left [Defendants] control. A substantial alteration is a change or modification made to the product after it was manufactured or sold which both alters the design or function of the product and has a significant or meaningful effect on the products safety when used.[7] In this case the defendant contends that the [Product]was substantially altered. [Set forth a brief factual description of this dispute.]

In considering this issue, you must determine whether there has been a subsequent misuse/abnormal use or substantial alteration to the [Product].If you find that to exist, you must determine whether the misuse/abnormal use or substantial alteration was reasonably foreseeable at the time the product left the control of the [Defendant].

Reasonably foreseeable does not mean that the particular misuse/abnormal use or substantial alteration was actually foreseen or could have been actually foreseen by [Defendant] at the time the [Product] left his/her control.

This is a test of objective foreseeability. You must consider the general experience within the industry when the [Product] was manufactured, sold or distributed. Then decide whether a reasonably careful manufacturer, seller or distributor could have anticipated the misuse/abnormal use or substantial alteration of the [Product].[8] If the alteration reasonably could have been anticipated, and if the alteration made the product not reasonably safe, the defendant is still responsible. [Plaintiff] has the burden to show that a typical manufacturer or seller of the product could foresee that the product would be altered or that despite the alteration the original defect was nonetheless a cause of the injury.[9]

4. That the [Plaintiff] was a direct or reasonably foreseeable user, or a person who might reasonably be expected to come in contact with the[Product].[10]

5. That the [Plaintiff] would have followed an adequate warning/instruction if it had been provided.[11]

[When defendant offers no evidence or insufficient evidence to rebut the heeding presumption, a directed verdict on this issue should be granted.]

[When defendant offers evidence sufficient to rebut the heeding presumption, charge as follows:][12]

In this case, [plaintiffs name] claims that the [products name] was defective because there was no adequate warning/instruction. If you find that the [products name] was defective because adequate warning/instruction was not given, then you must decide whether the lack of an adequate warning/instruction was a proximate cause of the accident.

The [defendants name] has introduced evidence seeking to show that [plaintiffs name] would not have read and followed an adequate warning/instruction even if one had been provided by the defendant.

You have to decide whether plaintiff would have read and heeded a warning/instruction had one been given or that he would not have read and heeded a warning/instruction had one been given.

Plaintiff has the burden to prove by a preponderance of the credible evidence that he/she would have followed an adequate warning/instruction if it had been provided.

6. That the failure to adequately warn/instruct was a proximate cause of the accident/injury.[13]

Proximate cause means that the failure to warn/instruct was a substantial factor which singly, or in combination with another cause or causes, brought about the accident. [Plaintiff] need not prove that this accident could have been anticipated so long as it was foreseeable that some harm could result from the failure to warn/instruct. If an adequate warning/instruction would have reduced the risk of the occurrence of this accident, you may find that its absence was a contributing factor to the happening of this accident. If, on the other hand, the failure to warn/instruct does not add to the risk of the occurrence of this accident and therefore is not a contributing factor to the happening of the accident, then plaintiff has failed to establish that the failure to warn/instruct was a proximate cause of the accident.

[Instruction on intervening cause, where applicable:]

In this case the [Defendant] contends that [set forth defendants contention] was an intervening cause.

An intervening cause is the act of an independent agency which destroys the causal connection between the defect in the product and the accident. To be an intervening cause the independent act must be the immediate and sole cause of the accident. In that event, liability will not be established because the failure to warn/instruct is not a proximate cause of the injury. However, the defendant would not be relieved from liability for its failure to warn/instruct by the intervention of acts of third persons, if those acts were reasonably foreseeable. Where the intervention of third parties is reasonably foreseeable, then there is a substantial causal connection between the product defect and the accident.[14] You must determine whether the [alleged intervening cause] was an intervening cause that destroyed the causal connection between the failure to warn and the accident. If it did, then the failure to warn/instruct was not a proximate cause of the accident.

If [Plaintiff] has proven each element by a preponderance of the credible evidence, then you must find for [Plaintiff].

If, on the other hand, [Plaintiff] has failed to prove any of the elements, then you must find for the defendant.

[When there is a jury question dealing with defendants affirmative defense or contributory/comparative negligence, the next three questions are applicable.]

7. Was the plaintiff negligent?[15]

[Defendant] contends that [Plaintiff] was at fault for the happening of the accident. [Briefly describe contention.]

To win on this defense, [Defendant] must prove that [Plaintiff] voluntarily and reasonably proceeded to encounter a known danger and that[Plaintiffs] action was a proximate cause of the accident. The failure of [Plaintiff] to discover inadequate warnings or instructions or to guard against the possibility of inadequate warnings or instructions is not a defense. Rather, to win on this defense, [Defendant] must prove that[Plaintiff] had actual knowledge of the particular danger presented by the [Product] and that [Plaintiff] knowingly and voluntarily encountered the risk.

8. Was plaintiffs negligence a proximate cause of the injury?

[See Chapter 6 which deals with Proximate Cause.]

9. Comparative Fault; Apportionment of Fault; Ultimate Outcome.

If plaintiff and defendant both are found to be at fault which is a proximate cause of the accident/injury, the jury must compare their fault in terms of percentages. [See Model Civil Charge 7.31.]

CONSTRUCTIVE POSSESSION OF DRUGS IN A CRIMINAL CASE REQUIRES THE STATE TO PROVE INTENT TO EXERCISE PHYSICAL CONTROL

CONSTRUCTIVE POSSESSION OF DRUGS IN A CRIMINAL CASE REQUIRES THE STATE TO PROVE INTENT TO EXERCISE PHYSICAL CONTROL

        In State v. Reeds  197 NJ 280 (2009)  the NJ Supreme Court stated:

“Plainly, such possession can be constructive, meaning that "`although [a defendant] lacks physical or manual control, the circumstances permit a reasonable inference that [the defendant] has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time.'" State v. Lewis, 185 N.J. 363, 371 (2005) (quoting State v. Spivey, 179 N.J. 229, 236-37 (2004) (internal citation and quotation marks omitted)). 

              Mere presence in a car or house is not sufficient for constructive possession.

              "For this offense the state must prove three material elements.  First, it must be proved that the item is a controlled dangerous substance. Second, it must be proved that defendant either obtained or possessed the substance.  Third it must be proved that defendant acted knowingly or intentionally."  33 N.J. Practice §521 p.475.

              The state must prove that the defendant acted knowingly or intentionally.  The state must prove that defendant knew the nature and character of the item, and it must prove that defendant's purpose in possessing the substance.  33 N.J. Practice §520 p.471 (1982).

              Possession is the intentional control of an item accompanied by an awareness of its character.  Constructive possession is when the defendant is aware of the substance and has an intention to exercise control over the substance.  State v. Brown, 67 N.J. Super. 450, 455, 171 A. 2d 15, 18 (App. Div. 1961).

              Joint possession is when people knowingly share control over the article.  State v. Raja, 132 N.J. Super. 530, 536, 334 A. 2d 364, 367 (App. Div. 1975).

              It is an offense to knowingly or intentionally obtain or possess a controlled dangerous substance.  N.J.S.A. 24:21-20a.  "The state must prove knowledge or intent on the part of the defendant.  Knowledge means that the defendant was aware of the existence of the object and was aware of its character.  Intent means it was the defendant's purpose to obtain or possess the item while being aware of its character.  State v.   McMenamin, 133 N.J. Super. 521, 524, 337 A. 2d 630, 631 (App. Div. 1975); State v. Brown, 67 N.J. Super. 450, 455, 171 A. 2d 15, 18 (App. Div. 1961).

              Mere presence in a premises with other persons where controlled dangerous substances are found is not sufficient to justify an inference that a particular defendant was in sole or joint possession of the substance.  State v. Sapp, 71 N.J. 476, 477, 366 A. 2d 334, 335 (1976), overruled on other grounds by State v. Brown, 80 N.J. 587, 404 A. 2d 1111 (1979).

              The state must prove that the defendant was aware of the character of the substance to prove that the defendant acted with knowledge.  State v. Reed, 34 N.J. 554, 557, 170 A. 2d 419, 421 (1961); State v. Rajnai, 132 N.J. Super. 530, 536, 334 A. 2d 364, 367 (App. Div. 1975).

         " Mere presence at or near the scene does not make one a participant in the crime, nor does the failure of a spectator to interfere make him/her a participant in the crime.  It is, however, a circumstance to be considered with the other evidence in determining whether he/she was present as an accomplice.  Presence is not in itself conclusive evidence of that fact.  Whether presence has any probative value depends upon the total circumstances.  To constitute guilt there must exist a community of purpose and actual participation in the crime committed." 

         "Mere association, acquaintance, or family relationship with an alleged conspirator is not enough to establish a defendant’s guilt.  Nor is mere awareness of the conspiracy.  Nor would it be sufficient for the State to prove only that the defendant met with others, or that they discussed names and interests in common.  However, any of these factors, if present, may be taken into consideration along with all other relevant evidence in your deliberations."

         See also U.S. v. Idowu 157 F. 3d 265 (3rd Cir. 1998) - holding that joint / constructive / actual possession and knowledge that something illegal was going on is insufficient. Prosecution must prove that you had specific knowledge that the bag contained heroin and not something else illegal!

NJAJ LAW OFFICE MARKETING: ONLINE AND OFFLINE NJAJ Winter Seminar 2018 Thursday, March 1, 2018

NJAJ LAW OFFICE MARKETING: ONLINE AND OFFLINE  NJAJ Winter Seminar 2018 

Thursday, March 1, 2018

The Palace at Somerset Park, Somerset, NJ

SEMINAR AGENDA

11:00 am - 12:00 pm
Lunch & Registration • Exhibit Hall

12:00 pm - 12:30 pm

Marketing Without the Internet

Kenneth A. Vercammen, Esq. • Edison, NJ

12:30 pm - 1:15 pm

Engaging Your Law Firm in Your Community

Andrew J. D'Arcy, Esq. • Egg Harbor Township, NJ

Satish V. Poondi, Esq. • Woodbridge, NJ

1:15 pm - 2:15 pm

Internet Marketing

Carl E. Jaeckel, Esq. • Warren, NJ

2:15 pm - 2:30 pm

Coffee Break • Exhibit Hall

2:30 pm - 3:30 pm

Ethics of Internet Marketing: What is Appropriate on Your Website

Carol Johnston, Esq. • State of NJ, Administrative Office of the Courts • Trenton, NJ

Jeffrey M. Pollock, Esq. • Princeton, NJ

3:30 pm - 4:15 pm

Networking and Building Your Referral Base

Moderator -
Diane L. Cardoso, Esq. • Jersey City, NJ
Panel -
Saul G. Gruber, Esq. • Mt. Laurel, NJ

Jeralyn L. Lawrence, Esq. • Bridgewater, NJ

Scott G. Leonard, Esq. • Morristown, NJ

Kimberly A. Yonta, Esq. • New Brunswick, NJ

4:15 pm - 5:00 pm

Law Office Marketing Panel Discussion

Diane L. Cardoso, Esq. • Jersey City, NJ

Christopher M. Placitella, Esq. • Red Bank, NJ

Kathleen M. Reilly, Esq. • Kearny, NJ

Jonas K. Seigel, Esq. • Ridgewood, NJ

5:00 pm - 6:30 pm

Cocktail Reception • Exhibit Hall

6:30 pm - 9:00 pm

NJAJ Awards Dinner

REGISTER FOR LAW OFFICE MARKETING: ONLINE AND OFFLINE

https://www.nj-justice.org/index.cfm?pg=events&evAction=showDetail&eid=50919

MCLE Credits

New Jersey - (Earn 5.70 Credits/1.20 Ethics - pending)

New York - (Earn 5.70 Credits - pending)

Pennsylvania - (Earn 4.50 Credits - pending)

This program has been approved by the Board on Continuing Legal Education of the
Supreme Court of New Jersey for 5.70 hours of total CLE credit.

NJAJ MEETINGS & EVENTS 

 

Winter Seminar 2018

Details

Winter Seminar 2018

Thursday, March 1, 2018

The Palace at Somerset Park - Somerset, NJ

11:30 am - 12:00 pm - Lunch & Registration

12:00 pm - 5:00 pm - Seminar
  5:00 pm - 6:30 pm - Cocktail Reception

Location

The Palace at Somerset Park

333 Davidson Avenue

Program Co-Chairs:

Christopher M. Placitella, Esq.

Cohen, Placitella & Roth, P.C.

Red Bank, NJ

Kathleen M. Reilly, Esq.

Brady, Brady & Reilly, LLC

Kearny, NJ

Jonas K. Seigel, Esq.

Seigel Law, LLC

Ridgewood, NJ

New NJ assembly Speaker Craig Coughlin w Ken Vercammen at Middlesex bar goes local. Two great Irishmen

New NJ assembly Speaker Craig Coughlin w Ken Vercammen at Middlesex bar goes local. Two great Irishmen