Criminal Law Committee ABA Mid Year January 2018 report Solo Division

Criminal Law Committee ABA Mid Year January 2018 report Solo Division

COUNCIL AGENDA REPORT FORM

Division Name and Number:  Practice Specialty Division: 3

Division Director Name:  Daniel Tann

Reporting Board or Committee: Criminal Law Committee

Completed By: Kenneth Vercammen Chair, Edison, NJ  

1.   1. What has your board or committee done since its last report (e.g., conference call, meetings, use of discussion lists, planning for CLE programs, publications and articles, collaboration with other boards, committees, or sections)?

Since October:

-Followed up manuscript for new ABA book Handling DUI and Drug Possession Defense for Attorneys [over 250 pages]

--Sent another Request for Brown Bag webinar

-Continue to Publicize ABA “Criminal Law Forms” Book to help generate revenue for Division

-Participated in leadership events at St. Paul Meeting

-Added info to GP Solo Linkedin

- Publicized program: Make That Traffic Ticket Trash Your Firm’s Goldmine, on Thursday, April 26, 2018 from 11:00 AM to 12:00 PM with speakers Sarah Kieny and Pat Monks, at the Sheraton New Orleans Hotel Moderator Kenneth Vercammen, Esq.

- Invited members to submit articles to GP Solo EReport

- Offered forms for free to members from NJ Bar Annual seminar

For NJ Bar, working on materials for Drug, DWI and Serious Cases seminar which eventually will be 2^nd edition of “Criminal Law Forms”

--Also helped publicize ABA book ABA’s “Smart Marketing for Smart Firm Lawyers” a book from the American Bar Association. My staff implemented many of the ideas to improve our law office. 

Smart Marketing and the Small Firm Lawyer                                                                              

List Price: $59.95                                                                                                                          

-       Offered to do program if there is a Solo day in Chicago 2018

2.   What is the status of your board or committee’s business plan for the year (e.g., participation of board or committee members, goals achieved, and new goals)?

-Continue to help promote ABA books to raise revenue for section

-Offer to GP Solo members free portions of articles/ forms from NJ Bar Annual Drug DWI seminar

- Waiting for revisions by Pub Board or co-editor to book “DUI and Drug possession defense”

3.   Does your board or committee need any assistance from the Director, Staff, Division Officers, or Council? If yes, please explain:

If yes, please explain:

- Help set up programs and brown bag webinar

  Help promote the ABAS’ CRIMINAL LAW FORMS book

Book from the American Bar Association

Solo & Small Firm Division Author: Kenneth Vercammen

  Criminal Law Forms helps lawyers face the challenges of:

•     Criminal defense

•     DWI cases

•     Juvenile offenses

•     Domestic violence

•     Traffic violations

•     Auto Accidents

•     and much more

-Also help publicize ABA book ABA’s “Smart Marketing for Smart Firm Lawyers” a book from the American Bar Association. My staff implemented many of the ideas to improve our law office. 

Smart Marketing and the Small Firm Lawyer                                                                              

List Price: $59.95                                                                                                                          

Sponsor(s): Solo, Small Firm and General Practice Division Publisher(s): ABA Book Publishing    

ACTION ITEMS

List any action items to be presented to Council. These are items that require discussion, reporting, and/or decision-making on the part of the Council (e.g. a request for support of matters appearing before the House of Delegates, revisions of Division policies, and requests for use of extraordinary Division resources).    None for Mid-Year

INFORMATIONAL ITEMS

List any informational items to be represented to Council. These items are matters for the Council’s information and do not require action.

Staff and Law Clerk Dinner 1/2/18

Our Staff and Law Clerks have a night out for dinner together at Elixir!

From left to right, starting from the back, Cyrus Namazi, Leo Goldman, Kevin Merigala, Sadia Subah, Jerome Galloway, Brianna Pennington, Nour Elasmar, Peter Amponsah, Jolene Steele Esq., Kenneth Vercammen Esq,, Michael McDonald the Office Manager and Tonianne McDonald

Civil Model Jury Charge 5.40B Manufacturing Defect

5.40B Manufacturing Defect (Approved 10/1998; Revised 8/2011)

Let me give you some applicable concepts which deal with the claim of manufacturing defect, and then I will explain what the plaintiff must prove in order to win in a manufacturing defect case.

A manufacturing defect may be established by proof that, as a result of a defect or flaw which happened during production or while in defendants control, the product was unsafe and that unsafe aspect of the product was a substantial factor in causing plaintiffs accident/injury/harm.[1]

To establish his/her claim for a manufacturing defect, the plaintiff must prove all of the following elements by a preponderance (greater weight) of the credible evidence:

1. The [product] contained a manufacturing defect which made the product not reasonably safe. To determine if the [product] had a manufacturing defect, you must decide what the condition of the [product] as planned should have been according to defendants design specifications or performance standards and what its condition was as it was made. If you find there is no difference between the two conditions, then there was no manufacturing defect. If there was a difference, you must decide if that difference made the [product] not reasonably safe for its intended or reasonably foreseeable uses. If the answer is yes, then you have found the [product] to be defective. Plaintiff need not prove that defendant knew of the defect nor that defendant caused the defect to occur.

Whether there was a manufacturing defect in the [product] may be shown to you by the [plaintiff] in one of three ways.[2] First of all, it may be demonstrated by direct evidence, such as a defective part. Second, you may infer that there was a defect by reasoning from the circumstances and facts shown. Third, if you find from the evidence that there is no other cause for the accident other than a manufacturing defect, you may find a defect existed.[3]

[Plaintiff] says that the [product] was defective because [insert short factual description of plaintiffs contention why the product was defective]. [Defendantsays that the [product] was not defective because [insert factual description].

This element may be established by proof that the [product] deviated from the makers own design specifications or performance standards.

2. That the defect 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 and 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.[4] 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 such to exist, you must determine whether such misuse/abnormal use or substantial alteration was reasonably foreseeable at the time the product left the control of the defendant(s).

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 may consider the general experience within the industry as to what was known or could have been known with exercise of reasonable diligence 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]. 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.[5]

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].[6]

5. That the manufacturing defect was a proximate cause of the accident/injury.

Proximate cause means that the manufacturing defect was a substantial factor which singly, or in combination with another cause or causes brought about the accident. [Plaintiff] need not prove that this same accident could have been anticipated so long as it was foreseeable that some significant harm could result from the manufacturing defect. If the manufacturing defect does not add to the risk of the occurrence of this accident [or if there was an independent intervening cause of the accident] and therefore is not a contributing factor to the happening of the accident, then plaintiff has failed to establish that the manufacturing defect was a proximate cause of the accident.

An intervening cause is the act of an independent agency which destroys the causal connection between the effect of 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 manufacturing defect is not a proximate cause of the injury. However, the defendant would not be relieved from liability for its defective product 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.[7] You must determine whether the [alleged intervening cause] was an intervening cause that destroyed the causal connection between the defective product and the accident. If it did, then the manufacturing defect 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.]

6. Was the plaintiff negligent.[8]

[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 unreasonably proceeded to encounter a known danger and that [plaintiffs] action was a proximate cause of the accident. The failure of [plaintiff] to discover a defect in the product or to guard against the possibility of a defective product 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.

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

[See Chapter 6 which deals with Proximate Cause.]

8. 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.]

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[1] The Products Liability Act defines harm as physical damage to property, other than to the product itself and certain personal injuries. N.J.S.A. 2A:58C-1(b)(2). Where the claim is for damage to the product itself, the economic loss rule bars tort remedies in strict liability or negligence. See Dean v. Barrett Homes, 204 N.J. 286, 305 (2010) (economic loss rule bars plaintiffs from recovery under the PLA for damage that the Exterior Insulation and Finish System (EIFS) caused to itself, but not to damage caused by the EIFS to the houses structure or its immediate environs).

[2] Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 170 (l979).

[3] Compare Scanlon v. Gen. Motors Corp., 65 N.J. 582 (l974), with Moraca v. Ford Motor Co., 66 N.J. 454 (1975). This section of the charge should be expanded by relating those principles to the facts of your case. See also Consalo v. General Motors, 258 N.J. Super. 60 (App. Div. 1992) and Sabloff v. Yamaha Motor Co., 113 N.J. Super 279 (App. Div. l970), affd, 59 N.J. 365 (1971).

In Myrlak v. Port Authority of New York, et al., 157 N.J. 84 (1999), the Supreme Court held that a res ipsa loquitur charge ordinarily should not be given in a strict product liability action such as a manufacturing defect case. The Court found that the present charge language adequately informed the jury that it could rely on circumstantial evidence to infer that there was a defect by reasoning from circumstances and the facts shown. Id. at 107. The Court went on to adopt the indeterminate product defect test established in Section 3 of the Restatement (Third) of Torts: Product Liability as the more appropriate jury instructions in product liability cases which do not involve a shifting of the burden of persuasion. It provides:

It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:

(a) was of a kind that ordinarily occurs as a result of a product defect; and

(b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.

[4] See Soler v. Casemaster, Div. of the H.P.M. Corp., 98 N.J. 137 (l984); Brown v. United States Stove Co., 98 N.J. 155 (l984). Note that an issue of alteration arises only if the particular facts indicate a substantial change relating to the safety of the product. Soler, 98 N.J. at 148. Note further that the issue of misuse/abnormal use or substantial alteration, if present in a case, presents considerations bearing upon proximate cause. Id. at 149 Brown, supra, 98 N.J. at 171-174. See also Fabian v. Minster Mach. Co., Inc., 258 N.J. Super. 261 (App. Div. 1992).

[5] Brown, supra, 98 N.J. at 169.

[6]This may be omitted if not in dispute.

[7] Navarro v. George Koch & Sons, Inc., 211 N.J. Super. 588, 573 (App. Div. l986), and Butler v. PPG Industries, Inc., 201 N.J. Super. 558, 564 (App. Div. l985), may be understood as discussions of a burden of production rather than persuasion. So construed they clearly conform to Brown v. U.S. Stove, 98 N.J.155 (l984) and prior law. See Fabian v. Minster Mach. Co., Inc., 258 N.J. Super 261 (at 277 footnote 5) and Johansen v. Mikita USA Inc., 128 N.J. 86 (1992).

[8] This defense is not applicable to workplace injuries where the plaintiff, a worker, has performed a task reasonably assumed to be part of the assigned duties.Ramos v. Silent Hoist and Crane Co., 256 N.J. Super. 467 (App. Div. l992) at 478, Suter, supra, 81 N.J. at 167-168; Tirrell v. Navistar, Intl., 248 N.J. Super. at 401-402. In other than a workplace setting, in a product liability case, plaintiffs comparative fault is limited to unreasonably and intentionally proceeding in the face of a known danger. Cepeda v. Cumberland Engineering Company, Inc., supra, 76 N.J. at 186. Johansen v. Makita USA, Inc., 128 N.J. 86 (l992).

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

Civil Model Jury Charge 5.34 Photo Evidence in Accidents

5.34 PHOTOGRAPHIC EVIDENCE IN MOTOR VEHICLE ACCIDENTS (10/09)

A number of photographs of one or more of the vehicles involved in the accident have been introduced into evidence. These photographs show the damage or depict the condition of the vehicles after the impact. As judges of the facts, you may attribute such weight to the photographs as you deem appropriate taking into consideration all of the other evidence in this case.

In some accidents resulting in extensive vehicle damage, the occupants may suffer minor injuries or no injuries at all. In other accidents where there is no or little apparent vehicle damage, the occupants may suffer serious injuries. In reaching your decision in this matter, you are to give the photographs whatever weight you deem appropriate. They are but one factor to be considered, along with all other evidence, in determining whether the plaintiff sustained injuries as a result of the accident.

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

Civil Model Jury Charge 5.40A Products Liability Intro

5.40A PRODUCTS LIABILITY Introduction: Caveats to Judges (3/10)

Note to Judge

Caveats

I. Since the passage of the Products Liability Act, N.J.S.A. 2A:58C-1 through 7, effective July 22, l987, there is one cause of action for recovery for harm caused by a product. That theory is, for the most part, identical to strict liability as defined by Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150 (l979).The Act explicitly excludes from coverage an environmental tort action as well as actions for harm caused by a breach of an express warranty. See Sinclair v. Merck & Co., 195 N.J. 51 (2008) and Stevenson v. Keene, 131 N.J. 393 (l993). Some negligence actions involving products probably survive the Act. SeeCartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548 (l980), where the manufacturer and the installer of a fire extinguisher system were sued after a fire damaged the property. See Tirrell v. Navistar Intl., Inc., 248 N.J. Super. 390 (App. Div. l991).

II. Adapting this general charge to the specific facts and contentions is critically important in any product liability case. As the Supreme Court advised in Suter v. San Angelo Foundry & Machine Co., supra at 176 (l979): The instruction should be tailored to the factual situation to assist the jury in performing its fact finding responsibility.

The defendant [insert name of defendant] as the manufacturer/seller of a product has the duty1 to make/sell a product that is reasonably safe. In this charge when I refer to a reasonably safe product I mean a product that is reasonably fit, suitable and safe for its intended or reasonably foreseeable uses.[2] Defendant[insert name of defendant] owes that duty to direct users of the product, to reasonably foreseeable users of the product, and to those who may reasonably be expected to come into contact with it.

The defendant [insert name of defendant] is liable only if [insert name of the plaintiff] proves that the product causing the harm was not reasonably safe for its intended purpose. In this case the plaintiff [name of plaintiff] claims that the [name of product] was not reasonably safe for its intended purpose because of[3]:

a. a manufacturing defect; or

b. a failure to adequately warn or instruct; or

c. a design defect.

[Each specific defect and the appropriate law dealing with the defect will be discussed in the following charges.]

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1 This duty may apply to a defendant independent contractor such as a manufacturer of a component part of a product, or even a rebuilder where the part or product was built according to plans and specifications of the general manufacturer. The standard applied in assessing whether a component part manufacturer can be held liable for a design defect is set forth succinctly in Boyle v. Ford Motor Co., 399 N.J. Super. 18, 24 (App. Div. 2008), certif. denied, 196 N.J. 597. The respective contractual responsibilities of defendant manufacturers and producers vis-a-vis component parts and the finished product have no bearing upon the issue of proximate cause. Michalko v. Cooke & Chem. Corp., 91 N.J. 386 (l982).

[2] N.J.S.A. 2A:58C-2 uses the phrase not reasonably fit, suitable or safe. Although this model charge condenses the phrase, and then defines safe by including fitness and suitability, individual judges may feel more comfortable using the full phrase. In addition if the phrase fit or suitable is more appropriate to the facts of the case, those words may be used instead of safe. Refer also to Freund v. Cellofilm Properties, Inc., 87 N.J. 229, 242 (l981), for warning defect cases; and, generally, Suter v. San Angelo Foundry & Machine Co., supra at 176.

[3] Charge only the specific defect which is applicable to the case.

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

Civil Model Jury Charge 5.33B Limitation on Lawsuit Option

5.33B LIMITATION ON LAWSUIT OPTION 1 (3/10) A. Introduction In order to recover damages in this case, plaintiff must prove by a preponderance of the evidence that [he] [she] sustained injuries which fit into one or more of the following categories: NOTE TO JUDGE Charge 1, 2, 3, 4, 5, 6 or any combination of them, depending on the proofs in each case. In cases with two or more defendants, some of whom have available the Limitation on Lawsuit Option defense and others who do not, charge the following: The jury should answer two specific interrogatories as to each defendant: (1) was this defendant negligent; (2) if so, did the negligence proximately cause plaintiffs injuries? If more than one defendant was negligent and their negligence proximately caused plaintiffs injuries, the jury has to find what percentage of the total negligence or fault is attributable to each defendant. Once the jury answers those questions, it should then determine whether or not plaintiff satisfied the applicable threshold which applies to a defendant. Then the jury should affix damages. Bolz v. Bolz, 400 N.J. Super. 154 (App. Div. 2008). 1 See N.J.S.A. 39:6A-8a. Though not numbered in the statute, the Limitation on Lawsuit Option within the Automobile Insurance Cost Reduction Act (AICRA) of 1998 (L.1998, c. 21 and c. 22) (AICRA), the categories are: (1) death; (2) dismemberment; (3) significant disfigurement or significant scarring; (4) displaced fractures; (5) loss of a fetus; (6) a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. The effective date of this provision of AICRA is March 22, 1999. Therefore, the Limitation on Lawsuit Option shall apply to individuals who, at the time of the accident, were insured under automobile liability insurance policies issued after March 22, 1999. By way of example, if an individual was involved in a motor vehicle collision on March 23, 1999, but was still covered under a policy issued before the effective date of the statute (March 22, 1999), he or she will be subject to the verbal threshold charge applicable to L.1988, c.119 effective January 1, 1989. CHARGE 5.33B Page 1 of 3 Death; Dismemberment; Significant disfigurement or significant scarring; Displaced fracture; Loss of a fetus; A permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. If you find the injuries caused by the accident do not come within one of these categories, your verdict must be for the defendant. If you find the injuries caused by the accident do come within one of these categories, your verdict must be for the plaintiff. B. Significant Disfigurement or Significant Scarring (Type 3) (Revised 6/07) In this case, the plaintiff alleges and has the burden to prove that [he] [she] suffered a significant disfigurement or significant scarring as a result of the motor vehicle accident. An injury shall be considered a significant disfigurement or significant scarring if a reasonable person would find that the disfigurement or scarring renders plaintiffs appearance unattractive, objectionable, or as the subject of pity or scorn, or that such condition individually or collectively substantially detracts from plaintiffs appearance or impairs or injures the beauty, symmetry, or CHARGE 5.33B Page 2 of 3 appearance of the plaintiff so as to render the bearer unsightly, misshapen or imperfect deforming [him] [her] in some manner. You shall consider as factors in making this determination the appearance, coloration, existence, size and shape of plaintiffs disfigurement or scar[s] along with the characteristics of surrounding skin and the remnants of the healing process and other cosmetically important matters. C. Permanent Injury (Type 6) In this case, the plaintiff alleges that [he] [she] suffered a permanent injury as a result of the motor vehicle accident. An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.2 Plaintiff must prove this claim through objective, credible medical evidence. Objective proof means the injury must be verified by physical examination or medical testing and cannot be based solely upon the plaintiffs subjective complaints. Credible evidence is evidence you find to be believable. 2 This definition of permanent injury is taken directly from the AICRA of 1998, N.J.S.A. 39:6A-8. In DiProspero v. Penn, 183 N.J. 477 (2005), the New Jersey Supreme Court held that the Legislature did not intend to require a plaintiff with a Type 6 injury to prove a serious or substantial impact on his or her life in order to pierce the verbal threshold. Therefore, a plaintiff need only prove a permanent injury, as defined in the statute, to recover for non-economic damages. CHARGE 5.33B Sourcehttps://www.judiciary.state.nj.us/civil/civindx.htm

Civil Model Jury Charge 5.32B DUTY OF A PEDESTRIAN WHEN CROSSING AT A POINT OTHER THAN A CROSSWALK

5.32B Duty of a Pedestrian when Crossing at a Point other than a Crosswalk

(Approved before 1983; Revised 4/02)

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

A pedestrian crossing at a point other than a crosswalk is charged with the duty to exercise for his/her own safety reasonable care commensurate with the risk of such crossing.

In determining whether such care was used you should consider the location involved, the existing state of the traffic, the observations made by the pedestrian before and during the crossing, the presence of obstructions to view (such as buildings, passing or parked cars, rain, fog and darkness) and from these and all other facts and circumstances present, determine whether the pedestrian in this case exercised the care required.

In addition to considering the general duty I have just described, you are required to consider the following statutory provisions that are part of our NewJersey Motor Vehicle Act. They are referred to in N.J.S.A. 39:4-34 and 39:4-36. N.J.S.A. 39:4-34 provides, in part, that:

Where traffic is not controlled and directed either by a police officer or a traffic control signal, pedestrians shall cross the roadway within a crosswalk or, in the absence of a crosswalk, and where not otherwise prohibited, at right angles to the roadway. It shall be unlawful for a pedestrian to cross any highway having roadways separated by a medial barrier, except where provision is made for pedestrian crossing.

In addition, N.J.S.A. 39:4-36 provides, in part, that:

[e]very pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.

[Continue with Model Charge 5.30D on Violation of Traffic Act. Adapt to Comparative Negligence.]

Cases:

These notes were part of the Model Civil Charges before the passage of the Comparative Negligence Act. N.J.S.A. 2A:15-5.1 et seq. Keep in mind that the phrase contributory negligence usually should be read comparative negligence.

Kopec v. Kakowski, 34 N.J. 243, 246 (1961):

We cannot say as a matter of law that plaintiff was guilty of contributory negligence. In resolving the question of plaintiffs contributory negligence as a matter of law we must consider the factual setting as revealed by the testimony, including (1) his familiarity with the highway; (2) the observation made by him before venturing across the south bound lane and during his crossing thereof; (3) the distance, at the time of entrance upon the highway, between that point and defendants car; (4) that fact that defendant was operating the rearmost of two cars traveling in tandem in the lane immediately adjacent to the medial strip; (5) the speed at which the cars were estimated to be traveling in a 45 mile per hour zone; (6) the distance of the highway traversed by plaintiff before the impact; (7) the sudden veering of defendant to the right across the second lane into the third lane, with the added acceleration of speed necessary to pass the lead car on the right. Fair-minded men of ordinary prudence might well differ under the proofs adduced as to whether plaintiff acted as an ordinarily prudent man would act. It follows that the issue of contributory negligence was not one of law for determination by the court but rather one of fact for determination by the jury.

Schaublin v. Leber, 50 N.J. Super. 506, 512 (App. Div. 1958):

Failure of a pedestrian to cross within a crosswalk is not conclusive evidence of contributory negligence even when struck by a moving vehicle. Whether the plaintiff here made reasonable observation, the lighting conditions, whether it was reasonable for her to pursue the path she did, whether her attention was upon her dog instead of upon her path, and all other matters which enter into the complex of contributory negligence, were matters for the jury to decide.

Van Rensselaer v. Viorst, 136 N.J.L. 628 (E. & A. 1948); Fox v. Great Atlantic & Pacific Tea Co., 84 N.J.L. 726 (E. & A. 1913); Volpe v. Perruzzi, 122 N.J.L. 57 (Sup. Ct. 1939); Dugan v. Public Service Transportation Co., 5 N.J. Misc. 245 (Sup. Ct. 1927) (pedestrian justified in presuming that the driver, after having seen him, would so handle his car as to avoid running him down); Schreiner v. Grinnell, 89 N.J.L. 37 (Sup. Ct. 1916).

Civil Model Jury Charge 5.32A DUTY OF PEDESTRIANS AND BICYCLISTS TO MAKE OBSERVATIONS

BICYCLISTS TO MAKE OBSERVATIONS

5.32A Duty of Pedestrians and Bicyclists to Make Observations (Approved 2/92) http://www.judiciary.state.nj.us/civil/civindx.html Both motorists and pedestrians (or bicyclists[1]) have mutual and reciprocal rights to the use of streets and highways and each has the right to expect that the others will exercise their rights with reasonable care and subject to the rights of others. Thus a pedestrian (or bicyclist) is under a duty to exercise for his/her own safety the care that a reasonably prudent person would exercise under all the circumstances confronting him/her.Although his/her observation need not extend beyond a distance within which vehicles moving at lawful speed will threaten him/her, a pedestrian (or bicyclist) is required to use such powers of observation, and to exercise such judgment as to how and when to cross a street or highway, as a reasonably prudent person would use in the particular circumstances. NOTE TO JUDGE The Motor Vehicle Act, N.J.S.A. 39:4-32 through 39:4-37.1, establishes statutory rights, duties and obligations of pedestrians and motorists and where applicable should be applied to the facts of a given situation. Cases: As to right of pedestrian to cross street at a point not a crosswalk, see Fox v. Great Atlantic and Pacific Tea Co., 84 N.J.L. 726 (E. & A. 1913);Gentile v. Public Service, 12 N.J. Super. 45 (App. Div. 1941); N.J.S.A. 39:4-34; as to right of way at crosswalk, see N.J.S.A. 39:4-35 and N.J.S.A. 39:4-36.

Civil Model Jury Charge 5.31B DUTY OF CARE BY EMERGENCY VEHICLE

5.31B Duty of Care by Emergency Vehicle

(Approved 1977)

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

On the other hand, drivers of emergency vehicles must also exercise reasonable care under the circumstances in the operation of an emergency vehicle. The degree of care required of the driver of such vehicle is that he/she must exercise reasonable care to prevent injury or damage to himself/herself or others in light of the emergency circumstances.

The statute in question, N.J.S.A. 39:4-91, which I have previously referred to, further states that:

This section shall not relieve the driver of any authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall it protect the driver from the consequences of his/her reckless disregard for the safety of others.

In considering the standard of care required under this statute of the driver of an emergency vehicle, keep in mind that by necessity, the driver of an emergency vehicle, responding to an emergency situation, may be required to take risks which would constitute negligent conduct if performed by a motorist under ordinary conditions. The driver may be required to go through a red light or stop sign or other traffic control device; proceed at a speed above the fixed limits, or drive on the wrong side of the road. As such, the driver of an emergency vehicle, on an emergency call, cannot be expected to exercise the same care that the law requires of the ordinary motorist, who has no emergency duty to perform.

Accordingly, the driver of an emergency vehicle, taking such risks, is bound to take reasonable precaution to protect others from the extraordinary dangers of the situation that proper performance of his/her duties compels him/her to create. Furthermore, the statute I have read to you requires that the driver of an emergency vehicle must not drive with reckless disregard for the safety of others. That is, he/she must anticipate the dangers his/her operation of the vehicle involves and exercise reasonable care for the safety of others under the circumstances.

Violation of the standard of care as set forth by the statute is evidence to be considered by you in determining whether the emergency vehicle drivers conduct was negligent.

NOTE TO JUDGE

N.J.S.A. 39:4-81; N.J.S.A. 39:4-91; and N.J.S.A. 39:4-105; Rekiec v. Zuzio, 132 N.J. Super. 71 (App. Div. 1975); Varlaro v. Schultz, 82 N.J. Super. 142 (App. Div. 1964); Finderne Engine Co. v. Moran Trucking Co., 98 N.J. Super. 421 (App. Div. 1968); April v. Collings Lake Ambulance Assn., 109 N.J. Super. 392 (App. Div. 1970).

Civil Model Jury Charge 5.31A DUTY OF CARE AT INTERSECTION APPROACHED BY EMERGENCY VEHICLE (To Be Used If Emergency Vehicle Is Involved)

5.31A Duty of Care At Intersection Approached by Emergency Vehicle (To Be Used If Emergency Vehicle Is Involved) (Approved 1977)

While proceeding through an intersection, the driver favored with the right to proceed may not ignore the possibility of encountering a vehicle on an emergency mission going through a red light or proceeding against a traffic control device.

N.J.S.A. 39:4-91 sets forth the standard of conduct required of a driver who encounters an emergency vehicle on an emergency call. This portion of our motor vehicle laws provides:

The driver of a vehicle upon a highway shall yield the right of way to any authorized emergency vehicle when it is operated on official business, or in the exercise of the drivers profession or calling, in response to an emergency call or in the pursuit of an actual or suspected violator of the law and when an audible signal by bell, siren, exhaust whistle or other means is sounded from the authorized emergency vehicle and when the authorized emergency vehicle, except a police vehicle, is equipped with at least one lighted lamp displaying a red light visible under normal atmospheric conditions from a distance of at least five hundred feet to the front of the vehicle.

If the driver of a motor vehicle operates his/her vehicle unmindful to such potential hazard of encountering an emergency vehicle and without yielding the right of way to the emergency vehicle, such conduct is for your consideration in determining whether that drivers conduct was negligent under the circumstances.