Model Jury charge 2.15 GOOD FAITH AND FAIR DEALING NJ

Model Jury charge 2.15 GOOD FAITH AND FAIR DEALING NJ1

The plaintiff in this case contends that he/she had an employment contract with the defendant and that the defendant breached what is known as the implied covenant of good faith and fair dealing.

In addition to the express terms of a contract, the law provides that every contract contains an implied covenant of good faith and fair dealing. This means that, even though not specifically stated in the contract, it is implied or understood that each party to the contract must act in good faith and deal fairly with the other party in performing or enforcing the terms of the contract.2

To act in good faith and deal fairly, a party must act in a way that is honest and faithful to the agreed purposes of the contract and consistent with the

1The model civil charge for the Covenant of Good Faith and Fair Dealing in bilateral contracts outside the employment context is located at 4.10J. It is somewhat unusual in the employment context to encounter a breach of implied covenant of good faith and fair dealing because, as discussedinfra, the claim requires proof that a contract existed between the parties. However, exceptions do of course exist and even an at-will employee may have a viable breach of implied covenant claim if he or she can prove the existence of some form of contract with the employer. Examples include a commission agreement or a contract arising out of an employee handbook.See, e.g.,Wade v. Kessler Institute, 172N.J.327, 345 (2002). The judge should carefully consider whether there is a genuine issue of fact regarding the existence of a contract between the parties before charging the jury on such a claim.

2Wade v. Kessler Institute,supra,at 345;Palisades Properties, Inc. v. Brunetti, 44N.J.117 (1965) (quoting 5Williston on Contracts, Sec. 670, pp. 159-160 (3d ed. 1961)).See also Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Center Assoc., 182N.J.at 210 (2005);Wilson v. Amerada Hess Corp., 168N.J. at 236 (2001).CHARGE 2.15 Page 2 of 6

reasonable expectations of the parties.3A party must not act in bad faith, dishonestly, or with improper motive to destroy or injure the right of the other party to receive the benefits of the contract.4

3The implied covenant of good faith and fair dealing generally arises in three contexts. The covenant applies where terms and conditions not expressly included in the contract are included because the parties must have intended these terms as necessary to give business efficacy to the contract.N.J. Bank v. Pallidino, 77N.J.33, 46 (1978). The covenant is also a form of redress of bad faith performance of an agreement although the defendant has not breached the express terms of any agreement.Sons of Thunder, Inc. v. Borden, Inc.,148N.J.at 396 (1997). The covenant permits inquiry into a partys exercise of discretion expressly granted by a contracts terms.Wilson v. Amerada Hess Corp.,supra, at 270;see also Seidenberg v. Summit Bank, 348N.J. Super.243 (App. Div. 2002).

4Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Center Assoc.,supra, at 230-231;Wilson v. Amerada Hess Corp.,supra, at 251 (citations omitted);Sons of Thunder, Inc. v. Borden, Inc.,supra,at 420.See also Wade v. Kessler Institute, supra, at 327;Palisades Properties, Inc. v. Brunetti, supra.

5The implied covenant of good faith and fair dealing generally arises in three contexts. The covenant applies where terms and conditions not expressly included in the contract are included because the parties must have intended these terms as necessary to give business efficacy to the contract.N.J. Bank v. Pallidino,supra, at 46. The covenant is also a form of redress of bad faith performance of an agreement although the defendant has not breached the express terms of any agreement.Sons of Thunder, Inc. v. Borden, Inc., supra. The covenant permits inquiry into a partys exercise of discretion expressly granted by a contracts terms.Wilson v. Amerada Hess Corp.,supra, at 270;see also Seidenberg v. Summit Bank,supra.

Thus, if there is a contract between an employee and employer, and the [employee] [employer] acts in bad faith or with improper motive to destroy or injure the right of the [employee] [employer] to receive the benefits or reasonable expectations of the contract, the [employee] [employer] has breached the implied covenant of good faith and fair dealing.5CHARGE 2.15 Page 3 of 6

6For example, the contract could involve the employers obligation to pay commissions, fringe benefits, bonuses, or other compensation. It could also be a contract to employ the individual for a certain period or a contract arising out of an employee handbook.

7If the parties agree that a contract existed, the jury should be so instructed.

The plaintiff in this case claims that the defendant breached the implied covenant of good faith and fair dealing by [give brief statement of plaintiffs claim of breach]. To prevail on this claim, the plaintiff must prove each of the following three elements by a preponderance of the evidence:

First, the plaintiff must prove that some type of contract existed between the parties.6There can be no breach of the covenant of good faith and fair dealing unless the parties have a contract.

Second, the plaintiff must prove that the defendant acted in bad faith with the purpose of depriving the plaintiff of rights or benefits under the contract.

Third, the plaintiff must prove that the defendants conduct caused the plaintiff to suffer injury, damage, loss or harm. I will now discuss each of these elements separately.

Was there a contract between the parties?

You must first determine whether some type of contract existed between the plaintiff and the defendant.7CHARGE 2.15 Page 4 of 6

1.Express or Implied Contract

[Instruct the jury on the legal principles that apply to the particular contract. See Model Civil Jury Charge 4.10E.]

2.Implied Contract(e.g., arising from Employee Handbook)

[If the plaintiff alleges that an implied contract was created based on language in an employee manual that the employee reasonably understood created binding duties and obligations between employer and employee, Model Civil Jury Charge 2.12 (personnel manual creating contract) should be charged.]

If you find that an employment contract existed between the parties, you must then determine whether the defendant violated the implied covenant of good faith and fair dealing.

Did the defendant act in bad faith with the intent to deprive the plaintiff of rights or benefits under the contract?

As to this element, you must decide whether the defendant acted with bad faith to interfere with the plaintiffs right to receive the benefits of the employment contract. Proof of bad motive or intention is essential to a claim that the defendant has violated the covenant of good faith and fair dealing.

In considering what constitutes bad faith, you should consider a number of factors, including the expectations of the parties and the purposes for which the contract was made. You should also consider the level of sophistication betweenCHARGE 2.15 Page 5 of 6

8Wilson v. Amerada Hess Corp., supra, at 251.

9Silvestri v. Optus Software, Inc.,175N.J. 113 (2003).

the parties, whether the parties had equal or unequal bargaining power, and whether the defendants action involved the exercise of discretion.

Keep in mind, however, that bad faith is not established by simply showing that the defendants motive for his/her actions did not consider the best interests of the plaintiff. Contract law does not require parties to behave thoughtfully, charitably or unselfishly toward each other.8

In order for the plaintiff to prevail on his/her claim, you must specifically find that bad faith motivated the defendants actions. A defendant who acts in good faith on an honest, but mistaken, belief that his/her actions were justified has not breached the covenant of good faith and fair dealing.9

Whether the defendants conduct caused the plaintiff to suffer injury, damage, loss or harm

The plaintiff must also prove that because of the defendants actions, the plaintiff was unable to realize the benefits of the contract [describe the specific losses alleged by the plaintiff].

In summary, if you find that the plaintiff has proven by a preponderance of the evidence: (1) the existence of some type of employment contract; (2) that the defendant, although acting consistent with the contracts terms, acted in bad faithCHARGE 2.15 Page 6 of 6

with the intent to deprive the plaintiff of his/her reasonable expectations under the contract; and (3) the plaintiff sustained injury or loss as a result of such action, then you must find for the plaintiff.

If you find that the plaintiff has failed to prove any of these elements by the preponderance of the evidence, you must find for the defendant.

Model Jury charge 2.14 EXCEPTIONS TO THE EMPLOYEMENT-AT-WILL

Model Jury charge 2.14 EXCEPTIONS TO THE EMPLOYEMENT-AT-WILL DOCTRINE: UNWRITTEN PERSONNEL POLICY REGARDING TERMINATION OF EMPLOYMENT NJ

NOTE TO JUDGE

To be provided in conjunction with, or following, general instructions regarding wrongful termination of employment where plaintiff alleges that the employer breached an unwritten personnel policy.1

The plaintiff alleges that his/her employer maintained an unwritten personnel policy or practice regarding termination of employment. The plaintiff contends that this unwritten personnel policy or practice created a binding agreement that the defendant breached. Specifically, the plaintiff alleges that plaintiffs employment was terminated because the employer failed to follow an unwritten personnel policy or practice to the effect that [here describe the policy] and he/she sustained damages. The employer disputes these allegations.

To resolve this dispute, you must first determine whether the unwritten personnel policy or practice created a binding agreement between the plaintiff and the defendant. If you determine that the unwritten personnel policy or practice did

1This instruction is not applicable to cases in which a plaintiff has alleged that the employer breached a special oral agreement that the employer made with that particular plaintiff. In such instances,see Shebar v. Sanyo Business Systems Corp., 111N.J.276 (1988).CHARGE 2.14Page 2 of 4

not create a binding agreement between these parties, there has been no violation, and plaintiff is not entitled to damages.

A binding agreement is created by an unwritten personnel policy/practice when:

(1) the unwritten policy/practice contained an express or implied promise concerning the terms and conditions of employment;and

(2) the unwritten personnel policy/practice was pervasive and company-wide;and

(3) pronouncements regarding this unwritten personnel policy/practice were an accurate representation of the policy or practice and the employer had authorized the pronouncements to be made;and

(4) the unwritten personnel policy/practice created an environment in which employees reasonably expected the policy/practice would be enforced uniformly and fairly.

All four of these elements must be present for a binding agreement to be created. However, even if you find by a preponderance of the evidence that all four of these elements exist, there is no binding agreement if the employer has disseminated among the employees a clear disclaimer. The disclaimer must convey to the employee that the unwritten personnel policy/practice regarding terminationCHARGE 2.14Page 3 of 4

2Seenote 3 to Model Civil Charge 2.12, Personnel Manual Creating A Contract, for elements of an effective disclaimer.

3InWoolley v. Hoffman-LaRoche, 99N.J.284,modified, 101N.J.10 (1985), the Supreme Court appears to suggest a defendant could present some other proof of the employers intent not to be bound by a personnel policy other than an effective disclaimer. However, there are no New Jersey cases that rely on (or even consider) any effective legally acceptable proof of an employers intent other than a disclaimer, and, after the Supreme Courts decision inNicosia v. Wakefern Food Corp., 136N.J.401 (1994), it is unlikely that any proof, other than a written disclaimer, would be acceptable.

of employment does not constitute a binding agreement. If you find that there was an effective disclaimer, then the unwritten personnel policy/practice did not create a contract between the parties and plaintiff is not entitled to damages.

To be effective, a disclaimers language must make clear that employment is terminable at will and the employer retains the absolute power to fire anyone at anytime with or without cause. Although no specific language is required, the disclaimer must convey this2message in straightforward terms and without confusing language.

The defendant contends that the following constitutes an effective disclaimer: [here recite/describe the disclaimer language advanced by the defendant].

If you find that a binding agreementhasbeen created by the unwritten personnel policy/practice and that no effective disclaimer3not to be bound wasCHARGE 2.14Page 4 of 4

disseminated, then you must decide whether the employer failed to comply with its unwritten personnel policy, and thus violated a binding agreement.

If you find that plaintiff has proven all of his/her allegations, you are to return a verdict in favor of plaintiff. If, on the other hand, you find that the plaintiff has failed to prove one or more of these allegations, you are to return a verdict in favor of the defendant.

NOTE TO JUDGE

At this point charge damages.

Cases:

Gilbert v. Durand Glass Mfg. Co., Inc., 258N.J. Super.320 (App. Div. 1992).

Model Jury charge 2.23 DISCRIMINATORY LAYOFF OR REDUCTION

Model Jury charge 2.23 DISCRIMINATORY LAYOFF OR REDUCTION IN FORCE (RIF) NJ

Plaintiff has contended that the layoff or reduction in force at [employers name] was conducted in a discriminatory manner. In order to establish an initial case that a layoff was discriminatory, a plaintiff must show that:

1. He/She is a member of a protected class; and

2. He/She was laid off while other not in the protected class were treated favorably.1

It is plaintiffs burden to prove both of these elements by a preponderance of the evidence.

1Massarsky v. General Motors Corp., 706F. 2d 111 (3d Cir.),cert. den., 464U.S.937 (1983).

Model Jury charge 2.22A LAW AGAINST DISCRIMINATION (LAD) IN

Model Jury charge2.22A LAW AGAINST DISCRIMINATION (LAD) INDIVIDUAL LIABILITY CLAIMSNJ

If you find that defendant[employer]has unlawfully discriminated [and/or retaliated] against plaintiff, you must then consider whether defendant[individual]should be held individually and personally responsible for aiding and abetting that discrimination [and/or retaliation].1To hold defendant[individual]liable, plaintiff must show that (1) defendant[individual]was generally aware of his/her role in the overall illegal, unlawful, or tortious activity at the time that he/she provided the assistance, and (2) defendant[individual]knowingly and substantially assisted defendant[employer]in discriminating [and/or retaliating] against plaintiff. You may consider the following five factors when deciding whether defendant[individual]knowingly and substantially assisted defendant[employer]s discrimination [and/or retaliation] against plaintiff: (1) the nature of the wrongful conduct encouraged; (2) the amount of assistance defendant[individual]provided to defendant[employer]; (3) whether defendant[individual]was present at the time that the discrimination [and/or retaliation] occurred; (4) defendant[individual]s relationship to anyone else involved in the discrimination [and/or

1It remains unsettled whether a non-supervisory employee may be held individually liable for aiding and abetting the discrimination of his/her employer.See Cicchetti v. Morris County Sheriffs Office, 194N.J.563 (2008);Herman v. Coastal Corp., 348N.J. Super.1 (App. Div. 2002).CHARGE 2.22A Page 2 of 2

retaliation]; and (5) defendant[individual]s state of mind. Defendant [individual]s failure to act so as to protect plaintiff or failure to respond effectively to plaintiffs complaints of discrimination is insufficient to conclude that defendant [individual] provided substantial assistance to defendant [employer] so as to hold defendant [individual] personally liable.

Cases:

Cicchetti v. Morris County Sheriffs Office,supra;Tarr v. Ciasulli, 181N.J.70 (2004);Hurley v. Atlantic City Police Dept, 174F.3d95 (3d Cir. 1999),cert. denied, 528U.S.1074, 120S.Ct.786, 145L.Ed.2d 663 (2000).

Model Jury charge 2.22 UNLAWFUL EMPLOYMENT PRACTICES UNDER

Model Jury charge2.22 UNLAWFUL EMPLOYMENT PRACTICES UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION (LAD) RETALIATION (N.J.S.A.10:5-12(d))NJ

TheLaw Against Discrimination(LAD) has a specific subsection,N.J.S.A. 10:5-12(d)1, addressing employer retaliation against employees for engaging in protected activity. It first identifies two categories of employee activity that are protected under the Law:

(1)

opposing practices or acts that are unlawful under the LAD,i.e., complaining about, or protesting against, discrimination in the workplace;2

(2)

filing a complaint or testifying or assisting in any proceeding under this act;3

In addition, this section of the LAD provides that it is unlawful for an employer to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.N.J.S.A.10:5-12(d).

The court should be aware that the jury charge to be given in a retaliation case varies depending on the type of protected activity in which the employee claims to have engaged. Those differences are explained below in the course of discussing the text of the Charge.

1N.J.S.A.10:5-12(d) provides in full as follows: [It is unlawful] [f]or any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.

2These cases are often referred to as opposition cases.

3These cases are often referred to as participation cases.CHARGE 2.22 Page 2 of 8

4This issue is not charged to the jury if the court has already decided it as a matter of law or the parties have stipulated to it.

5Seefootnote 4.

Finally, as is the case when charging the jury under Charge 2.21 (Disparate Treatment), the court should not charge theprima facieelements of the plaintiffs case, unless those elements remain at issue at the time of trial, having not already been decided as a result of motion practice either at the summary judgment stage or at the close of evidence at trial, or having not been stipulated to by the parties. For a full discussion of when and why theprima facieelements should not be charged to the jury, see the Introductory Note to the Court in Charge 2.21.

Plaintiff claims that the defendant retaliated against him/her because of [insert alleged LAD protected activity]. Defendant denies these allegations and instead maintains that it [insert alleged retaliatory action] because [insert defendants explanation, such as plaintiffs job performance was inadequate, plaintiffs job was eliminated, etc.].

To prevail on his/her claim, the plaintiff must prove all of the following elements by a preponderance of the evidence:

First:The plaintiff [insert alleged LAD protected activity];4

Second:The plaintiff was subjected to retaliation at the time, or after, the protected conduct took place.5

Third:There was a causal connection between [insert alleged retaliatory action] and [insert alleged LAD protected activity], sufficient to show thatCHARGE 2.22 Page 3 of 8

6SeeCarmona v. Resorts Intl Hotel, Inc., 189N.J.354, 373 (2007).

plaintiffs [insert alleged LAD protected activity] played a role in the decision and made an actual difference in the defendants decision to [insert alleged retaliatory action].

I will now discuss each of these three elements with you in more detail:

(1) The Protected Activity Element of Plaintiffs Case:

NOTE TO COURT

If the first element of the plaintiffs case -- whether the plaintiff engaged in protected activity -- remains at issue, the Court should charge the jury as follows, depending on whether the case is an opposition case, or a participation case.

For opposition cases, where plaintiff alleges he/she complained to his/her employer about discrimination, and that fact remains at issue in the case, charge the following:

To establish this first element of his/her case, the plaintiff need not prove the merits ofhis/her[describe the plaintiffs protected activity], but only that, in doing so, he/she was acting under a good faith and reasonable belief6that the [plaintiffs orinsert someone elses name] right to be free from discrimination on the basis of [insert the legally protected characteristic] was violated.

For participation cases, where the plaintiff alleges he/she filed a complaint, testified or assisted in any proceeding within the meaning of the LAD, and that fact remains at issue in the case, charge the following:CHARGE 2.22 Page 4 of 8

7See Nardello v. Twp. of Voorhees, 377N.J. Super.428, 433-436 (App. Div. 2005);Green v. Jersey City Bd. of Educ., 177N.J. 434, 448 (2003).

To establish this first element of his/her case, the plaintiff must prove that he/she filed a complaint or testified or assisted in a proceeding [such as a proceeding before the Division on Civil Rights or the Equal Employment Opportunity Commission], in which it was alleged that his/her employer discriminated against a person.

(2) The Retaliation (Adverse Action) Element of Plaintiffs Case:

NOTE TO COURT

If the second element of the plaintiffs case -- whether defendant took an adverse action against plaintiff -- remains at issue, the court should charge the jury as follows:

To establish the second element, the plaintiff must show that he/she was subjected to retaliation by his/her employer. The term retaliation can include, but is not limited to, being discharged, demoted, not hired, not promoted or disciplined. In addition, many separate but relatively minor instances of behavior directed against the plaintiff may combine to make up a pattern of retaliatory behavior.7CHARGE 2.22 Page 5 of 8

8See Donofry v. Autotote Systems, Inc., 350N.J. Super. 276, 295 (App. Div. 2001);see alsoCharge 2.21 for an alternate formulation to be used with the jury.

(3)

The Causal Connection Element of Plaintiffs Case:

The third and final element is whether the plaintiff can prove the existence of a causal connection between the protected activity and the alleged retaliation by his/her employer. Ultimately, in considering this third element of the plaintiffs case, you must decide whether the plaintiffs [insert alleged LAD protected activity] played a role in and made an actual difference in the defendants decision8to [insert alleged retaliation action]. It is the plaintiffs burden to prove that it is more likely than not that, the defendant retaliated against the plaintiff because of the plaintiffs [insert alleged LAD protected activity]. That is the ultimate issue you must decide: did the defendant [insert alleged retaliatory action] because of the plaintiffs [insert alleged LAD protected activity]. The plaintiff may prove this directly, by proving that a retaliatory reason more likely than not motivated the defendants action, or indirectly, by proving that the defendants stated reason for its action is not the real reason for its action.

You may find that the defendant had more than one reason or motivation for its actions. For example, you may find that the defendant was motivated both by the plaintiffs [insert alleged LAD protected activity] and by other, non-retaliatory factors, such as the plaintiffs job performance. To prevail, the plaintiff is notCHARGE 2.22 Page 6 of 8

9SeeCharge 2.21 and cases cited therein at fn. 2;see also Donofry,supra, 350N.J. Super. at 296 (Plaintiff need not prove that his whistle-blowing activity was the only factor in the decision to fire him.);Kolb v. Burns, 320N.J. Super.467, 479 (App. Div. 1999) (burden on plaintiff is to show retaliatory discrimination was more likely than not a determinative factor in the decision).

10The court may refer to specific types of indirect evidence presented during the trial, such as prior conduct and/or comments of the parties, etc.

required to prove that his/her [insert alleged LAD protected activity] was the only reason or motivation for the defendants actions. Rather, the plaintiff must only prove that his/her [insert alleged LAD protected activity] played a role in the decision and that it made an actual difference in the defendants decision.9If you find that the plaintiffs [insert alleged LAD protected activity] did make an actual difference in the defendants decision, then you must enter judgment for the plaintiff. If, however, you find that the defendant would have made the same decision regardless of the plaintiffs [insert alleged LAD protected activity], then you must enter judgment for the defendant.

Because direct proof of intentional retaliation is often not available, the plaintiff is allowed to prove retaliation by circumstantial evidence. In that regard, you are to evaluate whatever indirect evidence of retaliation that you find was presented during the trial.10

One kind of circumstantial evidence can involve the timing of events,i.e., whether the defendants action followed shortly after the defendant became awareCHARGE 2.22 Page 7 of 8

of the plaintiffs [insert alleged LAD protected activity]. While such timing may be evidence of retaliation, it may also be simply coincidental that is for you to decide.

Another kind of circumstantial evidence might involve evidence that the defendant became antagonistic or otherwise changed his/her demeanor toward the plaintiff after the defendant became aware of the plaintiffs protected activity. But again, this may be evidence of retaliation, or it may have no relationship to retaliation at all, but it is for you to decide.

In addition, you should consider whether the explanation given by the defendant for his/her action was the real reason for his/her actions. If you dont believe the reason given by the defendant is the real reason the defendant [insert alleged retaliatory action] you may, but are not required to, find that the plaintiff has proven his/her case of retaliation. You are permitted to do so because, if you find the defendant has not told the truth about why it acted, you may conclude that it is hiding the retaliation. However, while you are permitted to find retaliation based upon your disbelief of the defendants stated reasons, you are not required to do so. This is because you may conclude that the defendants stated reason is not the real reason, but that the real reason is something other than illegal retaliation.

The plaintiff at all times bears the ultimate burden of proving to you that it is more likely than not that the defendant engaged in intentional retaliation. ToCHARGE 2.22 Page 8 of 8

11The court should refer to any other general instructions where appropriate.

decide whether the plaintiff has proven intentional retaliation, you should consider all of the evidence presented by the parties, using the guidelines I gave in the beginning of my instructions regarding evaluating evidence generally, such as weighing the credibility of witnesses.11Keep in mind that in reaching your determination of whether the defendant engaged in intentional retaliation, you are instructed that the defendants actions and business practices need not be fair, wise, reasonable, moral or even right, so long as the plaintiffs [insert alleged LAD protected activity] did not play a role and make an actual difference in the defendants decision to [insert alleged retaliatory action].

I remind you that the ultimate issue you must decide is whether the defendant engaged in illegal retaliation against the plaintiff by [insert alleged retaliatory action], and that the plaintiff has the burden to prove that retaliation occurred.

Misdiagnosis

Misdiagnosis

Misdiagnosis cases are complicated matters. If your have been seriously and permanently injured as a result of negligence, consult a personal injury attorney. If an injury case is not the type we can handle, we will try to refer you to another competent trial attorney. The following legal information is used in Medical malpractice trials in New Jersey:
Duty and Negligence
Negligence is conduct which deviates from a standard of care required by law for the protection of persons from harm. Negligence may result from the performance of an act or the failure to act. The determination of whether a defendant was negligent requires a comparison of the defendants conduct against a standard of care. If the defendants conduct is found to have fallen below an accepted standard of care, then he or she was negligent.
Common Knowledge May Furnish Standard of Care
Negligence is the failure to comply with the standard of care to protect a person from harm. Negligence in a doctors medical practice, which is called malpractice, is the doctors failure to comply with the standard of care in the care and treatment of his/her patient. Usually it is necessary to establish the standard of care by expert testimony, that is, by testimony of persons who are qualified by their training, study and experience to give their opinions on subjects not generally understood by persons, such as jurors, who lack such special training or experience. In the usual case the standard of care by which to judge the defendants conduct cannot be determined by the jury without the assistance of expert medical testimony.
However, in some cases, such as the case at hand, the jury may determine from its common knowledge and experience the standard of care by which to judge the defendants conduct. In this case plaintiff contends that the defendant violated the duty of care he/she owed to the plaintiff by doing ____________________________ [ or by failing to do the following ____________________]. In this case, therefore, it is for you, as jurors, to determine, based upon common knowledge and experience, what skill and care the average physician practicing in the defendants field would have exercised in the same or similar circumstances. It is for you as jurors to say from your common knowledge and experience whether the defendant deviated from the standard of care in the circumstances of this case.
Where there has been expert medical testimony as to the standard of care, but the standard is one which can also be determined by the jury from its common knowledge and experience, the jury should determine the standard of care after considering all the evidence in the case, including the expert medical testimony, as well as its own common knowledge and experience.
After determining the standard of care required in the circumstances of this case, you should then consider the evidence to determine whether the defendant has complied with or departed from that standard of care. If you find that defendant has complied with that standard of care he/she is not liable to the plaintiff, regardless of the result. If you find that defendant has not complied with that standard of care, resulting in injury or damage to the plaintiff, then you should find defendant negligent and return a verdict for plaintiff.
Cases and Notes:
a) Common Knowledge
The common knowledge doctrine was applied in Martin v. Perth Amboy General Hospital, 104 N.J. Super. 335 (App. Div. 1969), where a laparotomy pad was left in plaintiffs body during an operation, Tramutola v. Bortone, 63 N.J. 9 (1973), where plaintiff discovered that a needle had been left in her chest during surgery; Steinke v. Bell, 32 N.J. Super. 67 (App. Div. 1954), where a dentist removed the wrong tooth; Becker v. Eisenstodt, 60 N.J. Super. 240 (App. Div. 1960), where the defendant used a caustic substance instead of an anesthetic; and Terhune v. Margaret Hague Maternity Hospital, 63 N.J. Super. 106 (App. Div. 1960), where plaintiff was burned as a result of the improper administration of an anesthetic during childbirth, Nowacki v. Community Medical Center , 279 N.J. Super. 276 (App. Div. 1995), where plaintiff alleged that she fell while attempting to lift herself onto a treatment table, Tierney v. St. Michaels, 214 N.J. Super. 27 (App. Div. 1986), certif. den. 107 N.J. 114 (1987), where plaintiffs infant crawled out of a crib while hospitalized at the defendant hospital, Winters v. Jersey City Medical Center , 120 N.J. Super. 129 (App. Div. 1972), where the court held that one does not need an expert witness to testify that the bed rails should have been in the up position for an elderly person who fell out of bed. The common knowledge doctrine was applied to a failure to communicate an abnormal finding and the signing of an incorrect discharge summary in Jenoff v. Gleason, 215 N.J. Super. 349 (App. Div. 1987). In Rosenberg by Rosenberg v. Cahill, 99 N.J. 318 (1985), the common knowledge doctrine was not applied to the failure to observe a tumor in an x-ray.
The court rejected the plaintiffs reliance on the common knowledge doctrine in Posta v. Chueng-Loy, 306 N.J. Super. 182 (App. Div. 1997), involving hernia surgery.
See also, Sanzari v. Rosenfeld, 34 N.J. 128 (1961), Jones v. Stess, 111 N.J. Super. 283 (App. Div. 1970), Klimko v. Rose, 84 N.J. 496 (1980).
b) Res ispa loquitur
There are three requirements which must be demonstrated in order to apply the doctrine of res ipsa loquitur:
(1) The occurrence must be one which ordinarily bespeaks negligence;
(2) The instrumentality causing the injury must have been within defendants exclusive control; and
(3) There must be no indication that the plaintiffs injury was in any way the result of his own voluntary act or neglect.
A detailed analysis of the doctrine of res ipsa is found in Gould v. Winokur, 98 N.J. Super. 554 (Law Div. 1968), affd., 104 N.J. Super. 329 (App. Div. 1969), certif. den . 53 N.J. 582 (1969). See also, Buckelew v. Grossbard, 87 N.J. 512 (1981).
The difference between the res ipsa doctrine and the common knowledge doctrine is that the res ipsa doctrine requires expert testimony to prove the first element of proof, i.e., that the occurrence does not usually happen in the absence of negligence. Smallwood v. Mitchell, 264 N.J. Super. 295 (App. Div. 1993), certif. den. 134 N.J. 481 (1993).
The logical extension of the res ipsa and common knowledge doctrines is the conclusion that there are cases where the facts are such that at least one defendant must be liable as a matter of law. The genesis of this concept in New Jersey is found in Anderson v. Somberg, 67 N.J. 291 (1975), cert. den. 423 U.S. 929 (1975). See also, Chin v. St. Barnabas Medical Center, 160 N.J. 454 (1999).
The doctrine of res ipsa loquitur was deemed applicable in Yerzy v. Levine, 108 N.J. Super. 222 (App. Div. 1970), affd. 57 N.J. 234 (1970), where the common bile duct had been completely severed during gall bladder surgery; Pearson v. St. Paul, 220 N.J. Super. 110 (App. Div. 1987), where plaintiffs sixteen year old daughter died after arthroscopic knee surgery.
The doctrine of res ipsa loquitur was deemed inapplicable in Toy v. Rickert, 53 N.J. Super. 27 (App. Div. 1958), where plaintiff alleged that the defendant negligently administered a shot of penicillin into plaintiffs right buttock causing nerve damage; in Renrick v. Newark, 74 N.J. Super. 200 (App. Div. 1962), where plaintiff alleged that the defendant negligently injected a drug resulting in severe burning of both forearms and widespread scarring; Posta v. Chueng-Loy, 306 N.J. Super. 182 (App. Div. 1997), involving hernia surgery.
c) Common knowledge can be employed in some cases although expert medical testimony is also offered as to the standard of care and defendants alleged departure therefrom. See Sanzari v. Rosenfeld, supra, 34 N.J. at 138 and 143.
The Trial Judge will read the following instructions to the jury prior to the jury deciding damages and negligence:
[Option A: Specialist. ] The defendant(s) in this case is (are) a medical specialist(s) in the field of [insert appropriate specialty description]. Specialists in a field of medicine represent that they will have and employ not merely the knowledge and skill of a general practitioner, but that they have and will employ the knowledge and skill normally possessed and used by the average specialist in the field. Thus, when a physician holds himself/herself out as a specialist and undertakes to diagnose and treat the medical needs of a patient, the law imposes a duty upon that physician to have and to use that degree of knowledge and skill which is normally possessed and used by the average specialist in that field, having regard to the state of scientific knowledge at the time that he/she or she attended the plaintiff.
[Option B: General Practitioner.] The defendant(s) in this case is (are) a general practitioner(s). A person who is engaged in the general practice of medicine represents that he/she or she will have and employ knowledge and skill normally possessed and used by the average physician practicing his/her profession as a general practitioner.
[Remainder of Charge:]
Given what I have just said, it is important for you to know the standard of care which a general practitioner/specialist in [insert appropriate specialty description, if applicable] is required to observe in his/her treatment of a patient under the circumstances of this case. Based upon common knowledge alone, and without technical training, jurors normally cannot know what conduct constitutes standard medical practice. Therefore, the standard of practice by which a physicians conduct is to be judged must be furnished by expert testimony, that is to say, by the testimony of persons who by knowledge, training or experience are deemed qualified to testify and to express their opinions on medical subjects.
You as jurors should not speculate or guess about the standards of care by which the defendant physician(s) should have conducted himself/herself/themselves in the diagnosis and treatment of the plaintiff. Rather, you must determine the applicable medical standard from the testimony of the expert witness(es) you have heard in this case.(1)
Where there is a conflict in the testimony of the medical experts on a subject, it is for you the jury to resolve that conflict using the same guidelines in determining credibility that I mentioned earlier. You are not required to accept arbitrarily the opinions offered. You should consider the experts qualifications, training, and experience, as well as his/her understanding of the matters to which he/she or she testified.
Where an expert has offered an opinion upon an assumption that certain facts are true, it is for you, the jury, to decide whether the facts upon which the opinion is based are true. The value and weight of an experts testimony in such instances is dependent upon, and no stronger than, the facts upon which it is predicated.
When determining the applicable standard of care, you must focus on accepted standards of practice in [insert general practice or specialty involved] and not on the personal subjective belief or practice of the defendant doctor.(2)
The law recognizes that the practice of medicine is not an exact science. Therefore, the practice of medicine according to accepted medical standards may not prevent a poor or unanticipated result.(3) Therefore, whether the defendant doctor was negligent depends not on the outcome, but on whether he/she adhered to or departed from the applicable standard of care. Ibid.
Note to Judge:
Where the defendant has satisfied the burden of proving that medical judgment is involved in the case, insert Charge 5.36G, Medical Judgment, here.
If you find that the defendant(s) has (have) complied with the accepted standard of care, then he/she is not liable to the plaintiff regardless of the result. On the other hand, if you find that the defendant(s) has (have) deviated from the standard of care resulting in injury or damage to plaintiff, then you should find defendant negligent and return a verdict for plaintiff.
The following court cases relate to medical malpractice: 1. Jacober v. St. Peters Medical Center, 128 N.J. 475 (1992).
(2)Morlino v. Medical Center of Ocean County, 295 N.J. Super. 113 (App. Div. 1996), affd. 152 N.J. 563 (1998). See also, Fernandez v. Baruch, 52 N.J. 127, 131 (1968), Carbone v. Warburton, 11 N.J. 418, 425 (1953), Schueler v. Strelinger, 43 N.J. 330, 346 (1964), Ziemba v. Riverview Medical Center, 275 N.J. Super. 293 (App. Div. 1994), Nguyen v. Tama, 298 N.J. Super. 41 (App. Div. 1997).
(3)Morlino, supra. Aiello v. Muhlenberg Regional Medical Center, 159 N.J. 618 (1999), Velazquez v. Portadin, 163 N.J. 677 (2000).

Middlesex Mall

Middlesex Mall

Kenneth Vercammen & Associates Law Office helps people injured due to the negligence of others. We provide representation throughout New Jersey. The insurance companies will not help. Don't give up! Our Law Office can provide experienced attorney representation if you are injured. Our website njpersonalinjurylawcenter.com provides information on civil cases we can be retained to represent people.
Edited by Kenneth Vercammen, Esq.
Sometimes, store customers are injured in fall downs caused by wet and slippery floors or failure by stores to clean up broken or fallen items. No one plans on being injured in an accident, whether it is a car accident, fall down or other situation. Speak with a personal injury attorney immediately to retain all your rights. The stores are responsible for the maintenance of their premises which are used by the public. It is the duty of the store to inspect and keep said premises in a safe condition and free from any and all pitfalls, obstacles or traps that would likely cause injury to persons lawfully thereon.
It is further the duty of the store to properly and adequately inspect, maintain and keep the library premises free from danger to life, limb and property of persons lawfully and rightfully using same and to warn of any such dangers or hazards thereon. You may be lawfully upon the premises as a business invitee in the exercise of due care on your part, and solely by reason of the omission, failure and default of the store, be caused to fall down If the store did not perform their duty to plaintiff to maintain the premises in a safe, suitable and proper condition, you may be entitled to make a claim. If severely injured, you can file a claim for damages, together with interest and costs of suit. Injured people can demand trial by jury.
The following information is taken from the old model jury charges dealing with fall downs by store customers:
INVITEE - DEFINED AND GENERAL DUTY OWED
An invitee is one who is permitted to enter or remain on land (or premises) for a purpose of the owner (or occupier). He/She enters by invitation, expressed or implied. The owner (or occupier) of the land (or premises) who by invitation, expressed or implied, induced persons to come upon his/her premises, is under a duty to exercise ordinary care to render the premises reasonably safe for the purposes embraced in the invitation. Thus, he/she must exercise reasonable care for the invitees safety. He/She must take such steps as are reasonable and prudent to correct or give warning of hazardous conditions or defects actually known to him/her (or his/her employees), and of hazardous conditions or defects which he/she (or his/her employees) by the exercise of reasonable care, could discover.
BUSINESS INVITEE FALL DOWNS:
The basic duty of a proprietor of premises to which the public is invited for business purposes of the proprietor is to exercise reasonable care to see that one who enters his/her premises upon that invitation has a reasonably safe place to do that which is within the scope of the invitation.
Notes:
(1) Business Invitee: The duty owed to a business invitee is no different than the duty owed to other invitees.
(2) Construction Defects, Intrinsic and Foreign Substances: The rules dealt with in this section and subsequent sections apply mainly to those cases where injury is caused by transitory conditions, such as falls due to foreign substances or defects resulting from wear and tear or other deterioration of premises which were originally constructed properly.
Where a hazardous condition is due to defective construction or construction not in accord with applicable standards it is not necessary to prove that the owner or occupier had actual knowledge of the defect or would have become aware of the defect had he/she personally made an inspection. In such cases the owner is liable for failing to provide a safe place for the use of the invitee.
Thus, in Brody v. Albert Lipson & Sons, 17 N.J. 383 (1955), the court distinguished between a risk due to the intrinsic quality of the material used (calling it an intrinsic substance case) and a risk due to a foreign substance or extra-normal condition of the premises. There the case was submitted to the jury on the theory that the terrazzo floor was peculiarly liable to become slipper when wet by water and that defendant should have taken precautions against said risk. The court appears to reject defendants contention that there be notice, direct or mputed by proof of adequate opportunity to discover the defective condition. 17 N.J. at 389.
It may be possible to reconcile this position with the requirement of constructive notice of an unsafe condition by saying that an owner of premises is chargeable with knowledge of such hazards in construction as a reasonable inspection by an appropriate expert would reveal. See: Restatement to Torts 2d, §343, Comment f, pp. 217-218 (1965), saying that a proprietor is required to have superior knowledge of the dangers incident to facilities furnished to invitees.
Alternatively, one can view these cases as within the category of defective or hazardous conditions created by defendant or by an independent contractor for which defendant would be liable (see introductory note above).
Cases:
Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1954) (slip and fall on sticky, slimy substance in self-service cafeteria which inferably fell to the floor as an incident of defendants mode of operation).
Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955) (trip over curbstone improperly illuminated).
Brody v. Albert Lifson & Sons, 17 N.J. 383, 389 (1955) (slip and fall on wet composition floor in store).
Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954) (slip on smooth stairway in railroad station).
Williams v. Morristown Memorial Hospital, 59 N.J. Super. 384, 389 (App. Div. 1960) (fall over low wire fence separating grass plot from sidewalk).
Nary v. Dover Parking Authority, 58 N.J. super. 222, 226-227 (App. Div.
1959) (fall over bumper block in parking lot).
Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day).
Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J. Super. 300 (App. Div. 1958) (inadequate lighting of parking lot of supermarket, fall over unknown object).
Barnard v. Trenton-New Brunswick Theatre Co., 32 N.J. Super. 551, 557 (App. Div. 1954) (fall over ladder placed in theatre lobby by workmen of independent contractor).
Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant).
DUTY TO INSPECT OWED TO INVITEE The duty of an owner (or occupier) of land (or premises) to make the place reasonably safe for the proper use of an invitee requires the owner or occupier to make reasonable inspection of the land (or premises) to discover hazardous conditions.
Cases:
Handelman v. Cox, 39 N.J. 95, 111 (1963) (salesman showing merchandise to employees of defendant fell down cellar stairway partially obscured by carton)
NOTICE OF PARTICULAR DANGER AS CONDITION OF LIABILITY If the jury members find that the land (or premises) was not in a reasonably safe condition, then, in order to recover, plaintiff must show either that the owner (or occupier) knew of the unsafe condition for a period of time prior to plaintiffs injury sufficient to permit him/her in the exercise of reasonable care to have corrected it, or that the condition had existed for a sufficient length of time prior to plaintiffs injury that in the exercise of reasonable care the owner (or occupier) should have discovered its existence and corrected it.
Cases:
Tua v. Modern Homes, Inc., 64 N.J. Super. 211 (App. Div. 1960), affirmed, 33 N.J. 476 (1960) (slip and fall on small area of slipper waxlike substance in store); Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day); Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant).
Notes:
(1) The above charge is applicable to those cases where the defendant is not at fault for the creation of the hazard of where the hazard is not to be reasonably anticipated as an incident of defendants mode of operation. See: Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966) (dictum).
(2) An employees knowledge of the danger is imputed to his/her employer, the owner of premises. Handelman v. Cox, 39 N.J. 95, 104 (1963).
NOTICE NOT REQUIRED WHEN CONDITION IS CAUSED BY DEFENDANT
If the jury members find that the land (or premises) was not in a reasonably safe condition and that the owner (or occupier) or his/her agent, servant or employee created that condition through his/her own act or omission, then, in order for plaintiff to recover, it is not necessary for the jury members also to find that the owner (or occupier) had actual or constructive notice of the particular unsafe condition.
Cases:
Smith v. First National Stores, 94 N.J. Super. 462 (App. Div. 1967)(slip and fall on greasy stairway caused by sawdust tracked onto the steps by defendants employees); Plaga v. Foltis, 88 N.J. Super. 209 (App. Div. 1965) (slip and fall on fat in restaurant area traversed by bus boy); Torda v. Grand Union Co., 59 N.J. Super. 41 (App. Div. 1959) (slip and fall in self-service market on wet floor near vegetable bin). Also see: Thompson v. Giant Tiger Corp., 118 N.J.L. 10 (E. & A. 1937); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1956); Lewin v. Orbachs, Inc., 14 N.J. Super. 193 (App. Div. 1951); Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966).
BURDEN OF GOING FORWARD
In Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429-430 (1966), the court held that where string beans are sold from bins on a self-service basis there is a probability that some will fall or be dropped on the floor either by defendants employees or by customers. Since plaintiff would not be in a position to prove whether a particular string bean was dropped by an employee or another customer (or how long it was on the floor) a showing of this type of operation is sufficient to put the burden on the defendant to come forward with proof that defendant did what was reasonably necessary (made periodic inspections and clean-up) in order to protect a customer against the risk of injury likely to be generated by defendants mode of operation. Presumably, however, the burden of proof remains on plaintiff to prove lack of reasonable care on defendants part. If defendant fails to produce evidence of reasonable care, the jury may infer that the fault was probably his. See also: Bozza, supra, 42 N.J. at 359.
Whether or not defendant has furnished an invitee with a reasonably safe place for his/her use may depend upon the obviousness of the condition claimed to be hazardous and the likelihood that the invitee would realize the hazard and protect himself/herself against it. Even though an unsafe condition may be observable by an invitee the jury members may find that an owner (or occupier) of premises is negligent, nevertheless, in maintaining said condition when the condition presents an unreasonable hazard to invitees in the circumstances of a particular case. If the jury members find that defendant was negligent in maintaining an unsafe condition, even though the condition would be obvious to an invitee, the fact that the condition was obvious should be considered by the jury members in determining whether the invitee was contributorily negligent (a) in proceeding in the face of a known hazard or (b) in the manner in which the invitee proceeded in the face of a known hazard.
DISTRACTION OR FORGETFULNESS OF INVITEE
Even if the jury members find that plaintiff knew of the existence of the unsafe or defective condition, or that the unsafe or defective condition was so obvious that defendant had a reasonable basis to expect that an invitee would realize its existence, plaintiff may still recover if the circumstances or conditions are such that plaintiffs attention would be distracted so that he/she would not realize or would forget the location or existence of the hazard or would fail to protect himself/herself against it.
Thus, even where a hazardous condition is obvious the jury members must first determine whether in the circumstances the defendant was negligent in permitting the condition to exist. Even if defendant was negligent, however, if plaintiff knew that a hazardous condition existed, plaintiff could not recover if he/she was contributorily negligent, that is to say, plaintiff could not recover if he/she did not act as a reasonably prudent person either by proceeding in the face of a known danger or by not using reasonable care in the manner in which he/she proceeded in the face of the danger. In considering whether plaintiff was contributorily negligent the jury members may consider that even persons of reasonable prudence in certain circumstances may have their attention distracted so that they would not realize or remember the existence of a hazardous condition and would fail to protect themselves against it. Mere lapse of memory or inattention or mental abstraction at the critical moment is not an adequate excuse. One who is inattentive or forgetful of a known and obvious danger is contributorily negligent unless there is some condition or circumstance which would distract or divert the mind or attention of a reasonably prudent person.
Note:
In McGrath v. American Cyanamid Co., 41 N.J. 272 (1963), the employee of a subcontractor was killed when a plank comprising a catwalk over a deep trench up-ended causing him to fall. The court held that even if the decedent had appreciated the danger that fact by itself would not have barred recovery. The court said if the danger was one which due care would not have avoided, due care might, nevertheless, require notice of warning unless the danger was known or obvious. If the danger was created by a breach of defendants duty of care, that negligence would not be dissipated merely because the decedent knew of the danger.Negligence would remain, but decedents knowledge would affect the issue of contributory negligence. The issue would remain whether decedent acted as a reasonably prudent person in view of the known risk, either by incurring the known risk (by staying on the job), or by the manner in which he proceeded in the face of that risk.
In Zentz v. Toop, 92 N.J. Super. 105, 114-115 (App. Div. 1966), affirmed o.b., 50 N.J. 250 (1967), the employee of a roofing contractor, while carrying hot tar, tripped over a guide wire supporting an air conditioning tower on a roof. The court held that even if plaintiff had observed the wires or if they were so obvious that he/she should have observed them, the question remained whether, considering the hazard and the work of the employee, he/she was entitled to more than mere knowledge of the existence of the wires or whether he/she was entitled to a warning by having the wires flagged or painted in a contrasting color. This was a fact for the jury to determine. The jury must also determine whether defendant had reason to expect that the employees attention would have been distracted as he/she worked or that he/she would forget the location of a known hazard or fail to protect himself against it. The court also held the plaintiffs knowledge of the danger would not alone bar his/her recovery, but this knowledge goes to the issue of contributory negligence.
In Ferrie v. DArc, 31 N.J. 92, 95 (1959), the court held that there was no reasonable excuse for plaintiffs forgetfulness or inattention to the fact that a railing was temporarily absent from her porch, as she undertook to throw bones to her dog, and fell to the ground because of the absence of a railing she customarily leaned upon. The court held: When an injury results from forgetfulness or inattention to a known danger, the obvious contributory negligence is not excusable in the absence of some condition or circumstance which would divert the mind or attention of an ordinarily prudent man. Mere lapse of memory, or inattention or mental abstraction at the critical moment cannot be considered an adequate diversion. One who is inattentive to or forgetful of a known and obvious condition which contains a risk of injury is obvious condition which contains a risk of injury to guilty of contributory negligence as a matter of law, unless some diversion of the type referred to above is shown to have existed at the time.
The following discussion in 2 Harper & James, Torts, §27.13, pp. 1489 et seq., (1956), cited with approval in Zentz v. Toop, supra, 92 N.J. Super. at 112, may be helpful in understanding the principles involved in the above charges:
Once an occupier has learned of dangerous conditions on his/her premises, a serious question arises as to whether he/she may--as a matter of law under all circumstances--discharge all further duty to his/her invitees by simply giving them a warning adequate to enable them to avoid the harm. A good many authorities, including the Restatement, take the position that he/she may. But this proposition is a highly doubtful one both on principle and authority. The alternative would be a requirement of due care to make the conditions reasonably safe--a requirement which might well be satisfied by warning or obviousness in any given case, but which would not be so satisfied invariably.
* * *
1. Defendants duty. People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight. This is true of the flight of ordinary stairs in a usual place in the daylight. It is also true of ordinary curbing along a sidewalk, doors or windows in a house, counters in a store, stones and slopes in a New England field, and countless other things which are common in our everyday experience. It may also be true of less common and obvious conditions which lurk in a place where visitors would expect to find such dangers. The ordinary person can use or encounter all of these things safely if he/she is fully aware of their presence at the time. And if they have no unusual features and are in a place where he/she would naturally look for them, he/she may be expected to take care of himself if they are plainly visible. In such cases it is enough if the condition is obvious, or is made obvious (e.g., by illumination). * * *
On the other hand, the fact that a condition is obvious--i.e., it would be clearly visible to one whose attention was directed to it--does not always remove all unreasonable danger. It may fail to do so in two lines of cases. In one line of cases, people would not in fact expect to find the condition where it is, or they are likely to have their attention distracted as they approach it, or, for some other reason, they are in fact not likely to see it, though it could be readily and safely avoided if they did. There may be negligence in creating or maintaining such a condition even though it is physically obvious; slight obstructions to travel on a sidewalk an unexpected step in a store aisle or between a passenger elevator and the landing furnish examples. Under the circumstances of any particular case, an additional warning may, as a matter of fact, suffice to remove the danger, as where a customer, not hurried by crowds or some emergency, and in possession of his/her facilities, is told to watch his/her step or step up at the appropriate time. When this is the case, the warning satisfies the requirement of due care and is incompatible with defendants negligence. Here again, plaintiffs recovery would be prevented by thatfact no matter how careful he/she was. But under ordinary negligence principles the question is properly one of fact for the jury except in the clearest situations.
In the second line of cases the condition of danger is suchthat it cannot be encountered with reasonable safety even if the danger is known and appreciated. An icy flight of stairs or sidewalk, a slippery floor, a defective crosswalk, or a walkway near an exposed high tension wire may furnish examples. So may the less dangerous kind of condition if surrounding circumstances are likely to force plaintiff upon it, or if, for any other reason, his/her knowledge is not likely to be a protection against danger. It is in these situations that the bit of the Restatements adequate warning rule is felt. Here, if people are in fact likely to encounter the danger, the duty of reasonable care to make conditions reasonably safe is not satisfied by a simple warning; the probability of harm in spite of such precaution is still unreasonably great. And the books are full of cases in which defendants, owing such a duty, are held liable for creating or maintaining a perfectly obvious danger of which plaintiffs are fully aware. The Restatement, however, would deny liability here because the occupier need not invite visitors, and if he/she does, he/she may condition the invitation on any terms he/she chooses, so long as there is full disclosure of them. If the invitee wishes to come on those terms, he/she assumes the risk.
The Restatement view is wrong in policy. The law has never freed landownership or possession from all restrictions or obligations imposed in the social interest. The possessors duty to use care towards those outside the land is of long standing. And many obligations are imposed for the benefit of people who voluntarily come upon the land. For the invitee, the occupier must make reasonable inspection and give warning of hidden perils. . . But this should not be conclusive. Reasonable expectations may raise duties, but they should not always limit them. The gist of the matter is unreasonable probability of harm in fact. And when that is great enough in spite of full disclosure, it is carrying the quasi-sovereignty of the landowner pretty far to let him ignore it to the risk of life and limb.
So far as authority goes, the orthodox theory is getting to be a pretty feeble reed for defendants to lean on. It is still frequently stated, though often by way of dictum. On the other hand, some cases have simply--though unostentatiously--broken with tradition and held defendant liable to an invitee in spite of his/her knowledge of the danger, when the danger was great enough and could have been feasibly remedied. Other cases stress either the reasonable assumption of safety which the invitee may make or the likelihood that his/her attention will be distracted, in order to cut down the notion of what is obvious or the adequacy of warning. And the latter is often a jury question even under the Restatement rule. It is not surprising, then, that relatively few decisions have depended on the Restatement rule alone for denying liability.
2. Contributory Negligence. . . But there are several situations in which a plaintiff will not be barred by contributory negligence although he/she encountered a known danger. . . For another, it is not necessarily negligent for a plaintiff knowingly and deliberately to encounter a danger which it is negligent for defendant to maintain. Thus a traveler may knowingly use a defective sidewalk, or a tenant a defective common stairway, without being negligent if the use was reasonable under all the circumstances.
CONCLUSION These situations show that the invitee will not always be barred by his/her self-exposure to known dangers on the premises.

Menlo Park Mall fall downs

Menlo Park Mall fall downs

Kenneth Vercammen & Associates Law Office helps people injured due to the negligence of others. We provide representation throughout New Jersey. The insurance companies will not help. Don't give up! Our Law Office can provide experienced attorney representation if you are injured. Our website njpersonalinjurylawcenter.com provides information on civil cases we can be retained to represent people.
Edited by Kenneth Vercammen, Esq.
Sometimes, store customers are injured in fall downs caused by wet and slippery floors or failure by stores to clean up broken or fallen items. No one plans on being injured in an accident, whether it is a car accident, fall down or other situation. Speak with a personal injury attorney immediately to retain all your rights. The stores are responsible for the maintenance of their premises which are used by the public. It is the duty of the store to inspect and keep said premises in a safe condition and free from any and all pitfalls, obstacles or traps that would likely cause injury to persons lawfully thereon.
It is further the duty of the store to properly and adequately inspect, maintain and keep the library premises free from danger to life, limb and property of persons lawfully and rightfully using same and to warn of any such dangers or hazards thereon. You may be lawfully upon the premises as a business invitee in the exercise of due care on your part, and solely by reason of the omission, failure and default of the store, be caused to fall down If the store did not perform their duty to plaintiff to maintain the premises in a safe, suitable and proper condition, you may be entitled to make a claim. If severely injured, you can file a claim for damages, together with interest and costs of suit. Injured people can demand trial by jury.
The following information is taken from the old model jury charges dealing with fall downs by store customers:
INVITEE - DEFINED AND GENERAL DUTY OWED
An invitee is one who is permitted to enter or remain on land (or premises) for a purpose of the owner (or occupier). He/She enters by invitation, expressed or implied. The owner (or occupier) of the land (or premises) who by invitation, expressed or implied, induced persons to come upon his/her premises, is under a duty to exercise ordinary care to render the premises reasonably safe for the purposes embraced in the invitation. Thus, he/she must exercise reasonable care for the invitees safety. He/She must take such steps as are reasonable and prudent to correct or give warning of hazardous conditions or defects actually known to him/her (or his/her employees), and of hazardous conditions or defects which he/she (or his/her employees) by the exercise of reasonable care, could discover.
BUSINESS INVITEE FALL DOWNS:
The basic duty of a proprietor of premises to which the public is invited for business purposes of the proprietor is to exercise reasonable care to see that one who enters his/her premises upon that invitation has a reasonably safe place to do that which is within the scope of the invitation.
Notes:
(1) Business Invitee: The duty owed to a business invitee is no different than the duty owed to other invitees.
(2) Construction Defects, Intrinsic and Foreign Substances: The rules dealt with in this section and subsequent sections apply mainly to those cases where injury is caused by transitory conditions, such as falls due to foreign substances or defects resulting from wear and tear or other deterioration of premises which were originally constructed properly.
Where a hazardous condition is due to defective construction or construction not in accord with applicable standards it is not necessary to prove that the owner or occupier had actual knowledge of the defect or would have become aware of the defect had he/she personally made an inspection. In such cases the owner is liable for failing to provide a safe place for the use of the invitee.
Thus, in Brody v. Albert Lipson & Sons, 17 N.J. 383 (1955), the court distinguished between a risk due to the intrinsic quality of the material used (calling it an intrinsic substance case) and a risk due to a foreign substance or extra-normal condition of the premises. There the case was submitted to the jury on the theory that the terrazzo floor was peculiarly liable to become slipper when wet by water and that defendant should have taken precautions against said risk. The court appears to reject defendants contention that there be notice, direct or mputed by proof of adequate opportunity to discover the defective condition. 17 N.J. at 389.
It may be possible to reconcile this position with the requirement of constructive notice of an unsafe condition by saying that an owner of premises is chargeable with knowledge of such hazards in construction as a reasonable inspection by an appropriate expert would reveal. See: Restatement to Torts 2d, §343, Comment f, pp. 217-218 (1965), saying that a proprietor is required to have superior knowledge of the dangers incident to facilities furnished to invitees.
Alternatively, one can view these cases as within the category of defective or hazardous conditions created by defendant or by an independent contractor for which defendant would be liable (see introductory note above).
Cases:
Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1954) (slip and fall on sticky, slimy substance in self-service cafeteria which inferably fell to the floor as an incident of defendants mode of operation).
Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955) (trip over curbstone improperly illuminated).
Brody v. Albert Lifson & Sons, 17 N.J. 383, 389 (1955) (slip and fall on wet composition floor in store).
Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954) (slip on smooth stairway in railroad station).
Williams v. Morristown Memorial Hospital, 59 N.J. Super. 384, 389 (App. Div. 1960) (fall over low wire fence separating grass plot from sidewalk).
Nary v. Dover Parking Authority, 58 N.J. super. 222, 226-227 (App. Div.
1959) (fall over bumper block in parking lot).
Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day).
Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J. Super. 300 (App. Div. 1958) (inadequate lighting of parking lot of supermarket, fall over unknown object).
Barnard v. Trenton-New Brunswick Theatre Co., 32 N.J. Super. 551, 557 (App. Div. 1954) (fall over ladder placed in theatre lobby by workmen of independent contractor).
Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant).
DUTY TO INSPECT OWED TO INVITEE The duty of an owner (or occupier) of land (or premises) to make the place reasonably safe for the proper use of an invitee requires the owner or occupier to make reasonable inspection of the land (or premises) to discover hazardous conditions.
Cases:
Handelman v. Cox, 39 N.J. 95, 111 (1963) (salesman showing merchandise to employees of defendant fell down cellar stairway partially obscured by carton)
NOTICE OF PARTICULAR DANGER AS CONDITION OF LIABILITY If the jury members find that the land (or premises) was not in a reasonably safe condition, then, in order to recover, plaintiff must show either that the owner (or occupier) knew of the unsafe condition for a period of time prior to plaintiffs injury sufficient to permit him/her in the exercise of reasonable care to have corrected it, or that the condition had existed for a sufficient length of time prior to plaintiffs injury that in the exercise of reasonable care the owner (or occupier) should have discovered its existence and corrected it.
Cases:
Tua v. Modern Homes, Inc., 64 N.J. Super. 211 (App. Div. 1960), affirmed, 33 N.J. 476 (1960) (slip and fall on small area of slipper waxlike substance in store); Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day); Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant).
Notes:
(1) The above charge is applicable to those cases where the defendant is not at fault for the creation of the hazard of where the hazard is not to be reasonably anticipated as an incident of defendants mode of operation. See: Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966) (dictum).
(2) An employees knowledge of the danger is imputed to his/her employer, the owner of premises. Handelman v. Cox, 39 N.J. 95, 104 (1963).
NOTICE NOT REQUIRED WHEN CONDITION IS CAUSED BY DEFENDANT
If the jury members find that the land (or premises) was not in a reasonably safe condition and that the owner (or occupier) or his/her agent, servant or employee created that condition through his/her own act or omission, then, in order for plaintiff to recover, it is not necessary for the jury members also to find that the owner (or occupier) had actual or constructive notice of the particular unsafe condition.
Cases:
Smith v. First National Stores, 94 N.J. Super. 462 (App. Div. 1967)(slip and fall on greasy stairway caused by sawdust tracked onto the steps by defendants employees); Plaga v. Foltis, 88 N.J. Super. 209 (App. Div. 1965) (slip and fall on fat in restaurant area traversed by bus boy); Torda v. Grand Union Co., 59 N.J. Super. 41 (App. Div. 1959) (slip and fall in self-service market on wet floor near vegetable bin). Also see: Thompson v. Giant Tiger Corp., 118 N.J.L. 10 (E. & A. 1937); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1956); Lewin v. Orbachs, Inc., 14 N.J. Super. 193 (App. Div. 1951); Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966).
BURDEN OF GOING FORWARD
In Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429-430 (1966), the court held that where string beans are sold from bins on a self-service basis there is a probability that some will fall or be dropped on the floor either by defendants employees or by customers. Since plaintiff would not be in a position to prove whether a particular string bean was dropped by an employee or another customer (or how long it was on the floor) a showing of this type of operation is sufficient to put the burden on the defendant to come forward with proof that defendant did what was reasonably necessary (made periodic inspections and clean-up) in order to protect a customer against the risk of injury likely to be generated by defendants mode of operation. Presumably, however, the burden of proof remains on plaintiff to prove lack of reasonable care on defendants part. If defendant fails to produce evidence of reasonable care, the jury may infer that the fault was probably his. See also: Bozza, supra, 42 N.J. at 359.
Whether or not defendant has furnished an invitee with a reasonably safe place for his/her use may depend upon the obviousness of the condition claimed to be hazardous and the likelihood that the invitee would realize the hazard and protect himself/herself against it. Even though an unsafe condition may be observable by an invitee the jury members may find that an owner (or occupier) of premises is negligent, nevertheless, in maintaining said condition when the condition presents an unreasonable hazard to invitees in the circumstances of a particular case. If the jury members find that defendant was negligent in maintaining an unsafe condition, even though the condition would be obvious to an invitee, the fact that the condition was obvious should be considered by the jury members in determining whether the invitee was contributorily negligent (a) in proceeding in the face of a known hazard or (b) in the manner in which the invitee proceeded in the face of a known hazard.
DISTRACTION OR FORGETFULNESS OF INVITEE
Even if the jury members find that plaintiff knew of the existence of the unsafe or defective condition, or that the unsafe or defective condition was so obvious that defendant had a reasonable basis to expect that an invitee would realize its existence, plaintiff may still recover if the circumstances or conditions are such that plaintiffs attention would be distracted so that he/she would not realize or would forget the location or existence of the hazard or would fail to protect himself/herself against it.
Thus, even where a hazardous condition is obvious the jury members must first determine whether in the circumstances the defendant was negligent in permitting the condition to exist. Even if defendant was negligent, however, if plaintiff knew that a hazardous condition existed, plaintiff could not recover if he/she was contributorily negligent, that is to say, plaintiff could not recover if he/she did not act as a reasonably prudent person either by proceeding in the face of a known danger or by not using reasonable care in the manner in which he/she proceeded in the face of the danger. In considering whether plaintiff was contributorily negligent the jury members may consider that even persons of reasonable prudence in certain circumstances may have their attention distracted so that they would not realize or remember the existence of a hazardous condition and would fail to protect themselves against it. Mere lapse of memory or inattention or mental abstraction at the critical moment is not an adequate excuse. One who is inattentive or forgetful of a known and obvious danger is contributorily negligent unless there is some condition or circumstance which would distract or divert the mind or attention of a reasonably prudent person.
Note:
In McGrath v. American Cyanamid Co., 41 N.J. 272 (1963), the employee of a subcontractor was killed when a plank comprising a catwalk over a deep trench up-ended causing him to fall. The court held that even if the decedent had appreciated the danger that fact by itself would not have barred recovery. The court said if the danger was one which due care would not have avoided, due care might, nevertheless, require notice of warning unless the danger was known or obvious. If the danger was created by a breach of defendants duty of care, that negligence would not be dissipated merely because the decedent knew of the danger.Negligence would remain, but decedents knowledge would affect the issue of contributory negligence. The issue would remain whether decedent acted as a reasonably prudent person in view of the known risk, either by incurring the known risk (by staying on the job), or by the manner in which he proceeded in the face of that risk.
In Zentz v. Toop, 92 N.J. Super. 105, 114-115 (App. Div. 1966), affirmed o.b., 50 N.J. 250 (1967), the employee of a roofing contractor, while carrying hot tar, tripped over a guide wire supporting an air conditioning tower on a roof. The court held that even if plaintiff had observed the wires or if they were so obvious that he/she should have observed them, the question remained whether, considering the hazard and the work of the employee, he/she was entitled to more than mere knowledge of the existence of the wires or whether he/she was entitled to a warning by having the wires flagged or painted in a contrasting color. This was a fact for the jury to determine. The jury must also determine whether defendant had reason to expect that the employees attention would have been distracted as he/she worked or that he/she would forget the location of a known hazard or fail to protect himself against it. The court also held the plaintiffs knowledge of the danger would not alone bar his/her recovery, but this knowledge goes to the issue of contributory negligence.
In Ferrie v. DArc, 31 N.J. 92, 95 (1959), the court held that there was no reasonable excuse for plaintiffs forgetfulness or inattention to the fact that a railing was temporarily absent from her porch, as she undertook to throw bones to her dog, and fell to the ground because of the absence of a railing she customarily leaned upon. The court held: When an injury results from forgetfulness or inattention to a known danger, the obvious contributory negligence is not excusable in the absence of some condition or circumstance which would divert the mind or attention of an ordinarily prudent man. Mere lapse of memory, or inattention or mental abstraction at the critical moment cannot be considered an adequate diversion. One who is inattentive to or forgetful of a known and obvious condition which contains a risk of injury is obvious condition which contains a risk of injury to guilty of contributory negligence as a matter of law, unless some diversion of the type referred to above is shown to have existed at the time.
The following discussion in 2 Harper & James, Torts, §27.13, pp. 1489 et seq., (1956), cited with approval in Zentz v. Toop, supra, 92 N.J. Super. at 112, may be helpful in understanding the principles involved in the above charges:
Once an occupier has learned of dangerous conditions on his/her premises, a serious question arises as to whether he/she may--as a matter of law under all circumstances--discharge all further duty to his/her invitees by simply giving them a warning adequate to enable them to avoid the harm. A good many authorities, including the Restatement, take the position that he/she may. But this proposition is a highly doubtful one both on principle and authority. The alternative would be a requirement of due care to make the conditions reasonably safe--a requirement which might well be satisfied by warning or obviousness in any given case, but which would not be so satisfied invariably.
* * *
1. Defendants duty. People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight. This is true of the flight of ordinary stairs in a usual place in the daylight. It is also true of ordinary curbing along a sidewalk, doors or windows in a house, counters in a store, stones and slopes in a New England field, and countless other things which are common in our everyday experience. It may also be true of less common and obvious conditions which lurk in a place where visitors would expect to find such dangers. The ordinary person can use or encounter all of these things safely if he/she is fully aware of their presence at the time. And if they have no unusual features and are in a place where he/she would naturally look for them, he/she may be expected to take care of himself if they are plainly visible. In such cases it is enough if the condition is obvious, or is made obvious (e.g., by illumination). * * *
On the other hand, the fact that a condition is obvious--i.e., it would be clearly visible to one whose attention was directed to it--does not always remove all unreasonable danger. It may fail to do so in two lines of cases. In one line of cases, people would not in fact expect to find the condition where it is, or they are likely to have their attention distracted as they approach it, or, for some other reason, they are in fact not likely to see it, though it could be readily and safely avoided if they did. There may be negligence in creating or maintaining such a condition even though it is physically obvious; slight obstructions to travel on a sidewalk an unexpected step in a store aisle or between a passenger elevator and the landing furnish examples. Under the circumstances of any particular case, an additional warning may, as a matter of fact, suffice to remove the danger, as where a customer, not hurried by crowds or some emergency, and in possession of his/her facilities, is told to watch his/her step or step up at the appropriate time. When this is the case, the warning satisfies the requirement of due care and is incompatible with defendants negligence. Here again, plaintiffs recovery would be prevented by thatfact no matter how careful he/she was. But under ordinary negligence principles the question is properly one of fact for the jury except in the clearest situations.
In the second line of cases the condition of danger is suchthat it cannot be encountered with reasonable safety even if the danger is known and appreciated. An icy flight of stairs or sidewalk, a slippery floor, a defective crosswalk, or a walkway near an exposed high tension wire may furnish examples. So may the less dangerous kind of condition if surrounding circumstances are likely to force plaintiff upon it, or if, for any other reason, his/her knowledge is not likely to be a protection against danger. It is in these situations that the bit of the Restatements adequate warning rule is felt. Here, if people are in fact likely to encounter the danger, the duty of reasonable care to make conditions reasonably safe is not satisfied by a simple warning; the probability of harm in spite of such precaution is still unreasonably great. And the books are full of cases in which defendants, owing such a duty, are held liable for creating or maintaining a perfectly obvious danger of which plaintiffs are fully aware. The Restatement, however, would deny liability here because the occupier need not invite visitors, and if he/she does, he/she may condition the invitation on any terms he/she chooses, so long as there is full disclosure of them. If the invitee wishes to come on those terms, he/she assumes the risk.
The Restatement view is wrong in policy. The law has never freed landownership or possession from all restrictions or obligations imposed in the social interest. The possessors duty to use care towards those outside the land is of long standing. And many obligations are imposed for the benefit of people who voluntarily come upon the land. For the invitee, the occupier must make reasonable inspection and give warning of hidden perils. . . But this should not be conclusive. Reasonable expectations may raise duties, but they should not always limit them. The gist of the matter is unreasonable probability of harm in fact. And when that is great enough in spite of full disclosure, it is carrying the quasi-sovereignty of the landowner pretty far to let him ignore it to the risk of life and limb.
So far as authority goes, the orthodox theory is getting to be a pretty feeble reed for defendants to lean on. It is still frequently stated, though often by way of dictum. On the other hand, some cases have simply--though unostentatiously--broken with tradition and held defendant liable to an invitee in spite of his/her knowledge of the danger, when the danger was great enough and could have been feasibly remedied. Other cases stress either the reasonable assumption of safety which the invitee may make or the likelihood that his/her attention will be distracted, in order to cut down the notion of what is obvious or the adequacy of warning. And the latter is often a jury question even under the Restatement rule. It is not surprising, then, that relatively few decisions have depended on the Restatement rule alone for denying liability.
2. Contributory Negligence. . . But there are several situations in which a plaintiff will not be barred by contributory negligence although he/she encountered a known danger. . . For another, it is not necessarily negligent for a plaintiff knowingly and deliberately to encounter a danger which it is negligent for defendant to maintain. Thus a traveler may knowingly use a defective sidewalk, or a tenant a defective common stairway, without being negligent if the use was reasonable under all the circumstances.
CONCLUSION These situations show that the invitee will not always be barred by his/her self-exposure to known dangers on the premises.