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5.10F Civil Model Jury Charge NEGLIGENCE

5.10F Civil Model Jury Charge

NEGLIGENCE EMOTIONAL DISTRESS FROM WITNESSING SERIOUS INJURY TO AN INTIMATE FAMILY MEMBER (Approved 5/84)https://www.judiciary.state.nj.us/civil/civindx.htm

In this case, plaintiff seeks to recover against the defendant on his/her own behalf, contending that defendants negligence caused the plaintiff severe emotional and mental distress as a result of observing the injury to [victims name] for which injury plaintiff contends the defendants negligence was responsible.

NOTE TO JUDGE

If the court has already instructed the jury on the issue of liability vis-a-vis the victim and the defendant, use the following instruction.

You should understand that if you have found in accordance with my previous instructions that the injury to (victims name) was not a result of defendants negligence, then the plaintiff who witnessed the injury cannot recover damages from the defendant for emotional distress.

NOTE TO JUDGE

If the court has not previously instructed the jury on liability vis-a-vis the victim and the defendant, use the following instruction.


You the jury, must determine, whether the injury to (victims name) was caused by the negligence of the defendant. If you find that the injury was not a result of defendants negligence, then the plaintiff who witnessed the injury cannot recover damages from the defendant for emotional distress. These are the criteria by which you are to determine whether the defendant was negligent for causing injury to (victims name):

NOTE TO JUDGE

Here give instructions regarding the traditional elements of the cause of actions vis-a-vis the victim and the defendant.

If you have determined that [victims name]s injury was caused by the negligence of the defendant, then you must consider whether the plaintiff has proven the following elements by a fair preponderance of the evidence.[1]


1. That the defendants negligence (fault) caused serious bodily injury (or death) to (victims name).

2. That plaintiff in fact witnessed the accident or event which caused serious bodily-injury (or death) to (victims name).

3. That plaintiff experienced severe emotional distress as a result of the observation of the accident or event.

If plaintiff has proven each of these elements by a fair preponderance of the evidence then the defendant is liable to the plaintiff for money damages resulting from the infliction of emotional distress. You must then set an amount of money damages which will compensate plaintiff for the mental and emotional anguish, distress and harm suffered by plaintiff.

NOTE TO JUDGE

Here insert standard charge for special damages, disability and pain and suffering where appropriate under the evidence.

NOTE TO JUDGE

The court should instruct the jury that the plaintiffs verdict will be reduced by the percentage of the victims negligence, if any, as well as the percentage of plaintiffs negligence, if appropriate under the evidence. See Portee v. Jaffee, 84 N.J. 88, 101-102 (1980).



[1]The Committee on Model Jury Charges, Civil, recognizes that the existence of a marital or intimate familial relationship is an essential element of the cause of action for negligent infliction of emotional distress. Portee v. Jaffee, 84 N.J. 88, 98-99 (1980). However, the Committee believes that the court should decide this element as a matter of law since it goes to the heart of the existence or non-existence of defendants duty. While the issue was not specifically addressed in Portee, it was held to be an issue for the court in Dillon v. Leqq, 441 P.2d 912 (Cal. Sup. Ct. 1968) and the subsequent case of Mobaldi v. Board of Regents, 127 Cal. Retr. 720 (Cal. App. Ct. 1976). The New Jersey Supreme Court in Portee relied heavily on the Dillon decision.

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