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Civil Model Jury Charge 5.10D RES IPSA LOQUITUR

5.10DRES IPSA LOQUITURCivil Model Jury Charge

https://www.judiciary.state.nj.us/civil/civindx.htm

In any case in which there is a claim that the defendant was negligent, it must be proven to you that the defendant breached a duty of reasonable care which was a proximate cause of the plaintiffs injuries.[1] Generally, the mere fact that an accident happened, with nothing more, does not provide proof that the accident was a result of negligence.[2]

In a negligence case, the plaintiff must prove that there was some specific negligent act or omission by the defendant which proximately caused the accident. However, in certain circumstances, the very happening of an accident may be an indication of negligence.

Thus, the plaintiff may, by providing facts and circumstances, establish negligence by circumstantial evidence. If the instrumentality causing the injury was in the exclusive control of the defendant, and if the circumstances surrounding the happening were of such a nature that in the ordinary course of events the incident would not have occurred if the person (entity) having control of the instrumentality had used reasonable care under the circumstances, the law permits, but does not require, the jury to infer negligence from the happening of the incident.

Plaintiffs voluntary act[3] or neglect contributing to the occurrence prevents the inference from being drawn. However, the mere fact that plaintiff was present does not defeat the inference. Rather, you must find that plaintiffs action or negligence was a proximate cause of the occurrence to prevent the inference.[4]

For instance, assume someone was walking on a sidewalk under a piano, which was being lifted by a crane to go into the upper floor, and assume further that the piano fell onto the pedestrian. The falling piano would be an indication of negligence, since pianos do not usually fall from the sky without someone being negligent. The mere fact that the pedestrian was present is not a voluntary act or neglect.[5]

In summary, if you find by the greater weight of the evidence that at the time of the incident (1) the defendant had exclusive control of the instrumentality causing the occurrence, (2) that the circumstances were such


that in the ordinary course of events the incident would not have occurred if the defendant had exercised reasonable care and (3) plaintiffs voluntary act or negligence did not contribute to the occurrence, then you may infer that the defendant was negligent.[6]

[Where exclusive control is in issue]

As to the requirement of defendant having exclusive control, this implies that the control was of such type that the probabilities that the negligent act was caused by someone else is so remote that it is fair to permit an inference of negligence by defendant.[7]

If you infer that the defendant was negligent, then the plaintiff need not point out any specific conduct or inaction by the defendant that was a breach of his/her duty of reasonable care. This inference was drawn, even if plaintiff has introduced some evidence of defendants specific negligence.

[If defendant provides explanation, add:]

If you do infer that the defendant was negligent, then you should consider the defendants explanation of the accident. If the explanation causes you to believe that it is no longer reasonable to infer that the defendant was negligent, then the defendant is entitled to your verdict.[8] But if giving fair weight to all of the worthwhile evidence, you decide that it is more likely than not that the defendant was negligent, then your verdict should be for the plaintiff.

Treatise References:

3 Modern Tort Law (1977), by James A. Dooley, 48.21, p. 349. 4 F. Harper and F. James, The Law of Torts, (2nd Ed.) 19.12, p. 78.

The inference arising from a res ipsa loquitur case may, however, be destroyed by sufficiently conclusive evidence that it is not in reality a res ipsa loquitur case. If the defendant produces evidence which is so conclusive as to leave no doubt that the event was caused by some outside agency for which he/she was not responsible, or that it was of a kind which commonly occurs without negligence on the part of anyone and could not be avoided by the exercise of all reasonable care, he/she may be entitled to a directed verdict. 2 Restatement (Second) of Torts 328 E, comment o, p. 166.



[1]Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288 (1984).

[2]Buckelew v. Grossbard, 87 N.J. 512, 525 (1981).

[3]Stec. v. Richardson, 75 N.J. 304, 308 (1978); Rose v. Port of N.Y. Auth., 61 N.J. 129, 136 (1972); Vespe v. Chemirad Corp., 37 N.J. 56, 70-71 (1962); Kahalili v. Rosecliff Realty, Inc., 26 N.J. 596, 606 (1958).

[4]See footnote 6, below.

[5]See footnote 3, above.

[6]In the event of evidence the plaintiff did contribute to the occurrence but no evidence of contribution to the instrumentality, state at (3), ...that there is no indication in the circumstances that the object causing the injury was the result of plaintiffs neglect.

[7]Note that in Bornstein v. Metropolitan Bottling Co., 26 N.J. 263 (1958), the New Jersey Supreme Court held the doctrine of res ipsa loquitur applied to a defendant bottler who had delivered filled soda bottles to a luncheonette and where one of those bottles exploded and injured the plaintiff who was an employee of the luncheonette. The Court found that even though possession and control of the bottles had been transferred to the luncheonette, there was no rational ground for imputing presumed negligence to the luncheonette where there was no suggestion of careless handling of the bottle by the luncheonette. Id. at 274. See J. Francis pointed observation in concurrence at p. 275. Note also that the plaintiff has the burden of excluding the negligence of an intervening person in possession or control.

[8]In Bornstein, supra, at 273, the Court noted that res ipsa loquitur is not ordinarily applicable if it is equally probable that the negligence was that of someone other than the defendant, but the plaintiff need not exclude all other persons who might possibly have been responsible where the defendants negligence appears to be the more probable explanation of the accident. Quoting from Zentz v. Coca-Cola Bottling Co. of Fresno, 247 P. 2d 344 (Sup. Ct. Cal. 1952). See also Lynch v. Galler Seven-Up Pre-Mix Corp., 74 N.J. 146, 154 (1977).

   
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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys. Understand that we will always to do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you dont protect your rights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law.

You need an attorney who will work hard to protect your rights, maximize your insurance settlement and minimize the hassles of dealing with the insurance companies. You need an experienced and aggressive New Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced personal injury lawyer can make the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big jury verdict, why would an insurance company pay you what your claim is really worth? Lawsuits can be expensive, and many people do not have the money to pursue their claim. In every case, I advance all costs associated with pursuing your case and I do not ask you for a penny until we recover from the other side.

I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injury claim can be difficult and time consuming. Once I take your case, you can stop worrying about dealing with the insurance companies and focus on recovering from your injuries. I take care of all of the paperwork, phone calls, and negotiations, so you can get on with your life.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.

This means: YOU DONT OWE ME A LEGAL FEE UNLESS I RECOVER MONEY FOR YOU.

Call our office to schedule a "confidential" appointment 732-572-0500

Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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