Roman v. Mitchell

ORDERED that LEON WOLK be hereby perma- S. law; nently enjoined restrained and from practicing further respondent comply

ORDERED that regulations with all the the Disciplinary governing Review Board suspended, disbarred resigned attorneys. ROMAN, MICHAEL AN INFANT BY HIS GUARDIAN AD LITEM ROMAN, ROMAN, CAROL INDIVIDUALLY, AND CAROL PLAINTIFFS-APPELLANTS, MITCHELL, JR., v. ROBERT M. WADE, SHERMAN JR. AND N. SALVATERRA CONSTRUC- COMPANY, TION JERSEY, A CORPORATION OF NEW DE- FENDANTS-RESPONDENTS. Argued March 1980. November 1979—Decided (Monica Rappa argued appellants cause for Leonard F. Rappa, attorneys). and argued respondent

David the cause for Robert M. Lustbader Lustbader, Mitchell, (Philip Jr. M. Lustbader and David attor- brief). neys; L. Moreinis on the Susan Gilhoolyargued respondents Edward J. the cause for Sherman Wade, Company. Jr. and Salvaterra Construction opinion

The Court was delivered by SULLIVAN, J.

The suit herein is a tort action filed on behalf Michael herein, Roman, plaintiff injuries infant for serious sustained by Jersey Turnpike. him in an accident on the New His mother joined Carol has in the suit. Roman 29, 1973, Michael, old, then September years On and three pushed bicycles up an young companions their embankment adjacent Jersey Turnpike lanes of the New southbound near and They Linden onto the shoulder the road. then pedaled southerly a short distance on the shoulder in a direction Turnpike to a Howard Johnson’s restaurant located in a service something they way area where had to eat. their On back to they Turnpike where had while proceeding entered the shoulder, along they stopped by trooper. were state Ac- cording trooper, boys he told told the to leave the However, highway immediately. boys at testified trial that simply get “to we trooper told them off where had come on.” boys did not see to it trooper stay to followed

instructions; instead, problem responded he a traffic a short away. immediately distance Almost after the officer left and shoulder, boys standing on dump while the were still truck Mitchell, Jr., by being owned Robert M. driven south on the Wade, Turnpike lost its two by Sherman left rear wheels. One of the wheels the roadway careened across onto the shoulder Michael, boys standing where the were and struck seriously injuring him. time, employed

At the both and Wade by Mitchell were Co., Salvaterra Construction Mitchell as a mason foreman and periodically Wade as a laborer. Salvaterra used Mitchell’s truck in its work Mitchell as operator. construction with On the accident, however, given date of the Mitchell had Salvaterra permission to use the being truck and was driven Wade to when the Salvaterra construction site wheels came off. Mitchell, damages joined Plaintiffs’ suit for Wade Salva- terra At the Construction Co. as defendants. commencement of trial, which of counsel liability, was limited issue for plaintiffs sought following questions prospec- to ask the of leave tive jurors on their voir dire examinations. 1. of or of Are stockholders insurance which any you any employees company engaged in the insurance business? casualty engaged general agency 2. Are of in the insurance business or are any you agent an for a insurance any you casualty company? investigator 3. Have ever worked as a claims or you insurance adjuster? judge request, observing “you

The trial denied the that might just (the jury) you as well tell now know the defendant insured in case.” liability,

At trial on Mitchell testified that the truck was was, less, possession or his 99% of time and more his responsibility working sure that the truck was make order. rule, inspected lug As a he nuts on the wheels vehicle weeks, but whether every two three could remember he inspection preceding had such made an within week arrangement Salvaterra, accident. He said that under his with inspection responsibili- and maintenance the vehicle were his ty inspec- safety the standard for expert testified

Plaintiffs’ rough on vehicle used construction lugs on a wheel tion of once a “perhaps heavy required examination loads terrain with opinion expressed He days” use. every few day, once day driving the truck prior to Wade’s the left nuts on lug or more of accident, probably one most which in during use loosened, causing stresses had rear wheels or break. lug nuts to loosen the other turn caused accident, describing plain- After the details of the the infant tiff he prior testified that to the accident knew that the Turn- pike dangerous he had place bicyclists was a been heavily warned not ride on traveled streets. evidence, motion, at the of the

On close trial court dismissed the ease as to defendants Wade and Salvaterra Construction Co. ground plaintiffs on the that produce had failed to any evidence negligence part. of on their

The accident had a occurred few weeks after the effective date of the Jersey comparative New negligence statute, seq., 2A:15-5.1 et and the case provisions was tried under the of that act. Since of construction the statute is primary in issue case, the provisions its set in are forth full. N.J.S.A. 2A:15-5.1 negligence shall not bar in Contributory recovery action or any by any person legal damages negligence resulting his to recover for representative or death injury negligence greater to if such person was property, than the

negligence against sought, damages of the whom person but recovery any percentage sustained negligence shall be diminished the sustained of by attribut- recovering. to able the person N.J.S.A. 2A:15-5.2 negligence In all which the of actions in is in the liability question dispute, findings following of trier fact shall make the of fact: damages injured a. The of which would the amount be recoverable by party regardless negligence, of of consideration that the full value of the is, any injured damages; party’s percentage, negligence. The of each b. the form of The extent, parties’ percentage negligence of of shall be based on each 100%and the total of party percentages negligence of of all all the to a suit shall be 100%. parties judgment judge finding The the of c. shall mold the from fact made the by of trier fact. NJ.S.A. 2A:15-5.3 recovering, so recover party the full amount molded verdict may against recovering from whom such party not barred from party recovery. who is so to percentage Any more than such party compelled pay share party’s joint seek contribution from other may tortfeasors. After the trial court refused to strike the defense of contribu- tory negligence, holding jury question presented, was counsel plaintiffs requested that the jury charged be as to legal application effect comparative negligence essence, statute. In request charge to jury asked that the recover, plaintiff told that for the infant would have percentage find negligence defendant’s was great- than of the plaintiff, damages er and that the awardable must be proportion the infant diminished in to the amount of negligence request attributable to him. The was denied. court, response interrogatories by submitted to it

In negligence was found that the accident caused plaintiff It both infant and defendant Mitchell. fixed the plaintiff of the infant at 75% percentage negligence and that findings these trial of Mitchell at 25%. Based on court judgment for molded the verdict and entered the defendant. 2A:15-5.2(c). judgment the in Appellate Division affirmed favor of finding any of made the rulings defendant no error in N.J.Super. (1979). granted trial court. 165 68 Certification was (1979). by this Court. 81 We now reverse and N.J. order new trial.

I. was agree We with the trial court that there sufficient contributory negligence to submit that evidence of Michael’s pursuant comparative negligence issue to the statute. Turnpike the shoulder of the deliberately He ventured onto cyclist knowing dangerous place spite for a and in that it was a heavily ride streets. prior warnings not to his bike traveled Despite age, Michael was aware of the risks involved and his danger. A in an area of extreme deliberately placed himself venturing reasonably have that his onto the could found roadway proximate was a cause of the accident.1 shoulder of was contributorily infant also plaintiff contentions 1The additional (1), failing negligent turnpike order leave obey trooper’s watching taking (2), off wheels and his eyes immediately skidding The accident happened in the record. truck, lack sufficient basis still boys while the were left and after immediately trooper almost Launderers, Inc., Cleaners and Dziedzic St. John’s Shirt (1969), by plaintiffs, support plaintiffs’ cited does not N.J. presence that Michael’s on the shoulder of contention the road proximate was not a cause the accident. See Latta v. Caulfield, (1979). 79 N.J. 133-135

II. We conclude that trial granting court erred in the motion of defendant Construction Co. involuntary Salvaterra for an dismissal. The basis for the dismissal was the court’s conclusion that Mitchell as duty owner of vehicle had a to make safety inspections lug of the nuts on the wheels and that Salvaterra legal obligation no regard. had in that

However, presented evidence was that a vehicle such as here involved lug inspected should have had its nuts “perhaps a day, every once once days.” few While Mitchell as owner had responsibility making inspections assumed the safety vehicle, nuts, including lug the wheel did relieve Salva terra of the independent duty to prior check vehicle to use. Salvaterra, Certainly engaged who was in the construction business, should have lug been aware that the wheel nuts on a heavy dump truck will tend loosen when the vehicle is subjected to the stresses and operation. strains construction However, knowledge imputed same cannot be to Wade. The record employed indicates that he was as a laborer and that this was the first time he had driven the Mitchell truck. Mr. that, Wade, Salvaterra testified he when hired he did not know qualified experienced if he was or driving in the of construction standing suggest young might on the shoulder. To that Roman been have it, careening kept eyes to able avoid the he wheel had his on rather than on truck, event, pure speculation. any jury is In we that conclude verdict, fixing percentage negligence plaintiff 75%, of of the infant at was contrary weight of the evidence. any training in that Wade give he did and that trucks jury how a we do not see circumstances In these regard. independent had an Wade have found reasonably could driving it. prior vehicle inspect the obligation to III. request jury that the plaintiffs’ We next consider denial of legal application of the be instructed as to the effect jury’s findings. comparative negligence statute to the There specifically requires nothing jury in the statute which that the charge. be instructed as to such effect—an ultimate outcome provides judge shall All the statute is that the mold by the judgment findings jury. of fact made from However, argue that 2A:15-5.2(e). plaintiffs jury unless findings percentages as legal made effect of its aware of the premised findings may be on an erroneous negligence, such judgment in molded far law can result a concept very In jury. case different from that intended may have suggested that the well concluded has been quota findings plaintiff’s negligence of 75%and its of the infant for monetary would result in a verdict defendant Mitchell’s25% damages found. plaintiff for of the 25% in a has merit and that a We believe the contention given be an ultimate comparative negligence situation should percentages charge so that its deliberations outcome vacuum, possibly be in a based on negligence will not had Prior to the operates. the statute mistaken notion of how when the con adoption comparative negligence statute plaintiff was an absolute bar tributory negligence of a State, jury was instructed to the outcome recovery in this contributory negli if findings, by charge its that it found degree, gence its verdict must substantial Corporation, N.J. Steel See O’Brien Bethlehem defendant. (1971). 346 comparative recognize negligence states with

We some rejected the ultimate statutes have notion an outcome 189, given. Story, be v. 70 charge See McGowan Wis.2d 234 (Sup.Ct.1975). given 325 The reason is that since a N.W.2d have jury’s finding, function fact should no interest found; determining applied should be to the facts how law otherwise, might jury, sympathy, attempt bias or motivated manipulate apportionment negligence to achieve a seem it. confusion may result desirable to Possible jury has also been mentioned. support position.

There is for this considerable See Heft and Heft, Manual, Schwartz, Comparative Negligence (1978); 7.40 § However, (1974). Comparative Negligence, 17.5 at 291 § growing comparative jurisdictions negligence number of now provide comparative negli- instructions in ultimate outcome judicial gence by legislative provision, situations court rule or See, Loup-Miller e. v. g., Assoc.-Rocky decision. Brauer & Mountain, 845, (Ct.App.Colo.1977) (legislative 572 P.2d 847 statute); Mississippi Corp., amendment to Porche v. Gulf Marine F.Supp. (E.D.La.1975) (judicial decision); Krengel v. Inc., Minn., 200, 841, Midwest Automatic Photo 203 N.W.2d (Sup.Ct.1973) (court rule). A detailed discussion the trend in favor of an ultimate comparative outcome instruction in negligence cases is included Betty, Seppi 99 Idaho 579 P.2d 688-692 (Sup.Ct. 1978), which held that in most cases an ultimate in outcome warranted, fully struction would be but that a trial court would have discretion not to the jury complex so inform in a case where such instructions would tend to confuse or mislead the jury. that,

We ordinarily, conclude legal informed of the effect of its findings as to percentages of negligence in a comparative negligence trial is better able to fulfill its fact Hereafter, finding function. an ultimate outcome instruction given However, should to a in such a trial. in a complex involving case multiple parties, issues and numerous the trial discretion, the court, sound could withhold in the exercise of jury. or the if it tend to mislead confuse See instruction would supra, 579 P.2d at 692. Seppi, juries holding deciding comparative result

Our will not or court according fancy. cases to whim The trial negligence if always jury’s findings set it concludes can aside a product misunderstanding, prejudice. or verdict is the of bias “[tjhis way is a much effective Seppi, supra, noted in more As jury and bias in problems misunderstanding of control 579 P.2d at attempting jury.” to blindfold the verdicts than 692.

IV. plaintiffs’ proposed of voir Finally rejection we consider jurors concerning their stockhold- questions prospective dire casualty employment company engaged in the ing or in a impar- are entitled to a fair and insurance business. Plaintiffs and, designed to proposed questions are facially, the tial prospective prejudice part of a possible ascertain bias or coverage is involved. juror casualty where insurance jurors prospective questioning In this the voir dire State 2A:78-4, rule, R. by statute, and court regulated judge l:8-3(a). Both the rule allow statute judge who practice and in it is the scope inquiry control Manley, v. N.J. 282-283 questioning. does the See State dire, juror’s employment or prospective (1969). On the voir here, the may invariably, into and as occupation inquired be why they know of reason also whether jurors are asked facts impartially judges of the fairly not act they “could to allow practice It in this State in this case.” has not been jurors possible stock- as to questioning prospective specific some company insurance absent holding employment in an exists. that a basis therefor indication True, juror may be aware that there average accident case coverage every motor vehicle in almost insurance and the coverage disclosure such to a has been held not prejudicial Doddrell, to be error. Runnacles 59 N.J.Super. 363 (App.Div.1960). However, questions propounded here tend emphasize unduly fact coverage. insurance Absent exists, some asking indication that a basis for them they should ordinarily rejected by that, trial court. risk is if permitted, used, questions such would be not as a bona fide inquiry possible into or prejudice, bias solely but to stress the fact of insurance coverage jury. argue that questions permitted

Plaintiffs unless these are they However, juror cannot know whether a is biased. good faith, inquiry, prejudice even if in can a right defendant’s to a fair trial. The better rule is to leave the matter to the judge sound discretion of the trial who should balance the plaintiff’s claim and basis against of need therefor possibility prejudice to defendant. We are aware of Schaik, (3 1965), Kiernan v. Van 347 F.2d 775 Cir. which holds questions be such these should allowed in accident cases. opinion possible prejudice The indicates that to defendants can adequate be an to avoided caution ** * either that these do defendant is insured any questions imply or that the matter of insurance or lack of insurance is be in considered reaching verdict. at [Id. 782.] Kiernan would bar appear judge the trial exercising from require discretion in the and questions matter that such asked even if no basis therefor been approach, has shown. This think, we unduly prejudice could rights. defendant’s being harm is not so in much made aware insurance coverage fact, as in the undue stress such possible on and its jury’s findings. rule, influence on The better as heretofore judge’s trial sound indicated, matter to the leave the discretion. trial. new

Reversed remanded part. in PASHMAN, J., dissenting I majority opinion. I, II III of concur in Parts I however, opinion dissent, Part IV from respectfully judge question refused to properly trial holds that the which as to their connec- jurors voir dire examination prospective companies. with tions insurance -3(a) trial and R. 1:8 afford the

Although 2A:78-4 scope of voir dire controlling judge board discretion examination, (1969); v. 54 N.J. 281-283 Manley, see State J., (Pashman, concurring), McCombs, N.J. cl. State mistakenly exercised that discre- the court below I believe that relating By questions insurance. refusing to ask tion result, has subverted fundamen- majority upholding this elicit for “to information dire examination: purpose tal of voir interpose not to determining whether or purpose is disclosing whether or not there challenge, and peremptory 2A:78~4. challenge.” N.J.S.A. a cause plaintiffs all from prevented these and majority has present nearly in discovering potentially of bias is a source an essential aid for litigation. They are thus denied all tort intelligently and for challenges for cause making successful challenges. This denial carries severe exercising peremptory right by have his cause an implications plaintiff’s tried for a 350

impartial jury. It also impermissibly impinges upon the plain ability tiff’s effectively to utilize peremptory his challenges. Although based, not constitutionally Singletary, see State v. 80 55, N.J. 62 (1979), the right peremptory challenge been has granted by Legislature Court to insure that triers of fact will nearly impartial be “as ‘as humanity the lot of ” Jackson, will admit.’ 148, 158 v. (1964), State 43 N.J. cert. den. sub nom. v. Jersey, 982, Ravenell New 690, 379 U.S. 85 S.Ct. 13 572 (1965) L.Ed.2d (quoting White, 159, State v. 105 N.H. 196 33, A.2d 34 (Sup.Ct.1963), 854, 103, 13 cert. den. 379 U.S. 85 S.Ct. 57 (1964)); L.Ed.2d see 2A:78-7(a); l:8~3(c). R. “The denial of the right peremptory challenge denial of a right.” Bernstein, substantial Wright 284, v. 23 (1957); N.J. 295 see also State Singletary, v. 80 N.J. at 62. When such denial is conduct, waived per it prejudicial. se Wright v. Bernstein, 23 at N.J. 295. jurisdictions held in other general

As a rule has been respecting voir jurors may questioned on dire their interest provided companies, liability or connection with insurance Annot., good generally faith.1 40 A.L.R.Fed. counsel acts See Annot., (1949). (1978); 792 faith 4 A.L.R.2d Good 562 juror’s has been into the inquire prospective 1Counsel connec permitted g., see, tion with the e. Wichmann United insurance v. industry, Disposal, 1977); (8th Inc., 553 F.2d 1104 Cir. Milwaukee Gear v. Charles Company (3d 1972); Benjamin, Inc., v. F.2d Schaik, 466 F.2d 588 Cir. Kiernan Van (3d 1965), Cir. connection with the insurance interested company g., case, Crawford, see, in the outcome of the e. Jones v. 361 So.2d specific (Ala.Sup.Ct. 1978); Valley, Inc., Chrisler v. S.W.2d 309 Holiday (Mo.Ct.App.1979). questioning whether individ Courts have also allowed jurors are ual of a mutual insurance involved in the policyholders company g., (Mont.Sup.Ct.1979), case, Yost, e. 594 P.2d 688 or even see, Borkoski injury that cases whether believed the size verdicts they personal g., King see, Westlake, liability affected automobile insurance e. premiums, (Ark.Sup.Ct.1978). 572 S.W.2d 841 requires jurors must not designed examination to them other than pay inform that someone the defendant will any judgment. Appleman, Practice, 21 J. Insurance Law and (1962). at 780 § today specific questioning pro- Court maintains

spective jurors possible stockholding employment or in an “as inappropriate “[ajbsent is some indication company” insurance essence, exists.” Ante at 347-348. In a basis therefor his majority requires good that counsel demonstrate faith jurors’ showing facie of one or more connections prima some asking whether he had with business of insurance before company. employed by casualty a insurance been impossible on counsel who nearly burden places This rule Apart on voir dire. from questions asked have seek to these juror itself, information the sole source voir examination dire juror presently list. As prospective is the available to counsel juror’s resi- on the designed, provides but scant information “clerk,” “secretary” such as Designations occupation. dence and counsel’s concerns. nothing pertinent reveal or “accountant” as, occupation example, for his own juror described Unless “insurance,” no the list would afford indica- adjuster” “claims industry. Nor does with the insurance any connection tion of insurance juror a stockholder of an whether a the list indicate insurance business with the company, or has been associated matter, persuade can practical counsel past. as a Thus their ties to the as to question prospective jurors court has the answers. already if counsel only business insurance little view, examinations become voir dire majority’s Under to use the formality. unable empty an Counsel more than selecting impar- an crucial to discover information procedure N.J.S.A. 2A:78-4. jury. tial See Although prospective juror’s occupation may ordinarily be inquired dire, into on voir majority fails explain how may counsel a juror’s ownership uncover stock in an insurance * * * company. “It is enough not grant rights of peremptory challenge challenge and for cause and then limit the factual for basis their use appearance visible jurors of the scant information on the list jury of their residence and occupation.” Schaik, 775, Kiernan v. 781 (3d Van 347 F.2d Cir. 1965). Apparently majority considers it sufficient that each juror is asked “whether of reason why [he she] know[s] fairly ‘could act impartially judges as [one] of the facts ” in this case.’ at I Ante 328. do not prospective believe that a juror is so alert prejudices to his own that he would reveal his ties to response the insurance business in general to such a question. Cf. United States v. Dellinger, 340, (7th 472 F.2d 1972), Cir. cert. den. 93 S.Ct. U.S. 35 L.Ed.2d 706 (1973). primary today reason that the Court restricts voir is such inquiry questions unduly

dire the belief that stress the coverage, possibly influencing jury’s fact insurance thus findings. unlikely questions See ante at 348. I consider relating unavoidably emphasize to insurance would so the fact coverage jurors as to induce to render excessive verdicts. general prevalence liability insurance for automobile “[T]he hence, injuries jurors;2 known to for law forbid any disclosure of it in the course of the trial seems merely to be Evidence, piece hypocritical futility.” Wigmore, 2 J. 282a § (3d 1940) (footnote added). agree position at 146 I with ed. by of Appeals taken the United States Court of the Third Schaik, supra Van : Circuit Kiernan v. 2Indeed, companies insurance have themselves resorted to media advertis- ing public widespread to remind liability members of the of the incidence Cognizant, doubt, public’s insurance. juries, no service civil insur- relationship ers also call attention an asserted between verdicts and general premium danger judge prejudice levels. There is little that a will informing companies publicly it of what insurance advertise. juror of a is a stockholder or whether a employee prospective

[T]he inquiry investigator a claims or insurance or is insurance company employed casualty ascertaining agent, bias adjuster, is relevant an insurance or is company * * * negligence. claiming damages a relevant matter against Such one with insurance. The word “insurance” because it deals not be shut out may magical evil. Jurors are not as a word of from the courtroom not outlawed large its mention will not is at in the world and open unaware that insurance ** * over The court has wide control unknown realm. them a previously explaining safeguard to the the voir dire and can inquiry by adequately jurors of the examination and thus eliminate any limited scope purpose in the case before it. or relevance of insurance [347 of the existence implication (footnote omitted)] F.2d at 782 time. “When from an earlier perspective dates majority’s The originated doubtless the insurance against disclosure of the rule exceptional was for defendants protection of such existence McCormick,Evidence, ‘hush, be effective.” policy hush’ could however, liability insurance (2d 1972). Today, at 481 ed. 201 § life. “It is time for a commonplace fact of coverage is a * * * insurance This bugaboo. of this insurance reappraisal corporations and prejudice rule, upon theory built against largely pur outlived its has corporations, especially insurance Cornelius, Cal.App.2d 164 Causey v. justification.” its pose and majority by errs (Dist.Ct.App.1958). 330 P.2d jurors biased plaintiffs of danger failing to realize that danger great as companies probably towards insurance by passing corrupted will be to defendants equally likely To avoid this word “insurance.” mention of the open must be struck in favor the balance prejudice, source Evidence, 282a at supra, Wigmore, § interrogation. J. See 146-147. posed are questions the insurance

The method which im- lessening any possible prejudicial go far towards jury can examined when venire could be pact. example, For the entire assembled, is drawn for panel before a they are first Comment, (1938). The Harv.L.Rev. 166 particular case. See questions do jurors that such later caution the trial court could imply defendant is or that the presence insured coverage absence is to be in reaching considered a verdict. Schaik, See Kiernan v. Van at F.2d 782. The most desirable threatening and least problem solution to this would be the inclusion of insurance-related information in prospective juror list. A properly trial court could then refuse voir dire juror’s examination regarding a insurance ties unless that list indicated their existence. summary, plaintiffs

In should be able to any prospec- discover juror’s tive connections with the insurance during business process. selection Only then will counsel adequate have an opportunity interpose challenges cause successfully and peremptory challenges exercise prudence. with informed I would therefore hold that the trial court refusing erred in grant plaintiff’s request to question prospective jurors during voir dire examination.

Chief Justice WILENTZ and join Justice SCHREIBER dissent. J.,

CLIFFORD, dissenting in part. join I judgment the reversing Court’s remanding for a new trial the opinion’s and in treatment of the plaintiff’s infant contributory negligence, liability the of respective the defend- ants, and, caveat, with a minor the voir insurance-related dire questions prospective jurors. It is with regard proprie- ty of an “outcome” I part instruction that company with the majority.

I The Court holds that “ordinarily, jury informed [should be] legal of the of findings effect its to percentages as negligence of ** * comparative in a negligence trial Ante at 327. We are told that such information will better enable a “to function”, ibid., fulfill its fact-finding being without told how or why this is so. I doubt that it is. Comparative Negligence Act, first the

The section of N.J.S.A. 2A:15-5.1, provides negligence personal that in inju- actions plaintiff’s contributory recovery ries fault will not bar if that person “was not the the greater negligence against fault than of Instead, recovery sought.” plaintiff’s damages whom the are by percentage diminished the of fault attributable to him. Act, 2A:15~5.2, It is the of the next section jury’s judge’s respective applying addresses the roles statutory principle. That section reads as follows: negligence which the of is in the In all actions in liability dispute, question following findings as of fact:

trier of fact shall make the damages injured The which would be recoverable by a. amount of party negligence, regardless of the full is, of consideration value injured damages; party’s percentage, negligence. each The form of a of parties’ b. in the extent, [sic] percentage negligence of each shall be based on 100%and the total party percentages negligence of all to a suit be 100%. all shall parties judge judgment finding of from the fact made c. The shall mold the by of fact. trier explicit prohibition no statute contains It is clear that what effect their informing jurors of against the trial court of the case. Never- outcome will the ultimate findings have on sense of clear to me equally theless seems precisely limited now has is that statutory language specific determine, of answers to on the basis function: not extent parties, of fault the extent questions, latter, under subsection damages. The liability for defendant’s here, Where, we judge. the law above, upon the devolves c. by legislature, by the but was courts with created deal legisla- made effort the considerable respect we should separate functions. spell out those ture our the circumstance approach is Supportive of comparative patterned after Act is Negligence Comparative 356

negligence Wisconsin, statute of (West Wis.Stat.Ann. § 895.045 Supp.1978), whose Supreme rejected Court has in- “outcome” E. g., structions. Kobelinski v. Milwaukee & Suburban Trans- port 504, Corp., 56 Wis.2d 202 N.W.2d (1972). 415 A statute taken from ordinarily another state is adopted with prior placed constructions it by highest court of parent jurisdiction; it comes laden with hereditary baggage of court’s decisions. See v. Haney, 844, Woodward 564 P.2d (Wyo.Sup.Ct.1977); Sands, 2A C. Sutherland Statutory Con- (4th 1973). struction 52.02 ed. § New Jersey courts have ad- hered to this principle interpreting the Act now before us in Suter v. Angelo San Foundry Co., & Machine 150, 81 N.J. (1979); Warshany Supermarkets v. Corp., General 161 N.J.Su- (Law per. 1978). is, then, Div. It significant to note Supreme Wisconsin Court’s “fundamental rule” that it is revers- ible error for either court or counsel to inform jury the effect of their comparative answers to the negligence ques- tions on the ultimate result in the case. Kobelinski v. Milwau- kee Transport Co., & Suburban supra, 202 N.W.2d at 425. in a later decision in which

The reason for this rule found Supreme explained Court Wisconsin determining law jury how the and it has no function in finder of fact is the of a in a case found. It is not the function to the facts should be applied negligence determination comparative between on the private parties should it nor manipulate influenced for either party, attempt sympathy negligence desirable to achieve a result that seem socially may apportionment v. jurors. juror group 70 Wis.2d single 189, 198, [McGowan Story, or to a (1975).] 234 N.W.2d (Colo.Sup.Ct.1974). P.2d 295 Avery Wadlington, 526 also See explana- to allow court refused supra, the trial Avery, In of its determination on the effect or comment tion comparative under degrees of fault respective parties’ 357 Plaintiff, who like our own. was found negligence statute much argued appeal that “outcome” instruc- negligent, to be 70% permitted. Supreme Court of and comment should tions contention, emphasizing that the enact- rejected this Colorado good for a fair and result responsibility ment “divides 297, thereby judge”, 526 P.2d at and jury between pure verdict on material facts alone.” “enhances the chance of a statute, Id. language in the Colorado It concluded 2A:15-5.2, precise similar to that found “mandates simply “as jury is the fact-finder such language” that special to it in the verdict form” after questions posed answers at reference to this function. 526 P.2d being instructed with apply the trial court’s role is 297. the other hand On bring findings thereby of fact and statutory jury’s law to the entry judgment. through ultimate result about system, jury’s attempt Under this it is not the function to to control the effect of comparative negligence special the law of findings. Jury in their involvement is greatly simplified pure readily thus only and a verdict is more attainable. The jury law which members need to understand is the law which enables them specific questions special to answer the asked of them in the verdict form. system, unnecessary Under this it is to concern itself with how much plaintiff 1 plaintiff receives anything. or whether the receives [M] revealed, response is not but the 1Whether in to this determination Colora comparative negligence provide legislature sharply altered its statute to do specifically trial court shall instruct the on the effect of its that “the addition, finding degree negligence party.” each In as to the permitted argue attorneys party for each were henceforth “to the effect of the Colo.Rev.Stat, jury.” § the facts are before the X3—21— instruction on which 111(4) (1976 Cum.Supp.). Following revision the trial courts Colorado have, course, instructions, given “outcome” and it has been held reversible Chem, charge Appelgren Agri v. error where such a has not been furnished. Inc., 766, (Colo.Ct.App.1977); Loup-Miller 562 P.2d v. Brauer & Associ Mountain, Inc., ates-Rocky (Colo.Ct.App.1977). 572 P.2d Whatever merit may inhere in the cases going way, other g., e. Seppi Betty, 99 Idaho 579 P.2d (1978); Thomas v. Board of Township Trustees, 529, 224 Kan. 582 P.2d 271 (1978), in and this Court’s today, determination must give way perceived the intention of the legislature. Therefore I would hold that neither instructions nor comments on the outcome should permitted be in comparative a negligence case.

II explain my There the “minor remains caveat” attached to agreement with the treatment majority’s of the insurance-relat- questions jurors. ed The prospective points voir dire Court out, ante 347: at jurors questioning regulated In this the voir dire of State prospective by l:8-3(a). court rule, N.J.S.A. and R. Both the statute and statute, 2A:78-4, by judge the of and in the rule allow to control it is the scope practice inquiry

judge questioning. 54 who does the See State v. N.J. 282-283 Manley, (1989). practice judge questioning prospective It is with the of the jurors attorneys with the exclusively participating almost and only disagree. rarest of that I on the occasions statute, 2A:78-4, speaks

To the that the extent all, question suggests attorneys permitted will be at This, jurors. expected, might to address the be is within by provides, limits set the trial The perti- court. enactment in part: nent changes Wyoming drastic of experienced both Minnesota and Similarly, of its consequences be informed of whether could

position its court rules of civil of amendment verdicts, way the former by special (Compare following change. McCourtie v. United a statutory procedure Krengel (Minn.Sup.Ct.1958) with 552, 562-63 93 N.W.2d Corp., States Steel (Minn.Sup.Ct. 841, 848 Inc., N.W.2d Photo, Automatic Midwest legislative action, Woodward v. 1973)); see the latter reason and (Wyo.Sup.Ct.1977). As to a similar development P.2d Haney, (1976), Washburn L. J. 606 J. 114 and 18 16 Washburn L. Kansas, in see (1979). all trial of civil within the cause, criminal, parties or may, any Upon juror, his summoned as after name court, any person discretion question juror, as a before he is sworn and without is drawn from box and challenge, to elicit information for the of determin- purpose interposition disclosing ing challenge, or not to whether interpose peremptory * * * challenge. be Such shall whether or not there is cause questions juror disclosing or for the whether not the qualified, permitted purpose questioning interest in the result of the action. The shall and without impartial judge in and control of the under the trial open conducted supervision court. Court, however, Rule of unmistakably Our makes it clear that attorney severely role of selection is to be l:8-3(a), governing jurors, restricted. R. examination of reads . part as follows: challenge determining For the whether a should be purpose interposed, interrogate jurors in the court shall box after prospective required placing drawn oath. number are without them under their parties interrogation in the court’s its discretion. attorneys may supplement Pressler, Rules, Comment in Current N.J. Court explained As 1:8-3, Rule in 1969 practice adoption R. since the has requests attorneys’ trial to consider the been for the court attitudes, particular questions posed or that specific certain Manley, opinions potential proved. biases be While State or (1969), entirely supplementary does foreclose N.J. its completed court has interro- questioning by counsel after the “discretionary case gation, nevertheless that cautions l:8-3(a) with the exercise portion” of R. must be administered practice at 282. In actual restraint.” N.J. “considerable prohibition of to an total direct this restraint amounts almost It is jurors responses. and direct with questioning counsel disagree. prohibition that I the trial bar no discern in out that I Initially point I must my practice, among nor present over the of resentment reservoir the rule scrapping of enthusiasm any groundswell colleagues may, prior attorneys as whereby system a in favor of their of prospective jurors always, conduct own examination — course, firm under the control trial court. Since Rule genera- into more a ago, went effect than a decade whole new lawyers of trial appeared tion has the scene. In all likelihood of,trial appointed majority judges have been since the practitioners probably effective date of rule. Active have pressing problems occupy more their time than mounting persuasive campaign through petition and well-documented committee, the appropriate Supreme looking Court to a Rule, they revision in the even happen if do to favor one. In short, directly those bemay most concerned of the view that things are going along just swimmingly present under the system. practice put present While is not in issue in the case, and there apparent while is no sentiment either within or favoring change, without Court I nevertheless take this opportunity briefly my why view present practice to state wrong. against strikes me as In struggling thus I tide make effort empirical no to marshal either the data supporting (assuming any) authorities are required there for a successful attack, today’s being frontal exercise more in the nature of an incidental reflection. my

In sum view is party deprived important that a of an right when attorney his is foreclosed practical effect from conducting significant dialogue and relevant with prospective juror. I do not for a suggest proper dialogue moment permit declarations, would attorney sweeping to make mas- querading questions, “trying such as amount to the case” on dire. nip voir The trial court can and thing should this sort of very the bud. But purpose is, the voir dire examination us, as the statute tells “to elicit purpose information for the determining interpose whether or not to peremptory challenge, disclosing and whether or there is cause challenge.” right N.J.S.A. 2A:78-4. The elicit by “ques- that information tionpng] any person juror” given summoned as a to “all parties.” right severely Id. impermissibly, That I restricted — suggest by plate” what too often amounts to “boiler interroga- — court, jurors through the trial prospective only tion of with supplementation. sparingly-granted juror gives question very One of a often rise to further inquiry, known based on details of the case to trial counsel but jury stage. not available to the court at the selection It seems significant plain silly suggest to me either that time is saved requisite prospective juror or that the flow of information from judge monopolizes to counsel is aided when the trial the interro- (with gation process weigh and in the course thereof has to one eye fir,mly fixed on this Court’s stern admonition of “considera- restraint”) pose any questions suggest- ble whether to additional by lawyers. ed

Furthermore, party is entitled to the visceral reaction of the juror, attorney prospective especially trial to the attorney’s him, appraisal of the venireman’s visceral reaction to may to the extent that it This is identify divined. difficult to articulate, tendency exaggerate and the in some bar; degree considerable is no doubt endemic to the trial but it valuable, real, is nonetheless it is and it should be taken into account. supervised by the forcefully

With selection trial bench appellate supporting and buttressed unmistakable decisions supervision, such I would think the ills said to have been pre-Rule system, Manley, supra, see encountered under 276, 281, without depriving N.J. at could be accommodated present which the parties right practice of the basic dimin- —one True, unacceptable degree. anyone ishes to an with even a nodding acquaintance judicial recognizes, with administration problems approaches myriad innovative to a vexatious beset- ting required judicial machinery the courts are lest become clogged applause so as to unworkable. The for the become imaginative steps Jersey’s progress that mark New in the di- justice rection of more efficient administration of is well de- present practice served. But if in fact our facilitates the process proposition questionable— selection is at least —a being then I count the cost of what is sacrificed on the altar of expediency great. as too joins opinion.

Justice in Part I of SCHREIBER For reversal and remandment —Chief Justice WILENTZ and SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER, Justices HANDLER and POLLOCK —7.

Opposed —None. IN THE

STATE OF NEW JERSEY INTEREST OF B.C.L. Argued 1979—Decided March 1980. November

Case Details

Case Name: Roman v. Mitchell

Court Name: Supreme Court of New Jersey

Date Published: Mar 13, 1980

Citation: 413 A.2d 322

Court Abbreviation: N.J.