SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of
the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity,
portions of any opinion may not have been summarized).
Saul Wanetick v. Gateway Mitsubishi, et als. (A-106-98)
Argued January 3, 2000 -- Decided May 10, 2000
VERNIERO, J., writing for a majority of the Court.
The issue in this consumer fraud action is whether the trial court should have given the jury the “ultimate outcome
charge.”
On August 11, 1994, Saul Wanetick and his wife went to Gateway Mitsubishi in response to a newspaper
advertisement concerning the 1994 Mitsubishi Galant ES. After test driving a Galant, the Waneticks and a salesman entered
into negotiations for its purchase. When they were not able to reach an agreement, the Waneticks began to leave the
dealership. According to Mr. Wanetick, at that point, the salesman “went after them” and told them he could give him a
better deal if Wanetick were willing to “pay it out,” which would purportedly allow Wanetick to pay a certain amount of the
purchase price each month until the outstanding debt was paid off.
After more time at the dealership, Mr. Wanetick signed several documents. He was seventy-three years old at the
time of this transaction. According to Wanetick, one of the documents he signed was folded over so that only the signature
line was visible. After he took delivery of the car, he realized that that document was a lease and not a contract for sale.
When he telephoned the salesman to complain, he was told that he could keep the lease or sign a new contract to purchase
the vehicle for a sum substantially higher than the amount he was quoted for outright purchase early in the negotiations.
Several days later, disgusted by the whole transaction, and not wanting to be saddled with lease, Wanetick signed a new
contract for the higher price. Within one week, he paid off the entire balance.
Gateway Mitsubishi recounted a different version of the events, maintaining that the salesman had fully discussed
the lease arrangement with Wanetick and that Wanetick had simply changed his mind about the arrangement several days
later. Gateway maintained that when Wanetick changed his mind, he was offered the option of switching the lease to a
contract for purchase.
In December 1994, Wanetick filed a complaint against Gateway and others, alleging common-law fraud, breach of
contract, negligence, and violations of the Consumer Fraud Act (“the Act”), the Uniform Commercial Code, and the
Magnuson-Moss Warranty Act. He later amended his complaint to add claims for intentional and negligent infliction of
emotional distress.
At trial, the trial court dismissed all of Wanetick's claims, except those relating to the Act, breach of contract, and
common-law fraud. At the charge conference on the last day of trial, the court had to decide whether to instruct the jury on
the ultimate outcome of any verdict. In the context of a consumer fraud action, the ultimate outcome charge would have
told the jury that, under the Act, the trial court was required to treble the damages awarded by the jury and further to award
counsel fees in the event the jury returned a verdict in favor of Wanetick. Recognizing that there was a split of authority on
the issue, the court decided not to give the charge, concluding that it might be “unduly prejudicial” and that it might cause
the jury to discount its findings it might make as to damages. The trial court, however, did charge the jury on the issue of
punitive damages in connection with Wanetick's common-law fraud claim only. The court instructed the jury that the law
did not provide for punitive damages on the breach of contract of the consumer fraud action.
The jury found Gateway and the others liable for breach of contract and for violations of the Act, but found no
liability under common-law fraud. The jury awarded compensatory damages in the amount of $7,300, which the trial court
trebled as required. The court further entered an award for counsel fees and costs, totaling $23,638.59. Thus, Wanetick's
final award amounted to $45, 538.59.
Gateway appealed, contending that the jury should have been given the ultimate outcome charge. The Appellate
Division held that it was error for the trial court to refuse to give that charge and also that the trial court erred in its
instruction regarding punitive damages. The Appellate Division set aside the jury's verdict and remanded the matter for a
new trial.
The Supreme Court granted Wanetick's petition for certification.
HELD: Trial courts must instruct jurors concerning the ultimate outcome of their verdicts in cases arising under the
Consumer Fraud Act.
1. The purposes of the Consumer Fraud Act are to compensate victims for actual losses; to punish the wrongdoer through
the award of treble damages; and by way of the counsel fee provision, to attract competent counsel to counteract the
community scourge of fraud by providing an incentive for an attorney to take a case involving minor actual losses to the
wronged individual. (pp. 6-7)
2. Although the Court has never addressed the ultimate outcome issue in the context of a consumer fraud action, it has
required the charge in other contexts, such as in comparative negligence cases where the statute then in effect would have
precluded a plaintiff who was more than fifty percent responsible for the subject accident from recovery, and in a medical
malpractice case in which the trial court would be required to mold the jury's verdict to limit a physician's liability to the
value of the plaintiff's lost chance for recovery. In both of those cases, the ultimate outcome charge would have avoided the
jury's independent reduction of its award of full damages to reflect its assessment of the appropriate apportionment of fault.
(pp. 7-11)
3. The Court has refused to require an ultimate-outcome instruction in a case involving statutory limitations on a hospital's
liability under the Charitable Immunity Act because of concern that the instruction might cause prejudice to other
defendants by possibly causing the jury to shift to the other defendants some percentage of negligence that the jury thought
should rightfully be assessed against the hospital. (pp. 11-13)
4. Informing jurors about the trebling of damages and the awarding of counsel fees will assist the jury in its fact-finding role
and will avoid confusion, especially among those jurors who already may have some notion concerning the mandates of the
Consumer Fraud Act. (p. 13-14)
5. In complex cases involving multiple questions and many parties, the trial court retains its discretion to withhold the
ultimate outcome instruction if it would tend to confuse or mislead the jury or produce a manifestly unjust result. (p. 14-15)
6. The Act's provisions in respect of the trebling of damages and awarding of counsel fees are integral and essential to the
Act itself. Thus, a jury should know that its purely compensatory award will trigger an automatic punitive remedy. (pp. 15-
16)
7. Rather than increase the likelihood of unfairness to any party, an ultimate-outcome charge enhances the prospect that
jurors will arrive at the correct verdict for the right reasons. (p. 16)
8. Although it was incorrect for the trial court to inform the jury that punitive damages were not available in this case, the
jury's modest award does not appear to be the product of confusion and did not result in an unjust outcome. Thus, that
portion of the Appellate Division's judgment that remanded the matter for re-retrial is reversed. (pp. 16-17)
9. Trial courts must instruct jurors concerning the ultimate outcome of their verdicts in cases arising under the Consumer
Fraud Act and tried after the date of the Court's opinion. (pp. 17-18)
Judgment of the Appellate Division is AFFIRMED in part and REVERSED in part, and the trial court's judgment
in favor of the plaintiff is REINSTATED.
JUSTICE COLEMAN filed a separate opinion, concurring in part and dissenting in part. Justice Coleman
concurs in the Court's judgment reinstating the trial court's award to Wanetick of compensatory and treble damages,
counsel fees, and costs. He dissents, however, from the Court's holding that an ultimate outcome instruction should be
given in a Consumer Fraud Act case. Rather, Justice Coleman believes that telling the jury that the court will treble the
damages is simply a subtle way of informing the jury to keep its damages award to a minimum because the court will treble
them, thus defeating one of the purposes of the Act.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, and STEIN, join in JUSTICE VERNIERO's
opinion. JUSTICE COLEMAN filed a separate opinion, concurring in part and dissenting in part. JUSTICE
LONG did not participate.
SUPREME COURT OF NEW JERSEY
A-
106 September Term 1998
SAUL WANETICK,
Plaintiff-Appellant,
v.
GATEWAY MITSUBISHI, OCT
PARTNERSHIP T/A GATEWAY
MITSUBISHI, GLENN SWENSON and
LARRY EVANS,
Defendants-Respondents,
and
EMCO'S NEW GATEWAY TOYOTA and
JOHN DOE individuals and
corporations,
Defendants.
Argued January 3, 2000 -- Decided May 10, 2000
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
318 N.J. Super. 156 (1999).
Ronald L. Lueddeke argued the cause for
appellant.
Kevin M. McKeon argued the cause for
respondents (Marshall, Dennehey, Warner,
Coleman & Goggin, attorneys).
The opinion of the Court was delivered by
VERNIERO, J.
In this consumer fraud action, the jury awarded plaintiff
compensatory damages, which the trial court thereafter trebled
pursuant to N.J.S.A. 56:8-1 to -91 (Consumer Fraud Act or Act).
The court also awarded counsel fees. The question to be decided
on appeal is whether the trial court erred by not giving the jury
an “ultimate outcome charge.” That charge would have informed
jurors that under the Act the court was required to treble
damages and award counsel fees in the event they returned a
verdict in plaintiff's favor.
Within the context of a consumer fraud action, the question
is one of first impression. The Appellate Division concluded
that the trial court committed error by not giving the charge and
by incorrectly instructing jurors on the issue of punitive
damages. The panel remanded the matter for a new trial.
Wanetick v. OCT Partnership,
318 N.J. Super. 156 (App. Div.
1999). We agree that the trial court erred but conclude that the
error was harmless. Thus, we affirm in part, reverse in part,
and reinstate the judgment in favor of plaintiff.
I.
The pertinent facts and procedural history may be summarized
briefly. According to plaintiff, he and his wife went to
defendant's dealership on August 11, 1994 in response to a
newspaper advertisement concerning the 1994 Mitsubishi Galant ES.
A salesperson showed plaintiff the advertised model and allowed
plaintiff's wife to test drive it. The parties then discussed
the vehicle's price. According to plaintiff, the salesperson
said he could go as low as $15,000 but plaintiff did not agree to
the transaction. The Waneticks began to leave the dealership
when, according to plaintiff, the salesperson “went after them”
and told them he could “give [them] a good deal if [they] pay it
out,” an arrangement that purportedly would allow the customer to
pay a certain amount of the purchase price each month until he
paid off the outstanding debt. The salesperson allegedly
indicated to plaintiff that if he would “[go] that way, it would
only be $13,000.”
After approximately two and one-half hours at the
dealership, plaintiff executed several documents. He was
seventy-three years old at the time of the transaction.
Plaintiff claimed that one of the documents he signed was folded
over so that only the signature line was visible. He testified
that it was sometime later, after he took delivery of the car,
that he realized the document he had signed was a lease, not a
contract for sale. Plaintiff testified that, after protesting by
telephone to the salesperson, he was told that he could keep the
lease or sign a new contract to purchase the vehicle for $23,000.
Plaintiff further testified that he did not want to execute a new
contract but he “just signed it” because he was so “disgusted” by
what had transpired and he did not want to be saddled with a
lease. He executed the new contract on August 19th, eight days
after the original transaction. The total purchase price under
the new agreement was $23,164. Within one week, plaintiff paid
off the entire amount due because, as he stated, he wanted to
save interest and felt he was “paying so much money for this
car.”
Defendants recounted a different version of the transaction.
The salesperson clearly recalled discussing a lease with
plaintiff and stated that he “told [him] how it would be a low
monthly payment for three years . . . and everything that needs
to be explained about leasing.” The salesperson further
testified that the day after plaintiff took delivery of the
vehicle, plaintiff “called and said he didn't want to lease the
car no more.” The salesperson then communicated that call to his
manager who purportedly said that plaintiff could “switch from a
lease to a finance, no problem, [tell him to] come back.”
Plaintiff filed a complaint against defendants on December
22, 1994, alleging common-law fraud, breach of contract,
negligence, and violations of the Consumer Fraud Act, the Uniform
Commercial Code, N.J.S.A. 12A:2-101 to -725, and the Magnuson-
Moss Warranty Act,
15 U.S.C.A.
§§2301 to 2312. Plaintiff
thereafter filed an amended complaint adding claims for
intentional and negligent infliction of emotional distress.
Defendants filed an answer to both complaints, essentially
denying all allegations. The trial commenced on September 22,
1997, and lasted one week. After plaintiff submitted his case in
chief, the trial court dismissed all claims except those relating
to the Consumer Fraud Act, breach of contract, and common-law
fraud. At the charge conference on the last day of trial, the
trial court had to decide whether to instruct the jury on the
ultimate outcome of any verdict. The court recognized that there
was a split of authority concerning that question and decided not
to give the charge, believing that it “might be unduly
prejudicial and that [it] might have the effect of causing the
jury to discount any findings they might make as to that.” The
trial court did, however, charge the jury on the issue of
punitive damages. The court instructed that “[p]unitive damages
are awarded in connection with the plaintiff's fraud claim only.
The law does not provide for punitive damages on the breach of
contract or consumer fraud action.”
The jury found defendants liable for breach of contract and
for violations of the Act, but found no liability under common-
law fraud. The jury awarded compensatory damages in the amount
of $7,300. The court thereafter trebled that amount as required
by the Act and also awarded attorneys fees and costs totaling
$23,638.59. Thus, plaintiff's final award amounted to
$45,538.59.
Defendants appealed. In addition to the ultimate-outcome
question, the Appellate Division addressed two other issues,
namely, whether there was sufficient evidence for the jury to
decide the common-law fraud claim, and whether the trial court
committed reversible error in admitting certain evidence. The
court found for plaintiff on both issues. Wanetick, supra, 318
N.J. Super. at 159. In respect of the ultimate-outcome issue,
the Appellate Division held that it was error for the trial court
to refuse to give that charge and also that the trial court erred
in its instruction regarding punitive damages. The panel set
aside the jury's verdict and remanded the matter for a new trial.
We granted plaintiff's petition for certification,
160 N.J. 479
(1999), which is limited solely to the ultimate-outcome question.
II.
The Consumer Fraud Act provides that “[i]n any action . . .
the court shall, in addition to any other appropriate legal or
equitable relief, award threefold the damages sustained by any
person in interest.” N.J.S.A. 56:8-19. The statute also
provides that “the court shall also award reasonable attorneys'
fees, filing fees and reasonable costs of suit.” Ibid. As we
recently explained, two of the three main purposes of the Act are
“to punish the wrongdoer through the award of treble damages,
and, by way of the counsel fee provision, to attract competent
counsel to counteract the community scourge of fraud by providing
an incentive for an attorney to take a case involving a minor
loss to the individual.” Lettenmaier v. Lube Connection, Inc.,
162 N.J. 134, 139 (1999) (citations omitted). The third purpose
is to compensate victims for actual losses. Ibid.
The provisions pertaining to the trebling of damages and
awarding of counsel fees are integral and essential to the Act.
Cox v. Sears, Roebuck & Co.,
138 N.J. 2, 24 (1994) (explaining
that “the legislative history indicates that the provision for
attorneys' fees was intended to impose on the defendant in a
private action 'a greater financial penalty [than in an action
brought by the Attorney General] and . . . [to ensure] that the
financial cost to the private plaintiff was minimized and
compensation maximized'”); see also Gennari v. Weichert Co.
Realtors,
148 N.J. 582, 604 (1997) (describing history of Act and
observing that “the Act has protected consumers from deception
and fraud, even when committed in good faith”).
The courts below correctly observed that there is a split of
authority concerning whether juries should be instructed on the
ultimate outcome of their verdicts in the consumer-fraud context.
As noted by the Appellate Division, Wanetick, supra, 318 N.J.
Super., at 160-61, the Committee comments to the Model Jury
Charge, Civil § 4.23, contain this succinct summary of the
divergence of opinions:
As set up, the model charge does not
indicate to the jury that damages they may
award under the Act are trebled. N.J.S.A.
56:8-19 directs the court to award treble
damages.
There are two points of view concerning
this approach. The Committee is unaware of
any court decision in this State directly on
point, and therefore, one can only reason by
analogy.
The first viewpoint is based on a line
of federal cases. These include Webster
Motor Car Co. v. Packard Motor Car Co.,
135 F. Supp. 4, 11 (D.D.C. 1955)[, rev'd on other
grounds,
243 F.2d 418 (D.C. Cir.), cert.
denied,
335 U.S. 822,
78 S. Ct. 29,
2 L. Ed.2d 38 (1957)]; Semke v. Enid Automobile
Dealers Assn.,
456 F.2d 1361, 1370 (10th Cir.
1972); and Pollock & Riley, Inc. v. Pearl
Brewing Co.,
498 F.2d 1240, 1242 (5th Cir.
1974). Generally, the rationale against
advising the jury about the trebled damages
concept is, one, that the implementation of a
trebling of damages is a function for the
court, not the jury, and therefore no useful
purpose is served by communicating that
consequence to the jury; and two, the jury
might adjust its award downward and,
accordingly thwart the purposes underlying
the statute.
The second viewpoint reasons from an
analogy to the “ultimate outcome charge”
directed in Roman v. Mitchell,
82 N.J. 336,
413 A.2d 322 (1980). If the ultimate outcome
is to be stated to a jury in a personal
injury action, why should juries be treated
differently in Consumer Fraud Act cases.
Moreover, can it not be said that, by not
advising of trebled damage[s], the jury may
be confused since some of the jurors may be
aware of the remedy. See also Bordonaro
Bros. Theaters, Inc. v. Paramount Pictures,
Inc.,
203 F.2d 676 (2d Cir. 1953), in which
it was observed that since the pleading
contained a demand for treble damage[s], it
was proper to so advise the jury.
The Committee merely notes that there is
no New Jersey case law on point and the
Committee takes no position on the question.
Although this Court has never addressed the ultimate-outcome
issue within the context of a consumer fraud action, we have
addressed it in other settings. The leading case is Roman v.
Mitchell,
82 N.J. 336 (1980). There, a jury found the twelve-
year-old plaintiff seventy-five percent at fault in a negligence
action commenced after the plaintiff was struck by the wheel of a
dump truck while riding his bicycle on the New Jersey Turnpike.
The jury was not instructed that under the comparative-negligence
statute then in existence, N.J.S.A. 2A:15-5.1 to -5.3, the legal
effect of their verdict would be to preclude plaintiff's recovery
because he was more than fifty percent at fault.
This Court agreed with the plaintiff in Roman that the
ultimate outcome charge should have been given. As we explained,
“a jury in a comparative negligence situation should be given an
ultimate-outcome charge so that its deliberations on percentages
of negligence will not be had in a vacuum, or possibly based on a
mistaken notion of how the statute operates.” Roman, supra, 82
N.J. at 345. We also emphasized that “a jury informed of the
legal effect of its findings as to percentages of negligence in a
comparative negligence trial is better able to fulfill its fact
finding function.” Id. at 346. Our holding contained an
important exception, namely, that “in a complex case involving
multiple issues and numerous parties, the trial court, in the
exercise of sound discretion, could withhold the instruction if
it would tend to mislead or confuse the jury.” Id. at 346-47.
We again addressed the question in the context of a medical
malpractice action, Fischer v. Canario,
143 N.J. 235 (1996). In
that case, the jury was not informed that its verdict would be
apportioned in keeping with the rule announced in Scafidi v.
Seiler,
119 N.J. 93, 114 (1990)(requiring trial courts to mold
certain medical-malpractice verdicts to limit a defendant's
liability to value of lost chance for plaintiff's recovery
attributable to defendant's negligence). Relying on the
rationale expressed in Roman, we concluded that jurors must be
told of the Scafidi damage-apportionment rule, explaining:
The value of an ultimate outcome charge in
lost-chance cases is that it informs the
jurors of the effect of their causation
apportionment. The charge makes clear to
jurors that they are to award full damages,
and the trial court will make any necessary
adjustments in light of their findings.
Without the charge, there is the risk that
the jurors will reduce their damage award in
light of the apportionment of fault they find
as part of their verdict. Then, once the
trial court makes the same reduction, the
plaintiff would receive an inadequate
recovery. When a Scafidi damage-
apportionment rule is applicable, an
ultimate-outcome charge generally should be
given.
[Fischer, supra, 143 N.J. at 254.]
We reached the opposite conclusion and declined to require
an ultimate-outcome instruction in Weiss v. Goldfarb,
154 N.J. 468 (1998), a case involving the statutory limitations on a
hospital's liability under the Charitable Immunity Act, N.J.S.A.
2A:53A-8. In Weiss, the jury determined that the negligence of
the defendant hospital was the proximate cause of the plaintiff's
death and returned a verdict against the hospital in the amount
of $150,000. The jury also returned a verdict of no cause of
action in favor of the three other defendants in the case, all
physicians. Id. at 471. At the time of the jury's verdict, the
Charitable Immunity Act provided that the liability of non-profit
hospitals such as the defendant could not exceed $10,000. Ibid.
Accordingly, the trial court molded the verdict and entered
judgment for that amount. Ibid.
The Appellate Division reversed, concluding that the
plaintiff was entitled to an ultimate-outcome instruction
informing the jury of the hospital's limited liability. This
Court thereafter reversed the Appellate Division because of
concern over possible prejudice to the individual defendants
whose liability was not so limited. We stated: “We are convinced
that the prejudicial effect of such an instruction could be to
shift to other defendants some percentage of negligence that the
jury thought should rightfully be assessed against the hospital.”
Id. at 481. We distinguished the case from Roman and Fischer,
explaining:
We find persuasive the hospital's argument
that informing a jury about a hospital's
limited liability is akin to telling a jury
whether a defendant is insured and the amount
of coverage and is at least as prejudicial as
telling it about insurance coverage. Such a
prejudicial effect would be the antithesis of
what Roman and Fischer anticipated.
Informing a jury of the liability cap also
violates the legislative policy expressed in
the Charitable Immunity Act of protecting non
profit hospitals and the Legislature's desire
to withhold from juries the existence of
statutory limits on monetary awards.
[Id. at 481-82.]
Our holding in Weiss was based on the overarching concern for
fairness to all parties in litigation. That concern is
heightened when a defendant who enjoys statutory immunity is
tried in the same action with defendants whose liabilities are
not similarly capped.
III.
An ultimate-outcome charge in a consumer fraud case does not
present the risk of prejudice to multiple defendants that was
evident in Weiss. “The punitive damages element of the Consumer
Fraud Act has nothing to do with whether there is a pocket out of
which a judgment may be satisfied.” Wanetick, supra, 318 N.J.
Super. at 165. Thus, informing jurors about the trebling of
damages and the awarding of counsel fees should not result in the
impermissible shifting of liability from one defendant to
another, the principal concern identified in Weiss. Instead, we
believe that such information will assist the jury in its fact-
finding role and will avoid confusion especially among those
jurors who may already have some notion concerning the mandates
of the Act.
Like those in a comparative-negligence context, jurors
sitting in a consumer-fraud case should be informed of the legal
effect of their actions so that their deliberations “will not be
had in a vacuum, or possibly based on a mistaken notion of how
the statute operates.” Roman, supra, 82 N.J. at 345. Even the
well-versed and well-intended juror may be mistaken in his or her
assumption about specific provisions of the law. Also, a small
percentage of jurors may know or suspect that consumer-fraud
actions implicate a damage-enhancement mechanism. Instructing
jurors concerning the ultimate outcome of their verdicts will
serve as an additional tool to assist them as they intelligently
perform their duties.
We acknowledge the concern expressed by the trial court and
the dissent that an ultimate-outcome instruction might prejudice
the thinking of some jurors or focus their attention on matters
not strictly within their province. That concern is outweighed
by our belief that jurors are persons of good faith, that they
strive to fulfill their role without passion or prejudice toward
either side, and that they work hard to abide by all instructions
to the best of their ability. We simply see no compelling policy
reason to justify shielding jurors from the consequences of their
own actions in the jury box. To the contrary, “[w]e have always
emphasized that juries must understand the import of their
findings.” Campo v. Tama,
133 N.J. 123, 140 (1993) (O'Hern, J.,
dissenting).
That is not to say that an ultimate-outcome charge must be
given in all cases. We reaffirm the important caveat expressed
in Roman, namely, that in complex cases involving multiple
questions and many parties, the trial court retains its
discretion to withhold the instruction if it would tend to
confuse or mislead the jury or produce a manifestly unjust
result. Roman, supra, 82 N.J. at 346-47. The present suit
consisted of straightforward issues and a small number of
defendants. It was a relatively uncomplicated case, warranting
the instruction.
Moreover, as previously noted, the Act's provisions in
respect of the trebling of damages and awarding of counsel fees
are integral and essential to the Act itself. We agree with the
Appellate Division that those provisions are punitive in nature
and reflect the Legislature's “sense of outrage over marketplace
fraud [that] is potentially present in every case in which a
Consumer Fraud Act violation is alleged.” Wanetick, supra, 318
N.J. Super. at 165; see also Daaleman v. Elizabethtown Gas Co.,
77 N.J. 267, 272 (1978) (observing that Act's provisions
providing for trebling of damages and awarding of counsel fees
constitute “a punitive measure”). As the Appellate Division
observed:
Thus, jurors, like the Legislature, may well
believe that something more than making the
consumer whole is warranted. It is important
therefore for the jury to know that its
purely compensatory award will trigger an
automatic punitive remedy. This will insure
that the jury's sense of outrage will not be
reflected either in its assessment of
compensation or in some other aspect of the
case. Indeed, it has no relationship to the
fear expressed in Weiss that revealing the
hospital's liability cap would shift to other
defendants some percentage of negligence that
the jury thought should rightfully be
assessed against the hospital.
A Consumer Fraud Act case is the other
side of the coin. Telling the jury that,
upon its finding that the Consumer Fraud Act
was violated, the judge will automatically
award punitive damages by trebling the
verdict and granting counsel fees provides
absolutely no incentive to allocate
responsibility to any party except the one
the jury believes to be at fault. Indeed,
letting the jury know that punitive damages
will be imposed upon its finding of a
violation of the Consumer Fraud Act, operates
to prevent a jury from inflating the
compensatory award or awarding punitive
damages on another count to make its outrage
known. We think the punitive aspect of the
consumer Fraud Act is necessary information
for the jury to have in executing its
function.
[Wanetick, supra, 318 N.J. Super. at 165-66]
Hence, rather than increase the likelihood of unfairness to any
party, an ultimate-outcome charge enhances the prospect that
jurors will arrive at the correct verdict for the right reasons.
That said, we are not persuaded that the failure by the
trial court here to instruct the jury on ultimate outcome
unfairly prejudiced the parties or produced an unjust result.
The jury awarded plaintiff $7,300 -- a relatively modest sum,
which does not appear to be the product of confusion or
extraneous influences such as a misconception of the law.
Similarly, although we agree with the Appellate Division
that it was incorrect for the trial court to inform the jury that
punitive damages were not available in this case, we do not
believe that the delivery of that charge constituted reversible
error. We do not find on this record that the jury was confused
by the erroneous instruction or that the error resulted in an
unjust outcome. Thus, the jury's verdict should not be disturbed
on appeal. Sons of Thunder, Inc. v. Borden, Inc.,
148 N.J. 396
(1997); see also Fisch v. Bellshot,
135 N.J. 374, 392 (1994)
(noting that “[c]ourts uphold even erroneous jury instructions
when those instructions are incapable of producing an unjust
result or prejudicing substantial rights”).
IV.
For the reasons stated, we hold that trial courts must
instruct jurors concerning the ultimate outcome of their verdicts
in cases arising under the Consumer Fraud Act and tried after the
date of this opinion. Although we are in accord with that
portion of the Appellate Division's opinion requiring that an
ultimate-outcome charge be given in such cases, we reverse its
judgment remanding the case for re-trial. The Law Division's
judgment in favor of plaintiff is reinstated.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, and
STEIN join in JUSTICE VERNIERO's opinion.
SUPREME COURT OF NEW JERSEY
A-
106 September Term 1998
SAUL WANETICK,
Plaintiff-Appellant,
v.
GATEWAY MITSUBISHI, OCT
PARTNERSHIP T/A GATEWAY
MITSUBISHI, GLENN SWENSON and
LARRY EVANS,
Defendants-Respondents,
and
EMCO'S NEW GATEWAY TOYOTA and
JOHN DOE individuals and
corporations,
Defendants.
COLEMAN, J., concurring in part and dissenting in part.
I concur in that portion of the judgment of the Court
reinstating the trial court's award to plaintiff of compensatory
and treble damages, counsel fees, and costs. I disagree,
however, with the Court's holding that an ultimate outcome
instruction should be given in a Consumer Fraud Act case.
The Consumer Fraud Act, N.J.S.A. 56:8-19, directs the court,
not the jury, to award treble damages. Thus, by statute, the
implementation of trebling the damages is the court's function.
Had the Legislature intended to have the jury award treble
damages, it would have said so. Telling the jury that the court
will treble the damages is simply a subtle way of informing the
jury to keep its damages award to a minimum because the court
will treble them. A downward adjustment by the jury would defeat
one of the purposes of the Act: “to punish the wrongdoer through
the award of treble damages.” Lettenmaier, supra, 162 N.J. at
139 (citation omitted).
The factors driving the ultimate outcome charge directed by
Roman in modified comparative negligence cases are not analogous
to this case. There, the purpose of the charge was to inform the
jury that an intent to reduce a plaintiff's damages by the
percentage of the plaintiff's own negligence may not have that
legal effect because a plaintiff more than fifty percent
negligent could not recover any damages. The fact that New
Jersey has a modified, rather than a pure, comparative negligence
statute, N.J.S.A. 2A:15-5.1, drove the ultimate outcome
instruction in Roman. Weiss, supra, 154 N.J. at 476-77.
Similarly, in a Scafidi-type case, an ultimate outcome
instruction is given to inform a jury of the legal effect of the
apportionment of the harm caused by a defendant's negligent
medical treatment and the harm caused by the patient's
preexisting medical condition. Id. at 478 (citation omitted).
An alleged violation of the Act is more akin to federal
antitrust cases that hold an ultimate outcome charge should not
be given to the jury. Pollock & Riley, Inc. v. Pearl Brewing
Co.,
498 F.2d 1240, 1242 (5th Cir. 1974), cert. denied,
420 U.S. 992,
95 S. Ct. 1427,
43 L. Ed.2d 673 (1975); Semke v. Enid Auto.
Dealers Ass'n,
456 F.2d 1361, 1370 (10th Cir. 1972); Webster
Motor Car Co. v. Packard Motor Car Co.,
135 F. Supp. 4, 11
(D.D.C. 1955), rev'd on other grounds,
243 F.2d 418 (D.C. Cir.
1957), cert. denied,
355 U.S. 822,
78 S. Ct. 29,
2 L. Ed.2d 38
(1957). “There [is] no reason for informing the jury that
whatever damages they would award would be trebled, because this
is a matter solely for the court.” Webster, supra, 135 F. Supp.
at 11.
In a consumer fraud case, where comparative fault or
apportionment of liability is not an issue, the role of the jury
is to determine what compensatory economic damages flow from a
violation of the Act. The jury is not asked to decide treble
damages or to make a comparative assessment of fault or damages.
The Model Jury Charge properly limits the role of the jury to
determining the actual economic damages proximately caused by the
defendant's violation of the Act. Damages under the Act do not
include non-economic loss. Gennari v. Weichart Co. Realtors,
148 N.J. 582, 613 (1997). Thus, knowledge that the judge will treble
the economic damages is not only irrelevant to the jury's
performance of its function, but such knowledge likely will be
prejudicial to the plaintiff while at the same time thwarting the
legislative intent of requiring exemplary damages. Because the
Act separates the role of the jury from that of the judge, and
because the jury is not called upon to make a comparison of fault
or damages, I disagree with the majority's faulty reasoning that
because “the trebling of damages and awarding of counsel fees are
integral and essential to the Act itself,” an ultimate outcome
instruction is required. Supra, at (slip op. at 15). Hence,
I dissent from the Court's requirement that an ultimate outcome
instruction be given in cases tried under the Act.
SUPREME COURT OF NEW JERSEY
NO. A-106 SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Superior Court, Appellate Division
SAUL WANETICK,
Plaintiff-Appellant,
v.
GATEWAY MITSUBISHI, OCT
PARTNERSHIP T/A GATEWAY
MITSUBISHI, GLENN SWENSON and
LARRY EVANS,
Defendants-Respondents,
and
EMCO'S NEW GATEWAY TOYOTA and
JOHN DOE individuals and
corporations,
Defendants.
DECIDED May 10, 2000
Chief Justice Poritz PRESIDING
OPINION BY Justice Verniero
CONCURRING/DISSENTING OPINION BY Justice Coleman
DISSENTING OPINION BY
CHECKLIST
AFFIRM IN
PART AND
REVERSE IN
PART
CONCUR IN
PART AND
DISSENT IN
PART
CHIEF JUSTICE PORITZ
X
JUSTICE O'HERN
X
JUSTICE GARIBALDI
X
JUSTICE STEIN
X
JUSTICE COLEMAN
X
JUSTICE LONG
------------
-------------
JUSTICE VERNIERO
X
TOTALS
5
1
Converted by Andrew Scriven