SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5284-96T1
WILLIAM CAMP and LISA CAMP,
his wife,
Plaintiffs-Appellants,
v.
JIFFY LUBE #114,
Defendant-Respondent.
_________________________________________________________________
Argued March 18, 1998 - Decided April 2, 1998
Before Judges King, Muir, Jr., and Kestin.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County.
Douglas M. Joyce argued the cause for
appellants (Cahill, Wilinski & Rhodes,
attorneys; John R. Mininno, on the brief).
Bernard J. Tkaczynski argued the cause for
respondent (Edward H. Keiper, attorney;
Mr. Tkaczynski, on the brief).
The opinion of the Court was delivered by
MUIR, JR., J.A.D.
The principal issue on this appeal is whether the trial court
properly charged the jury on proximate cause. We conclude the
charge was improper. Accordingly, we reverse and remand for a new
trial.
The essential facts giving rise to the appeal began on
July 13, 1993, when William Camp (plaintiffSee footnote 1) left his 1989
Chevrolet at defendant's facility for a routine oil change. After
servicing the car, defendant's employees had trouble closing the
hood. After several attempts, the employees were able to close the
hood. However, when plaintiff picked up the car, no one told him
of the difficulty closing the hood. Plaintiff drove about five
blocks when the hood suddenly flew open and broke the car's
windshield. Plaintiff, contending he sustained bodily injuries as
a result, filed a complaint seeking compensatory damages he alleged
were proximately caused by defendant's employees' negligence.
Plaintiff's wife also sought damages for loss of consortium.
In a liability-only trial, plaintiff contended defendant was
negligent because its employees failed to properly shut the hood or
because they should have notified or warned him about the problem
experienced with shutting the hood but failed to do so. In light
of plaintiff's contentions, the trial court instructed the jury on
proximate cause.
The court stated:
The burden of proof is on the plaintiff
to establish his claim by a preponderance of
the evidence. . . . In this case, the
plaintiff, Mr. Camp, has the burden of
establishing by a preponderance of the
evidence all the facts necessary to prove that
the defendant either didn't properly close the
hood, or failed to notify him of problems with
the hood so he could have taken the proper
steps to deal with it.
. . . .
I have indicated to you previously that
the term accident in this case does not
necessarily mean a multiple or even a one-car
collision. The term accident, as used in
these jury instructions, means incident.
Thus, you are not required to find that an
accident occurred, but that an incident
occurred. The incident in question is the
hood of the plaintiff's car striking the
plaintiff's windshield. In this case, the
plaintiff contends that the defendant was
negligent in failing to properly shut or close
the front hood of the car, and/or failing to
advise the plaintiff of the problem in
shutting or closing the hood of the vehicle so
that he could take whatever actions . . . he
would deem necessary.
. . . .
Ladies and gentlemen, you have heard me
use the term proximate cause. . . . In order
for the plaintiff whose claims you are
considering to recover damages, such damages
must be proximately caused by the actions or
the inactions of the defendant.
By proximate cause is meant that the
action or the inaction of the defendant was
the efficient cause, the one that naturally
set the other causes in motion, and without
which the damages claimed or the injuries
claimed would not have resulted. The law
requires that the damages chargeable to the
defendant must be shown to be the natural and
probable effects of the actions or the
inactions of the defendant.
[Emphasis added.]
The jury returned a verdict against plaintiff by answering
"No" to the verdict sheet question, "Was the Defendant, Jiffy Lube,
negligent, which negligence was a proximate cause of the incident?"
After the trial court denied a motion for a new trial, plaintiff
and his wife appealed the ensuing judgment.
They contend the trial court's proximate cause charge was not
only inappropriate given the fact issues for jury resolution but
also because the court, in explaining proximate cause, told the
jury it meant they had to determine whether defendant's action or
inaction "was the efficient cause, the one that naturally set the
other causes in motion, and without which the damages claimed or
the injuries claimed would not have resulted." [Emphasis added.]
We agree the court failed to tailor the proximate cause definition
to the facts of the case and compounded that failure by utilizing
the definite article "the" in the definition.
Proximate cause is a limitation the common law has placed on
an actor's responsibility for the consequences of the actor's
conduct. It is "a complex term of highly uncertain meaning."
William L. Prosser, Proximate Cause in California,
38 Cal. L. Rev.
369, 375 (1950), quoted in Conklin v. Hannoch Weisman,
145 N.J. 395, 416 (1996). It requires careful definition in jury charges to
avoid misleading the jury. Conklin, supra, 145 N.J. at 419.
When instructing a jury on proximate cause, trial courts must
distinguish between the routine tort cases and cases where
concurrent causes of harm are present. In the former, "`the law
requires proof that the result complained of probably would not
have occurred "but for" the negligent conduct of the defendant.'"
Id. at 417 (quoting Vuocolo v. Diamond Shamrock Chems. Co.,
240 N.J. Super. 289, 295 (App. Div.) (quoting Evers v. Dollinger,
95 N.J. 399, 415 (1984)), certif. denied,
122 N.J. 333 (1990)). In
the latter, the law requires consideration of the "substantial
factor" test. The "but for" standard concentrates on one cause
that sets the other causes in motion, while the "substantial
factor" test recognizes that "`a tortfeasor will be held answerable
if its "negligent conduct was a substantial factor in bringing
about the injuries," even where there are "other intervening causes
which were foreseeable or were normal incidents of the risk
created."'" See Conklin, supra, 145 N.J. at 419 (quoting Brown v.
United States Stove Co.,
98 N.J. 155, 171 (1984) (quoting Rappaport
v. Nichols,
31 N.J. 188, 202 (1959))). In the latter circumstance,
"[a]lthough the law of negligence recognizes that there may be any
number of concurrent causes of an injury, `[n]evertheless, these
acts need not, of themselves, be capable of producing the injury;
it is enough if they are a "substantial factor" in bringing it
about.'" Conklin, supra, 145 N.J. at 419-20 (quoting Scott v.
Salem Cty. Mem'l Hosp.,
116 N.J. Super. 29, 33-34 (App. Div.
1971)).
The charge here included no instruction on the "substantial
factor" test. Instead, it improvidently focused the jury on the
"but for," or cause that set other causes in action, in an instance
where there was evidence of concurrent causes for the harm: the
defective hood, the improper shutting of the hood, and the failure
to warn about the defective hood. The charge should have been
tailored to deal with the concurrent causes projected by the facts
in evidence. Model Jury Charges (Civil) § 7.10 accommodates both
the "but for" and the "substantial factor" tests; but as Conklin
notes, there is a need for the Committee on Model Jury Charges,
Civil, to tailor a model charge specifically to "failure to act"
cases. Id. at 420 n.7.
The charge compounded the improvident concentration on the
need for the jury to concentrate on an exclusive cause that set
other causes in motion when it instructed plaintiff was required to
establish that defendant's negligence was the proximate cause of
the harm that occurred. Emphasis on the rather than a cause unduly
directed the jury's focus to a "but for" single cause. In Ellis v.
Caprice,
96 N.J. Super. 539, 549 (App. Div.), certif. denied,
50 N.J. 409 (1967), we reversed a judgment in favor of defendants when
the trial court used the definite article "the" in defining
proximate cause for the jury. We conclude the same charge mistake
here requires reversal.
Nonetheless, defendant argues the charge read as a whole makes
the trial court mistake harmless error. Our rationale for
rejecting the same argument in Ellis is applicable here:
"Regardless of how well intentioned the jury may have been, it had
no way of knowing which of the two versions represented the correct
rule." Id. at 549. Only an express statement by the trial court
that its original proximate cause charge was incorrect would have
salvaged the charge. See Conklin, supra, 145 N.J. at 409. There
was no such express statement.
In sum, the proximate cause charge misled the jury on the
term's essential elements in the factual context of the case.
Here, plaintiff was entitled to a charge that the jury should
consider whether defendant's failure to give notice, or failure to
properly close the hood, was negligence that was a substantial
factor in causing the accident giving rise to the injuries.
Instead, the jury received a charge that focused on the cause for
the accident. By placing emphasis on the cause, the trial court
misdirected the jury's focus to one that had the potential for
placing too much emphasis on the defective latch as the cause and
not enough on the failure to give notice or failure to properly
close the hood, or both. Consequently, the jury was not
sufficiently instructed on the applicable law so that it could
perform its function. See State v. Green,
86 N.J. 281, 287 (1981).
Reversed and remanded for a new trial.
Footnote: 1Throughout the opinion, plaintiff refers to William Camp.