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Clifford v. Opdyke

Decided: February 23, 1978.


Halpern, Larner and King. The opinion of the court was delivered by Larner, J.A.D.


Robert A. Clifford and his wife Karen I. Clifford were injured in an automobile accident with the vehicle operated by defendant Stacy B. Opdyke. The cause of action accrued on December 5, 1975 and was therefore controlled by the provisions of the No Fault Law (N.J.S.A. 39:6A-1 et seq.). A jury trial resulted in a verdict for Karen in the sum of $3,000 and for Robert in the sum of $7,500, and judgments were entered accordingly.

Defendant's motion for a new trial as to damages awarded to Robert was denied by the trial court. Defendant appeals only from that judgment entered in favor of Robert, seeking a new trial on the ground that the damage award was against the weight of the evidence and that the trial judge committed error in his charge to the jury.

Our perusal of the charge as a whole in the context of the evidence in the record impels us to conclude that the court's instructions to the jury contained prejudicial error requiring a reversal. The focus of the error to which we refer relates to that portion of the charge which permitted the jury to consider permanent disability in its evaluation of the damages to be awarded to plaintiff despite the absence of competent evidence of such permanency.

The court instructed the jury on this subject in the following manner:

Now, a plaintiff who is awarded a verdict is entitled to fair and reasonable compensation for any permanent or temporary injury resulting in disability to or impairment of his or her faculties, health or ability to participate in activities, as a proximate result of the defendant's negligence. Disability or impairment means worsening, weakening or loss of faculties, health or ability to participate in activities. The measure of damages is what a reasonable man or woman would consider to be adequate and just under all the circumstances of the case to compensate the plaintiff for his injury and his consequent disability and impairment, no more and no less.

Now, I believe that there was testimony that Mr. Clifford is 31 years of age; is that correct, he gave his age as being -- I'm sorry, the accident happened on Route 31, I thought that was a little too young. He gave his age as 35. Mrs. Clifford gave her age as 30, as I recall it. I only mention that to you because there is a life expectancy which is contained in our court rules, and the court rules, Mr. Haney, thank you very much for looking that up for me, the table of life expectancy, so far as a man, age 35, it is 36.86 years. And the female who is aged 30 has a life expectancy of 46.96 years.

Now, this is an estimated figure based upon the probable length of life based upon statistical data, it is contained in an actuarial table, I will hold it up for you so you might see it, it is an actuarial table attached to the rules of court.

All right, and of course as a general rule you should use it with caution in an individual case. The plaintiffs may live longer than actuarial life expectancy tables described or may die or be killed in a much shorter period of time. You should consider the life expectancy figure in your determination of damages if any are to be awarded for pain and suffering, disability and impairment of the future, if you find that it may occur in the future based upon the evidence submitted so far. Again, you should exercise your sound judgment in applying the life expectancy table without treating it as a necessary and fixed rule. Of course today you are entitled to take into consideration the limited value of the dollar. You are entitled to take into consideration inflation, and of course you have a right to consider and take into consideration all those other factors which tend to indicate to you that these people have suffered injuries and/or damage and that they should be awarded fairly and adequately under the circumstances now given to you in light of what they say that they have undergone and also, based upon the life expectancy if you find that either or both of their injuries are permanent in nature along the line of the life expectancy table.

One of the objections to the charge, as articulated by defense counsel and rejected by the court was:

There is no evidence in this case upon which a verdict for permanent ...

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