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Durrenberger v. Ferris

November 10, 1997

G.H. DURRENBERGER AND TORRY LYNN DURRENBERGER, PLAINTIFFS-APPELLANTS,
v.
BERNARD J. FERRIS AND LITTLE RICCI'S, INC., T/A FERRIS CAFE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Warren County.

Approved for Publication November 10, 1997.

Before Judges Long, Stern and Kimmelman. The opinion of the court was delivered by Kimmelman, J.A.D.

The opinion of the court was delivered by: Kimmelman

The opinion of the court was delivered by KIMMELMAN, J.A.D.

Plaintiff G.H. Durrenberger *fn1 appeals both from the entry of a judgment of no cause of action in his personal injury action, and from the denial of his motion for a new trial on the ground that the jury's verdict was inconsistent.

Plaintiff and his wife were patrons at the premises of defendant Ferris Cafe. At closing time, approximately 1:45 a.m., plaintiff was instructed by defendant Ferris not to exit from the cafe through the front door, which had been locked, but to exit through the side door. Plaintiff believed the side door led to a vestibule and then to the outside. When he reached the side door which he believed to be the exit that he had been instructed to use, he opened it and reached inside for a light switch. In so doing, he lost his balance, fell into the basement of the cafe, and was injured. Plaintiff claims that there were no markings or signs on the door to indicate that it was a basement door rather than an exit. Plaintiff brought suit against defendant for damages for the injuries he sustained when he fell.

At the Conclusion of the testimony and summations of counsel, the trial Judge instructed the jury as to the principles of comparative negligence and submitted to the jury special interrogatories relating to whether defendants or plaintiff were negligent and whether their negligence was a proximate cause of the accident. If the jury were to find that the negligence of both parties was a proximate cause of the accident, the trial Judge instructed that they were to determine the percentage of negligence of each. The relevant portion of the court's instructions were as follows:

If you find negligence on the part of both the plaintiff and the defendant, then you must come up with percentages that total 100 percent.

This question asks you to compare the negligence of each party with respect to the happening of the accident which should be reflected in percentage figures ranging from one percent to 99 percent. The combined negligence of all parties, as I said, would be 100 percent. This question is only to be answered when the answer to the first question, number one and number two, is yes.

The next question on comparative negligence has to do with damages and that -- we get to question number four. If you determine that the defendant was solely negligent or that both parties were negligent and that becomes your duty to determine the amount of money, if any, to be awarded to the plaintiff.

We note at the outset that the last quoted paragraph of the court's instructions was obviously confusing or misleading on the issue of damages. A reading of the instruction could lead the jury to award damages without regard to the comparative percentages of negligence attributed to the parties. Omitting some words not pertinent, the jurors were instructed: "If you determine . . . that both parties were negligent . . . that becomes your duty to determine the amount of money, if any, to be awarded to the plaintiff.

The jury's answers to the special interrogatories indicate that both parties were negligent. Plaintiff's negligence was found to be sixty percent and defendants' negligence was found to be forty percent. Perhaps with the confusing instruction in mind, the jury went further and answered the next interrogatory, which awarded damages of $12,000 to plaintiff. The finding that plaintiff was principally negligent accompanied by an award of damages to him is the inconsistency urged by plaintiff as grounds for a new trial. Defendant, on the other hand, argues that the verdict was reasonable and should be sustained.

Both parties recognize that an "ultimate outcome" charge was not given to the jury. Such charge, in the words of the Model Jury Charges - Civil, would have instructed the jury as follows:

In order for the plaintiff to recover against any defendant, plaintiff's percentage of negligent conduct must be 50% or less. If the plaintiff's percentage is more than 50%, he/she will not recover damages at all and your deliberations are concluded and you should not make any determination as to damages. A plaintiff whose percentage is 50% or less will recover from ...


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