On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1361-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2008
Before Judges A. A. Rodríguez and Newman.
Rajesh S. Patel (Rajesh) and his wife Tiupti (collectively "plaintiffs") appeal from a jury verdict finding Rajesh's negligence was a proximate cause of his injuries sustained on October 25, 2003. The jury also found that defendant Ketul Patel (Ketul) was negligent in causing the injuries, and apportioned fault at: sixty percent to Rajesh and forty percent to Ketul. Accordingly, the judge molded the verdict into a judgment of no cause of action. Plaintiffs moved unsuccessfully for a new trial. This appeal follows. We reverse because the trial judge failed to instruct the jury as to the burden of proof with respect to comparative negligence.
These are the salient facts. On October 25, 2003, Rajesh went to Ketul's apartment to help him move. Ketul arrived with a rented box truck. Rajesh suggested that it would be easier to load the truck if it was parked right in front of the building's door. Ketul agreed. Rajesh saw the truck backing up towards the front door. The back end of the truck protruded two to three feet onto the sidewalk. The truck's wheels hit the curb, but the truck did not have sufficient momentum to mount the curb. The truck moved forward into the street. As the truck moved forward, Rajesh walked towards the back of the truck. The truck then accelerated backwards over the curb and struck Rajesh, whose "ankle got pinned between the concrete steps and the metal bar of the truck."
According to Rajesh, he was bleeding and in "awful pain." He blacked out. When he came to, he saw a deep wound in his ankle. He asked to be taken to Muhlenberg Hospital, where he was employed as a phlebotomist.
At the hospital, the wound was cleaned and stitched. Eventually, an orthopedic surgeon examined Rajesh and later performed surgery. Rajesh stayed at the hospital overnight. He went home the following evening with his ankle in a cast.
Plaintiffs sued Ketul,*fn1 alleging negligence in the operation of the truck. Ketul answered, denying negligence and asserting several affirmative defenses, including Rajesh's negligence pursuant to the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.17 (the Act).
Rajesh, his wife and Ketul testified at trial. On cross-examination, Rajesh testified that he knew the truck was backing up because he saw the back-up lights illuminated. Then, the following exchange occurred:
Q: May -- maybe it did, maybe it didn't and as we sit here today you don't recall whether it ...