holding that trial courts, in cases arising under Consumer Fraud Act, must give jurors ultimate outcome charge explaining effect of treble damages
How later courts described this case
- holding that trial courts, in cases arising under Consumer Fraud Act, must give jurors ultimate outcome charge explaining effect of treble damages
- upholding verdict in consumer-fraud case even though jury charge was erroneous because record did not indicate “that the jury was confused by the erroneous instruction or that the error resulted in an unjust outcome”
- indicating that award of treble damages under Consumer Fraud Act is form of punitive damages
- noting that treble damages awarded under the CFA are a form of punitive damages
Written by the judges who cited it.
The opinion
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, 741 A.2d 591 (citation omitted).
The factors driving the ultimate outcome charge directed by Roman in modified comparative negligence cases are not analogous to this ease. There, the purpose of the charge was to inform the jury that an intent to reduce a plaintiffs damages by the percentage of the plaintiffs 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, 713 A.2d 427 . 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 , 713 A.2d 427 (citation omitted).
*498 An alleged violation of the Act is more akin to federal antitrust eases 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 (5 th 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 (10 th 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 Ed 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. Weichert Co. Realtors, 148 N.J. 582, 613 , 691 A.2d 350 (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 495, 750 A.2d at 85. Hence, I dissent from the Court’s requirement that an ultimate outcome instruction be given in cases tried under the Act.
*499 For affirmance in part and reversal in part — Chief Justice PORITZ, and Justices O’HERN, GARIBALDI, STEIN, and VERNIERO — 5.
Concurring in part and dissenting in part — Justice COLEMAN — 1.