Amendments to jury instructions dealing with burdens of proof
The Supreme Court Committee on Standard Jury Instructions in Civil Cases submits these amendments to the Florida Standard Jury Instructions in Civil Cases 403.17 Burden of Proof on Main Claims, 403.18 Defense Issues, and 403.19 Burden of Proof on Defense Issues. The proposed amendments to 403.18 were initially published for comment September 1, 2016, but the notice inadvertently omitted proposed amendments to subdivision e. Amendments to instructions 403.17 and 403.19 conform to the Court’s opinion in In re: Standard Jury Instructions in Civil Cases—Report No. 17-03, 236 So. 3d 919 (Fla. 2018).</p/> < p>Interested parties have until June 15, 2018, to submit comments electronically, [email protected], or to the Chair of the Civil Committee, Laura Whitmore, Shook, Hardy & Bacon, 100 N. Tampa, Street, Suite 2900, Tampa, FL 33602-5810, [email protected], and a copy to The Florida Bar Liaison for the Committee, Heather Savage Telfer, The Florida Bar, 651 E. Jefferson Street, Tallahassee, FL 32399-6523, [email protected].
If the greater weight of the evidence does not support [one or more of] (claimant’s) claim[s], your verdict should be for (defendant(s)) [on [that] [those] claim(s)].
[However, if the greater weight of the evidence supports [one or more of] (claimant’s) claim[s], then your verdict should be for (claimant) and against (defendant) [on [that] [those] claim(s)].]</p/> < p>[However, if the greater weight of the evidence supports (claimant’s) claim against one or [both] [more] of the defendants, then you should decide and write on the verdict form the percentage of the total fault of [both] [all] defendants that was caused byyou apportion to each of them.]
Use the first paragraph in all cases. If there is an affirmative defense to the claim, do not use either of the bracketed paragraphs; instead turn to instruction 403.18. If there is no affirmative defense, use the first or second bracketed paragraph depending on whether there is one defendant or more than one.
If, however, the greater weight of the evidence supports [ (claimant’s) claim] [one or more of (claimant’s) claims], then you shall consider the defense[s] raised by (defendant) .
On the [first]* defense, the issue[s] for you to decide [is] [are]:</p/> < p>*The order in which the defenses are listed below is not necessarily the order in which the instruction should be given.</p/> < p>a. Comparative Negligence:</p/> < p>whether (claimant or person for whose injury or death claim is made) was [himself] [herself] negligent *in (describe alleged negligence) and, if so, whether that negligence was a contributing legal cause of the injury or damage to (claimant).</p/> < p>*If the jury has not been previously instructed on the definition of negligence, instruction 401.4 should be inserted here.</p/> < p>b. Risk/Benefit DefenseUnavoidably Unsafe Product:</p/> < p>whether, on balance, the [benefits] [or] [value] of (the product) outweigh the risks or danger connected with its use.whether there was no reasonable alternative design for (the product) when it was placed on the market and, on balance, at that time, the [benefits] [or] [value] of (the product) outweighed the risks or danger connected with its use.
In a strict liability defective design case, a defendant may be entitled to an affirmative defense based on the risk/benefit test. See Force v. Ford Motor Co. , 879 So. 2d 103, 106 (Fla. 5th DCA 2004); Adams v. G. D. Searle & Co. , 576 So. 2d 728, 733 (Fla. 2d DCA 1991); Cassisi v. Maytag Co. , 396 So. 2d 1140, 1145–46 (Fla. 1st DCA 1981). Pending further development in the law, the committee takes no position on whether the risk/benefit test is a standard for product defect that should be included in instruction 403.7 or an affirmative defense under instruction 403.18. The court should not, however, instruct on risk/benefit as both a test of defectiveness under 403.7 and as an affirmative defense under 403.18. Restatement (Second) Of Torts § 402A (1965), comment k (unavoidably unsafe products). Comment k has only been applied in Florida to medical devices, drugs, and vaccines and has not been extended to any other class of product. Pending further development in the law, the committee takes no position on whether this instruction is appropriate for products other than medical devices, drugs, and vaccines.
c. Government Rules Defense:</p/> < p>No instruction provided.
F.S. 768.1256 provides for a rebuttable presumption in the event of compliance or noncompliance with government rules. The statute does not state whether the presumption is a burden-shifting or a vanishing presumption. See F.S. 90.301–90.304; Universal Insurance Co. of North America v. Warfel, 82 So. 3d 47 (Fla. 2012); Birge v. Charron, 107 So. 3d 350 (Fla. 2012). Pending further development in the law, the committee offers no standard instruction on this presumption, leaving it up to the parties to propose instructions on a case-by-case basis.
d. State-of-the-art Defense:</p/> < p>In deciding whether (the product) was defective because of a design defect, you shall consider the state-of-the-art of scientific and technical knowledge and other circumstances that existed at the time of (the product’s) manufacture, not at the time of the [loss] [injury] [or] [damage].
Instruction 403.18d applies only in defective design cases. F.S. 768.1257.
e. Apportionment of fault:</p/> < p>whether (identify additional person(s) or entit(y)(ies)) [was] [were] also [negligent] [at fault] [responsible] [(specify other type of conduct)]; and, if so, whether that [negligence] [fault] [responsibility] [(specify other type of conduct)] was a contributing legal cause of [loss] [injury] [or] [damage] to (claimant, decedent, or person for whose injury claim is made).
See F.S. 768.81; Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). In most cases, use of the term “negligence” will be appropriate. If another type of fault is at issue, it may be necessary to modify the instruction and the verdict form accordingly. In strict liability cases, the term “responsibility” may be the most appropriate descriptive term.
e. Learned intermediary defense to failure to warn claims for products supplied through an intermediary:</p/> < p>whether (the defendant) provided reasonable instructions or warnings to (intermediary) and reasonably relied upon [it] [him] [her] to provide reasonable instructions or warnings to the user of the product.</p/> < p>In determining whether (defendant) reasonably relied on intermediary to provide reasonable instructions or warnings to users of (the product), you may consider the nature and significance of the risk involved in using the product, the likelihood that (intermediary) would convey the instructions or warnings to the user of the product, and the feasibility and effectiveness of (defendant) directly warning the user.
See Aubin v. Union Carbide Corp. , 117 So. 3d 489, 515–16 (Fla. 2015). The list of factors set forth in this instruction is not exclusive and may be modified to fit the facts of the case.
1. Comparative negligence is a defense to strict liability claims if based on grounds other than the failure of the user to discover the defect or to guard against the possibility of its existence. West v. Caterpillar Tractor Co., 336 So. 2d 80, 90 (Fla. 1976).
2. The “patent danger doctrine” is not an independent defense but, to the extent applicable (see note 1), it is subsumed in the defense of contributory negligence. Auburn Machine Works Inc. v. Jones, 366 So. 2d 1167 (Fla. 1979).</p/> < p>3. For the state-of-the-art defense see, F.S. 768.1257.
If the greater weight of the evidence does not support (defendant’s) defense[s] and the greater weight of the evidence supports (claimant’s) [claim] [one or more of (claimant’s) claims], then [your verdict should be for (claimant) in the total amount of [his] [her] damages.] *[you should decide and write on the verdict form what percentage of the total [negligence] [fault] [responsibility] of [both] [all] defendants was caused by you apportion to each defendant whose [negligence] [fault] [responsibility] you find was a legal cause of loss, injury, or damage to (claimant) .]
*Use the second bracketed language when there is more than one defendant.
If, however, the greater weight of the evidence shows that both (claimant) and [ (defendant) ] [one or more of the defendants] [and] [ (identify additional person(s) or entit(y)(ies)) ] were [negligent] [at fault] [responsible] and that the [negligence] [fault] [responsibility] of each contributed as a legal cause of [loss] [injury] [or] [damage] sustained by (claimant) , you should decide and write on the verdict form what percentage of the total [negligence] [fault] [responsibility] of [both] [all] parties to this action was caused by you apportion to each of them.
Use the following instruction in cases with a comparative negligence defense and an apportionment of a non-party defense:
[If, however, the greater weight of the evidence shows that (claimant) and [(defendant)] [one or more of (defendants)] [and] [(identify additional person(s) or entit(y)(ies))] were [negligent] [at fault] [responsible] and that the [negligence] [fault] [responsibility] of each contributed as a legal cause of [loss] [injury] [or] [damage] sustained by (claimant), you should decide and write on the verdict form what percentage of the total [negligence] [fault] [responsibility] of [both] [all] parties to this action [and] [(identify additional person(s) or entit(y)(ies))] was caused by you apportion to each of them.]
Use the following paragraph in cases without a comparative negligence defense but with an apportionment of non-party defense:
[If, however, the greater weight of the evidence shows that [(defendant)] [one or more of (defendants)] and [(identify additional person(s) or entit(y)(ies))] were [negligent] [at fault] [responsible] and that the [negligence] [fault] [responsibility] of each contributed as a legal cause of [loss] [injury] [or] [damage] sustained by (claimant), you should decide and write on the verdict form what percentage of the total [negligence] [fault] [responsibility] of [(defendant(s))] [and] [(identify additional person(s) or entit(y)(ies))] was caused byyou apportion to each of them.]
1. Preemptive instructions on defense issues. If a preemptive instruction for claimant is appropriate on a defense issue, as when comparative negligence or assumption of risk has been brought to the jury’s attention on voir dire or by opening statements or argument and is now to be withdrawn, an instruction in the form of instruction 401.13 should be given immediately following instruction 403.15. If a preemptive instruction for defendant is required on some aspect of a defense, as when, for example, the court holds that any comparative negligence of the driver will reduce claimant’s recovery, a preemptive instruction announcing the ruling should be given immediately after framing the defense issues (instruction 403.18).
2. In most cases, use of the term “negligence” will be appropriate. If another type of fault is at issue, it may be necessary to modify the instruction and the verdict form accordingly. In strict liability cases, the term “responsibility” may be the most appropriate descriptive term.
