Amendments to jury instructions dealing with punitive damages

January 1, 2018 Notices

Amendments to jury instructions dealing with punitive damages

The Supreme Court Committee on Standard Jury Instructions in Civil Cases submits these amendments to the Florida Standard Jury Instructions in Civil Cases. The committee proposes amending the Note on Use for Punitive Damages Charges, instruction 503.1 Punitive Damages — Bifurcated Procedure, and instruction 503.2 Punitive Damages — Non-bifurcated Procedure.

Interested parties have until February 1, 2018, to submit comments electronically,

, or to the Chair of the Civil Committee, Laura Whitmore, Shook, Hardy & Bacon, 100 N. Tampa, Street, Suite 2900, Tampa, FL 33602-5810,

, 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,

.

B. PUNITIVE DAMAGES

NOTE ON USE FOR PUNITIVE DAMAGES CHARGES

Effective October 1, 1999,

F.S.

768.735 changed the common law of punitive damages. These instructions are intended to comply with those statutory provisions. For instructions applicable to causes of action arising prior to October 1, 1999, see Appendix C to this book.

These instructions are intended for use in the majority of punitive damages cases with causes of action arising on or after October 1, 1999. They may not be applicable in cases involving a defendant acting under the influence of drugs or alcohol. See

F.S.

768.736 (1999). Likewise, these instructions may not be applicable in cases involving child abuse, abuse of the elderly,

abuse of the developmentally disabled, or any civil action arising under

F.S.

Chapter

s

400 and 429

. See

F.S.

768.735 (1999).

In cases involving claims brought under the Florida Civil Rights Act,

F.S.

760.01–.11, the committee takes no position whether these instructions apply. See Note on Use 3 to instruction 416.9.

~~Under certain circumstances, an additional instruction may be required regarding the upper limit on the amount of punitive damages. See~~

~~Wransky v. Dalfo~~

~~, 801 So.2d 239 (Fla. 4th DCA 2001).~~

Upon timely motion, a demand for punitive damages and determination of the issues raised by such a demand must be submitted to the jury under the bifurcated procedure established in

W.R. Grace & Co. v. Waters

, 638 So.

2d 502 (Fla. 1994). Instruction 503.1 is intended to comply with the required bifurcated procedure. Absent a timely motion, punitive damage issues will be decided under a non-bifurcated procedure, as provided in

instruction

503.2. 503.1 PUNITIVE DAMAGES — BIFURCATED PROCEDURE

a. First stage of bifurcated punitive damages procedure:

There is an additional claim in this case that you must decide. If you find for

(claimant)

and against

(defendant(s))

, you must decide whether, in addition to compensatory damages, punitive damages are warranted as punishment to [one or more of]

(defendant(s))

and as a deterrent to others.

The trial of the punitive damages issue is divided into two parts. In this first part, you will decide whether the conduct of

(defendant(s) or individual(s) whose conduct may warrant punitive damages)

is such that punitive damages are warranted. If you decide that punitive damages are warranted, we will proceed to the second part of that issue during which the parties may present additional evidence and argument on the issue of punitive damages. I will then give you additional instructions, after which you will decide whether, in your discretion, punitive damages will be assessed and, if so, the amount.

b(1). Punitive damages for acts of an individual defendant:

(Claimant)

claims that punitive damages should be awarded against

(defendant)

for [his] [her] [its] conduct in

(describe the alleged punitive conduct)

. Punitive damages are warranted against

(defendant)

if you find by clear and convincing evidence that

(defendant)

was guilty of

[

intentional misconduct

]

[

or

]

[

gross negligence

]

, which was a substantial cause of [loss] [injury] [or] [damage] to

(claimant)

. Under those circumstances you may, in your discretion, award punitive damages against

(defendant)

. If clear and convincing evidence does not show such conduct by

(defendant)

, punitive damages are not warranted against

(defendant)

.

[

“Intentional misconduct” means that

(defendant)

had actual knowledge of the wrongfulness of the conduct and there was a high probability of injury or damage to

(claimant)

and, despite that knowledge, [he] [she] intentionally pursued that course of conduct, resulting in injury or damage.

]

[

“Gross negligence” means that

(defendant’s)

conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

]

“Clear and convincing evidence” differs from the “greater weight of the evidence” in that it is more compelling and persuasive. As I have already instructed you, “greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.

b(2). Direct liability for acts of managing agent, primary owner, or certain others:

(Claimant)

claims that punitive damages should be awarded against

(defendant)

for the acts of

(managing agent, primary owner, or other person whose conduct may warrant punitive damages without proof of a superior’s fault)

in

(describe the alleged punitive conduct)

. Punitive damages are warranted against

(defendant)

if you find by clear and convincing evidence that

(managing agent, primary owner, or other person whose conduct may warrant punitive damages without proof of a superior’s fault)

[was] [were] personally guilty of

[

intentional misconduct

]

[

or

]

[

gross negligence

which was a substantial cause of [loss] [injury] [or] [damage] to

(claimant)

. Under those circumstances you may, in your discretion, award punitive damages against

(defendant corporation or partnership)

. If clear and convincing evidence does not show such conduct by

(managing agent, primary owner, or other person whose conduct may warrant punitive damages without proof of a superior’s fault)

, punitive damages are not warranted against

(defendant)

.

[“Intentional misconduct” means that

(person whose conduct may warrant punitive damages)

had actual knowledge of the wrongfulness of the conduct and there was a high probability of injury or damage to

(claimant)

and, despite that knowledge, [he] [she] intentionally pursued that course of conduct, resulting in injury or damage.

]

[

“Gross negligence” means that the conduct of

(person whose conduct may warrant punitive damages)

was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.]

[“Clear and convincing evidence” differs from the “greater weight of the evidence” in that it is more compelling and persuasive. As I have already instructed you, “greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.]

b(3). Vicarious liability for acts of employee

who is a party being sued for punitive damages

(Claimant)

claims that punitive damages should be awarded against

(employee/agent)

and

(defendant employer)

for

(employee/agent’s)

conduct in

(describe the alleged punitive conduct)

. Punitive damages are warranted against

(employee/agent)

if you find by clear and convincing evidence that

(employee/agent)

was personally guilty of

[

intentional misconduct

]

[

or

]

[

gross negligence

]

, which was a substantial cause of [loss] [injury] [or] [damage] to

(claimant)

. Under those circumstances you may, in your discretion, award punitive damages against

(employee/agent)

. If clear and convincing evidence does not show such conduct by

(employee/agent)

, punitive damages are not warranted against either

(employee/agent)

or

(defendant employer)

.

If you find that punitive damages are warranted against

(employee/agent)

you may also, in your discretion, award punitive damages against

(defendant employer)

if you find from clear and convincing evidence that:

(A).

(defendant employer)

actively and knowingly participated in such conduct of

(employee/agent)

; or

(B). the [officers] [directors] [or] [managers] of

(defendant employer)

knowingly condoned, ratified, or consented to such conduct of

(employee/agent)

; or

(C).

(defendant employer)

engaged in conduct that constituted gross negligence and that contributed to the [loss] [damage] [or] [injury] to

(claimant)

.

If clear and convincing evidence does not show such conduct by

(defendant employer)

punitive damages are not warranted against

(defendant employer)

.

[“Intentional misconduct” means that

(person whose conduct may warrant punitive damages)

had actual knowledge of the wrongfulness of the conduct and there was a high probability of injury or damage to

(claimant)

and, despite that knowledge, [he] [she] intentionally pursued that course of conduct, resulting in injury or damage.

]

[

“Gross negligence” means that the conduct of

(person whose conduct may warrant punitive damages)

was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.]

[“Clear and convincing evidence” differs from the “greater weight of the evidence” in that it is more compelling and persuasive. As I have already instructed you, “greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.]

b(4). Vicarious liability for acts of employee where employee is not a party or is not being sued for punitive damages:

(Claimant)

claims that punitive damages should be awarded against

(defendant employer)

for

(employee/agent’s)

conduct in

(describe the alleged punitive conduct)

. Punitive damages are warranted if you find by clear and convincing evidence that

(employee/agent)

was personally guilty of

[

intentional misconduct

]

[

or

]

[

gross negligence

]

, which was a substantial cause of [loss] [injury] [or] [damage] to

(claimant)

and that:

(A)

(defendant employer)

actively and knowingly participated in such conduct of

(employee/agent)

; or

(B) the [officers] [directors] [or] [managers] of

(defendant employer)

knowingly condoned, ratified, or consented to such conduct of

(employee/agent)

; or

(C)

(defendant employer)

engaged in conduct that constituted gross negligence and that contributed to the [loss] [damage] [or] [injury] to

(claimant)

.

Under those circumstances you may, in your discretion, award punitive damages against

(defendant employer)

. If clear and convincing evidence does not show such conduct by

(employee/agent)

, punitive damages are not warranted against

(defendant employer)

.

[“Intentional misconduct” means that

(person whose conduct may warrant punitive damages)

had actual knowledge of the wrongfulness of the conduct and there was a high probability of injury or damage to

(claimant)

and, despite that knowledge, [he] [she] intentionally pursued that course of conduct, resulting in injury or damage.

]

[

“Gross negligence” means that the conduct of

(person whose conduct may warrant punitive damages)

was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.]

[“Clear and convincing evidence” differs from the “greater weight of the evidence” in that it is more compelling and persuasive. As I have already instructed you, “greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.]

(b)(5). When evidence admitted of harms caused to nonparties:

[In deciding the issue of punitive damages, you may consider any harm

(defendant’s)

conduct caused

(claimant/decedent)

You have also heard evidence of harms

(defendant’s)

conduct [allegedly] caused to persons other than

(claimant/decedent)

You may consider harms that

(defendant’s)

conduct caused to persons other than

(claimant/decedent)

in deciding the [reprehensibility] [or] [wrongfulness] of

(defendant’s)

conduct.

However, you may not punish

(defendant)

for any harms suffered by persons other than

(claimant/decedent)

.]*

*Refer to Note on Use 8.

(Proceed to 601.01 et seq. and balance of instructions for the completion of the jury instructions.)

c. Second stage of bifurcated punitive damage procedure:

c(1). Opening instruction, second stage:

Members of the jury, I am now going to tell you about the rules of law that apply to determining whether punitive damages should be assessed and, if so, in what amount. When I finish with these instructions, the parties will present additional evidence. You should consider this additional evidence along with the evidence already presented, and you should decide any disputed factual issues by the greater weight of the evidence. “Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.

c(2). Punitive damages — determination of amount:

You are to decide the amount of punitive damages, if any, to be assessed as punishment against

(defendant(s))

and as a deterrent to others. This amount would be in addition to the compensatory damages you have previously awarded. In making this determination, you should consider the following:

(A). the nature, extent and degree of misconduct and the related circumstances, including the following:

i. whether the wrongful conduct was motivated solely by unreasonable financial gain;

ii. whether the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was actually known by [

(defendant)

] [

(the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant)

];

iii. whether, at the time of [loss] [injury] [or] [damage], [

(defendant)

] [

(the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant)

] had a specific intent to harm

(claimant)

and the conduct of [

(defendant)

] [

(the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant)

] did in fact harm

(claimant)

, [and]

[(B). [the financial resources of

(defendant(s))

; and]*

*Refer to Note on Use 5.

[(C).

(Identify any other circumstance that the jury may consider in determining the amount of punitive damages.)

]*

*Refer to Note on Use 6.

[However, you may not award an amount that would financially destroy

(defendant(s))

.]*

*Refer to Note on Use 7.

[(D).

When evidence admitted of harms caused to nonparties:

In deciding the issue of punitive damages, you may consider any harm

(defendant’s)

conduct caused

(claimant/decedent)

You have heard evidence of harms

(defendant’s)

conduct [allegedly] caused to persons other than

(claimant/decedent)

You may consider harms that

(defendant’s)

conduct caused to persons other than

(claimant/decedent)

in deciding the [reprehensibility] [or] [wrongfulness] of

(defendant’s)

conduct.

However, you may not punish

(defendant)

for any harms suffered by persons other than

(claimant/decedent)

.]*

*Refer to Note on Use 8.

You may in your discretion decline to assess punitive damages. [You may assess punitive damages against one defendant and not the other[s] or against more than one defendant. Punitive damages may be assessed against different defendants in different amounts.]

d. Closing instruction, second stage:

Members of the jury, you have now heard and received all of the evidence on the issue of punitive damages. Your verdict on the issues raised by the punitive damages claim of

(claimant)

against

(defendant(s))

must be based on the evidence that has been received during the trial of the first phase of this case and on the evidence that has been received in these proceedings and the law on which I have instructed you. In reaching your verdict, you are not to be swayed from the performance of your duty by prejudice or sympathy for or against any party.

Your verdict must be unanimous, that is, your verdict must be agreed to by each of you.

You will be given a form of verdict, which I shall now read to you:

When you have agreed on your verdict, the

~~foreman or forewoman~~

foreperson

, acting for the jury, should date and sign the verdict. You may now retire to consider your verdict.

NOTES ON USE FOR 503.1

1. This instruction is designed so it can be given before the taking of evidence. Instruction 503.1a and the applicable part of 503.1b should be given as part of the general instruction on the case. Instruction 503.1c is designed to be given before the beginning of stage two of the punitive damages trial. And instruction 503.1d is designed to be given at the close of the evidence in the stage two proceeding.

2. Instruction 503.1a should be given in all cases involving bifurcated proceedings.

Instruction 503.1b(1) should be given when the demand for punitive damages is based on the conduct of an individual defendant.

Instruction 503.1b(2) should be given when the demand for punitive damages is based on the conduct of a managing agent or principal.

Bankers Multiple Line Insurance Co. v. Farish

, 464 So.

2d 530 (Fla. 1985). That person should be named in 503.1b(2). Pending further development in the law, the committee takes no position regarding whether the independent negligence must be on the part of a managing agent or principal or whether it can be based on the independent negligence of another employee. See

Schropp v. Crown Eurocars, Inc.

, 654 So.

2d 1158 (Fla. 1995) and

Partington v. Metallic Engineering

, 792 So.

2d 498 (Fla. 4th DCA 2001). In appropriate cases

,

a corporate policy can provide the basis for punitive damages against a corporation even though the particular officers or agents of the corporation responsible for the policy are not discovered or identified. See,

e.g.

,

Schropp

at 1162 (Wells, J. concurring). In those cases, the instruction will need to be modified accordingly.

Instruction 503.1b(3) should be given when there is a demand for punitive damages against an employer/principal based on the conduct of an employee and punitive damages are also being sought against the employee. There may be situations other than employer-employee relationships where vicarious liability for punitive damages may be imposed. See,

e.g.

,

Knepper v. Genstar Corp.

, 537 So.

2d 619 (Fla. 3d DCA 1988) (joint venture);

Soden v. Starkman

, 218 So.

2d 763 (Fla. 3d DCA 1969) (partnership).

Instruction 503.1b(4) should be given when there is a demand for punitive damages against the employer/principal for the acts of an employee, but the employee is not a defendant or is not being sued for punitive damages.

In cases involving both direct and vicarious liability claims, instructions 503.1b(2) and

~~503.1c(2) or c(3)~~

503.1b(3) or b(4)

should be given with appropriate transitional language with respect to the claims based on vicarious liability.

~~The paragraphs defining “intentional misconduct” and “clear and convincing evidence” are bracketed because, once given, they do not have to be repeated.~~

“Intentional misconduct” and “gross negligence,” as well as their definitions, are bracketed in these instructions because a defendant may be found liable for punitive damages if the jury finds by clear and convincing evidence that the defendant was guilty of either “intentional misconduct” or “gross negligence.” See

F.S.

768.72(2) (1999). Whether the jury should be instructed on “intentional misconduct,” “gross negligence,” or both, depends on the circumstances of the case. In addition, once the jury has been instructed on the definitions of “intentional misconduct” and “gross negligence,” those instructions do not have to be repeated.

The paragraphs in instructions 503.1b(2)–(4) defining “clear and convincing evidence” are also bracketed because, once given, that definition does not have to be repeated.

3. Instructions 503.1b(1)–b(4) are designed for use in most common-law tort cases. However, certain types of intentional torts may require a punitive damage charge appropriate to the particular tort. See,

e.g.

,

First Interstate Development Corp. v. Ablanedo

, 511 So.

2d 536 (Fla. 1987);

Metropolitan Life Insurance Co. v. McCarson

, 467 So.

2d 277 (Fla. 1985). The same may be true when punitive damages are authorized by statute. See,

e.g.

,

Home Insurance Co. v. Owens

, 573 So.

2d 343, 346 (Fla. 4th DCA 1990).

4. It is not the purpose of instruction 503.1c second stage instructions to allow parties to relitigate in the second stage of the bifurcated proceeding, by new evidence or by argument, the underlying question decided in the first stage of the proceeding of whether an award of punitive damages is warranted. Rather, the purpose of instruction 503.1c is to advise the jury that in the second stage of the proceeding, evidence may be presented and argued which will allow the jury in its discretion to determine the amount of an award of punitive damages, and that the amount which the jury determines appropriate could be zero.

5. Instruction 503.1c(2)(B) should only be used when evidence of a defendant’s financial worth is introduced.

6. Instruction 503.1c(2)(C) should be used only after the court has determined that the evidence includes some additional circumstance that may affect the amount of punitive damages. See,

e.g.

,

Owens-Corning Fiberglas Corp. v. Ballard

, 749 So.

2d 483 (Fla. 1999) (listing various such factors). See generally

BMW of North America, Inc. v. Gore

, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). One such circumstance is the assessment of punitive damages against the defendant in prior cases. See

W.R. Grace & Co. v. Waters

, 638 So.

2d 502 (Fla. 1994).

7. This instruction is to be given when requested by the defendant. See

Wransky v. Dalfo

, 801 So.

2d 239 (Fla. 4th DCA 2001). It appears that this instruction can only be used when evidence of the defendant’s net worth has been introduced. See

Bould v. Touchette

, 349 So.

2d 1181 (Fla. 1977);

Rinaldi v. Aaron

, 314 So.

2d 762 (Fla. 1975). This instruction is not intended to supplant the court’s function in determining whether a verdict is constitutional. See

BMW of North America, Inc. v. Gore

, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996);

Pacific Mutual Life Insurance Co. v. Haslip

, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991). The committee notes that many reported decisions have used alternative terms such as “bankrupt” or “economically castigate” to describe this limitation, instead of or in addition to the term “financially destroy.” See,

e.g.

,

Wackenhut Corp. v. Canty

, 359 So.

2d 430 (Fla. 1978);

Lehman v. Spencer Ladd’s Inc.

, 182 So.

2d 402 (Fla. 1966). The committee has selected the term “financially destroy” for its simplicity, but does not intend to foreclose the use of other legally valid terms where appropriate under the facts of the particular case.

8. Harms to nonparties.

This instruction does not address what evidence of harm to non-parties is relevant or admissible in a particular case. This instruction should be given, upon request, in cases in which evidence has been introduced that the defendant’s conduct caused harm to others who are not parties to the case. See

Philip Morris USA v. Williams

, 549 U.S. 346, 355–57 (2007);

Philip Morris USA, Inc. v. Ledoux

, 42 Fla. L. Weekly D2191 (Fla. 3d DCA Oct. 18, 2017);

Philip Morris USA, Inc. v. Cohen

, 102 So. 3d 11, 18 (Fla. 4th DCA 2012), quashed on other grounds, 41 Fla. L. Weekly S113 (Fla. Jan. 29, 2016).

503.2 PUNITIVE DAMAGES — NON-BIFURCATED PROCEDURE

a. Punitive damages generally:

There is an additional claim in this case that you must decide. If you find for

(claimant)

and against

(defendant(s))

, you must decide whether, in addition to compensatory damages, punitive damages are warranted as punishment to [one or more of]

(defendant(s))

and as a deterrent to others.

b(1). Punitive damages for acts of an individual defendant:

(Claimant)

claims that punitive damages should be awarded against

(defendant)

for [his] [her] [its] conduct in

(describe the alleged punitive conduct)

. Punitive damages are warranted against

(defendant)

if you find by clear and convincing evidence that

(defendant)

was guilty of

[

intentional misconduct

]

[

or

]

[

gross negligence

]

, which was a substantial cause of [loss] [injury] [or] [damage] to

(claimant)

. Under those circumstances you may, in your discretion, award punitive damages against

(defendant)

. If clear and convincing evidence does not show such conduct by

(defendant)

, punitive damages are not warranted against

(defendant)

.

[

“Intentional misconduct” means that

(defendant)

had actual knowledge of the wrongfulness of the conduct and that there was a high probability that injury or damage to

(claimant)

and, despite that knowledge, [he] [she] intentionally pursued that course of conduct, resulting in injury or damage.

]

[

“Gross negligence” means that

(defendant’s)

conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

]

“Clear and convincing evidence” differs from the “greater weight of the evidence” in that it is more compelling and persuasive. As I have already instructed you, “greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.

b(2). Direct liability for acts of managing agent, primary owner, or certain others:

(Claimant)

claims that punitive damages should be awarded against

(defendant)

for the acts of

(managing agent, primary owner, or other person whose conduct may warrant punitive damages without proof of a superior’s fault)

in

(describe the alleged punitive conduct)

. Punitive damages are warranted against

(defendant)

if you find by clear and convincing evidence that

(managing agent, primary owner, or other person whose conduct may warrant punitive damages without proof of a superior’s fault)

[was] [were] personally guilty of

[

intentional misconduct

]

[

or

]

[

gross negligence

which was a substantial cause of [loss] [injury] [or] [damage] to

(claimant)

. Under those circumstances you may, in your discretion, award punitive damages against

(defendant corporation or partnership)

. If clear and convincing evidence does not show such conduct by

(managing agent, primary owner, or other person whose conduct may warrant punitive damages without proof of a superior’s fault)

, punitive damages are not warranted against

(defendant)

.

[“Intentional misconduct” means that

(person whose conduct may warrant punitive damages)

had actual knowledge of the wrongfulness of the conduct and there was a high probability of injury or damage to

(claimant)

and, despite that knowledge, [he] [she] intentionally pursued that course of conduct, resulting in injury or damage.

]

[

“Gross negligence” means that the conduct of

(person whose conduct may warrant punitive damages)

was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.]

[“Clear and convincing evidence” differs from the “greater weight of the evidence” in that it is more compelling and persuasive. As I have already instructed you, “greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.]

b(3). Vicarious liability for acts of employee

who is a party being sued for punitive damages

(Claimant)

claims that punitive damages should be awarded against

(employee/agent)

and

(defendant employer)

for

(employee/agent’s)

conduct in

(describe the alleged punitive conduct)

. Punitive damages are warranted against

(employee/agent)

if you find by clear and convincing evidence that

(employee/agent)

was personally guilty of

[

intentional misconduct

]

[

or

]

[

gross negligence

]

, which was a substantial cause of [loss] [injury] [or] [damage] to

(claimant)

. Under those circumstances you may, in your discretion, award punitive damages against

(employee/agent)

. If clear and convincing evidence does not show such conduct by

(employee/agent)

punitive damages are not warranted against either

(employee/agent)

or

(defendant employer)

.

If you find that that punitive damages are warranted against

(employee/agent)

you may also, in your discretion, award punitive damages against

(defendant employer)

if you find from clear and convincing evidence that:

(A).

(defendant employer)

actively and knowingly participated in such conduct of

(employee/agent)

; or

(B). the [officers] [directors] [or] [managers] of

(defendant employer)

knowingly condoned, ratified, or consented to such conduct of

(employee/agent)

; or

(C).

(defendant employer)

engaged in conduct that constituted gross negligence and that contributed to the [loss] [damage] [or] [injury] to

(claimant)

.

If clear and convincing evidence does not show such conduct by

(defendant employer)

, punitive damages are not warranted against

(defendant employer)

.

[“Intentional misconduct” means that

(person whose conduct may warrant punitive damages)

had actual knowledge of the wrongfulness of the conduct and there was a high probability of injury or damage to

(claimant)

and, despite that knowledge, [he] [she] intentionally pursued that course of conduct, resulting in injury or damage.

]

[

“Gross negligence” means that the conduct of

(person whose conduct may warrant punitive damages)

was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.]

[“Clear and convincing evidence” differs from the “greater weight of the evidence” in that it is more compelling and persuasive. As I have already instructed you, “greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.]

(b)(4). Vicarious liability for acts of employee where employee is not a party or is not being sued for punitive damages:

(Claimant)

claims that punitive damages should be awarded against

(defendant employer)

for

(employee/agent’s)

conduct in

(describe the alleged punitive conduct)

. Punitive damages are warranted if you find by clear and convincing evidence that

(employee/agent)

was personally guilty of

[

intentional misconduct

]

[

or

]

[

gross negligence

]

, which was a substantial cause of [loss] [injury] [or] [damage] to

(claimant)

and that:

(A).

(defendant employer)

actively and knowingly participated in such conduct of

(employee/agent)

; or

(B). the [officers] [directors] [or] [managers] of

(defendant employer)

knowingly condoned, ratified, or consented to such conduct of

(employee/agent)

; or

(C).

(defendant employer)

engaged in conduct that constituted gross negligence and that contributed to the [loss] [damage] [or] [injury] to

(claimant)

.

Under those

circumstances

you may, in your discretion, award punitive damages against

(defendant employer)

. If clear and convincing evidence does not show such conduct by

(employee/agent)

, punitive damages are not warranted against

(defendant employer)

.

[“Intentional misconduct” means that

(person whose conduct may warrant punitive damages)

had actual knowledge of the wrongfulness of the conduct and there was a high probability of injury or damage to

(claimant)

and, despite that knowledge, [he] [she] intentionally pursued that course of conduct, resulting in injury or damage.

]

[

“Gross negligence” means that the conduct of

(person whose conduct may warrant punitive damages)

was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.]

[“Clear and convincing evidence” differs from the “greater weight of the evidence” in that it is more compelling and persuasive. As I have already instructed you, “greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.]

(b)(5). When evidence admitted of harms caused to nonparties:

[In deciding the issue of punitive damages, you may consider any harm

(defendant’s)

conduct caused

(claimant/decedent)

You have also heard evidence of harms

(defendant’s)

conduct [allegedly] caused to persons other than

(claimant/decedent)

You may consider harms that

(defendant’s)

conduct caused to persons other than

(claimant/decedent)

in deciding the [reprehensibility] [or] [wrongfulness] of

(defendant’s)

conduct.

However, you may not punish

(defendant)

for any harms suffered by persons other than

(claimant/decedent)

.]*

*Refer to Note on Use 7.

c. Closing punitive damage instruction:

If you decide that punitive damages

~~that~~

are warranted against [one or more of]

(defendant(s))

then you must decide the amount of punitive damages, if any, to be assessed as punishment against

(defendant(s))

and as a deterrent to others. This amount would be in addition to the compensatory damages you have previously awarded. In making this determination,

you should decide any disputed factual issues by the greater weight of the evidence. “Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.

In determining the amount of punitive damages, if any, to be assessed,

you should consider the following:

(1). the nature, extent and degree of misconduct and the related circumstances, including the following:

(A). whether the wrongful conduct was motivated solely by unreasonable financial gain;

(B). whether the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was actually known by [

(defendant)

] [

(the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant)

];

(C). whether, at the time of [loss] [injury] [or] [damage], [

(defendant)

] [

(the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant)

] had a specific intent to harm

(claimant)

and the conduct of [

(defendant)

] [

(the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant)

] did in fact harm

(claimant)

, [and]

[(2). [the financial resources

of (defendant(s))

; and]*

*Refer to Note on Use 4.

[(3).

(identify any other circumstance that the jury may consider in determining the amount of punitive damages.)

]*

*Refer to Note on Use

[However, you may not award an amount that would financially destroy

(defendant(s))

.]*

*Refer to Note on Use

You may in your discretion decline to assess punitive damages. [You may assess punitive damages against one defendant and not the other[s] or against more than one defendant. Punitive damages may be assessed against different defendants in different amounts.]

(Proceed to 601.01 et seq. and balance of instructions for the completion of the jury instructions.)

NOTES ON USE TO 503.2

1. This instruction is designed so it can be given before the taking of evidence. Instruction 503.2a and the applicable part of 503.2b should be given as part of the general instruction on the case.

2. Instruction 503.2a should be given in all non-bifurcated cases.

Instruction 503.2b(1) should be given when the demand for punitive damages is based on the conduct of an individual defendant.

Instruction 503.2b(2) should be given when the demand for punitive damages is based on the conduct of a managing agent or principal.

Bankers Multiple Line Insurance Co. v. Farish

, 464 So.

2d 530 (Fla. 1985). That person should be named in 503.2b(2). Pending further development in the law, the committee takes no position regarding whether the independent negligence must be on the part of a managing agent or principal or whether it can be based on the independent negligence of another employee. See

Schropp v. Crown Eurocars, Inc.

, 654 So.

2d 1158 (Fla. 1995);

Partington v. Metallic Engineering

, 792 So.

2d 498 (Fla. 4th DCA 2001). In appropriate cases

,

a corporate policy can provide the basis for punitive damages against a corporation even though the particular officers or agents of the corporation responsible for the policy are not discovered or identified. See,

e.g.

,

Schropp

at 1162 (Wells, J. concurring). In those cases, the instruction will need to be modified accordingly.

Instruction 503.2b(3) should be given when there is a demand for punitive damages against an employer/principal based on the conduct of an employee and punitive damages are also being sought against both the employee and employer. There may be situations other than employer-employee relationships where vicarious liability for punitive damages may be imposed. See,

e.g.

,

Knepper v. Genstar Corp.

, 537 So.

2d 619 (Fla. 3d DCA 1988) (joint venture);

Soden v. Starkman

, 218 So.

2d 763 (Fla. 3d DCA 1969) (partnership).

Instruction 503.2b(4) should be given when there is a demand for punitive damages against the employer/principal for the acts of an employee, but the employee is not a defendant or is not being sued for punitive damages.

In cases involving both direct and vicarious liability claims, instructions 503.2b(2) and 503.2b(3) or b(4) should be given with appropriate transitional language with respect to the claims based on vicarious liability.

~~The paragraphs defining “intentional misconduct” and “clear and convincing evidence” are bracketed because, once given, they do not have to be repeated.~~

“Intentional misconduct” and “gross negligence,” as well as their definitions, are bracketed in these instructions because a defendant may be found liable for punitive damages if the jury finds by clear and convincing evidence that the defendant was guilty of either “intentional misconduct” or “gross negligence.” See

F.S.

768.72(2) (1999). Whether the jury should be instructed on “intentional misconduct,” “gross negligence,” or both depends on the circumstances of the case. In addition, once the jury has been instructed on the definitions of “intentional misconduct” and “gross negligence,” those instructions do not have to be repeated.

The paragraphs in instructions 503.2b(2)–(4) defining “clear and convincing evidence” are also bracketed because once given, that definition does not have to be repeated.

3. Instructions 503.2b(1)–b(4) are designed for use in most common-law tort cases. However, certain types of intentional torts may require a punitive damage charge appropriate to the particular tort. See,

e.g.

,

First Interstate Development Corp. v. Ablanedo

, 511 So.

2d 536 (Fla. 1987);

Metropolitan Life Insurance Co. v. McCarson

, 467 So.

2d 277 (Fla. 1985). The same may be true where punitive damages are authorized by statute. See,

e.g.

,

Home Insurance Co. v. Owens

, 573 So.

2d 343, 346 (Fla. 4th DCA 1990).

4. Instruction 503.2c(2) should only be used when evidence of a defendant’s financial worth is introduced.

5.

It is not the purpose of these instructions to allow parties to relitigate in the second stage of the bifurcated proceeding, by new evidence or by argument, the underlying question decided in the first stage of the proceeding of whether an award of punitive damages is warranted. Rather, the purpose of these instructions is to advise the jury that in the second stage of the proceeding, evidence may be presented and argued which will allow the jury in its discretion to determine the amount of an award of punitive damages, and that the amount which the jury determines appropriate could be zero.

6.

Instruction 503.2c(3) should be used only after the court has determined that the evidence includes some additional circumstance that may affect the amount of punitive damages. See,

e.g.

,

Owens-Corning Fiberglas Corp. v. Ballard

, 749 So.

2d 483 (Fla. 1999) (listing various such factors). See generally

BMW of North America, Inc. v. Gore

, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). One such circumstance is the assessment of punitive damages against the defendant in prior cases. See

W.R. Grace & Co. v. Waters

, 638 So.

2d 502 (Fla. 1994).

7

6 . This instruction is to be given when requested by the defendant. See

Wransky v. Dalfo

, 801 So.

2d 239 (Fla. 4th DCA 2001). It appears that this instruction can only be used when evidence of the defendant’s net worth has been introduced. See

Bould v. Touchette

, 349 So.

2d 1181 (Fla. 1977);

Rinaldi v. Aaron

, 314 So.

2d 762 (Fla. 1975). This instruction is not intended to supplant the court’s function in determining whether a verdict is constitutional. See

BMW of North America

,

Inc. v. Gore

, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996);

Pacific Mutual Life Insurance Co. v. Haslip

, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991). The committee notes that many reported decisions have used alternative terms such as “bankrupt” or “economically castigate” to describe this limitation, instead of or in addition to the term “financially destroy.” See,

e.g.

,

Wackenhut Corp. v. Canty

, 359 So.

2d 430 (Fla. 1978);

Lehman v. Spencer Ladd’s, Inc.

, 182 So.

2d 402 (Fla. 1966). The committee has selected the term “financially destroy” for its simplicity, but does not intend to foreclose the use of other legally valid terms where appropriate under the facts of the particular case.

7.

Harms to nonparties.

This instruction does not address what evidence of harm to non-parties is relevant or admissible in a particular case. This instruction should be given, upon request, in cases in which evidence has been introduced that the defendant’s conduct caused harm to others who are not parties to the case. See

Philip Morris USA v. Williams

, 549 U.S. 346, 355–57 (2007);

Philip Morris USA, Inc. v. Ledoux

, 42 Fla. L. Weekly D2191 (Fla. 3d DCA Oct. 18, 2017);

Philip Morris USA, Inc. v. Cohen

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