Amendments to jury instructions in civil cases
Amendments to jury instructions in civil cases
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 following Florida Standard Jury Instructions in Civil Cases: 403.7 — Strict Liability; 403.18 — Defense Issues; Model Instruction No.7 — Product liability case; negligence and strict liability claims; comparative negligence defense; aggravation of pre-existing injury. These amendments are being submitted to address the decisions in Aubin v. Union Carbide Corporation, 177 So. 3d 489 (Fla. 2015), and Coba v. Tricam Indus., Inc.164 So. 3d 637, 648 n.2 (Fla. 2015).Interested parties have until September 30 to submit comments electronically or by mail to the Civil Committee at [email protected], or to the chair of the Civil Committee, Rebecca Mercier Vargas, Kreusler-Walsh, Compiani & Vargas, P.A., 501 S. Flagler Drive, Suite 503, West Palm Beach 33401-5913, [email protected], and a copy to The Florida Bar liaison for the committee, Heather Savage Telfer, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-6523, [email protected].
a. Manufacturing defect
A product is defective because of a manufacturing defect if it is in a condition unreasonably dangerous to [the user] [a person in the vicinity of the product] and the product is expected to and does reach the user or consumer without substantial change affecting that condition.< p>A product is unreasonably dangerous because of a manufacturing defect if it is different from its intended design and fails to perform as safely as the intended design would have performed. < p>b. Design defect < p>A product is defective because of a design defect if it is in a condition unreasonably dangerous to [the user] [a person in the vicinity of the product] and the product is expected to and does reach the user without substantial change affecting that condition. < p>A product is unreasonably dangerous because of its design if [the product fails to perform as safely as an ordinary consumer would expect when used as intended or when used in a manner reasonably foreseeable by the manufacturer]
NOTES ON USE FOR 403.7
The risk/benefit test does not apply in cases involving claims of manufacturing defect. See Cassisi v. Maytag Co. , 396 So. 2d 1140, 1146 (Fla. 1st DCA 1981). Instruction 403.7a retains the definition of manufacturing defect found in former instruction PL 4. The minor changes from the definition found in PL 4 are intended to make this instruction more understandable to jurors without changing its meaning. Consumer expectations test; risk/benefit test. See Aubin v. Union Carbide Corp. , 177 So. 3d 489, 512 (Fla. 2015) (Consumer expectations test and risk/benefit test are alternative definitions of design defect).
2. Foreseeability of injured bystander. Strict liability applies to all foreseeable bystanders. When the injured person is a bystander, use the language “a person in the vicinity of the product” instead of “the user.” Strict liability does not depend on whether the defendant foresaw the particular bystander’s presence. See West v. Caterpillar Tractor Co. Inc., 336 So. 2d 80, 89 (Fla. 1976) (“Injury to a bystander is often feasible. A restriction of the doctrine to the users and consumers would have to rest on the vestige of the disappearing privity requirement.”). See also Sanchez v. Hussey Seating Co., 698 So. 2d 1326 (Fla. 1st DCA 1997). When there is an issue regarding whether the presence of bystanders was foreseeable, additional instructions may be needed.< p>
The [next] issues you must decide on (claimant’s) claim against (defendant) are:
a. Express Warranty:< p>whether (the product) failed to conform to representations of fact made by (defendant), orally or in writing, in connection with the [sale] [transaction], on which (name) relied in the [purchase and] use of the product, and, if so, whether that failure was a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent, or person for whose injury claim is made). < p>b. Implied Warrant of Merchantability: < p>whether (the product) was not reasonably fit for either the uses intended or the uses reasonably foreseeable by (defendant) and, if so, whether that lack of fitness was a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent, or person for whose injury claim is made). < p>c. Implied Warranty of Fitness for Particular Purpose: < p>whether (the product) was not reasonably fit for the specific purpose for which (defendant) knowingly sold (the product) and for which (claimant) bought (the product) in reliance on the judgment of (defendant) and, if so, whether that lack of fitness was a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent, or person for whose injury claim is made). < p>d. Strict Liability — Manufacturing Defect: < p>whether (the product) [was made differently than its intended design and thereby failed to perform as safely as intended and (the product) reached (claimant) without substantial change affecting the condition and, if so, whether that failure was a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent, or person for whose injury claim is made). < p>e. Strict Liability — Design Defect: < p>whether [(the product) failed to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the manufacturer]
Instruction 403.15(e) retains the consumer expectations test and the risk/benefit test for product defect, both of which previously appeared in PL 5. See Instruction 403.7(b) and Note on Use 3. Pending further development in the law, the committee takes no position on whether the consumer expectations and risk/benefit tests should be given alternatively or together.
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>*The order in which the defenses are listed below is not necessarily the order in which the instruction should be given. < p>a. Comparative Negligence: < 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>*If the jury has not been previously instructed on the definition of negligence, instruction 401.4 should be inserted here. < p>b.
NOTE ON USE FOR 403.18b
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).
c. Government Rules Defense:< p>No instruction provided.
NOTE ON USE FOR 403.18c
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>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].
NOTE ON USE FOR 403.18d
Instruction 403.18d applies only in defective design cases. F.S. 768.1257.
e. Apportionment of fault:< 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).
NOTE ON USE FOR 403.18e
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.
NOTES ON USE FOR 403.18
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>Strict product liability and negligence case;
Product liability case; negligence
and strict liability claims;
comparative negligence defense;
aggravation of pre-existing injury
with aggravation of pre-existing injury; and
comparative negligence defense
Facts of the hypothetical case:
John Smith claims he was injured when a hay baler being driven by Dilbert Driver struck him. The hay baler suddenly swerved across the road into the path of Smith, who was driving in the opposite direction. At the time, Smith was looking at a group of deer in a field near the road, and therefore took no evasive action to avoid the collision. An examination of the hay baler revealed that a bolt that was part of the steering mechanism was designed in such a way that it could not sustain the speed of highway driving, would loosen over time, weaken, and eventually break.
The retailer seller, Sharp Sales Co., prior to selling it to Driver, had not inspected it. The mechanism had broken, making it impossible for Driver to steer the baler. There was evidence that a person could have observed the weakened condition of the steering mechanism had he or she examined it.At the time of the accident, Dilbert Driver was operating the hay baler at an unsafe speed when the bolt suddenly broke, making it impossible for Dilbert Driver to steer the hay baler, which crashed into the car being driven by John Smith and injured him as a result. Smith sued Driver, alleging that his operation of the hay baler had been negligent. Smith also sued the manufacturer of the hay baler, Mishap Manufacturing Co., and the retailer seller, Sharp Sales, alleging that the hay baler had been defectively designed and that both defendants had been negligent in their inspections of the hay baler. He sought recovery against both the manufacturer and the retailer on claims of (1) negligence and (2) strict liability based on the consumer expectation test. The defendants denied liability, and affirmatively alleged that John Smith had been comparatively negligent. There are also issues of a pre-existing injury.The defendants also alleged that some of John Smith’s injuries pre-existed the collision with the hay baler and John Smith alleged that his pre-existing condition was aggravated by the collision with the hay baler.
The court’s instruction:
The committee assumes that the court will give these instructions as part of the instruction at the beginning of the case and that these instructions will be given again before Final Argument. When given at the beginning of the case, 202.1 will be used in lieu of 403.1 and these instructions will be followed by the applicable portions of 202.2 through 202.5. See Model Instruction No. 1 for a full illustration of an instruction given at the beginning of the case.
[403.1] Members of the jury, you have now heard and received all of the evidence in this case. I am now going to tell you about the rules of law that you must use in reaching your verdict. You will recall at the beginning of the case I told you that if, at the end of the case I decided that different law applies, I would tell you so. These instructions are the same as what I gave you at the beginning and it is these rules of law that you must now follow. When I finish telling you about the rules of law, the attorneys will present their final arguments and you will then retire to decide your verdict.< p>[403.2] The claims and defenses in this case are as follows. John Smith claims that Dilbert Driver was negligent in the operation of the hay baler he was driving which caused him harm.
 Members of the jury, you have now heard all the evidence, my instructions on the law that you must apply in reaching your verdict and the closing arguments of the attorneys. You will shortly retire to the jury room to decide this case. Before you do so, I have a few last instructions for you.
During deliberations, jurors must communicate about the case only with one another and only when all jurors are present in the jury room. You will have in the jury room all of the evidence that was received during the trial. In reaching your decision, do not do any research on your own or as a group. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments. Do not visit or view the scene of any event involved in this case or look at maps or pictures on the Internet. If you happen to pass by the scene, do not stop or investigate. All jurors must see or hear the same evidence at the same time. Do not read, listen to, or watch any news accounts of this trial.< p>You are not to communicate with any person outside the jury about this case. Until you have reached a verdict, you must not talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, twitter, e-mail, text message, or any other means. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. These communications rules apply until I discharge you at the end of the case. < p>If you become aware of any violation of these instructions or any other instruction I have given in this case, you must tell me by giving a note to the bailiff. < p>Any notes you have taken during the trial may be taken to the jury room for use during your discussions. Your notes are simply an aid to your own memory, and neither your notes nor those of any other juror are binding or conclusive. Your notes are not a substitute for your own memory or that of other jurors. Instead, your verdict must result from the collective memory and judgment of all jurors based on the evidence and testimony presented during the trial. < p>At the conclusion of the trial, the bailiff will collect all of your notes and immediately destroy them. No one will ever read your notes. < p>In reaching your verdict, do not let bias, sympathy, prejudice, public opinion, or any other sentiment for or against any party to influence your decision. Your verdict must be based on the evidence that has been received and the law on which I have instructed you. < p>Reaching a verdict is exclusively your job. I cannot participate in that decision in any way and you should not guess what I think your verdict should be from something I may have said or done. You should not think that I prefer one verdict over another. Therefore, in reaching your verdict, you should not consider anything that I have said or done, except for my specific instructions to you. < p>Pay careful attention to all the instructions that I gave you, for that is the law that you must follow. You will have a copy of my instructions with you when you go to the jury room to deliberate. All the instructions are important, and you must consider all of them together. There are no other laws that apply to this case, and even if you do not agree with these laws, you must use them in reaching your decision in this case. < p>When you go to the jury room, the first thing you should do is choose a presiding juror to act as a foreperson during your deliberations. The foreperson should see to it that your discussions are orderly and that everyone has a fair chance to be heard. < p>It is your duty to talk with one another in the jury room and to consider the views of all the jurors. Each of you must decide the case for yourself, but only after you have considered the evidence with the other members of the jury. Feel free to change your mind if you are convinced that your position should be different. You should all try to agree. But do not give up your honest beliefs just because the others think differently. Keep an open mind so that you and your fellow jurors can easily share ideas about the case. < p>[I will give you a verdict form with questions you must answer. I have already instructed you on the law that you are to use in answering these questions. You must follow my instructions and the form carefully. You must consider each question separately. Please answer the questions in the order they appear. After you answer a question, the form tells you what to do next. I will now read the verdict form to you: (read form of verdict)] < p>[You will be given (state number) forms of verdict, which I shall now read to you: (read form of verdict(s))] < p>[If you find for (claimant(s)), your verdict will be in the following form: (read form of verdict)] < p>[If you find for (defendant(s)), your verdict will be in the following form: (read form of verdict)] < p>Your verdict must be unanimous, that is, your verdict must be agreed to by each of you. When you have finished filling out the form, your foreperson must write the date and sign it at the bottom and return the verdict to the bailiff. < p>If any of you need to communicate with me for any reason, write me a note and give it to the bailiff. In your note, do not disclose any vote or split or the reason for the communication. < p>You may now retire to decide your verdict.
We, the jury, return the following verdict:
1. Was there negligence on the part of defendant Dilbert Driver which was a legal cause of damage to plaintiff, John Smith?< p>YES NO < p>
- Defendant Dilbert Driver (fill in only
if you answered YES to question 1) %
Defendant Mishap Manufacturing Co.
and Sharp Sales Co. (fill in only if
you answered YES to question 2
a ) %
and/or question 2b
only if you answered YES to question
3a and/or question 3b)
you answered YES to question
- Total must be 100%
Please answer question
6 5 .
< p>Total damages of plaintiff, John Smith $ < p>In determining the total amount of damages, do not make any reduction because of the negligence, if any, of plaintiff, John Smith. If you find plaintiff, John Smith, negligent in any degree, the court, in entering judgment, will reduce Smith’s total amount of damages (100%) by the percentage of negligence which you find is chargeable to John Smith. < p>SO SAY WE ALL, this day of , 20 .
65. What is the total amount (100%) of any damages sustained by plaintiff, John Smith, and caused by the incident in question?
This fact pattern assumes that the trial judge has ruled that the consumer expectations test should be given. For more explanation of whether the consumer expectations test and/or the risk/benefit test applies, see the Notes on Use to Instructions 403.7 and 403.15. The plaintiff may elect to also add the phrase “or the risk of danger in the design outweighs the benefits” to instruction 403.15 if he or she wishes to assume the burden of proof in that respect and to prove product defect in this alternative manner. See, Aubin v. Union Carbide Corp. , 177 So. 3d 489, 511 (Fla. 2015). Likewise, should the defendant allege and present evidence that no reasonable alternative design for the product existed and that the benefits of the product’s design outweighed any risk of injury or death caused by the design, instruction 403.18b should be used. See also, Restatement (Second) Of Torts §402a, comment k.
2. For a model itemized verdict form, as contemplated by section 768.77, Florida Statutes, refer to Model Verdict Forms 2(a) and 2(b).