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Amendments to jury instructions in civil cases (Negligent Infliction of Emotional Distress)

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Amendments to jury instructions in civil cases (Negligent Infliction of Emotional Distress)


The Supreme Court Committee on Standard Jury Instructions in Civil Cases submits this new set of instructions to the Florida Standard Jury Instructions in Civil Cases to address tort actions of negligent infliction of emotional distress

Interested parties have until May 15, 2018, to submit comments electronically or by mail to the Civil Committee at [email protected], to the Chair of the 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 32399-6523, [email protected].

SECTION 420 — NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

420.1 Introduction

420.2 Summary of Claims

< p>420.3 Greater Weight of the Evidence

< p>420.4 Negligence

< p>420.5 Legal Cause

< p>420.6 Issues on Claim

< p>420.7 Elements of Claim

< p>420.8 Burden of Proof on Claim

Note on Use

The tort of “negligent infliction of emotional distress” is recognized in Florida. Champion v. Gray , 478 So. 2d 17 (Fla. 1985); Zell v. Meek , 665 So. 2d 1048 (Fla. 1995). The boundaries of this cause of action, the persons who may recover, and the relationships that form the basis of recovery will be established by the courts of this state on a case by case basis . Champion at 21–22. These instructions should not be given if the plaintiff suffered an impact of any type. See generally, Willis v. Gami Golden Glades, LLC , 967 So. 2d 846, 850 (Fla. 2007). The jury instructions given would be governed by the principles for the type of tort involved and the resulting damages.

420.1 INTRODUCTION

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 (slightly) different from 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.

420.2 SUMMARY OF CLAIMS

The claims in this case are as follows. (Claimant) claims that (defendant) was negligent in (describe alleged negligence) which caused [him] [her] emotional distress.

(Defendant) denies that claim and that (describe any affirmative defenses).

< p>The parties must prove all claims (and defenses) by the greater weight of the evidence. I will now define some of the terms you will use in deciding the case.

420.3 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.

420.4 NEGLIGENCE

Negligence is the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances. Negligence is doing something that a reasonably careful person would not do under like circumstances or failing to do something that a reasonably careful person would do under like circumstances.

420.5 LEGAL CAUSE

a. Legal cause generally:

      Negligence is a legal cause of [loss] [injury] [or] [damage] if it directly and in natural and continuous sequence produces or contributes substantially to producing such [loss] [injury] [or] [damage], so that it can reasonably be said that, but for the conduct, the [loss] [injury] [or] [damage] would not have occurred.

b. Concurring cause:

      In order to be regarded as a legal cause of [loss] [injury] [or] [damage] negligence need not be the only cause. Negligence may be a legal cause of [loss] [injury] [or] [damage] even though it operates in combination with [the act of another] [some natural cause] [or] [some other cause] if the negligence contributes substantially to producing such [loss] [injury] [or] [damage].

c. Intervening cause:

      Do not use the bracketed first sentence if this instruction is preceded by the instruction on concurring cause:*

      *[In order to be regarded as a legal cause of [loss] [injury] [or] [damage], negligence need not be its only cause.] Negligence may also be a legal cause of [loss] [injury] [or] [damage] even though it operates in combination with [the act of another] [some natural cause] [or] [some other cause] occurring after the negligence occurs if [such other cause was itself reasonably foreseeable and the negligence contributes substantially to producing such [loss] [injury] [or] [damage]] [or] [the resulting [loss] [injury] [or] [damage] was a reasonably foreseeable consequence of the negligence and the negligence contributes substantially to producing it].

420.6 ISSUES ON CLAIM

The issues you must decide on (claimant’s) claim against (defendant) are:

      whether (defendant) was negligent in (describe alleged negligence) and, if so, whether that negligence was a legal cause of the emotional distress suffered by (claimant) ;

      whether (claimant) was involved in some way in (describe the event) that caused injury to (name of injured/deceased);

      < p>whether (claimant) had a close personal relationship to (name of injured/deceased); and

      < p>whether (claimant) suffered a physical injury caused by the emotional distress.

Notes on Use for 420.6

1. The elements of negligent infliction of emotional distress are found in Champion v. Gray , 478 So. 2d 17 (Fla. 1985) and Zell v. Meek , 665 So. 2d 1048 (Fla. 1995).

2. “The requirement that the physically injured person be directly involved in the event causing the original injury must also be scrutinized on a case-by-case basis. Proximity to the accident in time and space does not necessarily mean only direct and immediate sight or hearing at the scene of the accident. Rather, there may be recovery in instances where there is a direct perception of some of the events making up the entire accident, including the immediate aftermath of the accident. This would include but not be limited to the factual situation found in McLoughlin [v. O’Brian, [1982] 2 All E.R. 298 (Eng.H.L.1982)].” Zell v. Meek, 665 So. 2d 1048, 1052–53 (Fla. 1995) quoting Champion v. Gray, 478 So. 2d 17, 22 (Fla. 1985).

< p>3. The element of a physical injury is unnecessary for claims from ingesting contaminated food or drink, where a psychotherapist breaches the statutory duty of confidentiality and privacy, an entity discloses the results of a person’s HIV test in violation of Florida Statutes, intentional torts resulting predominantly in emotional damages, freestanding torts such as wrongful birth or negligent stillbirth, and any case where the tortfeasor’s negligence may be characterized as willful and wanton. See Hagen v. Coca Cola Bottling Co., 804 So. 2d 1234 (Fla. 2001); Gracey v. Eaker, 837 So. 2d 348 (Fla. 2002); Florida Dept. of Corrections v. Abril, 969 So. 2d 201 (Fla. 2007); Rowell v. Holt, 850 So. 2d 474 (Fla. 2003); Kush v. Lloyd, 616 So. 2d 415 (Fla. 1992); Tanner v. Hartog, 696 So. 2d 705 (Fla. 1997), and Brady v. SCI Funeral Services of Florida, Inc., 948 So. 2d 976, 978 (Fla. 1st DCA 2007).

< p>4. There is no requirement that a party have a legal relationship with the injured or deceased person in order to bring a claim for negligent infliction of emotional distress. Watters v. Walgreen Co., 967 So. 2d 930 (Fla. 1st DCA 2007). Whether a particular relationship qualifies as a “close personal relationship” will depend on the facts of the particular case, and “is typically a question of fact.” Id. at 932 (citing Zell v. Meek, 665 So. 2d 1048 (Fla. 1995)).

420 . 7 BURDEN OF PROOF ON CLAIM

If the greater weight of the evidence does not support (claimant’s) claim, your verdict should be for (defendant) .

However, if the greater weight of the evidence supports (claimant’s) claim, [then your verdict should be for (claimant) and against (defendant)] [then you shall consider the defense raised by (defendant)].

< p>[If the greater weight of the evidence supports the defense, your verdict should be for (defendant). However, if the greater weight of the evidence does not support the defense, your verdict should be for (claimant) and against (defendant).]

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