West Palm Beach car accident - Jury Instruction

MODEL INSTRUCTION NO. 1

Automobile collision; comparative negligence; single claimant and defendant; no counterclaim;
no-fault threshold issue; witnesses testifying in foreign language; instructions for beginning and end of case; use of special verdict in burden of proof and damage instructions

Facts of the hypothetical case:

West Palm Beach car accident victim was injured when the automobile he was driving collided with one driven by Negligent driver. West Palm Beach car accident victim sued Negligent driver. Negligent driver pleaded comparative negligence. Questions of negligence, compar¬ative negligence, causation, permanency of West Palm Beach car accident victim’s injuries and damages are to be submitted to the jury. Traffic Accident Reconstruction experts testified in the case. There is no Fabre issue. Several witnesses will testify in Spanish.

The court’s instruction:

These instructions illustrate: (1) instructions to be given at the beginning of the case, (2) instructions to be given before final argument and the closing instructions to be given after final argument. Instruction number (2), to be given before final argument, also illustrates how the court could utilize the Special Verdict questions in the burden of proof portion of the instruction.

(1) Instruction for the beginning of the case:

[101.2] Members of the jury, do you solemnly swear or affirm that you will well and truly try this case between West Palm Beach car accident victim and Negligent driver, and a true verdict render according to the law and evidence?

[202.1] You have now taken an oath to serve as jurors in this trial. Before we begin, I am going to tell you about the rules of law that apply to this case. It is my intention to give you [all] [most] of the rules of law but it might be that I will not know for sure all of the law that might apply in this case until all of the evidence is presented. However, I can anticipate most of the law and give it to you at the beginning of the trial so that you can better understand what to be looking for as the evidence is presented. If I later decide that different law applies to the case, I will call that to your attention. In any event, at the end of the evidence I will give you the final instructions that you must use to decide this case and it is those instructions on which you must base your verdict. At that time, you will have a complete written set of the instructions so you do not have to memorize what I am about to tell you.

[401.2] The claims and defenses in this case are as follows. West Palm Beach car accident victim claims that Negligent driver was negligent in the operation of the vehicle she was driving which caused him harm.

Negligent driver denies that claim and also claims that West Palm Beach car accident victim was himself negligent in the operation of his vehicle, which caused his harm.

The parties must prove their claims by the greater weight of the evidence. I will now define some of the terms you will use in deciding this case.

[401.3] “Greater weight of the evidence” means the more per¬sua¬sive and convincing force and effect of the entire evidence in the case.

[401.4] Negligence is the failure to use reasonable care, which is the care that a reasonably careful person would use under like circum¬stances. 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.

If there is an issue about the applicability of a statute
this instruction would be omitted at this time.

[401.9] (Read or paraphrase the applicable statute or refer to the ordinance or regulation admitted in evidence.) Violation of this statute is evidence of negligence. It is not, however, conclusive evidence of negligence. If you find that Negligent driver violated this statute, you may consider that fact, together with the other facts and circumstances, in deciding whether she was negligent.

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

[401.12(b)] 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 combina¬tion with some other cause if the negligence contributes substantially to producing such loss, injury, or damage.

[401.18] The issues you must decide on West Palm Beach car accident victim’s claim against Negligent driver are whether Negligent driver was negligent in the operation of her vehicle, and, if so, whether that negligence was a legal cause of the loss, injury, or damage to West Palm Beach car accident victim.

[401.21] If the greater weight of the evidence does not support West Palm Beach car accident victim’s claim, your verdict should be for Negligent driver.

[401.22] If, however, the greater weight of the evidence supports West Palm Beach car accident victim’s claim, then you shall consider the defense raised by Negligent driver.

[401.22(a)] On that defense, the issue for you to decide is whether West Palm Beach car accident victim was himself negligent in the operation of his vehicle and, if so, whether that negligence was a contributing legal cause of injury or damage to West Palm Beach car accident victim.

[401.23] If the greater weight of the evidence does not support Negligent driver’s defense and the greater weight of the evidence supports West Palm Beach car accident victim’s claim, then your verdict should be for West Palm Beach car accident victim in the total amount of his damages.

If, however, the greater weight of the evidence shows that both West Palm Beach car accident victim and Negligent driver were negligent and that the negligence of each contributed as a legal cause of loss, injury, or damage sustained by West Palm Beach car accident victim, you should decide and write on the verdict form, which I will give you at the end of the case, what percentage of the total negligence of both parties to this action was caused by each of them.

[501.4] If your verdict is for Negligent driver, you will not consider the matter of damages. But, if the greater weight of the evidence supports West Palm Beach car accident victim’s claim, you should determine and write on the verdict form, in dollars, the total amount of money that the greater weight of the evidence shows will fairly and adequately compensate West Palm Beach car accident victim for the following elements of damage to the extent that they have not been paid and are not payable by personal injury protection benefits, including damage that West Palm Beach car accident victim is reasonably certain to incur in the future:

The reasonable expense of hospitalization and medical care and treatment necessarily or reasonably obtained by West Palm Beach car accident victim in the past, or to be so obtained in the future.

Any earnings lost in the past, and any loss of ability to earn money in the future.

You must next decide whether West Palm Beach car accident victim’s injury, resulting from the incident in this case, is permanent. An injury is permanent if it, in whole or in part, consists of an injury that the evidence shows is permanent to a reasonable degree of medical probability.

If the greater weight of the evidence does not establish that West Palm Beach car accident victim’s injury is permanent, then your verdict is complete. If, however, the greater weight of the evidence shows that West Palm Beach car accident victim’s injury is permanent, you should also award damages for this additional element of damage:

Any bodily injury sustained by West Palm Beach car accident victim and any resulting pain and suffering, disability or physical impairment, disfigurement, mental anguish, inconvenience or loss of capacity for the enjoyment of life experienced in the past, or to be experienced in the future. There is no exact standard for measuring such damage. The amount should be fair and just, in the light of the evidence.

[501.5] In determining the total amount of damages, you should not make any reduction because of the negligence, if any, of West Palm Beach car accident victim. The court will enter a judgment based on your verdict and, if you find that West Palm Beach car accident victim was negligent in any degree, the court, in entering judgment, will reduce the total amount of damages by the percentage of negligence, which you find was caused by West Palm Beach car accident victim.

[501.6] If the greater weight of the evidence shows that West Palm Beach car accident victim has been permanently injured, you may consider his life expec¬tancy. Mortality tables may be received in evidence and, if they are, you may consider them in determining how long West Palm Beach car accident victim may be expected to live. Mortality tables are not binding on you, but may be considered together with other evidence in the case bearing on West Palm Beach car accident victim’s health, age and physical condition, before and after the injury, in determining the probable length of his life.

[501.7] Any amount of damages, which you allow for future medical expenses or loss of ability to earn money in the future, should be reduced to its present money value, and only the present money value of these future economic damages should be included in your verdict. The present money value of future economic damages is the sum of money needed now which, together with what that sum will earn in the future, will compensate West Palm Beach car accident victim for these losses as they are actually experienced in future years.

[601.1] In deciding this case, it is your duty as jurors to decide the issues, and only those issues, that I submit for your determination at the end of the case and to answer certain questions I will ask you to answer on a special form, called a special verdict. You must come to an agreement about what your answers will be. Your agreed-upon answers to my questions are called your jury verdict.

In reaching your verdict, you must think about and weigh the testimony and any documents, photographs, or other material that has been received in evidence. You may also consider any facts that were admitted or agreed to by the lawyers. Your job is to determine what the facts are. You may use reason and common sense to reach conclusions. You may draw reasonable inferences from the evidence. But you should not guess about things that were not covered here. And, you must always apply the law as I finally explain it to you at the end of the case.

[601.2(a)] Let me speak briefly about witnesses. In evaluating the believability of any witness and the weight you will give the testimony of any witness, you may properly consider the demeanor of the witness while testifying; the frankness or lack of frankness of the witness; the intelligence of the witness; any interest the witness may have in the outcome of the case; the means and opportunity the witness had to know the facts about which the witness testified; the ability of the witness to remember the matters about which the witness testified; and the reasonableness of the testimony of the witness, considered in the light of all the evidence in the case and in the light of your own experience and common sense.

[601.2(b)] Some of the testimony you hear may be in the form of opinions about certain technical subjects.

You may accept such opinion testimony, reject it, or give it the weight you think it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case.

[202.3] Now that you have heard the law, I want to let you know what you can expect as the trial proceeds.

Opening Statements: In a few moments, the attorneys will each have a chance to make what are called opening statements. In an opening statement, an attorney is allowed to give you [his] [her] views about what the evidence will be in the trial and what you are likely to see and hear in the testimony.

Evidentiary Phase: After the attorneys’ opening statements the plaintiff will bring his witnesses and evidence to you, followed by the defendant.

Evidence: Evidence is the information that the law allows you to see or hear in deciding this case. Evidence includes the testimony of the witnesses, documents, and anything else that I instruct you to consider.

Witnesses: A witness is a person who takes an oath to tell the truth and then answers attorneys’ questions for the jury. The answering of attorneys’ questions by witnesses is called “giving testimony.” Testimony means statements that are made when someone has sworn an oath to tell the truth.

The plaintiff’s lawyer will normally ask a witness the questions first. That is called direct examination. Then the defense lawyer may ask the same witness additional questions about whatever the witness has testified to. That is called cross-examination. Certain documents or other evidence may also be shown to you during direct or cross-examination. After the plaintiff’s witnesses have testified, the defendant will have the opportunity to put witnesses on the stand and go through the same process. Then the plaintiff’s lawyer gets to do cross-examination. The process is designed to be fair to both sides.

It is important that you remember that testimony comes from witnesses. The attorneys do not give testimony and they are not themselves witnesses.

Objections: Sometimes the attorneys will disagree about the rules for trial procedure when a question is asked of a witness. When that happens, one of the lawyers may make what is called an “objection.” The rules for a trial can be complicated, and there are many reasons for the attorneys to object. You should simply wait for me to decide how to proceed. If I say that an objection is “sustained,” that means you should disregard the question and the witness may not answer the question. If I say that the objection is “overruled,” that means the witness may answer the question.

When there is an objection and I make a decision, you must not assume from that decision that I have any particular opinion other than that the rules for conducting a trial are being correctly followed. If I say a question may not be asked or answered, you must not try to guess what the answer would have been. That is against the rules, too.

Side Bar Conferences: Sometimes I will need to speak to the attorneys about legal elements of the case that are not appropriate for the jury to hear. The attorneys and I will try to have as few of these conferences as possible while you are giving us your valuable time in the courtroom. But, if we do have to have such a conference during testimony, we will try to hold the conference at the side of my desk so that we do not have to take a break and ask you to leave the courtroom.

Recesses: Breaks in an ongoing trial are usually called “recesses.” During a recess you still have your duties as a juror and must follow the rules, even while having coffee, at lunch, or at home.

Instructions Before Closing Arguments: After all the evidence has been presented to you, I will again instruct you on the law that you must follow. At that time you will have a written set of the instructions for your use.

Closing Arguments: The attorneys will then have the opportunity to make their final presentations to you, which are called closing arguments.

Final Instructions: After you have heard the closing arguments, I will instruct you further in the law as well as explain to you the procedures you must follow to decide the case.

Deliberations: After you hear the final jury instructions, you will go to the jury room and discuss and decide the questions I have put on your verdict form. [You will have a copy of the jury instructions to use during your discussions.] The discussions you have and the decisions you make are usually called “jury deliberations.” Your deliberations are absolutely private and neither I nor anyone else will be with you in the jury room.

Verdict: When you have finished answering the questions, you will give the verdict form to the bailiff, and we will all return to the courtroom where your verdict will be read. When that is completed, you will be released from your assignment as a juror.

What are the rules?

Finally, before we begin the trial, I want to give you just a brief explanation of rules you must follow as the case proceeds.

Keeping an Open Mind. You must pay close attention to the testimony and other evidence as it comes into the trial. However, you must avoid forming any final opinion or telling anyone else your views on the case until you begin your deliberations. This rule requires you to keep an open mind until you have heard all of the evidence and is designed to prevent you from influencing how your fellow jurors think until they have heard all of the evidence and had an opportunity to form their own opinions. The time and place for coming to your final opinions and speaking about them with your fellow jurors is during deliberations in the jury room, after all of the evidence has been presented, closing arguments have been made, and I have instructed you on the law. It is important that you hear all of the facts and that you hear the law and how to apply it before you start deciding anything.

Consider Only the Evidence. It is the things you hear and see in this courtroom that matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that you cannot do any work or investigation of your own about the case. You cannot obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever, including the Internet, and you cannot visit places mentioned in the trial.

Do not provide any information about this case to anyone, including friends or family members. Do not let anyone, including the closest family members, make comments to you or ask questions about the trial. Similarly, it is important that you avoid reading any newspaper accounts or watching or listening to television or radio comments that have anything to do with this case or its subject.

No Mid-Trial Discussions. When we are in a recess, do not discuss anything about the trial or the case with each other or with anyone else. If attorneys approach you, don’t speak with them. The law says they are to avoid contact with you. If an attorney will not look at you or speak to you, do not be offended or form a conclusion about that behavior. The attorney is not supposed to interact with jurors outside of the courtroom and is only following the rules. The attorney is not being impolite. If an attorney or anyone else does try to speak with you or says something about the case in your presence, please inform the bailiff immediately.

Only the Jury Decides. Only you get to deliberate and answer the verdict questions at the end of the trial. I will not intrude into your deliberations at all. I am required to be neutral. You should not assume that I prefer one decision over another. You should not try to guess what my opinion is about any part of the case. It would be wrong for you to conclude that anything I say or do means that I am for one side or another in the trial. Discussing and deciding the facts is your job alone.

[202.4] If you would like to take notes during the trial, you may do so. On the other hand, of course, you are not required to take notes if you do not want to. That will be left up to you individually.

You will be provided with a note pad and a pen for use if you wish to take notes. Any notes that you take will be for your personal use. However, you should not take them with you from the courtroom. During recesses, the bailiff will take possession of your notes and will return them to you when we reconvene. After you have completed your deliberations, the bailiff will deliver your notes to me. They will be destroyed. No one will ever read your notes.

If you take notes, do not get so involved in note-taking that you become distracted from the proceedings. Your notes should be used only as aids to your memory.

Whether or not you take notes, you should rely on your memory of the evidence and you should not be unduly influenced by the notes of other jurors. Notes are not entitled to any greater weight than each juror’s memory of the evidence.

[202.4] During the trial, you may have a question you think should be asked of a witness. If so, there is a procedure by which you may request that I ask the witness a question. After all the attorneys have completed their questioning of the witness, you should raise your hand if you have a question. I will then give you sufficient time to write the question on a piece of paper, fold it, and give it to the bailiff, who will pass it to me. You must not show your question to anyone or discuss it with anyone.

I will then review the question with the attorneys. Under our law, only certain evidence may be considered by a jury in determining a verdict. You are bound by the same rules of evidence that control the attorneys’ questions. If I decide that the question may not be asked under our rules of evidence, I will tell you. Otherwise, I will direct the question to the witness. The attorneys may then ask follow-up questions if they wish. If there are additional questions from jurors, we will follow the same procedure again.

By providing this procedure, I do not mean to suggest that you must or should submit written questions for witnesses. In most cases, the lawyers will have asked the necessary questions.

[202.5] During the trial, some witnesses may testify in Spanish which will be interpreted in English.

The evidence you are to consider is only that provided through the official court interpreters. Although some of you may know Spanish, it is important that all jurors consider the same evidence. Therefore, you must accept the English interpretation. You must disregard any different meaning.

If, however, during the testimony there is a question as to the accuracy of the English interpretation, you should bring this matter to my attention immediately by raising your hand. You should not ask your question or make any comment about the interpretation in the presence of the other jurors, or otherwise share your question or concern with any of them. I will take steps to see if your question can be answered and any discrepancy resolved. If, however, after such efforts a discrepancy remains, I emphasize that you must rely only upon the official English interpretation as provided by the court interpreter and disregard any other contrary interpretation.

The attorneys will now present their opening statements after which you will begin hearing the evidence.

(2) Instruction before final argument:

[401.1] 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, however, the same as [if different explain how] 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.

[401.2] The claims and defenses in this case are as follows. West Palm Beach car accident victim claims that Negligent driver was negligent in the operation of the vehicle she was driving which caused him harm.

Negligent driver denies that claim and also claims that West Palm Beach car accident victim was himself negligent in the operation of his vehicle, which caused his harm.

The parties must prove their claims by the greater weight of the evidence. I will now define some of the terms you will use in deciding this case.

[401.3] “Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.

[401.4] Negligence is the failure to use reasonable care, which is the care that a reasonably careful person would use under like circum¬stances. 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.

[401.9] (Read or paraphrase the applicable statute or refer to the ordinance or regulation admitted in evidence.) Violation of this statute is evidence of negligence. It is not, however, conclusive evidence of negligence. If you find that Negligent driver violated this statute, you may consider that fact, together with the other facts and circumstances, in deciding whether she was negligent.

[401.12(a)] 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 negligence, the loss, injury, or damage would not have occurred.

[401.12(b)] 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 combina¬tion with some other cause if the negligence contributes sub¬stan-tially to producing such loss, injury, or damage.

[401.18] The issues you must decide on West Palm Beach car accident victim’s claim against Negligent driver are whether Negligent driver was negligent in the operation of her vehicle, and, if so, whether that negligence was a legal cause of the loss, injury, or damage to West Palm Beach car accident victim.

You will be given a Special Verdict to use in this case. The first question in the Special Verdict is:

1. Was there negligence on the part of Defendant, NEGLIGENT DRIVER, which was a legal cause of damage to Plaintiff, WEST PALM BEACH CAR ACCIDENT VICTIM?

YES NO

[401.21, 22] If the greater weight of the evidence supports West Palm Beach car accident victim’s claim, you will answer that question “YES.” If, however, your answer to question 1 is “NO,” your verdict is for the Defendant, and you should not proceed further, except to date and sign the Special Verdict and return it to the courtroom.

If you answered the first question YES, then you shall consider the defense raised by Negligent driver.

[401.22(a)] On that defense, the issue for you to decide is whether West Palm Beach car accident victim was himself negligent in the operation of his vehicle and, if so, whether that negligence was a contributing legal cause of injury or damage to West Palm Beach car accident victim. In connection with that defense, the second question in the Special Verdict is:

2. Was there negligence on the part of Plaintiff, WEST PALM BEACH CAR ACCIDENT VICTIM, which was a legal cause of his damage?

YES NO

[401.23] If the greater weight of the evidence supports Rachel Roe’s defense, you will answer that question “Yes.” If, however, your answer to that question is “NO” and the greater weight of the evidence supports West Palm Beach car accident victim’s claim, then your verdict should be for West Palm Beach car accident victim in the total amount of his damages and you will skip the third question in the Special Verdict and proceed directly to the questions concerning damages.

If, however, the greater weight of the evidence shows that both West Palm Beach car accident victim and Negligent driver were negligent and that the negligence of each contributed as a legal cause of loss, injury, or damage sustained by West Palm Beach car accident victim, you should decide and write on the verdict form what percentage of the total negligence of both parties to this action was caused by each of them. In that connection, the third question in the Special Verdict is:

3. State the percentage of negligence which was a legal cause of damage to Plaintiff, WEST PALM BEACH CAR ACCIDENT VICTIM, that you charge to:

NEGLIGENT DRIVER %

WEST PALM BEACH CAR ACCIDENT VICTIM %

[501.4] If your verdict is for Negligent driver, you will not consider the matter of damages. But, if the greater weight of the evidence supports West Palm Beach car accident victim’s claim and you answered the first question “YES,” you should determine and write on the verdict form, in dollars, the total amount of money that the greater weight of the evidence shows will fairly and adequately compensate West Palm Beach car accident victim for the following elements of damage to the extent that they have not been paid and are not payable by personal injury protection benefits, including damage that West Palm Beach car accident victim is reasonably certain to incur in the future:

The reasonable expense of hospitalization and medical care and treatment necessarily or reasonably obtained by West Palm Beach car accident victim in the past, or to be so obtained in the future:

Any earnings lost in the past, and any loss of ability to earn money in the future.

These appear as questions 4 and 5 in the Special Verdict.

You must next decide whether West Palm Beach car accident victim’s injury, resulting from the incident in this case, is permanent. An injury is permanent if it, in whole or in part, consists of an injury that the evidence shows is permanent to a reasonable degree of medical probability.

If the greater weight of the evidence does not establish that West Palm Beach car accident victim’s injury is permanent, then your verdict is complete. If, however, the greater weight of the evidence shows that West Palm Beach car accident victim’s injury is permanent, you should also award damages for this additional element of damage:

Any bodily injury sustained by West Palm Beach car accident victim and any resulting pain and suffering, disability or physical impairment, disfigurement, mental anguish, inconvenience or loss of capacity for the enjoyment of life experienced in the past, or to be experienced in the future. There is no exact standard for measuring