cautioning “that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability”
How later courts described this case
- cautioning “that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability”
- adopting Florida Standard Jury Instruction 402.4c
Written by the judges who cited it.
The opinion
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Committee) has submitted proposed changes to the standard civil jury instructions and asks that the Court authorize the instructions for publication and use.
1
We have jurisdiction.
See
art. V, § 2(a), Fla. Const.
BACKGROUND
In 2006, the Committee embarked on the most comprehensive review and evaluation of Florida’s standard civil jury instructions since the first publication in 1967. Previously, the Committee has maintained the original numbering system and either assigned the next available number or added new instructions to a “Miscellaneous” section when seeking authorization for additional instructions by the Court. In addition, because the book has only been available in paper format in the past, the Committee had attempted to
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minimize the number of pages to be republished by using cross-references and directing users to insert other instructions in various locations.
As a result of the manner in which revisions of the standard civil jury instructions have been perfected over the years, use of the current book has become rather difficult. Following extensive review and revision, the Committee submitted its report in case number SC09-284, proposing the reorganization of the standard civil jury instructions and amendments limited to plain English modifications to make the instructions easier to understand. The Committee also submitted a number of reports that extended beyond reorganizing and rewording the civil instructions, seeking amendment of substantive aspects of some standard civil instructions under the reorganization format.
2
The Committee presented the book reorganization to the bench and bar in a notice published in
The Florida Bar News
on April 15, 2008, inviting comment and identifying the web address on The Florida Bar’s website for access to the entire reformatted book. Proposed amendments to specific instructions were published separately. As discussed below, we authorize the Committee’s proposals with the exception of the proposed modification to the standard civil instruction defining “greater weight of the evidence.”
DISCUSSION
1. Reorganization and Updating Wording
Reorganization of the standard civil jury instructions is based upon the delineation
of
separate sections, which include oaths, preliminary instructions, evidence instructions, substantive instructions, damages, general substantive instructions, closing instructions, and supplemental matters. Each of the substantive areas — i.e., General Negligence; Professional Negligence; Products Liability;
3
Insurer’s Bad Faith; Defamation; Malicious Prosecution; False Imprisonment; Tortious Interference with Business Relationships; Misrepresentation; Outrageous Conduct Causing Severe Emotional Distress; Civil Theft; Contribution Among Tortfeasors; Claim for Personal Injury Protection Insurance (PIP) Benefits (Medical Benefits Only); Intentional Tort as an Exception to Exclusive Remedy of Workers’ Compensation; and Unlawful Retaliátion
4
— are organized into separate sections and include pertinent standard instructions which are reproduced within each substantive section or, where necessary, tailored to the specific substantive area.
The basic “template” used in the reorganization of the substantive law instructions includes an introduction instruction, an instruction with a simple summary of the case, instructions with the rules, and instructions on the issues with the applicable burden of proof. The substantive sections generally include instructions covering the following areas: Introduction; Summary of Claims; Greater Weight of the Evidence; Clear and Convincing Evidence; Legal Cause; Preemptive Charges; Burden of Proof on Preliminary Issues; Issues on Claim (also designated Issues on Main
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Claim or Issues on Plaintiffs Claim); Burden of Proof (also designated Burden of Proof on Main Claim or Burden of Proof on Claim); Defense Issues; and Burden of Proof on Defense Issues.
The amended standard civil instructions also include a number of plain language modifications which attempt to simplify the instructions to increase juror understanding, by changing nonessential “legalese” to its plain English equivalent. For example, the following substitutions are included in the amended instructions: “before/after” for “prior/subsequent”; “like” for “same”; “the” for “such”; “amount” for “degree”; “incident in this case” for “incident complained of’; “decide” for “determine”; “was caused by” for “chargeable to”; and “because” for “on account of.”
Under the amended instructions, in the exercise of its discretion, the trial court may choose to instruct the jury at the beginning of the case as to substantive matters, prior to the introduction of evidence. To that end, we authorize introductory instructions under section 200 and initial instructions for each substantive section. We reiterate that the decision as to the timing of instructing the jury rests solely with the trial judge.
The amended instructions also conform with the Court’s prior amendments to various civil rules of court and its authorization for publication and use of a number of standard civil jury instructions upon review of recommendations made by the Jury Innovation Committee.
See In re Amends, to the Fla. Rules of Civil Proc.,
967 So.2d 178 (Fla.2007).
5
Finally, with regard to the reorganization and modification of the standard civil jury instructions, we decline to authorize the proposal to amend the definition of “greater weight of the evidence.” Instead, we reauthorize the substance of former standard civil jury instruction 3.9, “Greater Weight of the Evidence,” which is now designated as, or included in, instructions 401.3, 402.3, 404.3, 405.3, 406.3, 407.3, 408.3, 409.3, 410.3, 412.5, 413.3, 503.1b(l), b(2), b(3), b(4), and c(l), and 503.2b(l), (b)(2), (b)(3), and (b)(4).
6
2. Substantive Amendments
The Committee also proposed substantive changes to a number of standard civil jury instructions, including the following:
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401.8, Greater Weight of the Evidence; 401.4, Negligence; 401.23, Burden of Proof on Defense Issues; 402.4c; Medical Negligence, Foreign Bodies; 402.4d, Medical Negligence, Failure to make or maintain records; 402.9, Preliminary Issues — Vicarious Liability; 406.4, Probable Cause; 407.8, Defense Issues; 601.2, Believability of Witnesses; 700, Closing Instruction; and 801.3, Closing Instructions, Jury Deadlocked. The Committee’s proposals also include the following new instructions: 402.11d, Issues on Main Claim — Negligence of health care facility to assure comprehensive risk management and competence of medical staff; 402.12, Issues on Claim of Attorney Malpractice Arising Out of Civil Litigation; 404.5, Medical Malpractice Insurer’s Bad Faith Failure to Settle; 414.5, Intentional Tort' Exception to Exclusive Remedy of Workers’ Compensation; and 503.1b(4), Punitive Damages— Bifurcated Procedure — Vicarious liability for acts of employee where employee is not a party or is not being sued for punitive damages. Because these instructions as set forth in the appendix to this opinion are fully engrossed, we briefly describe the amendments to the instructions under the new numbering system that we authorize for publication and use.
In Re: Standard Jury Instructions In Civil Cases
— Report
No. 09-02 (Greater Weight of the Evidence, Negligence, Believability of Witnesses and Closing Instructions),
No. SC09-296
As explained above, we reject the Committee’s proposal to amend the Greater Weight of the Evidence instruction. Rather, we authorize for publication and use the substance of former instruction 3.9 as instruction 401.3. The remaining instructions in this case are authorized for publication and use as proposed. Amendments to former instruction 4.1, the negligence instruction, numbered 401.4, are stylistic; the substantive change is in the Notes on Use for 401.4, which expands the commentary on whether there is a right to assume others will exercise reasonable care, and how that is determined, and adds notes recommending that no instruction be given concerning “sudden emergency,” “traffic,” or “railroads.” Instruction 601.2, Believability of Witnesses, formerly instruction 2.2, is amended to add the phrase “Let me speak briefly about witnesses” at the beginning of the instruction and substitutes the word “evaluating” for “determining.” Section 700 combines former instruction numbers 7.1, Prejudice and Sympathy/Judge Not Involved, and instruction 7.2, Use of Notes During Deliberations; Election of Foreman; Verdict Forms, and combines them into one instruction.
In Re: Standard Jury Instructions In Civil Cases
—Report
No. 09-03 (Jury Deadlocked),
No. SC09-299
Instruction 801.3, in addition to substituting plain English for the language in former instruction 7.3(c), adds new language which permits the jurors to make a specific request that the court reporter read back relevant portions of the trial testimony. The trial court, however, retains broad discretion whether to grant or deny any request to read back testimony.
In Re: Standard Jury Instructions In Civil Cases
— Report
No. 09-04 (Burden of Proof on Defense Issues),
No. SC09-300
Instruction 401.23, Burden of Proof on Defense Issues, formerly instruction 3.7, adds three new paragraphs to the instruction for use where the defense asserts the following defenses: comparative negligence; apportionment of a nonparty; or both.
See Fabre v. Marin,
623 So.2d 1182 (Fla.1993).
In Re: Standard Jury Instructions In Civil Cases
— Report
No. 09-05 (Medical Malpractice Insurer’s Bad Faith Failure to Settle),
No. SC09-301
Instruction 404.5 is new, applicable in cases alleging a medical malpractice insur
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er’s bad faith failure to settle a claim within policy limits.
In Re: Standard Jury Instructions In Civil Cases
— Report
No. 09-06 (Probable Cause
— Malicious
Prosecution and False Imprisonment),
No. SC09-302
Instruction 406.4, Probable Cause, formerly instruction MI 5.1b, defines probable cause in a proceeding for malicious prosecution, while instruction 407.8, Defense Issues, formerly MI 6.1g, defines probable cause in the context of a merchant’s defense to the charge of false imprisonment. The revisions are intended to harmonize the definitions of probable cause as used in these two instructions, and do not substantively alter the standard for probable cause.
In Re: Standard Jury Instructions In Civil Cases
— Report
No. 09-07 (Intentional Tort Exception to Exclusive Remedy of Workers’ Compensation),
No. SC09-303
Instruction 414.5 is new, and addresses the “intentional tort exception” in workers’ compensation cases.
See
§ 440.11(l)(b), Fla. Stat. (2009).
In Re: Standard Jury Instructions In Civil Cases
— Report
No. 09-08 (Professional Negligence),
No. SC09-304
Instruction 402.4c substitutes plain English for the language in former instruction 4.2 pertaining to a claim for medical negligence, based upon the presence of a foreign object in a patient’s body. A new instruction, 402.4d, focuses on the claim of negligence for failure to make or maintain medical records, consistent with this Court’s decision in
Public Health Trust of Dade County v. Valcin,
507 So.2d
596
(Fla.1987). Instruction 402.9, formerly instruction 3.3b, addresses vicarious liability as it relates to employees, independent contractors, and agents (actual and apparent) of the defendant. The instruction as authorized substantially reorganizes former instruction 3.3b for clarity and understandability. In addition, instruction 402.9 includes new language pertaining to specific substantive issues, including nondele-gable duties, and the defendant’s duty to exercise reasonable care to ensure that his or her employees, independent contractors, and agents are competent to perform the required services.
See Insinga v. LaBella,
543 So.2d 209 (Fla.1989). Instruction 402.11d is new, and provides an instruction for professional negligence based on the negligence of a health care facility for failing to ensure comprehensive risk management and the competence of its medical staff.
See
§ 776.110, Fla. Stat. (2009). Finally, instruction 402.12, also new, covers claims of attorney malpractice in civil litigation.
In Re: Standard Jury Instructions In Civil Cases
— Report
No. 09-09 (Punitive Damages),
No. SC09-306
Instruction 503.1b(4) is a new instruction pertaining to punitive damages, intended to cover two scenarios not addressed in the former PD instructions. Those scenarios include: (1) where the plaintiff seeks punitive damages from an employer under a theory of vicarious liability but the employee whose conduct is the basis for the claim is not sued individually, and (2) where the plaintiff seeks punitive damages from an employer under a theory of vicarious liability but the employee whose conduct is the basis for the claim is not a party to the action at all. The structure and language in instruction 503.1b(4) is the same as or similar to language this Court has previously authorized in strict liability instructions, and we authorize it as proposed.
CONCLUSION
Having considered the Committee’s reports, the comments received in response, and the Committee’s replies to those com-
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merits, we hereby authorize for publication and use the reorganization and modification of the standard civil jury instructions, with the exception of the proposed modifications to instructions 401.3, 402.3, 404.3, 405.3, 406.3, 407.3, 408.3, 409.3, 410.3, 412.5, 413.3, 503.1b(l), b(2), b(3), b(4), and c(l), and 503.2b(l), b(2), b(3), and b(4), defining “greater weight of the evidence.” Those numbered instructions retain the definition as previously authorized in former instruction 3.9. In addition, we also authorize for publication and use the specific instructions including substantive changes, as discussed above. All of the standard civil jury instructions, revised or renumbered or both, appear in the appendix to this opinion, fully engrossed and ready for use.
In authorizing the publication and use of the standard civil jury instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix, fully engrossed, shall be effective when this opinion becomes final.
Finally, we wish to acknowledge the hard work and thoughtful consideration of the Committee in bringing to the Court its thorough recommendations to improve the jury system in civil cases in Florida. As the result of the dedication of those who participated in this matter, the citizens of this state will experience a more meaningful and satisfying jury experience, while facilitating a more efficient and more effective jury system overall.
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.
APPENDIX
SECTION 101 — OATHS
101.1 Oath of Jurors Before Voir Dire
101.2 Oath of Jurors After Voir Dire
101.3 Oath of a Witness
101.4 Oath of an Interpreter
101.1 OATH OF JURORS BEFORE VOIR DIRE
Do you solemnly swear or affirm that you will answer truthfully all questions asked of you as prospective jurors [so help you God]?
101.2 OATH OF JUROR AFTER YOIR DIRE
Do you solemnly swear or affirm that you will well and truly try this case between the [plaintiff(s> ] [petitioners) ] and [defendant(s) ] [respondents) ], and a true verdict render according to the law and evidence [so help you God]?
101.3 OATH OF A WITNESS
Do you solemnly swear or affirm that the evidence you are about to give will be the truth, the whole truth, and nothing but the truth [so help you God]?
101.4 OATH OF AN INTERPRETER
Do you solemnly swear or affirm that you will make a true interpretation to the witness of all questions or statements made to [him] [her] in a language
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which that person understands, and a true interpretation of the witness’ statements into the English language [so help you God]?
SECTION 200 — PRELIMINARY INSTRUCTIONS
A. During Jury Instruction
201.1 Description of the Case
201.2 Introduction of Participants and Their Roles
201.3 Explanation of the Voir Dire Process
B. After Jury Selected and Sworn
202.1 Introduction
202.2 Explanation of the Trial Procedure
202.3 Note-Taking by Jurors
202.4 Juror Questions
202.5 Jury to Be Guided by Official English Translation/Interpretation
201.1 DESCRIPTION OF THE CASE
(Prior to Voir Dire)
Welcome. [I] [The clerk] will now administer your oath.
Now that you have been sworn, I’d like to give you an idea about what we are here to do.
This is a civil trial. A civil trial is different from a criminal case, where a defendant is charged by the state prosecutor with committing a crime. The subject of a civil trial is a disagreement between people or companies [or others, as appropriate], where the claims of one or more of these parties have been brought to court to be resolved. It is called “a trial of a lawsuit.”
This is a case about (insert brief description of claim(s) and defense(s) brought to trial in this case). *
The incident involved in this case occurred on (date) at (location). (Add any other information relevant to voir dire).
The principal witnesses who will testify in this case are (list witnesses).
NOTE ON USE FOR 201.1
* See, for example, 401.2.
201.2INTRODUCTION OF PARTICIPANTS AND THEIR ROLES
Who are the people here and what do they do?
Judge/Court: I am the Judge. You may hear people occasionally refer to me as “The Court.” That is the formal name for my role. My job is to maintain order and decide how to apply the rules of the law to the trial. I will also explain various rules to you that you will need to know in order to do your job as the jury. It is my job to remain neutral on the issues of this lawsuit.
Attorneys: The attorneys to whom I will introduce you have the job of representing their clients. That is, they speak for their clients here at the trial. They have taken oaths as attorneys to do their best and to follow the rules of their profession.
Plaintiffs Counsel: The attorney on this side of the courtroom, (introduce by name), represents (client name) and is the person who filed the lawsuit here at the courthouse. [His] [Her] job is to present [his] [her] client’s side of things to you. [He] [She] and [his] [her] client will be referred to most of the time as “the plaintiff.”
Defendant’s Counsel: The attorney on this side of the courtroom, (introduce by name), represents (client name), the one
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who has been sued. [His] [Her] job is to present [his] [her] client’s side of things to you. [He] [She] and [his] [her] client will usually be referred to here as “the defendant.”
Court Clerk: This person sitting in front of me, (name), is the court clerk. [He] [She] is here to assist me with some of the mechanics of the trial process, including the numbering and collection of the exhibits that are introduced in the course of the trial.
Court Reporter: The person sitting at the stenographic machine, (name), is the court reporter. [His] [Her] job is to keep an accurate legal record of everything we say and do during this trial.
Bailiff: The person over there, (name), is the bailiff. [His] [Her] job is to maintain order and security in the courtroom. The bailiff is also my representative to the jury. Anything you need or any problems that come up for you during the course of the trial should be brought to [him] [her]. However, the bailiff cannot answer any of your questions about the case. Only I can do that.
Jury: Last, but not least, is the jury, which we will begin to select in a few moments from among all of you. The jury’s job will be to decide what the facts are and what the facts mean. Jurors should be as neutral as possible at this point and have no fixed opinion about the lawsuit. At the end of the trial the jury will give me a written verdict. A verdict is simply the jury’s answer to my questions about the case.
201.3 EXPLANATION OF THE VOIR DIRE PROCESS
Voir Dire:
The last thing I want to do, before we begin to select the jury, is to explain to you how the selection process works.
Questions/Challenges: This is the part of the case where the parties and their lawyers have the opportunity to get to know a little bit about you, in order to help them come to their own conclusions about your ability to be fair and impartial, so they can decide who they think should be the jurors in this case.
How we go about that is as follows: First, I’ll ask some general questions of you. Then, each of the lawyers will have more specific questions that they will ask of you. After they have asked all of their questions, I will meet with them and they will tell me their choices for jurors. Each side can ask that I exclude a person from serving on a jury if they can give me a reason to believe that he or she might be unable to be fair and impartial. That is what is called a challenge for cause. The lawyers also have a certain number of what are called peremptory challenges, by which they may exclude a person from the jury without giving a reason. By this process of elimination, the remaining persons are selected as the jury. It may take more than one conference among the parties, their attorneys, and me before the final selections are made.
Purpose of Questioning: The questions that you will be asked during this process are not intended to embarrass you or unnecessarily pry into your personal affairs, but it is important that the parties and their attorneys know enough about you to make this important decision. If a question is asked that you would prefer not to answer in front of the whole courtroom, just let me know and you can come up here and give your answer just in front of the attorneys and me. If you have a question of either the
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attorneys or me, don’t hesitate to let me know.
Response to Questioning: There are no right or wrong answers to the questions that will be asked of you. The only thing that I ask is that you answer the questions as frankly and as honestly and as completely as you can. You [will take] [have taken] an oath to answer all questions truthfully and completely and you must do so. Remaining silent when you have information you should disclose is a violation of that oath as well. If a juror violates this oath, it not only may result in having to try the case all over again but also can result in civil and criminal penalties against a juror personally. So, again, it is very important that you be as honest and complete with your answers as you possibly can. If you don’t understand the question, please raise your hand and ask for an explanation or clarification.
In sum, this is a process to assist the parties and their attorneys to select a fair and impartial jury. All of the questions they ask you are for this purpose. If, for any reason, you do not think you can be a fair and impartial juror, you must tell us.
NOTE ON USE FOR 201.3
The publication of this recommended instruction is not intended to intrude upon the trial judge’s own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction.
202.1 INTRODUCTION
Administer oath:
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 and let you know what you can expect as the trial proceeds.
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 will 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 will better understand what to be looking for while the evidence is presented. If I later decide that different or additional law applies to the case, I will tell you. In any event, at the end of the evidence I will give you the final 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.
(Continue with the Substantive law, Damages, and General instructions from the applicable sections of this book, followed by the applicable parts of 202.2 through 202.5)
NOTE ON USE FOR 202.1
The committee recommends giving the jury at the beginning of the trial a complete as possible set of instructions on the Substantive law, Damages, and General Instructions.
202.2 EXPLANATION OF THE TRIAL PROCEDURE
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.
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Evidentiary Phase: After the attorneys’ opening statements the plaintiffs will bring their witnesses and evidence to you.
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 plaintiffs lawyer will normally question the witness 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 plaintiffs witnesses have testified, the defendant will have the opportunity to put witnesses on the stand and go through the same process. Then the plaintiffs 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 instruct you on the law that you must follow. It is important that you remember these instructions to assist you in evaluating the final attorney presentations, which come next, and, later, during your deliberations, to
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help you correctly sort through the evidence to reach your decision.
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
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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.
NOTES ON USE FOR 202.2
1. This instruction is intended for situations in which at the end of the case the jury is going to be instructed before closing argument. The committee strongly recommends instructing the jury before closing argument. If, however, the court is going to instruct the jury after closing argument, this instruction will have to be amended.
2. The publication of this recommended instruction is not intended to intrude upon the trial judge’s own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction.
202.3 NOTE-TAKING BY JURORS
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.
NOTES ON USE FOR 202.3
1. The court should furnish all jurors with the necessary pads and pens for taking notes. Additionally, it may be desirable for jurors to be furnished with envelopes to place the notes for additional privacy.
2.
Fla.R.Jud.Admin.
2.430(k) provides that at the conclusion of the trial, the court shall collect and immediately destroy all juror notes.
3.
Fla.R.Civ.P.
1.455 provides that the trial court may, in its discretion, authorize the use of juror notebooks to contain docu-
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merits and exhibits as an aid to the jurors in performing their duties.
4. When it is impractical to take exhibits into the jury room, this instruction should be modified to describe how the jury will have access to the exhibits.
202.4 JUROR QUESTIONS
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.
NOTE ON USE FOR 202.4
Fla.R.Civ.P.
1.452 mandates that jurors be permitted to submit written questions directed to witnesses or the court.
202.5 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION
[A] [Some] witnesses] may testify in (language to be used) 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 (language used), 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.
NOTE ON USE FOR 202.5
When instructing the jury at the beginning of the trial, this instruction should be used in lieu of 601.3. See
United States v. Franco,
136 F.3d 622, 626 (9th Cir.1998);
United States v. Fuentes-Montijo,
68 F.3d 352, 355-56 (9th Cir.1995). For an example, see Model Instruction No. 1.
SECTION 300 — EVIDENCE INSTRUCTIONS
301.1 Deposition Testimony, Interrogatories, Stipulated Testimo
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ny, Stipulations, and Admissions
301.2 Instruction when First Item of Documentary, Photographic, or Physical Evidence Is Admitted
301.3 Instruction when Evidence Is First Published to Jurors
301.4 Instruction Regarding Visual or Demonstrative Aids
301.5 Evidence Admitted for a Limited Purpose
301.6 Jury to be Guided by Official English Translation/Interpretation
301.7 Jury to Be Guided by Official English Transcript of Recording in Foreign Language (Accuracy Not in Dispute)
301.8 Jury to Be Guided by Official English Translation/Interpretation — Transcript of Recording in Foreign Language (Accuracy in Dispute)
301.9 Disregard Stricken Matter
301.10 Instruction Before Recess
301.1 DEPOSITION TESTIMONY, INTERROGATORIES, STIPULATED TESTIMONY, STIPULATIONS, AND ADMISSIONS
(From 1.13(a))
a. Deposition or prior testimony:
Members of the jury, the sworn testimony of (name), given before trial, will now be presented. You are to consider and weigh this testimony as you would any other evidence in the case.
b. Interrogatories:
Members of the jury, answers to interrogatories will now be read to you. Interrogatories are written questions that have been presented before trial by one party to another. They are answered under oath. You are to consider and weigh these questions and answers as you would any other evidence in the case.
c.
Stipulated testimony:
Members of the jury, the parties have agreed that if (name of witness) were called as a witness, [he] [she] would testify (read or describe the testimony). You are to consider and weigh this testimony as you would any other evidence in the case.
d. Stipulations:
Members of the jury, the parties have agreed to certain facts. You must accept these facts as true. (Read the agreed facts).
e. Admissions:
1. Applicable to all parties:
Members of the jury, (identify the party or parties that have admitted the facts) [has] [have] admitted certain facts. You must accept these facts as true. (Read the admissions).
2. Applicable to fewer than all parties:
Members of the jury, (identify the party or parties that have admitted the facts) [has] [have] admitted certain facts. You must accept these facts as true in deciding the issues between (identify the affected parties), but these facts should not be used in deciding the issues between (identify the unaffected parties). (Read the admissions).
NOTE ON USE FOR 301.1
The committee recommends that the appropriate explanation be read immediately before a deposition, or an interrogatory and answer, stipulated testimony, a stipu
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lation, or an admission are read in evidence, and that no instruction on the subject be repeated at the conclusion of the trial.
301.2INSTRUCTION WHEN FIRST ITEM OF DOCUMENTARY, PHOTOGRAPHIC, OR PHYSICAL EVIDENCE IS ADMITTED
The (describe item of evidence) has now been received in evidence. Witnesses may testify about or refer to this or any other item of evidence during the remainder of the trial. This and all other items received in evidence will be available to you for examination during your deliberations at the end of the trial.
NOTE ON USE FOR 301.2
This instruction should be given when the first item of evidence is received in evidence. It may be appropriate to repeat this instruction when items received in evidence are not published to the jury. It may be combined with 301.5 in appropriate circumstances. It may also be given in conjunction with 301.4 if a witness has used exhibits which have been admitted in evidence and demonstrative aids which have not.
301.3INSTRUCTION WHEN EVIDENCE IS FIRST PUBLISHED TO JURORS
The (describe item of evidence) has been received in evidence. It is being shown to you now to help you understand the testimony of this witness and other witnesses in the case, as well as the evidence as a whole. You may examine (describe item of evidence) briefly now. It will also be available to you for examination during your deliberations at the end of the trial.
NOTE ON USE FOR 301.3
This instruction may be given when an item received in evidence is handed to the jurors. It may be combined with 301.5 in appropriate circumstances.
301.4INSTRUCTION REGARDING VISUAL OR DEMONSTRATIVE AIDS
a.
Generally:
This witness will be using (identify demonstrative or visual aid(s)) to assist in explaining or illustrating [his] [her] testimony. The testimony of the witness is evidence; however, [this] [these] (identify demonstrative or visual aid(s)) [is] [are] not to be considered as evidence in the case unless received in evidence, and should not be used as a substitute for evidence. Only items received in evidence will be available to you for consideration during your deliberations.
b. Specially created visual or demonstrative aids based on disputed assumptions:
This witness will be using (identify demonstrative aid(s)) to assist in explaining or illustrating [his] [her] testimony. [This] [These] item[s] [has] [have] been prepared to assist this witness in explaining [his] [her] testimony. [It] [They] may be based on assumptions which you are free to accept or reject. The testimony of the witness is evidence; however, [this] [these] (identify demonstrative or visual aid(s)) [is] [are] not to be considered as evidence in the case unless received in evidence, and should not be used as a substitute for evidence. Only items received in evidence will be available to you for consideration during your deliberations.
NOTES ON USE FOR 301.4
1. Instruction 301.4a should be given at the time a witness first uses a demonstrative or visual aid which has not been specially created for use in the case, such as a skeletal model.
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2. Instruction 301.4b is designed for use when a witness intends to use demonstrative or visual aids which are based on disputed assumptions, such as a computer-generated model. This instruction should be given at the time the witness first uses these demonstrative or visual aids. This instruction should be used in conjunction with 301.3 if a witness uses exhibits during testimony, some of which are received in evidence, and some of which are not.
301.5 EVIDENCE ADMITTED FOR A LIMITED PURPOSE
The (describe item of evidence) has now been received into evidence. It has been admitted only [for the purpose of (describe purpose) ] [as to (name party) ]. You may consider it only [for that purpose] [as it might affect (name party) ]. You may not consider that evidence [for any other purpose] as to [any other party] [ (name other party(s) ].
301.6 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION
Introduction:
The law requires that the court appoint a qualified interpreter to assist a witness who does not readily speak or understand the English language in testifying. The interpreter does not work for either side in this case. [He] [She] is completely neutral in the matter and is here solely to assist us in communicating with the witness. [He] [She] will repeat only what is said and will not add, omit, or summarize anything. The interpreter in this case is (name of interpreter). The oath will now be administered to the interpreter.
Oath to Interpreter:
Do you solemnly swear or affirm that you will make a true interpretation to the witness of all questions or statements made to [him] [her] in a language which that person understands, and interpret the witness’s statements into the English language, to the best of your abilities [so help you God]?
Foreign Language Testimony:
You are about to hear testimony of a witness who will be testifying in (language used). This witness will testify through the official court interpreter. Although some of you may know (language used), it is important that all jurors consider the same evidence. Therefore, you must accept the English translation of the witness’s testimony. 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.
NOTE ON USE FOR 301.6
This instruction should be given to the jury immediately before the testimony of a witness who will be testifying through the services of an official court interpreter. Compare
United States v. Franco,
136 F.3d 622, 626 (9th Cir.1998) (jury properly instructed that it must accept translation of foreign-language tape-recording when accuracy of translation is not in issue);
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United States v. Fuentes-Montijo,
68 F.3d 352, 355-56 (9th Cir.1995).
301.7 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSCRIPT OF RECORDING IN FOREIGN LANGUAGE (ACCURACY NOT IN DISPUTE)
You are about to listen to a tape recording in (language used). Each of you has been given a transcript of the recording which has been admitted into evidence. The transcript is a translation of the foreign language tape recording.
Although some of you may know (language used), it is important that all jurors consider the same evidence. Therefore, you must accept the English translation contained in the transcript and disregard any different meaning.
If, however, during the testimony there is a question as to the accuracy of the English translation, 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 translation 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 translation as provided by the court interpreter and disregard any other contrary translation.
NOTE ON USE FOR 301.7
This instruction is appropriate immediately prior to the jury hearing a tape-recorded conversation in a foreign language if the accuracy of the translation is not an issue. See,
e.g., United States v. Franco,
136 F.3d 622, 626 (9th Cir.1998);
United States v. Fuentes-Montijo,
68 F.3d 352, 355-56 (9th Cir.1995).
301.8 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION — TRANSCRIPT OF RECORDING IN FOREIGN LANGUAGE (ACCURACY IN DISPUTE)
You are about to listen to a tape recording in (language used). Each of you has been given a transcript of the recording. The transcripts were provided to you by [the plaintiff] [the defendant] so that you could consider the content of the recordings. The transcript is an English translation of the foreign language tape recording.
Whether a transcript is an accurate translation, in whole or in part, is for you to decide. In considering whether a transcript accurately describes the meaning of a conversation, you should consider the testimony presented to you regarding how, and by whom, the transcript was made. You may consider the knowledge, training, and experience of the translator, as well as the nature of the conversation and the reasonableness of the translation in light of all the evidence in the case. You should not rely in any way on any knowledge you may have of the language spoken on the recording; your consideration of the transcripts should be based on the evidence introduced in the trial.
NOTE ON USE FOR 301.8
This instruction is appropriate immediately prior to the jury hearing a tape-recorded conversation in a foreign language if the accuracy of the translation is an issue. See,
e.g., United States v. Jordan,
223 F.3d 676, 689 (7th Cir.2000). See also Seventh Circuit Federal Criminal Jury Instructions § 3.18.
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301.9 DISREGARD STRICKEN MATTER
NOTE ON USE FOR 301.9
No standard instruction is provided. The court should give an instruction that is appropriate to the circumstances. In drafting a curative instruction, the court must decide on a measured response that will do more good than harm, going no further than necessary. The language of curative instructions should be carefully selected so as not to punish a party or attorney.
301.10 INSTRUCTION BEFORE RECESS
NOTE ON USE FOR 301.10
No standard instruction is provided. The jury should be given an appropriate reminder in advance of any recess.
SECTION 400 — SUBSTANTIVE INSTRUCTIONS
401 General Negligence
402 Professional Negligence
403 Products Liability
404 Insurer’s Bad Faith
405 Defamation
406 Malicious Prosecution
407 False Imprisonment
408 Tortious Interference with Business Relationships
409 Misrepresentation
410 Outrageous Conduct Causing Severe Emotional Distress
411 Civil Theft
412 Contribution Among Tortfeasors
413 Claim for Personal Injury Protection (PIP) Benefits (Medical Benefits only)
414 Intentional Tort As an Exception to Exclusive Remedy of Workers’ Compensation
415 Unlawful Retaliation
NOTE ON USE
These substantive instructions should be followed by the applicable sections from Damages, Substantive Instructions — General, and Closing Instructions (Before Final Argument).
401 GENERAL NEGLIGENCE
401.1 Introduction
401.2 Summary of Claims
401.3 Greater Weight of the Evidence
401.4 Negligence
401.5 Negligence of a Child
401.6 Negligence of a Common Carrier
401.7 Res Ipsa Loquitur
401.8 Violation of Non-Traffic Penal Statute as Negligence per Se
401.9 Violation of Statute, Ordinance, or Regulation as Evidence of Negligence
401.10 Equal and Reciprocal Rights of Motorists and Pedestrians
401.11 Duty of Motorist Toward Children
401.12 Legal Cause
401.13 Preemptive Charges
401.14 Preliminary Issues — Vicarious Liability
401.15 Preliminary Issues — Common Carrier
401.16 Preliminary Issues — Premises Liability
401.17 Burden of Proof on Preliminary Issues
401.18 Issues on Plaintiff’s Claim— General Negligence
401.19 Issues on Plaintiffs Claim— Common Carrier
401.20 Issues on Plaintiffs Claim— Premises Liability
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401.21 Burden of Proof on Main Claim
401.22 Defense Issues
401.23 Burden of Proof on Defense Issues
401.24 Counterclaims, Cross Claims, and Third Party Claims
401.1INTRODUCTION
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.
NOTES ON USE FOR 401.1
1.When instructing the jury before taking evidence, use instruction 202.1 in lieu of instruction 401.1. See Model Instruction No. 1. Instruction 401.1 is for instructing the jury after the evidence has been concluded. Use the bracketed language in instruction 401.1 when the final instructions are different from the instructions given at the beginning of the case. If the instructions at the end of the case are different from those given at the beginning of the case, the committee recommends that the court point out the differences with appropriate language in the final instructions, including an explanation for the difference, such as where the court has directed a verdict on an issue.
2.
Fla.R.Civ.P.
1.470(b) authorizes instructing the jury during trial or before or after final argument. The timing of instructions is within the sound discretion of the trial judge, to be determined on a case-by-case basis, but the committee strongly recommends instructing the jury before final argument.
3. Each juror must be provided with a full set of jury instructions for use during their deliberations.
Rule
1.470(b). The trial judge may find it useful to provide these instructions to the jurors when the judge reads the instructions in open court so that jurors can read along with the judge, as the judge reads the instructions aloud.
401.2SUMMARY OF CLAIMS
The claims [and defenses] in this case are as follows. (Claimant) claims that (defendant) was negligent in (describe alleged negligence) which caused [him] [her] harm.
(Defendant) denies that claim [and also claims that (claimant) was [himself] [herself] negligent in (describe the alleged comparative negligence) which caused [his] [her] harm]. [Additionally (describe any other affirmative defenses).]
[The parties] [ (claimant) ] must prove [his] [her] [their] claims by the greater weight of the evidence. I will now define some of the terms you will use in deciding this case.
401.3GREATER 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.
NOTES ON USE FOR 401.3
1.
Greater or lesser number of witnesses.
The committee recommends that no instruction be given regarding the relationship (or lack of relationship) between
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the greater weight of the evidence and the greater or lesser number of witnesses.
2.
Circumstantial evidence.
The committee recommends that no instruction generally be given distinguishing circumstantial from direct evidence. See
Nielsen v. City of Sarasota,
117 So.2d 731 (Fla.1960).
401.4 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.
NOTES ON USE FOR 401.4
1.
No inference of negligence from mere fact of accident.
The committee recommends that no instruction be given to the effect that “negligence may not be inferred from the mere happening of an accident alone.”
Belden v. Lynch,
126 So.2d 578, 581 (Fla. 2d DCA 1961). Such an instruction is argumentative and negative.
2.
Unavoidable accident.
The committee recommends that no instruction be given on the subject of “unavoidable accident,” this being a more appropriate subject for argument by counsel.
8.
Presumption of reasonable care; right to assume others will exercise.
The committee recommends that no instruction be given to the effect that one is presumed to have exercised reasonable care for one’s own safety or for the safety of others or that one has the right to assume others will exercise reasonable care. Whether a person is entitled so to assume and to act on that assumption ultimately depends on whether a reasonably careful person in the same circumstances would so assume and act. See 3 Fla. Jur.
Automobiles
§ 93 at 562; 23 Fla. Jur.
Negligence
§ 79 at 319, also §§ 77 and 78; 65A C.J.S.
Negligence
§ 15 at 592, § 118 at 30; 60 C.J.S.
Motor Vehicles
§ 249 at 610; 61 C.J.S.
Motor Vehicles
§ 459 at 13.
4.
Sudden Emergency.
The committee recommends that no instruction be given on the subject of sudden emergency. In the circumstances of an emergency, as in “ordinary circumstances,” the applicable standard of care is reasonable care under the circumstances.
5.
Traffic.
The committee recommends that no instruction be given on the following subjects: (a) duty to keep lookout; (b) duty to inspect vehicle or to maintain vehicle in safe condition; or (c) the supposed “range of vision” rule. Negligence is properly and completely defined as the failure to use that degree of care which a reasonable person would use under like circumstances.
6.
Railroads.
The committee recommends that no instruction be given on the following subjects: (a) the supposed duty of a pedestrian or motorist to “yield the right of way” to an approaching train; (b) reciprocal duties at railroad crossings; or (c) the “standing train” doctrine. Negligence is properly and completely defined as the failure to use that degree of care which a reasonable person would use under like circumstances.
401.5 NEGLIGENCE OF A CHILD
Reasonable care on the part of a child is the care that a reasonably careful child of the same age, mental capacity, intelligence, training and experience would use under like circumstances.
NOTE ON USE FOR 401.5
This instruction should be given, when applicable, immediately following instruction 401.4. This instruction is applicable
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when the claim involves negligence of a child occurring while that child is engaged in activities appropriate to a child of his or her age, experience and wisdom. This instruction may not be applicable when the claim involves negligence of a child occurring while he or she is engaged in an activity normally undertaken principally by adults and for which adult qualifications are usually required, such as operating an automobile, airplane, motorboat, or motorcycle,
e.g., Medina v. McAllister,
202 So.2d 755 (Fla.1967).
401.6 NEGLIGENCE OF A COMMON CARRIER
Negligence is the failure to use reasonable care. (Defendant) is a common carrier. [The reasonable care required of (defendant) is different from the reasonable care required of a passenger.]
The reasonable care required of a common carrier for the safety of a passenger is the highest degree of care that is consistent with the type of transportation used and the practical operation of the business of a common carrier of passengers. Negligence of a common carrier is doing something that a very careful person would not do under like circumstances or failing to do something that a very careful person would do under like circumstances.
[In connection with (defendant’s) defense that (claimant) was [himself] [herself] negligent, reasonable care is what a reasonably careful person would do 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.]
NOTE ON USE FOR 401.6
1. Instruction 401.6 should be given instead of instruction 401.4 in a passenger’s case to define the standard of care applicable to a common carrier.
2. In cases involving multiple defendants, with non-common carrier defendants, refer to instruction 401.4 for the applicable negligence instruction for the non-common carrier defendants.
401.7 RES IPSA LOQUITUR
If you find that ordinarily the [incident] [injury] would not have happened without negligence,
[and that the (name the item) causing the injury was in the exclusive control of (defendant) at the time it caused the injury,] *
[and that the (name the item) causing the injury was in the exclusive control of (defendant) at the time the negligent act or omission, if any, must have occurred and that the (name the item), after leaving (defendant’s) control, was not improperly used or handled by others or subjected to harmful forces or conditions,]
*
you may infer that (defendant) was negligent unless, taking into consideration all of the evidence in the case, you find that the (describe the event) was not due to any negligence on the part of (defendant).
NOTE ON USE FOR 401.7
* Use the second bracketed paragraph in cases involving exploding bottles, see,
e.g., Burkett v. Panama City Coca-Cola Bottling Co.,
93 So.2d 580 (Fla.1957), or other instrumentalities that are no longer in the defendant’s control at the time of plaintiffs injury. Compare
Wagner v. Associated Shower Door Co.,
99 So.2d 619 (Fla. 3d DCA 1958). Use the first bracketed paragraph in all other cases.
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401.8 VIOLATION OF NON-TRAFFIC PENAL STATUTE AS NEGLIGENCE PER SE
Read or paraphrase the applicable statute or refer to the ordinance admitted in evidence.
Violation of this [statute] [ordinance] is negligence. If you find that (defendant or individual(s) claimed to have been negligent) violated this [statute] [ordinance], then (defendant or individual(s) claimed to have been negligent) [was] [were] negligent. You should then decide whether such negligence was a legal cause of (claimant’s) [loss] [injury] [or] [damage].
NOTES ON USE FOR 401.8
1. This instruction should not be given in a case involving violation of a traffic regulation prescribed by statute or ordinance or in other cases in which the violation is only evidence of negligence. Use instruction 401.9 instead. It is “negligence per se” to violate a penal statute or ordinance, not regulating traffic, which was enacted to protect a particular class of persons from a particular injury or type of injury.
deJesus v. Seaboard Coast Line Railroad Co.,
281 So.2d 198 (Fla.1973). When the legislative authority enacts such a statute or ordinance, it thereby prescribes a minimum standard of reasonable care to which every reasonably careful person will adhere. The jury is not at liberty to determine that the violation of such a standard is not negligence.
Richardson v. Fountain,
154 So.2d 709 (Fla. 2d DCA 1963), and cases cited at 154 So.2d at 711 ; 38 Am.Jur.
Negligence
§ 158, at 82729; but compare
Mastrandrea v. J. Mann, Inc.,
128 So.2d 146 (Fla. 3d DCA 1961).
2. This instruction should not be used in “strict liability” cases in which liability is predicated on violation of a statute enacted to protect a particular class of persons who are unable to protect themselves. In such cases, the violator is strictly liable for the consequent injury, even though the violation was not the “proximate” or “legal” cause by traditional tests.
Sloan v. Coit International, Inc.,
292 So.2d 15 (Fla.1974);
Tamiami Gun Shop v. Klein,
109 So.2d 189 (Fla. 3d DCA 1959),
cert. disch.
116 So.2d 421 ; see
deJesus.
401.9 VIOLATION OF STATUTE, ORDINANCE, OR REGULATION AS EVIDENCE OF NEGLIGENCE
Read or paraphrase the applicable statute or refer to the ordinance or regulation admitted in evidence.
Violation of this [statute] [ordinance] [regulation] is evidence of negligence. It is not, however, conclusive evidence of negligence. If you find that (defendant or individual(s) claimed to have been negligent) violated this [statute] [ordinance] [regulation], you may consider that fact, together with the other facts and circumstances, in deciding whether such person was negligent.
NOTES ON USE FOR 401.9
1. This instruction as written renders it applicable in a generic sense to all statutory or regulatory violations, which are determined to constitute evidence of negligence, in addition to violations of traffic regulations. For instruction related to statute or ordinance violations, which constitute negligence per se, see instruction 401.8.
2. This instruction is to be used for the violation of both traffic and nontraffic regulations, ordinances, or codes where the violation constitutes evidence of negligence, for example: (1) building code violations, see
Lindsey v. Bill Arflin Bonding Agency Inc.,
645 So.2d 565 (Fla. 1st DCA 1994);
Morowitz v. Vistaview Apartments,
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Ltd.,
613 So.2d 493 (Fla. 3d DCA 1993);
Holland v. Baguette, Inc.,
540 So.2d 197 (Fla. 3d DCA 1989); (2) OSHA regulations, see
Jupiter Inlet Corp. v. Brocard,
546 So.2d 1 (Fla. 4th DCA 1988); (3) governmental statutes or ordinances, see
Gabriel v. Tripp,
576 So.2d 404 (Fla. 2d DCA 1991) (statutory violation making it unlawful to knowingly transmit a sexually transmissible disease);
Bennett M. Lifter, Inc. v. Varnado,
480 So.2d 1336 (Fla. 3d DCA 1985) (violation of residential Landlord Tenant Act,
F.S.
83.51 (1983));
Walt Disney World Co. v. Merritt,
404 So.2d 1077 (Fla. 5th DCA 1981) (violation of State Fire Marshal’s rules);
Hines v. Reichhold Chemicals, Inc.,
383 So.2d 948 (Fla. 1st DCA 1980) (statutory violation of emission of gases and noxious odors);
Jones v. Fla. East Coast R.R. Co.,
220 So.2d 922 (Fla. 4th DCA 1969) (violation of municipal ordinance requiring railroad crossing signals);
Conroy v. Briley,
191 So.2d 601 (Fla. 1st DCA 1966) (violation of city ordinance regarding handrail on stairways);
Florida East Coast Railway Co. v. Pollack,
154 So.2d 346 (Fla. 3d DCA 1963) (city ordinance regulating speed of trains within municipal limits).
3. This instruction should not be given if the statute or ordinance in question provides that its violation is not evidence of negligence,
e.g., F.S.
316.613 (1997) (failure to provide and use a child passenger restraint inadmissible in civil action as evidence of negligence).
401.10EQUAL AND RECIPROCAL RIGHTS OF MOTORISTS AND PEDESTRIANS
All persons [whether [pedestrians] [or] [motorists] [or] (other) ] may use the [street] [highway] but each has a duty [to comply with lawful regulations of its use applicable to [him] [her] and]
*
to use reasonable care for [his] [her] own safety and for the safety of others.
NOTE ON USE FOR 401.10
* The bracketed portion indicated with an asterisk should be given only when such a regulation, applicable to a party, is referred to either in evidence or in the court’s instruction.
401.11DUTY OF MOTORIST TOWARD CHILDREN
A motorist must use reasonable care to guard against the unpredictable and erratic behavior of children on or near the [street] [highway] if [he] [she] knows or should know of their presence.
NOTES ON USE FOR 401.11
1. This instruction is designed for use in cases involving a younger child when the child is observed or is at a place where children may reasonably be expected.
2. The committee recommends that this instruction not be given in cases involving an older child in circumstances where youthful inattention or immaturity is not involved.
401.12LEGAL 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 negligence, 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
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[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].
NOTES ON USE FOR 401.12
1.Instruction 401.12a (legal cause generally) is to be given in all cases. Instruction 401.12b (concurring cause), to be given when the court considers it necessary, does not set forth any additional standard for the jury to consider in determining whether negligence was a legal cause of damage but only negates the idea that a defendant is excused from the consequences of his or her negligence by reason of some other cause concurring in time and contributing to the same damage. Instruction 401.12c (intervening cause) is to be given only in cases in which the court concludes that there is a jury issue as to the presence and effect of an intervening cause.
2. The jury will properly consider instruction 401.12a not only in determining whether defendant’s negligence is actionable but also in determining whether claimant’s negligence contributed as a legal cause to claimant’s damage, thus reducing recovery.
3. Instruction 401.12b must be given whenever there is a contention that some other cause may have contributed, in whole or part, to the occurrence or resulting injury. If there is an issue of aggravation of a preexisting condition or of subsequent injuries/multiple events, instructions 501.5a or 501.5b should be given as well. See
Hart v. Stern,
824 So.2d 927, 932-34 (Fla. 5th DCA 2002);
Marinelli v. Grace,
608 So.2d 833, 835 (Fla. 4th DCA 1992).
4. Instruction 401.12c (intervening cause) embraces two situations in which negligence may be a legal cause notwithstanding the influence of an intervening cause: (1) when the damage was a reasonably foreseeable consequence of the negligence although the other cause was not foreseeable,
Mozer v. Semenza,
177 So.2d 880 (Fla. 3d DCA 1965), and (2) when the intervention of the other cause was itself foreseeable,
Gibson v. Avis Rent-A-Car System, Inc.,
386 So.2d 520 (Fla.1980).
5. “Probable”
results.
The committee recommends that the jury not be instructed that the damage must be such as would have appeared “probable” to the actor or to a reasonably careful person at the time of the negligence. In cases involving an intervening cause, the term “reasonably foreseeable” is used in place of “probable.” The terms are synonymous and interchangeable. See
Sharon v. Luten,
165 So.2d 806, 810 (Fla. 1st DCA 1964); Prosser,
Torts
291 (3d ed.); 2 Harper & James,
The Law of Torts,
1137.
6. The term “substantially” is used throughout the instruction to describe the extent of contribution or influence negli
*690
gence must have in order to be regarded as a legal cause. “Substantially” was chosen because the word has an acceptable common meaning and because it has been approved in Florida as a test of causation not only in relation to defendant’s negligence,
Loftin v. Wilson,
67 So.2d 185, 191 (Fla.1953), but also in relation to plaintiff’s comparative negligence,
Shayne v. Saunders,
129 Fla. 355 , 176 So. 495, 498 (1937).
401.13 PREEMPTIVE CHARGES
The court has determined and now instructs you that
a. Duty to use reasonable care:
the circumstances at the time and place of the incident involved in this case were such that (defendant) had a duty to use reasonable care for (claimant’s) safety.
(skip to instruction k-01.17 on negligence issues)
NOTE ON USE FOR 401.13a
This preemptive instruction is not for use routinely, but only when the reasonable care standard was contested before the jury, as by an instruction 401.14 issue now to be withdrawn as a matter of law. In that event instruction 401.13a properly emphasizes reasonable care as embodied in instruction 401.17 or 401.19 and 401.4. Otherwise it is argumentative.
b. Vicarious liability:
(Defendant) is responsible for any negligence of (name) in (describe alleged negligence).
(skip to instruction ⅛01.17 on negligence
issues)
c.
Negligence:
(Defendant) was negligent. The issue for you to decide [on (claimant’s) claim] is whether such negligence was a legal cause of [loss] [injury] [or] [damage] to (claimant or person on whose behalf the claim is made).
(skip to damage issues and general
instructions)
d.Directed verdict on liability:
(Defendant) was negligent and such negligence was a legal cause of [loss] [injury] [or] [damage] to (claimant). (Claimant) is therefore entitled to recover from (defendant) for the [loss] [injury] [or] [damage] as is shown by the greater weight of the evidence to have been caused by (defendant).
(skip to damage issues and general instructions)
NOTE ON USE FOR 401.13d
This instruction should be given only when the sole issue to be determined by the jury is damages.
NOTES ON USE FOR 401.13
1. This instruction covers only preemptive instructions on issues arising on claims. Preemptive instructions on defense issues are covered in instruction 401.22 and should be given at that stage of the instruction.
2. It may be necessary or desirable in some cases for the court to introduce this instruction by calling attention to the evidence or arguments of counsel in which the issue now to be withdrawn was raised or discussed.
401.14 PRELIMINARY ISSUES— VICARIOUS LIABILITY
On the (claimant’s) claim there is a preliminary issue for you to decide. That issue is:
*691
a. Owner, lessee, or bailee of vehicle driven by another:
whether (defendant) was the [owner] [lessee] [or] [bailee] of the vehicle driven by (driver) [or] whether (driver) was operating the vehicle with the express or implied consent of (defendant). A person who [owns] [is the lessee of] [or] [is the bailee of] a vehicle and who expressly or impliedly consents to another’s use of it is responsible for its operation.
[An owner of a vehicle is one who has legal title to the vehicle and who has the right of control and authority over its use.]
[A lessee of a vehicle is one who has leased or rented the vehicle from its owner.]
[A bailee of a vehicle is one to whom the vehicle has been furnished or delivered by [its owner] [a person with authority over its use] for a particular purpose, with the understanding that it will be returned.]
NOTES ON USE FOR 401.14a
1. The general rules stated above will be appropriate in most cases in which there is an issue concerning the status of a defendant under Florida’s “dangerous instrumentality” doctrine. See generally
Aurbach v. Gallina,
753 So.2d 60 (Fla.2000). They are subject to a number of exceptions, however. For example, the owner of a vehicle who has delivered possession of it to another under a conditional sales contract, and who has complied with all the requirements of
F.S.
819.22, is not liable for its negligent operation. See
Aurbach; Palmer v. R.S. Evans, Jacksonville, Inc.,
81 So.2d 635 (Fla.1955). The owner of a vehicle who has leased it to another under a lease for one year or longer and who has complied with all the requirements of
F.S.
324.021(9)(b)1, is not liable for its negligent operation. See
Ady v. American Honda Finance Corp.,
675 So.2d 577 (Fla.1996). Additional limitations upon vicarious liability are set forth in
F.S.
324.021(9)(b) and 324.021(9)(e). An owner or lessee who has delivered a vehicle to a repair shop for maintenance is ordinarily not liable for its negligent operation during servicing, service-related testing, or transport of the vehicle by the bailee. See
Michalek v. Shumate,
524 So.2d 426 (Fla.1988);
Castillo v. Bickley,
363 So.2d 792 (Fla.1978). Although an owner is liable for a personal injury or wrongful death negligently inflicted by a bailee upon a third party, an owner is not liable for a personal injury or wrongful death negligently inflicted by a bailee upon a co-bailee. See
Toombs v. Alamo Rent-A-Car, Inc.,
833 So.2d 109 (Fla.2002);
Raydel, Ltd. v. Medcalfe,
178 So.2d 569 (Fla.1965);
May v. Palm Beach Chemical Co.,
77 So.2d 468 (Fla.1955). And proof of express or implied consent is not required where an unattended vehicle has been stolen because the owner left the keys in the ignition. See
Hendeles v. Sanford Auto Auction, Inc.,
364 So.2d 467 (Fla.1978);
Vining v. Avis Rent-A-Car System, Inc.,
354 So.2d 54 (Fla.1977). Other exceptions may exist for which special instructions may be required. See generally 4A Fla. JuR.2d,
Automobiles and Other Vehicles,
§§ 667690. The instruction may also have to be tailored to fit the particular factual circumstances of the case.
2.
Dangerous instrumentality.
The committee recommends that the court not instruct the jury that an automobile is a “dangerous instrumentality,” such an instruction being unnecessary and essentially argumentative.
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b. Agency.
(l).Agency, master and servant (independent contractor distinguished):
whether (name) was an agent of (defendant) and was acting within the scope of [his] [her] employment at the time and place of the incident in this case. [An agent is a person who is employed to act for another, and whose actions are controlled by [his] [her] employer or are subject to [his] [her] employer’s right of control.] An employer is responsible for the negligence of [his] [her] [its] agent if such negligence occurs while the agent is performing services which [he] [she] was employed to perform or while the agent is acting at least in part because of a desire to serve [his] [her] employer and is doing something that is reasonably incidental to [his] [her] employment or something the doing of which was reasonably foreseeable and reasonably to be expected of persons similarly employed.
[But a person is not responsible for the negligence of an independent contractor or of the agents or employees of an independent contractor. An independent contractor is a [person] [business] who is engaged by another to perform specific work according to [his] [her] [its] own methods and whose methods of performing the work are not controlled by the person engaging [him] [her] [it] and are not subject to that person’s right of control.]
NOTE ON USE FOR 401.14b(l)
For purposes of defining liability for negligence, there is no reason to distinguish between the relationship of principal and agent and the relationship of master and servant. See
Lynch v. Walker,
159 Fla. 188 , 31 So.2d 268 (1947).
(2). Apparent agency:
whether (name) was an apparent agent of (defendant) and was acting within the scope of [his] [her] apparent authority at the time and place of the incident in this case. [An agent is a person who is employed to act for another, and whose actions are controlled by [his] [her] employer or [is] [are] subject to [his] [her] employer’s right of control.] (Name) was an apparent agent if (defendant) by [his] [her] [its] words or conduct caused or allowed (claimant) to believe that (name) was an agent of and had authority to act for (defendant) and if (claimant) justifiably relied upon that belief in dealing with (name) as the agent of (defendant). A person is responsible for the negligence of [his] [her] [its] apparent agent occurring while the apparent agent is acting within the scope of [his] [her] apparent authority.
NOTES ON USE FOR 401.14b(l) AND (2)
1. If the court determines that issues on both actual agency and apparent agency should be submitted to the jury, give both instructions 401.14b(l) and b(2), omitting the bracketed language in b(2). When instruction 401.14b(2) is used alone, give the bracketed language.
2. For the rules which might be applicable if the independent contractor is engaged in inherently dangerous work or using a dangerous instrumentality, see
Florida Power & Light Co. v. Price,
170 So.2d 298 (Fla.1964).
*693
c.
Ultrahazardous work (exception to nonliability for negligence of independent contractor):
whether (defendant) [authorized or permitted another to carry on] [or] [knowingly assisted or participated in carrying on], upon premises owned or possessed by [him] [her], an activity which (defendant) knew or should have known was ultrahazardous. The performance of work is ultrahazar-dous if there is a real and substantial danger inherent in the work itself and if the work is of such a nature that, in the ordinary course of events, performance of the work will probably cause injury if proper precautions are not taken. A person who [authorizes or permits another to carry on] [or] [knowingly assists or participates in carrying on] ultrahazardous work on premises owned or possessed by the employer is responsible for negligence in the performance of the work by the other or by his or her agents and employees.
NOTE ON USE FOR 401.14c
Price v. Florida Power & Light Co.,
159 So.2d 654 (Fla. 2d DCA 1963),
rev’d
170 So.2d 293 . If the activity in question is ultrahazardous as a matter of law, this instruction should be omitted and instruction 401.13b, the preemptive instruction on vicarious liability, should be given.
d.
Partnership:
whether (name) was a partner of (defendant) and was acting on behalf of the partnership and within the scope of its business at the time and place of the incident in this case. A partnership exists when two or more persons join together or agree to join together in a business or venture for their common benefit, each contributing property, money or services and each having an interest in any profits. Each member of a partnership is responsible for the negligence of any partner if such negligence occurs while the partner is acting on behalf of the partnership and within the scope of the partnership’s business.
e.Joint venture:
whether at the time and place of the incident complained of, (name) was engaged in a joint venture with (defendant) and was acting on behalf of the joint venture and within the scope of its business at the time and place of the incident in this case. A joint venture exists when two or more persons combine their resources or efforts and agree to undertake some particular business transaction in which they have common interests in the purposes to be accomplished, joint control or right of control of the venture, joint ownership interest in the subject matter of the venture and a common right and duty to share in profits and losses. Each member of a joint venture is responsible for the negligence of another member if such other member’s negligence occurs while he or she is acting on behalf of the joint venture and within the scope of its business.
f Joint enterprise (automobile):
whether (driver) was operating the automobile at the time and place of the [collision] [incident complained of] to further the purposes of a joint enterprise in which [he] [she] was engaged with (defendant passenger). A joint enterprise exists when two or more persons agree, expressly or impliedly, to engage in an activity in which they have a common interest in the pur
*694
poses to be accomplished and equal rights to control and manage the operation of an automobile in the enterprise. Each member of a joint enterprise is responsible for the negligence of another member in the operation of the automobile if that negligence occurs while he or she is acting under the agreement and to further the purposes of the joint enterprise.
NOTE ON USE FOR 401.14
Instruction 401.14 should be followed by instruction 401.17, Burden of Proof on Preliminary Issues, unless there are other preliminary issues, in which case instruction 401.17 would follow all preliminary issue instructions.
401.15 PRELIMINARY ISSUES— COMMON CARRIER
On (claimant’s) claim there is [a preliminary] [another] issue for you to decide. That issue is whether at the time and place of the incident in this case, (claimant) was a passenger of (defendant), a common carrier. A person is a passenger of a common carrier when
a. Passenger before boarding:
[intending to take passage, [he] [she] enters and occupies a station, waiting room or other place provided by the carrier for the reception of passengers at a time when such place is open for reception of persons intending to take passage on the carrier’s vehicle or conveyance.] or
b. Passenger boarding or in transit:
[[he] [she] enters or occupies the carrier’s vehicle or conveyance for the purpose of transportation with the carrier’s express or implied consent.] or
c.
Passenger temporarily leaving conveyance:
[[he] [she] enters or occupies the carrier’s vehicle or conveyance for the purpose of transportation with the carrier’s express or implied consent. Such a person does not cease to be a passenger by leaving the carrier’s vehicle or conveyance temporarily for a reasonable purpose and without intending to abandon the carrier’s transportation.] or
d. Passenger departing at destination:
[[he] [she] enters or occupies the carrier’s vehicle or conveyance for the purpose of transportation with the carrier’s express or implied consent. Such a person does not cease to be a passenger at [his] [her] destination until [he] [she] has safely left the carrier’s vehicle or conveyance [or, if [he] [she] is discharged at the station or premises of the carrier, until [he] [she] has had a reasonable opportunity to leave the premises].]
NOTES ON USE FOR 401.15
1.
Atlantic Greyhound Lines v. Lovett,
134 Fla. 505 , 184 So. 133 (Fla.1938);
Florida Southern Railway Co. v. Hirst,
30 Fla. 1 , 11 So. 506 (Fla.1892);
Henderson v. Tarver,
123 So.2d 369 (Fla. 2d DCA 1960);
Pividal v. City of Miami,
105 So.2d 502 (Fla. 3d DCA 1958).
2. Instruction 401.15 should be followed by instruction 401.17, Burden of Proof on Preliminary Issues.
401.16 PRELIMINARY ISSUES— PREMISES LIABILITY
On (claimant’s) claim, there is a preliminary issue for you to decide. That issue is:
*695
a. Invitee or invited licensee:
whether, at the time and place of the incident in this case (claimant) was invited on premises owned by or in the possession of (defendant). A person is invited on land or premises of another when he enters or remains there at the invitation of the owner or possessor. An invitation may be either express or reasonably implied from the circumstances. [A person remains invited as long as [he] [she] uses the premises in the customary manner or in a manner which the owner or possessor of the premises might reasonably have expected and at a place where the visitor was invited or where [he] [she] was permitted to be or where [he] [she] might reasonably have been expected by the owner or possessor.]
b. Discovered trespasser [or licensee (uninvited) whose presence is foreseeable]:
Use the bracketed language indicated with an asterisk if claimant was a licensee (uninvited) but not if claimant was a trespasser.
*
whether, at the time and place of the incident in this case, (defendant) had a duty to use reasonable care for the safety of (claimant). A person who owns or has possession of land or premises who knows of a condition on the premises which involves an unreasonable risk of harm to another person on the premises has a duty to use reasonable care to warn the other person of the condition and the risk involved, if the presence of the other person is known ⅜ [or reasonably foreseeable] by the owner or possessor and if the other neither knew nor should have known of the condition and risk by the use of reasonable care.
NOTES ON USE FOR 401.16b
1.
Byers v. Gunn,
81 So.2d 723 (Fla.1955);
Crutchfield v. Adams,
152 So.2d 808 (Fla. 1st DCA 1963);
Seaboard Air Line Railroad. Co. v. Branham,
99 So.2d 621 (Fla. 3d DCA 1958).
2. In the case of a person having an express or implied invitation, use instruction 401.16a instead of instruction 401.16b. As a result of
Wood v. Camp,
284 So.2d 691 (Fla.1973), the former licensee category now consists only of “uninvited licensees.”
c.Attractive nuisance:
The first clause, bracketed and indicated with an asterisk, and the last clause, bracketed and indicated with a dagger, should be used only if there are jury issues on those matters.
* †
* [whether (defendant) [owned] [possessed] [or] [controlled] the land or premises in question]; whether the (identify structure or other artificial condition) was located at a place on the land or premises in question where (defendant) knew or had reason to know children were likely to be [as trespassers or otherwise]; whether the (identify structure or other artificial condition) had an unreasonable risk of death or serious harm to children who, because of their age, were not likely to discover the condition or realize the risk involved in meddling with it or in coming within the area made dangerous by it; [and] whether (defendant) knew or had reason to know of the risk to the children; † [and whether (claimant child), because of his age, did not discover the condition or realize the risk involved in meddling with it or in coming within the area made dangerous by it].
*696
NOTE ON USE FOR 401.16c
Derived from Restatement (2d) of Torts § 339;
Cockerham v. R.E. Vaughan, Inc.,
82 So.2d 890 (Fla.1955);
Banks v. Mason,
132 So.2d 219 (Fla. 2d DCA 1961);
Fouraker v. Mullis,
120 So.2d 808 (Fla. 1st DCA 1960). Considered together, instructions 401.16c and 401.20c cover all elements of the attractive nuisance doctrine. Since plaintiff must, in effect, negate negligence in order to prevail on this doctrine, comparative negligence is not a defense.
Larnel Builders, Inc. v. Martin,
110 So.2d 649 (Fla.1959).
NOTES ON USE FOR 401.16
1. Instruction 401.16 should be used when the jury could reasonably decide either for claimant or for defendant on the issue of whether defendant owed claimant the degree of care that is an essential part of the claim made by claimant,
e.g.,
as when claimant contends he was an invitee on the defendant’s premises and defendant contends that plaintiff was a trespasser.
2. Instruction 401.16 is intended to frame the issues determining claimant’s status or defendant’s duty. It is not intended as a statement of the degree of care owed. The matter of degree of care is covered in the instructions on negligence issues.
3. The variations of instruction 401.16 state affirmatively the circumstances that must be shown in order for claimant to prevail on this particular issue. If these circumstances are not shown by the greater weight of the evidence, claimant cannot prevail on a claim that depends on such a showing.
4. Instruction 401.16 should be followed by instruction 401.17, Burden of Proof on Preliminary Issues.
401.17 BURDEN OF PROOF ON PRELIMINARY ISSUES
If the greater weight of the evidence does not support (claimant’s) claim on [this issue] [these issues], that (describe preliminary issue), then your verdict on the claim of (claimant) * [because of the claimed negligence of (name) ] should be for (defendant).
However, if the greater weight of the evidence supports the claim of (claimant) on [this issue] [these issues], that (describe preliminary issue), then you shall decide the other issues on (claimant’s) claim.
NOTES ON USE FOR 401.17
1. Give instruction 401.17 if instructing the jury on any preliminary issues from instructions 401.14,401.15 or 401.16.
2. If there are multiple defendants, this instruction will have to be modified to account for the issues related to each defendant.
3. * There is no need to give that portion of the instruction contained within brackets unless the case involves multiple defendants or the claimant makes an alternative claim not predicated on simple negligence. In such a case it is necessary to distinguish between different claims or a claim of negligence from the other claim.
401.18 ISSUES ON PLAINTIFF’S CLAIM — GENERAL NEGLIGENCE
The [next] issues you must decide on (claimant’s) claim against (defendant) are:
o-
Negligence, generally:
whether (defendant) was negligent in (describe alleged negligence), and, if so, whether that negligence was a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent, or person for whose injury claim is made).
*697
b. Two drivers’negligence:
whether (defendant) or (defendant) was negligent or whether both were negligent in operating the vehicles, and, if so, whether that negligence was a legal cause of [loss] [injury] [or] [damage] to (claimant, decedent, or person for whose injury claim is made).
c.
Negligence of parent (damage caused by child):
whether (defendant parent(s)) negligently [provided] [left in the possession of] [or] [left accessible to] [his] [her] child, (name), (name item) which, because of the child’s age or lack of judgment or experience, was an unreasonable risk of harm to others [or] [failed to restrain or control [his] [her] child, (name),] [or] [directed or encouraged [his] [her] child, (name), to do something involving an unreasonable risk of harm to others]; and, if so, whether that negligence was a legal cause of [loss] [injury] [or] [damage] to (claimant, decedent, or person for whose injury claim is made) ].
d. Railroad, airline, or bus line negligence:
whether (defendant) was negligent in the operation of its [train] [airplane] [bus], and, if so, whether that negligence was a legal cause of [loss] [injury] [or] [damage] to (claimant, decedent, or person for whose injury claim is made).
NOTE ON USE FOR 401.18d
For the degree of care required for passengers of common carriers, see instruction 401.6. If the claimant is a passenger of railroad, airline, bus line, or other common carrier, use instruction 401.9 instead of this instruction.
401.19 ISSUES ON PLAINTIFF’S CLAIM — COMMON CARRIER
The [next] issues on (claimant’s) claim, for you to decide are: whether (defendant) in (describe conduct) failed to exercise the highest degree of care for the safety of (claimant); 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).
401.20 ISSUES ON PLAINTIFF’S CLAIM — PREMISES LIABILITY
The [next] issues on (claimant’s) claim, for you to decide are:
a. Landowner or possessor’s negligence (toward invitee and invited licensee):
whether (defendant) [negligently failed to maintain his premises in a reasonably safe condition], [or] [negligently failed to correct a dangerous condition about which (defendant) either knew or should have known, by the use of reasonable care,] [or] * [negligently failed to warn (claimant) of a dangerous condition about which (defendant) had, or should have had, knowledge greater than that of (claimant) ]; and, if so, whether such negligence was a legal cause of [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made).
NOTES ON USE FOR 401.20a
1. If there is an issue of whether claimant had status as an invitee or invited licensee, give instructions 401.16a and 401.17 as preliminary instructions before giving instruction 401.20a. The final segment of instruction 401.20a, marked with an asterisk(*), is inapplicable when plain
*698
tiff does not proceed on a theory of defendant’s failure to warn.
2. The phrase “... about which (defendant) either knew or should have known by use of reasonable care ...” may be inappropriate in cases involving “transitory foreign objects.”
F.S.
768.0710;
Markowitz v. Helen Homes of Kendall Corp.,
826 So.2d 256 (Fla.2002);
Owens v. Publix Supermarkets, Inc.,
802 So.2d 315 (Fla.2001);
Melkonian v. Broward County Board of County Commissioners,
844 So.2d 785 (Fla. 4th DCA 2003).
b. Landowner or possessor’s negligence (toward discovered trespasser or foreseeable licensee):
whether (defendant) negligently failed to warn (claimant) of a dangerous condition and risk which were known to (defendant) and of which (claimant) neither knew nor should have known, by the use of reasonable care; and, if so, whether such negligence was a legal cause of [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made).
NOTE ON USE FOR 401.20b
Give preliminary instructions 401.16b and 401.17 before giving instruction 401.20b if there is a jury question of whether defendant owned or had possession of the land or premises, or whether he knew of the dangerous condition, or whether he knew of claimant’s presence (if claimant was a trespasser) or should have foreseen claimant’s presence (if claimant was a licensee).
c.
Attractive nuisance:
whether (defendant) was negligent in maintaining or in failing to protect (claimant child) from the (describe structure or other artificial condition) on the land or premises in question; and, if so, whether that negligence was a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made).
NOTE ON USE FOR 401.20c
This instruction and instruction 401.16c, taken together, state all elements of the attractive nuisance doctrine. The committee considers subsections (d) and (e) of Restatement (2d) of Torts § 339 to be unnecessary to the instruction because negligence is otherwise defined by instruction 401.4.
d.Landlord’s negligence (toward tenant):
(1). When leased premises are not residential:
whether (defendant landlord) negligently failed to disclose to (claimant tenant) a dangerous condition on the leased premises which was known to (defendant), which was not known to (claimant) or discoverable by [him] [her] by the use of reasonable care, and which (defendant) had reason to believe (claimant) could not discover; and, if so, whether that negligence was a legal cause of [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made).
(2). When leased premises are residential (not common areas):
whether, [before allowing (claimant tenant) to take possession of the dwelling, (defendant landlord) negligently failed to repair a defect that was discoverable by a reasonable inspection] [or] [after (claimant tenant) took possession of the dwelling, (defendant landlord) negligently failed to repair a dangerous or de
*699
fective condition on the premises of which [he] [she] [it] had actual notice]; and, if so, whether that negligence was a legal cause of [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made).
NOTES ON USE FOR 401.20d
1. This instruction, reflecting a greater duty by landlord to tenant on leased residential premises, was derived from
Mansur v. Eubanks,
401 So.2d 1328 (Fla.1981), overruling to that extent
Brooks v. Peters,
157 Fla. 141 , 25 So.2d 205 (1946). See also
F.S.
83.51 (1981), which may impose on the landlord greater duties, in respect to conditions arising after a tenant’s possession, than were addressed in
Mansur .
If other or greater duties are imposed by the statute, this instruction should be modified to express those duties in the terms of the case. This instruction pertains to the landlord’s duties, not the tenant’s, but the committee calls attention to statutes in
F.S.
Chapter 83 imposing certain duties on the tenant, which may affect the landlord’s duties as expressed in this instruction.
2.
Common areas.
With respect to common areas, the landlord’s duty to the tenant is stated in instruction 401.20d. The landlord’s duty to others in common areas is the same as that owed by any landowner or possessor of land,
e.g.,
instructions 401.16a, 401.16b.
3.
Persons invited on leased residential premises by tenant.
The landlord’s duty to persons invited on leased residential premises by the tenant is the same as the landlord’s duty to the tenant.
Mansur v. Eubanks,
401 So.2d 1328 (Fla.1981).
4.
Waiver.
The committee expresses no opinion about whether a tenant may waive duties owed him by the landlord. Compare
Mansur v. Eubanks,
401 So.2d 1328 (Fla.1981), with
F.S.
83.51(1)(b), 83.51(4), and 83.47 (1981).
e. Municipality’s negligence in maintenance of sidewalks and streets:
whether the city negligently failed to maintain its [sidewalk] [or] [street] in a reasonably safe condition or failed to correct or warn (claimant) of a dangerous condition of which the city either knew or should have known, by the use of reasonable care; and, if so, whether that negligence was a legal cause of [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made).
NOTE ON USE FOR 401.20e
City of Tampa v. Johnson,
114 So.2d 807 (Fla. 2d DCA 1959);
Schutzer v. City of Miami,
105 So.2d 492 (Fla. 3d DCA 1958).
401.21 BURDEN OF PROOF ON MAIN CLAIM
If the greater weight of the evidence does not support [one or more of] (claimant’s) claim[s], your verdict should be for (defendant)(s) [on [that] [those] claim(s) ].
[However, if the greater weight of the evidence supports [one or more of] (claimant’s) claim[s], then your verdict should be for (claimant) and against (defendant) [on [that] [those] claim(s).]
[However, if the greater weight of the evidence supports (claimant’s) claim against one [or] [both] [more] of the defendants, then you should decide and write on the verdict form the percentage of the total negligence of [both] [all] defendants that was caused by each of them.]
*700
NOTE ON USE FOR 401.21
Use the first paragraph in all cases. If there is an affirmative defense to the claim that is the subject of the instruction, do not use either of the bracketed paragraphs; instead, turn to instruction 401.22. If there is no affirmative defense, use the first or the second bracketed paragraph depending on whether there is one defendant or more than one.
401.22 DEFENSE ISSUES
If, however, the greater weight of the evidence supports [ (claimant’s) claim] [one of 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]:
*
The order in which the defenses are listed below is not necessarily the order in which the instructions should be given.
a. Comparative negligence generally:
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 injury or damage to (claimant).
NOTES ON USE FOR 401.22a
1.Instruction 401.4, defining negligence, is applicable both to defendant’s negligence and claimant’s negligence. The consequences of negligence on claimant’s part are explained to the jury by instruction 401.22a. There being no need to give claimant’s negligence the special designation “comparative negligence,” the committee recommends that “comparative negligence” not be referred to in the instruction and that the term not be defined.
2.
Special verdicts and special interrogatories.
Special verdicts are required in all jury trials involving comparative negligence.
Lawrence v. Florida East Coast Railway Co.,
346 So.2d 1012 (Fla.1977).
3.
Presumption of reasonable care.
The committee recommends that no instruction be given to the effect that a deceased person or an injured person or either party is presumed to have exercised reasonable care for his own safety or for the safety of others. If such a presumption is thought to take the place of evidence and make a prima facie case for the party having the burden of proof, the presumption “disappears” upon the introduction of any evidence tending to overcome it.
Gulle v. Boggs,
174 So.2d 26 (Fla.1965). If the presumption is thought to operate
against
the party having the burden of proof, as in the case of the presumption that a decedent was not comparatively negligent but was exercising reasonable care for his own safety, such an instruction is merely a way (and a confusing way, at that) of stating that the burden of proving comparative negligence is on the party asserting it. In either case, an instruction on the subject is superfluous. But compare
Louisville & Nashville Railroad Co. v. Yniestra,
21 Fla. 700 (1886);
Jacksonville Electric Co. v. Sloan,
52 Fla. 257 , 42 So. 516 (Fla.1906); and
Martin v. Makris,
101 So.2d 172 (Fla. 3d DCA 1958).
b. Driver’s comparative negligence (when owner sues third party):
whether (driver), while operating a vehicle owned by (claimant) * [with [his] [her] consent, express or implied,] was [himself] [herself] negligent in the operation of the vehicle and, if so, whether that negligence was a contributing legal cause of the injury or damage to (claimant).
*701
*
The phrase within brackets should be used only if there is an issue as to the owner’s knowledge and consent.
c. Joint enterprise (driver’s negligence):
whether (driver) was operating the automobile at the time and place of the [collision] [incident in this case] to further the purposes of a joint enterprise in which [he] [she] was engaged with (claimant passenger); if so, whether (driver) was negligent in the operation of the automobile; and, if so, whether that negligence was a contributing legal cause of [loss] [injury] [or] [damage] to (claimant). A joint enterprise exists when two or more persons agree, expressly or impliedly, to engage in an activity in which they have a common interest in the purposes to be accomplished and equal rights to control and manage the operation of an automobile in the enterprise. Each member of a joint enterprise is responsible for the negligence of another member in the operation of the automobile if that negligence occurs while [he] [she] is acting under the agreement and to further the purposes of the joint enterprise.
d. Comparative negligence of parent predicated on other parent’s negligence (claim for death of child):
whether (parent) was negligent in caring for and supervising the child, (name); if so, whether that negligence was a contributing legal cause of the death of (child), and, if so, whether (other parent), in the exercise of reasonable care, should have anticipated that negligence on the part of (parent).
e. Comparative negligence of custodian of child other than parent:
whether, before the incident in this case, (claimant) placed (child) in the care and custody of (custodian), if so, whether (custodian) was negligent in caring for and supervising the child, (name); and, if so, whether that negligence was a contributing legal cause of [injury] [and] [death] to (child).
NOTE ON USE FOR 401.22e
Wynne v. Adside,
163 So.2d 760 (Fla. 1st DCA 1964). See also
Winner v. Sharp,
43 So.2d 634 (Fla.1950).
f Apportionment of fault:
whether (identify additional person(s) or entit(y)(ies)) [was] [were] also [negligent] [ (specify other type of conduct) ]; and, if so, whether that [negligence] [fault] [responsibility] 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 401.22f
See
F.S.
768.81 (1993);
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 “responsibility5’ may be the most appropriate descriptive term.
g. Assumption of risk:
whether (claimant) knew of the existence of the danger complained of; realized and appreciated the possibility of injury as a result of such danger; and, having a reasonable opportunity to avoid it, voluntarily and deliberately exposed [himself] [herself] to such danger.
*702
NOTE ON USE FOR 401.22g
Blackburn v. Dorta,
348 So.2d 287 (Fla.1977), abolished the assumption of risk defense except in eases identified in that opinion.
401.23 BURDEN OF PROOF ON DEFENSE ISSUES
If the greater weight of the evidence does not support (defendant’s) defense[s] and the greater weight of the evidence does support (claimant’s) claim, then [your verdict should be for (claimant) in the total amount of [his] [her] damages]
*
[you should decide and write on the verdict form what percentage of the total negligence of [both] [all] defendants was caused by each defendant].
*
Use second bracketed alternative above when there is more than one defendant.
If, however, the greater weight of the evidence shows that both (claimant) and [ (defendant) ] [one or more of (defendants) ] were negligent and that the negligence of each contributed as a legal cause of [loss] [injury] [or] [damage] sustained by (claimant), you should decide and write on the verdict form what percentage of the total negligence of [both] [all] parties to this action was caused by each of them.
Use the following instruction in cases with a comparative negligence defense and an apportionment of a non-party defense:
If, however, the greater weight of the evidence shows that (claimant) and [ (defendant) ] [one or more of (defendants) ] and (identify additional person(s) or en~ tit(y)(ies)) were negligent and that the negligence of each contributed as a legal cause of [loss] [injury] [or] [damage] sustained by (claimant), you should decide and write on the verdict form what percentage of the total negligence of [both] [all] parties to this action and (identify additional person(s) or en-tit(y)(ies)) was caused by each of them.
Use the following instruction in cases without a comparative negligence defense but with an apportionment of a non-party defense:
If, however, the greater weight of the evidence shows that [ (defendant) ] [one or more of (defendants) ] and (identify additional person(s) or entit(y)(ies)) were negligent and that the negligence of each contributed as a legal cause of [loss] [injury] [or] [damage] sustained by (claimant), you should decide and write on the verdict form what percentage of the total negligence of [ (defendant) ] and (identify additional person(s) or entit(y)(ies)) was caused by each of them].
NOTES ON USE FOR 401.23
1.
Preemptive instructions on defense issues.
If a preemptive instruction for claimant is appropriate on a defense issue, as when comparative negligence or assumption of risk has been brought to the jury’s attention on voir dire or by opening statements or argument and is now to be withdrawn, an instruction in the form of instruction 401.13 should be given immediately following instruction 401.21. If a preemptive instruction for defendant is required on some aspect of a defense, as when, for example, the court holds that any comparative negligence of the driver will reduce claimant’s recovery, a preemptive instruction announcing the ruling should be given immediately after framing the defense issues (instruction 401.22a).
2.
Instructions on issues raised by replies to affirmative defenses.
Plaintiff bears the burden of proof on issues raised by any replies to affirmative defenses, and instruction 401.23 should be modified as appropriate for those issues.
*703
401.24 COUNTERCLAIMS, CROSS CLAIMS, AND THIRD PARTY CLAIMS
NOTE ON USE FOR 401.24
Generally counterclaims, cross claims, and third party claims should follow the same pattern of issues, applicable rules, burden of proof, and defenses as on the main claim. For an example of how a counterclaim can be integrated into an instruction, see Model Instruction No. 4.
402 PROFESSIONAL NEGLIGENCE
402.1 Introduction
402.2 Summary of Claims
402.3 Greater Weight of the Evidence
402.4 Medical Negligence
402.5 Other Professional Negligence
402.6 Legal Cause
402.7 Legal Cause (Treatment Without Informed Consent)
402.8 Preemptive Charges
402.9 Preliminary Issues — Vicarious Liability
402.10 Burden of Proof on Preliminary Issues
402.11 Issues on Main Claim
402.12 Issues on Claim of Attorney Malpractice Arising Out of Civil Litigation
402.13 Burden of Proof on Main Claim
402.14 Defense Issues
402.15 Burden of Proof on Defense Issues
402.16 Emergency Medical Treatment Claims
402.16a Emergency Medical Treatment — Jury Issue as to Application of
F.S.
768.13(2) (b)
402.16a Emergency Medical Treatment
NOTES ON USE
1. Professional negligence claims are, for the most part, similar. The committee has, therefore, included all such claims in a single section. There are, however, some specific instructions that deal with issues unique to certain professions, such as instruction 402.4(d) (missing medical records) and instruction 402.12 (issues involved in certain legal malpractice claims). For cases involving allegations of negligence of professions other than medical or legal, instructions 402.11(a) and (b) and 402.12(a) and (b) should be appropriately modified.
2. If a professional malpractice case involves a claim of product defect, jury instructions for such claims should be adopted from the applicable sections of this book.
402.1 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.
NOTES ON USE FOR 402.1
1. When instructing the jury before taking evidence, use instruction 202.1 in lieu of instruction 402.1. See Model Instruction No. 1. Instruction 402.1 is for instructing the jury after the evidence has been concluded. Use the bracketed language in instruction 402.1 when the final
*704
instructions are different from the instructions given at the beginning of the case. If the instructions at the end of the case are different from those given at the beginning of the case, the committee recommends that the court point out the differences with appropriate language in the final instructions, including an explanation for the difference, such as where the court has directed a verdict on an issue.
2.
Fla.R.Civ.P.
1.470(b) authorizes instructing the jury during trial or before or after final argument. The timing of instructions is within the sound discretion of the trial judge, to be determined on a case-by-case basis, but the committee strongly recommends instructing the jury before final argument.
3. Each juror must be provided with a full set of jury instructions for use during their deliberations.
Rule
1.470(b). The trial judge may find it useful to provide these instructions to the jurors when the judge reads the instructions in open court so that jurors can read along with the judge, as the judge reads the instructions aloud.
402.2SUMMARY OF CLAIMS
The claims [and defenses] in this case are as follows. (Claimant) claims that (defendant) was negligent in (describe alleged negligence) which caused [him] [her] harm.
(Defendant) denies that claim [and also claims that (claimant) was [himself] [herself] negligent in (describe the alleged comparative negligence) which caused [his] [her] harm]. [Additionally (describe any other affirmative defenses).]
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 this case.
402.3GREATER 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.
NOTES ON USE FOR 402.3
1.
Greater or lesser number of witnesses.
The committee recommends that no charge be given regarding the relationship (or lack of relationship) between the greater weight of the evidence and the greater or lesser number of witnesses.
2.
Circumstantial evidence.
The committee recommends that no charge generally be given distinguishing circumstantial from direct evidence. See
Nielsen v. City of Sarasota,
117 So.2d 731 (Fla.1960).
402.4MEDICAL NEGLIGENCE
a. Negligence (physician, hospital or other health provider):
Negligence is the failure to use reasonable care. Reasonable care on the part of a [physician] [hospital] [health care provider] is that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably careful [physicians] [hospitals] [health care providers]. Negligence on the part of a [physician] [hospital] [health care provider] is doing something that a reasonably careful [physician] [hospital] [health care provider] would not do under like circumstances or failing to do something that a reasonably careful [physician] [hospital] [health care provider] would do under like circumstances.
[If you find that (describe treatment or procedure) involved in this case was carried out in accordance with the prevailing professional standard of care recognized as acceptable and appropriate by similar and reasonably careful [physi
*705
cians] [hospitals] [health care providers], then, in order to prevail, (claimant) must show by the greater weight of the evidence that his or her injury was not within the necessary or reasonably foreseeable results of the treatment or procedure.]
NOTES ON USE FOR 402.4a
1. See
F.S.
766.102. Instruction 402.4a is derived from
F.S.
766.102(1) and is intended to embody the statutory definition of “prevailing professional standard of care” without using that expression itself, which is potentially confusing.
2. The second bracketed paragraph is derived from
F.S.
766.102(2)(a) and should be given only in cases involving a claim of negligence in affirmative medical intervention.
b. Negligence (treatment without informed consent):
[Negligence is the failure to use reasonable care.] Reasonable care on the part of a [physician] [health care provider] in obtaining the [consent] [informed consent] to treatment of a patient consists of
(1). When issue is whether consent was obtained irregularly:
obtaining the consent of the patient [or one whose consent is as effective as the patient’s own consent such as (describe) ], at a time and in a manner in accordance with an accepted standard of medical practice among members of the profession with similar training and experience in the same or a similar medical community.
(¾).
When issue is whether sufficient information was given:
providing the patient [or one whose informed consent is as effective as the patient’s informed consent, such as (describe) ] information sufficient to give a reasonable person a general understanding of the proposed treatment or procedure, of any medically acceptable alternative treatments or procedures, and of the substantial risks and hazards inherent in the proposed treatment or procedure which are recognized by other [physicians] [health care providers] in the same or a similar community who perform similar treatments or procedures.
NOTE ON USE FOR 402.4b
This instruction is derived from the provisions of
F.S.
766.103.
c.
Foreign bodies:
[Negligence is the failure to use reasonable care.] The presence of (name of foreign body) in (patient’s) body establishes negligence unless (defendant(s)) prove(s) by the greater weight of the evidence that [he] [she] [it] was not negligent.
NOTES ON USE FOR 402.4c
1. This instruction is derived from
F.S.
766.102(3). The statute uses the term “prima facie evidence of negligence.” The committee recommends that term not be used as not helpful to a jury. Rather, the committee has used the definition of prima facie. See,
e.g., State v. Kahler,
232 So.2d 166, 168 (Fla.1970) (“prima facie” means “evidence sufficient to establish a fact unless and until rebutted”).
2. Before this instruction is given, the court must make a finding that the foreign body is one that meets the statutory definition. See
Kenyon v. Miller,
756 So.2d 133 (Fla. 3d DCA2000).
*706
d. Failure to make or maintain records:
[Negligence is the failure to use reasonable care.] The law requires (defendant) as a licensed health care provider to prepare and maintain health care records.
[Because (defendant) did not [make] [or] [maintain] (describe the missing record(s))
or
[If you find that a person who was responsible for [making] [or] [maintaining] (describe the missing record(s)) and failed to do so]
you should presume (describe the missing records(s)) contained evidence of negligence unless (defendant) proves otherwise by the greater weight of the evidence. You may consider this presumption, together with the other evidence, in determining whether (defendant) was negligent.]
NOTES ON USE FOR 402.4d
1. The second bracketed paragraph should be used if there is no issue about whether the records were made or maintained. If there is an issue about the making or maintenance of the records, then the third bracketed paragraph should be used.
2. This instruction applies only when records are required to be made and maintained and the court determines that the inability or failure to locate a record or records hinders the plaintiffs ability to establish a case.
Public Health Trust of Dade County v. Valcin,
507 So.2d 596 (Fla.1987).
e. Res Ipsa Loquitur:
[Negligence is the failure to use reasonable care.] If you find that ordinarily the [incident] [injury] would not have happened without negligence, and that the (describe the item) causing the injury was in the exclusive control of (defendant) at the time it caused the injury, you may infer that (defendant) was negligent unless, taking into consideration all of the evidence in the case, you find that the (describe event) was not due to any negligence on the part of (defendant).
402.5 OTHER PROFESSIONAL NEGLIGENCE
Negligence is the failure to use reasonable care. Reasonable care on the part of a (identify professional) is the care that a reasonably careful (identify professional) would use under like circumstances. Negligence is doing something that a reasonably careful (identify professional) would not do under like circumstances or failing to do something that a reasonably careful (identify professional) would do under like circumstances.
NOTE ON USE FOR 402.5
This instruction should be used, appropriately adapted or revised, for all non-medical professional negligence claims, as for example, claims of accountant, architect or attorney malpractice. The committee, however, expresses no opinion as to what undertakings constitute a “profession.”
402.6 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 negligence, the [loss] [injury] [or] [damage] would not have occurred.
*707
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 came:
Do not use the bracketed first sentence if this charge is preceded by the charge on concurring cause:
⅜
* [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].
NOTES ON USE FOR 402.6
1.Instruction 402.6a (legal cause generally) is to be given in all cases. Instruction 402.6b (concurring cause), to be given when the court considers it necessary, does not set forth any additional standard for the jury to consider in determining whether negligence was a legal cause of damage but only negates the idea that a defendant is excused from the consequences of his negligence by reason of some other cause concurring in time and contributing to the same damage. Instruction 402.6c (intervening cause) is to be given only in cases in which the court concludes that there is a jury issue as to the presence and effect of an intervening cause.
2. The jury will properly consider instruction 402.6a not only in determining whether defendant’s negligence is actionable but also in determining whether claimant’s negligence contributed as a legal cause to claimant’s damage, thus reducing recovery.
3. Instruction 402.6b must be given whenever there is a contention that some other cause may have contributed, in whole or in part, to the occurrence or resulting injury. If there is an issue of aggravation of a preexisting condition or of subsequent injuries or multiple events, instruction 501.5a or 501.5b should be given as well. See
Hart v. Stern,
824 So.2d 927, 932-34 (Fla. 5th DCA 2002);
Marinetti v. Grace,
608 So.2d 833, 835 (Fla. 4th DCA 1992).
4. Instruction 402.6c (intervening cause) embraces two situations in which negligence may be a legal cause notwithstanding the influence of an intervening cause: (1) where the damage was a reasonably foreseeable consequence of the negligence although the other cause was not foreseeable,
Mozer v. Semenza,
177 So.2d 880 (Fla. 3d DCA 1965), and (2) where the intervention of the other cause was itself foreseeable,
Ellingson v. Willis,
170 So.2d 311 (Fla. 1st DCA 1964).
5.
“Probable” results.
The committee recommends that the jury not be charged that the damage must be such as would have appeared “probable” to the actor or to a reasonably careful person at the time of the negligence. In cases involving an intervening cause, the term “reasonably
*708
foreseeable” is used in place of “probable.” The terms are synonymous and interchangeable. See
Sharon v. Luten,
165 So.2d 806, 810 (Fla. 1st DCA 1964); Prosser,
Torts
(3d ed.) 291; 2 Harper & James,
The Law of Torts
1137.
6. The term “substantially” is used throughout the charge to describe the extent of contribution or influence negligence must have in order to be regarded as a legal cause. “Substantially” was chosen because the word has an acceptable common meaning and because it has been approved in Florida as a test of causation not only in relation to defendant’s negligence,
Loftin v. Wilson,
67 So.2d 185, 191 (Fla.1953), but also in relation to plaintiffs comparative negligence,
Shayne v. Saunders,
129 Fla. 355 , 176 So. 495, 498 (Fla.1937).
402.7 LEGAL CAUSE (TREATMENT WITHOUT INFORMED CONSENT)
Negligence is a legal cause of [loss] [injury] [or] [damage] if it directly and in natural and continuous sequence produces or contributes 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. The negligent failure to obtain [informed] consent to a medical treatment or procedure is a legal cause of injury resulting from the treatment or procedure if, as a result of such negligence, the patient was induced to undergo a medical treatment or procedure to which the patient would not reasonably have consented had he been adequately informed.
NOTES ON USE FOR 402.7
1. Instruction 402.7 is to be used in conjunction with instruction 402.4b defining negligence (treatment without informed consent).
2. See Notes On Use for instruction 402.6.
402.8 PREEMPTIVE CHARGES
The court has determined and now instructs you that
а. Duty to use reasonable care:
the circumstances at the time and place of the incident complained of were such that (name) had a duty to use reasonable care for (claimant’s) safety.
(skip to instruction 4-02.11 on negligence issues)
NOTE ON USE FOR 402.8a
This preemptive charge is not for use routinely, but only when the reasonable care standard was contested before the jury, as by an instruction 402.9 issue now to be withdrawn as a matter of law. In that event instruction 402.8a properly emphasizes reasonable care. Otherwise, it is argumentative.
б.
Vicarious liability:
(Defendant) is responsible for any negligence of (name) in (describe alleged negligence).
(skip to instruction 402.11 on negligence issues)
c. Negligence:
(Defendant) was negligent. The issue for your determination [on the claim of (name) ] is:
(skip to damage issues )
d. Directed verdict on liability:
(Defendant) was negligent and that negligence was a legal cause of [loss] [injury] [or] [damage] to (claimant). (Claimant) is therefore entitled to recover from (defendant) for the [loss] [injury] [or] [damage] as is shown by the
*709
greater weight of the evidence to have thus been caused by (defendant).
NOTE ON USE FOR 402.8d
This charge should be given only when the sole issue to be determined by the jury is damages.
NOTES ON USE FOR 402.8
1. This charge covers only preemptive charges on issues arising on claims. Preemptive charges on defense issues are covered in instruction 402.14 and should be given at that stage of the charge.
2. It may be necessary or desirable in some cases for the court to introduce this charge by calling attention to the evidence or arguments of counsel in which the issue now to be withdrawn was raised or discussed.
402.9 PRELIMINARY ISSUES— VICARIOUS LIABILITY
On (claimant’s) claim there is a preliminary issue for you to decide. That issue is:
a. Agency:
(1). Employment, including independent contractor and exceptions:
whether (name) was an employee of (defendant) and was acting within the scope of [his] [her] employment at the time and place of the incident in this case. An employee is a person who is hired by (defendant) to act on behalf of (defendant), and whose actions are controlled by (defendant) or are subject to (defendant’s) right of control. An employer is responsible for the negligence of an employee if the negligence occurs while the employee is performing services which [he] [she] was employed to perform or while the employee is acting at least in part because of a desire to serve [his] [her] employer and is doing something that is reasonably incidental to [his] [her] employment or something the doing of which was reasonably foreseeable and reasonably to be expected of persons similarly employed.
[But a person is not responsible for the negligence of an independent contractor or of the agents or employees of an independent contractor. An independent contractor is a [person] [business] engaged by another to perform specific work according to [his] [her] [its] own methods and whose methods of performing the work are not controlled by the person engaging [him] [her] [it] and are not subject to that person’s right of control. Whether a [person] [business] is an independent contractor is to be determined on the basis of all of the circumstances of the parties’ dealings with each other and not on the labels used by them.
A person is, however, responsible for the negligence of an independent contractor if [the independent contractor is an [actual] [or] [apparent] agent of that person], [the employer did not exercise due care in the [selection] [or] [retention] of the independent contractor] [or] [the employer undertook to perform the services resulting in the injury to (claimant).]
* The bracketed language contained in the last two paragraphs is only to be used when there is a claim of independent contractor status. See
Carlisle v. Carnival Corp.,
864 So.2d 1 (Fla. 3d DCA 2003);
Villazon v. Prudential Health Care Plan, Inc.,
843 So.2d 842 (Fla.2003). If an exception to independent contractor status is claimed, then the applicable portions of the following provisions should also be given.
[ (Name) is an agent if (defendant) authorized [him] [her] to act on (defendant’s) behalf.] [ (Name) is an apparent agent if, by words or conduct, (defen
*710
dant) caused or allowed (claimant) to believe that (name) was an agent of and had authority to act for (defendant).] A person is responsible for the negligence of [his] [her] independent contractor if, at the time and place of the incident, the independent contractor was an [agent] [or] [apparent agent] of the employer and was acting within the scope of his or her [apparent] authority. *
* If the court determines that issues on both
actual agency
and
apparent agency
should be submitted to the jury, both bracketed sections should be used with appropriate transitional language.
[In [hiring] [or] [retaining] another to perform services, the employer must exercise due care to assure that the person is competent to perform the services. A person is responsible for the negligence of [his] [her] independent contractor if, in [hiring] [or] [retaining] the independent contractor, the employer failed to exercise due care.]
Insinga v. LaBella, 543 So.2d 209 (Fla.1989); F.S. 766.110.
[When a [person] [facility] undertakes to perform services, [he] [she] [it] cannot transfer the obligation to perform those services to an independent contractor and remains responsible for the negligence of [his] [her] independent contractor.]
As to nondelegable duties for treatment, see
Wax v. Tenet Health System Hospitals, Inc.,
955 So.2d 1 (Fla. 4th DCA 2006);
Pope v. Winter Park Healthcare Group,
939 So.2d 185 (Fla. 5th DCA 2006);
Shands Teaching Hospital Clinic, Inc. v. Juliana,
863 So.2d 343 (Fla. 1st DCA 2003);
Irving v. Doctors Hospital of Lake Worth, Inc.,
415 So.2d 55 (Fla. 4th DCA 1982). There is, however, no civil liability under
F.S.
458.320(2)(b) to ensure that staff physicians are financially responsible.
Horowitz v. Plantation General Hospital Limited Partnership,
959 So.2d 176 (Fla.2007).
(2). Agency without claim of independent contractor:
whether (name) is an agent of (defendant) [ (name) is an agent of (defendant) if (defendant) authorized [him] [her] to act on (defendant’s) behalf.] [(name) is an apparent agent if, by words or conduct, (defendant) caused or allowed (claimant) to believe that (name) was an agent of and had authority to act for (defendant).] A person is responsible for the negligence of an [agent] [or] [apparent agent] if at the time and place of the incident complained of the [agent] [or] [apparent agent] is acting within the scope of [his] [her] [apparent] authority.
NOTE ON USE FOR 402.9a(2)
Roessler v. Novak,
858 So.2d 1158 (Fla. 2d DCA 2003);
Orlando Regional Medical Center v. Chmielewski,
573 So.2d 876 (Fla. 5th DCA 1990). If the court determines that issues on both
actual agency
and
apparent agency
should be submitted to the jury, both bracketed sections should be used with appropriate transitional language.
b. Joint venture:
whether at the time and place of the incident complained of, (name) was engaged in a joint venture with (defendant) and was acting on behalf of the joint venture and within the scope of its business at the time and place of the incident in this case. A joint venture exists when two or more persons combine their resources or efforts and agree to undertake some particular business transaction in which they have common interests in the purposes to be accom
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plished, joint control or right of control of the venture, joint ownership interest in the subject matter of the venture and a common right and duty to share in profits and losses. Each member of a joint venture is responsible for the negligence of another member if the other member’s negligence occurs while [he] [she] is acting on behalf of the joint venture and to further the purpose of the joint venture.
NOTE ON USE FOR 402.9b
Arango v. Reyka,
507 So.2d 1211 (Fla. 4th DCA 1987).
402.10 BURDEN OF PROOF ON PRELIMINARY ISSUES
If the greater weight of the evidence does not support (claimant’s) claim on [this issue] [these issues], that (describe preliminary issue), then your verdict on the claim of (claimant) * [because of the claimed negligence of (name) ] should be for (defendant).
If, however, the greater weight of the evidence supports (claimant’s) claim on [this issue] [these issues], that (describe preliminary issue), then you shall consider the other issues on (claimant’s) claim.
NOTES ON USE FOR 402.10
1. Give instruction 402.10 if instructing the jury on any preliminary issues.
2. If there are multiple defendants, this instruction will have to be modified to account for the issues related to each defendant.
3. *There is no need to give that portion of the charge contained within brackets unless the claimant makes multiple claims involving other defendants. In such a case it is necessary to distinguish this claim from claims against other defendants.
402.11 ISSUES ON MAIN CLAIM
The [next] issues you must decide on (claimant’s) claim against (defendant) are:
a. Negligence of physician or hospital, generally:
whether (defendant physician or hospital) was negligent in (describe conduct in question), and, if so, whether that negligence was a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made).
b. Negligence of multiple defendants:
whether (defendant) or (defendant) was negligent or whether both were negligent in (describe alleged negligence) and, if so, whether that negligence was a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made).
c.
Negligence of physician, osteopath, chiropractor, podiatrist or dentist in treatment without informed consent:
whether Doctor (name) negligently failed to obtain the informed consent of (claimant or person whose consent would be effective) to the medical treatment or procedure complained of, and, if so whether that negligence was a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made).
NOTE ON USE FOR 402.11c
The committee recognizes that, depending on circumstances, the tort of injury by treatment without informed consent may be pleaded, proved, and presented to the jury as an assault or battery, rather than in terms of negligence.
Brown v. Wood,
202 So.2d 125 (Fla. 2d DCA 1967);
Chambers v. Nottebaum,
96 So.2d 716 (Fla. 3d
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DCA 1957). When the issues on such a claim are to be presented in terms of negligence, instruction 402.4b is to be used in conjunction with instruction 402.11c, defining negligence in these circumstances, and instruction 402.7, defining legal cause in terms appropriate to these cases. Together these three instructions contain all of the elements of the tort as specified in
F.S.
766.103. When it is appropriate to charge the jury instead in terms of assault or battery, appropriate instructions may be derived from the same source.
d. Negligence of health care facility to assure comprehensive risk management and competence of medical staff:
whether (defendant facility) was negligent in failing to assure [comprehensive risk management] [and] [the competence of its medical staff], and, if so, whether that negligence was a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made).
NOTE ON USE FOR 402.11d
Derived from
F.S.
766.110.
402.12 ISSUES ON CLAIM OF ATTORNEY MALPRACTICE ARISING OUT OF CIVIL LITIGATION
The [next] issue(s) for you to decide on (claimant’s) claim against (defendant) [is] [are] whether (defendant) was negligent in (describe alleged negligence) and, if so, if (defendant) had not been negligent, whether (claimant) would [have been successful] [have obtained a more favorable outcome] in [his] [her] [their] [its] [claim against (original adverse party) ] [defense in (original proceedings) ].
a. Negligence of plaintiffs counsel:
In (claimant’s) claim against (original defendant) (claimant) would have had to prove by the greater weight of the evidence that (original defendant) was negligent in (describe conduct involved in original claim) and that (original defendant’s) negligence was a legal cause of the [loss] [injury] [or] [damage] to (claimant).
Depending on the particular cause of action in the original proceeding, add appropriate substantive law instructions from section W0 to frame the appropriate issues from the original proceeding.
[To have been successful in [his] [her] [their] [its] claim against (original defendant) (claimant) must show that any judgment would have been collectible.]
b. Negligence of defendant’s counsel:
In (claimant’s) defense in the case of (identify original case) (claimant) would have had to prove by the greater weight of the evidence that [ (original claimant) was negligent and that [his] [her] [their] [its] negligence was a contributing legal cause of the injury or damage to (original claimant) ] (describe issues in other applicable defenses).
Depending on the particular cause of action in the original proceeding, add appropriate substantive law instructions from section W0 to frame the appropriate issues from the original proceeding.
NOTES ON USE FOR 402.12
1. When defendant’s professional negligence deprives a party of a chance to resolve a contested claim or defense and the circumstances do not readily permit determining the value of the lost claim or defense, the party may have to prove the value of the claim or defense in the form of a “trial within a trial.”
Freeman v. Rubin,
318 So.2d 540 (Fla. 3d DCA 1975);
Fernandes v. Barrs,
641 So.2d 1371 (Fla. 1st DCA 1994). In such circumstances, instruction 404.12 should be used to describe
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the issues instead of instruction 402.11. The committee expresses no opinion on the type of evidence that may be used to prove such a claim.
Farish v. Bankers Multiple Line Insurance Co.,
425 So.2d 12 (Fla. 4th DCA 1983);
Tarleton v. Arnstein & Lehr,
719 So.2d 325 (Fla. 4th DCA 1998). When defendant’s professional negligence results in other kinds of direct loss, such as the loss of an inheritance or insurance benefits, the normal issue instruction, 402.11, should be used.
2. Use the last bracketed paragraph in instruction 402.12a when there is an issue as to the collectibility of any judgment that could have been obtained in the original action. When, however, an attorney’s negligence makes it impossible to prove the collectibility of a claim, the burden shifts to the attorney defendant to prove that the judgment or any portion thereof was un-collectible.
Fernandes v. Barrs,
641 So.2d 1371 (Fla. 1st DCA 1994).
3. This instruction should be followed by instruction 402.13, appropriately modified to describe the burden of proof in both the pending claim as well as the original proceedings.
402.13 BURDEN OF PROOF ON MAIN CLAIM
If the greater weight of the evidence does not support [one or more of] (claimant’s) claim(s), then your verdict should be for (defendant)(s) [on [that] [those] claim(s) ].
[However, if the greater weight of the evidence supports [one or more of] (claimant’s) claim(s), then your verdict should be for (claimant) and against (defendant)® [on [that] [those] claim(s).]
[However, if the greater weight of the evidence supports (claimant’s) claim against one [or] [both] [more] of the defendants, then you should determine and write on the verdict form what percentage of the total negligence of [both] [all] defendants was caused by each of them.]
NOTE ON USE FOR 402.13
Use the first paragraph in all cases. If there is an affirmative defense to the claim that is the subject of the charge, do not use either of the bracketed paragraphs; instead, use instruction 402.14. If there is no affirmative defense, use the first or the second bracketed paragraph depending on whether there is one defendant or more than one, then proceed to Damages.
402.14 DEFENSE ISSUES
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]:
*
The order in which the defenses are listed below is not necessarily the order in which the instruction should be given.
a. Statute of limitations:
whether (claimant) * knew, or by the use of reasonable care should have known, before (date) that [he] [she] [ (person for whose injury the claim is made) ] had been injured or damaged and that there was a reasonable possibility that the injury or damage was caused by [medical] [legal] [ (other profession) ] negligence.
⅜
In some cases, it may be necessary to insert the name of a person other than the claimant. The committee expresses no opinion as to whose knowledge may trigger the statute of limitations. See, e.g., Stone v. Rosenthal, 665 So.2d 276 (Fla. 4th DCA 1995); Arthur v. Unicare Health Facilities, Inc., 602 So.2d 596 (Fla. 2d DCA 1992).
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If the greater weight of the evidence supports (defendant’s) defense on this issue, the plaintiffs claim is time barred and your verdict is for the defendant. If, however, the greater weight of the evidence does not support (defendant’s) defense on this issue [you shall consider the following additional defenses] [your verdict should be for (claimant) in the full amount of [his] [her] damages].
NOTES ON USE FOR 402.14a
1. When the statute of limitations is asserted as a defense, it should ordinarily be the first defense.
2. In medical negligence actions the date inserted in the instruction will ordinarily be two years before the date on which either the notice of intent was served or the petition to extend the statute of limitations was filed.
F.S.
95.11(4)(b), 766.106, and 766.104(2). In legal negligence actions predicated on acts committed in the course of litigation, the statute of limitations does not begin to run until the underlying litigation is concluded by final judgment and the final disposition of any appeal. See
Silvestrone v. Edell,
721 So.2d 1173 (Fla.1998). This may be extended if there is an issue regarding whether the client knew or should have known that the litigation was concluded.
F.S.
95.11(4)(a).
b.Comparative negligence generally:
whether (claimant or person for whose injury or death claim is made) was [himself] [herself] negligent in (describe conduct in question) and, if so, whether that negligence was a contributing legal cause of the injury or damage to (claimant).
NOTE ON USE FOR 402.14b
1. Conduct on a patient’s part prior to seeking treatment, which furnishes the need for medical treatment, is not a defense to malpractice in the treatment.
Whitehead v. Linkous,
404 So.2d 377 (Fla. 1st DCA 1981); see
Swamy v. Hodges,
583 So.2d 1095 (Fla. 1st DCA 1991).
2.
Special verdicts and special interrogatories.
Special verdicts are required in all jury trials involving comparative negligence.
Lawrence v. Florida East Coast Railway Co.,
346 So.2d 1012 (Fla.1977).
c.
Comparative negligence of parent predicated on other parent’s negligence (claim for death of child):
whether (parent) was negligent in caring for and supervising (child), and if so, whether that negligence was a contributing legal cause of the death of (child); and, if so, whether (other parent), in the exercise of reasonable care, should have anticipated such negligence on the part of (parent).
d. Comparative negligence of custodian of child other than parent:
whether, before the incident in this case, (claimant) placed (child) in the care and custody of (custodian), and if so, whether (custodian) was negligent in caring for and supervising the child, (name); and, if so, whether that negligence was a contributing legal cause of the [injury] [and] [death] of (child).
NOTE ON USE FOR 402.14d
Wynne v. Adside,
163 So.2d 760 (Fla. 1st DCA 1964); see also
Winner v. Sharp,
43 So.2d 634 (Fla.1949).
e. Apportionment of fault:
whether (identify additional person(s) or entit(y)(ies)) [was] [were] also [negligent] in [ (specify other type of conduct) ]; and, if so, whether that [negligence] [fault] [responsibility] was a contributing legal cause of the [loss] [injury] [or]
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[damage] to (claimant, decedent or person for whose injury claim is made).
NOTE ON USE FOR 402.14e
See
F.S.
768.81 (1993);
Fabre v. Marin,
623 So.2d 1182 (Fla.1993). Conduct of third parties, however, who cause the need for medical treatment is not to be compared to any malpractice in the treatment.
D’Amario v. Ford Motor Co.,
806 So.2d 424 (Fla.2001);
Jackson v. York Hannover Nursing Centers,
876 So.2d 8 (Fla. 5th DCA 2004).
f. Defense to claim of lack of informed consent:
whether (claimant) would reasonably, under all the circumstances, have undergone such treatment or procedure had [he] [she] been advised by (defendant) of the substantial risks and hazards inherent in the proposed treatment or procedure which are recognized by other [physicians] [health care providers] in the same or similar community who perform similar treatments or procedures.
NOTE ON USE FOR 402.14Í
Derived from
F.S.
766.103(3)(b).
402.15 BURDEN OF PROOF ON DEFENSE ISSUES
If the greater weight of the evidence does not support (defendant’s) defensefs] of (describe defense) and the greater weight of the evidence supports (claimant’s) claim, then [your verdict should be for (claimant) in the total amount of [his] [her] damages] [you should determine and write on the verdict form what percentage of the total negligence of [both] [all] defendants was caused by each defendant]. *
⅜
Use second bracketed alternative above when there is more than one defendant.
If, however, the greater weight of the evidence shows that both (claimant) and [ (defendant) ] [one or more of (defendants) ] [was] [were] negligent and that the negligence of each contributed as a legal cause of [loss] [injury] [or] [damage] sustained by (claimant), you should decide and write on the verdict form what percentage of the total negligence of [both] [all] parties to this action was caused by each of them.
Use the following instruction in cases with a comparative negligence defense and an apportionment of a nonparty defense:
[If, however, the greater weight of the evidence shows that (claimant) and [ (defendant) ] [one or more of (defendants) ] and (identify additional person(s) or en-tit(y)(ies)) were negligent and that the negligence of each contributed as a legal cause of [loss] [injury] [or] [damage] sustained by (claimant), you should decide and write on the verdict form what percentage of the total negligence of [both] [all] parties to this action and (identify additional person(s) or en-tit(y)(ies)) was caused by each of them.]
Use the following paragraph in cases without a comparative negligence defense but with an apportionment of nonparty defense:
[If, however, the greater weight of the evidence shows that [(defendant)] [one or more of (defendants) ] and (identify additional person(s) or entit(y)(ies)) were negligent and that the negligence of each contributed as a legal cause of [loss] [injury] [or] [damage] sustained by (claimant), you should decide and write on the verdict form what percentage of the total negligence of [ (defendant) ] and (identify additional person(s)
*716
or entit(y)(ies)) was caused by each of them.]
NOTES ON USE FOR 402.15
1.
Preemptive charges on defense issues.
If a preemptive charge for claimant is appropriate on a defense issue, as when comparative negligence has been brought to the jury’s attention on voir dire or by opening statements or argument and is now to be withdrawn, an instruction in the form of 402.8 should be given immediately following instruction 402.13. If a preemptive charge for defendant is required on some aspect of a defense, as when the court holds that comparative negligence will reduce claimant’s recovery, a preemptive charge announcing the ruling should be given immediately after framing the applicable defense issue.
2.
Charges on issues raised by replies to affirmative defenses.
Plaintiff bears the burden of proof on issues raised by any replies to affirmative defenses, and instruction 402.15 should be modified as appropriate for those issues.
402.16 EMERGENCY MEDICAL TREATMENT CLAIMS
INTRODUCTORY COMMENT
Instruction 402.16 addresses the provisions of
F.S.
768.13(2)(b). It applies only to cases described in that statute or to cases in which there is a jury issue as to the applicability of the statute. Instruction 402.16 does not apply to cases involving patients capable of receiving treatment as non-emergency patients, even if treated in an emergency room.
Instruction 402.16a applies to cases in which there is a jury issue as to whether the statute applies. Instruction 402.16b applies to cases in which either the parties agree that the statute applies or the court has ruled that the statute applies as a matter of law.
The applicable part of instruction 402.16 should be preceded by instructions 402.1, 402.2, 402.3, and 403.6. Instruction 402.4 should not be given in the ordinary sequence as it is, to the extent applicable, incorporated in instruction 402.16. If there are any preliminary vicarious liability issues, instructions 402.9 and 402.10 should also be given.
No reported decision construes the legislative intent behind this section. Based upon the definition of “reckless disregard” in
F.S.
768.13(2)(b)3, the committee has concluded that the intent was to limit liability in civil actions for damages arising out of fact situations to which the statute applies to cases where something more than “simple” negligence is established. Therefore, the standard instructions dealing with “simple” negligence are not appropriate for civil damage actions to which the statute applies.
402.16a EMERGENCY MEDICAL TREATMENT — Jury Issue as to Application of
F.S.
768.13(2)(b)
(1). Preliminary issue on application of statute:
The first issue for you to decide on (claimant’s) claim against (defendant) is whether (claimant) was being [cared for] [treated] under emergency circumstances.
[Care] [treatment] is rendered under emergency circumstances when a [hospital] [physician] renders medical [care] [treatment] required by a sudden, unexpected situation or event that resulted in a serious medical condition demanding immediate medical attention, for which (claimant or decedent) initially entered the hospital through its [emergency room] [trauma center], before (claimant or decedent) was medically stabilized and capable of receiving [care] [treatment] as a nonemergency patient.
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If the greater weight of the evidence does not support that (claimant’s or decedent’s) [care] [treatment] was being rendered under emergency circumstances then you shall proceed to decide whether (defendant) was negligent in [his] [her] [its] [care] [treatment] of (claimant or decedent).
However, if the greater weight of the evidence supports that (claimant’s or decedent’s) [care] [treatment] was being rendered under emergency circumstances, then you shall proceed to decide whether (defendant) acted in reckless disregard of the consequences in [his] [her] [its] [care] [treatment] of (claimant or decedent).
(2). Issues regarding negligence:
[If you find that (claimant’s or decedent’s) [care] [treatment] was not being rendered under emergency circumstances,] the [next] issue for you to decide is whether (defendant) was negligent in (describe conduct in question); and, if so, whether that negligence was a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made).
“Negligence” is the failure to use reasonable care. Reasonable care on the part of a [hospital] [physician] is that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably careful [hospitals] [physicians]. Negligence on the part of a [hospital] [physician] is doing something that a reasonably careful [hospital] [physician] would not do under like circumstances or failing to do something that a reasonably careful [hospital] [physician] would do under like circumstances.
If the greater weight of the evidence does not support this claim, then your verdict [on this claim] should be for (defendant).
[However, if the greater weight of the evidence does support (claimant’s) claim on these issues, then your verdict [on this claim] should be for (claimant) and against (defendant).]
[However, if the greater weight of the evidence does support (claimant’s) claim, then you should consider the defense(s) raised by (defendant).]
(3). Issues regarding reckless disregard:
[If you find that (claimant’s or decedent’s) [care] [treatment] was being rendered under emergency circumstances,] the [next] issue for you to decide is whether (defendant) acted with reckless disregard of the consequences in (describe conduct in question); and, if so, whether that reckless disregard was a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made).]
A [hospital] [physician] acts with “reckless disregard” for the consequences of [its] [his] [her] actions if [it] [he] [she] knew or should have known at the time [it] [he] [she] rendered emergency services that [its] [his] [her] conduct would likely result in injury or death, considering [the seriousness of the situation] [the lack of a prior patient-physician relationship] [time constraints due to other emergencies requiring [care] [treatment] at the same time] [the lack of time or ability to obtain appropriate medical consultation] [and] [the inability to obtain an appropriate medical history of the patient].
If emergency circumstances have not been established by the greater weight
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of the evidence but the greater weight of the evidence supports (claimant’s) claim of negligence, then [your verdict [on this claim] should be for (claimant) and against (defendant) ] [you should consider the defense(s) raised by (defendant) ].
(.Proceed to instructions ¿02.1¿ and
¿02.15)
[However, if the greater weight of the evidence does not support (claimant’s) claim of negligence, then your verdict [on this claim] should be for (defendant).]
On the other hand, if emergency circumstances have been established by the greater weight of the evidence and the greater weight of the evidence also supports (claimant’s) claim of reckless disregard of the consequences, then [your verdict [on this claim] should be for (claimant) and against (defendant) ] [you should consider the defense(s) raised by (defendant) ].
(Proceed to instructions ¿02. U and ¿02.15)
[However, if the greater weight of the evidence does not support (claimant’s) claim of reckless disregard of the consequences, then your verdict [on this claim] should be for (defendant) and against (claimant).]
402.16b EMERGENCY MEDICAL TREATMENT
(Describe conduct in question) occurred in the course of [rendering] [or] [failing to render] emergency [care] [treatment] to (claimant or decedent). The issue for you to decide is whether (defendant) acted with reckless disregard of the consequences i
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