Proposed jury instructions in civil cases.

The Supreme Court Committee on Standard Jury Instructions in Civil Cases proposes amendments to Standard Jury Instructions in Civil Cases 401.13, 401.22, 402.4, 406.5, 408.6, 409.7, 409.8, 409.9, Section 500, 501.1, 501.3, 501.4, 502.2, 502.5, and Model Instructions 1 through 4 and 6, and proposes a Note on Use for Punitive Damages Charges. Interested parties have until November 1 to submit comments electronically to the Chair of the committee, The Honorable James Manly Barton II, bartonjm@fljud13.org, with a copy to the committee liaison, Jodi Jennings, jjenning@flabar.org. After reviewing all comments, the committee may submit its proposals to the Florida Supreme Court.

401.13 PREEMPTIVE CHARGES

The court has determined and now instructs you that

1. 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 401.1718 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but only when the reasonable care standard was contested before the jury, as by an instruction 401.14 issue now to be withdrawn as a matter of law.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.

2. Vicarious liability:

   (Defendant) is responsible for any negligence of (name) in (describe alleged negligence). (skip to instruction 401.1718 on negligence issues)

3. 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 causation, damage issues and general instructions)

4. 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.

   401.22 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.

1. 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).

2. 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).

   * The phrase within brackets should be used only if there is an issue as to the owner's knowledge and consent.

3. 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.

4. 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).

5. 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).

6. Apportionment of fault:

   whether (identify additional person(s) or entit(y) (ies)) [was] [were] also [negligent] [at fault] [responsible] [(specify other type of conduct)]; and, if so, whether that [negligence] [fault] [responsibility] 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 "responsibility" may be the most appropriate descriptive term.

7. 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.

   NOTE ON USE FOR 401.22g

   Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977), abolished the assumption of risk defense except in cases identified in that opinion.

   402.4 MEDICAL NEGLIGENCE

1. 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 [physicians] [hospitals] [health care providers], then, in order to prevail, (claimant) must show by the greater weight of the evidence...