7.30 COMPARATIVE
NEGLIGENCE (AUTO) Civil Model Jury Charge
— ALL ISSUES
(Approved 6/1989; Revised 12/2011)
SUGGESTED
CHECK LIST
CONTENTIONS
FUNCTIONS OF JUDGE AND JURY
COMMENTS OF COURT AND COUNSEL
DETERMINATION BASED ON EVIDENCE
COMBINED BURDEN OF PROOF (7.30A)
- PREPONDERANCE
CREDIBLE EVIDENCE
(7.30B)
- WITNESSES AND THEIR CREDIBILITY
- EXPERT (IF APPLICABLE)
- FALSE IN ONE, FALSE IN ALL (IF APPLICABLE)
COMBINED DEFINITION OF NEGLIGENCE (7.30C)
- FORESEEABILITY (IF NECESSARY ONLY)
PROXIMATE CAUSE
(7.30D)
- GENERAL DUTY OF DRIVER (IF APPLICABLE)
COMPARATIVE NEGLIGENCE — LIABILITY
(7.30E)
1. INTRODUCTION
2. ORDER OF DELIBERATION
COMPARATIVE NEGLIGENCE — DAMAGES (7.30F)
1. INTRODUCTION
2. DAMAGES MUST BE PROXIMATELY CAUSED
-
RULES OF DAMAGES (INSERT ALL APPROPRIATE
ITEMS OF DAMAGE)
- DAMAGES
— EFFECT OF INSTRUCTIONS
3. ORDER OF DELIBERATIONS
VERDICT
CLOSING
SAMPLE JURY VERDICT FORM (7.30G)
A. Combined
Burden Of Proof
Now
where, as here, a plaintiff seeks to prove liability as to defendant, it is the
plaintiff's burden to prove the negligence of the defendant by a preponderance
or greater weight of the credible evidence.
He/She must prove not only that defendant was negligent, but that such
negligence was a proximate cause of the accident.
The
mere happening of an accident itself provides no basis for liability; liability
in this case must be proven.
Because
defendant has charged the plaintiff with negligence, it is his/her burden to
prove that plaintiff was negligent and that such negligence was a proximate
cause of the accident. Defendant also
must prove his/her charge by a preponderance or greater weight of the credible
evidence.
B. Credible
Evidence
Credible
evidence means evidence which in the light of reason and common sense is worthy
of belief. In order to be believed,
testimony should not only proceed from the mouth of credible witnesses but it
also must be credible in itself. It must
be such that the common experience of men and women can approve as probable in
the circumstances.[1]
Proof
of "possibility" as distinguished from "probability" is not
enough.
It follows, therefore, that if the
evidence is in equal balance, the party who has the burden of proof with
respect thereto has not sustained that burden.
(Insert Scales of Justice example
if desired).
The
right of each party to have the other party bear the required burden is a
substantial one and not a mere matter of form.
C. Combined
Definition of Negligence
Negligence
is defined as a failure to exercise in the given circumstances that degree of
care for the safety of others which a reasonably prudent person would exercise
under the same or similar circumstances.
Negligence may be the doing of an act which the reasonably prudent
person would not have done, or it may be the failure to do that which the
reasonably prudent person would have done under the circumstances then
existing. Negligence is a departure from
that standard of care.
By
a "reasonably prudent person" it is meant not the most cautious
person nor one who is unusually bold, but rather a person of reasonable caution
and prudence.
Thus,
each party in this case was required to exercise the foresight, the prudence
and the caution which a reasonably prudent person would exercise under the same
or similar circumstances. You must
determine whether each party in this case has conformed to or departed from the
standard of care.
D. Proximate
Cause
Each
party must not only prove the negligence of the other party by preponderance or
greater weight of the credible evidence, but also that this negligence was a
proximate cause of the accident.
By
proximate cause it is meant that the negligent conduct of a party was an
efficient cause of the accident, that it necessarily set the other causes in
motion and naturally and probably led to the accident in question.
E. Comparative
Negligence — Liability
1. Introduction
If
you find that more than one party has established his/her burden of proof as to
negligence, as defined by the court, you must then compare the negligence of
those parties. The total amount of
negligence is 100%. The figure that you
arrive at should reflect the total percentage of negligence attributed to each
party with respect to the happening of the accident. A comparison of negligence is made only if
the negligence of more than one party proximately caused the accident.
2. Order of Deliberation
A
jury verdict form has been prepared and will now be distributed to you so that
you may follow the court's instructions with respect thereto. When completed this will be your verdict in
this case.
Question No. 1 reads:
Was
defendant ______________ negligent, which negligence was a proximate cause of
the accident?
Yes ____ No ____
[In an appropriate case the question should be
split up in two parts where causation is a separate issue].
If
you find that defendant was negligent and that this negligence was a proximate
cause of the accident, mark "Yes" as to Question No. 1 and proceed to
Question No. 2. If you find to the
contrary, mark "No" as your answer, cease deliberations and return
your verdict.
Question
No. 2 reads:
Was plaintiff ______________ negligent,
which negligence was a proximate cause of the accident?
Yes
____ No ____
[Again, if causation is a separate issue, this
question can also be split up].
If
you find that plaintiff was negligent and that the negligence was a proximate
cause of the accident, mark "Yes" as your answer and proceed to
Question No. 3. If you find to the
contrary, mark "No" as your answer and proceed to Question No. 4 on
damages.
Question
No. 3 reads:
Defendant
___________%
Plaintiff ___________%
Total 100 %
This
question asks you to compare the negligence of each party with respect to the
happening of the accident, which should be reflected in a percentage figure
ranging from 1% to 99%. The combined
negligence of all parties shall total 100%.
This question is only to be answered where the answer to both
Question No. 1 and No. 2 is "Yes".
When you arrive at the appropriate figure, mark your verdict form and
proceed to Question No. 4 on damages.
F. Comparative Negligence - Damages
1. Introduction
If you determine that defendant was
solely negligent or that both parties were negligent, it then becomes your duty
to determine the amount of money, if any, to be awarded to plaintiff(s). For that reason, I will now instruct you with
respect to the measure of damages in this case in the event that you need to
consider this question.
2. Damages
Must Be Proximately Caused
It
is the duty of the plaintiff to prove by preponderance or the greater weight of
the credible evidence that the injuries and damages for which compensation is
sought proximately resulted from the accident.
It is not enough for a plaintiff to prove a mere possibility that a
particular injury or claimed item of damage resulted from the accident. Speculation is not enough. It must be shown that the injury or damage
was the natural and probable consequence of the accident.
3. Order of Deliberation
I
now refer you back to your jury verdict form.
Question No. 4 reads:
Damages to plaintiff: $__________________
After
considering the evidence relating to the plaintiff's injuries and their
consequences, you will determine what amount of money would fairly and
reasonably compensate plaintiff for his/her injuries and losses proximately
resulting from the accident and state the dollar amount as your answer to
Question No. 4 in one lump sum. The
evaluation of plaintiff's injuries and damages should be made irrespective as to
which party is at fault or to what degree or who is ultimately to pay. You are to be concerned only with evaluating
the plaintiff's injuries and damages without regard to whose fault proximately
caused them.
G. Sample
Jury Verdict Form
1. Was defendant _____________ negligent,
which negligence was a proximate cause of the accident?
Yes
____ No ____
If
"Yes" proceed to Question No. 2.
If
"No" cease deliberations and return your verdict.
2. Was plaintiff ______________ negligent,
which negligence was a proximate cause of the accident?
Yes
____ No ____
If "Yes" proceed to Question No. 3 and No. 4.
If "No" proceed directly to Question No. 4.
3. Comparison of each party's negligence --
to be answered only if answers to Questions No. 1 and No. 2 are
"Yes".
Defendant
___________%
Plaintiff ___________%
Total 100 %
