FLORIDA STANDARD JURY INSTRUCTIONS IN CIVIL CASES

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1 FLORIDA STANDARD JURY INSTRUCTIONS IN CIVIL CASES Click here for Summary of Contents LIBRARY OF CONGRESS CATALOG NO Copyright 1967, 1970, 1974, 1975, 1976, 1977, 1978, 1979, 1980, 1981, 1982, 1983, 1984, 1985, 1986, 1987, 1988, 1989, 1990, 1991, 1993, 1994, 1995, 1997, 1998, 2000, 2001 ISBN All Rights Reserved by THE FLORIDA BAR

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3 THE SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS Membership since inception James C. Adkins, Tallahassee (1970B71) Chris W. Altenbernd, Tampa (1992B ) Cecilia M. Altonaga, Miami (2001B ) Allen C. Anderson, St. Petersburg (1972B84 d.) Harry L. Anstead, West Palm Beach (1977B90); (vice-chair 1984B90) Ralph Artigliere, Lakeland (1990B99) Charles S. Ausley, Tallahassee (1962B72 d.) William N. Avera, Gainesville (1972B94) William A. Bald, Jacksonville (1990B99) Edward T. Barfield, Tallahassee (1990B99) R. J. Beckham, Jacksonville (1996B ) Chester Bedell, Jacksonville (1962B78); (vice-chair 1962B64); (chair 1964B78) Bruce J. Berman, Miami (2000B ) Virginia Q. Beverly, Jacksonville (1979B89) Susan H. Black, Jacksonville (1978B79) T. J. Blackwell, Miami (chairman 1962B64 d.) Elizabeth C. Bowman, Tallahassee (1984B90) Tyrie A. Boyer, Tallahassee/Jacksonville (1973B98) S. Sammy Cacciatore, Melbourne (2001B ) J. Richard Caldwell, Jr., Tampa (2001B ) Charles A. Carroll, Miami (1962B78) James Cobb, Jacksonville (1999B ) Warren H. Cobb, Daytona Beach (1980B85) Lacey A. Collier, Pensacola (1989B92) A. G. Condon, Jr., Pensacola (1999B ) Al J. Cone, West Palm Beach (1962B66) Jack H. Cook, West Palm Beach (1985B94) Harold B. Crosby, Tallahassee (1962B64) Roy B. Dalton, Orlando (1994B99) Sam Daniels, Miami (1972B94) James C. Dauksch, Jr., Daytona Beach (1985B98) Brian Jordon Davis, Jacksonville (1996B2000) H. Reid DeJarnette, Miami (1962B65 d.) Hal P. Dekle, Tampa (1971B75) George N. Diamantis, Daytona Beach (1985B95 d.) Joe Eaton, Miami (1962B67) Joel D. Eaton, Miami (1999B ) Raymond Ehrlich, Tallahassee (1986B88) Hayford O. Enwall, Gainesville (1964B70) Gary M. Farmer, West Palm Beach (1999B ) Patricia C. Fawsett, Orlando (1981B86) Wilkie D. Ferguson, Jr., Miami (1985B94) Gasper J. Ficarrotta, Tampa (2000B ) John Edwin Fisher, Orlando (1994B2000) Richard H. Frank, Tampa (1986B92) 3/01 iii

4 Charles B. Fulton, West Palm Beach (1962B63) William C. Gaither, Miami (1962B67 d.) Francis Lynn Gerald, Jr., Ft. Myers (2000B ) Mario Goderich, Miami (1994B97) Marjorie Gadarian Graham, Palm Beach Gardens (1981B99); (vice-chair 1990B94); (chair 1994B98) Melvia B. Green, Miami (1997B ) Jacqueline R. Griffin, Daytona Beach (1999B ) Tracy Raffles Gunn, Tampa (1999B ) William E. Hahn, Tampa (1994B2000) Joe J. Harrell, Pensacola (1963B87 d.) Baya M. Harrison, Jr., St. Petersburg (1962B63) Joseph W. Hatchett, Tallahassee (1976B79) Robert E. Hathaway, West Palm Beach (1963B72) Mark R. Hawes, Zephyrhills (1963B78) Nancy Little Hoffmann, Ft. Lauderdale (1983B98) Phillip A. Hubbart, Miami (1978B83) Michael L. Kinney, Tampa (1965B95) Jane Kreusler-Walsh, West Palm Beach (1999B ) Brian D. Lambert, Ocala (1996B2000) Terry P. Lewis, Tallahassee (2001B ) Rutledge R. Liles, Jacksonville (1999B ) Woodie A. Liles, Lakeland/Tallahassee (1972B78) Mary Bland Love, Jacksonville (1989B95) Wendy Frank Lumish, Miami (2001B ) Scott D. Makar, Jacksonville (1994B ) Robert T. Mann, Gainesville/Tallahassee (1975B79) Sam H. Mann, Jr., St. Petersburg (1972B81) Kenneth A. Marra, West Palm Beach (1998B ) B. J. Masterson, St. Petersburg (1981B89) L. Edward McClellan, Jr., Ocala (1990B94) Parker Lee McDonald, Tallahassee (1980B86) Neil C. McMullen, Tampa (1979B86) Daniel P. Mitchell, Tampa (2001B ) Edward A. Moss, Miami (1986B95) John A. H. Murphree, Gainesville (1962B75) T. Truett Ott, Tampa (1977B85) Ben F. Overton, Tallahassee (1975B76) William C. Owen, Jr., West Palm Beach (1972B87); (vice-chair 1978B84) Donald H. Partington, Pensacola (1981B95); (chair 1990B94) Daniel S. Pearson, Miami (1983B85) William C. Pierce, Tampa (1969B72) Charles P. Pillans, III, Jacksonville (1999B ) Aaron S. Podhurst, Miami (1978B85) Frank Pound, Viera (1992B98) Gregory A. Presnell, Orlando (2000B00) John W. Prunty, Miami (1962B82) John Alton Reed, Jr., Orlando (1986B92) Leonard Rivkind, Miami (1981B88) 3/01 iv

5 B. K. Roberts, Tallahassee (1969B70) Edward B. Rood, Tampa (1962B89) Herboth S. Ryder, Tampa (1986B86) Susan F. Schaeffer, St. Petersburg (1988B88) Charles R. Scott, Jacksonville (1962B66) Harold L. Sebring, St. Petersburg (1962B68) Stuart H. Singer, Hollywood (2000B ) Culver Smith, West Palm Beach (1962B77 d.) Miyoshi D. Smith, Miami (1992B1997) Robert P. Smith, Jr., Jacksonville/Tallahassee (1964B89); (chair 1978B89) Sherman Smith, Lakeland/Vero Beach (1962B69) Brian F. Spector, Miami (1992B99) James R. Stewart, Jr., West Palm Beach (1978B84) Larry S. Stewart, Miami (2000B ) David U. Strawn, Orlando (1977B80) R. James Stroker, Orlando (1996B ) Elwyn Thomas, Tallahassee (1962B69) Ford L. Thompson, Tallahassee (1962B90) James R. (Jim) Thompson, Fort Myers (1992B99) Hamilton D. Upchurch, St. Augustine (1972B78) Bill Wagner, Tampa (1994B ) Sylvia H. Walbolt, St. Petersburg (1983B94) (1997B ) (vice-chair 1999B2000) (chair 2001B ) Martha C. Warner, West Palm Beach (1988B98) Jack F. Wayman, Jacksonville (1964B82) Peter D. Webster, Tallahassee (1979B ) (vice-chair 1994B98) (chair 1999B2000) Gerald T. Wetherington, Miami (1977B81) James D. Whittemore, Tampa (1996B2000) John T. Wigginton, Tallahassee (1962B73) O. Edgar Williams, Jr., Ft. Lauderdale (1982B98) James M. Wilson, Pensacola (1988B98) italics indicate present members d. indicates died while a member 3/01 v(a)

6 ORDER AND OPINION OF SUPREME COURT OF FLORIDA ADOPTING FLORIDA STANDARD JURY INSTRUCTIONS IN THE SUPREME COURT OF FLORIDA JANUARY TERM, A. D In the matter of the use by the ** trial courts of the STANDARD ** CASE NO. 36,286 JURY INSTRUCTIONS. **(198 So.2d 319, 320) Opinion filed April 19, 1967 PER CURIAM. This matter comes on to be heard on the report of the Supreme Court Committee on Standard Jury Instructions and the printed looseleaf book on instructions prepared by the Committee for use in civil negligence cases and submitted with the Committee's report. The Court generally approves the theory and technique of charging civil juries as recommended by the Committee and embodied in its proposed instructions. The Court will, accordingly, authorize the publication and use of such instructions, but without prejudice to the rights of any litigant objecting to the use of one or more of such approved forms of instructions. The Court recognizes that the initial determination of applicable substantive law in every case should be made by the trial judge and that it would be inappropriate for the Court at this time to consider the recommended instructions with a view to adjudging that the legal principles embodied in the recommended instructions correctly state the law of Florida. Similarly, the Court recognizes that no approval of the forms by the Court could relieve the trial judge of his responsibility under the law properly and correctly to charge the jury in each case as it comes before him. This order is not to be construed as any intrusion on that responsibility of the trial judges. The Court is confident that the forms of instructions recommended by the Committee state as accurately as a group of experienced lawyers and judges could state the law of Florida in simple understandable language. Accordingly, it is ORDERED by the Court: 1. The Supreme Court Committee on Standard Jury Instructions and The Florida Bar be and they are authorized forthwith to publish and distribute the instructions submitted by the Committee, a copy of which is attached together with the Introduction and General Note on Use. Illustrative forms of model charges as recommended by the Committee are also attached and may be published. 2. The Florida Rules of Civil Procedure are hereby amended so as to include an additional rule, entitled Use of Florida Standard Jury Instructions, which shall provide: The forms of Florida Standard Jury Instructions published by The Florida Bar pursuant to authority of the Court may be used by the trial judges of this State in charging the jury in every civil case to the extent that the forms are applicable, unless the trial judge shall determine vi

7 that an applicable form of instruction is erroneous or inadequate, in which event he shall modify or amend such form or give such other instruction as the trial judge shall determine to be necessary accurately and sufficiently to instruct the jury in the circumstances of the case; and, in such event, the trial judge shall state on the record or in a separate order the respect in which he finds the standard form erroneous or inadequate and the legal basis of his finding. Similarly, in all circumstances in which the notes accompanying the Florida Standard Jury Instructions contain a recommendation that a certain type of instruction not be given, the trial judge may follow such recommendation unless he shall determine that the giving of such an instruction is necessary accurately and sufficiently to instruct the jury, in which event he shall give such instruction as he shall deem appropriate and necessary; and, in such event, the trial judge shall state on the record or in a separate order the legal basis of his determination that such instruction is necessary. The foregoing Rule shall become effective on April 19, A copy of the foregoing additional Rule shall be inserted in the printed book of instructions with the following Note appended thereto: NOTE: In order that necessary corrections and revisions may be promptly considered by the continuing Supreme Court Committee on Standard Jury Instructions and by the Court, the trial judges and trial counsel are requested promptly to furnish the Director of Continuing Legal Education of The Florida Bar appropriate evidence of each instance in which one of the forms of instruction is determined to be erroneous or inadequate and in which the giving of an instruction is determined to be necessary in circumstances in which the Committee has recommended that such an instruction not be given. 4. The Supreme Court Committee on Standard Jury Instructions is continued as a Committee of this Court for the immediate purpose of reviewing errors and inaccuracies and recommending to this Court amendments and revisions as experience may prove beneficial. 5. In accordance with the Resolution establishing the Committee, the members of the Bench and Bar who shall constitute the continuing Committee shall be reappointed or appointed by the Chief Justice and serve at his pleasure without compensation. It is so ordered. THORNAL, C.J., THOMAS, ROBERTS, DREW, O'CONNELL, CALDWELL and ERVIN, JJ., concur vii

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10 ORDERS OF SUPREME COURT OF FLORIDA REVISING FLORIDA STANDARD JURY INSTRUCTIONS IN CIVIL CASES 233 So.2d 380 (Fla. 1970) 290 So.2d 49 (Fla. 1974) 304 So.2d 100 (Fla. 1974) Opinion filed July 24, 1975 Case No. 46,366-A C Unreported 335 So.2d 559 (Fla. 1976) Opinion filed March 23, 1977 Case No. 46,366-A C Unreported Opinion filed April 28, 1978 Case No. 46,366-B C Unreported Opinion filed June 5, 1979 Case No. 46,366-C C Unreported 5 FLW 593 (Fla. 1980) 6 FLW 554 (Fla. 1981) 7 FLW 159 (Fla. 1982) 418 So.2d 267 (Fla. 1982) 435 So.2d 782 (Fla. 1983) 459 So.2d 1023 (Fla. 1984) 475 So.2d 682 (Fla. 1985) 483 So.2d 429 (Fla. 1986) 11 FLW 600 (Fla. 1986) 503 So.2d 319 (Fla. 1987) 515 So.2d 737 (Fla. 1987) 522 So.2d 364 (Fla. 1988) 541 So.2d 90 (Fla. 1989) 540 So.2d 825 (Fla. 1989) 570 So.2d 294 (Fla. 1990) 575 So.2d 194 (Fla. 1991) 613 So.2d 1316 (Fla. 1993) 645 So.2d 999 (Fla. 1994) 658 So.2d 95 (Fla. 1995) 658 So.2d 97 (Fla. 1995) 689 So.2d 1042 (Fla. 1997) 693 So.2d 934 (Fla. 1997) 700 So.2d 379 (Fla. 1997) 700 So.2d 377 (Fla. 1997) 706 So.2d 283 (Fla. 1998) 711 So.2d 1 (Fla. 1998) 723 So.2d 174 (Fla. 1998) 720 So.2d 1077 (Fla. 1998) 746 So.2d 440 (Fla. 1999) 25 FLW S518 (Fla. 2000) 777 So.2d 378 (Fla. 2000) 26 FLW S151 (Fla. 2001) 3/01 viii(a)

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12 No. SC STANDARD JURY INSTRUCTIONS C CIVIL CASES (NO ) PER CURIAM. [March 8, 2001] The Committee on Standard Jury Instructions (Civil) petitions this Court to amend the Standard Jury Instructions in Civil Cases. We have jurisdiction. Art. V, ' 2(a), Fla. Const.; Fla. R. Civ. P The Committee published its proposed amendments for comment in The Florida Bar News. One comment was received regarding proposed instruction 1.0, APreliminary Voir Dire and three comments were received regarding proposed new instruction 7.4, AInstruction upon Discharge of Proposed instruction 7.4 was republished with additional language and minor stylistic changes. After republication, no further comments were received. Upon consideration, we hereby authorize for publication and use the proposed amendments as set forth in the appendix attached to this opinion. We highlight instruction 1.0, APreliminary Voir Dire which contains new language informing jurors that if they violate their oath to answer all voir dire questions truthfully, they may be subject to civil or criminal penalties. This amendment emphasizes to jurors that candor during voir dire questioning is not only critical to the integrity of the judicial system, but also mandatory under the law. In authorizing publication, we caution all interested persons that the notes and comments reflect only the opinion of the committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. We express no opinion on the correctness of these instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of these instructions. The amendments shall be effective when this opinion becomes final. New language is indicated by underlining and deletions are indicated by struck-through type. We wish to express our appreciation to the committee for its dedication in presenting to the Court its recommendations. It is so ordered. WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.

13 INTRODUCTION The Supreme Court of Florida, by resolution adopted March 12, 1962, established the Supreme Court Committee on Standard Jury Instructions Aas an auxiliary arm of this Court... for the study and development of a program for standard jury The Committee, whose members were appointed by and have served at the pleasure of the Chief Justice, succeeded to the efforts and responsibilities of a similar committee of The Florida Bar, which has, through its permanent staff, continued to contribute substantially as an organization to the development and publication of this work. The work of the Committee was activated by Chief Justice Roberts in June 1962 when he named twenty-one Florida lawyers and judges to be members of the Committee, of which T. J. Blackwell of Miami was named Chairman and Chester Bedell of Jacksonville, Vice Chairman. Using as its guide the recently published Illinois Pattern Jury Instructions (Burdette Smith Co., Chicago, 1961), the product of the Illinois Supreme Court Committee on Jury Instructions, the Committee members undertook individually to prepare initial drafts of proposed pattern jury instructions appropriate for use in civil cases under Florida law. A great deal of effort was devoted to the work during the next year and a half by the members of the Committee and especially by Chairman Blackwell. The Committee labored to produce jury instructions that would express the applicable issues and guiding legal principles briefly and in simple, understandable language, without argument, without unnecessary repetition, and without reliance on negative charges. Following Chairman Blackwell's death in February 1964, Chief Justice Drew appointed the then Vice Chairman to continue as Chairman. At a reorganizational meeting held in April 1964 at Tallahassee with members of the Court present, the Committee resolved itself into five area subcommittees whose responsibility it became to review the existing work and to submit, for consideration by the general Committee, drafts of instructions on assigned subjects. A steering committee resolved in May 1964 that Athe full Committee's initial efforts should be confined to the preparation and publication of standard instructions for use in the trial of negligence assigned to the subcommittees specific areas of work, and reaffirmed adherence to the basic policies which previously guided the Committee. The steering committee also requested that the subcommittees recommend, in appropriate situations, that no instruction be given on a specific subject within the general field of the subject matter assigned to that subcommittee. At several meetings of the full Committee in 1964 and 1965, the drafts submitted by the area subcommittees and individual members were thoroughly discussed and reworked and thereafter resubmitted and reworked repeatedly. These efforts continued in 1966 until the Committee thought it no longer fruitful to work otherwise than as the full Committee. Accordingly, the Committee thereafter held two-day sessions more frequently and, in January 1967, completed all but the final editorial work on Florida Standard Jury Instructions. The Supreme Court, on April 19, 1967, approved the Committee's work and authorized its publication by The Florida Bar. The Bar has made Florida ix

14 Standard Jury Instructions generally available in the form of a small, looseleaf book. The Bar has also furnished to the State's circuit judges a considerably larger edition of the same work, likewise bound in a spiral-type book, with large and distinct type printed on heavy ledger paper. The Committee gratefully acknowledges and calls to the attention of the Bench and Bar the contributions made to this work by three of its members who died while in the service of the Committee: The Honorable T. J. Blackwell, of Miami, first Chairman of the Committee, who died on February 18, 1964; the Honorable H. Reid DeJarnette, of Miami, who died on March 26, 1964; and the Honorable William C. Gaither, of Miami, who died on January 25, 1967, having entered the hospital at a time when he had planned to attend one of the last meetings of the Committee. Mr. Gaither's contributions of time and effort had a special influence on the form and content of the work that was finally approved by the Committee and by the Court for publication as Florida Standard Jury Instructions. The Committee is indebted to The Florida Bar and to its staff, especially Wade L. Hopping, formerly Director of Continuing Legal Education, and Preston W. DeMilly, presently Acting Director, who have provided valuable assistance in the preparation and publication of this work. The Committee likewise acknowledges its indebtedness to Gerald C. Snyder, Esquire, of Waukegan, Illinois, and to the Illinois Supreme Court Committee of which he has been chairman, for that committee's pioneering efforts which resulted in the publication of Illinois Pattern Jury Instructions; and to the authors and publishers of Wisconsin Jury Instructions (Univ. of Wisc., Madison, 1962), Minnesota Jury Instruction Guides (West Publishing Co., St. Paul, 1963), New York Pattern Jury InstructionsCCivil (Baker, Voorhis & Co., Inc., Mount Kisco, and Lawyers Co-operative Publishing Co., Rochester, 1965), Pattern Instructions for Kansas (Bancroft-Whitney Co., San Francisco, and Lawyers Co-operative Publishing Co., Rochester, 1966), and other such volumes which have appeared since 1961 and have assisted the Committee in anticipating and resolving the common problems which those volumes and this one attempt to overcome. In many ways, Florida Standard Jury Instructions is similar to the standard or pattern instructions adopted and published for use in other States. In many other ways, Florida Standard Jury Instructions is unique in form and content. It has been the Committee's purpose not to merely reproduce in terms of Florida law the work of others but rather to improve upon their work and, where possible, to innovate for the more effective administration of justice in the trial of jury cases. In committing its work into the hands of the trial Bench and Bar for the test of experience, the Committee finally expresses its x

15 appreciation to the Supreme Court and to The Florida Bar for having made this effort possible. Committee on The Supreme Court Standard Jury Instructions April 1967 xi

16 SUMMARY OF CONTENTS THE SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS... iii ORDER AND OPINION OF SUPREME COURT OF FLORIDA ADOPTING FLORIDA STANDARD JURY INSTRUCTIONS... v INTRODUCTION... ix GENERAL NOTE ON USE... xv THE INSTRUCTIONS The first page of each part of this book except Part III bears a summary of the contents of that Part. The contents of Part III are revealed by the stepped pages used in Part III. I II III IV PL V VI PD MI INSTRUCTIONS BEFORE AND DURING TRIAL GENERAL INSTRUCTIONS ISSUES NEGLIGENCE PRODUCT LIABILITY CAUSATION DAMAGES PUNITIVE DAMAGES MISCELLANEOUS MI 1 MI 2 MI 3 MI 4 Contribution among tortfeasors '768.31, Florida Statutes (Supp. 1976) (Reserved by committee) Insurer's bad faith Defamation MI 5.1 Malicious prosecution (issues and elements)

17 MI 5.2 Malicious prosecution (damages) MI 6.1 False imprisonment MI 7 Tortious interference with business relationships MI 7.1 MI 7.2 Interference with a contract not terminable at will Interference with contract terminable at will or with prospective business relations; competition or financial interest defense MI 8 MI 9 MI 10 MI 11 Fraudulent misrepresentation; negligent misrepresentation (Issues & Elements) Emergency Medical Treatment Outrageous conduct causing severe emotional distress Civil theft MI 12.1 Breach of contract existence of contract admitted (terms unambiguous) VII VIII CLOSING INSTRUCTIONS VERDICT FORMS MODEL FORMS OF JURY CHARGES Page Model charge No. 1: Model charge No. 2: Model charge No. 3: Model charge No. 4: Model charge No. 5: automobile collision; comparative negligence; single claimant and defendant; no counterclaim; no-fault threshold issue... 3 automobile collision; driver's comparative negligencecfailure to wear seat belt; single claimant and defendant; no counterclaim automobile collision; comparative negligence; wrongful death damages automobile collision; comparative negligence; claim and counterclaim injury in 3-car collision; settlement with injured party by one tortfeasor; independent contribution claim by him against others; reasonableness of settlement as well as liability contested... 32

18 Model charge No. 6: Model charge No. 7: Model charge No. 8: claimant suing three alleged joint tortfeasors; comparative negligence in issue; contribution shares to be determined in action product liability case; negligence and implied and express warranty claims; comparative negligence as defense product liability case; negligence and strict liability claims; comparative negligence defense INDEX 3/01 xiv(a)

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21 GENERAL NOTE ON USE ORGANIZATION OF THIS WORK Florida Standard Jury Instructions contains seven parts, arranged in the order in which the parts are designed to be used by the trial court in instructing the jury in a negligence case. I Instructions before and during trial. it is usually necessary when beginning a trial and on other occasions during the trial for the court to instruct the jury with respect to its duties and conduct, to explain trial procedure and otherwise to instruct the jury regarding matters arising during the submission of evidence. Part I is intended as a guide with respect to such matters. II General instructions. It is necessary in every case to charge the jury upon its duties in applying the court's charge, in weighing evidence and in resolving issues. The instructions o this subject, contained in Part II, will ordinarily be given at the opening of the court's charge to the jury, after the argument of counsel. II Issues. Florida Standard Jury Instructions is unique among similar works in the manner in which, by instructions in Part III, the trial judge at once identifies to the jury the principal issues in the case and, to a great extent, charges the jury upon the legal principles that govern the resolution of those issues. Thus, in most negligence cases, the basic issues submitted to the jury on a plaintiff's claim are whether defendant was negligent and, if so, whether such negligence was a legally recognized cause of injury or damage to plaintiff. The basic defensive issue ordinarily submitted is whether plaintiff was himself negligent and, if so, whether such negligence contributed as a legally recognized cause of plaintiff's injury or damage. Part III of Florida Standard Jury Instructions contains charges framing these basic issues, together with charges allocating the burden of proof and defining the measure of evidence necessary to carry the burden of proof on those issues. The charges which are thus to frame these basic issues are: 3.5 Negligence issues 3.6 Causation and damage issues 3.7 Greater weight (preponderance) of evidence and burden of proof 3.8 Defense issues: contributory negligence, assumption of risk 3.9 Greater weight (preponderance) of evidence defined It is not sufficient in all cases merely to define and submit these basic issues to the jury. It may be necessary to charge the jury preemptively with respect to some aspect of plaintiff's claim C as, for example, that defendant is responsible for the conduct of another person C or to withdraw from the jury's 6/79 xv

22 consideration an issue about which there has been some controversy during the trial. Appropriate standard instructions for these purposes are printed on distinctive blue paper in 3.1 Preemptive charges: issues arising on claim When it is necessary to give a preemptive charge in favor of the plaintiff on a defense issue, as when the court withdraws from the jury the defense of contributory negligence, the preemptive charge, in the form suggested in 3.1, should be given immediately following charge 3.7. And when it is necessary to give a preemptive charge in favor of the defendant on a defense issue, as when the court rules that any negligence on the part of the driver will be attributed to the plaintiff-passenger in his action against a third party, that charge should be given in the form suggested in 3.1 immediately after framing the defense issues (3.8b) and before giving the charge on greater weight of the evidence and burden of proof on defense issues (3.8, p. 4). See 3.8, note 1, p. 4. In most negligence cases it is assumed or shown without contradiction that defendant had a duty to use reasonable care. But when there is a real issue of whether defendant had such a duty C as in cases involving the question of whether plaintiff was, in law, a common carrier's C the court should first submit such preliminary issues to the jury by charges (also printed on blue paper) contained in 3.2 Preliminary issues: status or duty If there is an issue of whether defendant is responsible for negligence on the part of the person alleged to have been negligent C as in the cases involving principles of agency C a statement of the preliminary issues is found in 3.3 Preliminary issues: vicarious liability Treatment of the preliminary issues in Part III closes with an appropriate charge on 3.4 Preliminary issues: greater weight (preponderance) of evidence and burden of proof The instructions in Part III are suitable for framing the issues regardless of whether the claim made is an original claim, a counterclaim or a cross-claim. These instructions may also be used when one party makes two or more claims in the same action C as when plaintiff sues two or more 6/79 xvi

23 defendants, claiming separate and distinct acts of negligence resulting in one injury. In most cases in which claimant asserts that defendant was negligent in two or more distinct ways or that two or more defendants were negligent and that they are jointly liable to him, it will be altogether practical to give the Issues charge one time only, making it applicable to all of the claims. In cases in which there is a counterclaim or cross-claim, the court will ordinarily concentrate on each claim separately; select the charges from Part III that are appropriate to that particular claim, charge the jury with respect to the issues on that claim including defense issues, and return again to the beginning of Part III to give the instructions appropriate to the issues on the next claim. But in cases in which the claim and counterclaim involve substantially the same issues of negligence and contributory negligence, the integrated charge on the issues of the claim and counterclaim may be given (3.5, p. 1a; see Model charge No. 2). IV Negligence. Part IV contains definitions of negligence in its various applications and other charges necessary for the proper understanding and resolution of the issues on questions of negligence, including contributory negligence. PL Product liability. Part PL serves the same purposes, in cases involving asserted product liability on grounds other than negligence, as are served in negligence cases by Part III Issues and Part IV Negligence. V Causation. Part V contains the necessary charges defining legally recognized cause. VI Damages. The instructions on damages are arranged so that the various elements of damage proper for consideration upon any claim may be selected and made the subject of a charge with respect to that claim. In some cases involving multiple claims the court will wish to enumerate separately the elements appropriately to be considered upon each claim (see, e.g., Model charge No. 2). In other cases involving multiple claims, the court may find it convenient and not misleading to the jury to give the charges in Part V one time only, mentioning all elements of damage which may properly be considered upon any of the multiple claims. MI Miscellaneous. Part MI contains charges recommended for cases involving issues of (MI 1) Contribution among tortfeasors, (MI 3) Insurer's bad faith in refusing to settle, (MI 4) Defamation, and (MI 5) Malicious prosecution. 6/79 xvii

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