Jury Instructions

Incorrect / Misleading Jury Instructions and Reversible Error

Posted by David Adelstein on February 27, 2016
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I have discussed the importance of jury instructions. Time should be taken crafting applicable jury instructions based on the law to discuss during the charging conference where the judge determines the jury instructions to read to the jury. What happens if a court reads a misleading and incorrect jury instruction? Final judgment may be reversed and a new trial ordered–reversible error!

In a first-party property insurance coverage dispute, the court read a jury instruction relating to the insured and insurer’s burden of proof. The jury instruction, however, was confusing and contained an incorrect burden of proof for the insurer. As a result, the jury found in favor of the insured and a final judgment was rendered. The Second District reversed the final judgment because the burden of proof jury instruction was misleading and incorrect potentially leading the jury to reach a conclusion it might not have reached had the jury instruction not been misleading and incorrect. Citizens Property insurance Corp. v. Salkey, 41 Fla. L. Weekly D509a (Fla. 2d DCA 2016); see also Allstate Ins. Co. v. Vanater, 297 So.2d 293 (Fla. 2000) (explaining that an erroneous jury instruction concerning the burden of proof is reversible error because it could lead the jury to reach a conclusion it might not have reached had the jury instruction been correct).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Proving Affirmative Defenses and the Affirmative Defense of Comparative Negligence

Posted by David Adelstein on April 01, 2015
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When a defendant is sued, the defendant will typically assert affirmative defenses (or defenses to the claims asserted by the plaintiff).  Just like a plaintiff has the burden of proof to prove its claims against a defendant, the defendant has the burden of proof to prove its affirmative defenses.

The recent opinion in Bongiorno v. Americorp., 40 Fla L. Weekly D760c (Fla. 5th DCA 2015) exemplifies that a defendant that asserts an affirmative defense has the burden of proving that defense.   This case was a personal injury negligence case. The defendant argued that the plaintiff’s negligence contributed to her negligence, i.e., the affirmative defense of comparative negligence.   The reason the defendant argued this is to reduce its damages exposure.

For instance, let’s assume the jury found that the plaintiff’s damages were $100,000 but that the plaintiff was 50% responsible for her damages. This would have the effect of the court reducing the plaintiff’s damages by 50% or, in this hypothetical, $50,000, in the judgment.

Florida’s standard jury instruction dealing with comparative negligence provides:

501.4 COMPARATIVE NEGLIGENCE, NON-PARTY FAULT AND MULTIPLE DEFENDANTS

In determining the total amount of damages, you should not make any reduction because of the negligence, if any, of (claimant). The court will enter a judgment based on your verdict and, if you find that (claimant) was negligent in any degree, the court in entering judgment will reduce the total amount of damages by the percentage of negligence which you find was caused by (claimant).

[The court will also take into account, in entering judgment against any defendant whom you find to have been negligent, the percentage of that defendant’s negligence compared to the total negligence of all the parties to this action.]*

*Use the bracketed paragraph above only when there is more than one defendant; the reference to “responsibility” in this additional instruction is designed for use in strict liability cases.

However, the point is that even if you wanted to assert comparative negligence as an affirmative defense, the burden would be upon you (the defendant) to prove this defense. The Court in Bongiorno explained:

Comparative negligence is an affirmative defense; thus, the party asserting the defense bears the burden of proving that the negligence of the other party was a cause of the accident.

***

The four elements necessary to prove a negligence claim [and, thus, a comparative negligence defense] include: (1) a duty to conform to a certain standard of conduct; (2) a breach of the duty; (3) proximate cause; and (4) damages.

Bongiorno, supra (internal quotations and citations omitted).

Notably, in Florida, when it comes to negligence claims, a defendant can only be liable for his/her/its pro rata percentage of fault. See Fla. Stat. 768.81(3) (“In a negligence action [or an action based on a theory of negligence], the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.”). This means that joint and several liability no longer applies in negligence actions; this is why a defendant’s allocated percentage of fault, especially when there are multiple defendants, becomes important. With the affirmative defense of comparative negligence, as mentioned above, the defendant’s pro rata percentage of fault may be reduced based on the pro rata percentage of fault caused by the plaintiff that contributed to the plaintiff’s damages.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Preparing Jury Instructions and the Standard of Review in Appealing Jury Instructions

Posted by David Adelstein on December 30, 2014
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Jury Instructions

Jury instructions are a vital component of any jury trial. These are the instructions that the trial judge reads to a jury explaining the elements of the plaintiff’s causes of action against the defendant, the defendant’s defenses, the required burden of proof, how to weigh the evidence, etc. There are jury instructions that are considered Florida standard jury instructions. But, outside of these standard jury instructions, there is a great deal of discretion in preparing and presenting jury instructions in civil trials as long as the instructions accurately reflect the law and are not misleading to the jury.

Typically, each party prepares their own jury instructions (that are not standard jury instructions). The parties then try to agree on a uniform set of instructions to present to the trial judge. It is common for parties to disagree on these jury instructions as each party prefers jury instructions that best suits their case. The judge then holds what is known as a charging conference / jury instruction conference with the parties to determine those applicable jury instructions that the trial judge will read to the jury. However, when the parties disagree as to the jury instructions to be read to the jury, this serves as the basis of an appeal at the conclusion of the trial. It is important, however, for a party to raise an objection during the charging conference / jury instruction conference to a jury instruction that the party may later need to appeal. See High, Clarke & Feneis, Inc. v. Public Service Mut. Ins., 238 So.2d 169 (Fla. 3d DCA 1970) (affirming judgment because party failed to preserve objection to jury instruction by failing to raise objection at charging conference). It is also important for parties to ensure there is a court reporter at the jury instruction conference so that any objection is properly preserved and made part of the record for the appeal. See Wright v. Coca Cola Bottling Co. of Miami, 256 So.2d 56 (Fla. 4th DCA 1971) (affirming judgment because the record failed to disclose any objection made to the jury instructions).

The standard of appellate review relating to jury instructions is abuse of discretion (a standard of review previously discussed in prior postings). See Barton Protective Services, Inc. v. Faber, 745 So.2d 968, 974 (Fla. 4th DCA 1999). As best articulated by the Fourth District Court of Appeal:

A trial court is accorded broad discretion in formulating appropriate jury instructions and its decision should not be reversed unless the error complained of resulted in a miscarriage of justice or the instruction was reasonably calculated to confuse or mislead the jury. A decision to give or withhold a jury instruction is to be reviewed under the abuse of discretion standard of review. The party defending the instructions on appeal must show that the requested instructions accurately stated the applicable law, the facts supported giving the instruction, and that the instruction was necessary in order to allow the jury to properly resolve all the issues in the case. If the jury instructions, as a whole, fairly state the applicable law to the jury, the failure to give a particular instruction will not be an error.

See id (internal citations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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