burden of proof

Quick Note: Appeal of Jury Instructions with Wrong Burden of Proof

Posted by David Adelstein on January 24, 2018
Appeal, Burden of Proof / Comments Off on Quick Note: Appeal of Jury Instructions with Wrong Burden of Proof

I recently talked about the burden of proof when it comes to an all-risk property insurance policy.  This article is important for insureds that have a property insurance claim and are dealing with certain insurance coverage issues with their property insurer. The case at-issue discussed in the article dealt with an appeal of the jury instructions that were read to the jury.  Specifically, the issue was whether the trial court applied the right burden of proof in the jury instructions.  This issue is reviewed under a de novo standard of appellate review.  See Jones v. Federated National Ins. Co., 43 Fla. L. Weekly D164a (Fla. 4th DCA 2018) citing Daniels v. State, 121 So.3d 409, 413 (Fla. 2013).  

The appellate court found the the trial court’s jury instructions were erroneous meaning the case was remanded back to the trial court for a new trial (with correct jury instructions regarding the burden of proof).

It is important to note that at the charging conference between counsel and the judge to discuss the jury instructions that will be read to the jury, the insured’s lawyer objected to the jury instructions that the judge was going to read to the jury.  This charging conference is important and, as the insured’s lawyer did in this case, it is crucial to object to any jury instruction that is incorrect and/or applies the wrong burden of proof. 

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 Your Case Through Circumstantial Evidence

Posted by David Adelstein on May 15, 2016
Evidence / Comments Off on Proving Your Case Through Circumstantial Evidence

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The plaintiff puts on her case through circumstantial evidence so that inferences can be drawn from that evidence.  The defendant moves for a directed verdict after the plaintiff put on her case through circumstantial evidence. The trial court denies the motion and the jury enters a verdict in favor of the plaintiff. The defendant appeals the trial court’s denial of the motion for a directed verdict. The standard of review for the denial of a motion for directed verdict is de novo.   Broward Executive Builders, Inc. v. Zota, 41 Fla.L.Weekly D1126a (Fla. 4th DCA 2016).

In Broward Executive Builders, the plaintiff, a painter, fell and seriously injured herself. No one witnessed the fall and the plaintiff was unable to testify. The plaintiff claimed that defendant general contractor caused her fall by failing to install required guardrails that would have prevented the fall.

[A plaintiff] must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

Broward Executive Builders, supra, quoting Sanders v. ERP Operating Ltd. P’ship, 157 So.3d 273, 277 (Fla. 2015).

Without any direct evidence relating to the cause of the plaintiff’s injury, the plaintiff needed to establish the defendant general contractor’s liability through circumstantial evidence, predominantly through an expert accident reconstructionist. While the plaintiff may prove facts in a negligence case through circumstantial evidence, an inference drawn from the circumstantial evidence “must be the only reasonable inference that can be formed from that evidence for the plaintiff to build further inferences upon it.” Broward Executive Builders, supra.

While it certainly could be inferred from the circumstantial evidence that the plaintiff fell and sustained injuries, it could not be reasonably inferred that the plaintiff fell from a location where the guardrails would have prevented her fall. The circumstantial evidence did not exclude other reasonable inferences about the location where the plaintiff fell, what the plaintiff was doing when she fell, or what caused the fall. In other words, it could not be solely inferred that the defendant’s failure to install the required guardrails caused the plaintiff’s injuries—there were other reasonable possibilities relating to the fall that could be inferred.

[B]ecause there is no evidence of how she fell or where exactly she fell from, it would be complete speculation and conjecture for any trier of fact to conclude that the lack of guardrails contributed to causing her injuries. The burden of proof rested upon appellees [plaintiff] to prove appellant’s [defendant] negligence. Where there is evidence that the harm could have occurred even in the absence of the appellant’s conduct, proof of causation cannot be based on mere speculation, conjecture, or inferences drawn from other non-exclusive inferences.

Broward Executive Builders, supra (reversing the trial court and remanding for judgment to be entered in favor of defendant general contractor). 

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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You Cannot Contradict Testimony with Affidavit Testimony in Response to Summary Judgment

Posted by David Adelstein on January 29, 2016
Appeal, Expert Testimony / Comments Off on You Cannot Contradict Testimony with Affidavit Testimony in Response to Summary Judgment

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Preparing expert witnesses for deposition is vital. To this end, working with an expert witness to ensure their expert opinions fit within the context and theme of your case and burden of proof is equally vital. Not doing so can be fatal to your case. This can lead to unprepared testimony or opinions that may appear innocuous but are in fact detrimental to your claims.

For example, in the recent opinion in Lesnik v. Duval Ford, LLC, 41 Fla.L.Weekly D281a (Fla. 1st DCA 2016), the plaintiff’s expert witness was deposed. The case involved a single vehicle accident where the plaintiff asserted claims against the dealership he purchased his used vehicle from. During deposition, the expert was asked specific questions and answered that he had no expert opinions as to those questions/issues. The Defendants filed a motion for summary judgment. In response to the motion, the plaintiff filed an affidavit of his expert. The problem, however, was that the expert rendered opinions in the affidavit that contradicted with his deposition testimony. In other words, he rendered opinions in the affidavit as to issues he previously testified that he had no expert opinions on. The trial court struck the affidavit based on the law that “a litigant when confronted with an adverse motion for summary judgment, may not contradict or disavow prior sworn testimony with contradictory sworn affidavit testimony.” Lesnik, supra, quoting Ondo v. F. Gary Gieseke, P.A., 697 So. 2d 921, 923 (Fla. 4th DCA 1997). The appellate court affirmed (explaining that reviewing trial court’s order striking the expert’s affidavit was an abuse of discretion standard of review and the trial court acted within its discretion).

 

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
Burden of Proof, Jury Instructions / Comments Off on Proving Affirmative Defenses and the Affirmative Defense of Comparative Negligence

 

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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Satisfying the Burden of Proof by a “Greater Weight of the Evidence”

Posted by David Adelstein on December 26, 2014
Burden of Proof, Evidence / Comments Off on Satisfying the Burden of Proof by a “Greater Weight of the Evidence”

images-1Burden of Proof

 

The burden of proof (or burden of persuasion) in a civil case is NOT the same “beyond a reasonable doubt” burden that the government has in convicting a criminal defendant.   The burden of proof in a civil case is a much lesser burden.

Rather, the burden of proof in a civil case is often referred to as the burden to prove YOUR case by a “preponderance of the evidence” now known as the “greater weight of the evidence.”

It is this “greater weight of the evidence” burden of proof that a jury will be instructed upon. The jury will be instructed that it is their determination based on the evidence as to whether the plaintiff (party prosecuting civil claims) satisfied its burden of proof with respect to the elements of its claims against the defendant (party that the plaintiff is suing).

An example of a model jury instruction read to the jury explaining what a “greater weight of the evidence” means is as follows:

“Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.

See Standard Jury Instruction 405.3.

One way this “greater weight of the evidence” burden of proof has been explained is that it is simply the difference between 51% and 49%, with the 51% representing the “more persuasive and convincing force and effect of the entire evidence in the case.”  Another way is to simply think of a scale of justice (see above image) where if the plaintiff’s evidence outweighs (by a marginal amount) the defendant’s evidence, than the plaintiff’s evidence was the “more persuasive and convincing force and effect of the entire evidence in the case.”  

To illustrate, applying this jury instruction to the elements of a breach of contract claim, this means a plaintiff MUST prove be a “greater weight of the evidence” that: (1) there was a contract between the plaintiff and the defendant; (2) the defendant breached that contract; and (3) the defendant’s breach of the contract caused damages to the plaintiff. See Knowles v. C.I.T. Corp., 346 So.2d 1042 (Fla. 1st DCA 1977).

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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