In re Amendments to the Okla. Unif. Jury Instructions

• Decision Date: 13 January 2020
• Citation: 2020 OK 3
• Parties: IN RE: AMENDMENTS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS - CIVIL
• Court: Oklahoma Supreme Court

2020 OK 3

IN RE: AMENDMENTS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS - CIVIL

SUPREME COURT OF THE STATE OF OKLAHOMA

January 13, 2020

ORDER ADOPTING AMENDMENTS AND NEW

OKLAHOMA UNIFORM CIVIL JURY INSTRUCTIONS

¶1 The Court has reviewed the recommendations of the Oklahoma Supreme Court Committee for Uniform Civil Jury Instructions to adopt recommended amendments to existing instructions and proposed new instructions. The Court finds that the amendments and new instructions should be adopted.

¶2 It is therefore ordered, adjudged, and decreed that the attached instructions shall be available for access via internet from the Court website at www.oscn.net. The Administrative Office of the Courts is directed to notify the Judges of the District Courts of the State of Oklahoma regarding our approval of the instructions set forth herein. Further, the District Courts of the State of Oklahoma are charged with the responsibility of implementing these instructions within thirty (30) days of this Order. Notwithstanding, the district courts may implement these instructions immediately for any currently pending actions in which the judge determines the instructions are applicable.

¶3 It is therefore ordered that the proposed amendments to OUJI-CIV Nos. 6.4, 6.7--6.9, 6.11--6.12, 6.14, 7.5--7.6, 9.51, 11.10, 11.12, 20.1, 24.1--24.3, and 25.2, as set out and attached to this Order, are hereby approved. Additionally, it is ordered that the newly created instructions set out in OUJI-CIV Nos. 1.12A, 1.13A, 3.11A, 20.1A, 24.4--24.5, and 33.1--33.3, as set out and attached to this Order, are hereby adopted.

¶4 The Court declines to relinquish its constitutional and statutory authority to review the legal correctness of the above-referenced instructions or when it is called upon to afford corrective relief in any adjudicative context.

¶5 The amended OUJI-CIV instructions shall be effective thirty (30) days following entry of this Order.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THE 13th DAY OF January, 2020

/S/CHIEF JUSTICE

¶6 Gurich, C.J., Darby, V.C.J., Kauger, Edmondson, Colbert, Combs, Kane, Rowe, JJ., concur;

¶7 Winchester, J., not voting.

Instruction No. 1.12A

Instruction No. 1.12A

Directions for Verdict Form for One Plaintiff, One Defendant

If you find in favor of Plaintiff, [name], on the [specify] claim, then mark the [specify] Verdict Form for Plaintiff, [name], and against Defendant, [name]. If you so find, then determine the amount of damages that Plaintiff, [name], is entitled to recover and enter that amount on the [specify] Verdict Form.

If you find in favor of Defendant, [name], on the [specify] claim, then mark the [specify] Verdict Form for Defendant, [name], and against Plaintiff, [name].

Notes on Use

This Instruction should be given along with the Verdict Form in Instruction 1.12.

Instruction No. 1.13A

Instruction No. 1.13A

Directions for Verdict Form for Counterclaim

If you find in favor of Defendant, [name], on the [specify] counterclaim, then mark the Verdict Form for the [Specify] Counterclaim for Defendant, [name], and against Plaintiff, [name]. If you so find, then determine the amount of damages that Defendant, [name], is entitled to recover and enter that amount on the Verdict Form for the [Specify] Counterclaim.

If you find in favor of Plaintiff, [name], on the [specify] counterclaim, then mark the Verdict Form for the [Specify] Counterclaim for Plaintiff, [name], and against Defendant, [name].

Notes on Use

This Instruction should be given along with the Verdict Form in Instruction 1.13.

Instruction No. 3.11A

Inference from Spoliation of Evidence

[Name of Party] had a duty to preserve [Specify Evidence] in this case and [Name of Party] [destroyed/hid/failed to preserve] the evidence. You may therefore conclude that the evidence would have been unfavorable to [Name of Party].

Notes on Use

This Instruction may be used if the court has imposed a sanction for spoliation of evidence. In order to give this Instruction, the trial court must first find that there was a duty to preserve the evidence in issue and that a party negligently or willfully destroyed, withheld, or failed to preserve the evidence. See Am. Honda Motor Co. v. Thygesen, 2018 OK 14, ¶¶ 3--4, 416 P.3d 1059, 1060 (sanctions for spoliation were not authorized where there was no duty to preserve the evidence); Barnett v. Simmons, 2008 OK 100, ¶ 27, 197 P.3d 12, 21 (trial court must determine whether party violated a duty to preserve evidence before imposing sanctions). This Instruction should be modified appropriately if the evidence was materially altered, instead of destroyed or withheld.

Committee Comments

Spoliation of evidence may result in the imposition of sanctions as well as an adverse inference at trial. See Barnett v. Simmons, 2008 OK 100, ¶ 19, 197 P.3d 12, 19 ("This Court has also held that severe sanctions may be imposed for reasonably foreseeable destruction of evidence, even when there is no discovery order in place."); Harrill v. Penn, 1927 OK 492, ¶ 8, 273 P. 235, 237 ("The willful destruction, suppression, alteration or fabrication of documentary evidence properly gives rise to the presumption that the documents, if produced, would be injurious to the one who has thus hindered the investigation of the facts."). An adverse inference instruction may appropriately be given because a reasonable inference may be drawn from spoliation of evidence that the evidence was unfavorable to the person who caused the spoliation, if the spoliation was willful. Alternatively, an adverse inference instruction may be imposed as a sanction. Except in extraordinary circumstances, sanctions may not be imposed for the loss of electronically stored information on account of the routine, good-faith operation of an electronic information system. 12 O.S. Supp. 2017 § 3237(G); Am. Honda Motor Co. v. Thygesen, 2018 OK 14, ¶ 2, 416 P.3d 1059, 1060.

Instruction No. 6.4

Instruction No. 6.4

Employer and Employee --- Defined

An employee is a person who, by agreement with another called the employer, acts for the employer and is subject to [his/her/its] control. The agreement may be oral or written or implied from the conduct of the parties.

Comments

See Mistletoe Express Serv. v. Britt, 405 P.2d 4, 7 (Okla. 1965) (distinguishing an employee from an independent contractor). Bouziden v. Alfalfa Elec. Coop., Inc., 2000 OK 50, ¶ 29, 16 P.3d 450, 459 ("The decisive test for determining whether one is an employee or an independent contractor is the right to control which the employer is entitled to exercise over the physical details of the work."); Keith v. Mid-Cont. Petroleum Co., 1954 OK 196, ¶ 15, 272 P.2d 371, 377 ("[T]he decisive test for determining whether one party is a servant or an independent contractor is to ascertain whether the employer has the right to control or purports and attempts to control, the mode and manner of doing the work.").

Instruction No. 6.7

Instruction No. 6.7

Scope of [Agency/Employment]

An [agent/employee] is acting within the scope of [his/her] [agency/employment] if [he/she] is engaged in the work which has been assigned to [him/her] by [his/her] [principal/employer], or is doing that which is proper, usual and necessary to accomplish the work assigned to [him/her] by [his/her] [principal/employer], or is doing that which is customary within the particular trade or business in which the [agent/employee] is engaged. [An [agent/employee] is acting within the scope of [agency/employment] if the [agent/employee] acted with a view to further the [principal's/employer's] business, or from some impulse or emotion which naturally grew out of or was related to an attempt to perform the [principal's/employer's] business, regardless of whether the [agent/employee] acted mistakenly or unwisely.]

Notes on Use

This instruction is to be used in cases in which the plaintiff is seeking to hold the defendant liable as an employer under the doctrine of respondeat superior. The last sentence should be included if there is evidence that the employee acted mistakenly or ill advisedly and was otherwise attempting to perform the employer's business. If there is evidence that the employee deviated from the employer's business for the employee's own purposes, the trial court should give Instruction No. 6.12 in addition to this instruction.

Comments

The Oklahoma Supreme Court summarized the theory of respondeat superior in Nail v. City of Henryetta, 1996 OK 12, ¶ 11, 911 P.2d 914, 917, as follows: "Under the theory of respondeat superior, one acts within the scope of employment if engaged in work assigned, or if doing that which is proper, necessary and usual to accomplish the work assigned, or doing that which is customary within the particular trade or business."Roring v. Hoggard, 1958 OK 130, ¶ 0 (Syllabus by the Court), 326 P.2d 812, 815 (Okla. 1958); Brayton v. Carter, 1945 OK 289, ¶ 5, 196 Okla. 125, 127, 163 P.2d 960, 962, 196 Okla. 125, 127 (1945); and Retail Merchs. Ass'n v. Peterman, 1940 OK 49, ¶ 8, 186 Okla. 560, 561, 99 P.2d 130, 131, 186 Okla. 560, 561 (1940) .An employee's actions may be within the scope of employment if they are "'fairly and naturally incident to the business', and [are] done 'while the servant was engaged upon the master's business and [are] done, although mistakenly or ill advisedly, with a view to further the master's interest, or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the master's business.'"Rodebush v. Okla. Nursing Homes, Ltd., 1993 OK 160, ¶ 12, 867 P.2d 1241, 1245 (quoting Russell--Locke Super-Service Inc. v. Vaughn, 1935 OK 90, ¶ 18, 40 P.2d 1090, 1094).

Instruction No. 6.8

Instruction No. 6.8

Scope of Authority --- Defined

An agent is acting within the scope of [his/her] authority if [he/she] the agent is engaged in the transaction of business that has been assigned to [him/her] by [his/her] the principal, or if [he/she] the agent is doing anything that may reasonably be...