In re Amendments to Okla. Unif. Jury Instructions-Civil

• Decision Date: 19 September 2022
• Docket Number: 2022 OK 75
• Citation: 2022 OK 75
• Parties: IN RE AMENDMENTS TO OKLAHOMA UNIFORM JURY INSTRUCTIONS-CIVIL
• Court: Oklahoma Supreme Court

2022 OK 75

IN RE AMENDMENTS TO OKLAHOMA UNIFORM JURY INSTRUCTIONS-CIVIL

No. 2022 OK 75

Supreme Court of Oklahoma

September 19, 2022

ORDER ADOPTING AMENDMENTS TO OKLAHOMA UNIFORM JURY INSTRUCTIONS-CIVIL

¶1 The Court has reviewed the report and recommendations of the Oklahoma Supreme Court Committee for Uniform Jury Instructions for Civil Cases to adopt proposed amendments to existing jury instructions and to add new jury instructions codified as Instruction Nos. 1.10A, 1.14, 10.17, 11.9, 11.9A and 31.5. The Court accepts the report and finds the revisions should be adopted as modified by the Court.

¶2 It is therefore ordered, adjudged and decreed that the revisions to the instructions shall be available for access via the internet from the Court website at www.oscn.net and provided to West Publishing Company for publication. The Administrative Office of the Courts is requested to duplicate and provide copies of the revisions to the judges of the District Courts. Further, the District Courts of the State of Oklahoma are directed to implement these revisions effective thirty (30) days from the date of this Order.

¶3 It is therefore ordered, adjudged and decreed that the amendments to existing Oklahoma Uniform Jury Instructions-Civil (OUJI-CIV) Nos. 3.11A, 4.2, 4.3, 6.11 6.16, 18.8, 18.9, 24.2, 24.3, 25.2, and 25.3, and the new proposed instructions, OUJI-CIV Nos. 1.10A, 1.14, 10.17 11.9, 11.9A, and 31.5, their statutory authority, Committee Comments, and Notes on Use, as set out and attached to this Order, are hereby adopted. The Court authorizes the attached OUJI-CIV instructions, the updated Committee Comments, and Notes on Use, as modified by the Court, to be published.

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

¶5 These amended instructions shall be effective thirty (30) days from the date this Order is filed with the Clerk of this Court.

ALL JUSTICES CONCUR.

Instruction No. 1.10A

Support Animal

The Court has allowed a support animal to be present in the courtroom. You must not allow the presence of a support animal to influence your decision in any way, and you should decide the case based solely on the evidence presented.

Instruction No. 1.14

Deadlocked Jury Charge

This case has taken approximately [ Specify Number ] hours of trial time. You have deliberated for approximately [ Specify Number ] hours. You report to me that you are experiencing difficulty in arriving at a verdict.

This is an important case and a serious matter to all concerned. You are the exclusive judges of the facts; the court is the judge of the law. You are now to return to your jury room and resume your deliberations. At least nine jurors must agree to reach a verdict. Further open and frank discussion of the evidence and law submitted to you in this case may aid you in arriving at a verdict.

The giving of this instruction at this time in no way means that it is more important than any other instruction. On the contrary, you should consider this instruction together with, and as part of, the instructions which I previously gave you.

In stating the foregoing, I again repeat: you are the judges of the facts; the court is the judge of the law. In making all statements made to you I have not, nor do I now, express or intimate, nor indicate in any way, the conclusions to be reached by you in this case, nor do I intend in any way or manner to coerce a verdict, nor directly or indirectly to force a verdict in this case. I only ask that you return to your jury room and, again, diligently and earnestly under your oaths resume your deliberations.

Committee Comments

This "Allen" charge is generally based on OUJI-CR 10-11.

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 America Honda Motor Co., Inc. 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); Akins v. Ben Milam Heat, Air & Electric, 2019 OK CIV APP 52, ¶ 63 451 P.3d 168, 181 ("negligent... conduct does not warrant an adverse inference jury instruction"). 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, 134 Okla. 259 ("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. 2021, § 3237(G); America Honda Motor Co., Inc. v. Thygesen, 2018 OK 14, ¶ 2, 416 P.3d 1059, 1060.

Instruction No. 4.2

PERSONAL INJURIES --- MINOR CHILD ---

If you decide for [ Plaintiff ], you must then fix the amount of damages. This is the amount of money that will reasonably and fairly compensate [ him/her ] for the injuries sustained as a result of the [ negligence/(wrongful conduct) ] of [ Defendant ].

In fixing the amount you will award [ Plaintiff ], you may consider the following:

A. [ His/Her ] physical pain and suffering, past and future;

B. [ His/Her ] mental pain and suffering, past and future;

C. [ His/Her ] age;

D. [ His/Her ] physical condition immediately before and after the accident;

E. The nature and extent of [ his/her ] injuries;

F. Whether the injuries are permanent;

G. The physical impairment;

H. The disfigurement;

I. Impairment of earning capacity after [[Plaintiff] reaches the age of eighteen years]/[graduates from high school if [Plaintiff] is enrolled in and regularly attending high school and is less than twenty years old];

J. The reasonable expenses of the necessary medical care, treatment, and services, past and future required after [ [Plaintiff] reaches the age of eighteen years]/[graduates from high school if [Plaintiff] is enrolled in and regularly attending high school and is less than twenty years old].

Notes on Use

Any of the items of damage included above which are not supported by the evidence should be omitted. Include any item allowed by law which is supported by the evidence and which is not listed above. If the parents have joined with the minor plaintiff to recover their damages, Instruction 4.3 should also be given with this instruction. "Wrongful conduct" should be replaced by an appropriate term such as "intentional misconduct."

Comments

Atchison, T. & S.F.R.R. v. Coulson, 1962 OK 8, ¶¶ 34-35, 371 P.2d 914, 919 (loss of earning capacity); Hembree v. Southard, 1959 OK 91, ¶¶ 29-34, 339 P.2d 771, 777-78. Cf. Lone Star Gas Co. v. Parsons, 1932 OK 497, ¶ 26, 14 P.2d 369, 376, 159 Okla. 52, 59 (no evidence of impairment of earning capacity). See generally 23 O.S. 2021, § 61; 15 O.S. 2021, § 27.

A child is entitled to support by his or her parents until the child reaches the age of eighteen years, or graduates from high school. 43 O.S. 2021, § 112(E).

Instruction No. 4.3

PERSONAL INJURIES --- MINOR CHILD ---MEASURE OF PARENT'S OR GUARDIAN'S DAMAGES

If you decide for [ name of plaintiff's parent or guardian ] you must then fix the amount of damages. This is the amount of money that will reasonably and fairly compensate [ him/her ] for the injuries sustained as a result of the [ negligence/(wrongful conduct) ] of [ Defendant ].

In fixing the amount you will award [ name of plaintiff's parent or guardian ], you may consider the following:

A. The reasonable expenses of the necessary medical care treatment and services [ he/she ] has incurred in behalf of [ name of minor child ] or will incur in the future from now until [ name of minor child ] [reaches the age of eighteen years]/[graduates from high school if the child is enrolled in and regularly attending high school and is less than twenty years old];

B. Any loss of past earnings of [ name of minor child ];

C. Any future loss of earnings or impairment of earning capacity of [ name of minor child ] from now until [ he/she ] [ reaches the age of eighteen years]/[graduates from high school if the

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