In re Standard Jury Instructions in Civil Cases—Report No. 19-03

• Citation: 290 So.3d 840 (Mem)
• Decision Date: 27 February 2020
• Docket Number: No. SC19-1246,SC19-1246
• Parties: IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES—REPORT NO. 19-03.
• Court: United States State Supreme Court of Florida

290 So.3d 840 (Mem)

IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES—REPORT NO. 19-03.

No. SC19-1246

Supreme Court of Florida.

February 27, 2020

Laura K. Whitmore, Chair, Tampa, Florida, and Jeffrey Alan Cohen, Vice Chair and Subcommittee Chair, Supreme Court Committee on Standard Jury Instructions in Civil Cases, Miami, Florida; Joshua E. Doyle, Executive Director, and Krys Godwin, Bar Liaison, The Florida Bar, Tallahassee, Florida; and Bryan S. Gowdy of Creed & Gowdy, Jacksonville, Florida, for Petitioner

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Committee) has submitted proposed changes to the standard jury instructions and asks the Court to authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee filed a report on July 24, 2019, proposing amendments to the following existing standard civil jury instructions: 403.7 (Strict Liability); 403.8 (Strict Liability Failure to Warn); 403.15 (Issues on Main Claim); 403.17 (Burden of Proof on Main Claim); 403.18 (Defense Issues); 403.19 (Burden of Proof on Defense Issues); and Model Instruction Number 7. The proposals were published by the Committee in The Florida Bar News . Two comments, from Attorney William Ourand and Attorneys Julie H. Littky-Rubin, Donald R. Fountain, and W. Hampton Keen, were received by the Committee. After the Committee filed its report, the Court published the proposals for comments. No comments were received by the Court.

We authorize the proposed amendments to the instructions herein at issue for publication and use as proposed. We discuss the more significant amendments below.

First, instruction 403.7b is amended to delete "[and]" between the consumer expectations and risk/benefit tests to reflect that a plaintiff may choose to prove a product's defectiveness through the risk/benefit test but is not required to do so pursuant to our decision in Aubin v. Union Carbide Corp. , 177 So. 3d 489 (Fla. 2015). The same amendment is also made to instruction 403.15e. Instruction 403.7b is further amended to add the following language to the definition of design defect to better track the statutory language of section 768.1257, Florida Statutes (2019):

[In deciding whether (the product) was defective because of a design defect, you shall consider the state-of-the-art of scientific and technical knowledge and other circumstances that existed at the time of (the product's) manufacture, not at the time of the [loss] [injury] [or] [damage].

The Notes on Use for instruction 403.7 are amended as follows. Current Note on Use 1 is revised to direct readers to Aubin regarding when the jury should be instructed on the consumer expectations or risk/benefit test. Current Notes on Use 3 and 4 are deleted and the remaining Notes on Use are renumbered. New Note on Use 5 is added to refer the reader to section 768.1257, Florida Statutes, for the state-of-the-art defense.

Next, pertaining to instructions 403.17 and 403.19, the jury instructions on apportionment of fault are revised insofar as they are currently inconsistent with the instructions on legal causation and comparative fault. The current language in the instructions describes the apportionment of comparative fault as requiring the jury to determine what percentage of the "total negligence" of the parties to the action was "caused" by each of them. The Committee determined, and we agree, that the current comparative fault instructions are confusing because it is unclear how a person or entity can "cause" negligence, fault, or responsibility. We recently approved similar changes to instructions 401.21 (Burden of Proof on Main Claim), 401.23 (Burden of Proof on Defense Issues), 402.13 (Burden of Proof on Main Claim), 402.15 (Burden of Proof on Defense Issues), 409.12 (Burden of Proof on Defense Issues), and 412.8 (Issues on Claim and Burden of Proof). See In re Standard Jury Instructions in Civil Cases—Report No. 17-03 , 287 So.3d 401 (Fla. 2018).

As it pertains to instruction 403.18, instruction 403.18b is amended to delete the risk/benefit defense from its Note on Use. Instructions 403.18c (Government Rules Defense) and 403.18d (State-of-the-art Defense) are also deleted. Accordingly, existing instruction 403.18e (Apportionment of Fault) is renumbered as 403.18b. Finally, new instruction 403.18c is added on the learned intermediary defense to failure to warn claims for products supplied through an intermediary. New Note on Use 3 is added to clarify that, for an apportionment of fault, the term "negligence" is appropriate in most cases, but other terms may be appropriate if another type of fault is at issue.

Having considered the Committee's report, we authorize the amended instructions as set forth in the appendix to this opinion for publication and use. New language is indicated by underlining, and deleted language is indicated by struck-through type. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective immediately upon the filing of this opinion.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ., concur.

APPENDIX

CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ., concur.

APPENDIX

403.7 STRICT LIABILITY

a. Manufacturing defect

A product is defective because of a manufacturing defect if it is in a condition unreasonably dangerous to [the user] [a person in the vicinity of the product] and the product is expected to and does reach the user or consumer without substantial change affecting that condition.

A product is unreasonably dangerous because of a manufacturing defect if it is different from its intended design and fails to perform as safely as the intended design would have performed.

b. Design defect

A product is defective because of a design defect if it is in a condition unreasonably dangerous to [the user] [a person in the vicinity of the product] and the product is expected to and does reach the user without substantial change affecting that condition.

A product is unreasonably dangerous because of its design if [the product fails to perform as safely as an ordinary consumer would expect when used as intended or when used in a manner reasonably foreseeable by the manufacturer][and][or] [the risk of danger in the design outweighs the benefits].

[In deciding whether (the product) was defective because of a design defect, you shall consider the state-of-the-art of scientific and technical knowledge and other circumstances that existed at the time of (the product's)manufacture, not at the time of the [loss] [injury] [or] [damage].]

NOTES ON USE FOR 403.7

1.The risk/benefit test does not apply in cases involving claims of manufacturing defect. SeeCassisi v. Maytag Co., 396 So.2d 1140, 1146 (Fla. 1st DCA 1981). Instruction 403.7a retains the definition of manufacturing defect found in former instruction PL 4. The minor changes from the definition found in PL 4 are intended to make this instruction more understandable to jurors withoutchanging its meaning.Consumer expectations test; risk/benefit test. SeeAubin v. Union Carbide Corp., 177 So.3d 489, 512 (Fla. 2015) (Consumer expectations test and risk/benefit test are alternative definitions of design defect);R.J. Reynolds v. Larkin, 225 So.3d 886 (Fla. 3d DCA 2017);Font v. Union Carbide Corp., 199 So.3d 323 (Fla. 3d DCA 2016).

2.Foreseeability of injured bystander. Strict liability applies to all foreseeable bystanders. When the injured person is a bystander, use the language "a person in the vicinity of the product" instead of "the user." Strict liability does not depend on whether the defendant foresaw the particular bystander's presence. SeeWest v. Caterpillar Tractor Co. Inc., 336 So.2d 80, 89 (Fla. 1976) ("Injury to a bystander is often feasible. A restriction of the doctrine to the users and consumers would have to rest on the vestige of the disappearing privity requirement."). See alsoSanchez v. Hussey Seating Co., 698 So.2d 1326 (Fla. 1st DCA 1997). When there is an issue regarding whether the presence of bystanders was foreseeable, additional instructions may be needed.

3.This instruction retains the consumer expectations test and the risk/benefit test for product defect, both of which previously appeared in PL 5. Florida recognizes the consumer expectations test. SeeMcConnell v. Union Carbide Corp., 937 So.2d 148, 151 n.4 (Fla. 4th DCA 2006);Force v. Ford Motor Co., 879 So.2d 103, 107 (Fla. 5th DCA 2004);Adams v. G. D. Searle & Co., 576 So.2d 728, 733 (Fla. 2d DCA 1991);Cassisi v. Maytag Co., 396 So.2d 1140, 1145 46 (Fla. 1st DCA 1981). Other decisions have relied upon the RESTATEMENT (THIRD) OF TORTS:Products Liability to define a product defect. SeeUnion Carbide Corp. v. Aubin, 97 So.3d 886 (Fla. 3d DCA 2012);Agrofollajes, S.A. v. E.I. DuPont de Nemours & Co., 48 So.3d 976 (Fla. 3d DCA 2010). One decision held that in a design defect case, the jury should be instructed only on the risk/benefit test and not the consumer expectations test. SeeAgrofollajes, 48 So. 3d at 997. Pending further development in the law, the committee takes no position on whether the risk/benefit test is a standard for product defect that should be included in instruction 403.7 or an affirmative defense under instruction 403.18. The risk/benefit instruction is provided in both this instruction and the defense instruction, 403.18, to illustrate how it is used in either case. See Instruction 403.18(...