In re Standard Jury Insts. in Civil Cases—Report No. 09–10 (Prods. Liab.)

Decision Date17 May 2012
Docket NumberNo. SC09–1264.,SC09–1264.
Citation91 So.3d 785
CourtFlorida Supreme Court


Original Proceedings—Supreme Court Committee on Jury Instruction (Civil).

Tracy Raffles Gunn, Chair, Supreme Court Committee on Jury Instructions (Civil), Gunn Appellate Practice, Tampa, FL, Gary M. Farmer of Farmer, Jaffe, Weissing, et al., Fort Lauderdale, FL, Joseph Hagedorn Lang, Jr. of Carlton Fields, P.A., Tampa, FL, and Judge James Manly Barton, II, Thirteenth Judicial Circuit, Tampa, FL, for Petitioner.

Larry M. Roth of Law Office of Larry M. Roth, P.A., Orlando, FL; William L. Kirk, Jr. and Myron Shapiro of Rumberger, Kirk & Caldwell, Orlando, FL; Wendy F. Lumish of Carlton Fields, P.A., Miami, FL and Richard J. Caldwell, Jr. of Rumberger, Kirk & Caldwell, Tampa, FL; Roy D. Wasson of Wasson & Associates, Chartered, Miami, FL, Dock A. Blanchard of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, FL, Julie H. Littky–Rubin of Lytal Reiter Clark Fountain & Williams, LLP, West Palm Beach, FL, Charles B. Patrick of Charles B. Patrick, P.A., Miami, FL, Joel S. Perwin of Joel S. Perwin, P.A., Miami, FL, and Edward S. Schwartz of Gerson & Schwartz, P.A., Miami, FL, on behalf of Florida Justice Association; Daniel B. Rogers, Edward A. Moss, Thomas Sherhouse, Alfred J. Saikali, and Mihai M. Vrasmasu of Shook, Hardy & Bacon L.L.P., Miami, FL; M. Gary Toole and David C. Knapp of Smith Toole & Wiggins, P.L., Orlando, FL; Aaron D. Twerski, Brooklyn Law School, Brooklyn, NY; Barbara Bolton Litten, Patricia E. Lowery and Amy Bloom of Squire, Sanders & Dempsey L.L.P., West Palm Beach, FL; Kathleen M. O'Conner of Kathleen M. O'Conner, P.A., Palmetto Bay, FL and Frederick J. Fein of Thornton, Davis & Fein, P.A., Miami, FL; P. Mike Patterson, Alan B. Bookman and Patrick G. Emmanuel of Emmanuel, Sheppard and Condon, Pensacola, FL; John C. Seipp, Jr. of Seipp & Flick LLP, Miami, FL; Joel D. Eaton of Podhurst Orseck, P.A., Miami, FL; Frank H. Gassler, Nava Ben–Avraham and Petra L. Justice of Banker Lopez Gassler, P.A., Tampa, FL; Robert M. Fulton, Benjamin H. Hill, III and Christopher S. Branton of Hill, Ward & Henderson, P.A., Tampa, FL; Mercer K. Clarke of Clarke Silverglate & Campbell, P.A., Miami, FL; Fredrick H.L. McClure, Lewis J. Conwell and Angela J. Crawford of DLA Piper LLP(US), Tampa, FL; Robert J. Rudock and Loren W. Fender of Arnstein & Lehr LLP, Miami, FL, Responding with comments.


The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Committee) has submitted extensive proposed changes to the standard civil jury instructions previously authorized by the Court. We now address the amendments directed for use in products liability cases, which the Committee asks the Court to authorize. We have jurisdiction. Seeart. V, § 2(a), Fla. Const.


On July 16, 2009, the Committee filed a report proposing both new and revised products liability standard jury instructions.1 At that time, pending before the Court was the Committee's proposed general reorganization of the standard civil jury instructions (Case No. SC09–284), which included reorganizing the instructions by separate areas of civil law and renumbering the instructions to reflect that reorganization, as well as modifications intended to improve juror understanding. In large part, the Court authorized, with minor modifications, the Committee's proposals for publication and use. See In re Standard Jury Instructions in Civil Cases—Report No. 09–01 (Reorganization of the Civil Jury Instructions), 35 So.3d 666 (Fla.2010).

Prior to filing its report in this case, on December 15, 2008, the Committee published the proposed changes directed to the products liability instructions for public comment in The Florida Bar News. Five comments were received, each addressing a number of the proposals. The Court also sought public comment on specific issues pertaining to particular proposals, which appeared in the January 1, 2010, edition of The Florida Bar News. Following receipt of numerous comments, the Court heard oral argument on May 5, 2010.


In lieu of the products liability standard instructions previously authorized under the former standard civil jury instruction structure, see In re Standard Jury Instructions (Civil Cases), 435 So.2d 782 (Fla.1983), and upon consideration of the proposals, comments, and oral arguments presented in this case, we hereby take the following action. First, we provide preliminary approval for publication in the future of the proposals with regard to standard instructions 403.1—Introduction (new); instruction 403.2—Summary of Claims (new); instruction 403.4—Express Warranty; instruction 403.5—Implied Warranty of Merchantability; instruction 403.6—Implied Warranty of Fitness for Particular Purpose; instruction 403.8—Strict Liability Failure to Warn (new); instruction 403.10—Negligent Failure to Warn (new); instruction 403.12—Legal Cause; instruction 403.14—Burden of Proof on Preliminary Issue; instruction 403.15—Issues on Main Claim; instruction 403.17—Burden of Proof on Main Claim; and instruction 403.19—Burden of Proof on Defense Issues.

Second, the following jury instructions are preliminarily approved for publication in the future as modified: instruction 403.9—Negligence; and instruction 403.18—Defense Issues (new).

Last, the Court rejects the following proposals: instruction 403.3—Greater Weight of the Evidence; instruction 403.7—Strict Liability; instruction 403.11—Inference of Product Defect or Negligence (new); instruction 403.13—Preliminary Issue (new); instruction 403.16—Issues on Crashworthiness and “Enhanced Injury” Claim (new); and Model Instruction 7 and Special Verdict Form.2 Instead, the Court preliminarily approves for publication in the future instruction 403.3, consistent with previously authorized “Greater Weight of the Evidence” standard civil jury instructions.3 We refer back to the Committee its proposals with regard to instructions 403.7, 403.11, 403.13, 403.14, 403.16, Model Instruction No. 7 and the Special Verdict Form, and the Committee Notes to each of the products liability standard instructions. We direct the Committee to make revisions consistent with the instructions preliminarily approved by the Court for publication in the future and as set forth in the appendix to this opinion, as well as the Court's decisions in In re Standard Jury Instructions in Civil Cases—Report No. 09–01 (Reorganization of the Civil Jury Instructions), 35 So.3d 666 (Fla.2010) and In re Standard Jury Instructions in Criminal CasesReport No. 201001 & Standard Jury Instructions in Civil CasesReport No. 2010–01, 52 So.3d 595 (Fla.2010). We also direct the Committee to conform all instructions, comments, model forms of instructions, verdict forms, and any related material to the actions of the Court in this and prior opinions. All of the foregoing must be completed before publication and use. Accordingly, until further order of the Court, we withhold authorization of the approved instructions.4 The approvals are only preliminary because this group of instructions must be viewed as a full package before authorization can be provided.


In providing preliminary approval for the standard civil jury instructions for publication in the future, as set forth in the appendix, we express no opinion on their correctness. 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. New language is indicated by underscoring and deletions are indicated by struck-through type. The instructions as set forth in the appendix shall be effective when the entire package of products liability material is completed and the instructions are authorized by the Court. We caution that further work is required before publication and use of these preliminary products liability instructions, model forms, verdict forms, and any other material relating to the foregoing.

It is so ordered.


PARIENTE, J., concurs with an opinion.

CANADY, C.J., concurs in part and dissents in part with an opinion, in which POLSTON, J., concurs.

QUINCE, concurs in part and dissents in part with an opinion.

PARIENTE, J., concurring.

A dedicated group of individuals has worked very hard in reorganizing the Standard Civil Jury Instructions for Products Liability, and I thank those Committee members. I concur with our decision to grant preliminary approval for the adoption of the majority of the proposed instructions. I further agree that in light of the legislative changes regarding crashworthiness, Instruction 403.16 must be rejected in its present form.

I write to explain my reasons for agreeing with the majority's rejection of proposed Instruction 403.7, Strict Liability. As to Instruction 403.7, the Committee had proposed merging the definitions of manufacturing defect and design defect. I believe that the definitions of manufacturing defect and design defect should be kept separate in order to avoid confusion.

The definition of a manufacturing defect currently contained in existing Instruction PL4 states: “A product is unreasonably dangerous because of a manufacturing defect if it was not built according to its intended design and fails to perform as safely as an ordinary consumer would expect.” This clarifies that the risk/benefit test is not a definition of an unintended manufacturing defect. Further, in the Committee's proposed notes on use, paragraph 1, the Committee specifically explains that the “risk/benefit test does not apply in cases involving claims of manufacturing defect,” citing to Cassisi v. Maytag, 396 So.2d 1140, 1146 (Fla. 1st DCA 1981). That is a correct statement of the law.

With regard to design defect, the current...

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