STANDARD JURY INST-CIV. CASES (01-1 & 01-2)

• Decision Date: 06 June 2002
• Docket Number: No. SC01-1205, No. SC01-2854.
• Parties: STANDARD JURY INSTRUCTIONS-CIVIL CASES (NOS. 01-1 & 01-2).
• Court: Florida Supreme Court

825 So.2d 277

STANDARD JURY INSTRUCTIONS-CIVIL CASES (NOS. 01--2).

Nos. SC01-1205, SC01-2854.

Supreme Court of Florida.

June 6, 2002.

Sylvia Walbolt, Chair, Supreme Court Committee on Standard Jury Instructions (Civil), St. Petersburg, FL, for Petitioner.

Howard W. Weber, Tampa, FL, Commenting.

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Civil Cases filed a report asking this Court to amend the Florida Standard Jury Instructions in Civil Cases. The committee subsequently submitted a supplemental report proposing further amendments to the standard jury instructions. This supplemental report was assigned a separate case number. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Civ. P. 1.985. For purposes of efficiency, on our own motion we consolidate these two cases.

The committee published its proposed amendments for comment in The Florida Bar News. A number of comments to the proposals were filed. Upon consideration of the committee's reports and the comments received, we hereby authorize for publication and use the proposed amendments as set forth in the appendix attached to this opinion.

In authorizing publication, we caution all interested persons that the notes and comments reflect only the opinion of the committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. We express no opinion on the correctness of these instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of these instructions. The amendments shall be effective when this opinion becomes final. New language is indicated by underlining and deletions are indicated by struck-through type. We wish to express our appreciation to the committee for its dedication in presenting to the Court its recommendations.

It is so ordered.

WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS, and QUINCE, JJ., concur.

APPENDIX

6.1

PERSONAL INJURY AND PROPERTY DAMAGES:

INTRODUCTION

a. When directed verdict is given on liability (3.1d):

You should award (claimant) an amount of money that the greater weight of the evidence shows will fairly and adequately compensate [him][her] for such [loss] [injury] [or] [damage], including any such damage as (claimant) is reasonably certain to [incur] [experience] in the future. You shall consider the following elements:

Enumerate appropriate elements (6.2).

b. When there is no issue of comparative negligence:

If you find for defendant[s] you will not consider the matter of damages. But, if you find for (claimant) you should award (claimant) an amount of money that the greater weight of the evidence shows will fairly and adequately compensate [him][her] for such [loss] [injury] [or] [damage], including any such damage as (claimant) is reasonably certain to [incur] [experience] in the future. You shall consider the following elements:

Enumerate appropriate elements (6.2)

(1) When a Fabre issue is not involved

*[In entering a judgment for damages based on your verdict against [either] [any] defendant, the court will take into account the percentage of that defendant's [negligence] [responsibility] as compared to the total [negligence] [responsibility] of all parties to this action.]

*Use the bracketed additional charge only when there are two or more defendants; the reference to "responsibility" in this additional charge is designed for use in strict liability cases.

(2) When a Fabre issue is involved

In determining the total amount of damages, you should not make any reduction because of the [negligence] [fault] [responsibility], if any, of (identify defendant and any additional person or entity who will be on verdict form). The court in entering judgment will take into account your allocation of [negligence] [fault] [responsibility] among all persons [or entities] who you find contributed to (claimant's) damages.

NOTE ON USE FOR 6.1b

Where the jury is instructed to apportion fault and a "Fabre" issue is involved, see Fabre v. Marin, 623 So.2d 1182 (Fla. 1993)

and Nash v. Wells Fargo Services, 678 So.2d 1262 (Fla.1996), 6.1b(2) may be used to alert the jury to the appropriate procedure, so the jury does not make inappropriate adjustments to its verdict. There is support for giving a special instruction explaining to the jury the impact and effect of a section 768.81 apportionment of liability in such cases. See Seminole Gulf Railway, Ltd. Partnership v. Fassnacht, 635 So.2d 142, 144 (Fla. 2d DCA 1994) (Altenbernd, J., concurring in part and dissenting in part) and Slawson v. Fast Food Enterprises, 671 So.2d 255, 260 (Fla. 4th DCA),

rev. dismissed, 679 So.2d 773 (Fla.1996). Pending further development in the law, the Committee takes no position on this issue.

c. When there is an issue of comparative negligence:

If your verdict is for (defendant(s), you will not consider the matter of damages. But if you find for (claimant), you should determine and write on the verdict form, in dollars, the total amount of [loss] [injury] [or] [damage] which the greater weight of the evidence shows [he][she] sustained as a result of the incident complained of, including any such damage as (claimant) is reasonably certain to [incur] [experience] in the future. You shall consider the following elements.

Enumerate appropriate elements (6.2) Give 6.9 (mortality tables), 6.10 (reduction to present value) and 6.13 (collateral source), if applicable.

(1) When a Fabre issue is not involved

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 is chargeable to (claimant).

*[The court will also take into account, in entering judgment against any defendant whom you find to have been [negligent] [responsible], the percentage of that defendant's [negligence] [responsibility] compared to the total [negligence] [responsibility] 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 charge is designed for use in strict liability cases.

(2) When a Fabre issue is involved

In determining the total amount of damages, you should not make any reduction because of the [negligence], if any, of (claimant) or because of the [negligence] [fault] [responsibility] of (identify defendant and additional person or entity who will be on verdict form). The court in entering judgment will take into account your allocation of [negligence] [fault] [responsibility] among all persons [or entities] who you find contributed to (claimant's) damages.

NOTE ON USE FOR 6.1c

Where the jury is instructed to apportion fault and a "Fabre" issue is involved, see Fabre v. Marin, 623 So.2d 1182 (Fla. 1993)

and Nash v. Wells Fargo Services, 678 So.2d 1262 (Fla.1996), 6.1c(2) may be used to alert the jury to the appropriate procedure, so the jury does not make inappropriate adjustments to its verdict. There is support for giving a special instruction explaining to the jury the impact and effect of a section 768.81 apportionment of liability in such cases. See Seminole Gulf Railway, Ltd. Partnership v. Fassnacht, 635 So.2d 142, 144 (Fla. 2d DCA 1994) (Altenbernd, J., concurring in part and dissenting in part) and Slawson v. Fast Food Enterprises, 671 So.2d 255, 260 (Fla. 4th DCA),

rev. dismissed, 679 So.2d 773 (Fla.1996). Pending further development in the law, the Committee takes no position on this issue.

d. Motor vehicle no fault threshold instruction:

If you find for the (defendant)(s), you will not consider the matter of damages. However, if you find for (claimant), you shall next determine the issue of permanency, that is, whether (claimant) sustained an [injury] [or] [disease] as a result of the incident complained of which consists in whole or in part of:

[(1) significant and permanent loss of an important bodily function;] [or]

[(2) significant and permanent scarring or disfigurement;] [or]

[(3) a permanent injury within a reasonable degree of medical probability, other than scarring and disfigurement].

If the greater weight of the evidence does not support the claim of (claimant) on the issue of permanency, you should [award to claimant an amount of money which the greater weight of the evidence shows will fairly and adequately compensate (claimant) for damages caused by the incident in question] [see Note on use 3]. You shall consider the following elements of damage:

Note: here enumerate those damages recoverable in the absence of a finding of permanency.

[and which have not been paid and are not payable by personal injury protection benefits].

However, if the greater weight of the evidence does support the claim of (claimant) on the issue of permanency, then you should also consider the following elements:

Note: enumerate those damages in S.J.I. 6.2 as applicable. If there is an issue of comparative negligence, refer to 6.1(c) for additional language and instructions.

NOTES ON USE

1. Use the appropriate bracketed numbered provision applicable to the evidence adduced in the case.

2. Use of the threshold instruction will in most cases require the use of an interrogatory verdict form.

3. If there is proof that a claimant will incur future damages that are not excluded from recovery by section 627.737, Florida Statutes (1991), such as where claimant at trial is not at maximum medical improvement and will have a limited period of future lost income or medical expenses, it will be necessary to add the following language after the word "question": "including any such damage as (claimant) is reasonably certain to ...