STANDARD JURY INST.-CIVIL CASES (NO. 02-1)

• Decision Date: 12 September 2002
• Docket Number: No. SC02-1026.,SC02-1026.
• Citation: 828 So.2d 377
• Parties: STANDARD JURY INSTRUCTIONS— CIVIL CASES (NO. 02-1).
• Court: Florida Supreme Court

828 So.2d 377

STANDARD JURY INSTRUCTIONS— CIVIL CASES (NO. 02-1).

No. SC02-1026.

Supreme Court of Florida.

September 12, 2002.

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

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Civil Cases has submitted a report proposing several amendments to the civil jury instructions as published under this Court's authority by The Florida Bar. See Fla. R. Civ. P. 1.985. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The proposed amendments were published for comment in The Florida Bar News, and comments were received and considered by the committee prior to the submission of the committee's report to this Court. The amendments proposed by the Committee are: (1) a new instruction MI 8.1 on negligent supply of false information under section 552 of the Restatement (Second) of Torts (1977), with minor modifications to instruction MI 8 on fraudulent and negligent misrepresentation; and (2) an amended instruction 3.3a on vicarious liability in the context of Florida's dangerous instrumentality doctrine. Upon consideration of the committee's report and the comments received, we hereby authorize for publication and use the proposed amendments as set forth in the appendix attached to this opinion. New language is indicated by underlining and deletions are indicated by struck-through type.

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. We wish to express our appreciation to the committee for its dedication in presenting its recommendations to the Court.

It is so ordered.

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

APPENDIX

MI 8

FRAUDULENT MISREPRESENTATION

NEGLIGENT MISREPRESENTATION

(Issues and Elements)

a. Fraudulent misrepresentation—issues:

On (claimant's) claim for fraudulent misrepresentation, the issues for your determination are:

First, whether (defendant) [intentionally]* made a false statement concerning a material fact;

Second, whether (defendant) knew the statement was false when [he][she][it] made it or made the statement knowing [he][she][it] was without knowledge of its truth or falsity;

Third, whether in making the false statement, (defendant) intended that another would rely on the false statement Fourth, whether (claimant) relied on the false statement; and

Fifth, whether (claimant) suffered [loss] [injury] [or] [damage] as a result.

* The word "intentionally" should be used for clarity when there is also a claim for negligent misrepresentation.

[On this claim for fraudulent misrepresentation, the]** [The] (claimant) may rely on a false statement, even though its falsity could have been discovered if (claimant) had made an investigation. However, (claimant) may not rely on a false statement if [he][she][it] knew it was false or its falsity was obvious to [him][her][it].

** The bracketed language should be used for clarity when there is also a claim for negligent misrepresentation.

b. Negligent misrepresentation—issues:

On (claimant's) claim for negligent misrepresentation, the issues for your determination are:

First, whether (defendant) made a statement concerning a material fact that [he][she][it] believed to be true but which was in fact false;

Second, whether, (defendant) was negligent in making the statement because [he][she][it] should have known the statement was false;

Third, whether in making the statement, (defendant) intended [or expected] that another would rely on the statement;

Fourth, whether (claimant) justifiably relied on the false statement; and

Fifth, whether (claimant) suffered [loss] [injury] [or] [damage] as a result.

c. Material fact:

A material fact is one that is of such importance that (claimant) would not have [entered into the transaction] [acted], but for the false statement.

d. Burden of proof on claim:

If the greater weight of the evidence does not support the claim of (claimant), your verdict should be for (defendant). However, if the greater weight of the evidence does support the claim of (claimant), [then your verdict should be for (claimant) and against (defendant) ] [then you shall consider the defense raised by (defendant) ] (instruct on any pertinent defense).

e. Comparative negligence defense; burden of proof on defense:

1. Comparative negligence defense

On the [first] defense to the claim of negligent misrepresentation, the issues for your determination are whether, under the circumstances, (claimant) was negligent in relying on (defendant's) statement; and, if so, whether such negligence was a contributing legal cause of any [loss] [injury] [or] [damage] sustained by (claimant).

2. Burden of proof on defense

If the greater weight of the evidence does not support this defense and the greater weight of the evidence does support the claim of (claimant), then your verdict should be for (claimant) in the total amount of [his][her][its] damages. However, if the greater weight of the evidence shows that both (claimant) and [(defendant)] [one or more of the defendants] were negligent and that the negligence of each contributed as a legal cause of [loss] [injury] [or] [damage] sustained by (claimant), you should determine what percentage of the total negligence of [both] [all] parties to this action is chargeable to each.

f. "Greater weight of the evidence" defined:

"Greater weight of the evidence" means the more persuasive and convincing force and effect of the entire evidence in the case.

g. Negligence

Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances or in failing to do something that a reasonably careful person would do under like circumstances.

h. Causation:

* For instruction on causation refer to Instruction 5.1.

i. Damages:

If you find for (defendant), 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 (claimant) for (describe appropriate elements of those damages incurred by claimant as a result of the misrepresentation).

Note on Use

In fraud cases where punitive damages are at issue, First Interstate Development Corp. v. Ablanedo, 511 So.2d 536 (Fla. 1987), see PD Punitive Damages.

Comments

1. It appears that Florida recognizes two separate theories of recovery for damage occurring as a result of misrepresentation. One basis of recovery is for fraud and the other is for negligent misrepresentation. The elements of those two theories are set forth in First Interstate Development Corp. v. Ablanedo, 511 So.2d 536 (Fla.1987); Johnson v. Davis, 480 So.2d 625 (Fla.1985); Lance v. Wade, 457 So.2d 1008 (Fla.1984); Atlantic National Bank v. Vest, 480 So.2d 1328 (Fla. 2d DCA 1985), review denied. 491 So.2d 281 (Fla. 1986); Wallerstein v. Hospital Corp. of America, 573 So.2d 9 (Fla. 4th DCA 1990).

2. The recipient of a fraudulent misrepresentation is justified in relying upon its truth, even where an investigation might have revealed its falsity, unless he or she knows the representation to be false or its falsity is obvious to him or her. Besett v. Basnett, 389 So.2d 995 (Fla.1980).

3. There must be actual damage for recovery in a fraud action. Fraud that does not result in damage is not actionable. Casey v. Welch, 50 So.2d 124 (Fla.1951); Stokes v. Victory Land Co., 99 Fla. 795, 128 So. 408 (1930); Pryor v. Oak Ridge Development Corp., 97 Fla. 1085, 119 So. 326 (1928); Wheeler v. Baars, 33 Fla. 696, 15 So. 584 (1894); National Aircraft Services, Inc. v. Aeroserv International, Inc., 544 So.2d 1063 (Fla. 3d DCA 1989); National Equipment Rental, Ltd. v. Little Italy Restaurant & Delicatessen, Inc., 362 So.2d 338 (Fla. 4th DCA 1978).

The damage attributable to the fraud must be separate from the damages flowing from a breach of contract. AFM Corp. v. Southern Bell Telephone & Telegraph Co., 515 So.2d 180 (Fla.1987); John Brown Automation, Inc. v. Nobles, 537 So.2d 614 (Fla. 2d DCA 1988); Rolls v. Bliss & Nyitray, Inc., 408 So.2d 229 (Fla. 3d DCA 1981),dismissed, 415 So.2d 1359 (Fla. 1982); National Aircraft Services, Inc. v. Aeroserv International, Inc., 544 So.2d 1063 (Fla. 3d DCA 1989).

4. In Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334 (Fla.1997), the Supreme Court held that the doctrine of comparative negligence, as codified in § 768.81, Fla. Stat., applied to an action for negligent misrepresentation as set forth in the Restatement (Second) of Torts § 552 (1977), which requires proof of justifiable reliance. Accordingly, the committee has replaced its earlier reference to "reasonable reliance" in these instructions with "justifiable reliance."

In Gilchrist, the Court further noted that while the Restatement discusses the issue in terms of contributory negligence in section 552A, a majority of the states that have adopted the comparative negligence doctrine and considered the issue agree that comparative negligence principles apply to cases involving negligent misrepresentation. See 696 So.2d at 337. The committee recognizes that a logical tension could exist within a verdict determining that the claimant's reliance was...