It is the practice in this division for the Court to give a brief INTRODUCTION to the sworn jury prior to Opening Statements of the attorneys. Some of the material in the INTRODUCTION is repeated in the closing charge in DUTY OF THE JURY.
All instructions are adapted and supplemented as appropriate for the facts and law of a particular case and will be revised and supplemented with special instructions from time to time.
Material in brackets is customarily given in tort cases.
INTRODUCTION PRIOR TO OPENING STATEMENTS
DAMAGES - LOSS OF EARNING CAPACITY
HOW TO DELIBERATE AND REACH A
VERDICT
Ladies and gentlemen of the jury. First, let me congratulate you on your selection as jurors. You are seated in the jury box because the parties and the Court are convinced that you will be fair and impartial jurors, who will decide this dispute based upon the legally admitted evidence and the law as given to you by the Court.
Let me introduce to you the people you see in the courtroom. You have already met the attorneys and their clients. You have also met the Deputy Clerk of Court, N, who gave you your oath as a juror. He/she will be the minute clerk for the trial --- responsible for the court minutes, for swearing in all the witnesses who give testimony before you, and for receiving and keeping the evidence. Seated in front of me is the Official Court Reporter, N, who is responsible for taking down and transcribing every word which is said in the room. For that reason she may occasionally request that I ask someone to speak more loudly. You have also met some of the Bailiffs. They are representatives of the Sheriff of this Parish and are responsible for the smooth operation of the procedures of the court. Please ask them if you need help with any aspect of your service.
Now let me tell you the order which is followed in every trial. First, the attorneys for the plaintiff and the defendant will each make an opening statement to you. The purpose of the opening statement is to introduce the issues of the trial. Then the plaintiff will present witnesses and introduce evidence designed to prove his/her case. The defendant will do the same. Then the attorneys will give closing arguments. I will give you final instructions and you will retire to deliberate and reach a verdict.
You will decide the outcome of this lawsuit. It is your duty to pay close attention to the evidence. You may not ask any questions of your own. You are permitted to take notes but they must be kept confidential during the trial. The Bailiff will collect them at each recess and at the end of the trial.
It is the duty of the attorneys to object to evidence when the attorney believes that it is not properly admissible. I may meet with the attorneys about objections and other matters here at the bench. If I sustain the objection, it means that you are not to consider the evidence. If I overrule the objection, it means that you may consider it. You should not be prejudiced against an attorney or the client because of the making of objections or because the attorney wishes to have conversations which you cannot hear.
As you have already been told, you must not discuss
this case with each other or with attorneys, parties, witnesses or with
anyone else until the trial is entirely over. It is particularly important
that you do not talk to people in the hallways of the courthouse; they
may be involved in this proceeding. You may not read newspapers or listen
to radio or TV accounts, should there be any. You are to make your decision
based solely upon legally admitted evidence, and then only after an exchange
of views with your fellow jurors, in the deliberation room, at the end
of the trial.
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You have heard the evidence and argument of the attorneys. It is now time to instruct you on the law governing the case. Although you, as jurors, are the sole judges of the facts, you are duty bound to follow the law as stated in the instructions of this Court and to apply the law so given to the facts as you find them from the evidence before you, regardless of any opinion that you may have of what the law ought to be. If during this trial the Court has said or done anything which has suggested favor to the claims of any party, or indicated any opinion as to what the facts in this case are or should be, that should be disregarded; it was not intended. You are the judges of the facts.
This case should be considered and decided by you as an action between persons of equal standing. The law does not respect one party more than it does any other. A corporation is simply a collection of people and is entitled to the same fair trial at your hands as a private individual. All parties --- persons or organizations --- stand equal before the law, and are to be dealt with as equals in a court of justice.
You have been chosen from the community to make
a collective determination of the facts in this case. What the community
expects of you, and what the Court and the parties expect of you, is the
same thing that you would expect if you were a party to this suit: an impartial
deliberation and conclusion based upon all the evidence in this case and
on nothing else. The law does not permit jurors to be governed by sympathy,
bias, prejudice or public opinion. You are to consider carefully and impartially
all the evidence, follow the law as stated by the Court, and reach a just
verdict regardless of the consequences.
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In a civil action, the plaintiff --- the one who brings the suit --- has the burden of proving every essential element of the claim by a preponderance of the evidence. To "establish by a preponderance of the evidence" means to prove something is more likely so than not so. It does not depend upon the number of witnesses or the amount of evidence; it depends upon the weight which you attach to the evidence and the credibility or truthfulness which you attach to the witnesses. If the evidence should fail to prove any essential element of the plaintiff's claim by a preponderance of the evidence, you should find for the defendant.
With respect to the issues in the case, the burden of proof rests upon the party who asserts the affirmative of an issue. For example: should the plaintiff assert that the defendant was negligent, the plaintiff has the burden of proving this. On the other hand, should the defendant assert that the plaintiff's injuries were caused by the plaintiff's own negligence, or that the plaintiff's negligence was a contributing cause, the defendant bears the burden of that proof.
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1. General
The evidence in the case consists of the sworn testimony of the witnesses, the documents and other physical things that have been admitted, the presumptions stated in these instructions, together with any fair inferences and reasonable conclusions which you can draw from such evidence, based upon your ordinary experiences in life. The arguments of attorneys are not evidence. However, a stipulation or agreement by and between the attorneys as to the existence of a fact, and such facts as have been judicially noticed by the Court, must be accepted by you as proven evidence. Anything you may have seen or heard outside the courtroom is not evidence and must be disregarded.
[During the case, testimony has been read to you and presented by video. The testimony of a witness who cannot be at trial is presented in this form. Such testimony is entitled to the same consideration, and is to be judged as to credibility, and weighed and otherwise considered by you in the same way as if the witness had been here.]
2. Direct and Circumstantial Evidence
There are two types of evidence from which you may find the facts: one is direct evidence, such as testimony of an eye witness; the other is indirect or circumstantial evidence, such as proof of a chain of circumstances pointing to the existence or non-existence of facts. The law makes no distinction, but simply requires that the jury find the facts in accordance with a preponderance of all the evidence in the case, both direct and circumstantial.
3. Presumptions
[There are some presumptions applied by law.
If you find that the plaintiff was in good health before the accident, but after the accident the plaintiff had an injury, and that there is a reasonable possibility that the accident caused the injury, the law presumes that the accident caused the injury.]
[If you find that a party failed to call a witness whom you find had knowledge of the case, and offers no explanation for the omission, you are entitled to presume that the testimony of that witness would be adverse to that party.]
4.Expert Witnesses
The rules of evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. An exception to this rule exists as to those whom we call "expert witnesses". Witnesses who, by education and experience have become expert in some art, science, profession or calling, may state an opinion about matters in which they are expert, and may also state reasons for the opinion. You should consider each expert opinion received in evidence in this case, and give it such weight as you may think it deserves. If you should decide that the opinion is not based upon sufficient education or experience, or if you conclude that the reasons given in support of the opinion are not sound, you may reject the opinion entirely.
5. Medical Experts
Doctors and health care providers normally testify as experts and give their opinion about the condition of a patient. Their opinion may be based upon objective symptoms, subjective symptoms, or a combination of both. Objective symptoms are those which can be seen in examinations, tests, and treatment. Subjective symptoms are those which cannot be observed but are based on statements made by the patient to the doctor or other health care provider. To the extent that any opinion is based on statements made by the patient, you are entitled to consider the truthfulness of the patient's statements in deciding how much weight to give to the medical opinion. [You should ordinarily give greater weight to the opinion of a treating physician than that of a physician who examines a patient only once or twice.]
5. Credibility
In weighing the testimony of each witness, you
should give it careful scrutiny and consider all the circumstances under
which the witness testified; that is, appearance and demeanor on the witness
stand; the relationship to any party; the manner in which the witness might
be affected by the verdict; apparent candor and fairness or lack thereof;
the reasonableness or unreasonableness of the story; apparent intelligence
or lack thereof; the extent to which it is corroborated or contradicted
by other credible evidence, and any circumstances that tend to throw light
upon credibility and truthfulness. You should also consider whether there
is a statement previously made by that witness which is consistent or inconsistent
with the testimony. Applying these tests, it is for you to determine the
weight of the testimony of each witness. You have the right to accept as
true or reject as false, all or part of any testimony.
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1. Causation
A required element of plaintiff's case under any theory of law is that plaintiff's damages be caused in whole or in part by the defendant. A defendant is the legal cause of plaintiff's damages if: 1)the conduct of the defendant is the cause-in-fact of those damages, and; if 2)the damages are within the scope of the risks created by defendant's duty.
2. Cause-in-Fact
To be a cause-in-fact, the conduct of the defendant must be a substantial factor in causing damage. You will first determine what, if any, conduct of the defendant falls below the standard which the law imposes upon him; you must next ask whether plaintiff would have suffered damages "but for" this conduct. If plaintiff probably would have suffered injuries regardless of the defendant's conduct, then you must conclude that the injuries were not caused-in-fact by the defendant. If, on the other hand, plaintiff probably would not have suffered in the absence of defendant's conduct, then you must conclude that defendant did play a part in plaintiff's injury.
3. Duty/Risk
If you find that defendant's conduct was the cause, in whole or in part, of plaintiff's injuries, you must determine whether that injury was within the scope of the risks encompassed by defendant's duty. Put another way, you must determine whether the duty which defendant breached was designed to prevent the type of harm that actually occurred. If you find that the duty was designed to protect plaintiff from some other harm, or that the duty was designed to protect some other potential victim, then you must find that plaintiff's injuries were not within the scope of the risk of defendant's duty, and you must find that defendant was not the legal cause of plaintiff's injuries.
4. Specific Factual Situations
You must bear in mind that a corporation or partnership can act only through its officers, employees, or other agents. An employer is liable for the negligent acts of its employees while they are acting in the course and scope of their employment.
One party to this suit is an insurer; an insurance
company is not liable unless its insured is legally responsible for damage.
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Plaintiff claims recovery from defendant under the theory of negligence. The basic law in Louisiana in this type case is found in the Civil Code, Articles 2315 and 2316:
"Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." "Every person is responsible for the damage he occasions, not merely by his act, but by his negligence, his imprudence, or his want of skill."
The word fault as used in the Civil Code has become synonymous with the word "negligence" which I will define for you. Negligence is the doing of some act which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do. It is the failure to use ordinary care under the circumstances in the management of one's person or property.
The fact that an accident happens and that someone is hurt does not raise a presumption of negligence on the part of anyone. Negligence is an affirmative fact which is not to be presumed but must be proved by a preponderance of the evidence.
Statutes applicable under the particular facts of this case are as follows:
[Include applicable statutes]
However, violation of a statute, code, ordinance, or government regulation may not be negligence where the action which violated the statute was not unreasonable under all the circumstances or was not a legal cause of the damage.
Law which is applicable to the particular facts of this case is as follows:
[Include applicable case law]
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The plaintiff also claims recovery from the defendant under a theory of strict liability. The law in this type case is found in the Civil Code, Article 2317:
"We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody."
The courts have determined that when harm results from a defect in a thing which creates an unreasonable risk of harm to others, the person legally responsible for the custody of that thing is liable for the damages which are caused, even though no personal negligent act or inattention on the person's part is proved. This liability arises from the person's legal relationship to the thing.
Plaintiff must prove that (1) the thing in question was defective, which means that it posed an unreasonable risk of harm; (2) it was in the custody of the defendant; and (3) the plaintiff was damaged as a result of the defect. If plaintiff proves these three things, by a preponderance of the evidence, the defendant can escape liability only if the defendant shows that the harm was caused by (1) the fault of the victim which comparatively reduces defendant's liability; (2) the fault of a third person; or (3) an irresistible force.
In determining whether the thing poses an unreasonable risk of harm, you should consider the purpose which the thing served, its utility and effectiveness for that purpose, the likelihood that the thing would cause harm, the severity of the harm that it was likely to cause, and the social utility of defendant's ownership and maintenance of the thing in the condition in which it was when the damage occurred. In this determination you must presume that the custodian [owner] had knowledge of the risks that the thing presented and then determine if a reasonable person would have maintained the thing in that condition. It is no defense that the custodian was ignorant of the defect or that it was not easy to detect.
A defect in a thing creates an unreasonable risk of harm to others when the likelihood that harm might occur, and the seriousness of such harm if it does occur, outweigh the importance to society of the custody of the thing and the way the owner or custodian has chosen to maintain the thing under the circumstances. You are to weigh the magnitude of the possible harm against the utility of the custody of the thing under all the circumstances.
For a thing to be in the custody of the defendant, the defendant must either be the owner of it, or in a position to exercise supervision or control over it, and draw benefit from it.
Statutes applicable under the particular facts of this case are as follows:
[Include applicable statutes]
Law which is applicable to the particular facts of this case is as follows:
[Include applicable case law]
One of the defenses which the law permits a person
in custody of a defective thing to raise is that the injured person was
at fault and thereby caused or helped cause his or her own injury. If you
should find, therefore, that plaintiff is comparatively at fault, as defined
in these instructions, you should so indicate by assigning a percentage
of fault to plaintiff on the verdict sheet.
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1. General
The defendant not only denies responsibility but contends that any damage to plaintiff was the result of plaintiff's own negligence. Contributory negligence is fault on the part of a person injured which cooperates with the legal responsibility [fault or strict liability] of another, and so helps to bring about damage.
The test of contributory negligence is the same as the test of negligence of a defendant; it is an act or omission of the party injured which amounts to a lack of ordinary care without which the accident would not have occurred; but which, concurring with the conduct of the defendant, is a cause of damage. When a defendant contends that a plaintiff is completely at fault or, in the alternative, contributorily negligent, the burden of establishing that fact is on the defendant.
2. Unusual Facts: Watson v. State Farm Language
In assessing the conduct of the parties, various factors may influence the degree of fault which you may assign to the parties, including: whether the conduct resulted from inadvertence or involved an awareness of the danger; how great a risk was created by the conduct; the capacities of the actor, whether superior or inferior; and any extenuating circumstances which might require the actor to proceed in haste, without proper thought.
3. Verdict Sheet:Review
If you find any of the defendants at fault [by YES answers to Question One....], the law requires that you divide responsibility by assigning percentages of fault.
If you are convinced by the evidence that damage
was caused solely by one party's substandard conduct, you may return a
verdict for the other(s) by assigning 100% to the responsible party. You
may assign varying percentages to the various parties, from 0% to 100%,
but they must total 100%. In making these determinations, you should consider
both the nature of the conduct of each party at fault and the extent of
the causal relation between the conduct and the damages claimed.
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1. Definition
The plaintiff is claiming damages as a result of the accident. Civil Code Article 2315 provides:
"Every act of man that causes damage to another obliges him by whose fault it happened to repair it."
This language contemplates simple reparation, a just and adequate compensation for injuries. It suggests no idea of revenge or punishment. You are not permitted to award speculative damages, that is, damages which are remote or conjectural. If you find that the plaintiff is entitled to an award, you may award only such as will compensate for injury and damage that you find has actually been sustained or may be sustained in the future, proven by a preponderance of the evidence. The amounts claimed by the attorneys are not evidence but merely something for you to consider. [The severity of the impact in an automobile accident is a factor which may be considered by a jury in determining the degree of personal injury sustained.]
Your award should include general damages, which
are: any physical and mental pain and suffering incurred by the plaintiff
past, present, and future; any past or any future loss of earnings or earning
impairment; any permanent physical impairment or disability that you have
not otherwise taken into account; and any loss of enjoyment of life.
One who commits a tort takes his victim as he finds him. Defendant
is responsible also for any aggravation of pre-existing ailments or disabilities
sustained by the plaintiff.
[2. Consortium
Damages may include loss of consortium, service
or society, which damage is recoverable by the spouse of an injured party.
In evaluating a spouse's loss, you are to take into account the following
7 component parts: loss of love & affection; loss of society &
companionship; loss of sexual relations; loss of performance of material
services; loss of financial support; loss of aid & assistance; loss
of happiness.]
3. Mitigation
An injured person must make reasonable effort to mitigate and minimize damage. This requires a person who has been injured to seek gainful employment so as to minimize or avoid future wage loss. It is not reasonable to expect a person to work in serious pain or to threaten his health. An injured person is obligated to submit to reasonable medical treatment for his improvement.
4. Costs
You are not permitted to award any sum for court costs, attorneys' fees or interest. Any award made to the plaintiff as damages for personal injuries is not subject to federal or state income taxes.
5. Damages: Survival Action
In an action such as this one, Louisiana law permits these plaintiffs as the surviving beneficiaries of the deceased to present evidence of certain losses that may have been suffered by the deceased prior to death and for which you may award damages. These damages may include conscious mental and physical pain and suffering, loss of enjoyment of life, disability, or disfigurement of the deceased prior to his death, as well as any medical and funeral expenses which may have been incurred.
6. Damages: Wrongful Death
Louisiana law also permits these plaintiffs
as the surviving beneficiaries of the deceased to present evidence of the
loss which they have suffered as a result of the death and for which you
may award damages. In addition to loss of future support and services,
these damages may include loss of the love, affection, and companionship
of the decedent, and the grief and anguish of the survivor in question.
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Your award should include special damages the exact amount of which have been proved. Special damages are those which can be documented by invoices or calculated with mathematical certainty. These may include: the reasonable value of any care and treatment given by physicians, nurses or others; any ambulance services, x-ray, and medicines; and any medical, surgical and hospital services that the plaintiff may have sustained or may be reasonably required to sustain in the future.
Special damage instructions
[Here insert applicable special damage instructions]
Aggravation of Pre-existing Condition:
Defendant is responsible also for any aggravation of pre-existing ailments or disabilities of the plaintiff.
Under the law, one who negligently causes harm to another must take his victim as he finds him. So damages should be awarded for the full extent of the injury inflicted, including any aggravation of a pre-existing disease, even if the injury might not have happened except for the existing condition of the person injured.
In other words, even though the injury was caused in part or was made more harmful because of a pre-existing defect or weakness in the injured person, the injured person is still entitled to recover for the full consequences of the injury [but not the normal and natural results of the prior condition.]
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An award for loss of earning capacity, like any other element of damage, must be established by plaintiff by a preponderance of the evidence. If you find that the evidence indicates that plaintiff will in all probability continue to be capable of earning as much or more than if the accident had not occurred, you should not make any award for loss of earning capacity. Otherwise, when determining a proper award for loss of earning capacity, proper factors to be considered include: plaintiff's physical condition prior to the accident; work record; amount of earnings in previous years; the probability or improbability that similar amounts would have been earned during the remainder of work life if the injury had not been sustained; age; probability of promotion or progress of job status if supported by adequate evidence; life expectancy; work-life expectancy; degree of disability, if any; rehabilitation prospects and adaptability to rehabilitation; likelihood of alternate employment, which includes difficulty in obtaining employment in a competitive market. The factor of rising income trend is also a proper consideration and may be considered along with the trend toward a decreased purchasing power of the dollar. You may also consider that any award for future income will be due all at one time and available for possible investment, whereas otherwise such income would have accrued gradually each pay period over time.
An award for future loss of earning capacity, by its very nature, tends to be speculative; in order to recover such a sum, plaintiff need not introduce evidence to prove this claim with mathematical certainty. If you find such an award is proper, you are expected to exercise sound discretion after taking into consideration all of the facts and circumstances of the case, and award such amount as will, under the circumstances of the case, appear just to both litigants. Mathematical projections of future earnings may be used as a guide in computing such an award, if you see fit to do so.
It is the law in Louisiana that you are to look
at gross income rather than net income.
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Do not reduce any damage figure by any percentage of responsibility which you may have assigned to any party. A damage figure should reflect all of the damage suffered, whether or not you have found that the plaintiff contributed to that damage. The Court will make a reduction, if appropriate, after you return your verdict.
The fact that I have instructed you as to the
proper measure of damages should not be considered by you as an opinion
as to which party is entitled to prevail nor as an intimation from me that
any damages are due. Instructions as to the measure of damages are given
for your guidance, in the event you find from the evidence that an award
is appropriate. You alone determine whether damages are due and, if so,
in what amount.
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Upon retiring to the jury room, you will first select one of your number, either a man or woman, to be your foreperson. He or she shall preside over your deliberations and, when you have concluded, sign the verdict sheet.
Let me say that it is usually not a good idea for a juror, when first entering the jury room, to make an emphatic expression of opinion on the case or announce a determination to stand for a certain verdict. When one does that at the outset, a sense of pride may be at issue; one may hesitate to back down from an announced position, even if shown to be wrong. Remember, you are not advocates in this matter, but rather you are the judges.
You will be given the verdict form which has been prepared for this case. On it are the questions which you must discuss, vote on, and answer. It will be your duty, each of you, to discuss the issues of this case amongst yourselves. If there are differences of opinion in the appraisement of the evidence or in any other phase submitted to you for consideration, you should make every conscientious effort to reconcile your differences, if you can conscientiously do so. A "quotient verdict" is not permitted under the law; that is, you may not each arrive at a number, take an average, and agree to be bound by the average.
No testimony of any witness can be repeated or read to you but you may use any notes which you have taken during the trial and you may ask to have any document or object which has been received in evidence.
There are twelve/nine in your number/ When nine/five are of the same opinion that ends your deliberation with respect to that question. Your answers do not have to be unanimous. The foreperson will fill in the appropriate answers, the date, and affix his or her signature.
I remind you that you represent the community in the determination of this dispute. The community appreciates your service and, at the same time, expects you to reach a verdict which is fair to all parties.
[Dismiss alternate jurors]
Ladies and gentlemen, you may now retire to begin your deliberations. The Court will await your verdict.