In Re: Standard Jury Instructions in Civil Cases - Report No. 19-03

Supreme Court of Florida
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No. SC19-1246
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IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES—REPORT
NO. 19-03.

February 27, 2020

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

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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, No. SC17-

1060, 2018 WL 2168867 (Fla. Feb. 1, 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.

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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.

NO MOTION FOR REHEARING WILL BE ALLOWED.

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Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
Civil Cases

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

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 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. See Cassisi 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 without

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changing its meaning.Consumer expectations test; risk/benefit test. See Aubin 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.
See West 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 also Sanchez 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. See McConnell 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. See Union
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. See Agrofollajes, 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(b) and the corresponding Note on Use. If a court determines that the
risk/benefit test is a test for product defect, the committee takes no position on
whether both the consumer expectations and risk/benefit tests should be given
alternatively or together. The committee notes, however, that the two-issue rule
may be implicated if both tests of design defect are used. Zimmer Inc. v. Birnbaum,
758 So. 2d 714 (Fla. 4th DCA 2000).

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 4. In Force v. Ford Motor Co., 879 So. 2d 103, 107 (Fla. 5th DCA
2004), the parties agreed to a risk/benefit instruction based on section 2(b) of the
RESTATEMENT (THIRD) OF TORTS, Products Liability. The decision in Force did not
directly address the correctness of these instructions. As discussed above in note 3,
pending further development in the law, the committee takes no position on this
issue.

5. When strict liability and negligence claims are tried together, to clarify
differences between them it may be necessary to add language to the strict liability
instructions to the effect that a product is defective if unreasonably dangerous even
though the seller has exercised all possible care in the preparation and sale of the
product. RESTATEMENT (SECOND) TORTS, § 402A(2)(a). In cases involving claims
of both negligence and defective design, submission of both claims may result in an
inconsistent verdict. See, e.g., Consolidated Aluminum Corp. v. Braun, 447 So. 2d
391 (Fla. 4th DCA 1984); Ashby Division of Consolidated Aluminum Corp. v.
Dobkin, 458 So. 2d 335 (Fla. 3d DCA 1984). See also Coba v. Tricam Indus., Inc.,
164 So. 3d 637, 648 n.2 (Fla. 2015); Moorman v. American Safety Equip., 594 So.
2d 795 (Fla. 4th DCA 1992); North American Catamaran Racing Ass’n v.
McCollister, 480 So. 2d 669 (Fla. 5th DCA 1985).

64. In some cases, it may be appropriate to instruct the jury that, in
addition to the designer and manufacturer, any distributor, importer, or seller in the
chain of distribution is liable for injury caused by a defective product. Samuel
Friedland Family Enterprises v. Amoroso, 630 So. 2d 1067 (Fla. 1994); Rivera v.
Baby Trend, Inc., 914 So. 2d 1102 (Fla. 4th DCA 2005); Porter v. Rosenberg, 650
So. 2d 79 (Fla. 4th DCA 1995).

5. For the state-of-the-art defense see, F.S. 768.1257.

403.8 STRICT LIABILITY FAILURE TO WARN
A product is defective when the foreseeable risks of harm from the
product could have been reduced or avoided by providing reasonable
instructions or warnings, and the failure to provide those instructions or
warnings makes the product unreasonably dangerous.

NOTES ON USE FOR 403.8

1. The following cases recognize strict liability for a failure to warn of
defects. Union Carbide Corp. v. Aubin, 97 So. 3d 886, 898 (Fla. 3d DCA 2012);

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McConnell v. Union Carbide Corp., 937 So. 2d 148, 151–52 (Fla. 4th DCA 2006);
Union Carbide Corp. v. Kavanaugh, 879 So. 2d 42, 45 (Fla. 4th DCA 2004);
Scheman-Gonzalez v. Saber Manufacturing Co., 816 So. 2d 1133 (Fla. 4th DCA
2002); Ferayorni v. Hyundai Motor Co., 711 So. 2d 1167 (Fla. 4th DCA 1998).

2. When strict liability and negligent failure to warn claims are tried
together, to clarify differences between them it may be necessary to add language
to the strict liability instruction to the effect that a product is defective if
unreasonably dangerous even though the seller has exercised all possible care in
the preparation and sale of the product. RESTATEMENT (SECOND) TORTS, §
402A(2)(a).

403.15 ISSUES ON MAIN CLAIM
The [next] issues you must decide on (claimant’s) claim against
(defendant) are:

a. Express Warranty:

whether (the product) failed to conform to representations of fact made
by (defendant), orally or in writing, in connection with the [sale] [transaction],
on which (name) relied in the [purchase and] use of the product, and, if so,
whether that failure was a legal cause of the [loss] [injury] [or] [damage] to
(claimant, decedent, or person for whose injury claim is made).

b. Implied Warrant of Merchantability:
whether (the product) was not reasonably fit for either the uses intended
or the uses reasonably foreseeable by (defendant) and, if so, whether that lack
of fitness was a legal cause of the [loss] [injury] [or] [damage] to (claimant,
decedent, or person for whose injury claim is made).

c. Implied Warranty of Fitness for Particular Purpose:

whether (the product) was not reasonably fit for the specific purpose for
which (defendant) knowingly sold (the product) and for which (claimant) bought
(the product) in reliance on the judgment of (defendant) and, if so, whether that
lack of fitness was a legal cause of the [loss] [injury] [or] [damage] to
(claimant, decedent, or person for whose injury claim is made).

d. Strict Liability — Manufacturing Defect:

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 whether (the product) [was made differently than its intended design and
thereby failed to perform as safely as intended and (the product) reached
(claimant) without substantial change affecting the condition and, if so,
whether that failure was a legal cause of the [loss] [injury] [or] [damage] to
(claimant, decedent, or person for whose injury claim is made).
e. Strict Liability — Design Defect:

whether [(the product) failed to perform as safely as an ordinary
consumer would expect when used as intended or in a manner reasonably
foreseeable by the manufacturer] [and] [or] [the risk of danger in the design
of the product outweighs the benefits of the product] and (the product) reached
(claimant) without substantial change affecting the condition and, if so,
whether that failure was a legal cause of the [loss] [injury] [or] [damage] to
(claimant, decedent, or person for whose injury claim is made).
f. Strict Liability — Failure to Warn:
whether the foreseeable risks of harm from (the product) could have
been reduced or avoided by providing reasonable instructions or warnings
and the failure to provide those warnings made (the product) unreasonably
dangerous and, if so, whether that failure was a legal cause of the [loss]
[injury] [or] [damage] to (claimant, decedent, or person for whose injury claim is
made).

g. Negligence:
whether (defendant) was negligent in (describe alleged negligence), and, if
so, whether that was a legal cause of the [loss] [injury] [or] [damage] to
(claimant, decedent, or person for whose injury claim is made).

h. Negligent Failure to Warn:

whether (defendant) negligently failed to warn about particular risks
involved in the use of (the product), and, if so, whether that failure to warn was
a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent, or
person for whose injury claim is made).

NOTE ON USE FOR 403.15

Instruction 403.15(e) retains the consumer expectations test and the
risk/benefit test for product defect, both of which previously appeared in PL 5. See

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Instruction 403.7(b) and Note on Use 3. Pending further development in the law,
the committee takes no position on whether the consumer expectations and
risk/benefit tests should be given alternatively or together.

403.17 BURDEN OF PROOF ON MAIN CLAIM

If the greater weight of the evidence does not support [one or more of]
(claimant’s) claim[s], your verdict should be for (defendant(s)) [on [that] [those]
claim(s)].

[However, if the greater weight of the evidence supports [one or more
of] (claimant’s) claim[s], then your verdict should be for (claimant) and against
(defendant) [on [that] [those] claim(s)].]

[However, if the greater weight of the evidence supports (claimant’s)
claim against one or [both] [more] of the defendants, then you should decide
and write on the verdict form the percentage of the total fault of [both] [all]
defendants that was caused byyou apportion to each of them.]

NOTE ON USE FOR 403.17

Use the first paragraph in all cases. If there is an affirmative defense to the
claim, do not use either of the bracketed paragraphs; instead turn to instruction
403.18. If there is no affirmative defense, use the first or second bracketed
paragraph depending on whether there is one defendant or more than one.

403.18 DEFENSE ISSUES

If, however, the greater weight of the evidence supports [(claimant’s)
claim] [one or more of (claimant’s) claims], then you shall consider the
defense[s] raised by (defendant).

On the [first]* defense, the issue[s] for you to decide [is] [are]:

*The order in which the defenses are listed below is not necessarily the
order in which the instruction should be given.

a. Comparative Negligence:

whether (claimant or person for whose injury or death claim is made) was
[himself] [herself] negligent *in (describe alleged negligence) and, if so, whether

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that negligence was a contributing legal cause of the injury or damage to
(claimant).

*If the jury has not been previously instructed on the definition of
negligence, instruction 401.4 should be inserted here.

b. Risk/Benefit Defense:

whether, on balance, the [benefits] [or] [value] of (the product) outweigh
the risks or danger connected with its use.

NOTE ON USE FOR 403.18b

In a strict liability defective design case, a defendant may be entitled to an
affirmative defense based on the risk/benefit test. See Force v. Ford Motor Co.,
879 So. 2d 103, 106 (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). 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 court should not, however, instruct on risk/benefit as both a
test of defectiveness under 403.7 and as an affirmative defense under 403.18.

c. Government Rules Defense:

No instruction provided.

NOTE ON USE FOR 403.18c

F.S. 768.1256 provides for a rebuttable presumption in the event of
compliance or noncompliance with government rules. The statute does not state
whether the presumption is a burden-shifting or a vanishing presumption. See F.S.
90.301–90.304; Universal Insurance Co. of North America v. Warfel, 82 So. 3d 47
(Fla. 2012); Birge v. Charron, 107 So. 3d 350 (Fla. 2012). Pending further
development in the law, the committee offers no standard instruction on this
presumption, leaving it up to the parties to propose instructions on a case-by-case
basis.

d. State-of-the-art Defense:

In deciding whether (the product) was defective because of a design

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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].

NOTE ON USE FOR 403.18d

Instruction 403.18d applies only in defective design cases. F.S. 768.1257.

e. Apportionment of fault:

whether (identify additional person(s) or entit(y)(ies)) [was] [were] also
[negligent] [at fault] [responsible] [(specify other type of conduct)]; and, if so,
whether that [negligence] [fault] [responsibility] [(specify other type of
conduct)] was a contributing legal cause of [loss] [injury] [or] [damage] to
(claimant, decedent, or person for whose injury claim is made).

NOTE ON USE FOR 403.18e

See F.S. 768.81; Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). In most
cases, use of the term “negligence” will be appropriate. If another type of fault is at
issue, it may be necessary to modify the instruction and the verdict form
accordingly. In strict liability cases, the term “responsibility” may be the most
appropriate descriptive term.

c. Learned intermediary defense to failure to warn claims for products
supplied through an intermediary:

whether (the defendant) provided reasonable instructions or warnings to
(intermediary) and reasonably relied upon [it] [him] [her] to provide
reasonable instructions or warnings to the user of (the product).

In determining whether (defendant) reasonably relied on (intermediary)
to provide reasonable instructions or warnings to users of (the product), you
may consider the nature and significance of the risk involved in using the
product, the likelihood that (intermediary) would convey the instructions or
warnings to the user of (the product), and the feasibility and effectiveness of
(defendant) directly warning the user.

NOTES ON USE FOR 403.18

1. Comparative negligence is a defense to strict liability claims if based

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on grounds other than the failure of the user to discover the defect or to guard
against the possibility of its existence. West v. Caterpillar Tractor Co., 336 So. 2d
80, 90 (Fla. 1976).

2. The “patent danger doctrine” is not an independent defense but, to the
extent applicable (see note 1), it is subsumed in the defense of
contributorycomparative negligence. Auburn Machine Works Inc. v. Jones, 366 So.
2d 1167 (Fla. 1979).

3. Apportionment of fault. See F.S. 768.81; Fabre v. Marin, 623 So. 2d
1182 (Fla. 1993). In most cases, use of the term “negligence” will be appropriate.
If another type of fault is at issue, it may be necessary to modify the instruction and
the verdict form accordingly. In strict liability cases, the term “responsibility” may
be the most appropriate descriptive term.

4. Learned intermediary defense. See Aubin v. Union Carbide Corp.,
117 So. 3d 489, 515–16 (Fla. 2015). The list of factors set forth in this instruction
is not exclusive and may be modified to fit the facts of the case.

5. Government Rules Defense. F.S. 768.1256 provides for a rebuttable
presumption in the event of compliance or noncompliance with government rules.
The statute does not state whether the presumption is a burden-shifting or a
vanishing presumption. See F.S. 90.301–90.304; Universal Insurance Co. of North
America v. Warfel, 82 So. 3d 47 (Fla. 2012); Birge v. Charron, 107 So. 3d 350
(Fla. 2012). Pending further development in the law, the committee offers no
standard instruction on this presumption, leaving it up to the parties to propose
instructions on a case-by-case basis.

6. Unavoidably unsafe defense. The committee has not proposed a
standard instruction patterned after RESTATEMENT (SECOND) OF TORTS § 402A
(1965), comment k (unavoidably unsafe products) pending further development in
the law. Thus far, comment k has only been applied in Florida to medical devices,
drugs, and vaccines, see Adams v. G.D. Searle & Co., 576 So. 2d 728, 733 (Fla.
2nd DCA 1991) (medical device), and has not been extended to any other class of
product.

403.19 BURDEN OF PROOF ON DEFENSE ISSUES

If the greater weight of the evidence does not support (defendant’s)
defense[s] and the greater weight of the evidence supports (claimant’s) [claim]
[one or more of (claimant’s) claims], then [your verdict should be for (claimant)

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in the total amount of [his] [her] damages.] *[you should decide and write on
the verdict form what percentage of the total [negligence] [fault]
[responsibility] of [both] [all] defendants was caused byyou apportion to each
defendant whose [negligence] [fault] [responsibility] you find was a legal cause
of loss, injury, or damage to (claimant).]

*Use the second bracketed language when there is more than one defendant.

If, however, the greater weight of the evidence shows that both
(claimant) and [(defendant)] [one or more of the defendants] [and] [(identify
additional person(s) or entit(y)(ies))] were [negligent] [at fault] [responsible] and
that the [negligence] [fault] [responsibility] of each contributed as a legal
cause of [loss] [injury] [or] [damage] sustained by (claimant), you should
decide and write on the verdict form what percentage of the total [negligence]
[fault] [responsibility] of [both] [all] parties to this action was caused byyou
apportion to each of them.

Use the following instruction in cases with a comparative negligence
defense and an apportionment of a non-party defense:

[If, however, the greater weight of the evidence shows that (claimant)
and [(defendant)] [one or more of (defendants)] [and] [(identify additional
person(s) or entit(y)(ies))] were [negligent] [at fault] [responsible] and that the
[negligence] [fault] [responsibility] of each contributed as a legal cause of
[loss] [injury] [or] [damage] sustained by (claimant), you should decide and
write on the verdict form what percentage of the total [negligence] [fault]
[responsibility] of [both] [all] parties to this action [and] [(identify additional
person(s) or entit(y)(ies))] was caused byyou apportion to each of them.]

Use the following paragraph in cases without a comparative negligence
defense but with an apportionment of non-party defense:

[If, however, the greater weight of the evidence shows that [(defendant)]
[one or more of (defendants)] and [(identify additional person(s) or entit(y)(ies))]
were [negligent] [at fault] [responsible] and that the [negligence] [fault]
[responsibility] of each contributed as a legal cause of [loss] [injury] [or]
[damage] sustained by (claimant), you should decide and write on the verdict
form what percentage of the total [negligence] [fault] [responsibility] of
[(defendant(s))] [and] [(identify additional person(s) or entit(y)(ies))] was caused
byyou apportion to each of them.]

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 NOTES ON USE FOR 403.19

1. Preemptive instructions on defense issues. If a preemptive instruction
for claimant is appropriate on a defense issue, as when comparative negligence or
assumption of risk has been brought to the jury’s attention on voir dire or by
opening statements or argument and is now to be withdrawn, an instruction in the
form of instruction 401.13 should be given immediately following instruction
403.15. If a preemptive instruction for defendant is required on some aspect of a
defense, as when, for example, the court holds that any comparative negligence of
the driver will reduce claimant’s recovery, a preemptive instruction announcing the
ruling should be given immediately after framing the defense issues (instruction
403.18).

2. In most cases, use of the term “negligence” will be appropriate. If
another type of fault is at issue, it may be necessary to modify the instruction and
the verdict form accordingly. In strict liability cases, the term “responsibility”
may be the most appropriate descriptive term.

MODEL INSTRUCTION NO. 7

Product liability case; negligence
and strict liability claims;
comparative negligence defense;
aggravation of pre-existing injury

Strict product liability and negligence case;
with aggravation of pre-existing injury; and
comparative negligence defense

Facts of the hypothetical case:

John Smith claims he was injured when a hay baler being driven on the
highway by Dilbert Driver struck himhis car. The hay baler suddenly swerved
across the road into the path of John Smith, who was driving in the opposite
direction. At the time, John Smith was looking at a group of deer in a field near the
road, and therefore took no evasive action to avoid the collision. An examination of
the hay baler revealed that a bolt that was part of the steering mechanism was
designed in such a way that it could not sustain the speed of highway driving,
would loosen over time, weaken, and eventually break. The retailer seller, Sharp
Sales Co., prior to selling it to Driver, had not inspected it. The mechanism had
broken, making it impossible for Driver to steer the baler. There was evidence that

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a person could have observed the weakened condition of the steering mechanism
had he or she examined it.At the time of the accident, Dilbert Driver was operating
the hay baler at an unsafe speed when the bolt suddenly broke, making it
impossible for Dilbert Driver to steer the hay baler, which crashed into the car
being driven by John Smith and injured him as a result. John Smith sued Dilbert
Driver, alleging that his operation of the hay baler had been negligent. John Smith
also sued the manufacturer of the hay baler, Mishap Manufacturing Co., and the
retailer seller, Sharp Sales Co., alleging that the hay baler had been defectively
designed and that both defendants had been negligent in their inspections of the
hay baler. He sought recovery against both the manufacturer and the retailer on
claims of (1) negligence and (2) strict liability based on the consumer expectation
test. The defendants denied liability, and affirmatively alleged that John Smith had
been comparatively negligent. There are also issues of a pre-existing injury.The
defendants also alleged that some of John Smith’s injuries pre-existed the collision
with the hay baler and John Smith alleged that his pre-existing condition was
aggravated by the collision with the hay baler.

The court’s instruction:

The committee assumes that the court will give these instructions as part of
the instruction at the beginning of the case and that these instructions will be given
again before Final Argument. When given at the beginning of the case, 202.1 will
be used in lieu of 403.1 and these instructions will be followed by the applicable
portions of 202.2 through 202.5. See Model Instruction No. 1 for a full illustration
of anthe instructions to be given given at the beginning and end of the case.

[403.1] Members of the jury, you have now heard and received all of the
evidence in this case. I am now going to tell you about the rules of law that you
must use in reaching your verdict. You will recall at the beginning of the case
I told you that if, at the end of the case I decided that different law applies, I
would tell you so. These instructions are the same asthe same as what I gave
you at the beginning and it is these rules of law that you must now follow.
When I finish telling you about the rules of law, the attorneys will present
their final arguments and you will then retire to decide your verdict.

[403.2] The claims and defenses in this case are as follows. John Smith
claims that Dilbert Driver was negligent in operation of the hay baler he was
driving which caused him harm. John Smith also claims that Mishap
Manufacturing Company, the manufacturer of the hay baler, and Sharp Sales
Company, the seller of the hay baler, were negligent — Mishap in designing

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and inspecting the hay baler, and Sharp in the manner it inspected it before
sale — which caused him to be injured by the hay baler. Finally, John Smith
also claims that the hay baler designed and manufactured by Mishap and sold
by Sharp was defective and that the defect in the hay baler caused him harm.
John Smith also claims that the hay baler designed by Mishap Manufacturing
Co. and sold by Sharp Sales Co. was defective and that the defect in the hay
baler caused him harm.

All three defendantsAll three defendants deny thesethose claims and
also claim that John Smith was himself negligent in the operation of his
vehicle, which caused his harm.

The parties must prove their claims by the greater weight of the
evidence. I will now define some of the terms you will use in deciding this case.

[403.3] “Greater weight of the evidence” means the more persuasive and
convincing force and effect of the entire evidence in the case.

[401.4 and 403.9] Negligence is the failure to use reasonable care, which
is the care that a reasonably careful person would use under like
circumstances. In the case of a designer, manufacturer, seller, importer,
distributor, or supplier of a product, it is the care that a reasonably careful
designer, manufacturer, seller, importer, distributor, or supplier would use
under like circumstances. Negligence is doing something that a reasonably
careful designer, manufacturer, seller, importer, distributor, or supplier
would not do under like circumstances or failing to do something that a
reasonably careful person, designer, manufacturer, seller, importer,
distributor, or supplier would do under like circumstances.

[401.4] Negligence is the failure to use reasonable care, which is the care
that a reasonably careful person would use under like circumstances.
Negligence is doing something that a reasonably careful person would not do
under like circumstances or failing to do something that a reasonably careful
person would do under like circumstances.

[403.7b] A product is defective because of a design defect if it is in a
condition unreasonably dangerous to the user or 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

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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.

In deciding whether the hay baler 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 hay baker’s
manufacture, not at the time of the loss, injury, or damage.

[401.12a and 403.12a] Negligence or a defect in a product is a legal
cause of loss, injury, or damage if it directly and in natural and continuous
sequence produces or contributes substantially to producing such loss, injury,
or damage, so that it can reasonably be said that, but for the negligence or
defect, the loss, injury, or damage would not have occurred.

[401.12b and 403.12b] In order to be regarded as a legal cause of loss,
injury, or damage, negligence or a defect in a product need not be the only
cause. Negligence or a defect in a product may be a legal cause of loss, injury,
or damage even though it operates in combination with the act of another or
some other cause if the negligence or defect contributes substantially to
producing such loss, injury, or damage.

[401.18a] The issues you must decide on John Smith’s claim against
Dilbert Driver are whether Dilbert Driver was negligent in his operation of
the hay baler, and, if so, whether that negligence was a legal cause of the loss,
injury, or damage to John Smith.

[403.15g] The issues you must decide on John Smith’s claim of
negligence on the part of Mishap Manufacturing Company, the manufacturer
of the hay baler, is whether Mishap Manufacturing Company was negligent in
the design of the hay baler or in its inspection of the hay baler after it was
built, and, if so, whether that negligence was a legal cause of the loss, injury or
damage to John Smith.

The issues you must decide on John Smith’s claim of negligence on the
part of Sharp Sales Company, the seller of the hay baler, are whether Sharp
Sales Company was negligent in failing to inspect the hay baler before selling
it to John Smith, and, if so, whether that negligence was a legal cause of the
loss, injury or damage to John Smith.

[403.15e] The issues you must decide on John Smith’s claims of defect in

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the hay baler against Mishap Manufacturing Company., the manufacturer of
the hay baler, and Sharp Sales Company., the seller of the hay baler, are
whether the hay baler failed to perform as safely as an ordinary consumer
would expect when used as intended or in a manner reasonably foreseeable by
the manufacturer and the hay baler reached Dilbert Driver without
substantial change affecting the condition and, if so, whether that failure was
a legal cause of the loss, injury, or damage to John Smith.

[403.17] If the greater weight of the evidence does not support one or
more of John Smith’s claims then your verdict should be for Dilbert Driver,
Mishap Manufacturing Company., and Sharp Sales Company.

[403.18a] If, however, the greater weight of the evidence supports one or
more of John Smith’s claims against one or more of the defendantsagainst one
or more of the defendants, then you shall consider the defenses raised by those
defendants.

[403.18(a)] On the first defense, the issue for you to decide is whether
John Smith was himself negligent in driving and, if so, whether that
negligence was a contributing legal cause of the injury or damage to John
Smith.

[403.18d] On the second defense, in deciding whether the hay baler 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 hay baler’s manufacture, not at the time of the loss, injury or
damage.

[403.19] If the greater weight of the evidence does not support the
defenses of Dilbert Driver, Mishap Manufacturing Company., and Sharp
Sales Company., and the greater weight of the evidence supports one or more
of John Smith’s claims, then you should decide and write on the verdict form
what percentage of the total negligence or responsibility of all defendants was
caused byyou apportion to each defendant whose negligence, fault, or
responsibility you find was a legal cause of loss, injury, or damage to John
Smith.

If, however, the greater weight of the evidence shows that both John
Smith and one or more of the defendants were negligent or responsible and
that the negligence or responsibility of each contributed as a legal cause of
loss, injury, or damage sustained by John Smith, you should decide and write

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on the verdict form what percentage of the total negligence, fault, or
responsibility of all parties to this action was caused byyou apportion to each
of them.

[501.1b] If your verdict is for Dilbert Driver, Mishap Manufacturing
Company., and Sharp Sales Company., you will not consider the matter of
damages. But if the greater weight of the evidence supports one or more of
John Smith’s claims, 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 will fairly and adequately compensate him for his loss,
injury, or damage, including any damages that John Smith is reasonably
certain to incur or experience in the future. You shall consider the following
elements:

[501.2a] Any bodily injury sustained by John Smith and any resulting
pain and suffering, disability or physical impairment, disfigurement, mental
anguish, inconvenience or loss of capacity for the enjoyment of life
experienced in the past or to be experienced in the future. There is no exact
standard for measuring such damage. The amount should be fair and just in
the light of the evidence.

[501.2b] The reasonable expense of hospitalization and medical care and
treatment necessarily or reasonably obtained by John Smith in the past or to
be so obtained in the future.

[501.2c] Any earnings lost in the past and any loss of ability to earn
money in the future.

[501.2h] Any damage to John Smith’s automobile. The measure of such
damage is the reasonable cost of repair, if it was practicable to repair the
automobile, with due allowance for any difference between its value
immediately before the collision and its value after repair.

You shall also take into consideration any loss to John Smith for towing
or storage charges and by being deprived of the use of his automobile during
the period reasonably required for its repair.

[501.4] In determining the total amount of damages, you should not
make any reduction because of the negligence, fault, or responsibility, if any,
of John Smith or Dilbert Driver, Mishap Manufacturing Co., and Sharp Sales
Co. The court will enter a judgment based on your verdict and, if you find

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that John Smith 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 was caused by John SmithThe court in entering judgment will
make any appropriate reduction(s).

[501.5a] If you find that one or more of the defendants caused a bodily
injury, and that the injury resulted in an aggravation of an existing disease or
physical defect or activation of a latent disease or physical defect, you should
attempt to decide what portion of John Smith’s condition resulted from the
aggravation or activation. If you can make that determination, then you
should award only those damages resulting from the aggravation or
activation. However, if you cannot make that determination, or if it cannot be
said that the condition would have existed apart from the injury, then you
should award damages for the entire condition suffered by John Smith.

[501.6] If the greater weight of the evidence shows that John Smith has
been permanently injured, you may consider his life expectancy. The
mortality tables received in evidence may be considered in determining how
long John Smith may be expected to live. Mortality tables are not binding on
you but may be considered together with other evidence in the case bearing on
John Smith’s health, age, and physical condition, before and after the injury,
in determining the probable length of his life.

[501.7] Any amount of damages which you allow for future medical
expenses or loss of ability to earn money in the future should be reduced to its
present money value and only the present money value of these future
economic damages should be included in your verdict.

The present money value of future economic damages is the sum of
money needed now which, together with what that sum will earn in the future,
will compensate John Smith for these losses as they are actually experienced
in future years.

[601.1] In deciding this case, it is your duty as jurors to answer certain
questions I ask you to answer on a special form, called a verdict form. You
must come to an agreement about what your answers will be. Your agreed-
upon answers to my questions are called your jury verdict.

The evidence in this case consists of the sworn testimony of the
witnesses, all exhibits received in evidence and all facts that were admitted or
agreed to by the parties.

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 In reaching your verdict, you must think about and weigh the testimony
and any documents, photographs, or other material that has been received in
evidence. You may also consider any facts that were admitted or agreed to by
the lawyers. Your job is to determine what the facts are. You may use reason
and common sense to reach conclusions. You may draw reasonable inferences
from the evidence. But you should not guess about things that were not
covered here. And, you must always apply the law as I have explained it to
you.

[601.2a] Let me speak briefly about witnesses. In evaluating the
believability of any witness and the weight you will give the testimony of any
witness, you may properly consider the demeanor of the witness while
testifying; the frankness or lack of frankness of the witness; the intelligence of
the witness; any interest the witness may have in the outcome of the case; the
means and opportunity the witness had to know the facts about which the
witness testified; the ability of the witness to remember the matters about
which the witness testified; and the reasonableness of the testimony of the
witness, considered in the light of all the evidence in the case and in the light
of your own experience and common sense.

[601.2b] Some of the testimony before you was in the form of opinions
about certain technical subjects. You may accept such opinion testimony,
reject it, or give it the weight you think it deserves, considering the knowledge,
skill, experience, training, or education of the witness, the reasons given by the
witness for the opinion expressed, and all the other evidence in the case.

[601.4] In your deliberations, you will consider and decide three distinct
claims. The first is the negligence claim against Dilbert Driver. The second is
the negligence claims against Mishap Manufacturing Company. and Sharp
Sales Company. The third is the product defect claims against Mishap
Manufacturing Company. and Sharp Sales Company. Although these claims
have been tried together, each is separate from the others, and each party is
entitled to have you separately consider each claim as it affects that party.
Therefore, in your deliberations, you should consider the evidence as it relates
to each claim separately, as you would had each claim been tried before you
separately.

[601.5] That is the law you must follow in deciding this case. The
attorneys for the parties will now present their final arguments. When they
are through, I will have a few final instructions about your deliberations.

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 Following Closing Arguments, the final instructions are given:

[700] Members of the jury, you have now heard all the evidence, my
instructions on the law that you must apply in reaching your verdict and the
closing arguments of the attorneys. You will shortly retire to the jury room to
decide this case. Before you do so, I have a few last instructions for you.

During deliberations, jurors must communicate about the case only
with one another and only when all jurors are present in the jury room. You
will have in the jury room all of the evidence that was received during the
trial. In reaching your decision, do not do any research on your own or as a
group. Do not use dictionaries, the Internet, or any other reference materials.
Do not investigate the case or conduct any experiments. Do not visit or view
the scene of any event involved in this case or look at maps or pictures on the
Internet. If you happen to pass by the scene, do not stop or investigate. All
jurors must see or hear the same evidence at the same time. Do not read, listen
to, or watch any news accounts of this trial.

You are not to communicate with any person outside the jury about this
case. Until you have reached a verdict, you must not talk about this case in
person or through the telephone, writing, or electronic communication, such
as a blog, twitter, e-mail, text message, or any other means. Do not contact
anyone to assist you, such as a family accountant, doctor, or lawyer. These
communications rules apply until I discharge you at the end of the case.

If you become aware of any violation of these instructions or any other
instruction I have given in this case, you must tell me by giving a note to the
bailiff.

Any notes you have taken during the trial may be taken to the jury
room for use during your discussions. Your notes are simply an aid to your
own memory, and neither your notes nor those of any other juror are binding
or conclusive. Your notes are not a substitute for your own memory or that of
other jurors. Instead, your verdict must result from the collective memory
and judgment of all jurors based on the evidence and testimony presented
during the trial.

At the conclusion of the trial, the bailiff will collect all of your notes and
immediately destroy them. No one will ever read your notes.

In reaching your verdict, do not let bias, sympathy, prejudice, public

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opinion, or any other sentiment for or against any party to influence your
decision. Your verdict must be based on the evidence that has been received
and the law on which I have instructed you.

Reaching a verdict is exclusively your job. I cannot participate in that
decision in any way and you should not guess what I think your verdict should
be from something I may have said or done. You should not think that I
prefer one verdict over another. Therefore, in reaching your verdict, you
should not consider anything that I have said or done, except for my specific
instructions to you.

Pay careful attention to all the instructions that I gave you, for that is
the law that you must follow. You will have a copy of my instructions with you
when you go to the jury room to deliberate. All the instructions are important,
and you must consider all of them together. There are no other laws that
apply to this case, and even if you do not agree with these laws, you must use
them in reaching your decision in this case.

When you go to the jury room, the first thing you should do is choose a
presiding juror to act as a foreperson during your deliberations. The
foreperson should see to it that your discussions are orderly and that everyone
has a fair chance to be heard.

It is your duty to talk with one another in the jury room and to consider
the views of all the jurors. Each of you must decide the case for yourself, but
only after you have considered the evidence with the other members of the
jury. Feel free to change your mind if you are convinced that your position
should be different. You should all try to agree. But do not give up your
honest beliefs just because the others think differently. Keep an open mind so
that you and your fellow jurors can easily share ideas about the case.

[I will give you a verdict form with questions you must answer. I have
already instructed you on the law that you are to use in answering these
questions. You must follow my instructions and the form carefully. You must
consider each question separately. Please answer the questions in the order
they appear. After you answer a question, the form tells you what to do next. I
will now read the verdict form to you: (read form of verdict)]

[You will be given (state number) forms of verdict, which I shall now
read to you: (read form of verdict(s))]

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 [If you find for (claimant(s)), your verdict will be in the following form:
(read form of verdict)]

[If you find for (defendant(s)), your verdict will be in the following form:
(read form of verdict)]

Your verdict must be unanimous, that is, your verdict must be agreed to
by each of you. When you have finished filling out the form, your foreperson
must write the date and sign it at the bottom and return the verdict to the
bailiff.

If any of you need to communicate with me for any reason, write me a
note and give it to the bailiff. In your note, do not disclose any vote or split or
the reason for the communication.

You may now retire to decide your verdict.

Special Verdict Form

VERDICT

We, the jury, return the following verdict:

1. Was there negligence on the part of defendant Dilbert Driver
which was a legal cause of damage to plaintiff, John Smith?

YES NO

2a. Was there negligence on the part of defendant Mishap
Manufacturing Co. which was a legal cause of damage to plaintiff, John
Smith?

YES NO

2b. Did defendants Mishap Manufacturing Co. and Sharp Sales Co.
place the hay baler on the market with a defect which was a legal cause of
damage to plaintiff, John Smith?

YES NO

3a. Was there negligence on the part of defendant Sharp Sales Co.
which was a legal cause of damage to plaintiff, John Smith?

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 YES NO

3b. Did defendant Sharp Sales Co. place the hay baler on the market
with a defect which was a legal cause of damage to plaintiff, John Smith?

YES NO

If your answers to questions 1-3 and 2 are allboth NO, your verdict is
for the defendants, and you should not proceed further except to date and sign
this verdict form and return it to the courtroom. If your answered YES to any
of to either Qquestions 1-3 or 2 is YES, please answer question 43.

43. Was there negligence on the part of plaintiff, John Smith, which
was a legal cause of his damage?

YES NO

Please answer question 5.

54. State the percentage of any responsibility for plaintiff, John
Smith’s, damages that you chargeapportion to:

Defendant Dilbert Driver (fill in only
if you answered YES to question 1) %

Defendants Mishap Manufacturing Co.
and Sharp Sales Co.
(fill in only if you answered YES to
question 2a and/or question 2b) %

Defendant Sharp Sales Co. (fill in
only if you answered YES to question
3a and/or question 3b) %

Plaintiff, John Smith (fill in only
if you answered YES to question 43) %

Total must be 100%

Please answer question 65.

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 65. What is the total amount (100%) of any damages sustained by
plaintiff, John Smith, and caused by the incident in question?

Total damages of plaintiff, John Smith $

In determining the total amount of damages, do not make any reduction
because of the negligence, if any, of plaintiff, John Smith. If you find plaintiff,
John Smith, negligent in any degree, the court, in entering judgment, will
reduce Smith’s total amount of damages (100%) by the percentage of
negligence which you find is chargeable to John Smith.

SO SAY WE ALL, this day of , 20 .

FOREPERSON

NOTES ON USE

1. This fact pattern assumes that the trial judge has ruled that the
consumer expectations test should be given. For more explanation of whether the
consumer expectations test and/or the risk/benefit test applies, see the Notes on
Use to Instructions 403.7 and 403.15.

2. For a model itemized verdict form, as contemplated by section
768.77, Florida Statutes, refer to Model Verdict Forms 2(a) and 2(b).

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