Plain English Jury Instructions
Table of Contents
1.2 Jury
not Bound by Either Party’s Characterization of His/Her Acts or Statements
1.4 Exemplary Damages/ Civil Penalty
1.1 Elements of a Medical Malpractice Claim—Injury Alone Is not Proof of Medical Malpractice
1.2 Elements of a Medical Malpractice Claim
1.3 Statute of Limitations in Medical Malpractice (Generally)
1.6 Justification for Lack of Informed Consent
1.1 Definition of “business invitee,” “licensee,” and “trespasser.”
1.2 Duty of Care owed by Landowner to Trespasser
1.3 Duty of Care owed by Landowner to Licensee
1.4 Business Owner’s Duty to Public/Business Invitees
1.5 Business Owner’s Duty to Inspect for Dangerous Conditions
1.6 Business Invitee’s Duty to Observe Dangerous Activities and
Conditions if they are Obvious
1.8 Business Owner’s Duty to Inspect for Dangerous Conditions
1 Injuries and Property
Damage Caused by a Defective Product
1.1 Liability for Manufacture of a Defective Product
1.2 Defect in Existence at the Time of Sale
2.1 Manufacturer/Seller Duty to Warn
2.2 Manufacturer/Seller Duty to Warn about Obvious or Generally Known Dangers
2.3 Inherently Dangerous Products
2.4 Foreseeable Misuse of Product
3 Cases
based on the design of a product
4 Notes about Product Liability Cases Based on Negligence and Allegations of Breach of Warranty
Unlicensed Cutting of Timber Cutting 13 V.S.A. § 3606
1.2 Wrongful Cutting of Timber
2.1 Factors that Mitigate Damages—Burden of Proof
2.2 Indemnity Claim against Surveyor/Forester/Neighbor
[Name
of plaintiff] claims that [name of defendant]’s [describe the
activity/good/service] was [an unfair act/a deceptive practice/a false
representation]. To prove [his/her] case, [name of plaintiff] has to prove
three things:
1. [Name of defendant] said something,
failed to say something or did something that an ordinary person would decide
was misleading; and
2. [Name of plaintiff] reasonably
interpreted what [name of defendant] did or said; and
3. [Name of defendant]’s misleading
statements or actions were “material”, that is, would be likely to affect an
ordinary person’s decision whether or not to [purchase goods/services/enter
into the lease, pay a particular price, etc.].
Notes
The judge’s description of the third element is
expected to be tailored to fit the facts of the case.
1.2 Jury not Bound by Either Party’s
Characterization of His/Her Acts or Statements
To decide
whether [name of defendant]’s [act/statement/omission] was
[unfair/deceptive/false] and material, look at all the facts surrounding [name
of plaintiff]’s [purchase, lease, contract] to determine if an ordinary person
would have understood that [name of defendant]’s [describe
act/statement/omission] was [unfair/deceptive/false] and whether or not an ordinary person would
have made [name of plaintiff]’s interpretation of [name of defendant]’s
[act/statement/omission] in light of all the evidence that the plaintiff and
defendant presented.
Whether a
statement is deceptive or material is not determined by what [name of
defendant] “meant” by them or by [name of plaintiff]’s interpretation of [name
of defendant]’s words or actions.
Notes
This instruction does not apply, at least
initially, to consumer fraud cases brought under 9 V.S.A. §2457, which arise
from a defendant’s failure to sell goods or services of the nature advertised
or offered, or a defendant’s failure or inability to sell at an advertised
price. In cases arising under §2457, there is a rebuttable presumption of
intent to violate the Consumer Fraud Act by the conduct itself.
In addition, if you find that [name of defendant] committed [an unfair act/deceptive practice/false representation], you may award damages to punish [name of defendant.] These damages to punish the defendant must not exceed three times the value that the plaintiff paid.
These damages for punishment are not intended to compensate [name of plaintiff] for losses, but instead are meant to punish [name of defendant] for [his/her/its] behavior and to stop others from acting similarly in the future.
Carelessness, or even recklessness, by [name of defendant] is not enough to permit an award of punitive damages.You are entitled to award these damages to punish [name of defendant] if you find that [name of defendant’s] actions were intentional and deliberate, causing the type of outrage that is frequently associated with crime. This can be shown by conduct showing personal ill will toward [name of plaintiff] or other evidence of a bad motive.
1.1 Elements Of A Medical Malpractice Claim—Injury Alone Is Not Proof Of Medical Malpractice
In order to for you to decide this case in favor of [name of Plaintiff], [he or she] must prove all three of the following:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by a reasonably skillful, careful, or prudent health care professional engaged in a similar kind of practice under the same or similar circumstances; [1] and
(2) That [name of Defendant] either lacked this degree of knowledge or skill or failed to exercise this degree of care; and
(3) That [name of Defendant]’s lack of knowledge or skill, or [his\her] failure to exercise this degree of care, was a cause of [name of Plaintiff]’s injuries and those injuries would not have happened otherwise.
Sometimes medical treatment is
not successful even though [the doctor] was not at fault. A person might even
get worse under a [doctor’s] care, even though [the doctor] was not at fault.
That is why it is not enough under
1.2 Elements Of A Medical Malpractice Claim.
In order to for you to decide this case in favor of [name of Plaintiff], [he or she] must prove all three of the following:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by a reasonably skillful, careful, or prudent health care professional engaged in a similar kind of practice under the same or similar circumstances;[2] and
(2) That [name of Defendant] either lacked this degree of knowledge or skill or failed to exercise this degree of care; and
(3) That [name of Defendant]’s lack of knowledge or skill, or [his\her] failure to exercise this degree of care, was a cause of [name of Plaintiff]’s injuries and those injuries would not have happened otherwise.
1.3 Statute of Limitations in Medical Malpractice (Generally)
In this case [name of Defendant]
claims that [name of Plaintiff] did not start [his/her] lawsuit in time. We
have a two year time limit in
The question for you to decide is whether [name of Plaintiff] knew or should have known by [insert the last day that the claim could have been brought if the discovery rule does not apply][4] that [he/she] was injured and that [his/her] injury might have been [name of Defendant]’s fault.
[Name of Defendant] has the burden of proving [his/her/its] claim that [name of Plaintiff] did not start [his or her] lawsuit in time.
To prove this case was filed too late, [name of Defendant] must persuade you that , before the date in question, [name of Plaintiff] either knew or should have known each of the following facts:
First, that [he/she] had an injury;
Second, what caused the injury; and
Third, that the injury might be [name of Defendant]’s fault, that is, that [name of Defendant] might be sued for it.
When I say [name of Plaintiff] “knew or should have known” these facts, I mean that [he/she] actually knew them, or a person of ordinary intelligence in [his/her] position would have discovered or known about them.
Notes
“(T)he purpose of a statute
of limitations is to require the bringing of an action within a reasonable time
and thus prevent fraudulent and stale claims from being brought at a time when
witnesses have died or disappeared and documentary evidence has been lost or
destroyed.” Thayer v. Herdt, 155
“Statutes of limitations ...
represent a pervasive legislative judgment that it is unjust to fail to put the
adversary on notice to defend within a specified period of time and that “the
right to be free of stale claims in time comes to prevail over the right to
prosecute them.” Investment Properties, Inc. v. Lyttle, 169
The discovery rule requires
discovery that the particular Defendant might be at fault. The statute of
limitations accrues for purposes of the statute of limitations at that point in
time when it is possible to identify “the basic elements of a cause of action:
an injury caused by the negligence or breach of duty of a particular
defendant.” Earle v. State, 170
In this case, [name of Plaintiff] claims that [name of Defendant] was wrong when [he/she] chose to [describe procedure] in stead of [describe alternative(s).] [Name of Plaintiff] also claims that [name of Defendant] did the [describe procedure] without the skill required of a reasonable doctor under the circumstances. (I’ll get to that issue later, but first let me talk about the part of the claim based on [name of Defendant]’s choice to do one procedure instead of another.)[5]
When there is more than one appropriate action to take in treating a patient, liability depends on whether the doctor exercised reasonable judgment in choosing which action to take.
A doctor is liable if [he/she] fails to act with reasonable care and skill in exercising [his/her] judgment. A doctor is not liable if [he/she] does act with reasonable care and skill in exercising [his/her] judgment.
Notes
This instruction is based on
the decision of the
In Rooney, the Vermont
Supreme Court held that it was reversible error to instruct a jury in a medical
malpractice case that a doctor is not liable for medical malpractice if the
claimed error was a “mere error of judgment, provided she exercises reasonable
judgment in bringing to bear the level of knowledge, skill and care” required
by the medical malpractice statute. According to the Vermont Supreme Court,
this was tantamount to instructing the jury that a doctor who did not live up
to the applicable standard of care was not liable if she nevertheless used her
best judgment and was reasonably careful in the exercise of whatever skill or
knowledge she did posses, however limited.
The standard of care is an
objective standard. It is reversible error to permit the jury to consider the
standard of care to be a subjective standard by giving an ambiguous instruction
that suggests that a doctor is not liable for a mere error of judgment.
In a case where the jury must
pass judgment on both the choice made and the degree of skill used by the
doctor after the choice of procedures was made, the jury must be given more
than this instruction. The jury must also be given an instruction about the
standard of care in performing the procedure chosen among the competing
alternatives.
In this case, [name of plaintiff] claims [he/she] was harmed because [name of defendant] performed a [ type of treatment/procedure] without first giving [him/her] enough information about the risks of, benefits of and alternatives to the [treatment/procedure].
A [describe defendant’s profession/specialty] has to give [his/her/its]
patient enough information about the treatment before it starts so that the
patient can make an informed decision whether or not to have the treatment. If
not, then [he/she/it] may be responsible for harm to the patient even though
the medical treatment itself was done properly.
To prevail on this claim, [name of Plaintiff] must prove all three of the
following:
(1) [Name
of defendant] failed to tell [name of plaintiff] enough about the risks of,
benefits of and alternatives to the [treatment/ procedure], and
(2) If
[name of plaintiff], had known about these risks, benefits and alternatives,
[he/she] probably would not have agreed to have the [treatment/procedure], and
(3) The [treatment/procedure]
caused [name of plaintiff]’s harm.
If Plaintiff has proved all of these, then your
verdict must be in [his/her] favor. If not, then your verdict must be for [name
of Defendant.].
[Alternative to preceding paragraph if justification is an issue] If you
decide that [name of Plaintiff] has proved all of these, then you must also
decide whether [name of defendant] was excused from providing the information
to [name of plaintiff.] [Insert or read to the jury the instruction on
JUSTIFICATION FOR LACK OF INFORMED CONSENT.] If [name of Defendant] was not
required to give the information, your verdict must be in [his/her] favor.
Otherwise, your verdict must be for [name of Plaintiff.]
1.6 Justification for Lack of Informed
Consent
[Optional introductory paragraph: If you decide that [name of defendant]
did not tell [name of plaintiff] enough about the [describe the treatment or
procedure] you have to decide whether or not [name of defendant] was required
to give the information before starting the [describe the treatment or
procedure.]]
In
[1 . . . about the risks that are widely known and not substantial; or
[2 . . . if [name of plaintiff] said beforehand
that [he/she] wanted the [describe treatment/procedure] regardless of the
dangers involved; or]
[3 . . . if [name of plaintiff] told [name of
defendant] that [he/she] did not want to be told about the risks of the
[treatment/procedure]; or about other options; or]
[4
. . . if, under the circumstances, it was not possible for [name of defendant]
to get the necessary consent before
performing the [treatment/procedure]; or
[5 . . . if a person in [name of Plaintiff]’s
position would have had the [describe the treatment or procedure] even if [name
of Defendant] had explained all of the risks beforehand.]
A person who breaks the law is negligent unless there is a valid excuse. In this case, the law which applies is [specific statutory provision.]
You must first decide whether one of the parties disobeyed this law. If so, you must decide whether that person had a valid excuse. The excuses which you may consider are [as appropriate:]
[A. a health condition which made it impossible to follow the law;
[B. lack of any opportunity to know of the violation;
[C. impossibility of obeying the law despite every possible effort;
[D. an emergency;
[E. a greater hazard if [the person] obeyed the law than if not.
If you decide
that a party disobeyed the law and did not have a valid excuse, you should find
that [ ] was negligent.
Note
This charge
follows the Restatement (Second) of
Torts, §§ 288 A–C (1965). It abandons the "bursting bubble"
presumption in favor of a negligence per se standard in which the violation
establishes breach of a duty of care unless an excuse is present. See Martin v. Herzog, 126 N.E. 814, 814-15
(N.Y. 1920) (Cardozo, J.)
We think the unexcused omission of the statutory signals
is more than some evidence of negligence. It is negligence in itself. Lights
are intended for the guidance and protection of other travelers on the highway.
By the very terms of the hypothesis, to omit, willfully or heedlessly, the
safeguards prescribed by law for the benefit of another that he may be
preserved in life or limb, is to fall short of the standard of diligence to
which those who live in organized society are under a duty to conform. That, we
think, is now the established rule in this state.
(citation
omitted)).
The proposed charge also uses the term "negligence" in place of the more precisely accurate term "breach of duty of care." The statutory violation establishes only a breach of a duty and requires proof of proximate cause as well. The committee believed that using the term "negligence" in this context was more likely to be understood by the jury than "breach of duty."
[Name of Defendants] assert that [name of Plaintiff]
As any person, [name of Plaintiff] had a duty to exercise reasonable care for [his/her] own safety. Reasonable care is not the greatest possible care, such as might be employed by an unusually cautious person. Rather, it is ordinary care, given all the circumstances existing at the time and place of the accident. Here, the conduct of [name of Plaintiff] must be measured against that of a reasonable [Insert relevant descriptor, e.g., ten year old child, driver, adult, plumber, etc.].
If you conclude that [name of Plaintiff] was negligent, you must then go on to consider whether any such negligence proximately caused any harm she subsequently suffered. [Insert reference to proximate cause instruction].
If you find that [name of Plaintiff] was negligent, and that such negligence proximately caused harm, then you must go on to compare any negligence attributed to her with any negligence you have attributed to the defendants. To do so, you must assign a percentage to the causal negligence plaintiff on the one hand and defendants on the other. The percentages you assign must add up to 100 percent. Let me suggest two hypothetical examples:
Plaintiff 15% 60%
Defendant 85% 40%
Total negligence 100% 100%
Of course, these examples are only for illustrative purposes.
If you conclude that the defendant or plaintiffs were causally negligent, and that any negligence attributed to [name of Plaintiff] is 50% or less, then you should go on to consider damages, but you will reduce any damage award by the percentage of negligence you have attributed to [name of Plaintiff]. If you should find, however, that [name of Plaintiff] was more than 50% negligent, then you should return a verdict for defendants, and you should not go on to consider damages.
The acts or omissions of [name of Plaintiff] may be relevant, but do not constitute comparative negligence to be considered under this section. They may be considered with regard to causation—whether any failure to warn by defendants actually caused this accident.
1.1 Definition of “business invitee,” “licensee,” and “trespasser.”
A “business invitee” is someone who entered or remained on a person’s property for a business purpose.
A “licensee” is someone who came onto or remained on someone’s property for his own reasons and for no benefit to the owner of the property. A “trespasser” is someone who came onto or remained on someone’s property without permission or without a legal reason to be there.
Notes
The definition of “business
invitee” comes from Ball v. Melsur Corporation, 161
The definition of “licensee”
comes from Cameron v. Abaitell, 127
The definition of
“trespasser” is from the Restatement
(Second) of Torts § 329 (1965) and cited most recently in Baisley v.
Mississquoi Cemetery Association, 167
There are few cases in which the issue of the Plaintiff’s status as a licensee, invitee or trespasser was submitted to the jury. This question is usually decided as a matter of law by the judge. The intent of this instruction is to provide suggested wording should an instruction be needed on the issue of a Plaintiff’s status on the property of another, not to suggest that it be given in every case.
1.2 Duty of Care owed by Landowner to
Trespasser
If the Plaintiff was a trespasser, the Defendant’s only duty was avoid willful or wanton misconduct that might cause harm to Plaintiff. “Willful and wanton conduct” refers to intentional conduct that the Defendant knows, or should have known, has a tendency to injure someone.
On the other hand, a trespasser is not an outlaw. The owner of property may become liable to a trespasser by an act done in his presence if it is clear that the owner should have foreseen danger to the trespasser. Also, if the trespasser’s presence was known or should reasonably have been anticipated, the landowner has a duty to act with reasonable care towards the trespasser.
Notes
See Baisley v. Missisquoi
Cemetery Association, 167
The second sentence comes
from Lavallee v. Pratt, 122
Vermont has not adopted the
doctrine of attractive nuisance, so the absence of duty applies to both adult
and child trespassers. Baisley v.
The term “trespasser” is
defined in the first premises liability instruction.
1.3 Duty of Care owed by Landowner to
Licensee
If the Plaintiff was a licensee at the time [he or she] was injured, then the Defendant is liable if the Plaintiff was injured because
[of a hidden danger on the premises that the Defendant did not remove, repair or warn the Plaintiff about.] Or, alternative wording if appropriate: [the Defendant affirmatively acted to cause harm to the Plaintiff.]
Notes
For the source of this
instruction, see Cameron v. Abaitell, 127
The concept of
"affirmative" or "active" negligence has been superceded in
modern practice, except, perhaps in cases in which the Plaintiff seeks punitive
damages.
The term “licensee” is defined in the first premises liability instruction.
1.4 Business Owner’s Duty to Public/Business
Invitees
The Defendant[6] owes a duty to the public to see that the [Judge describes the parts of the premises ordinarily used by invitees at issue in this case[7]] are kept in a reasonably safe condition. Therefore, the Defendant is responsible for injuries that are caused by conditions that the Defendant actually knew existed, unless the dangers were obvious. The Defendant is also responsible for injuries caused by a condition that existed long enough so that the Defendant should have known about it and should have known that it could be unreasonably dangerous.[8]
Notes
Generally Forcier v.
Grand Union, 390
The first sentence of the
instruction is supported in concept by a number of
1.5 Business
Owner’s Duty to Inspect for Dangerous Conditions
The Defendant[9] must take reasonable care to know the condition of the [judge describes the part of the premises where the accident occurred.[10]] Also, if the Defendant discovers a dangerous condition, the Defendant must either take reasonable steps to make it safe or must sufficiently warn about it for a reasonable length of time until it can be fixed.
Notes
Forcier v. Grand Union, 390
Vt. 389 (1970) (opening premises to public carries with it some measure of
assurance of safety, which the owner make good, by active care, if necessary);
see also Smith v. Monmaney & Spano, 127 Vt. 585 (1969) (duty extends
to danger incident to accumulations of snow and ice).
1.6 Business
Invitee’s Duty to Observe Dangerous Activities and Conditions if they are
Obvious
The Defendant[11] is not liable to the Plaintiff if [he or she] was injured by something dangerous on the premises that [he or she] knew about or that would have been obvious to a reasonable person in [his or her] situation.
Notes
See Wall v. A. N.
Deringer, 119
One problem with finding
support for this instruction in
The place where [name of Plaintiff] was injured in [name of Defendant store] was a place that displayed [describe merchandise] for the customers to handle themselves and select what they wanted to buy. When a store owner uses this kind of self-service marketing, the store must take reasonable steps to protect the customers from danger that might be expected from this method of doing business.
If the Plaintiff persuades you that [he or she] was injured because of a danger created by the self-service marketing of [describe the goods,] then the store is liable unless the store used reasonable measures to discover and remove from the floor debris that may have been knocked to the floor [or insert other description of the kind of care that the Defendant might have adopted to protect customers from foreseeable dangers under the circumstances presented in the litigation.]
Notes
This instruction should be
given in those cases where the premises owner displays goods for sale in a
self-service format—such as in the produce section of a supermarket.
The instruction modifies the instruction about the premises owner’s duty to inspect the premises and either to warn of dangers or take action to make the dangerous condition safe.
1.8 Business
Owner’s Duty to Inspect for Dangerous Conditions
The Defendant must take reasonable care to know the condition of the [judge describes the part of the premises where the accident occurred.] Also, if the Defendant discovers a dangerous condition, the Defendant must either take reasonable steps to make it safe or must sufficiently warn about it for a reasonable length of time until it can be fixed.
Notes
The instruction modifies the
Plaintiff’s burden of proof in cases arising from hazards created by
self-service marketing that creates a foreseeable risk of danger to customers.
The instruction comes from Maleney
v. Hannaford Bros. Co., 2004 VT 76. The opinion affirms the principle that
the Plaintiff has the burden of making out a prima facie case of negligence in
a premises liability action arising from a danger created by the practice of
displaying and selling goods through self-service operations that create a foreseeable
risk of danger to customers from spilled merchandise, such as in the produce
section of a supermarket.
In ordinary premises
liability cases, the Plaintiff’s burden of proof includes the burden of coming
forward with evidence from which the jury could find that the store employees
either knew of the specific dangerous condition that caused the Plaintiff’s
injury, or that the condition existed for such a period of time that the store
employees should have known about it. In cases arising from dangerous
conditions created by self-service marketing, however, the Plaintiff is
relieved of this burden and, in fact, after the Plaintiff otherwise makes out a
prima facie case, the burden shifts to the Defendant to prove that it took
reasonable steps to prevent the foreseeable risk of harm posed by the
self-service display.
The opinion reiterates that the Plaintiff always bears the ultimate burden of proof that the Defendant was negligent in failing to respond adequately to a foreseeable hazard. The opinion also cautions that it is for the trial court, in considering a Motion for Directed Verdict, to determine if the Defendant has met its burden of producing evidence, as opposed to its burden of proof, which remains a jury question. The jury is not to be instructed about a shifting burden of proof.
1 Injuries and property damage caused by
a defective product
1.1 Liability
for Manufacture of a Defective Product
A
[“manufacturer,” “distributor,” or a “seller,” as the case may be] of a product
such as [identify product] is liable for harm to a person or property if the
product was defective and if the defective product caused the harm [and if it
reaches a user without undergoing substantial change].
Notes
Paquette
v. Deere & Co., 168 Vt. 268 (1998); Webb v. Navistar Int'l Transp.
Corp., 166 Vt. 119 (1996); Zaleski v. Joyce, 133 Vt. 150 (1975); see
also Restatement (Second) of Torts §
402A(1) (1965) (one who sells any product in defective condition unreasonably
dangerous to user or user's property is “subject to liability for physical harm
thereby caused to the ultimate user ... or to his property.”)
Note that the Restatement (Third) of Torts–Product Liability
§ 1 (1998)(“One who is engaged in the business of
selling or otherwise distributing products who sells or distributes a defective
product is subject to liability for harm to person or property caused by the
defect”) makes no mention whether or not the “harm” must be “physical” in order
to be actionable.
The
last portion of this instruction addresses the requirement that the product
reach the user without substantial change. This is to be added to the
instructions if the evidence requires discussion of this affirmative defense.
1.2 Defect in
Existence at the Time of
A product is defective when, at the time it is [“sold,”
“delivered” or “distributed” as the case may be] it [“has a manufacturing
defect” “has a design defect” “doesn’t have adequate warnings/instruction” as
the case may be].
Notes
This
instruction comes from § 2 of the Restatement
(Third) of Torts–Product Liability § 1 (1998).
A
defective product is one that is more dangerous than an ordinary consumer, with
the ordinary knowledge common in the community about the characteristics of
such a product, would expect.
Notes
This
definition of product defect comes from Webb
v. Navistar Intern. Transp. Corp., 166
This
formulation of product defect does not reflect the categories of product
defects recognized in the Restatement
(Third) of Torts–Product Liability § 1 (1998) at § 2. The third Restatement appears to impose strict
liability in the case of manufacturing defects, while conditioning liability on
foreseeability in the case of design defects and cases involving inadequate
instructions or warnings.
2.1 Manufacturer/Seller
Duty to Warn
[Name
of Defendant] has a duty to warn of known dangers regarding [name of product]
if the product is more dangerous that an ordinary person would expect. An
“ordinary person” is a person with the ordinary and common knowledge of the
community about the product's characteristics. In order to prove [“his” or
“her”] claim, the plaintiff must show that the manufacturer had a duty to warn,
that the failure to warn made the product unreasonably dangerous and therefore
defective, and that the lack of a warning was a substantial cause of the
injury.
Notes
Town
of Bridport v. Sterling Clark Lurton Corp., 166 Vt. 304 (Vt. 1997); Ostrowski
v. Hydra-Tool Corp., 144 Vt. 305, 308, 479 A.2d 126, 127 (1984); Menard
v. Newhall, 135 Vt. 53, 55, 373 A.2d 505, 507 (1977)); see also McCullock
v. H.B. Fuller Co., 61 F.3d 1038, 1044–45 (2d Cir.1995) (outlining
plaintiff's burden in failure to warn case under Vermont law); Restatement (Second) of Torts § 388
(1965).
Arguably this instruction, which obligates the Defendant to
warn of “known dangers,” imposes a higher degree of liability on a Defendant
than is contemplated by the Restatement
(Third) of Torts—Product Liability § 1 (1998). The Third Restatement imposes an obligation
to warn of “foreseeable risks of harm,” where the lack of warnings makes the
product “not reasonably safe.”
2.2 Manufacturer/Seller
Duty to Warn about Obvious or Generally Known Dangers
[Describe
product] is not “unreasonably dangerous” if the danger of its [“use” or
“misuse,” as the case may be] was open and obvious or was understood by [name
of Plaintiff] without a warning by the Defendant.
Notes
Farnham v. Bombardier, Inc., 161
The facts of this case are more like those in Menard v. Newhall, 135
See also Hylton v.
John Deere Co., 802 F.2d 1011, 1015 (8th Cir.1986) (where danger of climbing
into bin of combine was open and obvious, design of combine not dangerous
beyond contemplation of ordinary consumer); Restatement,
supra, § 402A comment i.
The concept that there is no liability for
failing to warn of obvious or generally known dangers is retained in the Restatement (Third) of Torts–Product Liability
§ 1 (1998). See Comment j. Warning about a commonly understood danger does not
provide an additional measure of safety and may actually have deleterious
consequences.
There are special considerations that apply
to the use of products by sophisticated Purchasers. The duty to warn does not
necessarily apply when the manufacturer supplies a product to a “sophisticated
purchaser.” A sophisticated purchaser is one who the manufacturer knows or
reasonably believes is aware of the risk of danger. There is no duty to warn
the purchaser or its employees about the risks of harm unless the Defendant
knows or has reason to believe that the required warning will fail to reach the
eventual users of the product. See, Restatement
(Second) of Torts § 388 (1965 and App.).
2.3 Inherently
Dangerous Products
The
Defendant’s duty depends on the dangers posed by the product. [Name of
Defendant] owes a duty that is directly related to how dangerous the product
is. That is to say, the more dangerous the product, the more care the defendant
must use.
Lewis v. Vermont Gas Corp., 121
2.4 Foreseeable
Misuse of Product
Normal
use of product includes all reasonably foreseeable uses, including foreseeable
misuse.
Notes
While
not specifically adopted by the
The
concept is retained in § 2 of the Restatement
(Third) of Torts–Product Liability § 1 (1998) at comment m. Defendants
are not required to foresee and take precautions against every conceivable mode
of use, misuse or abuse to which their products might be put. On the other
hand, once a Plaintiff establishes that the product was put to a reasonably
foreseeable use and that risks of injury are “generally known to experts in the
field,” then it is not unfair to charge a manufacturer with knowledge of such
generally known or knowable risks.
A
manufacturer’s duty to warn extends not only to purchasers, but also to
foreseeable end users [such as “purchaser’s employees” or “bystanders” or
“purchasers family members,” etc., as the case may be].
Ostrowski v. Hydra-Tool Corporation, 144
3 Cases based on the design of a product
A
manufacturer must use reasonable care, skill, and effort when it designs its
product. A manufacturer must reasonably think about the (“way,” “place,” etc. as
the case may be) in which the product is normally used. The manufacturer must
design the product to minimize those risks that can be foreseen from using the
product, but the manufacturer is not required to design a product that is
foolproof or incapable of producing injury.
To decide whether [name of Plaintiff] has proved that [name
of Defendant] failed to act reasonably in designing [identify product], you may
consider [instruct on as many or as few as is justified by the evidence]:
·
the purpose of the product;
·
its usefulness and
desirability;
·
the likelihood of
injury from its ordinary use;
·
the nature and
severity of likely injury;
·
the obviousness of
danger in the ordinary use of the product;
·
the ability to
eliminate the danger without making the product less useful, or creating other
risks to the user;
·
the availability of a
feasible alternative design;
·
the cost of any
alternative design; and
·
the likelihood of
consumer acceptance of a product with an alternative design.
You can decide which factors apply and the importance of
each.
Notes
The
source of this instruction is the Restatement
(Second) of Torts §§ 395, 398 (1965 & App.). Although a factor may
be listed above, it does not necessarily mean that it should be used in every
charge on negligent design. Each of the factors should be considered for
instructions on a case by case basis in accordance with the evidence presented
at trial.
4 Notes about
Product Liability Cases Based on Negligence and Allegations of Breach of
Warranty
While
lawyers representing plaintiffs in product liability cases in
The doctrine
of strict products liability was first developed by the California Supreme
Court in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27
Cal.Rptr. 697, 377 P.2d 897, 901 (1963), and then set forth in the Restatement
(Second) of Torts ' 402A (1965). This doctrine was created in response to the
limitations of traditional negligence and warranty actions for injuries caused
by defective consumer goods. Butaud
v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42, 44 (
Negligence
and breach of warranty jury instructions are addressed separately in another
section.
[Name of Plaintiff] claims that trees on her land were
cut by loggers, that she lost the value of the trees as a result and that she
had to make repairs to the land after the logging operations.
[Name of Defendant logger] denies that he was at fault
for logging in the wrong place [or, if applicable, “claims that he had a right
to cut the timber where and when he did.”]
Alternatively, [Name of Defendant logger]
admits that he cut trees on [name of Plaintiff’s] land, but he disputes the
damage claims and raise a claim of his own – that any cutting on her land was
done by mistake. [Name of Defendant logger] claims that any cutting on the
[name of Plaintiff’s] land was because [name of Defendant surveyor/forester]
was negligent in giving him directions as to where to cut timber, and that
[name of Defendant surveyor/forester] should have to pay him for any damages
you find might have been caused to [name of Plaintiff] because the trees were
cut.
1.2 Wrongful
Cutting of Timber
A person who cuts trees or wood belonging to another,
is liable for three times the damages caused.[12]
This part of the instructions applies only to the person who cut the trees, not
to the landowner who contracted with person who cut the trees.
[For cases arising from the
commercial harvesting of timber:] The “value of whatever was cut” is the “stumpage” or the amount a
logger would pay for the opportunity to harvest the trees. It does not include
the cost of cutting, limbing, skidding and transporting each log to the mill.
If some or all of the wood was cordwood, firewood or pulpwood, that value is
measured before cutting, not after it has been cut up, split and trucked into
town.
[For cases arising from the cutting of trees with
ornamental or decorative value, alternate 1:] The “value of whatever was cut”
is measured by the fair market value of the property before the tree(s) were
cut compared to the fair market value of the property after the tree(s)s were
cut.
[For cases arising from the cutting of trees with
ornamental or decorative value, alternate 2:] The “value of whatever was cut”
is measured by the cost to replace the tree(s).
In addition to the value of wood, damages also include
the cost of fixing up the land after the job, such as preventing erosion or
cleaning up the landing or roads or brush.
Notes
There are three kinds of
damages from the wrongful cutting of trees. The judge has to decide in each
case which of the three are appropriate.
The damages that are trebled
include the value of the trees cut and associated costs such are the clean up
of tops, limbs, slash, damage to the land caused by machinery, erosion, etc.
The statute that provides for
treble damages for wrongful cutting of trees is 13 V.S.A. §3606. The basis of
liability under this statute is the tort of trespass. Thus a Defendant might be
found liable no matter what degree of care he or she used to avoid cutting
timber that belonged to another. There is simply no requirement that a
Defendant be proved negligent as a predicate to recovery. Masters v. Stone,
134
The statue has antecedents in
Plaintiff is only required to
prove that defendant cut timber on his land without leave, and on such showing
he is entitled to recover treble damages.
The trial court was entitled
to rely on the property owner's testimony as to the replacement value of the
two shade trees plaintiffs cut down in calculating damages. Pion v. Bean,
2003 VT 79.
As a general rule where suit
is brought to recover damages for injury to realty caused by cutting of trees
and recovery of value of the trees as items of personal property separate and
apart from land itself would not give plaintiff his full damage; the true
measure of damage is difference between value of land before injury and its
value immediately thereafter. O'Brien v. Dewey, 120
Difference in the value of the land, before and after
the trespass, is not the exclusive measure of damage under this section. It is
proper to measure damages under this section by reference to value of the cut
timber as marketable logs, together with the cost of removing tops and limbs. Lavalette v. Noyes, 124
2.1 Factors that
Mitigate Damages—Burden of Proof
[Name of defendant logger,] however, can reduce the
three-times-multiplier to only the actual damages, by showing that his wrongful
cutting was the result of a good faith mistake.
To gain the benefit of this reduction by mistake, a
logger must persuade you that he acted through a mistake which was not the
result of his own lack of care or misconduct. That means a mistake that any
reasonably careful logger would make under similar circumstances, or that he
had good reason to believe he was authorized to cut, even though it turns out
he was not.
Notes
Burden was on defendant to
establish defense that he cut timber through mistake or had good reason to
believe that he had right to cut it. Parker v. Cone, 104
2.2 Indemnity
Claim against Surveyor/Forester/Neighbor
[Name of Defendant logger] claims that his logging in
the wrong place was solely the fault of [name of Defendant
surveyor/forester/neighbor who contracted, as the case may be.] If you find
that [name of Defendant logger] exercised reasonable care to determine the
boundaries of the land within which he was authorized to cut, but even though
he was careful, he cut on [name of Plaintiff’s] land solely because of [bad
directions, bad marking of boundaries, bad survey—as the case may be] of [name
of Defendant surveyor/forester,] then [name of Defendant logger] is entitled to
have [name of Defendant surveyor/forester] pay all of the damages that you find
[name of Plaintiff] is entitled to by the cutting of trees from her property.
But if [name of Defendant logger] was careless in any respect about
ascertaining the boundaries within which he was supposed to cut, or even a
little at fault for cutting on the wrong property, then [name of Defendant
logger] is not entitled to have [name of Defendant surveyor/forester] pay the
amount that you award.
If [name of Defendant] caused the loggers to cut trees on [name of Plaintiff’s] property by giving [wrong directions, bad marking of boundaries, bad survey – as the case may be], then [name of Defendant] is liable for the harm that was caused by the cutting of the trees. This is so even if he or she did not intend to mislead or did not intend to cause cutting of trees from [name of Plaintiff’s] land.
To find [name of Defendant] responsible, however, you must be persuaded that [he or she] gave incorrect directions, which caused the loggers to cut on [name of Plaintiff’s] property. If [name of Defendant] gave no directions at all, or provided a map which was misinterpreted by a logger, that is not sufficient to make [him or her] responsible for trespass.
Notes
This instruction is based on
the Restatement (Second) of Torts
§157, which describes vicarious liability for the tort of trespass. Comment j
addresses the liability of a person who causes a person to trespass on the land
of another:
j. Causing entry of a third parson. If, by any act of his, the actor intentionally causes a third person to enter land, he is as fully liable as though he himself enters. Thus, if the actor has commanded or requested a third person to enter land in the possession of another, the actor is responsible for the third person’s entry if it be a trespass. This is an application of the general principle that one who intentionally causes another to do an act is under the same liability as though he himself does the act in question.
[1] If the
issue has not been raised during the trial, add the following language:
“regardless whether or not the (“doctor” or other description of the Defendant)
is practicing in the State of
[2] If the
issue of a local standard of care has not been raised during the trial, add the
following language: “regardless whether or not the (“doctor” or other
description of the Defendant) is practicing in the State of
[3] If it is deemed necessary, the Judge might also tell the jury that, “The reason for the time limit is to keep old lawsuits from being brought at a time when witnesses have died or disappeared and documentary evidence has been lost or destroyed.”
[4] The date will be the day after the last day that the civil action could have been commenced.
[5] The part in parentheses might not be used in every case.
[6] By this point in the case, presumably the Judge has decided as a matter of law that the Defendant is a person in possession of the premises, that the premises were open to the public and that the place on which the accident occurred was a part of the premises open to the public. If these are facts in dispute that will be submitted to the jury, then the jury should be instructed using a version of the first premises liability instruction about the need to determine the status of the plaintiff.
[7] For example, “the produce aisle of the grocery store” or “the entrance to the apartment.”
[8] A Defendant might have reason to know that a condition poses an unreasonable risk of injury to a Plaintiff for a number of reasons, including the length of time the condition existed, other accidents caused by the same or similar conditions, the fact that the condition violates an applicable standard or code, or the likelihood of injury.
[9] By this point in the case, presumably the Judge has decided as a matter of law that the Defendant is a person in possession of the premises, that the premises were open to the public and that the place on which the accident occurred was a part of the premises open to the public. If these are facts in dispute that will be submitted to the jury, then the jury should be appropriately instructed on the law to be applied to such a dispute. These matters are not addressed in this instruction.
[10] For example, “the entrance to the building,” “the sidewalk in front of the store,” “the produce aisle in the grocery store,” etc.
[11] By this point in the case, presumably the Judge has decided as a matter of law that the Defendant is a person in possession of the premises, that the premises were open to the public and that the place on which the accident occurred was a part of the premises open to the public. If these are facts in dispute that will be submitted to the jury, then the jury should be appropriately instructed on the law to be applied to such a dispute. These matters are not addressed in this instruction.
[12] Damages are described in a later instruction.