Vermont Civil Jury Instruction Committee

Plain English Jury Instructions

Section 3.        Negligence


Table of Contents

3.0       Negligence—Standard of Care/Reasonable Person

3.1       Negligence Per Se

3.2       Comparative Negligence

3.3       Factual Causation



3.0     Negligence—Standard of Care/Reasonable Person

            [Name of Plaintiff] claims that [Name of Defendant] was negligent [describe case, e.g. driving auto; maintaining sidewalk; controlling his/her dog; performing legal services etc.].  [Name of Defendant] was negligent if [he/she] was not reasonably careful [summarize activity:  driving the car, etc.].  That does not mean that [Defendant] had to use the greatest possible care, like an unusually cautious person.  Rather, [he/she] had to exercise the same care a reasonable person [or, if professional liability case, reasonable lawyer, accountant etc.] would have done in [his/her] same circumstances, taking into account the foreseeable risk of injury caused by [his/her] actions.  Not every injury is caused by negligence; sometimes accidents happen even when people act reasonably.  [For a professional liability case: not every harm is caused by negligence; sometimes mistakes happen even when people act reasonably.] 

If you find that [Name of Defendant] was negligent when [he/she] [describe action – drove the car, etc.], you must then decide whether that negligence caused [Name of Plaintiff]’s [accident/injury/harm—describe].  [Causation instruction to follow.]


Reporter’s Notes

In professional liability cases or their equivalent (lawyer, accountant, engineer, electrician, etc.), the instruction should be modified as necessary to capture the relevant standard of care, and if the case requires expert testimony to establish the standard of care, the instruction should be modified to inform the jury that it must evaluate the expert evidence to determine the standard of care, and judge defendant’s behavior against it.  Note that negligence encompasses foreseeability of harm, which must be captured in the instruction.  See, e.g., Edson v. Barre Supervisory Union No. 61, 2007 VT 62, ¶ 10.


3.1     Negligence Per Se

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 [name of the 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 [name of 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 [Name of the person] was negligent. 


Reporter’s Notes

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.”


3.2     Comparative Negligence

[Name of Defendants] assert that [name of Plaintiff] Needham was also negligent in her actions.  With regard to this claim, the defendants have the burden of proving its contention.

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.


3.3     Factual Causation

            You must decide whether [Name of Defendant]’s negligence actually caused the [accident and/or Name of Plaintiff’s injuries].  Ask yourselves:  If [Name of Defendant] had not [describe negligent act], would [Name of Plaintiff have avoided injury] [the accident not have occurred]? 

[Name of Defendant] may be liable even if there were also other causes for the [accident/plaintiff’s injuries], but only if you find that [Name of Plaintiff’s injuries/the accident] would not have happened without [Name of Defendant]’s negligence.


Reporter’s Notes

Drafting a proper causation instruction in Vermont may seem like a simple matter, but a study of the cases quickly reveals otherwise. 


First, counsel must ensure that the instruction is modified appropriately to account for contested causation regarding the accident and, if necessary, the injury alleged—in some cases, a jury may be asked to decide whether defendant’s negligence caused both. 


Second, the difference between actual and legal cause—known by lawyers (but not jurors) as proximate cause, is far from clear in our case law.  The Vermont Supreme Court has made various statements regarding proximate causation, at times integrating and at other times distinguishing it from “but for” causation.  The most recent treatment of length is Collins v. Thomas, 2007 VT 92, wherein the Court recognized a distinction and states that both “but for” and proximate cause must separately be shown, because proximate cause is designed to ensure that there is a “sufficient legal nexus” between the negligence and the injury, even when “but for” causation exists.  See id., 2007 VT 92, ¶9; see also Tufts v. Wyand, 148 Vt. 528, 530 (1987) (discussing cause in fact and proximate cause at length in the context of a truck accident with more than one potential proximate cause, and stating “[a] finding of proximate cause depends upon a showing that a negligent act or omission was a cause-in-fact of the alleged injury.”)


The Vermont Supreme Court has, like other courts around the country, stated repeatedly that “[p]roximate cause is the law’s method of keeping the scope of liability for a defendant’s negligence from extending by ever expanding causal links.”  Estate of Sumner v. Department of Soc. & Rehab. Servs., 162 Vt. 628, 629 (1994).  The Court’s opinions in Collins and Tufts both assert that proximate cause is usually left to a jury; however, the Committee’s review of cases elsewhere and of cited treatises indicates that, in most instances, the foreseeability of the harm measured in light of defendant’s actions, whether analyzed as a part of the scope of a defendant’s duty or as proximate causation, is treated as a legal issue for the judge, and is the means by which the “ever expanding causal links” have been kept in check.  See Restatement (Second) of Torts §§ 440-47;  see also Restatement (Third) of Torts: Liability for Physical Harm (Proposed Final Draft No. 1) § 29; Dan B. Dobbs, The Law Of Torts § 182, at 447-48 (2000) (distinguishing proximate cause from cause in fact); W. Page Keeton, Prosser & Keeton On The Law Of Torts § 42 (5th ed.1984).  Whether a duty of care exists has also been treated as a question of law for the court here in Vermont.  Earle v. State, 2006 VT 92, ¶9; Hedges v. Durrance, 2003 VT 63; Powers v. Office of Child Support, 173 Vt. 390 (2002); Rubin v. Town of Poultney, 168 Vt. 624, 625 (1998).


Although cases as recent as Collins assert a difference between factual and legal causation, the Court’s causation analysis in those cases appears to address factual cause only.  Thus, the Committee’s proposed instruction above is a factual cause instruction only.  Counsel are encouraged to review the cases and determine for themselves whether it is appropriate in any given case to separately ask the jury to determine whether a plaintiff’s injury, although factually caused in whole or in part by defendant’s negligence, also naturally flowed from defendant’s negligence.  See Collins, 2007 VT 92, ¶9.