Plain English Jury Instructions
Section 3. Negligence
Table of Contents
[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.]
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.
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.
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.
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.
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.
Drafting a proper causation
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.,
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.