35 Fla. L. Weekly S149a
35 So. 3d 666
NOT FINAL VERSION OF OPINION
Subsequent Changes at 35 Fla. L. Weekly S425a
Standard jury instructions — Civil — Amendments — Reorganization and modification — Updating of wording — Substantive amendments to various instructions — Proposed amendment to instruction on greater weight of the evidence rejected and, instead, the substance of former standard civil jury instruction 3.9 is reauthorized
IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES — REPORT NO. 09-01 (REORGANIZATION OF THE CIVIL JURY INSTRUCTIONS). Supreme Court of Florida. Case No. SC09-284. IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES — REPORT NO. 09-02 (GREATER WEIGHT OF THE EVIDENCE, NEGLIGENCE, BELIEVABILITY OF WITNESSES AND CLOSING INSTRUCTIONS). Case No. SC09-296. IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES — REPORT NO. 09-03 (JURY DEADLOCKED). Case No. SC09-299. IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES — REPORT NO. 09-04 (BURDEN OF PROOF ON DEFENSE ISSUES). Case No. SC09-300. IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES — REPORT NO. 09-05 (MEDICAL MALPRACTICE INSURER’S BAD FAITH FAILURE TO SETTLE). Case No. SC09-301. IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES — REPORT NO. 09-06 (PROBABLE CAUSE — MALICIOUS PROSECUTION AND FALSE IMPRISONMENT). Case No. SC09-302. IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES — REPORT NO. 09-07 (INTENTIONAL TORT EXCEPTION TO EXCLUSIVE REMEDY OF WORKERS’ COMPENSATION). Case No. SC09-303. IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES — REPORT NO. 09-08 (PROFESSIONAL NEGLIGENCE). Case No. SC09-304. IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES — REPORT NO. 09-09 (PUNITIVE DAMAGES). Case No. SC09-306. March 4, 2010. Nine Cases Consolidated: Original Proceeding — Standard Jury Instructions in Civil Cases Committee. Counsel: Tracy Raffles Gunn, Chair, Supreme Court Committee on Standard Jury Instructions in Civil Cases, of Gunn Appellate Practice, Tampa, Judge James M. Barton, II, Vice Chair, Thirteenth Judicial Circuit, Tampa, Larry S. Stewart, Chair, Book Reorganization Subcommittee, Miami, Judge Ralph Artigliere, Chair, Errors and Omissions Subcommittee, Blue Ridge, Georgia, Joseph H. Lang, Jr., Chair, Supreme Court Filing Subcommittee, of Carlton Fields, P.A., Tampa, and Judge Lucy C. Brown, Chair, Plain English Subcommittee, Fifteenth Judicial Circuit, West Palm Beach, John F. Harkness, Jr., Executive Director, and Jodi Beth Jennings, Bar Liaison, The Florida Bar, Tallahassee, for Petitioner.
(PER CURIA M.) The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Committee) has submitted proposed changes to the standard civil jury instructions and asks that the Court authorize the instructions for publication and use.1 We have jurisdiction. See art. V, § 2(a), Fla. Const.BACKGROUND
In 2006, the Committee embarked on the most comprehensive review and evaluation of Florida’s standard civil jury instructions since the first publication in 1967. Previously, the Committee has maintained the original numbering system and either assigned the next available number or added new instructions to a “Miscellaneous” section when seeking authorization for additional instructions by the Court. In addition, because the book has only been available in paper format in the past, the Committee had attempted to minimize the number of pages to be republished by using cross-references and directing users to insert other instructions in various locations.
As a result of the manner in which revisions of the standard civil jury instructions have been perfected over the years, use of the current book has become rather difficult. Following extensive review and revision, the Committee submitted its report in case number SC 09-284, proposing the reorganization of the standard civil jury instructions and amendments limited to plain English modifications to make the instructions easier to understand. The Committee also submitted a number of reports that extended beyond reorganizing and rewording the civil instructions, seeking amendment of substantive aspects of some standard civil instructions under the reorganization format.2 The Committee presented the book reorganization to the bench and bar in a notice published in The Florida Bar News on April 15, 2008, inviting comment and identifying the web address on The Florida Bar’s website for access to the entire reformatted book. Proposed amendments to specific instructions were published separately. As discussed below, we authorize the Committee’s proposals with the exception of the proposed modification to the standard civil instruction defining “greater weight of the evidence.”DISCUSSION
1. Reorganization and Updating Wording
Reorganization of the standard civil jury instructions is based upon the delineation of separate sections, which include oaths, preliminary instructions, evidence instructions, substantive instructions, damages, general substantive instructions, closing instructions, and supplemental matters. Each of the substantive areas — i.e., General Negligence; Professional Negligence; Products Liability;3 Insurer’s Bad Faith; Defamation; Malicious Prosecution; False Imprisonment; Tortious Interference with Business Relationships; Misrepresentation; Outrageous Conduct Causing Severe Emotional Distress; Civil Theft; Contribution Among Tortfeasors; Claim for Personal Injury Protection Insurance (PIP) Benefits (Medical Benefits Only); Intentional Tort as an Exception to Exclusive Remedy of Workers’ Compensation; and Unlawful Retaliation4 — are organized into separate sections and include pertinent standard instructions which are reproduced within each substantive section or, where necessary, tailored to the specific substantive area.
The basic “template” used in the reorganization of the substantive law instructions includes an introduction instruction, an instruction with a simple summary of the case, instructions with the rules, and instructions on the issues with the applicable burden of proof. The substantive sections generally include instructions covering the following areas: Introduction; Summary of Claims; Greater Weight of the Evidence; Clear and Convincing Evidence; Legal Cause; Preemptive Charges; Burden of Proof on Preliminary Issues; Issues on Claim (also designated Issues on Main Claim or Issues on Plaintiff’s Claim); Burden of Proof (also designated Burden of Proof on Main Claim or Burden of Proof on Claim); Defense Issues; and Burden of Proof on Defense Issues.
The amended standard civil instructions also include a number of plain language modifications which attempt to simplify the instructions to increase juror understanding, by changing nonessential “legalese” to its plain English equivalent.” For example, the following substitutions are included in the amended instructions: “before/after” for “prior/subsequent”; “like” for “same”; “the” for “such” ; “amount” for “degree”; “incident in this case” for “incident complained of”; “decide” for” “determine”; “was caused” by” for “chargeable to”; and “because” for “on account of.”
Under the amended instructions, in the exercise of its discretion, the trial court may choose to instruct the jury at the beginning of the case as to substantive matters, prior to the introduction of evidence. To that end, we authorize introductory instructions under section 200 and initial instructions for each substantive section. We reiterate that the decision as to the timing of instructing the jury rests solely with the trial judge.
The amended instructions also conform with the Court’s prior amendments to various civil rules of court and its authorization for publication and use of a number of standard civil jury instructions upon review of recommendations made by the Jury Innovation Committee. See In re Amends. to the Fla. Rules of Civil Proc., 967 So. 2d 178 (Fla. 2007).5
Finally, with regard to the reorganization and modification of the standard civil jury instructions, we decline t o authorize the proposal to amend the definition of “greater weight of the evidence.” Instead, we reauthorize the” substance of former standard civil jury instruction 3.9, “Greater Weight of the Evidence,” which is now designated as, or included in, instructions 401.3, 402.3, 404.3, 405.3, 406.3, 407.3, 408.3, 409.3, 410.3, 412.5, 413.3, 503.1b(1), b(2), b(3), b(4), and c(1), and 503.2b(1), (b)(2), (b)(3), and (b)(4).6
2. Substantive Amendments
The Committee also proposed substantive changes to a number of standard civil jury instructions, including the following: 401.3, Greater Weight of the Evidence; 401.4, Negligence; 401.23, Burden of Proof on Defense Issues; 402.4c; Medical Negligence, Foreign Bodies; 402.4d, Medical Negligence, Failure to make or maintain records; 402.9, Preliminary Issues — Vicarious Liability; 406.4, Probable Cause; 407.8, Defense Issues; 601.2, Believability of Witnesses; 700, Closing Instruction; and 801.3, Closing Instructions, Jury Deadlocked. The Committee’s proposals also include the following new instructions: 402.11d, Issues on Main Claim — Negligence of health care facility to assure comprehensive risk management and competence of medical staff; 402.12, Issues on Claim of Attorney Malpractice Arising Out of Civil Litigation; 404.5, Medical Malpractice Insurer’s Bad Faith Failure to Settle; 414.5, Intentional Tort Exception to Exclusive Remedy of Workers’ Compensation; and 503.1b(4), Punitive Damages — Bifurcated Procedure — Vicarious liability for acts of employee where employee is not a party or is not being sued for punitive damages. Because these instructions as set forth in the appendix to this opinion are fully engrossed, we briefly describe the amendments to the instructions under the new numbering system that we authorize for publication and use.
In Re: Standard Jury Instructions In Civil Cases — Report No. 09-02 (Greater Weight of the Evidence, Negligence, Believability of Witnesses and Closing Instructions), No. SC09-296
As explained above, we reject the Committee’s proposal to amend the Greater Weight of the Evidence instruction. Rather, we authorize for publication and use the substance of former instruction 3.9 as instruction 401.3. The remaining instructions in this case are authorized for publication and use as proposed. Amendments to former instruction 4.1, the negligence instruction, numbered 401.4, are stylistic; the substantive change is in the Notes on Use for 401.4, which expands the commentary on whether there is a right to assume others will exercise reasonable care, and how that is determined, and adds notes recommending that no instruction be given concerning “sudden emergency,” “traffic,” or “railroads.”Instruction 601.2, Believability of Witnesses, formerly instruction 2.2, is amended to add the phrase “Let me speak briefly about witnesses” at the beginning of the instruction and substitutes the word “evaluating” for “determining.” Section 700 combines former instruction numbers 7.1, Prejudice and Sympathy/Judge Not Involved, and instruction 7.2, Use of Notes During Deliberations; Election of Foreman; Verdict Forms, and combines them into one instruction.
In Re: Standard Jury Instructions In Civil Cases — Report No. 09-03 (Jury Deadlocked), No. SC09-299
Instruction 801.3, in addition to substituting plain English for the language in former instruction 7.3(c), adds new language which permits the jurors to make a specific request that the court reporter read back relevant portions of the trial testimony. The trial court, however, retains broad discretion whether to grant or deny any request to read back testimony.
In Re: Standard Jury Instructions In Civil Cases — Report No. 09-04 (Burden of Proof on Defense Issues), No. SC09-300
Instruction 401.23, Burden of Proof on Defense Issues, formerly instruction 3.7, adds three new paragraphs to the instruction for use where the defense asserts the following defenses: comparative negligence; apportionment of a nonparty; or both. See Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).
In Re: Standard Jury Instructions In Civil Cases — Report No. 09-05 (Medical Malpractice Insurer’s Bad Faith Failure to Settle), No. SC09-301
Instruction 404.5 is new, applicable in cases alleging a medical malpractice insurer’s bad faith failure to settle a claim within policy limits.
In Re: Standard Jury Instructions In Civil Cases — Report No. 09-06 (Probable Cause — Malicious Prosecution and False Imprisonment), No. SC09-302
Instruction 406.4, Probable Cause, formerly instruction MI 5.1b, defines probable cause in a proceeding for malicious prosecution, while instruction 407.8, Defense Issues, formerly MI 6.1g, defines probable cause in the context of a merchant’s defense to the charge of false imprisonment. The revisions are intended to harmonize the definitions of probable cause as used in these two instructions, and do not substantively alter the standard for probable cause.
In Re: Standard Jury Instructions In Civil Cases — Report No. 09-07 (Intentional Tort Exception to Exclusive Remedy of Workers’ Compensation), No. SC09-303
Instruction 414.5 is new, and addresses the “intentional tort exception” in workers’ compensation cases. See § 440.11(1)(b), Fla. Stat. (2009).
In Re: Standard Jury Instructions In Civil Cases — Report No. 09-08 (Professional Negligence), No. SC09-304
Instruction 402.4c substitutes plain English for the language in former instruction 4.2 pertaining to a claim for medical negligence, based upon the presence of a foreign object in a patient’s body. A new instruction, 402.4d, focuses on the claim of negligence for failure to make or maintain medical records, consistent with this Court’s decision in Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987). Instruction 402.9, formerly instruction 3.3b, addresses vicarious liability as it relates to employees, independent contractors, and agents (actual and apparent) of the defendant. The instruction as authorized substantially reorganizes former instruction 3.3b for clarity and understandability. In addition, instruction 402.9 includes new language pertaining to specific substantive issues, including nondelegable duties, and the defendant’s duty to exercise reasonable care to ensure that his or her employees, independent contractors, and agents are competent to perform the required services. See Insigna v. LaBella, 543 So. 2d 209 (Fla. 1989). Instruction 402.11d is new, and provides an instruction for professional negligence based on the negligence of a health care facility for failing to ensure comprehensive risk management and the competence of its medical staff. See § 776.110, Fla. Stat. (2009). Finally, instruction 402.12, also new, covers claims of attorney malpractice in civil litigation.
In Re: Standard Jury Instructions In Civil Cases — Report No. 09-09 (Punitive Damages), No. SC09-306
Instruction 503.1b(4) is a new instruction pertaining to punitive damages, intended to cover two scenarios not addressed in the former PD instructions. Those scenarios include: (1) where the plaintiff seeks punitive damages from an employer under a theory of vicarious liability but the employee whose conduct is the basis for the claim is not sued individually, and (2) where the plaintiff seeks punitive damages from an employer under a theory of vicarious liability but the employee whose conduct is the basis for the claim is not a party to the action at all. The structure and language in instruction 503.1b(4) is the same as or similar to language this Court has previously authorized in strict liability instructions, and we authorize it as proposed.CONCLUSION
Having considered the Committee’s reports, the comments received in response, and the Committee’s replies to those comments, we hereby authorize for publication and use the reorganization and modification of the standard civil jury instructions, with the exception of the proposed modifications to instructions 401.3, 402.3, 404.3, 405.3, 406.3, 407.3, 408.3, 409.3, 410.3, 412.5, 413.3, 503. 1b(1), b(2), b(3), b(4), and c(1), and 503.2b(1), b(2), b(3), and b(4), defining “greater weight of the evidence.” Those numbered instructions retain the definition as previously authorized in former instruction 3.9. In addition, we also authorize for publication and use the specific instructions including substantive changes, as discussed above. All of the standard civil jury instructions, revised or renumbered or both, appear in the appendix to this opinion, fully engrossed and ready for use.
In authorizing the publication and use of the standard civil jury 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, fully engrossed, shall be effective when this opinion becomes final.
Finally, we wish to acknowledge the hard work and thoughtful consideration of the Committee in bringing to the Court its thorough recommendations to improve the jury system in civil cases in Florida. As the result of the dedication of those who participated in this matter, the citizens of this state will experience a more meaningful and satisfying jury experience, while facilitating a more efficient and more effective jury system overall.
It is so ordered. (QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.)
__________________
1On May 28, 2009, we consolidated these cases for purposes of review and opinion.
2Those cases include case numbers SC09-296, SC09-299, SC09-300, SC09-301, SC09-302, SC09-303, SC09-304, and SC09-306.
3On July 16, 2009, the Committee filed a report proposing both new and revised civil instructions limited to product liability cases. In re Standard Jury Instructions in Civil Cases — Report No. 09-10 (Products Liability), Case No. SC09-1264. We will address those proposals in a separate opinion.
4Proposed substantive instructions under this section have not yet been filed by the Committee.
5The instructions as authorized reflect the following changes based upon the Jury Innovations Report: former instruction 1.8, Note Taking by Jurors, now designated instruction 202.3, includes additional notes referring to Florida Rule of Judicial Administration 2.430(k) and Florida Rule of Civil Procedure 1.455; former instruction 1.13, Questions by Jurors, now designated instruction 202.4, includes a note referring to Florida Rule of Civil Procedure 1.452; the note for former instruction 2.1 appears as a Note on Use to the introductory instructions (401.1, 402.1, etc.) with a reference to Florida Rule of Civil Procedure 1.470(b); concluding instructions 601.5 and 700 provide for instructing either before or after final argument and the note for former instruction 7.1 appears as a Note on Use to instruction 700; former instruction 7.2, Use of Notes During Deliberations, is designated instruction 700 and includes a reference to Florida Rule of Judicial Administration 2.430(k) in a Note on Use to that instruction; former instruction 7.3(a), Answers to Jurors’ Inquiries During Deliberations, is designated instruction 801.1; and former instruction 7.3(b), Read-Back of Testimony, is designated instruction 801.2.
6The model instructions and verdict forms authorized in this reorganization of the standard civil jury instructions reflect this change as well. We also have made some nonsubstantive modifications, which include changing all references from 411.4 to 414.4 under Notes on Use for 414.4; changing 401.19 to 401.22 under Notes on Use for 401.13, note 1; and changing the instruction number to 801.4 in Note on Use for 801.5.
__________________
The Appendix has been omitted due to its length. Subscribers may call 800-351-0917 to request a copy — or it may be downloaded from our web site at www.FloridaLawWeekly.com, located in our Rule Revisions section.
