TH 18 JUDICIAL DISTRICT COURT
VS F PARISH OF
STATE OF LOUISIANA, THROUGH THE STATE OF LOUISIANA DEPARTMENT OF TRANSPORTATIONI AND DEVELOPMENT
A @ SUITR NO , DIVISION D GENERAL CIVIL JURY INSTRUCTIONS
MEMBERS OF THE SJURY:
You have heard in your voir dire, the selection process, that the Judge will explain the law applicableT to this case. I will make certain general comments about the law and your duties as jurors--then I will become more specific about the law applicable to this particular case and the procedure you must useD in reaching your verdict.
I want to thank you before you come back with a verdict because to thank R you then might indicate that I am thanking you for your verdict rather than thanking you for your loyal service to theseF citizens and this community. Before I tell you the law, however, let me make some general comments about your responsibilityI as jurors. You have been chosen from the community to make a collective determination of the facts in this case. What the community expects of you, and what I expect of you,R is the same thing that you would expect if you were a party to this suit: an impartial deliberation and conclusion based upon all the evidence presented in this case, and on nothing else. This means that you must deliberate on this case without regard to sympathy, prejudice,S or passion for or against any party to this suit. This means that the case should be considered and decided as an action between persons of equal standing in the community.T A corporation an insurance company or the State of Louisiana is entitled to the same fair trial at your hands as a private individual. All persons stand equal before the law, and are to be dealt with asD equals in a court of justice. Above all, the community wants you to attempt to achieve justice, and your success in that endeavor R depends upon the willingness of each of you to seek the truth as to the facts from the same evidence presentedF to all of you, and to arrive at a verdict by applying the same rules of law, as I give them to you. If I haveI indicated to you by my rulings, my actions, my comments or even my demeanor, that I favor the claims or position of either party, you should disregard it as I am not the judge ofR the facts--you are the sole judges of the facts. As I mentioned earlier, it is your duty as jurors to follow the law as I state it to you.
You should not be concerned with the wisdom of any rule of law that I may tell you about.
You should considerS what I say about the law as a whole. You should not single out any one sentence, or individual point or idea, and ignore the others. The order in which statements aboutT the law are made has no significance as to their relative importance. The fact that a person has brought a lawsuitD and is in Court seeking damages creates no inference or presumption that this person is entitled to damages. Anyone may R make a claim, and the making of a claim is not proof of the claim. Your verdict must be based solely and exclusivelyF on the evidence in this case. BURDEN OF PROOF The firstI thing you must know is that the plaintiffs
EVIDENCE S
What is evidence? Evidence is testimony of the witnesses, the documents and tangible physicalT objects which have been admitted into evidence. Neither the written pleadings, nor arguments by the lawyers, nor any comment or ruling which I may have made is evidence. D A fact may be proven either by direct evidence or by circumstantial evidence, or R perhaps by both. Direct evidence is testimony by witnesses as to what they saw or heard, or physical evidenceF of the fact itself. Circumstantial evidence is proof of certain circumstances from which you may infer that another fact is true. The law does not regard one type of evidence Ias preferable over the other. STIPULATIONS
A @ A @ Evidence mayR also consist of stipulations. A stipulated fact or stipulation is a fact that the attorneys agree is accurate. Since there is no dispute about certain facts, the attorneys may agree or Astipulate@ those facts to save all of us a lot of time in this trial.
Unless I instruct youS to the contrary, you must accept a stipulated fact as evidence and treat the fact which is stipulated as having been proven.
CREDIBILITY OF WITNESSEST
You alone must determine the credibility of witnesses. In judging the credibility of witnesses you may consider their appearance, Dtheir conduct, the manner in which the witness testifies, the character of his testimony, and his motives as shown by the R evidence. In judgingF the credibility of the witnesses which you have heard, you should have in mind the rule that a witness is presumed to speak the truth about facts within his knowledge. This presumption,I however, may be overcome by contradictory evidence, by the manner in which the witness testifies, by the character of this testimony, or by evidence that pertainsR to his motives. If the testimony of a witness here in court is inconsistent with a prior statement he has made, it is your duty to determine if the testimony of the witness here in court should be discredited.S If you decide that the testimony of the witness has been discredited, then you are to decide what weight, if any, to give to the testimony of the witness. If you shouldT find that a witness has testified falsely as to a material fact, then you have the right to reject the entire testimony of the witness or to reject only part of the testimony, based upon how you are impressed withD the truthfulness of the witness. Inconsistencies or discrepancies in the testimony of a witness, or between R the testimony of different witnesses, may or may not cause the jury to discredit such testimony. Two or moreF persons witnessing an incident or a transaction may see or hear it differently; and innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighingI the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentionalR falsehood. After making your own judgment, you will give the testimony of each witness such credibility, if any, as you may think it deserves.
You areS not bound to decide any issue of fact in accordance with the number of witnesses presented on that point. Witnesses are weighed and not counted.
Your function is to determineT the facts and this is not done by counting noses. The test is not which side brings the greater number of witnesses before you, or presents the greater quantity of evidence, but rather which witnessesD and which evidence appeals to your minds as being the most accurate and the most convincing. That is what preponderance R of evidence means. OPINION TESTIMONYF Any witness may sometimes give testimony that includes opinions or inferences. However unless theI witness is an expert, such testimony is limited to opinions or inferences which are rationally based on the perception of the witness and are helpful to a
= clear understanding ofR the witness testimony or the determination of a fact in issue. Some witnesses are always allowed to give opinion testimony. A witness who, by experience and education, has become a expert in an art science, profession, or calling is referred to as an expertS witness. This witness can state opinions as to relevant matters in his or her area of expertise. Additionally the expert should state the reasons for the opinion. You shouldT give these opinions such weight as you think they deserve. You should consider his education and experience and the reasons given in support of the opinion. If you feel his opinion is outweighed byD other evidence, you may disregard the opinion entirely or weigh it in the light of the other testimony. R INFERENCES If you find thatF certain facts are established by the evidence, you may draw such reasonable inferences from those facts, as seem justified in the light of your experience. An inference is a deductionI or conclusion which reason and common sense lends you to draw from facts which have been established by the evidence. When facts areR in dispute such that fair minded persons may draw different inferences, it is your duty to settle the dispute by choosing the most reasonable inference.
The very essence of the jury=s function is to select from among conflicting inferences and conclude that which isS considered the most reasonable. You are to reach your conclusions on the basis of common sense, common understanding, and fair beliefs; but your conclusions should beT based only on evidence from which such inferences can fairly be drawn. D FAULT R The law applicable to a plaintiffs claim depends upon the nature of that claim. This is a suit seekingF damages for injury caused by the act of others. The basic law of Louisiana concerning an action for damages from an injury is contained in the Louisiana Civil Code: I Louisiana Civil Code Article 2315 states that "Every Act whatever of man that causes damage to another obliges him by whose fault it happened to repair it."
R A Louisiana Civil Code Article 2316 states that Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.@ S
Fault is the key wordB By definition, fault is conduct below the standard which the law considersT applicable to a person=s activities. It signifies conduct which a party should not have engaged in. He has committed an act which he should not have committed, or he has failed to do something thatD he should have done. It is thus conduct below the standard which the law applies to that person=s activities. R In determining whether fault exist, you should simply apply a common sense approach. The standardF to be applied will vary according to the activity engaged in, and the circumstances surrounding that activity. The degree of care required must be proportioned to the foreseeableI danger confronting the alleged wrongdoer. The standards may be defined by statute, ordinances, or even by the courts in certain instances. In a few
= minutes I will tell youR the standards which apply to the State of Louisiana s, conduct in this particular suit, and you must accept the standards as I give them to you. It will be one of your tasks to determine if the plaintiffs have proved by a preponderance of the evidence that the defendant,S the State of Louisiana, has fallen below the standard which the law expects of it in this particular instance. To put it briefly, you will have to determine if the plaintiff has provedT that the defendant had engaged in substandard conduct and is thus, in legal terms Aat fault@. NEGLIGENCE / DUTY RISK D The plaintiffs must prove all the essential elements of their claim. They must R prove the following three elements: (1) that the injury and/or death the plaintiffs suffered, in this action was inF fact caused by the conduct of the defendants and (2) that the conduct of the defendants was below the standards which I have told you are applicable to the defendants= conduct;I and (3) that there was actual damage to the plaintiff's person and/or property.
= As to the requirementR that the plaintiff s injury be caused by the accident in question, I do not mean that the law recognizes only one cause of any injury, consisting of only one factor or thing, or the conduct of only one person or entity. On the contrary, many factors or thingsS may operate at the same time, independently or together, to cause injury, death or damage.
STANDARD OF CONDUCTT
The next element of the plaintiff=s case which you must consider is whether the defendant, the State of Louisiana=s conduct wasD below the standard applicable to their activities. In this case the basic standard applicable is a requirement that a defendant R exercise that degree of care which we might reasonably expect from an ordinarily prudent person under the sameF or similar circumstances. By definition, negligence is conduct that creates an unreasonable risk of foreseeable harm to others. Ask yourselves: Did the defendants exercise I that degree of care which we might reasonably expect from an ordinarily prudent person under the same or similar circumstances. Notice that the conduct we set up asR a standard is not that of the extraordinarily cautious individual or the exceptionally skillful one but that of a person of ordinary prudence. While unusual caution or skill is to be admired and encouraged, the law does not demand it as a standard of care in a negligence Scase. The mere fact that an accident has occurred is not proof of negligence. The absence or presence of negligence is a question of fact which you must decide, and you mustT do so by applying the reasonably prudent person standard mentioned before. The ordinarily prudent person will avoid creatingD an unreasonable risk of harm. In determining whether the defendants breached this standard, and created an unreasonable R risk of harm, you may weigh the likelihood that someone might have been injured and the seriousness of that injuryF against the importance to society of what the defendant was doing and the advisability of the In this case, oneI activity in question is the custody of a thing, namely Louisiana State Highway 77, which plaintiffs claim was in the custody of the defendant, the State of Louisiana, DepartmentR of Transportation (DOTD). The plaintiffs claim that the defendant knew or should have known of the presence of a defect that caused harm to the plaintiffs.
The Louisiana Civil Code, Article 2317, provides a standard applicable to this activity. Article 2317S provides that, AWe are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable,T or of the things which we have in our custody.@
The Louisiana Civil Code, Article 2317.1 further states that A The owner or custodian of a thing is answerable for damageD occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have R known of the ruin, vice, or defect which caused the damage, that the damage could have been preventedF by the exercise of reasonable care, and that he failed to exercise such reasonable care.@ In this instance,I the plaintiffs must prove that: 1. The thing, Louisiana Highway , was in the custody of the DOTD.R 2. The thing in question, Highway , was defective, and that it
posed an unreasonable risk of harm.
3. That DOTDS had actual or constructive knowledge of this defect prior to the
occurrence.
4. That DOTDT had a reasonable opportunity to remedy the defect and failed to
do so 5. That the plaintiffs injuries and damagesD were caused by this failure. The liability of DOTD to an injured party hinges on whether it has breached its duty R to the plaintiffs. DOTD=s duty is to maintain the public roadways and bridges in a condition that is reasonablyF safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. This duty, however,I does not render DOTD the guarantor for the safety of all the motoring public. Further, DOTD is not the insurer for all injuries and damages resulting from any risk posed Rby defects in the roadway or its appurtenances. Moreover, not every imperfection or irregularity will give rise to liability, but only a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. The existenceS of an unreasonable risk of harm may not be inferred solely from the fact that an accident occurred. Whether DOTD breached its duty to the public, by knowingly maintainingT a defective or unreasonably dangerous roadway, depends on all of the facts and circumstances determined on a case by case basis. The mere fact that a accident occurred Don a highway in DOTD=s custody and maintained by DOTD does not make DOTD liable to the plaintiff. The plaintiff must prove R that the highway was defective; that is, the condition of the highway presented an unreasonable risk of Fharm which resulted in the damage. In determining whether a thing in DOTD=s custody creates an unreasonable risk of harm, you must balance the likelihood and magnitude of harmI against the social utility of the thing. You must consider a broad range of social and economic factors, including the cost to the defendant of avoiding the
= harm, as well as the Rrisk and the social utility of each defendant s conduct at the time of the accident. In reaching an intelligent and responsible determination, you must carefully consider all the circumstances surrounding the particular accident under review to determine whether DOTDS=s legal duty encompassed the risk which caused the plaintiff=s injuries and damages and was intended to protect this plaintiff from this type of harm arising in this manner.T
DOTD is under no duty to bring all the highways in the state up to modern construction safety standards. However, design standardsD alone do not determine whether or not a duty exist, and all the facts and circumstances of each case must be considered. R In fact, DOTD cannot escape liability simply by showing that a highway met existing standards when it wasF built. The nature of the duty to bring highways up to modern standards depends on the nature of the changesI to the highway in question. If construction activity amounts to major construction resulting in a new roadway, the construction must take into consideration current safety standards.R Proof that any state, parochial or municipal authority was at the time of any incident complained of in compliance with the provisions of the department's traffic control devices manual shallS be prima facie evidence of discharge by such authority of its obligations to the motoring public. This presumption may be rebutted and overcome by competent evidence. T
Our law requires a motorist to generally keep his vehicle under proper control and at a proper speed, and to maintain a proper lookoutD for hazards, which by the use of ordinary care and observation one should be able to see. R The State has a specific duty to mark its highways to alert unwary drivers to unusually dangerous Fconditions. This duty is owed to prudent and perhaps momentarily inattentive drivers as well as to their passengers. Breach of this duty constitutes fault. Any person operatingI a motor vehicle on the public roads of this state shall drive in a careful and prudent manner, so as not to endanger life, limb or property of any person. Failure to drive in suchR a manner shall constitute careless operation. The mere fact that fault exists is not by itself sufficient to allow a plaintiff to recover. The law requires that a persons=s substandard conduct be a cause in fact of a plaintiffs harm or death.S
Proximate cause is the direct cause or a direct cause, the cause in fact or a cause in fact of the Taccident. It is the cause which is most closely associated with the occurrence of the accident. In considering whether to charge the defendant's conduct with this cause you must ask yourselves: (1) ShouldD the defendant have reasonably foreseen that, as a result of his conduct, some such injury or death as the plaintiff suffered would R occur? (2) Did he fail to exercise reasonable care to avoid the injury? (3) How would an ordinarily prudent Fperson have acted or what precautions would he have taken if faced with similar conditions or circumstances? CausationI is an issue of fact. An act or omission is a cause -in-fact of harm to another if it was a substantial factor in bringing about the harm. DAMAGES R In awarding damages, our law contemplates simple reparation, a just and adequate compensation for injuries. Remember Article 2315 of our Civil Code states AEvery act whatever of man thatS causes damage to another obliges him by whose fault it happened to repair it.@
This article contemplatesT simple reparation, a just and adequate compensation for injuries. It suggests no idea of revenge or punishment. Accordingly, our law does not permit the awarding of damages to punish the defendant,D or to make an example of the defendant and you should include no such amount in your award. R The law understands the difficulty of translating personal injuries or death into a dollars and cents figure.F But that is what you must do. You must arrive at a figure that will fairly and adequately compensate the plaintiffs for all the damages they have already suffered and that theyI will probably suffer in the future. The statements of any lawyer in this case as to his or her estimate or calculations of the dollar amounts which should be awarded for pain andR suffering and similar items of general damages are not evidence. The determination of damages is solely your function, and must be based upon competent evidence, and not upon figures suggested by any lawyer in this case.
SURVIVAL ACTION: S
In a survival action, certain beneficiaries of the deceased have the right to recover the damages for injuriesT that the deceased suffered and would have been entitled to recover from the tortfeasor had the deceased lived. Louisiana Civil Code Article 2315.1 states Din part that, AIf a person who has been inured by an offense or quasi offense dies, the right to recover all damages for injury R to that person, his property or otherwise caused by the offense or quasi offense, shall survive...in favor of: F(1) The surviving spouse and child or children.@ The survival action permits recovery only for damages actually suffered by the deceased from the timeI of injury to the moment of death, including pain and suffering, loss earnings and any other damages sustained before death. Where there isR no indication that a decedent consciously suffered, an award for pre-death pain and suffering should be denied. However, damages for pain and suffering are properly awarded in survival action if there is a scintilla of evidence of any suffering or pain on the part of theS decedent by his actions or otherwise.
WRONGFUL DEATHT
In a wrongful death action, certain beneficiaries of the deceased have the right to recover the damages they have suffered becauseD of the death of the decedent because of the fault of another. R Louisiana Civil Code Article 2315.2 states in part that, AIf a person dies due to the fault of another, suitF may be brought by the following persons to recover damages which they sustained as a result of the death: (1) The surviving spouse and child or children of the deceased,I or either the spouse or the child or children.@ The elements of damages for wrongful death actions may include loss of love and affection, R loss of services, loss of support, medical expenses and funeral expenses.
A defendant is liable for all damages sustained by a plaintiff which flow as a natural consequence from aS plaintiff=s injuries or losses. If you award damages, your award should be justified by a preponderance of the evidence as full and just compensation for all of plaintiffs= damages.T Damages may cover both the mental and physical aspects of injury and the natural consequences thereof, both of a tangible and intangible nature. There is no yard stick by which you may measureD the amount of recovery which would be awarded in a given case. The amount is left to your own judgment and you will determine R the amount, in light of what you feel is reasonable under the evidence as you have heard it. F The law recognizes both general damages for the pain and suffering which the plaintiff may have facedI because of this incident and special damages which are intended to reimburse the plaintiff for the actual or anticipated out-of-pocket expenses which have been incurred to date,R or will be incurred in the future. If you decide to award general damages, you may consider past pain and suffering, inconvenience, and mental distress, and any anticipated pain and suffering, inconvenience and or mental distressS as well as loss of enjoyment of life.
If you decide to award special damages, you should consider the evidence that has been offered on theseT issues and past and future loss support.
The diagnosis and opinions of the plaintiffs treating physicians are entitled to more weight than the opinions of a doctor consulted justD for purposes of litigation. They must not be speculative (damage which you think plaintiff suffered or might suffer but which is R not supported by the evidence). You need not compute them with mathematical certainty. In your consideration Fof the items of damage you should bear in mind that under the law the one liable or responsible for an accident must take the injured person as he finds him, and is responsible forI all the natural and probable consequences of his wrong, even though they are more serious or harmful by reason of a pre-existing condition, physical defect or weakness ofR the injured person. A persons disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disablingS condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection Tbetween the accident and the disabling condition.
In reaching a verdict on the question of damages, I caution you not to include anything for the payment of court costsD and attorney fees; the law does not consider these as damages suffered by the plaintiff. I further inform you that any amount R which you might award to the plaintiff is not income within the meaning of the income tax laws. If you decide Fto make an award, follow the instructions I have given you, and do not add or subtract from that award on account of federal or state income taxes. If you award damages,I you are instructed not to render a Aquotient verdict@ By a quotient verdict, I mean a verdict in which each of the twelve jurors states how much damages he would award,R a total is made, and the sum is then divided by twelve to give an average. Averaging of the awards that each juror would propose to give is disfavored because it prevents full deliberation on the issues and causes some or all of the jurors to abandon their conscientiousS conviction on how much should be awarded.
Finally, let me say that the fact that I have given you these statements about the law of damagesT does not in any way imply or suggest that I feel or do not feel that any damages are due in this case. Whether or not damages are due is solely for you to determine. D The plaintiffs have the burden of proving the following elements by a R preponderance of the evidence. They must demonstrate: (1) Fthat the injury the plaintiff suffered was, in fact, caused by the conduct of the one or both of the defendants; (2) I that the conduct of the defendants was below the standards which I have told you are applicable to the defendant's conduct; and (3) thatR there was actual damage to the plaintiff's person or their property. COMPARATIVE FAULT If you are satisfiedS that the plaintiff has established these three elements, then plaintiff is entitled to recover. If you determine that one or both of the defendants were at fault; and their fault causedT or contributed to cause the injuries or damages sustained by the plaintiffs, you must then apportion the fault between those you have found to be at fault. D If you find that more than one party was at fault, and that their fault was a proximate cause of the incident and the injury and damages sustained, then you must R apportion fault between the parties. In determining percentages of fault, you should consider first the natureF of the conduct of each party at fault and secondly the extent of the relationship between the conduct and the damages which resulted. In making theI first assessment B the nature of the conduct of each party B you should consider: 1. WhetherR the conduct of that party resulted from inadvertence or involved an awareness of the danger
2. How great a risk was created by the party=s conduct
3. The significanceS of what was sought by that conduct
4. The capacities of the party, whether superior or inferior, and
5. Any extenuatingT circumstances which might have required that party to
proceed in haste, without proper thought. In making the second assessment, the relationshipD between the fault of a party and the resulting harm, you may consider the extent to which each party=s conduct contributed to R the happening of the incident. At the conclusionF of this charge, I will hand you a sheet of paper which will be your special verdict form and upon which is written certain questions you must answer. You will take Ithis special verdict form with you into the jury room and use it to make your written findings on these issues. Let me emphasizeR to you that it is your duty to determine the percentages of faut, if any, for which each party is responsible.
If you decide to return a verdict for plaintiff, then you will make an appropriate award according to theS instructions which I have given you on the subject of damages.
You will remember that I told you at the beginning of the trial that you were not to discuss the caseT among yourselves. I now remove that restriction. It is now your duty to consult with one another and to deliberate, with a view toward reaching agreement, if you can do so without violence to your individualD judgment. You each must decide the case for yourself, but you should do so only after a consideration of the case with your R fellow jurors, and you should not hesitate to change an opinion when you are convinced that you are wrong. F However, you should not be influenced to vote in any way on any question which you have to decide by the fact that a majority of your fellow jurors favor such a decision. In otherI words, you should not surrender your honest convictions for the mere purpose of returning a verdict or solely because of the opinion of the other jurors. Let me Rsay that it is usually not a good idea for a juror, when he first enters the jury room, to make an emphatic expression of his opinion on the case or announce a determination to stand for a certain verdict. When one does that at the outset, his sense of pride may be at issue,S and he may hesitate to back down from an announced position, even if he is shown to be wrong. Remember that you are not advocates in this matter, but rather you are judges.T The final test of the quality of your service will lie in the verdict which you return to the court, not in the opinions any of you may hold as you go to the jury room. Your contribution to the judicial systemD will be to arrive at a just and proper verdict in this case. To that end, I remind you that in your deliberations in the jury room R there can be no triumph except the ascertainment and declaration of the truth. You areF twelve in number. Louisiana law requires that nine of you agree in order to render a verdict for either side. When nine of you are of the same opinion about this case, that ends yourI deliberation and that opinion should be your verdict. The first thing you should do when you retire to the jury room is to choose from your number a forepersonR to represent you in returning the verdict. That person may be male or female. When you have reached a verdict, the foreperson will record that verdict on the appropriate form. If the verdict is for the plaintiff, he or she shall record that fact, fill in the amount ofS money to be awarded, sign the form, and date it. You may take documents, and exhibits into the jury room.
Finally,T I remind you again that you represent our community in the determination of this dispute. The community appreciates your service on this jury, and at the same time expects you to reach a fair and impartialD verdict. You may ask to see any of the evidence introduced during the trial. R When you have finished, simply knock on the door and advise the deputy sheriff. The court will reconveneF to receive your verdict. Additionally, if any questions arise during your deliberations, write the question down, knock on the door and give the question(s) to the deputy sheriff. In Ithe appropriate manner, we will attempt to answer your question(s). In the process of deliberating, you may use any notes taken during the trial. After you return, you must returnR your notes to me for proper disposition. Members of the Jury, you will now retire to the jury room and deliberate. S T D R