Standard Jury Instructions (CIVIL CASES) ______

In the Supreme Court of Florida

In the matter of use by the trial courts of the

Case No.______

Standard Jury Instructions (CIVIL CASES) ______/

Supplemental Report (No. 02-1) of the Committee on Standard Jury Instructions (Civil) Re: MI 8—Misrepresentation 3.3a—Vicarious Liability

To the Chief Justice and Justices of the Supreme Court of Florida:

Your Committee on Standard Jury Instructions (Civil) files this supplemental report regarding proposed amendments to the Florida Standard Jury Instructions pursuant to Article V, section 2(a), Florida Constitution. The committee submits the following proposed amendments to the jury instructions as printed by The Florida Bar under Florida Rule of Civil Procedure 1.985: (1) Amended MI 8 on fraudulent and negligent misrepresentation, and a new MI 8.1 on false information negligently supplied for the guidance of others. (2) Amended 3.3a on vicarious liability. Proposed Amendments to MI 8 and Proposed New Instruction MI 8.1

The proposed amended MI 8 and the proposed new instruction MI 8.1 are in Appendix A. The proposed MI 8 received committee approval after consideration at meetings held from July 1997 through February 2002. Materials considered by the committee are attached at Appendix B. A notice of the changes was published in The Florida Bar News on May 15, 2001. See Appendix C, page 1. One comment was received. See Appendix B, page 10-171. After the May 1 publication, the committee adopted further changes to MI 8.1, and that revised draft was published for comment in the February 1, 2002, Bar News. See Appendix C, page 2. Two more comments were received. See Appendix B, pages 10-182 through 10-186. The committee reviewed those comments at its February 2002 meeting but found that no changes in the proposed instruction were needed. The committee approved the proposed instruction as published in the News. Copies of responses to the lawyers who submitted comments are in Appendix B, pages 10-187 through 10-192. Relevant excerpts from the committee's minutes are attached at Appendix D. The primary purpose of this proposal is to create an instruction for a negligent misrepresentation action based on §552 of the Restatement (Second) of Torts (1977). In 1993, the court approved the original MI 8 instruction providing for fraudulent misrepresentation and for negligent misrepresentation actions. Standard Jury Instructions—Civil Cases (1.0, 6.1d, MI8), 613 So. 2d 1316 (Fla. 1993). In 1997 the court rendered its decision in Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So. 2d 334 (Fla. 1997), addressing §552 of Restatement (Second) of Torts and holding that the doctrine of comparative negligence applies to an action for negligent misrepresentation. The committee discussed amendments to MI 8 in light of Gilchrist beginning in July 1997 and submitted amendments to MI 8 in 1999. The amended MI 8 was approved in STANDARD JURY INSTRUCTIONS-CIVIL CASES (No. 99-2), 777 So. 2d 378 (Fla. 2002). During the discussions of that amendment, the committee determined that a separate instruction for an action based on section 552 was needed. The proposed MI 8.1 is the result of that decision. The committee was unable to determine whether “separate and distinct causes of action exist for negligent supply of false information or negligent misrepresentation under the Restatement §552 and under the common law.” See Comment 5 at Appendix B, page 6 and the discussion beginning with the last paragraph of Appendix D, page 12. Because of the possibility that two distinct causes of action exist, the committee decided that the

2 instructions for negligent misrepresentation under MI 8 should remain as part of the standard instructions and that the separate section 552 instruction should be added. The committee's notes on use do not prohibit a trial judge from instructing on both theories in one lawsuit. The committee has some doubt that both theories should be available simultaneously, but has concluded that current case law does not authorize it to restrict a party to one theory. While working on the new instruction, the committee also identified a few additional changes that are needed for MI 8. Those changes are 1. The addition of “and” to the fourth element under MI 8a. This change conforms that part of the instruction to the wording of the fourth elements of MI 8b and of MI 8.1; 2. The addition of a causation section in MI 8 to parallel the inclusion of a causation section in MI 8.1; and 3. A revision of Comment 5 to reflect the addition of MI 8.1. The committee completed this proposed instruction prior to the issuance of this court's opinion in M/I Schottenstein Homes, Inc. v. Azam, 2002 WL 348185, 27 Fla. L. Weekly S190 (Fla., Mar 07, 2002). The committee doubts that the proposed instruction requires revision as a result of the new opinion, but the matter has not been discussed at a meeting of the full committee. Because of the complexity of this instruction and its potential impact on commercial litigation, oral argument may be warranted on this proposed instruction.

Proposed Changes to Instruction 3.3a The proposed amended instruction 3.3a is attached at Appendix E. It received committee approval after consideration at meetings held from July 2000 through February 2001. Materials considered by the committee are attached at Appendix F. A notice of the changes to 3.3a was published in The Florida Bar News on May 15, 2001. See Appendix C, page 2. No comments were received regarding the change to 3.3a. Relevant excerpts from the committee's minutes are attached at Appendix G. The main purpose of the proposed amendment to 3.3a is to conform the instruction to the holding of Auerbach v. Galina, 753 So. 2d 60 (Fla. 2000). Footnote 5 of that opinion asked the committee to review the instruction. After considering the general rule and also the many exceptions to the rule, it was decided that a useful, all-encompassing instruction would be impossible to draft. Instead, the committee decided to provide a basic instruction with a note on use. The

3 committee agreed that the terms “owner,” “lessee,” and “bailee” accurately classify the potential defendants subject to vicarious liability claims and that definitions for each are needed. Various exceptional circumstances are then described in the proposed note on use to show the need for modifying the instruction as needed for a particular case. On behalf of the committee, the undersigned requests approval of these proposed revisions for publication as Florida Standard Jury Instructions for use in civil cases. Should the court conclude that oral argument would be beneficial, the undersigned would be pleased to appear.

Respectfully submitted,

______Sylvia Walbolt Chair, Supreme Court Committee on Standard Jury Instructions (Civil)

One Progress Plaza 200 Central Ave Ste 2300 Saint Petersburg, FL 33701 (727)821-7000 Florida Bar No. 33604

4 APPENDIX A PROPOSED REVISIONS MI 8

FRAUDULENT MISREPRESENTATION NEGLIGENT MISREPRESENTATION (Issues and Elements) a. Fraudulent misrepresentation — issues:

On (claimant's) claim for fraudulent misrepresentation, the issues for your determination are: First, whether (defendant) [intentionally]* made a false statement concerning a material fact; Second, whether (defendant) knew the statement was false when [he] [she] [it] made it or made the statement knowing [he] [she] [it] was without knowledge of its truth or falsity; Third, whether in making the false statement, (defendant) intended that another would rely on the false statement; Fourth, whether (claimant) relied on the false statement; and Fifth, whether (claimant) suffered [loss] [injury] [or] [damage] as a result.

*The word “intentionally” should be used for clarity when there is also a claim for negligent misrepresentation.

[On this claim for fraudulent misrepresentation, the]** [The] (claimant) may rely on a false statement, even though its falsity could have been discovered if (claimant) had made an investigation. However, (claimant) may not rely on a false statement if [he] [she] [it] knew it was false or its falsity was obvious to [him] [her] [it].

**The bracketed language should be used for clarity when there is also a claim for negligent misrepresentation. b. Negligent misrepresentation — issues:

On (claimant's) claim for negligent misrepresentation, the issues for

Appendix A, page 1 your determination are:

First, whether (defendant) made a statement concerning a material fact that [he] [she] [it] believed to be true but which was in fact false; Second, whether, (defendant) was negligent in making the statement because [he] [she] [it] should have known the statement was false; Third, whether in making the statement, (defendant) intended [or expected] that another would rely on the statement; Fourth, whether (claimant) justifiably relied on the false statement; and Fifth, whether (claimant) suffered [loss] [injury] [or] [damage] as a result. c. Material fact:

A material fact is one that is of such importance that (claimant) would not have [entered into the transaction] [acted], but for the false statement. d. Burden of proof on claim:

If the greater weight of the evidence does not support the claim of (claimant), your verdict should be for (defendant). However, if the greater weight of the evidence does support the claim of (claimant), [then your verdict should be for (claimant) and against (defendant)] [then you shall consider the defense raised by (defendant)] (instruct on any pertinent defense). e. Comparative negligence defense; burden of proof on defense:

1. Comparative negligence defense

On the [first] defense to the claim of negligent misrepresentation, the issues for your determination are whether, under the circumstances, (claimant) was negligent in relying on (defendant's) statement; and, if so, whether such negligence was a contributing legal cause of any [loss] [injury] [or] [damage] sustained by (claimant).

2. Burden of proof on defense

Appendix A, page 2 If the greater weight of the evidence does not support this defense and the greater weight of the evidence does support the claim of (claimant), then your verdict should be for (claimant) in the total amount of [his] [her] [its] damages. However, if the greater weight of the evidence shows that both (claimant) and [(defendant)] [one or more of the defendants] were negligent and that the negligence of each contributed as a legal cause of [loss] [injury] [or] [damage] sustained by (claimant), you should determine what percentage of the total negligence of [both] [all] parties to this action is chargeable to each. f. “Greater weight of the evidence” defined:

“Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case. g. Negligence

Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances or in failing to do something that a reasonably careful person would do under like circumstances. h. Causation:

* For instruction on causation refer to Instruction 5.1. i Damages:

If you find for (defendant), you will not consider the matter of damages. But, if you find for (claimant), you should award (claimant) an amount of money that the greater weight of the evidence shows will fairly and adequately compensate (claimant) for (describe appropriate elements of those damages incurred by claimant as a result of the misrepresentation).

Appendix A, page 3 Note on Use

In fraud cases where punitive damages are at issue, First Interstate Development Corp. v. Ablanedo, 511 So.2d 536 (Fla. 1987), see PD Punitive Damages.

Comments

1. It appears that Florida recognizes two separate theories of recovery for damage occurring as a result of misrepresentation. One basis of recovery is for fraud and the other is for negligent misrepresentation. The elements of those two theories are set forth in First Interstate Development Corp. v. Ablanedo, 511 So.2d 536 (Fla. 1987); Johnson v. Davis, 480 So.2d 625 (Fla. 1985); Lance v. Wade, 457 So.2d 1008 (Fla. 1984); Atlantic National Bank v. Vest, 480 So.2d 1328 (Fla. 2d DCA 1985), review denied, 491 So.2d 281 (Fla. 1986); Wallerstein v. Hospital Corp. of America, 573 So.2d 9 (Fla. 4th DCA 1990).

2. The recipient of a fraudulent misrepresentation is justified in relying upon its truth, even where an investigation might have revealed its falsity, unless he or she knows the representation to be false or its falsity is obvious to him or her. Besett v. Basnett, 389 So.2d 995 (Fla. 1980).

3. There must be actual damage for recovery in a fraud action. Fraud that does not result in damage is not actionable. Casey v. Welch, 50 So.2d 124 (Fla. 1951); Stokes v. Victory Land Co., 99 Fla. 795, 128 So. 408 (1930); Pryor v. Oak Ridge Development Corp., 97 Fla. 1085, 119 So. 326 (1928); Wheeler v. Baars, 33 Fla. 696, 15 So. 584 (1894); National Aircraft Services, Inc. v. Aeroserv International, Inc., 544 So.2d 1063 (Fla. 3d DCA 1989); National Equipment Rental, Ltd. v. Little Italy Restaurant & Delicatessen, Inc., 362 So.2d 338 (Fla. 4th DCA 1978).

The damage attributable to the fraud must be separate from the damages flowing from a breach of contract. AFM Corp. v. Southern Bell Telephone & Telegraph Co., 515 So.2d 180 (Fla. 1987); John Brown Automation, Inc. v. Nobles, 537 So.2d 614 (Fla. 2d DCA 1988); Rolls v. Bliss & Nyitray, Inc., 408 So.2d 229 (Fla. 3d DCA 1981), dismissed, 415 So.2d 1359 (Fla. 1982); National Aircraft Services, Inc. v. Aeroserv International, Inc., 544 So.2d 1063 (Fla. 3d

Appendix A, page 4 DCA 1989).

4. In Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334 (Fla. 1997), the Supreme Court held that the doctrine of comparative negligence, as codified in § 768.81, Fla. Stat., applied to an action for negligent misrepresentation as set forth in the Restatement (Second) of Torts § 552 (1977), which requires proof of justifiable reliance. Accordingly, the committee has replaced its earlier reference to “reasonable reliance” in these instructions with “justifiable reliance.”

In Gilchrist, the Court further noted that while the Restatement discusses the issue in terms of contributory negligence in section 552A, a majority of the states that have adopted the comparative negligence doctrine and considered the issue agree that comparative negligence principles apply to cases involving negligent misrepresentation. See 696 So.2d at 337. The committee recognizes that a logical tension could exist within a verdict determining that the claimant's reliance was justifiable, but that the claimant was also comparatively negligent (e.g., in relying on the statement by failing to conduct an adequate investigation). The committee also recognizes that justifiable reliance may involve a subjective standard distinct from the objective standard used in defining reasonable care. Cf. Restatement (Second) of Torts § 545A cmt. b (1977) (“Justification is a matter of the qualities and characteristics of the particular plaintiff, and the circumstances of the particular case, rather than of the application of a community standard of conduct to all cases.”) Pending further development of the law, the committee reserves the question of the relationship, if any, between justifiable reliance and comparative negligence.

5. The committee takes no position as to whether there are two separate and distinct causes of action exist for negligent supply of false information or negligent misrepresentation under the Restatement §552 and under the common law. See Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334 (Fla. 1997). The current instruction has not been amended to conform with section 552 of the Restatement (Second) of Torts, and the standard instruction may require modification to accurately and sufficiently instruct the jury on such claims. Furthermore, subsection 552(2) contains limitations on the scope of liability for negligent misrepresentation. Subsection 552(3) creates a broader liability for one who is under a public duty to give information. These subsections are not incorporated into the standard instructions and may require the use of additional

Appendix A, page 5 instructions in the circumstances of the action.

Appendix A, page 6 MI 8.1

FALSE INFORMATION NEGLIGENTLY SUPPLIED FOR THE GUIDANCE OF OTHERS (Restatement § 552) a. Negligently supplied information — issues:

On (claimant's) claim for false information negligently supplied for the guidance of others, the issues for your determination are:

First, whether (defendant) supplied false information to (claimant) in the course of (defendant’s) [business], [profession], [employment] [ or] [any transaction in which (defendant) had an economic interest];

Second, whether (defendant) was negligent in [obtaining] [or] [communicating] the false information;

Third, whether (claimant) was a person for whose benefit and guidance (defendant) intended to supply the false information for use in [(claimant's) business transaction][describe specific transaction];

Fourth, whether (defendant) intended the false information to influence (claimant) in this business transaction;

Fifth, whether (claimant) justifiably relied on the false information; and

Sixth, whether (claimant's) reliance upon the false information caused (claimant) any economic damage. b. Burden of proof on claim:

Appendix A, page 7 c. Comparative negligence defense; burden of proof on defense:

1. Comparative negligence defense

On the [first] defense to the claim of false information negligently supplied, the issues for your determination are whether, under the circumstances, (claimant) was negligent in relying on (defendant's) false information; and, if so, whether such negligence was a contributing legal cause of any economic damage sustained by (claimant).

2. Burden of proof on defense

If the greater weight of the evidence does not support the defense of (defendant) and the greater weight of the evidence does support the claim of (claimant), then your verdict should be for (claimant) in the total amount of [his] [her] [its] economic damages. However, if the greater weight of the evidence shows that both (claimant) and [(defendant)] [one or more of the defendants] were negligent and that the negligence of each contributed as a legal cause of economic damage sustained by (claimant), you should determine what percentage of the total negligence of [both] [all] parties to this action is chargeable to each. d. "Greater weight of the evidence " defined:

"Greater weight of the evidence" means the more persuasive and convincing force and effect of the entire evidence in the case. e. Negligence:

Appendix A, page 8 For instruction on causation refer to Instruction 5.1. The phrase “economic damage” should be used in this instruction rather than “loss, injury or damage.” g. Damages:

Notes on Use

1. If defenses other than comparative negligence are presented to the jury, special instructions will be required.

2. One or more issues in 8.1(a) may need to be omitted and the issues renumbered if there is no question of fact for determination by the jury. For example, when there is a public duty under section 552(3), the third issue may not require jury determination. A preemptive charge on omitted issues should be given only if required by events during the trial.

Comments

1. The Comments following MI 8 are also relevant to this instruction.

2. This instruction sets forth the essence of a Restatement §552 claim without incorporating some of the Restatement's more complex language. For example, this instruction uses the term “economic damage,” rather than the Restatement’s “pecuniary loss.”

3. There may be factual circumstances in a specific section 552 case that are not covered by these standard instructions. For example, these instructions may require modification if false information was passed on to the plaintiff by a

Appendix A, page 9 "recipient." Comment (b) to Section 552 suggests that this section applies to an opinion given upon facts equally well known to both the supplier and the recipient. The committee takes no position upon the application of this section to opinions under Florida law. If the instruction is used in the case of an opinion, it may require modification.

4. The committee takes no position as to whether, after Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334 (Fla. 1997), there are separate and distinct causes of action for negligent misrepresentation and false information negligently supplied.

5. Section 552B of the Restatement describes the damages recoverable for this tort. The elements of recoverable damage inserted into MI 8.1(g) should be written with reference to that section.

Appendix A, page 10 APPENDIX B MATERIALS CONSIDERED BY THE COMMITTEE REGARDING MI 8 AND MI 8.1 APPENDIX C The Florida Bar News PUBLICATIONS APPENDIX D MINUTES EXCERPTS REGARDING MI 8 AND MI 8.1 SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL) MEETING MINUTES July 11-12, 1997 Breakers Palm Beach, Florida

(d) Gilchrist Timber Co. v. ITT Rayonier, Inc., 22 Fla.L.Weekly S365 (Florida, June 26, 1997):

Graham noted that in drafting MI8, the Committee had discussed whether comparative negligence could be a defense to a misrepresentation case. The Committee was unable to resolve the issue and reserved the question in a comment to that instruction. In Gilchrist, the supreme court has now decided that the comparative fault provisions do apply to negligent misrepresentation cases. Accordingly, this comment needs to be redone. Webster noted that comments 1, 2, and 4 need to be revised in light of Gilchrist, and also noted that the charge itself may need to be redone as well. A subcommittee was formed to address this issue. Sylvia Walbolt will chair the committee. Other subcommittee members will be Altenbernd, Spector, and Artigliere. The subcommittee will review the Gilchrist case and make proposals regarding any needed changes to the instruction, comments, and notes on use. These materials will be placed in Tab 10 of the Committee Notebook.

SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL) Doubletree Inn Ft. Lauderdale, Florida October 24-25, 1997

12. MISREPRESENTATION Tab 10

Walbolt reported to the Committee on some of the issues that the subcommittee has

Appendix D, Page 1 been addressing. The subcommittee was asked to address Gilchrist, the case in which the supreme court held that the defense of comparative negligence applies in negligent misrepresentation cases. The subcommittee was asked to include in MI8 an instruction on comparative negligence for misrepresentation cases and to make resulting changes in the comments. This aspect of Gilchrist is fairly straightforward. Complying drafts are located at Tab 10 of the materials for this meeting. However, Gilchrist also adopts section 552 of the Restatement (2d) as the law in Florida on negligent misrepresentation. Thus, the subcommittee proposes drafting an instruction reflecting the adoption of the Restatement. The subcommittee presents the following questions on this project:

- where would such an instruction be placed - MI 8 or 3.1/3.2. - to what extent does the current MI8 follow section 552 and does it need to be changed to comply with Gilchrist. The subcommittee proposes to expand the current instruction in order to track the Restatement language. - the current draft incorporates Restatement elements in both negligent and intentional misrepresentation. This may be incorrect. The subcommittee needs to address whether the Restatement should be limited to negligent misrepresentation. - whether to include a reference to subsection (3) of section 552 which provides an exception for persons who owe a duty to the public. - review section 552(b) regarding damages for negligent misrepresentation needs to be addressed, and the instructions reviewed, to determine whether this aspect should track the Restatement as well. - negligent misrepresentation applies only to certain relationships. The existence of these relationships can be a jury question. The Committee determined that the comparative negligence issue and the Restatement issue can be addressed separately, and elected to discuss the comparative negligence insert at this time. It was agreed that a warning should be sent out now stating that the Committee is revising the instructions in light of Gilchrist and the Restatement. Barfield reminded the Committee that in cases involving intentional infliction of emotional distress the court adopted the entire Restatement scheme despite the fact that the case was limited to one issue. The Committee limited its instructions to the issue before the court. The Committee reviewed the proposal regarding the comparative

Appendix D, Page 2 negligence issue. Wagner suggested that the proposal should refer to the "[first] defense" rather than the "defense of comparative negligence" in order to be consistent with other instructions. Webster suggested that the language "whether a reasonable person would be expected to investigate" be used instead of "would be expected to reasonably investigate." Wagner suggested adding contributing "legal" cause. Other grammatical and punctuation changes were made as reflected in the printed copy. Wagner questioned whether "complained of" is proper, and suggested that there is a distinction between what the complains of and the damage he sustained. Wagner suggested that the Plaintiff only has to prove some damage to recover, not all of the damages he complained of. Graham noted that the current 3.8 states loss injury or damage "complained of." Boyer informed the Committee that they spent a year arguing over the word "sustained" in 3.6. The Committee determined that comments 1 and 4 need to be rewritten. The subcommittee will rewrite the proposal to make it parallel to the 3.8 instructions and will address the above issue. Subsection (f) will be reviewed in more detail at the next meeting. The Committee decided to immediately send out a notice to flag Gilchrist and the Restatement issue. The subcommittee will review the cautionary instruction before it is sent out.

SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL) July 10-11, 1998 La Playa Beach Resort Naples, Florida SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL)

Florida Bar Offices Tampa, Florida October 30, 1998

V. MISREPRESENTATION

Appendix D, Page 3 Altenbernd reported that the supreme court in Gilchrist adopted a comparative negligence standard for negligent misrepresentation cases. The court also adopted section 552 of the Restatement on misrepresentation. The subcommittee has drafted a proposed MI8 to incorporate comparative negligence into the negligent misrepresentation. The Committee had previously expressed concern regarding whether the Plaintiff's reliance needed to be reasonable. The Committee questioned whether unreasonable reliance is part of comparative negligence as opposed to an element of the claim. After receiving these concerns at the last meeting, the subcommittee performed further research to determine how courts around the country have handled this issue. The subcommittee determined that Gilchrist and other case law does discuss justifiable reliance even when addressing comparative fault issues. Therefore, the subcommittee did not believe that it could remove the concept from the instruction. However, the subcommittee noted that the current instruction refers to "reasonable" reliance, which may be confusing in light of comparative negligence. The subcommittee recommends that the term reasonable be removed and the term justifiable be included. The subcommittee proposal is located at Tab 10-2. Altenbernd recalled a case in which the Plaintiff did not give the Defendant enough information about his intended use of the land. This illustrates that comparative fault can be an act other than unjustifiable reliance; it can be the failure to give enough information. However, the subcommittee proposal includes negligent investigation as an example comparative negligence defense, since this is the most common situation. The Committee questioned whether including justifiability as an element of the claim improperly shifts the burden of proof on comparative fault to a Plaintiff. The subcommittee reviewed the Gilchrist case and determined that the court's language still treats it as an element of the claim. Gilchrist seems to combine pure contributory and comparative negligence. The subcommittee recommends including a note on use (proposed 4 of the September 1998 materials) stating the issue and the confusion. Bald reviewed section 552, and suggested that the Restatement position is that the Plaintiff will recover that part of damages caused by justifiable reliance, which is parallel to the comparative negligence system. Webster suggested that section 552 is neutral on the burden of proof question. The Committee questioned whether the absence of justifiable reliance is a complete bar to the claim. Most Committee members believed that it probably is.

Appendix D, Page 4 Thompson suggested that since lack of justification is an absolute bar in an intentional case, it should likewise bar a negligence claim. Therefore, it is still an element of the claim. The jury will first decide whether the Defendant acted justifiably and then whether he acted reasonably. Some Committee members noted that this is issue is the basis for the current comments 2 and 4 to MI 8. The Committee had the same discussion in 1993. Beckham suggested that a Plaintiff could get some recovery even if his reliance was unjustified. Several Committee members noted that the Restatement does require justifiability and that the Restatement was not written with comparative fault in mind. However, since the term is in Gilchrist and the Restatement, most Committee members believed it should not be removed. The Plaintiff has always had to prove justification, and the adoption of comparative fault does not change the elements of the cause of action. The Committee decided to approve the proposal at Tab 10-2, which will change the term reasonably to justifiably. The comment as proposed by the subcommittee was also approved with a date correction. The subcommittee will need to review placement of the instruction and definition of the term "negligence" to make the charge integrated. In that regard, the subcommittee will review the 1989 version and determine why the instruction was structured as it is. Marra is added to this subcommittee.

SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL) February 19-20, 1999 Clarion Inn Tallahassee, Florida

VI. MISREPRESENTATION

Walbolt led the discussion on this issue. She advised the Committee of the background of this issue. The Committee recalled that the supreme court decided in Gilchrist Timber to allow comparative negligence as a defense to negligent misrepresentation. A flag has been inserted into the book before MI8 to alert users to this issue.

Appendix D, Page 5 Walbolt suggested that the Committee may need to consider an instruction on the economic loss rule and fraudulent inducement. The Committee first reviewed the instruction on the comparative negligence defense. The Committee recalled that there are a number of different forms of possible comparative negligence. This instruction was previously approved by the Committee. The Committee has been trying to change the instruction to include nondisclosure. At the last meeting the subcommittee was asked to provide the entire instruction in context and was also asked in light of change to MI8(b) whether second element needs to be changed. Altenbernd recalled that the Committee thought that the term "negligence" needed to be used to make the comparative negligence defense parallel. The Committee had suggested that the definition of negligence should be provided. This suggestion is reflected in the subcommittee draft. The Committee decided to move this definition to c. Walbolt questioned whether the third element needs to be changed to eliminate the term "false" statement because that term connotes intent. The Committee agreed to this change. Wagner suggested that the term also be removed from the first element. He suggested the term "statement which was false." Farmer questioned whether the claim can be based either on a statement that the speaker believes to be true or on one that he has not investigated and does not know whether it is true or false. The Committee initially believed the answer to be yes. Later, Walbolt stated that a statement made when the speaker knows that he does not know whether it is true is intentional fraud. Graham suggested that a comment may be needed to explain the need for the change. Webster questioned whether the explanation can be provided in the proposal for court approval. Altenbernd suggested reincorporating whether the defendant should have known the statement was false in element two. Griffin questioned whether the jury needs to be told that the defendant thinks the statement is true. The Committee determined that this concept should be incorporated into the first element. Fisher noted that a person can be held liable for negligent misrepresentation even if they make no statement. The Committee noted that Note on use 5 addresses the omission situation. Altenbernd questioned whether the comparative negligence instruction can be done first and submitted alone to speed the process. It was decided that the

Appendix D, Page 6 instructions need to be published together. The Committee noted that negligent investigation can be either the failure to investigate when a reasonable person would or performing an investigation in a negligent manner. Various typographical errors were corrected. On page 5, the language "[these] defenses" implies that the defendant needs to prove all of them. This will be changed to read "[any of these] defenses." The subcommittee was instructed to reconsider the elements in light of this discussion. The elements of negligent misrepresentation were reworded by the subcommittee overnight and the Committee reviewed the new proposal on Saturday morning. The new proposal was as follows: First, whether defendant made a statement concerning a material fact that defendant believed to be true but which was in fact false; Second, whether the defendant was negligent in making the statement; Third, whether in making the statement, defendant intended or expected that another would rely on the statement; Fourth, whether claimant justifiably relied on the false statement; Fifth, whether claimant suffered loss injury or damage as a result

Griffin raised the issue of whether it is proper in a negligent misrepresentation instruction to require specific "intent" that the recipient of the statement rely on it. She suggested that "expected" may be a more correct term. Spector suggested that negligent misrepresentation still requires intent to rely, and that the difference between fraud and negligent misrepresentation is in the knowledge of the falsity. He stated that the term "expect" creates a foreseeability question which may be improper. Green questioned whether there is a significant difference between expect and intend. Griffin and Fisher suggested that the term "intended" connotes a specific desire or volition, while "expected" indicates that the speaker should have known that the recipient would rely on it but does not really care either way. Walbolt and Griffin will research this issue. The Committee decided that the instruction will be published with "intended [or expected]," with the hope that the brackets will invite some comment regarding the "expected" language. If the research reveals that this is legally incorrect, it will be revised. Farmer suggested that the instruction should parallel the language in the Restatement since that view was adopted in Gilchrist. Webster recalled that the Committee has been of the opinion that Gilchrist discussed two theories: common

Appendix D, Page 7 law and Restatement. The Restatement issue deals with nondisclosure. This instruction is intended to deal with the common law. The Committee will review a Restatement instruction at a later time. Cobb and Griffin questioned why the failure to investigate language was removed. Whittemore suggested stating both the failure to investigate and the negligent investigation in brackets to advise that these are the two possible types of investigation. The Committee discussed whether there is any other type of negligence that can give rise to the claim. Wagner suggested that there is no duty to investigate in some cases, as in where the speaker reasonably believes that he knows the statement to be true. Therefore, it may be improper to use these terms. Altenbernd also suggested that a person can negligently forget something after he has properly investigated. A number of members questioned whether element two is proper since it implies that the making of the statement was negligent, but the actual element may be the negligence in failing to determine its falsity. Other members believed that the negligence is in making the statement. Spector suggested stating this concept in the definition of negligence. However, traditionally, the general definition of negligence is used without circumstance-specific language. Altenbernd suggested using the current instruction, which advises the jury to determine whether defendant should have known the statement was false. Wagner suggested that to a common juror the term "making a statement" connotes an oral statement. The Committee determined that this will not create confusion, because it will be clear in the context of the trial if a written document is at issue. Cobb questioned whether justifiable reliance is an element of intentional fraud. The Committee recalled that intentional fraud requires reliance, but it need not be justifiable. As a matter of law, there can be no reliance in a fraud case if the recipient of the statement has knowledge of its falsity or if the statement is palpably false. In contrast, justifiable reliance is an element of negligent misrepresentation. The definition at section d of reliance applies only to fraudulent misrepresentation. Altenbernd suggested that this language needs to be moved to after the last element of fraud in section a. The Committee next reviewed the definitions of negligence in this instruction. Beckham suggested that the definition of negligence for the plaintiff's claim should be the same as that given on the defense. Bald noted that the traditional format is to define negligence in 4.1 after the elements of the claims and defenses are listed. For uniformity, it was suggested that

Appendix D, Page 8 the definition be given after comparative negligence is defined. Spector noted that Gilchrist gives only one species of comparative negligence. Lawyers will argue that a general instruction opens the door for other types of comparative fault. Walbolt suggested that there can be comparative negligence that has nothing to do with reliance on the statement. The Committee discussed whether negligence in operating a business is another form of comparative negligence or a causation issue. Failure to give enough information can be another form of comparative negligence. This example was given in Gilchrist. Eaton and Pillans suggested that the theory of the instructions is to instruct the jury generally and leave specifics to the argument of counsel. Bald suggested that the jury should decide complete defenses before comparative negligence, and the complete defenses should be listed first. Webster stated that the order of the instructions need not parallel the order of the verdict form. Therefore, they will be left in this order. However, the Committee agreed to change the "other defenses" section to a note to state that any other applicable defenses should be inserted here. The Committee determined that it was not essential to keep the paragraph numbering the same within this instruction because it has not been in use for very long and because Shepard's is being replaced by other services which allow people to research by terms instead of specific numbers. The Committee revised and corrected the note on use. Another note on use was formulated to address the possibility of other defenses. A copy of the version adopted at this meeting will be sent to each member with the minutes. Each member should review it in detail and provide comments and objections. A time deadline will be provided. If no objections are raised, this version will be published for comment by the Bar.

SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL)

Florida Bar Offices Tampa Airport Marriott Tampa, Florida November 11, 1999 9:00 a.m.

Appendix D, Page 9 (1) MISREPRESENTATION (Tab 10).

Walbolt presented discussion regarding the proposed Note 5 to MI 8. Walbolt related that Griffin has expressed concern to her earlier (Griffin was not in attendance) that there might be a need for two instructions in Florida -- one for the common law tort of negligent misrepresentation and one for the Restatement (Second) of Torts cause of action as adopted by the Florida Supreme Court in Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So. 2d 334 (Fla. 1997). In other words, did Gilchrist create a new cause of action in Florida? Altenbernd commented that Gilchrist did not overrule the common law misrepresentation cases in Florida, yet one cannot square section 552 of the Restatement (Second) of Torts with many such common law cases decided by the Second District Court of Appeal. Altenbernd further commented that the common law cause of action in Florida may not be so limited in some respects as the cause of action stated by section 552 of the Restatement (Second) of Torts. The current MI 8 traces the common law case law in Florida. In light of the adoption of section 552 of the Restatement (Second) of Torts in Gilchrist, Altenbernd acknowledges that there is a current state of confusion as to the tort of negligent misrepresentation in Florida. Accordingly, it may be premature for the Committee to act on this issue. It was noted that Johnson v. Davis case was limited to residential situations. The Gilchrist Court, however, confirmed Johnson in a commercial case. Walbolt continued to address Note 5 by mentioning that the first sentence makes it clear the Committee takes no position as to whether there are two distinct causes of action in Florida. Webster further noted that the Note says that section 552, Restatement (Second) of Torts may not fit all situations. Further, the revised MI 8 is being held up by the Committee’s revisions to this Note. Accordingly, with the following changes, the Note will be submitted. First, the word “will” in the second sentence of the Note will be changed to “may.” Second, a full cite to Gilchrist [See Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So. 2d 334 (Fla. 1997)] will be added after the first sentence. A suggested sentence which would clarify that the Committee takes no position as to whether the common law Florida cases are still good law after Gilchrist, was rejected, after discussion. This subcommittee will now continue working on a model instruction for section 552 of the Restatement (Second) of Torts. The subcommittee will be losing two members, but still has a sufficient

Appendix D, Page 10 membership of five.

SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL)

Omni Jacksonville Hotel 245 Water Street Jacksonville, Florida February 18 & 19, 2000 1:00 p.m. to 5:00 p.m. (Friday) 8:30 a.m. to Noon (Saturday)

6. MISREPRESENTATION (Tab 10).

Walbolt reported that the subcommittee was still trying to determine what to do with Restatement (Second) of Torts § 552. The subcommittee was going to meet on Saturday morning to chart its course.

SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL)

The Breakers One South County Road Palm Beach, FL 33480 July 21 & 22, 2000 1:00 p.m. to 5:00 p.m. (Friday) 8:30 a.m. to Noon (Saturday)

(l) MISREPRESENTATION (Tab 10).

Walbolt led the discussion. At the outset, Walbolt announced that she called ALI to see if they keep track of restatements that have been adopted in the various states. She was informed that they do not. Before actually looking at the proposed MI 8.1 instruction for Restatement(Second) of Torts §552, Walbolt flagged two issues. First, there is an open question whether this instruction is needed at all, or whether it is already covered by instruction MI 8. The subcommittee recommended that the proposed

Appendix D, Page 11 instruction MI 8.1 is needed. Second, there is a question as to whether reasonable reliance is still needed in light of the adoption of comparative negligence for negligent misrepresentation cases in Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So. 2d 334 (Fla. 1997). Walbolt further explained to the committee that the subcommittee grappled with the materiality requirement. Walsh researched the issue and found nothing. The subcommittee felt that §552 does not allow recovery for immaterial misrepresentations. In the end, the subcommittee recommended leaving materiality in and defining the term. Walbolt concluded her overview of the subcommittee’s work by commenting on Griffin’s research as to the use of the terms “economic” and/or “pecuniary”. The issue was whether there is a preference for using one of the terms over the other in the context of negligent misrepresentation, or whether there is a reason not to use one of the terms. Griffin found a Second District Altenbernd opinion that used “economic” in the context of Restatement(Second) of Torts §552. The subcommittee recommended the use of the term “economic” in proposed instruction MI 8.1. At this point, Walbolt turned the subcommittee’s presentation over to Altenbernd. He reported about the drafting and thought process behind proposed instruction MI 8.1. He started by reporting that the committee’s proposed note to MI 8 regarding comparative negligence is still pending at the Florida Supreme Court [Reporter’s note: this opinion, case No. SC99-151, issued after the July 2000 meeting]. Altenbernd also explained that Farmer did not think the Florida Supreme Court intended to adopt §552 in toto in its Gilchrist opinion. Altenbernd explained Farmer’s position that the Court uses certain terms of art when it intends to fully adopt a legal position or doctrine. Farmer did not believe that the Gilchrist opinion showed a desire to adopt §552 in its entirety. To the contrary, Altenbernd reported that most of the subcommittee does not read Gilchrist so narrowly.

Accordingly, the question then arises as to whether §552 is meant to replace the common law cause of action, or to supplement it. Importantly, there are two opposing views as to this issue on the subcommittee. Griffin would scrap MI 8 and only have the proposed MI 8.1. Farmer would only have MI 8. Altenbernd explained that the existing MI 8 does not require the plaintiff to have had a pecuniary or economic interest. Altenbernd further commented that if the committee adopts two instructions, some plaintiffs will try to get the both instructions given in the same case.

Appendix D, Page 12 Beckham asked Altenbernd to explain the difference between the MI 8 instruction and the proposed MI 8.1 instruction. Altenbernd explained that some of the differences include 1) an economic interest by the plaintiff is needed in proposed MI 8.1; and 2) the “Fourth” paragraph in the proposed §552 instruction is new, as is the “Fifth” paragraph. Altenbernd explained that his definitions as to “false information,” “supply of information,” and “materiality” are based on intuition, but he believed they are accurate. Altenbernd proceeded to discuss materiality. He did think that it is an element of the §552 tort, but he was concerned with the issue. Does it have to be a deal breaker or a deal modifier, he queried. As stated by Walbolt earlier, Walsh looked for case law, but could not find any, although Gilchrist used the term “material”. Altenbernd opined that materiality may actually collapse with “providing guidance” and might be able to be removed on that ground. Griffin contributed that materiality should stay in the proposed MI 8.1, but she would edit MI 8.1(b) to flag the fact that materiality is being defined there. Beckham emphasized that Restatement(Second) of Torts §552 does not use the term “material” on its face. Walbolt asked whether, in the absence of a materiality requirement, there could be an implication that immaterial facts negligently misrepresented could be actionable. Beckham answered by going back to the face of §552, where there is no such materiality requirement. Stewart asked how a fact could ever be immaterial if it was provided for the guidance of others. Webster agreed that it could not be. Webster questioned whether the time is right to create a §552 instruction in recognition that there is scant case law on the point. Griffin responded that there is much relevant case law nationwide. Webster opined that if the committee is going to do this, it must tell the Court that it is making assumptions. Walsh commented that it would not be unusual to have a jury instructed on both fraud and negligent misrepresentation, and that a jury would be confused if it were presented two different definitions of the term “material”. Altenbernd suggested removing the word “reasonably” from element “Sixth”. Webster agreed with that suggestion, citing the comparative negligence defense over which the committee argued at length when drafting a comment for instruction MI 8. Altenbernd asked whether a directed verdict could be granted if it is obvious that the plaintiff is 100% at fault. Beckham asked why the current MI 8 would not be mooted by the

Appendix D, Page 13 proposed MI 8.1. Altenbernd responded that there are common law gratuitous misrepresentation cases which would not be actionable under MI 8.1. Griffin said that Gilchrist set forth the only cause in Florida and that the other cases are mostly dicta. Gerald asked Altenbernd if MI 8 and MI 8.1 would represent causes of action that are mutually exclusive. Wagner suggested that Gerald’s concern could be alleviated with a note on use that says that both MI 8 and MI 8.1 generally should not be given in the same case. Cobb picked up on Beckham’s issue and said that §552 does not have the word “material” on its face. How can the committee use it if the restatement does not? Walbolt observed that the Gilchrist Court used the term “material” in its decision. Cobb changed his mind as to the inclusion of materiality (he would include it) after reading the Gilchrist case. Walsh commented that Gilchrist could be read to hold only that comparative negligence applies to negligent misrepresentation cases. Thus, the proposed comment to MI 8 may be sufficient to explain the Gilchrist holding. Altenbernd responded that more and more complaints are pleading the elements of a §552 action. Walbolt commented that if the committee chooses not to propose MI 8.1, she would want to expand the comment to MI 8. Altenbernd emphatically does not think Gilchrist meant to eliminate the doctrine of caveat emptor in one paragraph. Turning back to MI 8.1(b), Stewart recommended taking out the word “only” in that paragraph. Webster agreed. Further, Altenbernd thought everything else after the first two sentences should come out. Stewart explained that the sentence at issue is a “but for” materiality analysis. Gunn thought that a “but for” materiality analysis goes beyond the scope of §552. In the end, the committee decided that the third sentence of proposed MI 8.1(b) should come out. Stewart suggested putting “factual” in the “First” element, along with a sentence dealing with oral communications and written communications. Gunn suggested describing the difference between fact and opinion. Stewart responded that a description of the difference would be tricky in view of troubles encountered in libel law. Eaton reinforced that view. Walsh commented that on page 10-53, there is a comment to §552 which points to the fact/opinion distinction as not being relevant. If that is the case, it was suggested that the instruction should not include the word “factual”. Griffin asked if the alleged misrepresentation could simply be a hunch. It was suggested around the table that the omission of the word “factual” would create substantial problems. Stewart believed that the proposed MI 8.1 instruction had too many

Appendix D, Page 14 elements. He suggested combining the “Fourth” and “Fifth” elements. Altenbernd believed that the “Fifth” element could be the most important point in the whole instruction for a defense attorney. Stewart remained of the view that the “Fifth” element was cumbersome. Wagner asked if all elements are in contention in most cases. Altenbernd said that the “Second” element generally would not be in contention. Stewart said the fight would be over the “First” and “Third” elements. Wagner said product liability verdict forms do not have interrogatory verdict forms. Wagner reiterated that he is opposed to interrogatory verdict forms. Webster observed that defendants would want these elements on the interrogatory verdict form, given two-issue rule concerns. Altenbernd read the parallel negligence verdict form. Wagner explained that §402A has 6 elements, but noted that the committee’s jury instruction does not cover them all. Eaton called the committee’s attention to the Barth v. Khubani, case No. SC92697 (Fla. 1999) case, to draw attention to the concerns of the two-issue rule. Webster pointed to page 10-130 for the presence of the word “and”. Wagner reiterated his argument about the product liability instruction. Specifically, he supported the creation of a basic instruction that is tailored to the cases that are actually out there. The committee can drop a note indicating that more elements may be needed in certain cases. Webster disagreed with this analysis. Walbolt observed that the negligent misrepresentation instruction will often be given with the fraud instruction, so the committee should be tracking the same language in both. Further, Webster stated that others look to the instructions for the elements of a tort. Altenbernd concluded this discussion by highlighting that in most cases there would only be five elements. Stewart and Wagner both asked why damages was an element. Altenbernd said that damages is an element in a negligence claim. Makar announced that he is troubled by the element “Fourth”. It was his recollection that this tort was designed to be very narrow. He suggested adding language that indicates that it is limited to a specific transaction. Beckham stated that §552 is not restricted at all on its face. Makar disagreed, and cited two specific limitations. Makar said the tort required proof of both (i) a limited group of people; and (ii) a limited transaction. Stewart stated that Makar’s suggestion would eliminate the substantially similar transaction. Even there, Makar asserted, the particular transaction to which the subject transaction is substantially similar must be identified. Makar concluded by emphasizing that the comment to §552 makes clear

Appendix D, Page 15 that liability is laser focused, and very narrow. In the end, Altenbernd will continue to work on the proposed MI 8.1 and will report back at the October 2000 meeting.

SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL)

The Hilton St. Petersburg St. Petersburg, Florida October 20 & 21, 2000 1:00 p.m. to 5:00 p.m. (Friday) 8:30 a.m. to Noon (Saturday)

(j) MISREPRESENTATION (Tab 10).

Altenbernd led the discussion, which was based on pages 10-159 through 10-162, and the handout distributed at the meeting. Altenbernd recounted that both he and Griffin had drafted versions of a proposed MI 8.1 to account for the Florida Supreme Court’s Gilchrist Timber decision. Both of those drafts, discussed at the July 2000 meeting, contained seven elements for the tort. The committee felt that so many elements were burdensome and instructed the subcommittee to draft a proposed instruction with less elements. Altenbernd reported that the current proposal contains only three elements. Altenbernd led the committee through the current proposal. He stated that he liked the title of the current proposal. Further, he stated a belief that the addition of a causation element might alleviate the concern about materiality that had been expressed at the July 2000 meeting. Beckham thought it was confusing to frame exceptions to negligence. Pillans agreed and asked why the phrase “[t]he law does not require” was used instead of simply stating that “in order to establish a claim, the claimant must establish . . .” Altenbernd explained the quandary faced by the subcommittee: the subcommittee either needs to include all of these considerations as elements of the tort, or it needs to phrase the instruction as the current proposal is phrased, with the exceptions listed. Webster commented that if the tort has seven elements, those elements should all be listed as such. He suggested going back to the original

Appendix D, Page 16 approach, but also utilizing brackets so that elements not in dispute need not be given. Walbolt agreed and stated that, on reflection, the subcommittee should use the proposal at page 10-153 as its framework. Pillans questioned whether trial judges would really omit elements that are not is dispute. He stated that his experience was that trial judges would not omit such elements. Webster agreed that in most circumstances a trial judge would give all elements if the defendant asked for them all. But he continued to believe that all elements should be listed, but bracketed. Singer suggested that the proposal on page 10-153 could be shortened. He thought the seven elements could be divided into four groups: The first element asks whether there is a false statement. The second, third, and fourth elements deal with the defendant’s acts. The fifth and sixth elements deal with the claimant’s acts. And the seventh element deals with damages. Berman agreed that he could foresee a different grouping and that the proposed instruction could be given in four elements or less. Altenbernd suggested flipping the order of elements found on page 10-159. Doing that, a jury answer of “no” to any of the first three elements would be “endgame.” Eaton agreed that such an approach is common in many negligence cases involving threshold issues of status. The subcommittee will flip the order of elements found in the proposed instruction on page 10-159. That will create a threshold inquiry. A discussion of instruction 5.1 ensued. Walbolt observed that the Restatement definition of the tort makes no mention of a materiality requirement. Yet the Gilchrist Timber decision does speak of materiality. Farmer believed that the elements of the tort do not include a “but for” causation analysis. Altenbernd observed that the committee has always included a causation instruction in negligence cases. Webster inquired how causation could possibly be absent if the elements are satisfied. Altenbernd gave the example of the house buyer who wanted the house so much, the buyer would have bought it with or without the misrepresentation. Walbolt stated that the subcommittee may not have fully looked at the legal causation issue. Webster suggested that the committee may want to drop a note on use indicating that a 5.1 instruction may or may not be necessary in a given case. Webster also added that the committee recently included causation in

Appendix D, Page 17 the just-approved instructions. Singer observed that materiality is an objective concept and causation is a subjective concept. In federal securities actions, he noted, both materiality and causation are at issue. The subcommittee will research the legal causation issue and will continue to work on refining the proposed instruction. The subcommittee will be prepared to report at the February 2001 meeting.

SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL)

The Hilton Garden Inn 7300 Augusta National Drive Orlando, Florida 32822 February 16 & 17, 2001 1:00 p.m. to 5:00 p.m. (Friday) 8:30 a.m. to Noon (Saturday)

(6) MISREPRESENTATION (Tab 10).

Altenbernd reported for the subcommittee. He gave a historical overview for the benefit of the new members on the committee. The sense of the subcommittee is that after the Florida Supreme Court’s decision in Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So. 2d 334 (Fla. 1997), an instruction for Restatement (Second) of Torts § 552 is needed in Florida. The subcommittee also generally believes that MI 8 should remain in place. The new § 552 instruction will be labeled MI 8.1. Although the subcommittee had experimented with reducing the number of elements in the proposed instruction, Altenbernd reported that the current proposal (see page 10-165) has six elements. Altenbernd then read the proposed instruction to the committee so that committee members could hear what it would sound like read aloud to a jury. Walbolt asked if the subcommittee was unanimous in its recommendation. Altenbernd responded that the subcommittee was unanimous that the proposal was a good one, if a new instruction was going to be implemented at all. Griffin commented that she likes the proposal. Altonaga asked why the proposal did not include any more definitions. Altenbernd responded that there is very little case law to draw upon to frame such

Appendix D, Page 18 definitions, and the subcommittee’s efforts to draft definitions proved unsatisfactory. Griffin added that the subcommittee worked toward the goal of drafting the instruction in plain English, but that § 552 creates an extremely complicated cause of action. Altenbernd also explained that an earlier draft had attempted to define what it meant to be in the limited group for whom the information was intended, but that attempted definition did not work well within the rest of the proposed instruction. Likewise, an earlier draft had attempted to define “economic interest,” but that definition had essentially been pulled out of the air. That is why the subcommittee has now discarded that definition. Altenbernd reminded the committee that the term “economic” had been chosen by the subcommittee to replace the Restatement’s use of the term “pecuniary.” Walbolt suggested adding a note that might explain the subcommittee’s choice in this regard. Altenbernd observed that he believed the fourth and fifth elements are likely to be subject of a directed verdict. In that event, they would drop out of the instruction. Caldwell observed that the subcommittee had dropped the term “negligent misrepresentation” altogether. He asked whether that was a good idea. Altenbernd explained that, until a court decides the matter definitively, it is likely that claimants will ask for both the MI 8 and MI 8.1 instructions. Thus, the subcommittee opted to distinctly label the two instructions. Altenbernd drew the committee’s attention to the fact that the current proposal has no definition of causation. Walsh commented that the comparative negligence instruction has a legal causation element, thus it should be defined. Eaton observed that the proposal discusses legal cause twice and therefore needs a definition. It was suggested that if a causation definition were to be added, it should go between paragraphs e and f on page 10-167. Walbolt suggested excising the legal cause element from the comparative negligence instruction. Eaton disagreed and stated that a concurrent cause instruction would be appropriate in the situation where legal cause and comparative negligence were issues. Beckham suggested a definition that simply cross-references to Instruction 5.1. This met with concensus approval from committee members. Altenbernd stated that section f on 10-167 will now cross-reference Instruction 5.1 and a note on use will refer to the use of the term “economic loss.” Turning back to the fifth element, Altenbernd further explained that the

Appendix D, Page 19 subcommittee had to require that the claimant’s reliance be justifiable because the Gilchrist Timber Court expressly allowed for a comparative negligence defense. Walsh suggested that MI 8 should also be altered to reflect the changes discussed for MI 8.1. Walbolt agreed. Going back to the first element, Webster inquired why it specified “orally or in writing.” Lumish observed that the committee make no similar specification in MI 8. The committee was comfortable with omitting the phrase “orally or in writing” from the first element. Makar believed that elements one and three were too disconnected in the current proposal and suggested that they might be combined. Then, Makar thought the fourth element would naturally flow from the new combined first element. In this regard, Walbolt suggested moving the second element to just before the fifth element. Griffin said she would combine the first and third elements, but would not move the second element to the other side of the fourth element. Walsh stated that she had no problem with changing the sequencing, but was concerned that combining elements may cause two-issue rule problems. Neither Altenbernd nor Eaton were as concerned about this potential problem. The committee was generally comfortable with these suggested changes. Altenbernd agreed to clean the changes up overnight and present a clean version Saturday morning. Before moving on to another topic, however, he asked the committee to examine the notes on use on pages 10-167 and 10-168. A discussion of whether there should be a preemptive charge instruction ensued. A preliminary conclusion was reached to remove that instruction. As to note 4, Pillans suggested changing the language “reserves the question of whether” to “takes no position as to whether” because the committee itself will never be deciding whether MI 8.1 supplants the claim described by MI 8. Wagner suggested using the term “economic damage.” After discussion, the committee agreed and decided to use the term “economic damage” across the board in this proposed instruction. On Saturday morning, Altenbernd presented the revised instruction to the committee. After seeing the revised proposal for MI 8.1, Lumish asked whether the committee also now needs to clean up MI 8. Altenbernd responded that the committee may indeed have to do that. The following note on use was suggested: “If defenses other than comparative negligence are presented to the jury, additional instructions will need to

Appendix D, Page 20 be used.” Stroker suggested adding the clause “are not adequately covered” rather than the current proposal in comment 2 which reads “may not be adequately covered.” He felt that would send a stronger signal to trial judges that additional instructions will be needed in certain circumstances. In response to a comment comparing the “common law” MI 8 action with the Restatement MI 8.1 action, Walbolt observed that the Restatement is part of the common law. Webster followed up on this observation by commenting that what the committee really wants to say is that it has no idea whether MI 8 still exists, not whether one is common law and the other not. The committee basically reached concensus on the MI 8.1 instruction and its comments. Altenbernd will finalize instruction and comments and they will be attached to these minutes. [See Attachment C] If no responses are received from committee members within 10 days of the date these minutes circulate, the instruction and comments will be published.

SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL)

The Breakers One South County Road Palm Beach, Florida 33480 July 12-14, 2001 1:00 p.m. to 5:00 p.m. (Thursday) 9:00 a.m. to Noon (Friday) 8:30 a.m. to Noon (Saturday)

4. MISREPRESENTATION (Tab 10).

Altenbernd led the discussion. He reported that, subsequent to publication in the May 15, 2001 Florida Bar News, one set of comments was received. He addressed the comments received from Michael D. West and George W. Hatch, III, which comments can be found at pages 10-171 through 10-173. Altenbernd first commented that the subcommittee does not accept the suggestion by West and Hatch that the phrase “in the course of” (instead of just

Appendix D, Page 21 “in”) be added to the statement of the first issue. As to the statement of the second issue, there is no need for or suggestion of a change. As to the statements of the third and fourth issues, West and Hatch brought the “end and aim” language to the subcommittee’s attention. That language can be found in Justice Grimes’s opinion in First Florida v. Max Mitchell, 558 So. 2d 9 (Fla. 1990). Altenbernd believed that the “end and aim” language comes from a privity line of cases and not from §552 jurisprudence. The subcommittee rejected the suggested change to the sixth element suggested by West and Hatch. That suggestion can be found on page 10-173.

The discussion then turned to the third element. Altenbernd observed that this element focuses on the claimant’s status. Griffin suggested adding the phrase “in the course of” to the third element. Farmer suggested the alternative, “in connection with,” for the third element, and observed that “in the course of” came up in the respondeat superior line of cases. Stroker added that he thought “in the course of” would work well in the third element. Consensus was reached that “in the course of” would be added into the third element. Farmer commented that he did not think the phrase “false information” needed to be included in the third element. Berman observed that the third element really contains two tests. First, it must be determined whether the defendant intended to supply information to members of a class; and second, it must be determined whether plaintiff is a member of that class. Eaton asked about the concept of pass-along information in those cases where the plaintiff was not the direct recipient. Farmer recalled reading something recently that indicated that §552 might be limited only to those cases where the information was directly supplied. Griffin suggested returning the draft to the subcommittee for more work. Farmer seconded that motion. The subcommittee will continue to work and will report at the November 2001 meeting.

Appendix D, Page 22 SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL)

Adams Mark Hotel 225 Coastline Drive Jacksonville, Florida 32202 November 9-10, 2001 1:00 p.m. to 5:00 p.m. (Friday) 8:30 a.m. to Noon (Saturday)

8. MISREPRESENTATION (Tab 10).

Altenbernd led the discussion. He gave a brief background discussion of how the subcommittee created the current proposal. He explained that the current proposal has been framed in eight issues at one point but that it now contains six issues. He stated that his remaining concerns centered on the third issue and on the issue of damages. With that said, he read the current version of the proposal, which is found on page 10-176.

Altenbernd explained that the alternative phrasing of issue three was meant to address subcommittee concerns about dealing with the limited group concept. Lewis stated that he liked the first version of the third issue better than the second version. Singer questions for which business transaction the supplied false information had to be used. Webster suggested adding the word “claimant’s” in parenthesis to eliminate this ambiguity. The committee agreed that the word “claimant’s” should be added in parenthesis to eliminate the ambiguity raised by Singer. Stewart suggested that the asterisk note after issue three could be moved and made a Note on Use. The committee agreed that this asterisk note should be made a Note on Use. He also explained that the current proposal has not changed previous versions of b c, d, or e. Then, Altenbernd proceeded to a discussion of the damages issue. He explained that the general understanding is that damages under this cause of action are reliance damages and not benefit-of-the-bargain damages. Yet, subsection g does not so limit the damages instruction in this proposal. Marra suggested that the damages issue should be refined to reflect the Restatement’s position. Webster commented that the committee should at the very least flag the

Appendix D, Page 23 issue. Gerald inquires why, if the Restatement is specific, the committee would avoid such specificity. Altenbernd observed that negligent misrepresentation damages may be similarly limited under the law. Webster then commented that the approach taken in instruction MI8(h) may be the better approach, which would entail using the MI8(h) language and adding a comment. The subcommittee will track instruction MI8(h) in this proposal and will add a comment like MI8’s Comment 3 to this proposal. Walbolt then asked why the third issue is not subsumed in the fourth issue. Singer and Webster explained that both issues were necessary to deal with accounting situations. Altenbernd used the example of a buyer of a building calling the local electric utility and asking for the annual utility cost for the subject building. If the electric utility responds 12,000 instead of the actual 72,000, it is still inaccurate to say that the electric utility “intended the false information to influence (claimant) in this business transaction,” the aim of the fourth element. Beckham started a discussion about the use of the terminology “false information.” He asked whether “inaccurate” would be preferable (and more correct) than “false.” Altenbernd responded that the Restatement uses “false,” but that “incorrect” would probably also reflect the intent of the drafters. With that said, though, Altenbernd also noted that if the proposal is changed from “false” to “incorrect,” the committee will receive comments about the departure. He also observed that the committee would have to change the terms throughout the instruction. Walsh observed that the Gilchrist case used “false” or “erroneous.” Webster commented that “incorrect” suggests negligence more than “false” does. Singer was concerned that “incorrect” could be read to mean something other than just plain wrong. Webster stated that “incorrect” is stronger than “inaccurate” and therefore is probably closer to the Restatement’s view. Wagner voiced his support for the use of “incorrect.” Singer reiterated that he sees a nuanced difference between “incorrect” and “false” and would support the use of “false.” Altenbernd reported that absent subcommittee members would vote as follows: Farmer would support “incorrect,” while Griffin would support the use of “false.” The committee decided to use the term “false” in this proposed instruction. Wagner asked if the sixth issue should be proceeded by an “and if so” lead-in. Without it, he thinks there is a disconnect in the proposal. Lewis said an “and if so” lead-in is not needed. Altenbernd commented that the committee does

Appendix D, Page 24 not use an “and if so” lead-in when the instruction is numbered as is this proposal. Singer suggested putting the following at the beginning of the instruction: “The claimant must prove all of the following.” Webster said that the committee has never taken that approach. Wagner commented that the proposal never clearly says that the plaintiff must prove all of the elements. Mitchell observed that the current proposal tracks instruction MI8 in its format. Beckham asked whether there should be an “and” after each issue of the proposal. It was observed that MI8’s negligent misrepresentation instruction places an “and” only after the penultimate issue. It was also recognized that MI8’s fraudulent misrepresentation instruction is missing an “and” after the fourth issue. The committee decided to fix that omission upon the next publication. It was decided that the committee would not place an “and” after each issue. Wagner suggested taking the MI8 instructions and this proposal to a linguistics expert to see if they make sense to non-lawyers. Webster responded that such an expert would have no context, whereas the jury does have context when the instructions are given. Gerald asked about changing the burden of proof section. Altenbernd asked about adding the lead-in sentence, “The plaintiff must prove all of the following element.” Walbolt responded that such a change would have to be made in MI8 as well to make it consistent. Singer asked, pursuant to the committee’s goal of using plain English, whether MI8 and the proposed instruction should be re-formatted. Altenbernd asked if Singer’s subcommittee would look at how MI8 and the proposed instruction would be impacted by a plain English revision. The proposal with the approved changes will be attached to these minutes with redlining showing the changes. It will then be published again for comment. Singer’s Plain English subcommittee will explore possible clarifications to MI8 and the proposed instruction.

Appendix D, Page 25 SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL)

Judicial Meeting Room Supreme Court of Florida 500 South Duval Street Tallahassee, Florida February 22-23, 2002 1:00 p.m. to 5:00 p.m. (Friday) 8:30 a.m. to Noon (Saturday)

3. MISREPRESENTATION (Tab 10).

Altenbernd led the discussion. He referred the committee to page 10-181 of the materials. He reported that, upon a second publishing, some comments were received. Comments from attorney Tim Morell, found at pages 10-182 through 10- 184, were first discussed. Altenbernd discussed Morell’s comments about the “justifiably relied” language in the proposed instruction. Altenbernd disagreed with Morell’s analysis on this point (which asserts that the “justifiably relied” language is borrowed from fraud and has no place in this negligence tort), instead observing that the “justifiably relied” language does not appear in the fraud instruction, but only in the negligent misrepresentation instructions. Altenbernd concluded that he did not see how the “justifiably relied” language could legitimately be omitted. As to Morell’s comment that the burden-of-proof language in the “Burden of proof on defense” section is redundant, Altenbernd observed that the language tracks the form and substance of Instruction 3.8. He recommended not adopting Morell’s comment in this regard. Altenbernd then turned to the comment received from Richard Solomon (found on page 10-185). Solomon was, in part, concerned that the instruction ignores the economic loss rule defense. Altenbernd observed that juries are not instructed on the economic loss rule. Turning back to the concept of justifiable reliance in the proposed instruction, Altenbernd commented that there is a threshold issue of whether the statement is facially questionable. If so, he did not believe that a claimant could justifiably rely upon it and no §552 claim would exist in that circumstance. On the other hand, there could be statements where the claimant could justifiably rely, but prudent people would nevertheless investigate. This highlights the possible tension

Appendix D, Page 26 between the concept of justifiable reliance and the concept of comparative negligence. The subcommittee has carefully considered that tension in drafting its proposal. Farmer noted that a new case from the Fourth District Court of Appeal addresses the §552 situation where lenders rely upon financial statements prepared by auditors. [Reporter’s Note: That case can be found at Nationsbank, N.A. v. KPMG Peat Marwick L.L.P., 2002 WL 237760 (Fla. 4th DCA Feb. 20, 2002).] Farmer also cautioned about making broad pronouncements about the relationship between justifiable reliance and comparative negligence. He stated that the law may still be in flux. Altenbernd noted that comment 4 to MI 8 is supposed to be the red flag as to this uncertainty in the law. The committee decided to submit the proposed instruction to the Court as proposed, and without the modifications requested by those who responded to the publication.

Appendix D, Page 27 APPENDIX E PROPOSED REVISIONS TO INSTRUCTION 3.3a 3.3

ISSUES AS TO VICARIOUS LIABILITY

The [first] [next] issue for your determination on the claim of (claimant) against (defendant) on account of the alleged negligence of (name) is:

EXAMPLES: a. Owner, lessee, or bailee or person in control of vehicle driven by another:

whether (defendant) was the [owner] [lessee] [or] [bailee] of [owned] [or] [had the right to control] the vehicle driven by (driver) and whether (driver) was operating the vehicle with the express or implied consent of (defendant). A person who [owns] [is the lessee of] [or] [is the bailee of] [or] [has the right to control] a vehicle and who expressly or impliedly consents to another’s use of it is responsible for its operation.

[An owner of a vehicle is one who has legal title to the vehicle and who has the right of control and authority over its use.]

[A lessee of a vehicle is one who has leased or rented the vehicle from its owner.]

[A bailee of a vehicle is one to whom the vehicle has been furnished or delivered by [its owner] [a person with authority over its use] for a particular purpose, with the understanding that it will be returned.]

Note on use of 3.3a

The general rules stated above will be appropriate in most cases in which there is an issue concerning the status of a defendant under Florida’s “dangerous instrumentality” doctrine. See generally Aurbach v. Gallina, 753 So.2d 60 (Fla.

Appendix E, Page 1 2000). They are subject to a number of exceptions, however. For example, the owner of a vehicle who has delivered possession of it to another under a conditional sales contract, and who has complied with all the requirements of §319.22, Fla. Stat., is not liable for its negligent operation. See Aurbach v. Gallina, supra; Palmer v. R. S. Evans, Jacksonville, Inc., 81 So.2d 635 (Fla. 1955). The owner of a vehicle who has leased it to another under a lease for one year or longer, and who has complied with all the requirements of §324.021(9)(b)1, Fla. Stat., is not liable for its negligent operation. See Ady v. American Honda Finance Corp., 675 So.2d 577 (Fla. 1996). Additional limitations upon vicarious liability are set forth in §§324.021(9)(b) and 324.021(9)(c), Fla. Stat. An owner or lessee who has delivered a vehicle to a repair shop for maintenance is ordinarily not liable for its negligent operation during servicing, service-related testing, or transport of the vehicle by the bailee. See Michalek v. Shumate, 524 So.2d 426 (Fla. 1988); Castillo v. Bickley, 363 So.2d 792 (Fla. 1978). Although an owner is liable for a personal injury negligently inflicted by a bailee upon a third party, an owner is not liable for a personal injury negligently inflicted by a bailee upon a co-bailee. See Raydel, Ltd. v. Medcalfe, 178 So.2d 569 (Fla. 1965); May v. Palm Beach Chemical Co., 77 So.2d 468 (Fla. 1955). There is a split of authority as to whether an owner is liable to the survivors of a co-bailee for a wrongful death negligently inflicted by a bailee upon the co-bailee. Compare Enterprise Leasing Co. v. Alley, 728 So.2d 272 (Fla. 2d DCA), review denied, 741 So.2d 1135 (Fla. 1999), with Toombs v. Alamo Rent-A- Car, 762 So.2d 1040 (Fla. 5th DCA 2000), review pending. And proof of express or implied consent is not required where an unattended vehicle has been stolen because the owner left the keys in the ignition. See Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467 (Fla. 1978); Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla. 1977).

Other exceptions may exist for which special instructions may be required. See generally 4A Fla. Jur.2d, Automobiles and Other Vehicles, §§667-91. The instruction may also have to be tailored to fit the particular factual circumstances of the case.

Comment on 3.3a

Dangerous instrumentality. The committee recommends that the court not charge the jury that an automobile is a “dangerous instrumentality,” such a charge being unnecessary and essentially argumentative.

Appendix E, Page 2 APPENDIX F MATERIALS CONSIDERED BY THE COMMITTEE REGARDING INSTRUCTION 3.3a APPENDIX G MINUTES EXCERPTS REGARDING INSTRUCTION 3.3a SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL)

The Breakers One South County Road Palm Beach, FL 33480 July 21 & 22, 2000 1:00 p.m. to 5:00 p.m. (Friday) 8:30 a.m. to Noon (Saturday)

10. VICARIOUS LIABILITY—3.3(a) Aurbach v. Gallina (Tab 1).

Eaton reported for the subcommittee. The subcommittee has been looking at instruction 3.3(a) in the light of the Aurbach v. Gallina, 753 So. 2d 60 (Fla. 2000), case. The subcommittee had drafted a proposed instruction that can be found on page 1-8. Wagner commented that he had trouble with this proposed instruction, in that he did not know exactly what a bailee is in this circumstance. Eaton responded that the instruction would only be given where there is an issue involving a bailee. Further, Ficarrotta commented that, later in the instruction, the subcommittee would define the terms. This part of the instruction simply frames the issue. Stewart suggested the following format for the instruction:

Is A liable for the actions of B?

A is liable for the actions of B if he is an owner, bailee or lessee.

An owner is ...

A bailee is ...

A lessee is ....

Webster supported the idea of adding the definitions. Altenbernd emphasized that the footnote in Aurbach only said to consider whether the instruction needs to be changed. It did not dictate that the instruction

Appendix G, Page 1 must be changed. There may be reasons to leave the instruction as it is. Wagner agreed that the committee may not want to change the instruction, but he would recommend at least adding a note on use. The committee determined that the vicarious liability materials will be kept behind Tab 13 and that the subcommittee will consider both options (change the instruction or add a note on use) and report back at the October 2000 meeting in St. Petersburg.

SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL)

The Hilton St. Petersburg St. Petersburg, Florida October 20 & 21, 2000 1:00 p.m. to 5:00 p.m. (Friday) 8:30 a.m. to Noon (Saturday)

6. VICARIOUS LIABILITY (Tab 13).

Eaton led the discussion based upon a handout at the meeting. The proposed changes he discussed were necessitated by the decision in Aurbach v. Gallina, 753 So. 2d 60 (Fla. 2000). Stroker asked whether the proposed revision would reach equitable owners. A discussion ensued about the continuum of conditional sales contracts and the concept of beneficial ownership. It was stated that addressing all of these matters in the proposed revision would complicate the law rather than clarify it. Eaton explained that the note on use contains a string of exceptions to the general instruction. He stated that any attempt to include all of the exceptions in the proposed instruction would lead to a multi-page instruction. Altenbernd asked if this basic instruction has ever been used. He suggested that the instruction provides a fine shell, but the committee should add a note on use that tailoring would be appropriate in most circumstances. Eaton agreed that the instruction only provides a shell, but stated that he believed that was fine. Turning to the specifics of the proposal, Singer suggested that the definition of bailee could be made less unwieldy by phrasing it as “one who receives a vehicle from the owner for a particular purpose . . . “ Cobb commented that it was delivery, and not receipt, that was important in the definition of a bailee. Eaton stated

Appendix G, Page 2 that he thought the mental image was stronger with the wording he suggested on this point. Griffin asked whether there can be a “string” or chain of vicarious liability, thus implicating a series of entities or individuals. Altenbernd and Eaton responded that there could be such a string of vicarious liability. Turning to the phrase “for a particular purpose,” Pillans asked whether a situation wherein an owner says, “here is my car, use it” would be sufficient. Cobb thought that such a situation would in fact be a particular purpose. Webster inquired whether a jury wouldn’t want to know what is the particular purpose. Eaton stated that the cases require a particular purpose or a specific object. Farmer asked whether chapter 324 or the UCC might give guidance to the committee in crafting a definition for the term “bailee.” Eaton suggested that the definition of “bailee” would only be needed in limited circumstances. Webster disagreed and stated that situations with bailees would not be rare. Walbolt observed that the phrase “by its owner” in the definition of bailee is not broad enough to cover many frequently-occurring situations. Stroker suggested eliminating the reference to the term “owner” in the definition of bailee. Webster stated that he thinks the proposal solves the problem presented by the Aurbach decision. But it might create other problems. He wondered whether the committee should worry about such speculative and fact-specific problems at this point in time. Farmer suggested an approach to defining the term “bailee” not in regards to how the bailee got the property, but rather in regards to what the bailee actually has. Gerald suggested that, because nobody knows what a bailment is, the committee should table this issue until the next meeting when it might have some guidance. Walbolt suggested returning to Eaton’s original draft. Cobb added that he thought the proposed comment would be helpful, though. Webster further added that the terms such as bailee must be defined if they are going to be used. Altenbernd suggested that the instruction should only provide the basic framework. He thought that a note on use could clarify that the instruction would have to be tailored to specific circumstances in a given case. Webster suggested that a note on use should also be dropped that contains the definitions. Pillans would also drop a note on use explaining the meaning of the Aurbach decision. Farmer stated that the committee’s charge is found in footnote 5 of the Aurbach decision. After stating that he did not believe the committee does the Bar any good by simply solving footnote 5, Eaton explained that he has expanded that charge to address lessees and bailees as well.

Appendix G, Page 3 Stroker suggested solving the definitional problem by inserting the phrase “[owner][or in lawful possession]” into the instruction. Cobb responded that the formulation “in lawful possession” is misleading and does not ensure that there is a property interest involved. Webster stated that a note on use could clarify that additional instructions might be necessary if “in lawful possession” is at issue. It was then suggested that the formulation “[or in authorized possession]” might substitute for “[or in lawful possession]” to alleviate Cobb’s concern. The committee concluded that Eaton would continue to work on the instruction.

SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS (CIVIL)

The Hilton Garden Inn 7300 Augusta National Drive Orlando, Florida 32822 February 16 & 17, 2001 1:00 p.m. to 5:00 p.m. (Friday) 8:30 a.m. to Noon (Saturday)

8. VICARIOUS LIABILITY (Tab 13).

Eaton led the discussion based on materials found between pages 13-15 and 13-26. The proposed changes he discussed were necessitated by the decision in Aurbach v. Gallina, 753 So. 2d 60 (Fla. 2000). Eaton specifically directed the committee to pages 13-25 and 13-26. He explained that he has modified the definition of “bailee” in accordance with earlier concerns by the committee. Beckham questioned the last clause of the definition and asked how one would “complete a purpose.” Following upon this question, Wagner asked whether the purpose really has to be completed in any event. He explained that the First District Court of Appeal has ruled that even in situations where the bailee changes the purpose, the owner is still liable. Webster commented that the “bailee” definition would only be given in situations wherein there is a question of fact in this regard. Stroker added that these issues are often argued as matters of law on summary judgment.

Appendix G, Page 4 Cobb explained that one who has no authority cannot create a bailee. The test of authority is whether there is a property interest. Mitchell asked about the difference between a bailee and a permittee. Cobb responded that the Aurbach Court only attached liability to owners, lessees, and bailees, not to permittees. Altenbernd then asked the status of the beneficial owner cases. Eaton agreed that Altenbernd’s question raised a sufficiently complex issue that it should be addressed in a note on use. Griffin suggested adding an equitable ownership case to the note on use to cover this issue. Gerald suggested using the Palmer v. R.S. Evans, Jacksonville, Inc., 81 So. 2d 635, 637 (Fla. 1955) case to exemplify the point. Cobb was concerned that equitable owners may not qualify as owners under the case law. It was also suggested that Eaton change “that” to “who” in the clause in the note on use which had read “For example, the owner of a vehicle that has leased it to another under a lease for one year or longer . . . .” The committee agreed this change should be made. Eaton worked on the proposed instruction on Friday night and reported back on Saturday morning. He suggested adding references to both the Aurbach decision and the Palmer decision in the note on use in order to cover the conditional sales contract situation. On rereading the definition of “bailee,” Farmer suggested that using the word “delivered” may too strictly define the term. Singer suggested the word “given” instead. Eaton thought the word “given” would imply a gift. Stroker agreed. Wagner offered the word “furnish” as an alternative. Eaton explained that Black’s Dictionary used the word “delivered” in its definition. Gerald suggested using “furnished or delivered” in the definition. The committee agreed on this alternative. The committee decided to change the “that” to “who” in the note on use, as indicated above. Further, the definition of “bailee” will be amended to indicate that “[A] bailee of a vehicle is one to whom the vehicle has been furnished or delivered . . . .” The definition of “bailee” also will be truncated to end after the word “returned,” thus omitting the clause “upon completion of that purpose.” The Palmer and Aurbach cases will be added to a note on use to deal with the situation wherein there is a conditional sales contract. With these changes, the instruction will be circulated with these minutes. [See Attachment D] If no responses are received from committee members within 10 days of the date these minutes circulate, the instruction will be published for comment.

Appendix G, Page 5