D.P. MARSHALL, Jr., District Judge.
1. The Hardings' motion in limine, No. 24, is granted by agreement.
2. The Court will hold a pre-trial hearing by telephone at 10:00 a.m. on Wednesday, 10 June 2015.
3. The Court appreciates the parties' suggestions about jury instructions. The Court is attaching its current working drafts of (1) the preliminary instructions, (2) the final instructions, and (3) the verdict forms.
So Ordered.
Ladies and gentlemen of the jury: Here are some initial instructions about this case and your duties as jurors. During the trial, I will give you more instructions. And at the end of the trial, I will give you final instructions. Follow all my instructions.
I am the judge of the law and you are the judges of the facts. As judges of the facts, it's your duty to determine the truth from the evidence and the reasonable inferences arising from the evidence. In making your factual decisions, you must not engage in guess work or speculation.
As I explained during voir dire, this isa civil case brou ght by Jonnas Harding and Rodney Harding against Dollar Tree Stores, Inc. After reaching for a bottle of detergent from a shelf in the Deals store in Jonesboro, Jonnas Harding got tangled up in an empty wire handbasket rack and fell, injuring herself. She contends that Dollar Tree was negligent in maintaining and using the rack. She also contends that Dollar Tree was negligent in training and supervising its employees. Mr. Harding claims a loss of consortium based on his wife's injuries. Dollar Tree denies that it was negligent in any way. It says the rack was an open and obvious condition, which Mrs. Harding did not have to encounter. It also contends that Mrs. Harding was the one who was negligent in her trip and fall.
It will be your duty to decide from the evidence whether Mrs. Harding is entitled to a verdict against Dollar Tree her negligence claim and whether Mr. Harding is entitled to a verdict on his loss of consortium claim.
This case should be considered and decided by you as a dispute between persons of equal worth. All persons stand equal before the law and are to be treated as equals.
From the evidence you will decide what the facts are. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You will then apply those facts to the law that I give you in these and in my other instructions, and in that way reach your verdict. While you are the sole judges of the facts, you must follow the law, as stated in my instructions, whether you agree with it or not. In deciding what the facts are, you will have to decide what testimony you believe and what testimony you don't believe. You may believe all of what a witness says, or only part of it, or none of it.
In deciding what testimony to believe, consider the witnesses' intelligence, their opportunity to have seen or heard the things they testify about, their memories, any motives they may have for testifying a certain way, their manner while testifying, whether they said something different at an earlier time, the general reasonableness of their testimony, and the extent to which their testimony is consistent with other evidence that you believe.
Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you.
Don't take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.
I have mentioned the word "evidence." "Evidence" includes the testimony of witnesses, the documents and other things received as exhibits, and any facts that have been stipulated—that is, agreed to by the parties.
Certain things are not evidence. I will list those things for you now:
If I sustain an objection to a question or an exhibit, you must ignore the question or the exhibit and must not try to guess what the information might have been. Similarly, testimony and exhibits that I strike from the record, or tell you to disregard, are not evidence and must not be considered.
The burden of proving a fact is placed upon the party whose claim or defense depends upon that fact. The party who has the burden of proving a fact must prove it by a preponderance of the evidence. To prove something by the "preponderance of the evidence" is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable.
If, on any issue of fact in the case, the evidence is equally balanced, you cannot find that fact has been proved. The preponderance of the evidence is not necessarily established by the greater number of witnesses or exhibits a party has presented.
You may have heard of the term "proof beyond a reasonable doubt." This is a stricter standard, which applies in criminal cases. It does not apply in civil cases like this one. You should, therefore, put it out of your minds.
During the trial it will be necessary for me to speak with the lawyers out of your hearing, either by having a bench conference here while you are present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the Rules of Evidence, which govern the trial, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.
At the end of the trial you must make your decision based on what you recall of the evidence. You will not have a written transcript to consult. You must pay close attention to the testimony as it is given.
If you wish, however, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. And do not let note-taking distract you so that you do not hear other answers by the witness. The Clerk has provided each of you with a pad of paper and a pencil. At each recess, leave your notes in your chair.
When you leave at night, your notes will be secured and not read by anyone.
Finally, to insure fairness, you as jurors must obey the following rules:
First, don't talk among yourselves about this case, or about anyone involved with the case, until the end of the trial when you go to the jury room to deliberate and decide on your verdict.
Second, don't talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.
Third, when you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it. If someone does try to talk to you about the case during the trial, please report it to me immediately.
Fourth, during the trial, don't talk with or speak to any of the parties, lawyers or witnesses involved in this case—you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side —even if it is simply to pass the time of day—an unwarranted and unnecessary suspicion about your fairness might arise. If any lawyer, party, or witness doesn't speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk or visit with you.
Fifth, don't read any news stories, articles, or blogs about the case or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it.
Sixth, don't do any research or make any investigation about the case on your own about any matter involved in this case. By way of example, that means that you must not consult the Internet (e.g., Google or Wikipedia), a dictionary, textbook, encyclopedia, or talk with a person you consider knowledgeable. In fairness, you must only learn about this case from the evidence you receive here at the trial and apply those facts to the law as I give it to you.
Seventh, remember, cell phones are not permitted in the courtroom or in the jury room.
Eighth, keep an open mind during the trial about what the verdict should be. Keep an open mind until after you have heard all of the evidence. Once the trial has been completed and you've retired to the jury room to decide the case, you and your fellow jurors are free to discuss the evidence among yourselves.
Ninth, remember that you are not to be influenced in any degree by any personal feelings or sympathy or prejudice for or against any of the parties or the attorneys in the case. Each party is entitled to the same fair and impartial consideration at your hands.
Tenth, no statement, remark, or ruling that I make or question that I might ask of a witness during the course of the trial is intended to indicate what I think about the facts of the case. You, as the jurors, are the sole judges of the facts of the case. You and you alone will have to decide on the believability and credibility of the witnesses and the weight and value of the evidence.
During the trial, while you are in the courthouse and after you leave for the day, do not provide any information to anyone by any means about this case. For example, do not talk face-to-face or use any electronic device or media, such as the telephone, a cell phone, a smart phone, Blackberry, iPad, computer, the Internet, any Internet service, any text or instant messaging service, any Internet chat room, blog, or website such as Facebook, Instagram, YouTube, or Twitter, to communicate to anyone any information about this case until I accept your verdict. Do not use the Internet to look up or research anything about the case.
Remember, you have taken an oath to follow the rules, and you must do so. If you do not, the case might have to be retried, and you could be held in contempt of court and possibly punished.
The trial will proceed in the following manner:
First, the Hardings' lawyer will make an opening statement. Next, the lawyer for Dollar Tree will make an opening statement. An opening statement is not evidence but is simply a summary of what the lawyer expects the evidence to be.
The Hardings' lawyer will then present evidence by calling witnesses, and Dollar Tree's lawyer will cross-examine those witnesses. Following the Hardings' case, Dollar Tree's lawyer may present evidence by calling witnesses, and the Hardings may cross-examine those witnesses.
Finally, the Hardings may offer rebuttal evidence.
After presentation of evidence is completed, I'll give you some more jury instructions. Then the lawyers will have a second opportunity to address you directly, and on that second occasion, they are permitted to argue to you the evidence in an attempt to persuade you to their differing views of the true facts of the case. As with opening statements, closing arguments are not evidence.
After the closing arguments, the Court will give you some final instructions on the law. Then you'll go to the jury room to deliberate on your verdicts.
Members of the Jury, the instructions I gave you at the beginning of the trial and during the trial remain in effect. I now give you some additional instructions on the law that applies to this case. You must, of course, continue to follow all the instructions I gave you earlier, as well those I give you now.
The instructions I am about to give you now are in writing and will be available to you in writing in the jury room. I emphasize, however, that this does not mean they are more important than my earlier instructions. Again, all my instructions, whether given in writing or spoken from this bench, must be followed.
It is your duty as jurors to follow the law as stated in the instructions, and to apply the given rules of law to the facts as you find them to be from the evidence in this case.
You are not to single out one instruction alone as stating the law, but must consider the instructions as a whole.
Neither are you to be concerned with the wisdom of any rule of law as stated by the Court. Regardless of any opinion you may have as to what the law ought to be, it would be a violation of your sworn duty to base a verdict upon any other view of the law other than that given in the instructions of the Court; just as it would be a violation of your sworn duty, as judges of the facts, to base a verdict upon anything but the evidence in the case.
Nothing I say in the instructions is to be taken as an indication that I have any opinion about the facts of the case, or what that opinion is. It is not my function to determine the facts. You will determine the facts. During this trial I have occasionally asked questions of witnesses. Do not assume that because I asked questions I hold any opinion on the matters to which my questions related.
Justice through trial by jury must always depend on the willingness of each individual juror to seek the truth about the facts from the same evidence presented to all the jurors; and to arrive at a verdict by applying the same rules of law as given in the Court's instructions.
Statements and arguments of counsel are not evidence in the case. When the lawyers on both sides stipulate or agree on the existence of a fact, however, the Jury must accept the stipulation and regard that fact as proved. The evidence in the case always consists of the sworn testimony of the witnesses, regardless of who may have called them and any documents, photographs, or other items that are received by the Court, and all facts that may have been admitted or stipulated. Any evidence on which an objection was sustained by the Court—and any witness statement or tangible item that was stricken by the Court—must be entirely disregarded.
Anything you may have seen or heard outside this courtroom is not evidence, and it must be entirely disregarded.
In conducting your deliberations and returning your verdict, there are certain rules you must follow.
First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you all here in court.
Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict must be unanimous.
Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your opinions if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges—judges of the facts. Your sole interest is to seek the truth from the evidence in the case.
Third, if you need to communicate with me during your deliberations, you may send a note to me, through the court security officer, that is signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should never tell anyone —including me—how your votes stand numerically.
Fourth, your verdict must be based solely on the evidence and on the law that I have given to you in my instructions. The verdict must be unanimous. Again, nothing I have said or done is intended to suggest what your verdict should be—that is entirely for you to decide.
This case should be considered and decided by you as a dispute between persons of equal worth. All persons stand equal before the law and are to be treated as equals.
You are the sole judges of the credibility of the witnesses and the weight and value to be given to their testimony. In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.
In deciding what testimony to believe, you may consider the witness's intelligence; the opportunity the witness had to see or hear the things about which he or she testified; the witness's memory; any motives a witness may have for testifying a certain way; the manner and demeanor of the witness while testifying; whether the witness said something different at an earlier time; the general reasonableness or unreasonableness of the testimony; and the extent to which the testimony is consistent with any other evidence that you believe.
In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection, lapse of memory, or a lie—and that may depend on whether it has to do with an important fact or only a small detail.
A witness may be discredited or impeached by contradictory evidence or by evidence that at some other time the witness has said or done something, or has failed to say or do something, that is inconsistent with the witness's present testimony.
If you believe any witness has been impeached and thus discredited, you may give the testimony of that witness whatever credibility, if any, you think it deserves.
If a witness is shown knowingly to have testified falsely about any material matter, you have a right to distrust that witness's other testimony and you may reject all the testimony of that witness or give it whatever credibility you think it deserves.
An act or omission is "knowingly" done, if the act is done voluntarily or intentionally, and not because of mistake or accident or other innocent reason.
In considering the evidence in this case you are not required to set aside your common sense or common knowledge. You have the right to consider all the evidence in light of your own observations and experiences in the affairs of life.
In these instructions you are told that one or the other party has the burden to prove certain facts. The burden of proving a fact is placed upon the party whose claim or defense depends upon that fact. The party who has the burden of proving a fact must prove it by a preponderance of the evidence. To prove something by the "preponderance of the evidence" is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable.
If, on any issue of fact in the case, the evidence is equally balanced, you cannot find that fact has been proved. The preponderance of the evidence is not necessarily established by the greater number of witnesses or exhibits a party has presented.
You may have heard of the term "proof beyond a reasonable doubt." This is a stricter standard, which applies in criminal cases. It does not apply in civil cases like this one. You should, therefore, put it out of your minds.
A fact in dispute may be proved by circumstantial evidence and by direct evidence. A fact is established by direct evidence when, for example, it is proved by witnesses who testify to what they saw, heard, or experienced. A fact is established by circumstantial evidence when its existence can reasonably be inferred from other facts proved in the case.
An expert witness is a person who has special knowledge, skill, experience, training, or education on the subject to which his or her testimony relates.
An expert witness may give an opinion on questions in controversy. You may consider the expert's opinion in the light of his or her qualifications and credibility, the reasons given for the opinion, and the facts and other matters upon which the opinion is based.
You are not bound to accept an expert opinion as conclusive, but should give it whatever weight you think it should have. You may disregard any opinion testimony if you find it to be unreasonable.
The rights of Jonnas Harding and Rodney Harding are separate and distinct. Treat their claims as if they were separate suits. If an instruction or evidence applies to one of their claims, then it governs his or her case.
Consider the evidence about each of their claims, though some may be relevant to both claims. Likewise, follow my instructions about each claim, though some may apply to both claims.
Jonnas Harding claims damages from Dollar Tree Stores, Inc. and has the burden of proving each of three essential propositions:
First, that she has sustained damages;
Second, that Dollar Tree was negligent;
And third, that Dollar Tree's negligence was a proximate cause of her damages.
If you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for Jonnas Harding; but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for Dollar Tree.
Rodney Harding claims loss-of-consortium damages from Dollar Tree Stores, Inc. and has the burden of proving each of three essential propositions:
First, that he has sustained damages;
Second, that Dollar Tree was negligent;
And third, that Dollar Tree's negligence was a proximate cause of his damages.
If you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for Rodney Harding; but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for Dollar Tree.
Dollar Tree Stores, Inc. contends that Jonnas Harding was negligent and that her negligence was a proximate cause of her injuries. Dollar Tree has the burden of proving this contention.
When I use the word "negligence" in these instructions I mean the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence in this case. To constitute negligence, an act must be one from which a reasonably careful person would foresee such an appreciable risk of harm to others as to cause him or her not to do the act, or to do it in a more careful manner.
A failure to exercise ordinary care is negligence. When I use the words "ordinary care," I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence in this case. It is for you to decide how a reasonably careful person would act under those circumstances.
It was the duty of all persons or businesses involved in the occurrence to use ordinary care for their own safety and the safety of others.
The law frequently uses the expression "proximate cause," with which you may not be familiar. When I use the expression "proximate cause," I mean a cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.
This does not mean that the law recognizes only one proximate cause of damage. To the contrary, if two or more causes work together to produce damage, then you may find that each of them was a proximate cause.
Every person using ordinary care has a right to assume, until the contrary is or reasonably should be apparent, that every other person or business will use ordinary care and obey the law. To act on that assumption is not negligence.
The fact that an injury occurred is not, of itself, evidence of negligence on the part of anyone.
In this case, Jonnas Harding was an invitee upon the premises of Dollar Tree Stores, Inc. The company owed Mrs. Harding a duty to use ordinary care to maintain the premises in a reasonably safe condition. No such duty exists, however, if the condition of the premises that creates the danger was known by or obvious to Mrs. Harding—unless Dollar Tree should have reasonably anticipated that she would be exposed to the danger despite her knowledge of it or its obvious nature.
If you should find that the occurrence was proximately caused by negligence on the part of Dollar Tree Stores, Inc. and not by negligence on the part of Jonnas Harding, then she is entitled to recover the full amount of any damages you may find she has sustained as a result of the occurrence.
If you should find that the occurrence was proximately caused by negligence of both Mrs. Harding and Dollar Tree, then you must compare the percentages of their negligence.
If the negligence of Mrs. Harding is of less degree than the negligence of Dollar Tree, then she is entitled to recover any damages which you may find she has sustained as a result of the occurrence after you have reduced them in proportion to the degree of her own negligence.
On the other hand, if Dollar Tree was not negligent, or if the negligence of Mrs. Harding is equal to or greater in degree than the negligence of Dollar Tree, then Mrs. Harding is not entitled to recover any damages.
If you decide for Jonnas Harding on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate her for any of the following four elements of damage sustained, which you find were proximately caused by the negligence of Dollar Tree Stores, Inc.:
First: The nature, extent, and duration of any injury and whether it is temporary or permanent.
Second: The reasonable expense of any necessary medical care, treatment and services received, and the present value of such expense reasonably certain to be required in the future.
Third: Any pain and suffering and mental anguish experienced in the past and reasonably certain to be experienced in the future.
Fourth: Any scars and disfigurement and visible results of her injury.
Whether any of these four elements of damage has been proved by the evidence is for you to decide.
If you find for Rodney Harding on his claim for loss of consortium, you should award him such damages as from the evidence would fairly compensate him for the reasonable value of any loss of the services, society, companionship, and marriage relationship of his wife proximately caused by the negligence of Dollar Tree Stores, Inc.
If it becomes necessary for you to assess damages, then in fixing the amount of money which will reasonably and fairly compensate Jonnas Harding, you are to consider that an injured person must use ordinary care to determine whether medical treatment is needed and to obtain medical treatment and to follow the instructions of her physician, and that any damages resulting from a failure to use such care cannot be recovered.
In assessing the damages of Jonnas Harding, do not reduce the amount of the damages by any insurance payments including, but not limited to, health insurance, Medicare, or Medicaid received or to be received by, or on behalf of Jonnas Harding. Any reduction required by law will be made by the Court.
In the event that you find that Jonnas Harding is entitled to damages arising in the future because of injuries or future medical expenses, you must determine the amount of these damages.
If these damages are of a continuing nature, you may consider how long they will continue. If they are permanent in nature, then in computing these damages you may consider how long Mrs. Harding is likely to live.
Mortality tables are evidence of an average life expectancy of a person who has reached a certain age, but they are not conclusive. They may be considered by you in connection with other evidence relating to the probable life expectancy of Mrs. Harding, including evidence of her occupation, health, habits, and other activities, bearing in mind that some persons live longer than the average and some persons less than the average.
I have used the expression "present value" in these instructions with respect to certain elements of damage which you may find that Jonnas Harding will sustain in the future. This simply means that if you find that Mrs. Harding is entitled to recover any elements of damage which require you to determine their present value, you must take into consideration the fact that money recovered will earn interest, if invested, until the time in the future when these losses will actually occur. Therefore, you must reduce any award of such damages to compensate for the reasonable earning power of money.
The verdict forms are simply the written notice of your decision. See the attached questions.
You will take the verdict forms to the jury room, and when each of you has agreed on the answers, your foreperson will fill in the forms for each question that you are called upon to answer to reflect your unanimous decision, sign and date them, and then advise the court security officer that you are ready to return to the courtroom.
I add the caution that nothing said in the instructions—and nothing in the verdict forms I've prepared for your convenience—is or was intended to suggest or convey in any way or manner any intimation as to what answers I think you should find. How you choose to answer the verdict forms shall be the sole and exclusive responsibility of you, the Jury.
If it becomes necessary during your deliberations to communicate with the Court, you may send a note by the court security officer, signed by your foreperson, or by one or more members of the Jury. No member of the Jury should ever attempt to communicate with the Court by any means other than a signed writing; and the Court will never communicate with any member of the Jury on any subject touching the merits of the case, other than in writing, or orally here in open Court.
You will note from the oath about to be taken by the court security officer to act as bailiff that he, and all other persons, are forbidden to communicate in any way or manner with any member of the Jury on any subject touching the merits of the case. Bear in mind also that you must never reveal to any person, not even to the Court, how the Jury stands, numerically or otherwise, on the issue presented to you unless or until you reach a unanimous verdict.
Court security officer, do you solemnly swear to keep this Jury together in the jury room, and not to permit any person to speak to or communicate with them, concerning this case, nor to do so yourself unless by order of the Court or to ask whether they have agreed on a verdict, and to return them into the Courtroom when they have so agreed, or when otherwise ordered by the Court, so help you God?
1. On Rodney Harding's loss-of-consortium claim against Dollar Tree Stores, Inc., as submitted in Instruction No. 12, we find for:
Sign and date this form and advise the Court that you have finished your deliberations.
