D.P. MARSHALL, Jr., District Judge.
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 may give you more instructions. And at the end of the trial, I will give you final instructions. Follow all my instructions.
This case is about an injury that happened at a snow cone stand. Samantha Prince worked at the stand in Russellville during the summer. The machine that shaves the ice has a chute, and the chute became jammed. Prince put her hand in the chute to clear the jam, and turned the machine back on while she was taking her hand out. Prince's hand was injured. She has sued the manufacturer of the machine, Southern Snow Manufacturing. Prince alleges the machine was defective and unreasonably dangerous and that the defects caused her harm. Southern Snow responds that there wasn't anything wrong with the machine, that there were adequate warning labels, and that Prince was at fault. The jury will have to decide what caused the injury. It will also have to decide whether the machine was defective and unreasonably dangerous and whether there were adequate warnings. And the jury will also have to decide whether Prince was at fault, and if so, how much. The jury may also have to decide what damages to award. In summary, the jury must decide—based on the evidence and guided by the governing law—whether Prince is entitled to a verdict against Southern Snow.
Your duty is to decide what the facts are from the evidence. Consider the evidence in the light of your own observations and experiences. Use your common sense. After you have decided what the facts are, you will have to apply those facts to the law that I give you in these and in my other instructions. That is how you will reach your verdict. Only you will decide what the facts are. But you must follow my instructions, whether you agree with them or not. You have taken an oath to follow the law that I give you in my instructions.
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 said, or only part of it, or none of it.
In deciding what testimony to believe, consider several things: 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 demeanor 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.
A caution about considering a witness's demeanor while testifying. Many folks are nervous just being in court. And there are bold liars and shy truth tellers. Use your common sense and be discerning when judging someone's credibility based on their demeanor on the stand.
In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and they sometimes forget things. You will have to decide whether a contradiction is an innocent misrecollection, a lapse of memory, or a lie—and that may depend on whether the contradiction has to do with an important fact or only a small detail.
You must consider and decide this case as a dispute between persons of equal worth. Prince and Southern Snow are equal before the law and must be treated as equals.
I have mentioned the word "evidence." "Evidence" includes the testimony of witnesses, the documents and other things received as exhibits, and any facts that I tell you the parties have agreed are true.
Some things are not evidence. I will list those things for you now:
You will have to decide whether certain facts have been proved by the greater weight of the evidence. A fact has been proved if you find that it is more likely true than not true. You decide that by considering all the evidence, and then deciding what evidence is more believable. The greater weight of the evidence is not established by who has the most witnesses or exhibits. You are, instead, looking for the truth in the whole case.
You have probably heard the phrase "proof beyond a reasonable doubt." That is a stricter standard than "more likely true than not true." The standard of "proof beyond a reasonable doubt" applies in criminal cases, but not in this civil case; so put it out of your minds.
An expert witness is a person who has special knowledge, skill, experience, training, or education on the subject to which his testimony relates.
An expert witness may give his opinion on questions in controversy. You may consider his opinion in the light of his qualifications and credibility, the reasons given for his opinion, and the facts and other matters upon which his 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.
During the trial, I will sometimes need to talk privately with the lawyers. I may talk with them here at the bench while you are in the courtroom. Or I may call a recess and let you leave the courtroom while I talk with the lawyers. Either way, please understand that while you're waiting, we're working. We have these conferences to make sure that the trial is proceeding according to the law and to avoid confusion and mistakes. We will do what we can to limit the number of these conferences and to keep them as short as possible.
At the end of the trial, you will have to make your decision based on what you recall of the evidence. You will not have a written copy of the testimony to refer to. You must pay close attention to the testimony and other evidence as it is presented here in the courtroom.
If you wish, you may take notes to help you remember what witnesses say. If you do take notes, do not show them to anyone until you and your fellow jurors go to the jury room to decide the case after you have heard and seen all of the evidence. And do not let note-taking distract you from paying close attention to the evidence as it is presented. The Clerk has provided each of you with a pad of paper and a pencil. At each recess, leave your notes face down in your chair. When you leave at night, your notes will be secured and not read by anyone. After the trial, they'll be destroyed.
When the lawyers have finished questioning a witness, you may propose questions to clarify the testimony. In your questions, follow these rules:
Submit your questions in writing by passing them to the Court Security Officer. I will review each one with the lawyers. If the question is proper, the lawyers or I will ask it.
Don't put any special weight on a question just because a juror suggested it. Don't put any special weight on the question just because I may be the one asking it. And consider the witness's answer just like any other piece of evidence.
You may not get your question answered. For example, I may decide that the question is not proper under the rules of evidence. And even if the question is proper, you may not get an immediate answer. For example, a later witness or a coming exhibit may provide the answer.
Don't feel slighted or disappointed if your question isn't asked or answered immediately. Remember, you are not advocates for either side; you are impartial judges of the facts.
To make sure this trial is fair to both parties, you must follow these rules:
First, don't talk or communicate among yourselves about this case, or about anyone involved with it, until the end of the trial when you go to the jury room to deliberate and decide on your verdict. Don't share your notes until deliberations begin.
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 in this case—not even to pass the time of day. It is important not only that you do justice in this case, but that you also appear to do 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—that may raise a suspicion about your fairness. If any lawyer, party, or witness doesn't speak to you when you pass in the hall, ride the elevator, or the like, understand that they are not being rude. They know they are not supposed to talk to you while the trial is going on; and they are just following the rules.
Fifth, don't read any news stories, articles, websites, or blogs about the case or about anyone involved with it. Don't listen to any radio or television reports about the case or about anyone involved with it.
Sixth, don't do any research—on the Internet, in a library, in newspapers, or otherwise—and don't investigate this case on your own. Don't go visit a snow cone stand. Don't visit or view any place discussed in this case, and don't use the Internet or other means to search for or view any place or any item discussed in the testimony. Don't look up any information about this case, the law, or the people involved—including the parties, the witnesses, the lawyers, or me.
Here's why the law imposes these limitations. The parties have a right to have you decide their case based only on evidence admitted here in court. If you research, investigate, or experiment on your own, or get information from other places, your verdict might be influenced by inaccurate, incomplete, or misleading information. Witnesses here in court take an oath to tell the truth; and the accuracy of their testimony is tested through cross-examination. Both parties are entitled to a fair trial and an impartial jury; and you must conduct yourselves in a way that assures the integrity of the trial process. If you decide a case based on information not admitted in court, you will deny the parties a fair trial. You will deny them justice under law. Remember: You've taken an oath to follow the rules; and you must do so.
Seventh, do not bring a cell phone—or any other device that would allow you to communicate with the outside world—into the courthouse. You may be able to get through court security with certain types of cell phones or devices. But my rule is different. Do not bring these devices into the courthouse at all. Please leave them at home or in your car.
Eighth, don't make up your mind during the trial about what your verdict should be. Keep an open mind until after you and your fellow jurors have discussed all the evidence.
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 lawyers 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 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, at lunch, on breaks, 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 with anyone about this case. And do not 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, YouTube, or Twitter—to communicate to anyone any information about this case until I accept your verdict.
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, Prince'slawyer will make an opening statement. Next, Southern Snow's lawyer will make an opening statement. An opening statement is not evidence or argument. It is simply a summary of what the lawyer expects you will see and hear during the trial.
After opening statements, Prince's lawyer will present evidence by calling witnesses, and Southern Snow's lawyer will cross-examine those witnesses. After Prince's case, Southern Snow's lawyer may present evidence by calling witnesses, and Prince's lawyer will cross-examine those witnesses.
Finally, Prince's lawyer may offer rebuttal evidence.
After you have seen and heard all of the evidence from both sides, I will give you some instructions on the law. Then, the lawyers will make closing arguments that summarize and interpret the evidence. Just as with opening statements, closing arguments are not evidence.
After the closing arguments, I will give you some final instructions. Then you'll go to the jury room to deliberate and decide on your verdicts.
Members of the Jury, the instructions I gave you at the beginning of the trial and during the trial are still in effect. Now I'm going to give you some additional instructions.
You have to follow all of my instructions—the ones I gave you earlier, as well as those I give you now. Do not single out some instructions and ignore others because they are all important. This is true even though I am not going to repeat some of the instructions I gave you before and during the trial.
You will have copies of the instructions I am about to give you now in the jury room. This does not mean they are more important than my earlier instructions. Remember, you have to follow all instructions, no matter when I give them, whether or not you have written copies.
There are rules you must follow when you go to the jury room to deliberate and return with your verdict:
First, you must select a 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 this without going against what you believe to be the truth, because all jurors have to agree on the verdict.
Each of you must make your own decision, but only after you have considered all the evidence, discussed the evidence fully with your fellow jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your mind if the discussion persuades you that you should. But do not come to a decision just because other jurors think it is right, or just to reach a verdict. Remember you are not for or against a party. You are judges—judges of the facts. Your only job is to study the evidence and decide what is true.
Third, if you need to communicate with me during your deliberations, send me a note signed by one or more of you. Give the note to the court security officer; and I will answer you as soon as I can, either in writing or here in court. While you are deliberating, do not tell anyone —including me—how many jurors are voting for any side.
Fourth, your verdict must be based solely on the evidence and on the law that I have given to you in my instructions. Nothing I have said or done was meant to suggest what I think your verdict should be. The verdict is entirely up to you.
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 said, or only part of it, or none of it.
In deciding what testimony to believe, consider several things: 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 demeanor 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.
A caution about considering a witness's demeanor while testifying. Many folks are nervous just being in court. And there are bold liars and shy truth tellers. Use your common sense and be discerning when judging someone's credibility based on their demeanor on the stand.
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 will have to decide whether a contradiction is an innocent misrecollection, a lapse of memory, or a lie—and that may depend on whether the contradiction has to do with an important fact or only a small detail.
In considering the evidence in this case, you aren't required to set aside your common sense or common knowledge. Consider the evidence in light of your own observations and experiences in the affairs of life. Use your common sense.
You will have to decide whether certain facts have been proved by the greater weight of the evidence. A fact has been proved if you find that it is more likely true than not true. You decide that by considering all the evidence, and then deciding what evidence is more believable. The greater weight of the evidence is not established by who has the most witnesses or exhibits. You are, instead, looking for the truth in the whole case.
You have probably heard the phrase "proof beyond a reasonable doubt." That is a stricter standard than "more likely true than not true." The standard of "proof beyond a reasonable doubt" applies in criminal cases, but not in this civil case; so put it out of your minds.
Prince has the burden of proving four elements:
First, Prince has sustained damages;
Second, Southern Snow was engaged in the business of manufacturing, assembling, selling, or otherwise distributing snow cone machines;
Third, the snow cone machine that Southern Snow supplied was in a defective condition that rendered it unreasonably dangerous for reasonable and foreseeable uses; and
Fourth, the defective condition was a proximate cause of Prince's damages.
If Prince doesn't prove all four of the elements listed above, then your verdict must be for Southern Snow. If Prince proves all four elements, then you must compare her fault (if any) with Southern Snow's fault to decide who is entitled to your verdict. See Instructions No. 12-13.
"Defective condition" means a condition of the snow cone machine that renders it unsafe for reasonably foreseeable use.
"Unreasonably dangerous" means that the snow cone machine is dangerous to an extent beyond what an ordinary and reasonable user would expect. An ordinary and reasonable user has the ordinary knowledge of a community member about the snow cone machine's characteristics, propensities, risks, dangers, and proper and improper uses. An ordinary and reasonable user also has any special knowledge, training, or experience that Prince individually had, or that she was required to have. In evaluating whether this snow cone machine was unreasonably dangerous, you should also consider what warnings were given about the machine.
In determining whether Southern Snow supplied the snow cone machine in a defective condition, you may consider the state of scientific and technological knowledge available to Southern Snow when the machine left its control. In considering whether the design of the machine is defective, you may also consider the customary designs and techniques used by other manufacturers of snow cone machines at that time.
Prince alleges that the snow cone machine was defectively designed. You may not find that the machine was defectively designed solely because there was an injury or an accident. Instead, you may find that the machine was defectively designed only if you find that it was unsafe for its reasonably foreseeable uses.
Southern Snow contends that Prince was negligent and that her negligence was the only proximate cause of her injuries. Southern Snow has the burden of proving this contention.
When I use the word "negligence" in these instructions, I mean not doing something that a reasonably careful person would do, or doing something that a reasonably careful person would not do, under circumstances similar to those shown by the evidence in this case. To be negligent, an act must be one from which a reasonably careful person would foresee such an appreciable risk of harm to herself or others that she would not to do the act, or she would do it in a more careful manner.
"Proximate cause" is a legal term. When I use the term "proximate cause" in these instructions, 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. But, in some instances, there is only one proximate cause. You must decide whether there was one or more proximate causes of this occurrence.
If you find that the occurrence was proximately caused by Southern Snow's fault and not by Prince's fault, then Prince is entitled to recover the full amount of any damages you may find she has sustained as a result of the occurrence.
If you find that the occurrence was proximately caused by the fault of both Prince and Southern Snow, then you must compare the percentages of their fault. Use 100% and divide the fault, as you decide from the evidence, between Prince and Southern Snow.
If Prince's fault is less than Southern Snow's fault, then Prince is entitled to recover reduced damages: any damages that you may find she has sustained as a result of the occurrence, reduced by you in proportion to Prince's own fault.
On the other hand, if Southern Snow was not at fault, or if Prince's fault is equal to or greater than Southern Snow's fault, then Prince is not entitled to recover any damages, and you must find for Southern Snow.
When I use the word "fault" in these instructions, I mean to cover both Prince's alleged negligence and Southern Snow's allegedly supplying the snow cone machine in a defective condition that made it unreasonably dangerous.
It was the duty of both Prince and Southern Snow to use ordinary care for their own safety and the safety of others.
If you decide for Prince on the question of liability against Southern Snow, you must fix the amount of money which will reasonably and fairly compensate her for any damages she sustained which you find were proximately caused by the fault of Southern Snow. You should consider the following elements of damages:
First: Any physical pain and mental or emotional suffering Prince has experienced and is reasonably certain to experience in the future;
Second: The nature and extent of any injury, whether that injury is temporary or permanent;
Third: The reasonable value of any necessary medical care, treatment and services received, and the present value of such expense reasonably certain to be needed and provided in the future;
Fourth: The reasonable value of the working time Prince has lost and the present value of any earnings reasonably certain to be lost in the future;
Fifth: The present value of any loss of ability to earn in the future because of her diminished ability to work; and
Sixth: Any scars and disfigurement and visible results of her injury.
Whether any of these elements of damage has been proved by the evidence is for you to decide. Remember, throughout your deliberations you must not engage in speculation, guesswork, or conjecture. And you must not award any damages under this Instruction as punishment or because of sympathy.
I have used the expression "present value" in these instructions about certain elements of damage which you may find that Prince will sustain in the future. This simply means 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. You must therefore reduce any award of future damages to compensate for the reasonable earning power of money.
The fact that I've instructed you on damages is not intended to suggest what I think your liability verdict should be. I've given instructions on damages, as I do in all cases, for your guidance in the event you find for Prince on liability. But the question of damages is entirely distinct and different from the question of liability. Do not consider damages until you have first considered and decided whether Southern Snow is liable to Prince.
The verdict is simply your written decision. I'm going to hand out the verdict form now and go over it with you.
You will take this form to the jury room. When each of you has agreed on the verdict, your foreperson will fill in the form to reflect your unanimous decisions, sign and date it, 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 form—is intended to suggest what answers I think you should give. How you chose to complete the verdict form is solely and exclusively your responsibility.
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 from communicating 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?
