D.P. MARSHALL, JR., District Judge.
The Court thanks both sides for their helpful pretrial filings. Trial will begin in Jonesboro on Monday, 10 September 2018. The Court will hold a pretrial conference at 9:00 a.m. in chambers and we'll begin the venire at 9:30 a.m. We'll pick the jury, do preliminary instructions, open, and start the proof on Monday.
So Ordered.
Ladies and gentlemen, I will take a few moments now to give you some initial instructions about this case and about your duties as jurors. At the end of the trial I will give you further instructions. I may also give you instructions during the trial. All my instructions are equally binding on you and must be followed.
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 said, this is a civil case. It involves an accident that occurred at the Dollar General store in Gosnell, Arkansas in January 2016. Ellen Mays tripped over a bag of dog food that was stacked on the floor against a shelving unit. Mrs. Mays says that she suffered injuries as a result of her fall. She claims that she fell because of Dollar General's negligence and seeks to recover damages for the injuries she suffered. Her husband, Robert Mays, seeks damages for the injury-related loss of his wife's help and companionship. Dollar General denies that it was negligent and says that Mrs. Mays was at fault for her fall. Dollar General also claims that there was no breach of any duty to Mrs. Mays because the bag of dog food she tripped on was open, obvious, or known to her.
From all the evidence, you will decide what the truth is. You are entitled to consider all the evidence in the light of your own observations and experiences in the affairs of life. Use reason and common sense to draw conclusions from facts that have been established by the evidence. 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.
Do not allow any sympathy or any 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, documents, and other things received as exhibits, any facts that have been stipulated—that is, formally agreed to by the parties—and any facts that have been judicially noticed—that is, facts which I say you may, but are not required to, accept as true, even without evidence.
Certain things are not evidence:
1. Statements, arguments, questions, and comments by lawyers representing the parties in the case are not evidence.
2. Objections are not evidence. Lawyers have a right to object when they believe something is improper. Don't be influenced by the objection. If I sustain an objection to a question, ignore the question and don't try to guess what the answer might have been.
3. Testimony that I strike from the record, or tell you to disregard, is not evidence. Don't consider it.
4. Anything you see or hear about this case outside the courtroom is not evidence.
A particular item of evidence is sometimes received for a limited purpose only. That is, it can be used by you only for one particular purpose, and not for any other purpose. I will tell you when that occurs, and instruct you on the purposes for which the item can and cannot be used.
Finally, some of you may have heard the terms "direct evidence" and "circumstantial evidence." You should not be concerned with those terms. The law makes no distinction between direct and circumstantial evidence. You should give all evidence the weight and value you believe it is entitled to receive.
In deciding what the facts are, you must 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 of any witness to believe, consider several things: the witness's intelligence; the opportunity the witness had to have seen or heard the things testified about; the witness's memory; any motives that witness may have for testifying a certain way; the manner of the witness while testifying; whether that witness said something different at an earlier time; the general reasonableness of the testimony; and the extent to which the 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 need to consider therefore whether a contradiction is an innocent misrecollection, a lapse in memory, or a lie. That may depend on whether it has to do with an important fact or only a small detail.
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 a "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've probably 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.
When the lawyers have finished questioning each 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 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.
At the end of the trial you must make your decisions 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. Don't share them with your fellow jurors during the trial. When you go to the jury room to deliberate and decide the case at the end of the trial, then you can share them with each other. And do not let note taking distract you so that you do not hear other answers by the witness.
When you leave at night, your notes will be secured and not read by anyone. After the trial, they'll be destroyed.
During the trial it will be necessary for me to talk with the lawyers out of the hearing of the jury, either by having a bench conference while the jury is 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, 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.
Finally, to ensure fairness, you as jurors must obey the following rules:
First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.
Second, do not 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 until the trial has ended and I've accepted your verdict. If someone tries to talk to you about the case during the trial, please report it to the Court Security Officer immediately.
Fourth, during the trial don't talk with or speak to any of the parties, lawyers, or witnesses involved in this case—don't 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 does not speak to you when you pass in the hall, ride the elevator or the like, it is because they are not supposed to talk or visit with you.
Fifth, it will be necessary for you to tell your family, friends, teachers, coworkers, or employer about your participation in this trial so that you can let them know you are required to be in court. Warn them not to ask you about this case, not to tell you anything they know or think they know about this case, and not to discuss this case in your presence. You must not communicate with anyone about the parties, witnesses, participants, claims, evidence, or anything else related to this case, or tell anyone anything about the jury's deliberations in this case, until after I accept your verdict or until I give you specific permission to do so.
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, 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.
Sixth, do not do any Internet research—using Google, for example. Do not do any research by using libraries, reading the newspapers, or in any other way making any investigation about this case on your own. Do not visit or view any place discussed in this case and do not use Internet maps or Google Earth or any other program or device to search for or to view any place discussed in the testimony. Also do not research any information about this case, the law, or the people involved, including the parties, the witnesses, the lawyers, or me.
Seventh, do not read any news stories or articles in print, on the Internet, or in any blog, 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. In fact, until the trial is over I suggest that you take a news holiday—avoid reading any newspapers, avoid listening to any TV or radio newscasts, and avoid news on the internet. I do not know whether there might be any news reports about this case, but if there are, you might inadvertently find yourself reading or listening to something before you could do anything about it. I can assure you, however, that by the time you have heard the evidence in this case, you will know more about the matter than anyone will learn through the news media.
Finally, I want to repeat that, before the trial is over, you are bound by your oaths not to discuss the evidence with anyone—not even with a member of your family. And I think you can understand the fairness and reasonableness of that rule. When we start discussing the evidence and explaining the proof, there is a tendency to start making up our minds. And you jurors are bound by your oaths to keep an open mind on all the issues in the case until you have heard, seen, or otherwise experienced all of the evidence, not just some of it; until you have received the Court's final instructions on the law; and until you have had the benefit of the lawyers' closing arguments.
Here is how the trial will go:
First, one of Mays's lawyers will make an opening statement. P00>Next, the lawyer for Dollar General will make an opening statement. An opening statement is not evidence, but simply a summary of what the lawyer expects the evidence to be.
Mays's lawyers will then present evidence by calling witnesses, and the lawyer for Dollar General may cross-examine those witnesses. After Mays's case, the lawyer for Dollar General will present evidence by calling witnesses, and Mays's lawyers may cross-examine those witnesses. Finally, Mays's lawyer may offer rebuttal evidence.
After presentation of evidence is completed, I'll give you final instructions. Then the lawyers will make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. Then you'll go to the jury room to deliberate on your verdict.
Follow all the Court's instructions. Written and spoken instructions are equally important. And it doesn't make any difference when I gave an instruction. Follow them all.
Your job is to decide what happened. Don't take anything I said or did as a suggestion about what your decision should be. You're the judges of the facts, not me.
Don't decide the case based on sympathy, prejudice, or emotion. Decide based on the evidence, the law, and your common sense.
The evidence is the witnesses' testimony, the exhibits, and any facts agreed by the parties. Anything the lawyers said (such as questions, statements, arguments, and objections) is not evidence. If I told you to disregard something, ignore it. If you saw or heard something about this case outside the courtroom, ignore that, too. If I told you some evidence could be used only for a limited purpose, do so.
Be careful in evaluating each witness's credibility. Use your life experience and your common sense in deciding what testimony you believe.
With an important exception, which I'll cover in a moment, Ellen Mays and her husband Robert have the burden of proof. They must prove their claims, and any damages, by a preponderance of the evidence. That means the Mays's must prove that the facts they assert are more likely true than not true.
The Mayses don't have to prove anything beyond a reasonable doubt. That's the standard for criminal cases, not civil cases like this one. But, if you find the evidence on a fact to be equally balanced, then the Mayses haven't proved that fact.
It is undisputed that Ellen Mays tripped over a bag of dog food that was stacked upright on the floor at Dollar General.
To win on her claim for damages, Ellen Mays has the burden of proving three things:
First, that she was injured by the accident;
Second, that Dollar General was negligent; and
Third, that Dollar General's negligence was the proximate cause of her injuries.
Robert Mays seeks loss-of-consortium damages from Dollar General for the way that his wife's injuries have affected him. To win on his claim, he has the burden of proving:
First, that he sustained damages from his wife's injury;
Second, that Dollar General was negligent; and
Third, that Dollar General's negligence was the proximate cause of his damages.
Next, the exception. Dollar General claims that Mrs. Mays was negligent in tripping over the dog food and that her negligence was the proximate cause of her injuries. Dollar General has the burden of proving this by a preponderance of the evidence.
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. You should consider how a reasonable person would have acted in 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 others as to cause them 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 that a reasonably careful person would use in circumstances similar to those shown by the evidence in this case. It is for you to decide how a reasonably careful person would act in these circumstances.
Every person using ordinary care has a right to assume, until the contrary is or reasonably should be apparent, that every other person will use ordinary care. To act on that assumption is not negligence.
The law frequently uses the expression "proximate cause," with which you're probably not familiar. "Proximate cause," means a cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.
The fact that an accident occurred is not, of itself, evidence of negligence on the part of anyone.
It was the duty of Dollar General, before and at the time of the accident, to use ordinary care for the safety of Mrs. Mays. It was the duty of Mrs. Mays to use ordinary care for her own safety and the safety of others.
Dollar General owed a duty to use ordinary care to maintain its premises in a reasonably safe condition. To establish a violation of this duty, Ellen Mays must prove that the presence of the dog food bag on the floor was the result of Dollar General's failure to use ordinary care.
Dollar General says that Ellen Mays failed to use ordinary care when she tripped over the dog food bag. She owed herself and others at duty to do so. To establish a violation of this duty, Dollar General must prove that Mrs. Mays's failure to see and avoid the dog food bag was the result of her failure to use ordinary care.
Compare Mrs. Mays's and Dollar General's negligence. If Dollar General was solely responsible for the accident, then Mrs. Mays wins. If Mrs. Mays was solely responsible, then Dollar General wins. If Mrs. Mays and Dollar General were equally negligent, then Dollar General wins. If Dollar General was more negligent than Mrs. Mays, then Mrs. Mays wins—but you must reduce your award of accident-related damages by her percentage of negligence.
If Mrs. Mays wins on the comparison of the parties' negligence, then you must decide the amount of money that will reasonably and fairly compensate her for damages you find were proximately caused by Dollar General's negligence. There are four elements to consider. Whether any of these elements of damage have been proved by the preponderance of evidence is for you to determine. Here they are:
And remember, you must reduce any damages awarded by Mrs. Mays's percentage of negligence, if any.
An injured person must use ordinary care to determine whether medical treatment is needed. Ordinary care also requires a reasonable person to follow the instructions of her physician. If you decide Mrs. Mays failed to use ordinary care in seeking and following medical advice, then she can't claim any damages related to that failure.
If you find for Robert Mays 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 General. Here again, reduce any damages awarded to Mr. Mays by Mrs. Mays's percentage of negligence, if any.
Here are some rules for your deliberations.
First, choose a foreperson. She or he will preside over your deliberations, sign your verdicts, and speak for you here in court.
Second, talk through the case in detail. Consider all the evidence. Discuss it fully with your fellow jurors. And listen attentively to others' views.
Third, make your own conscientious decision. Don't be afraid to change your mind if you're persuaded by the discussion. But don't make a decision simply because others think it is right. And don't agree just to get done.
Fourth, try hard to reach agreement. Your verdicts must be unanimous.
Fifth, if you need to communicate with me during your deliberations, send me a note through the Court Security Officer. One or more jurors must sign the note. But, do not tell me—or anyone—how your votes stand numerically.
Sixth, your verdicts will be answers to some questions. I'll read them to you now.
Seventh, from this point forward, other than a note to the Court, do not communicate with any person other than your fellow jurors about the merits of the case.
"To challenge a juror for cause, a party must show actual partiality growing out of the nature and circumstances of the case. A district court is required to strike for cause any juror who is shown to lack impartiality or the appearance of impartiality, and, absent abuse of discretion, we will not interfere with the district court's determination of juror qualifications. The district court is given broad discretion in determining whether to strike jurors for cause because it is in the best position to assess the demeanor and credibility of the prospective jurors."
