· Web viewDATED this day of September, 2006. Foreperson You will take these forms to the jury...

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

KAYLENE THOMAS and ) DENNIS THOMAS, wife and husband, )

)Plaintiffs, )

)vs. )

)WAL-MART STORES INC., )a Delaware Corporation, )

) Defendant. )

8:04CV609

JURY INSTRUCTIONS

Instruction No.8

Members of the jury, the instructions I gave at the beginning of the trial and during

the trial remain in effect. I now give you some additional instructions.

You must, of course, continue to follow the instructions I gave you earlier, as well

as those I give you now. You must not single out some instructions and ignore others,

because all are important. This is true even though some of those I gave you previously

are not repeated here.

The instructions I am about to give you are in writing and will be available to you in

the jury room. Again, all instructions, whenever given and whether in writing or not, must

be followed.

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Instruction No.9

Neither in these instructions nor in any ruling, action or remark that I have made

during the course of this trial have I intended to give any opinion or suggestion as to what

your verdict should be.

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Instruction No. 10

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The evidence from which you are to find the facts consists of the following:

1. The testimony of the witnesses;

2. Documents and other things received as exhibits; and

3. Any facts that have been stipulated-that is, formally agreed to by the parties.

The following things are not evidence:

1. Statements, arguments, and questions of the lawyers for the parties in this case;

2. Objections to questions;

3. Any testimony I told you to disregard; and

4. Anything you may have seen or heard about this case outside the courtroom.

Instruction No. 11

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All of the parties to a lawsuit are entitled to the same fair and impartial

consideration, whether they are corporations or individuals.

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Instruction No. 5

NEGLIGENCE

I. PLAINTIFFS' CLAIMS

A. Issues

The parties have agreed that the Plaintiffs are residents of Oberlin, Kansas; the

Defendant is a Delaware Corporation having a principal place of business in Bentonville,

Arkansas; and the Defendant owns the retail store in McCook, Nebraska. This case

involves an incident that occurred on April12, 2002 in McCook, Nebraska, when Plaintiff,

Kaylene Thomas fell at Defendant's retail store. Plaintiff was walking in a restroom at the

Defendant's store when she fell and was injured.

The Plaintiff Kaylene Thomas claims that the Defendant was negligent in one or

more of the following ways:

1. Defendant was negligent in creating or permitting a dangerous condition, a wet surface floor, to exist in an area it knew or should have known was used by customers, and in failing to take reasonable steps to prevent the existence of a dangerous condition, thereby causing severe and permanent injuries to Plaintiff, consisting of one or more of the following acts or omissions:

a. In creating a dangerous condition, that is, a wet surface in a highly traveled area, and at a time when the public would be expected to traverse the area, and;

b. In failing to post a warning of the dangerous condition.

The Plaintiff, Kaylene Thomas also claims that she was injured as a result of that

negligence and seeks a judgment against the Defendant for her damages.

Plaintiff Dennis Thomas alleges that he has sustained past and future damages for

loss of the society, companionship, services, and consortium of his wife as a direct and

proximate result of Defendant's acts and failures to act described above that proximately

caused the injuries to Kaylene Thomas.

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The Defendant denies it was negligent in any fashion, and in addition, affirmatively

alleges that the Plaintiff was contributorily negligent.

B. Burden of Proof

The parties have agreed that the Plaintiff, Kaylene Thomas was a lawful entrant on

the Defendant's premises on April 12, 2002. Therefore, before the Plaintiff can recover

against the Defendant on her claim of damages, the Plaintiff must prove by the greater

weight of the evidence each and all of the following:

1. That the Defendant either created the condition, knew of the condition, or by the exercise of reasonable care, would have discovered the condition;

2. That the Defendant should have realized that the condition involved an unreasonable risk of harm to lawful entrants, such as the Plaintiff;

3. That the Defendant should have expected that lawful entrants, such as thePlaintiff, either:

a. Would not discover or realize the danger; or

b. Would fail to protect themselves against the danger;

4. That the Defendant failed to use reasonable care to protect lawful entrants against the danger;

5. That the condition was a proximate cause of some damage to the Plaintiff; and

6. The nature and extent of that damage.

Plaintiff Dennis Thomas alleges that he has sustained past and future damages for

loss of the society, companionship, services, and consortium of his wife as a direct and

proximate result of Defendant's acts and failures to act described above that proximately

caused the injuries to Kaylene Thomas.

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C. Effect of Findings

If the Plaintiffs have failed to establish any one or more of the foregoing numbered

propositions required by the greater weight of the evidence, your verdict will be for the

Defendant and you will complete Verdict Form No. 1.

On the other hand, if the Plaintiffs have established by the greater weight of the

evidence all of the above-numbered propositions, then you must consider the defenses of

the Defendant.

II. DEFENDANT'S DEFENSES

A. Issues

In defense to the Plaintiffs' claim, the Defendant claims that the Plaintiff, Kaylene

Thomas, was contributorily negligent and that Plaintiffs fall and damages were caused by

conditions, circumstances or persons over which Defendant had no control.

The Plaintiff denies that she was contributorily negligent.

B. Burden of Proof

In connection with the Defendant's claim that the Plaintiff, Kaylene Thomas, was

contributorily negligent, the burden is upon the Defendant to prove by the greater weight

of evidence the following:

1. That the Plaintiff was negligent in one or more of the ways claimed by theDefendant, and

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2. That this negligence on the part of the Plaintiff was a proximate cause of her own injury.

C. Effect of Findings

If the Plaintiffs have met their burden of proof and the Defendant has not met its

burden of proof in connection with contributory negligence, then your verdict must be for

the Plaintiffs and, using Instruction No. 26, you must determine the amount of damage

suffered by the Plaintiffs and complete Verdict Form No. 2.

If both the Plaintiffs and the Defendant have met their burdens of proof, then you

must compare their negligence. You will do that by completing Verdict Form No.3, which

I will read to you at the end of these instructions.

Instruction No. 13

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Any party who has the burden of proving a claim must do so by the greater weight

of the evidence.

The greater weight of the evidence means evidence sufficient to make a claim more

likely true than not true. It does not necessarily mean a greater number of witnesses or

exhibits.

Any party is entitled to the benefit of any evidence tending to establish a claim, even

though such evidence was introduced by another.

If the evidence upon a claim is evenly balanced, or if it weights in favor of the other

party, then the burden of proof has not been met.

Instruction No. 14

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If you find that the Plaintiff was a lawful entrant on the Defendant's premises, then

before the Plaintiff can recover against the Defendant on her claim of slipping and falling

in the restroom at the Defendant's store and being injured, the Plaintiff must prove, by

the greater weight of the evidence, each and all of the following:

1. That the Defendant either created the condition, knew of the condition, or, by the exercise of reasonable care, would have discovered the condition;

2. That the Defendant should have realized that the condition involved an unreasonable risk of harm to such lawful entrants;

3. That the Defendant should have expected that lawful entrants such as thePlaintiff either:

a. would not discover or realize the danger; or

b. would fail to protect themselves against the danger;

4. That the Defendant failed to use reasonable care to protect lawful entrants against the danger;

5. That the condition was a proximate cause of some damage to the Plaintiff; and

6. The nature and extent of the damage.

Instruction No. 15

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Negligence is doing something that a reasonably careful person would not do under

similar circumstances, or failing to do something that a reasonably careful person would

do under similar circumstances.

Instruction No. 16

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Reasonable care means the care that a reasonable person would exercise under

similar circumstances.

Instruction No. 17

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A person may assume that every other person will use reasonable care until the

contrary reasonably appears.

Instruction No. 18

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The term "unreasonable risk of harm" means a risk that a reasonable person, under

all the circumstances of this case, would not allow to continue.

Instruction No. 19

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A proximate cause is a cause that produces a result in a natural and continuous

sequence, and without which the result would not have occurred.

Instruction No. 20

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The words "should have realized" or "should have expected" mean that the

Defendant was required to be reasonably attentive and, where adequate information could

not be obtained by being reasonably attentive, to make reasonable inspections and

investigations. The Defendant was also required to draw reasonably correct conclusions.

Instruction No. 21

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There are two kinds of evidence, direct and circumstantial. Direct evidence is either

physical evidence of a fact or testimony by someone who has first-hand knowledge of a

fact by means of his or her senses. Circumstantial evidence is evidence of one or more

facts from which another fact can logically be interred.

The law makes no distinction between these two kinds of evidence. A fact may be

proved by either direct evidence or circumstantial evidence or both.

Instruction No. 22

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A witness who has special knowledge, skill, experience, training, or education in a

particular area may testify as an expert in that area. You determine what weight, if any,

to give to an expert's testimony just as you do with the testimony of any other witness. You

should consider the expert's credibility as a witness, the expert's information, and the

reasons given for any opinions expressed by the expert.

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Instruction No. 23

You are the sole judge of the credibility of the witnesses and the weight to be given

to their testimony. In determining this, you may consider the following:

1. The conduct and demeanor of the witness while testifying;

2. The sources of information, including the opportunity for seeing and knowing he things about which the witness testified;

3. The ability of the witness to remember and to communicate accurately;

4. The reasonableness or unreasonableness of the testimony of the witness;

5. The interest or lack of interest of the witness in the result of this case;

6. The apparent fairness or bias of the witness;

7. Any previous statement or conduct of the witness that is consistent or inconsistent with the testimony of the witness at this trial; and

8. Any other evidence that affects the credibility of the witness or that tends to support or contradict the testimony of the witness.

Instruction No. 24

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During this trial, testimony was given to you by video and written deposition. Such

testimony is under oath and is entitled to the same fair and impartial consideration you give

other testimony.

Instruction No. 25

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There is evidence before you from life expectancy tables. This evidence may assist

you in determining probable life expectancy. This is only an estimate based on average

experience. It is not conclusive. You should consider it along with any other evidence

bearing on the probable life expectancy, such as evidence of health, occupation, habits,

and the like.

Instruction No. 26

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If you return a verdict for the Plaintiffs, then you must decide how much money

will fairly compensate the Plaintiffs for their injuries.

I am about to give you a list of the things you may consider in making this

decision. From this list, you must only consider those things you decide were proximately

caused by Defendant's negligence:

1. The nature and extent of the injury, including whether the injury is temporary or permanent and whether any resulting disability is partial;

2. The reasonable value of the medical, hospital, nursing, similar care and supplies reasonably needed by and provided in the future;

3. The wages, salary, reasonable value of the working time Plaintiff KayleneThomas has lost because of her diminished ability to work;

4. The reasonable value of the earning capacity Plaintiff Kaylene Thomas is reasonably certain to lose in the future;

5. The physical pain and mental suffering the Plaintiffs have experienced as a result of the injury to Kaylene Thomas, and are reasonably certain to experience in the future; and

6. How much money will fairly compensate Plaintiff Dennis Thomas for his loss of consortium. Consortium means those things to which a person is entitled by reason of the marriage relationship. It includes affection, love, companionship, comfort, assistance, services, moral support, and the enjoyment of sexual and conjugal relations.

Remember, throughout your deliberations you must not engage in any

speculation, guess, or conjecture and you must not award any damages by way of

punishment or through sympathy.

Instruction No. 27

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The law forbids you to return a verdict determined by chance. You may not, for

instance, agree in advance that each juror will state an amount to be awarded in damages,

that all of those amounts will be added together, and that the total will be divided by the

number of jurors, and that the result will be returned as the jury's verdict. A verdict

determined by chance is invalid.

Instruction No. 28

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There is evidence that the Plaintiff Kaylene Thomas had a back condition prior to

the slip and fall on April 12, 2002. The Defendant is liable only for any damages that you

find to be proximately caused by the slip and fall on April12, 2002. If you cannot separate

damages caused by the preexisting back condition from those caused by the slip and fall

on April 12, 2002, then the Defendant is liable for all of those damages.

The Defendant may be liable for bodily harm to Kaylene Thomas even though the

injury is greater than usual due to the physical condition which predisposed Kaylene

Thomas to the injury. In short, the Defendant takes the Plaintiff as it finds her.

Instruction No. 29

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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 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 courtroom deputy, 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 not

tell anyone-including me-how your votes stand numerically.

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Fourth, your verdict must be based solely on the evidence and on the law which I

have given to you in my instructions. The verdict must be unanimous. Nothing I have said

or done is intended to suggest what your verdict should be-that is entirely for you to

decide.

Finally, the verdict form is simply the written notice of the decision that you reach

in this case. The forms read:

VERDICT FORM NO. 1

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We, the jury duly impaneled and sworn in the above-entitled cause, do find for the

Defendant.

DATED this day of September, 2006.

Foreperson

VERDICT FORM NO. 2

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Plaintiffs and assess the Plaintiffs' damages as follows:

Kaylene Thomas $ _

Dennis Thomas $---------

DATED this day of ________, 20___.

Foreperson

VERDICT FORM NO. 3

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We, the jury, find that both the Plaintiffs and the Defendant have met their burdens of proof. We answer the questions on Verdict Form No.3 as follows:

LIST OF PERCENTAGES:

What percent of the negligence was attributedKaylene Thomas? %

What percentage of the negligence was that ofWal-Mart Stores Inc.? ---- %

The total negligence must add up to 100%. TOTAL = 100%

If the negligence of the Plaintiff Kaylene Thomas equals 50% or more, then you must return a verdict for the Defendant: Date and sign a verdict (Verdict Form No. 1) for the Defendant and return it to the Court.

If the negligence of the Plaintiff is less than 50%, then you must return a verdict for the Plaintiff and, using Instruction No. 22, you must determine the amount of damage suffered by the Plaintiff, and enter that figure.

Plaintiff Kaylene Thomas' damages (100%) figured pursuant to Instruction No. 26 are$ _


Foreperson

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You will take these forms to the jury room, and when each of you has agreed on the

verdict, your foreperson will fill in the appropriate forms, sign and date them, and advise

the courtroom deputy that you are ready to return to the courtroom.

If you do not agree on a verdict by 5:00 o'clock p.m., you may separate and return

for deliberation at 9:00 o'clock a.m. on the next business day. You may deliberate after

5:00 o'clock p.m., but if so, please advise the courtroom deputy of your intention to do so.

You may also separate for meals during the course of your deliberations, but if you do

separate for meals please contact the courtroom deputy to advise her of your intention to

separate and when you expect to return to the jury room to reconvene your deliberations.

If you do separate, then during that time, you are not allowed to discuss this case with

anyone, even another juror.

SUBMITTED -p.m.

DATED the ____ of _______, 20___.

VERDICT FORM NO. 1

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Defendant.


Foreperson

VERDICT FORM NO. 2

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Plaintiffs and assess the Plaintiffs' damages as follows:

Kaylene Thomas $ _

Dennis Thomas $ _


Foreperson

VERDICT FORM NO. 3

We, the jury, find that both the Plaintiffs and the Defendant have met their burdens of proof. We answer the questions on Verdict Form No. 3 as follows:

LIST OF PERCENTAGES:

What percent of the negligence was attributedKaylene Thomas? ---- %

What percentage of the negligence was that ofWai-Mart Stores Inc.? ---- %

The total negligence must add up to 100%. TOTAL = 100%

If the negligence of the Plaintiff Kaylene Thomas equals 50% or more, then you must return a verdict for the Defendant: Date and sign a verdict (Verdict Form No. 1) for the Defendant and return it to the Court.

If the negligence of the Plaintiff is less than 50%, then you must return a verdict for the Plaintiff and, using Instruction No. 22, you must determine the amount of damage suffered by the Plaintiff, and enter that figure.

Plaintiff Kaylene Thomas' damages (100%) figured pursuant to Instruction No. 26 are$ _


Foreperson

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