Fill and Sign the Instruction Comparative Negligence Form

1.1 Negligence Comparative Negligence Defense In this case the Plaintiff claims that the Defendant was negligent and that such negligence was a legal cause of damage sustained by the Plaintiff. Specifically, the Plaintiff alleges that the Defendant [describe the specific act(s) or omission(s) asserted as negligence on the part of the Defendant]. In order to prevail on this claim the Plaintiff must prove both of the following facts by a preponderance of the evidence: First: That the Defendant was "negligent;" and Second: That such negligence was a "legal cause" of damage sustained by the Plaintiff. [In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] "Negligence" is the failure to use reasonable care. Reasonable care is that degree of care that a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances, or in failing to do something that a reasonably careful person would do under like circumstances. Negligence is a "legal cause" of damage if it directly and in natural and continuous sequence produces, or contributes substantially to producing such damage, so it can reasonably be said that, except for the negligence, the loss, injury or damage would not have occurred. Negligence may be a legal cause of damage even though it operates in combination with the act of another, some natural cause, or some other cause if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such damage. If a preponderance of the evidence does not support the Plaintiff's claim, then your verdict should be for the Defendant. If, however, a preponderance of the evidence does support the Plaintiff's claim, you will then consider the defense raised by the Defendant. The Defendant contends that the Plaintiff was also negligent and that such negligence was a legal cause of the Plaintiff's own injury. This is a defensive claim and the burden of proving that claim, by a preponderance of the evidence, is upon the Defendant who must establish: First: That the Plaintiff was also "negligent;" and Second: That such negligence was a "legal cause" of the Plaintiff's own damage. [In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] Alabama Law If you find that the Plaintiff was also negligent and that such negligence contributed however slightly to the Plaintiffs own damages, then the Plaintiff is barred from any recovery in this action, and your verdict would be for the Defendant. Florida Law Finding in favor of the Defendant on this defense will not prevent recovery by the Plaintiff, it will only reduce the amount of the Plaintiff's recovery. In other words, if you find that the accident was due partly to the fault of the Plaintiff - - that the Plaintiff's own negligence was, for example, 50% responsible for the Plaintiff's own damage - - then you would fill in that percentage as your finding on the special verdict form that I will explain in a moment. Such a finding would not prevent the Plaintiff from recovering; the Court will merely reduce the Plaintiff's total damages by the percentage that you insert. Of course, by using the number 50% as an example, I do not mean to suggest to you any specific figure at all. If you find that the Plaintiff was negligent, you might find 1% or 99%. Georgia Law Finding in favor of the Defendant on this defense will not necessarily prevent recovery by the Plaintiff, it may only reduce the amount of the Plaintiff’s recovery. In other words, if you find that the accident was due partly to the fault of the Plaintiff - - that the Plaintiff’s own negligence was, for example, 25% responsible for the Plaintiff’s own damage - - then you would fill in that percentage as your finding on the special verdict form I will explain in a moment. Such a finding would not prevent the Plaintiff from recovering; the Court will merely reduce the Plaintiff’s total damages by the percentage that you insert. On the other hand, if you find that the Plaintiff’s negligence equaled or exceeded the Defendant’s negligence, then the Plaintiff cannot recover at all. In other words, if you find that the Plaintiff was responsible for 50% or more of the damages, then you have found that the Plaintiff’s negligence equaled or exceeded the Defendant’s negligence, in which case the Plaintiff is barred from recovery. Return To General Charge If the evidence proves negligence on the part of the Defendant that was a legal cause of damage to the Plaintiff, you should award the Plaintiff an amount of money that will fairly and adequately compensate the Plaintiff for such damage. In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable. On the other hand, compensatory damages are not restricted to actual loss of time or money; they cover both the mental and physical aspects of injury - - tangible and intangible. Thus, no evidence of the value of such intangible things as pain and suffering has been or need be introduced. In that respect it is not value you are trying to determine, but an amount that will fairly compensate the Plaintiff for those claims of damage. There is no exact standard to be applied; any such award should be fair and just in the light of the evidence. You should consider the following elements of damage, to the extent you find them proved by a reponderance of the evidence, and no others: (a) Medical and hospital expenses, past and future (b) Mental or physical pain and anguish, past and future (c) Net lost wages and benefits to the date of trial (d) Net lost wages and benefits in the future [reduced to present value] [You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to "mitigate" those damages - - that is, to take advantage of any reasonable opportunity that may have existed under the circumstances to reduce or minimize the loss or damage. So, if you should find from a preponderance of the evidence that the Plaintiff failed to seek out or take advantage of a business or employment opportunity that was reasonably available under all the circumstances shown by the evidence, then you should reduce the amount of the Plaintiff's damages by the amount that could have been reasonably realized if the Plaintiff had taken advantage of such opportunity.] 1.1 Negligence Comparative Negligence Defense SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence: 1. That the Defendant was negligent in the manner claimed by the Plaintiff and that such negligence was a legal cause of damage to the Plaintiff? Answer Yes or No [Note: If you answered No to Question No. 1 you need not answer the remaining questions.] 2. That the Plaintiff also was negligent in the manner claimed by the Defendant and that such negligence was a legal cause of the Plaintiff's own damage? Answer Yes or No 3. If you answered "Yes" to Question Two, what proportion or percentage of the Plaintiff's damage do you find from a preponderance of the evidence to have been legally caused by the negligence of the respective parties? Answer in Terms of Percentages The Defendant %       The Plaintiff %       (Note: The total of the percentages given in your answer should equal 100%.) 4. If you answered "Yes" to Question One, what sum of money do you find from a preponderance of the evidence to be the total amount of the Plaintiff's damages (without adjustment by application of any percentages you may have given in answer to Question Three)? (a) Medical and hospital expenses, past and future $       (b) Mental or physical pain and anguish, past and future $       (c) Net lost wages and benefits to the date of trial $       (d) Net lost wages and benefits in the future [reduced to present value] $       SO SAY WE ALL. Foreperson DATED:       ANNOTATIONS AND COMMENTS Alabama adheres to the common law rule that contributory negligence is a complete defense. See, e.g., Knight v. Alabama Power Co., 580 So.2d 576 (Ala. 1991); Williams v. Delta Intern. Machinery Corp., 619 So.2d 1330 (Ala. 1993); and Campbell v. Alabama Power Co., 567 So.2d 1222 (Ala. 1990). There is no need, therefore, as there is in Florida and Georgia, to explain the apportionment of fault. If a special interrogatories verdict form is used (Questions 1, 2 and 4 of the verdict form appended to this instruction), it would be unnecessary to say anything to the jury about the consequences of a finding of contributory negligence. If a general verdict form is used, then the following should be added to the instructions: “If you find that the Plaintiff was also negligent and that such negligence contributed however slightly to the Plaintiff’s own damages, then the Plaintiff is barred from any recovery in this action, and your verdict would be for the Defendant.” Florida has adopted a “pure” comparative negligence rule. See Hoffman v. Jones, 280 So.2d 431 (Fla. 1973). Georgia follows a modified contributory/comparative negligence rule under which a negligent plaintiff may recover unless the Plaintiff’s negligence is equal to or greater than the Defendant’s negligence, i.e., 50% or more. If it is, the greater contributory negligence bars recovery. If it is not, the Plaintiff may recover damages but the amount will be reduced by the percentage of the negligence attributable to the Plaintiff. See, Smith v. American Oil Co., 77 Ga. App. 463, 49 S.E.2d 90 (Ga. App. 1948) (overruled on other grounds); Williams v. United States, 379 F.2d 719 (5th Cir. 1967). With regard to reduction to present value of damages to be awarded for future losses, see Supplemental Damages Instruction No. 5.1, infra, and the Annotations and Comments that follow it, for commentary on when that instruction should be given.