Fill and Sign the Instruction Comparative Negligence 497334183 Form

7.1 Federal Employers Liability Act (FELA - 45 USC § 51) General Instruction (Comparative Negligence Defense) In this case the Plaintiff's claims are asserted under the Federal Employers' Liability Act (FELA). Under the Act every common carrier by railroad, while engaged in interstate commerce, is liable in damages to any of its employees who are injured as a result of the railroad’s negligence. The Plaintiff claims, specifically, that the Defendant [describe the specific act(s) or omission(s) asserted as negligence on the part of the Defendant]. To prevail on this claim the Plaintiff must prove each of the following facts by a preponderance of the evidence: First: That at the time of the Plaintiff's injury, the Plaintiff was an employee of the Defendant performing duties in the course of that employment; Second: That the Defendant was at such time a common carrier by railroad, engaged in interstate commerce; Third: That the Defendant was "negligent" as claimed by the Plaintiff; and Fourth: 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.] [In this case the parties have stipulated or agreed that the first two of these requirements have been satisfied. Accordingly, the issues for you to consider involve items three and four, that is, whether the Defendant, or any of its employees other than the Plaintiff, was "negligent" and, if so, whether such negligence was a "legal cause "of any damages sustained by the Plaintiff.] Under the FELA it is the continuing duty of the Defendant to use reasonable care under the circumstances in furnishing the Plaintiff with a reasonably safe place in which to work. This does not mean that the Defendant is a guarantor of the Plaintiff's safety, and the mere fact that an accident happened, standing alone, does not require the conclusion that the accident was caused by anyone's negligence. The extent of the Defendant's duty is to exercise reasonable care under the circumstances to see that the place in which the work is to be performed is reasonably safe. "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. For purposes of this action, negligence is a "legal cause" of damage if it played any part, no matter how small, in bringing about or actually causing the injury or damage. So, if you should find from the evidence in the case that any negligence of the Defendant contributed in any way toward any injury or damage suffered by the Plaintiff, you may find that such injury or damage was legally caused by the Defendant's negligence. You are also instructed that 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 played any part, no matter how small, in causing such damage. If a preponderance of the evidence does not support the Plaintiff's claim under the FELA for negligence, 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. Specifically, the Defendant claims [describe the specific act(s) or omission(s) asserted as negligence on the part of the Plaintiff]. This is a defensive claim and the burden of providing 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.] The law requires you to compare any negligence you find on the part of both parties. So, if you find in favor of the Defendant on this defense, that 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 this 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 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%. If you find for the Plaintiff, you will then consider the issue of the Plaintiff's damages. 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 physical and emotional pain and mental anguish 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 preponderance of the evidence, and no others: (a) Net lost wages and benefits to the date of trial (b) Net lost wages and benefits in the future [reduced to present value] (c) Medical and hospital expenses incurred in the past [and likely to be incurred in the future] (d) Physical and emotional pain and mental anguish [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.] 7.1 Federal Employer’s Liability Act (FELA - 45 USC § 51) General Instruction (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 any of the remaining questions.] 2. That the Plaintiff was also 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 Four)? (a) Net lost wages and benefits to the date of trial $ (b) Net lost wages and benefits in the future [reduced to present value] $ (c) Medical and hospital expenses incurred in the past [and likely to be incurred in the future] $ (d) Mental and emotional humiliation or pain and anguish $ SO SAY WE ALL. Foreperson DATED: ANNOTATIONS AND COMMENTS See the Annotations and Comments following Federal Claims Instruction 6.1, supra, dealing with the Jones Act. (The Jones Act incorporates the FELA). 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.