Fill and Sign the Jury Instruction 12 with Counterclaim by Defendant Form

1.2 Negligence With Counterclaim By Defendant 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]. Conversely, the Defendant counterclaims that the Plaintiff was negligent and that such negligence was a legal cause of damage sustained by the Defendant. Specifically, the Defendant alleges that the Plaintiff [describe the specific act(s) or omission(s) asserted as negligence on the part of the Plaintiff]. In order to prevail on their respective claims, each party must prove both of the following facts by a preponderance of the evidence: First: That the other party was "negligent;" and Second: That such negligence was a "legal cause" of damage sustained by the party asserting the claim. [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 you find for both parties on their respective claims against each other, that is, that both were negligent and that the negligence of each contributed as a legal cause of the damage sustained by the other Alabama Law. . . . then neither can recover from the other. Florida Law. . . . then you should award to each party, respectively, the total amount of damages sustained by each, and should also state on the special verdict form the percentages by which the negligence of each contributed to the damages. The Court will then enter an appropriate judgment based upon your findings. Georgia Law. . . . then you should state on the special verdict form the percentages by which the negligence of each contributed to the damages. If you should find that both parties were equally responsible - - that the negligence of each contributed to 50% of the damages, then neither can recover from the other. If, however, you find that one of the parties was more responsible than the other - - that the negligence of one contributed to, say, 75% of the damages, then you should determine the total amount of the damages sustained by each party (without deduction of any kind based on the percentages of responsibility you have found), and the Court will then enter an appropriate judgment based on your findings. In considering the issue of either party'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 either party. 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 either party 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) 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.] 1.2 Negligence With Counterclaim By Defendant 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 2. That the Plaintiff was negligent in the manner claimed by the Defendant and that such negligence was a legal cause of the Plaintiff's own damage as well as damage to the Defendant? Answer Yes or No 3. If you answered "Yes" to Question One and/or Question Two, what proportion or percentage of the parties’ 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] $       5. If you answered “Yes” to Question Two, what sum of money do you find from a preponderance of the evidence to be the total amount of the Defendant’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 See the Annotations and Comments following State Claims Instruction No. 1.1, supra. 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.