Free Floyd Jury Instructions - South Carolina

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA INSTRUCTIONS FOR PROPOSED JURY CHARGES IN CASES BEFORE JUDGE HENRY F. FLOYD § § §

INSTRUCTIONS FOR PROPOSED JURY CHARGES* All proposed jury instructions are required to be submitted in the following format: (a) The parties are required to jointly submit one set of instructions. To this end, the parties are required to serve their proposed instructions upon each other in time to confer and submit to the Court one complete set of agreed-upon joint instructions, as well as any disputed supplemental instructions, five (5) business days prior to jury selection. Joint instructions should be e-mailed to [email protected]. Do not electronically file in ECF. Please include the case number in the subject line of the e-mail message. (b) The Court's preliminary and boilerplate jury instructions are attached. It is not necessary for attorneys to submit proposed instructions as to the matters contained in the attached instructions. If the parties in good faith believe that the standard instructions need to be tailored for the trial of the case, they may submit such modified instructions for the Court's review. (c) If the parties cannot agree upon one entire set of joint instructions, they are required to submit joint instructions that have been agreed upon (labeled as Joint Request to Charge No.
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Adapted from Judge Margaret Seymour's instructions.

____), and to submit supplemental instructions that have not been agreed upon (labeled as Plaintiff/s/Defendant's Request to Charge No. ___). Legal authority should be cited in all instructions. Each supplemental instruction should list any party requesting the instructions as well as any party's objection to the instruction. Along with the notation of the party objecting to or requesting the instruction, the supplemental instruction should cite the legal authority in support of the requested instruction and the specific basis for each objection to the instruction. Objections should specifically and concisely set forth the objectionable material in the proposed instruction. The numbering of supplemental instructions should begin where the agreed-upon joint instructions end. A sample of each type of instruction (agreed-upon and objected-to) is attached for your reference. (d) If legal authority is cited that is not reported in the Southeastern Reporter or Federal Reporters, copies of cited authority should be attached to the requested instruction. (e) All instructions should be concise, understandable, and neutral statements of law. They should also be narrative and organized in a logical manner. Argumentative or formula instructions are improper, will not be given, and should not be submitted. (f) Failure to comply with any of the above instructions may subject the noncomplying party and/or its attorneys to sanctions.

s/ Henry F. Floyd HENRY F. FLOYD UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION JOHN DOE, Plaintiff, v. RICHARD ROE, Defendant. § § § § § § §

CIVIL ACTION NO. 6:03-7654-HFF

JOINT REQUEST TO CHARGE NUMBER _____ Plaintiff's claim in this case is based upon three alternative theories: (1) negligence, (2) strict liability, and (3) breach of warranty. The plaintiff is not required to prove all three of these theories in order for him to recover. Proof of his claim under any one of these theories would enable you to find that he is entitled to a verdict in his favor.

AUTHORITY Bragg v. Hi-Ranger, Inc., 462 S.E.2d 321 (S.C. Ct. App. 1995).

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION JOHN DOE, Plaintiff, v. RICHARD ROE, Defendant. § § § § § § §

CIVIL ACTION NO. 6:03-7654-HFF

PLAINTIFF'S SUPPLEMENTAL REQUEST TO CHARGE NUMBER _____ "An employment contract for a definite term . . . generally continues until the expiration of the stated term, unless a right to terminate the contract sooner is reserved in the contract." 27 Am. Jur. 2d Employment Relationship § 30 (1996). In this case, the term is one year, with automatic renewal terms of one year provided.

AUTHORITY Contract ¶ 10(a). "This Agreement shall be in effect for an initial term of one (1) year from December 9, 1995 through December 8, 1996, and shall be automatically renewed for successive one (1) year terms thereafter, unless either party gives written notice to the other party of its intention to terminate this agreement, such notice to be given no later than ninety (90) days prior to the last day of the then-existing term."

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DEFENDANT'S OBJECTION The last sentence of this instruction should be excised because it seeks to charge the facts of the case, Walker v. New Mexico & S.P.R. Co., 165 U.S. 593 (1897), and is not a complete statement of the contract provision. The contract automatically renews only if neither party gives notice of termination at least 90 days prior to the last day of the contract term.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION JOHN DOE, Plaintiff, v. RICHARD ROE, Defendant. § § § § § § §

CIVIL ACTION NO. 6:03-7654-HFF

DEFENDANT'S SUPPLEMENTAL REQUEST TO CHARGE NUMBER _____ The parties agree that there was a contract for services between them. The contract provided that "either party may terminate this Agreement immediately in the event of a material breach by either party."

AUTHORITY: Contract ¶ 5.

PLAINTIFF'S OBJECTION First sentence is all right. Second sentence is a partial quote from Paragraph 10(b) of the contract, which needs to be quoted in full.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION GENERAL JURY INSTRUCTIONS FOR CASES BEFORE JUDGE HENRY F. FLOYD § § §

GENERAL JURY INSTRUCTIONS Duties of Jury to Find Facts & Follow Law Members of the jury, now that you have heard all the evidence and the arguments of the lawyers, it is my duty to instruct you on the law that applies to this case. These instructions will

be in three parts: first, the instructions on general rules that define and control the jury's duties; second, the instructions that state the rules of law you must apply, i.e., what the plaintiff must prove to make the case; and third, some rules for your deliberations. It is your duty to find the facts from all the evidence in the case. To those facts you must apply the law as I give it to you. You are bound to accept the rules of law as I give them to you whether you agree with them or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathies. That means that you must decide the case solely on the evidence before you and according to the law. You will recall that you took an oath promising to do so at the beginning of the case. In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. And you must not read into these instructions or into anything I may have said or done any suggestion as to what verdict you should return - that is a matter entirely for you to decide.

Burden of Proof At the beginning of the case, I told you that the plaintiff has the burden of proving the case by a preponderance of the evidence. That means that the plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what the plaintiff claims is more likely true than not. To put it differently, if you were to put the plaintiff's and defendant's evidence on opposite sides of an imaginary set of scales, the plaintiff would have to make the scales tip slightly to that side. If the plaintiff fails to meet this burden, the verdict must be for the defendant. Those of you who have sat on criminal cases will have heard of proof beyond a reasonable doubt. That is a stricter standard, that is, it requires more proof than a preponderance of evidence. The reasonable doubt standard does not apply to a civil case and you should therefore put it out of your mind. Evidence The evidence from which you are to decide what the facts are consists of: (1) the sworn testimony of witnesses, both on direct and cross-examination, regardless of who called the witnesses; (2) (3) the exhibits which have been received into evidence; and any facts to which all the lawyers have agreed to stipulate. What Is Not Evidence In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list these things for you:

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1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, then your memory of them controls. 2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe that a question is improper under the rules of evidence. You should not be influenced by any of the objections or by my ruling on any of them. 3) Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. In addition, if testimony or exhibits have been received only for a limited purpose, you must follow the limiting instructions I have given. 4) Anything you may have seen or heard when the court was not in session is not evidence. You are to decide this case solely on the evidence received at the trial. Direct and Circumstantial Evidence There are two kinds of evidence the law recognizes: direct and circumstantial. Direct evidence is direct proof of a fact, such as testimony of an eyewitness. Circumstantial evidence is indirect evidence, that is, proof of a chain of facts from which you could find that another fact exists, even though it has not been proved directly. You are entitled to consider both kinds of evidence. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any of the evidence in this case. It is for you to decide whether a fact has been proved by circumstantial evidence. In making that decision, you must consider all the evidence in the light of reason, common sense, and experience.

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Credibility of Witnesses In deciding what the facts are, you must consider all of the evidence. In doing this, you must decide which testimony to believe and which testimony not to believe. You are the sole judges of the credibility, or believability, of each witness. You must decide for yourselves whether to believe the testimony of any witness. You may believe all or any part or nothing of what a witness said while on the stand. In determining whether to believe any witness, you should apply the same tests of truthfulness which you apply in your own everyday affairs. In doing this, you may take into account a number of factors including the following: 1) Was the witness able to see, or hear, or know the things about which that witness testified? 2) How well was the witness able to recall and describe those things? 3) What was the witness's manner while testifying? 4) Did the witness have an interest in the outcome of this case or any bias or prejudice concerning any party or any matter involved in the case? 5) How reasonable was the witness's testimony considered in light of all the evidence in the case? 6) Was the witness's testimony contradicted by what that witness has said or done at another time, or by the testimony of other witnesses, or by other evidence? In deciding whether or not to believe a witness, keep in mind that people sometimes forget things. You need to consider therefore whether a contradiction by a witness is an innocent lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or with only a small detail. These are some of the factors you may consider in deciding whether to believe testimony.

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The weight of the evidence presented by each side does not necessarily depend on the number of witnesses testifying on one side or the other. You must consider all the evidence in the case, and you may decide that the testimony of a smaller number of witnesses on one side has greater weight than that of a larger number on the other. All of these are matters for you to consider in finding the facts. Summaries Not Received In Evidence Certain charts and summaries have been shown to you in order to help explain the facts disclosed by the books, records, and other documents which are in evidence in the case. Such charts or summaries are used for convenience. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the underlying evidence. Charts And Summaries Received In Evidence Certain charts and summaries have been received into evidence to illustrate facts brought out in the testimony of some witnesses. Charts and summaries are only as good as the underlying evidence that supports them. You should therefore give them only such weight as you think the underlying evidence deserves. Use of Depositions ) Written Form Only During the trial of this case, certain testimony has been read to you by way of a deposition. The deposition testimony of a witness who, for some reason, cannot be present to testify from the witness stand is usually presented in writing under oath in the form of a deposition. Such testimony is entitled to the same consideration and, insofar as possible, is to be judged as to credibility and weighed by you in the same manner as if the witness had been present.

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Use of Depositions ) Written Form and Video During the trial of this case, certain testimony has been read to you by way of deposition or shown to you by way of videotape. The deposition or videotape testimony of a witness who, for some reason, cannot be present to testify from the witness stand is usually presented in writing under oath in the form of a deposition or in a videotape. Such testimony is entitled to the same consideration and, insofar as possible, is to be judged as to credibility and weighed by you in the same manner as if the witness had been present. Opinion Evidence, Expert Witness The rules of evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. An exception to this rule exists as to those whom we call "expert witnesses." Witnesses who, by education and experience, have become expert in some art, science, profession, or calling, may state their opinions as to relevant and material matters in which they profess to be expert, and may also state their reasons for the opinion. Expert opinion testimony should be judged just as any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case. Separate Consideration of Each Defendant Although there is more than one defendant in this action, it does not follow that if one is liable, all are liable. Each defendant is entitled to a fair consideration of that defendant's own defense, and is not to be prejudiced by the fact, if it should become a fact, that you find against another. Unless otherwise stated, all instructions given apply to the case against each defendant.

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Joint Consideration of Both Defendants In this case, the two defendants are related corporations. Their positions in this lawsuit are identical. This means that they are both either liable or not liable. In other words, even though there are actually two defendants in the case, you should consider them as one unit in your deliberations. Corporations The fact that a plaintiff or defendant is a corporation should not affect your decision. All persons are equal before the law, and corporations, whether large or small, are entitled to the same fair and conscientious consideration by you as any other person would be entitled to. Liability of Corporations A corporation under the law is a person, but it can only act through its employees, agents, directors, or officers. The law therefore holds a corporation responsible for the acts of its employees, agents, directors, and officers, if but only if those acts are authorized. An act is authorized if it is a part of the ordinary course of employment of the person doing it. Whether a particular act was authorized is a question you must decide on the evidence. The fact that a plaintiff or defendant is a corporation should not affect your decision. All persons are equal before the law, and corporations, whether large or small, are entitled to the same fair and conscientious consideration by you as any other person. [2d paragraph is a repeat of "corporations"] Two Claims (Wrongful Death & Survival) This case presents for your consideration what are known in the law as "wrongful death" and "survival" claims. Such claims are brought by the representative of the estate of a deceased person to recover two different types of damages allegedly sustained.

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In both cases, the plaintiff's claims are brought on behalf of the estate of _______________ and based on the theory of negligence and/or recklessness. Specifically, the plaintiff alleges that __________________ negligently and recklessly operated her automobile in a manner proximately caused the collision with the child, causing his death. The essential elements that the plaintiff must prove in order to recover for the wrongful death and the survival action are essentially the same. It is only in the area of damages that the two claims are different. We will discuss the difference in damages later in these instructions. Before we do that, however, I need to explain to you the law of negligence and recklessness. Two Claims (Personal Injury and Loss of Consortium) Two different claims have been brought by Mr. and Mrs. Martin as a result of the collision that occurred on November 26, 1991. One is a claim by Mr. Martin for the injury and loss he allegedly sustained because of the collision. The other is a claim by Mrs. Martin for what is known in the law as loss of consortium. A loss of consortium claim is a claim made by a person when his or her spouse is injured as a result of the wrongful conduct of another person. The term "consortium" means the aid, comfort, society, and services of a spouse. The essential elements that Mr. and Mrs. Martin must prove in order to recover on these two claims are the same. It is only in the area of damages that the two claims are different. we will discuss the differences in damages in a few moments. But first, I must discuss with you the law of negligence and recklessness, because, as I have said, this law applies to both claims. Liability The plaintiff's claim in this case is based upon ___________________ alternative or concurrent theories. I will first identify these theories for you and then we'll go back and discuss each one with you in detail. 8

The ___________________________ theories are: 1. 2. 3. 4. The plaintiff is not required to prove both of these theories in order for it to recover. Proof of its claim under either one of these theories would enable you to find that it is entitled to a verdict in its favor. Defenses General Denial The defendant has offered several defenses in this case. The first is what is known as the defense of general denial. By this, the defendant simply says that it denies the material allegations of the complaint. The defendant denies that it [made or breached any warranties]* to the plaintiff, and contends that [even if warranties were made, the plaintiff did not rely on these representations.] The general denial places the burden of proof upon the plaintiff to come forward with evidence to prove these material allegations.
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Alternative Form: [was negligent and further denies that its negligence, if any, was the proximate cause

of the plaintiff's injuries.] Affirmative Defenses - Burden of Proof In addition to denying all of the material allegations of plaintiff's complaint, the defendant has asserted two affirmative defenses. These are the defenses of contributory negligence and assumption of the risk. 9

Just as the plaintiff has the burden of proving his case by a preponderance of the evidence, the defendant has the burden of proving that one or both of these affirmative defenses apply to it by a preponderance of the evidence. In other words, the burden of proof with regard to these two affirmative defenses rests with the defendant. Contributory negligence, if established, provides a complete defense to the negligence claim. Assumption of the risk, if established, provides a complete defense to both the negligence claim and the implied warranty claim. Damages If you should find in accordance with these instructions that the plaintiff has failed to establish the essential elements of any of his causes of action by a preponderance of the evidence, then your verdict should be for the defendant. If, on the other hand, you find that the plaintiff has established the essential elements of one or more of his causes of action by a preponderance of the evidence, your verdict should be for the plaintiff and you should next consider the question of damages. Damages [For Comparative Negligence Cases] If it becomes necessary in your deliberations to calculate damages, I instruct you as follows: Damages - Cautionary Instruction The fact that I have instructed you on the proper measure of damages should not be considered as an indication of any view of mine as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given only for your guidance, in the event that you should find in favor of Plaintiff on the question of liability, by a preponderance of evidence and in accord with the other instructions.

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Closing Duty to Deliberate When you retire to the jury room, you should first elect one from among you to serve as your foreperson. The foreperson you select will preside over the deliberations and speak for the jury here in court. After electing your foreperson, you should discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinion if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence 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. Consideration of Evidence Your verdict must be based solely on the evidence and on the law as I have given it to you in these instructions. However, nothing that I have said or done is intended to suggest what your verdict should be - that is entirely for you to decide. The arguments and statements of the attorneys are not evidence. If you remember the facts differently from the way the attorneys have stated them, you should base your decision on what you remember.

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Return of Verdict After you have reached a unanimous agreement on a verdict, your foreperson will fill in the form that has been given to you, sign and date it and advise the marshal (or bailiff) outside your door that you are ready to return to the courtroom. Communicating With the Court If it becomes necessary during your deliberations to communicate with me, you may send a note through the marshal (or bailiff), signed by your foreperson or by one or more members of the jury. No member of the jury should ever attempt to communicate with me except by a signed writing; and I will communicate with any member of the jury on anything concerning the case only in writing, or orally here in open court. Remember that you are not to tell anyone - including me how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict or have been discharged.

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