Free Proposed Jury Instructions - District Court of Colorado - Colorado

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BIG-D' AFFIRMATIVE DEFENSES TO LEPRINO' s S NEGLIGENCE CLAIM

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INSTRUCTION NO.____ LEPRINO' CLAIM FOR NEGLIGENCE ­ DEFINED1 S In regard to Leprino' negligence claim against Big-D California, negligence s means a failure to do an act which a reasonable contractor would do, or the doing of an act which a reasonably careful contractor would not do, under the same or similar circumstances to protect oneself from damage.

1 Source and Authority: CJI 9:6 (2004); Lyons v. Nasby, 770 P.2d 1254 (Colo. 1989); Matt Skorey Packard Co. v. Canino, 142 Colo. 411, 350 P.2d 1069 (1960).

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INSTRUCTION NO.____ LEPRINO' CLAIM FOR NEGLIGENCE AGAINST BIG-D CALIFORNIA­ S ELEMENTS OF LIABILITY2 For Leprino to recover from Big-D California on its claim of negligence, you must find that all of the following have been proved by a preponderance of evidence: 1. Leprino had damages; 2. Big-D California was negligent; 3. Big-D California' negligence was the cause of Leprino' damages. s s

If you find that any one or more of these three statements have not been proved, then your foreperson shall complete only Special Verdict Form ____, and all jurors shall sign it. On the other hand, if you find that all of these three statements have been proved, then you must consider the affirmative defenses of Big-D California. If you find that any one of the following affirmative defenses has been proved by a preponderance of the evidence, then your verdict must be for Big-D California on Leprino' claim for negligence: s 1. 2. CJI 9:4 Leprino and its agents were comparatively negligent; or Leprino failed to mitigate its damages.

2 Source and Authority: CJI 9:22.

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INSTRUCTION NO._____ BIG-D CALIFORNIA AND BIG-D CORP.' AFFIRMATIVE DEFENSES COMPARATIVE NEGLIGENCE OF LEPRINO3 The affirmative defense of the comparative negligence of Leprino and its agents is proved if you find all of the following: 1. Leprino and/or its agents were negligent; and 2. The negligence of Leprino and/or its agents were a cause of Leprino' own s claimed damages. For Leprino' and its agents' negligence, negligence means a failure to do an act s which a reasonable owner/developer would do, or the doing of an act which a reasonably careful owner/developer would not do, under the same or similar circumstances to protect oneself from damage.

3 Source and Authority: CJI 9:23; Stevens v. Strauss, 147 Colo. 547, 364 P.2d 382 (1961).

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INSTRUCTION NO._____ COMPARATIVE NEGLIGENCE OF LEPRINO4 If you find Leprino was damaged and that Leprino' damages were caused by the s negligence of Leprino and/or Big-D California, and/or UMM, then you must determine to what extent the negligent conduct of each contributed to the damages of Leprino, expressed as a percentage of 100%. If you find that Leprino and/or Big-D California and/or UMM were negligent and the negligence of Leprino was equal to or greater than the negligence of Big-D California and/or UMM, then Leprino would not be allowed to recover. On the other hand, if you find that both Leprino and Big-D California and/or Big-D Corp. and/or UMM were negligent, and that the negligence of Big-D California and/or Big-D Corp. and/or UMM was greater than the negligence of Leprino, then Leprino will be allowed to recover. If Leprino is allowed to recover, the total damages that you award will be reduced by the Court by the percentage of Leprino' own negligence. s

4 Source and Authority: CJI 9:26 (2004)

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INSTRUCTION NO. ____ REASONABLE CARE - DEFINED5 Reasonable care is that degree of care which a reasonably careful owner/developer would use under the same or similar circumstances.

5

CJI 9:8 (2004)

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INSTRUCTION NO.____ FORESEEABILITY LIMITATION6 The negligence, if any, of Big-D California is not a cause of any damages to Leprino unless damage to a person in Leprino' situation was a reasonably foreseeable s result of the negligence. The specific injury need not have been foreseeable. It is enough if a reasonably careful owner/developer, under the same or similar circumstances, would have anticipated that damage to a person in Leprino' situation might result form Big-D s California' conduct. s

6

Source and Authority: CJI 9:21 (2004)

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INSTRUCTION NO. ____ DEFINITIONS OF CAUSES7 The word "cause" as used in these instructions means an act or failure to act that in natural and probable sequence produced the claimed injury. It is a cause without which the claimed injury would not have happened. If more than one act or failure to act contributed to the claimed injury, then each act or failure to act may have been a cause of the injury. A cause does not have to be the only cause or the last or nearest cause. It is enough if the act or failure to act joins in a natural and probable way with some other act or failure to act to cause some or all of the claimed injury. One' conduct is not a cause of another' injuries, however, if, in order to bring s s about such injuries, it was necessary that his or her conduct combine or join with an intervening cause that also contributed to cause the injuries. An intervening cause is a cause that would not have been reasonably foreseen by a reasonably careful person under the same or similar circumstances.

7

CJI 9:20 (2004)

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INSTRUCTION NO. ____ RATIFICATION-DEFINED8 A person may act as the agent for another without authority. If the person for whom the act is done has full knowledge of all the important facts, that person may, by words or conduct, ratify or accept the action after it was done. Ratification after the act is the same as authorization before the action.

8

Source and Authority: CJI 7:16 (2004)

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INSTRUCTION NO. _____ SCOPE OF AUTHORITY OF AGENTS-DEFINED9 An agent is acting within the scope of his authority when the agent is carrying on business for his or her principal which the principal has expressly authorized or which is within the incidental or apparent authority of the agent.

9

CJI 7:11 (2004); Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993); Stortroen v. Beneficial Finance Co. of Colorado, 736 P.2d 391 (Colo. 1987)

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INSTRUCTION NO. ___ CORPORATE AGENCY10 An agency is created by an agreement, written or oral, express or implied, by which the persons agree that one of them is to act for, or in the place of, the other. The person who agrees to act for antoher is called the agent and the other is called the principal. Big-D California asserts that when its employee spoke to Leprino=s project manager, Jack Towle, and the design professionals hired by Leprino, Mr. Towle and those design professionals were acting as an agent of Leprino. These individuals were acting as Leprino=s agents and their statements were statements of Leprino.

Source and authority: CJI-Civ. 4th 7:3 (2004); Sawyer v. Mid-Continent Petroleum Corp. 236 F.2d 518, 520 (10 Cir. 1995) (ASince a corporation can act only through its officers, agents and employees, it is necessarily chargeable with the composite knowledge of its officers and agents acting within the scope of their authority.@).
th

10

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INSTRUCTION NO. ___ KNOWLEDGE OF CORPORATION11 A principal is considered to know or have notice of information is the principal' s agent, while action within the scope of the agent' authority, learns or receives notice of s the information. The knowledge possessed by one employee of a corporation is

imputable to the corporation itself and also to other employees of the corporation.

Source and authority: CJI 7:17 (2004); Trinity Universal Ins. Co. v. Rocky Mountain Wholesale Co., 353 F.2d 574, 577-78. (10th Cir. 1966) (knowledge of two employees of a bonding company was necessarily imputed to the company, and thus a less senior employee was chargeable with the information when writing a particular bond); Sawyer v. Mid-Continent Petroleum Corp., 236 F.2d 518, 520 (10th Cir. 1955) (ASince a corporation can act only through its officers, agents and employees, it is necessarily chargeable with the composite knowledge of its officers and agents acting within the scope of their authority.@).

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INSTRUCTION NO. _____ FAILURE TO MITIGATE - DEFINED12 If you find that Leprino has sustained actual damages, then you must consider whether Big-D California proved its defense of Leprino' failure to mitigate or minimize s damages. Leprino has the duty to take reasonable steps under the circumstances to mitigate or minimize its damages. Damages, if any, caused by Leprino' failure to take s such reasonable steps cannot be awarded to Leprino. This affirmative defense is proved if you find that: 1. Leprino failed to take reasonable steps to recognize and address that the Project was not going to be completed by the time originally provided for in the Contract; Leprino failed to take reasonable steps to increase production at other cheese-making facilities or otherwise take steps to reduce its claimed losses due to delay if such losses could have been avoided without undue risk or burden.;

2.

If you find that any one or more of these propositions has not been proved by a preponderance of the evidence, then you shall make no deduction from Leprino' s damages. On the other hand, if you find that all of these propositions have been proved by a preponderance of the evidence, then you must determine the amount of damages caused by Leprino' failure to take such reasonable steps. This amount must not be included in s your award of damages, if any, to Leprino.
Source and Authority: CJI 5:2 (2004); Calamari and Perillo, Contracts § 14-15 at 610 (3d ed. 1987)("As an almost inflexible proposition a party who has been wronged by a breach of the contract may not unreasonably sit idly by and allow damages to accumulate"); Restatement (Second) of Contracts § 350 (1981)
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INSTRUCTION NO. ____ REASONABLENESS OF MITIGATION EFFORT13 To evaluate whether a reasonable effort was made to mitigate damages, you shall consider the following: The means of mitigation were within Leprino' control; s The effort to mitigate was timely made by Leprino; The reduced income tax liabilities by the deduction of losses incurred;

13 Bruner & O' Connor on Construction Law, §19:21 at pp. 100-101 and §19:23 at p. 104 (2002)

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INSTRUCTION NO. _______ DAMAGES - SETOFF14 If you find that Leprino is entitled to damages as a result of Big-D California' s negligence, then the amount of damages you award must be reduced by the amount of any sums which Big-D California is owed by Leprino.

14

Source and authority: Black=s Law Dictionary, 6th Ed. (1992).

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INSTRUCTION NO. ____ BIG-D CALIFORNIA' ALTERNATIVE INSTRUCTION ON ALTER-EGO AND S PIERCING THE CORPORATE VEIL15

Leprino claims that Big-D California is a sham corporation used for the purpose of conducting the business affairs of Big-D Corp. and other Big-D corporate entities. Leprino thus claims that Big-D Corp. and the other Big-D corporate entities should be held responsible for any verdict you may enter against Big-D California. This is called "piercing the corporate veil". In order to prevail in its claim to pierce the corporate veil of Big-D California, Leprino has the burden of proving, by a clear showing, all of the facts necessary to establish the following: 1. Big-D California was used to perpetrate a fraud, promote injustice, defeat

a rightful claim, or commit a wrong against Leprino. Factors to consider in determining whether element No. 1 was established above, include the following. Even if you find the factors listed below to be present, you must find that those factors below, if any, establish a clear showing that Big-D California was used to perpetrate a fraud, promote injustice, defeat a rightful claim, or to commit a wrong against Leprino. Standing alone, informalities in the conduct of Big-D California

do not form a basis to pierce the corporate veil. Additionally, Leprino must establish a degree of control was actually exercised over Big-D California by another particular BigD corporate entity, even if Big-D California was wholly owned by another Big-D

15 Source and Authority: Gude v. City of Lakewood, 636 P.2d 691, 697 (Colo. 1981); Contractors Heating and Supply Company v. Scherb, 432 P.2d 237, 239 (Colo. 1967); FDIC v. First Interstate Bank of Denver, 937 F. Supp 1461, 1466 (D. Colo. 1996); NLRB v.Greater Kansas City Roofing, 2 F.3d 1047, 1052 (10th Cir. 1993).

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corporate entity: 1. 2. 3. 4. 5. 6. 7. 8. whether a corporation has operated as a separate entity; commingling of funds and other assets; failure to maintain adequate corporate records or minutes; the nature of the corporation' ownership and control; s absence of corporate assets and under-capitalization; use of corporation as a mere shell, instrumentality, or conduit of an individual or other corporation; disregard of legal formalities and the failure to maintain an arms' length transaction among related entities; and diversion of the corporation' funds or assets to non-corporate uses. s