Legal Defintions
Contract Damages:
QUESTION:
Did _____ fail to comply with the agreement?
Answer:_____
Material Breach: A failure to comply must be material. The circumstances to consider in determining whether a failure to comply is material include:
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a)The extent to which the injured party will be deprived of the benefit which he reasonably expected;
b)The extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
c)The extent of which the party failing to perform or to offer to perform will suffer forfeiture;
d)The likelihood that the party failing to perform or to offer to perform will cure his failure, taking into account the circumstances including any reasonable assurances;
e)The extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
A party's conduct includes the conduct of another who acts with the party's authority or apparent authority.
Apparent authority exists if a party (1) knowingly permits another to hold himself out as having authority or, (2) through lack of ordinary care, bestows on another such indications of authority that leas a reasonably prudent person to rely on the apparent existence of authority to his detriment. Only the acts of the party sought to be charged with responsibility for the conduct of another may be considered in determining whether apparent authority exists.
A party's conduct includes conduct of others that the party has ratified. Ratification may be express or implied.
Implied ratification occurs if a party, though he may have been unaware of unauthorized conduct taken on his behalf at the time it occurred, retains the benefits of the transaction involving the unauthorized conduct after he acquired full knowledge of the unauthorized conduct. Implied ratification results in the ratification of the entire transaction.
General Negligence and Intentional Torts:
1 "Negligence" means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.
"Ordinary care" means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.
11 "Proximate cause" means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
"New and independent cause" means the act or omission of a separate and independent agency, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question and thereby becomes the immediate cause of such occurrence.
1 There may be more than one proximate cause of an event, but if an act or omission of any person not a party to the suit was the "sole proximate cause" of an occurrence, then no act or omission of any party could have been a proximate cause.
1 If a person is confronted by an "emergency" arising suddenly and unexpectedly, which was not proximately caused by any negligence on his part and which, to a reasonable person, requires immediate action without time for deliberation, his conduct in such an emergency is not negligence or failure to use ordinary care if, after such emergency arises, he acts as a person of ordinary prudence would have acted under the same or similar circumstances.
1 An occurrence may be an "unavoidable accident", that is, an event not proximately caused by the negligence of any party to the occurrence.
1 If an occurrence is caused solely by an "act of God," it is not caused by the negligence of any person. An occurrence is caused by an act of God if it is caused directly and exclusively by the violence of nature, without human intervention or cause, and could not have been prevented by reasonable foresight or care.
1 "Malice" means a specific intent by someone to cause substantial injury or harm to someone else.
"Gross negligence" means more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care as to establish that the act or omission in question was the result of actual conscious indifference to the rights, welfare, or safety of the persons affected by it.
"Clear and convincing evidence" means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be established.
"Falsely imprison" means to willfully detain another without legal justification, against his consent, whether such detention be effected by violence, by threat, or by any other means that restrains a person from moving from one place to another.
"Malicious prosecution" occurs when one person initiates or procures, with malice, and without probable cause at the time the prosecution is commenced, the prosecution of an innocent person.
"Malice" means ill will, bad or evil motive, or such gross indifference to the rights of others as to amount to a willful or wanton act.
"Probable cause" means the existence of such facts and circumstances as would excite belief in a person of reasonable mind, acting on the facts or circumstances within his knowledge at the time the prosecution was commenced, that the other person was guilty of a criminal offense. The probable cause determination asks whether a reasonable person would believe that a crime had been committed given the facts as the complainant honestly and reasonably believed them to be before the criminal proceedings were instituted.
Intentional infliction of emotional distress occurs when the defendant acts intentionally or recklessly with extreme and outrageous conduct to cause the plaintiff emotional distress and the emotional distress suffered by the plaintiff was severe.
"Extreme and outrageous conduct" occurs only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.
A person commits an assault if he (1) intentionally, knowingly, or recklessly causes bodily injury to another; (2) intentionally or knowingly threatens another with imminent bodily injury; or (3) intentionally or knowingly causes physical contact with another when he or she knows or should reasonably believe that the other will regard the contact as offensive or provocative.
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An "employee" is a person in the service of another with the understanding, express or implied, that such other person has the right to direct the details of the work and not merely the result to be accomplished.
One who would otherwise be in the general employment of one employer is a "borrowed employee" of another employer if such other employer or his agents have the right to direct and control the details of the particular work inquired about.
An employee is acting in the scope of his employment if he is acting in the furtherance of the business of his employer.
1 A person is not acting as an employee if he is acting as an "independent contractor." An independent contractor is a person who, in pursuit of an independent business, undertakes to do specific work for another person, using his own means and methods without submitting himself to the control of such other person with respect to the details of the work, and who represents the will of such other person only as to the result of his work and not as to the means by which it is accomplished.
A "joint enterprise" exists if the persons concerned have (1) an agreement, either express or implied, with respect to the enterprise or endeavor; (2) a common purpose; (3) a community of pecuniary interest in [the common purpose of the enterprise], among the members [of the group]; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.
"Market value" means the amount that would be paid in cash by a willing buyer who desires to buy, but is not required to buy, to a willing seller who desires to sell, but is under no necessity of selling.
1"Negligence Entrustment" means entrusting a vehicle to a reckless driver if the entrustor knew or should have known that the driver was reckless. Such negligence is a proximate cause of a collision if the negligence of the driver to whom the vehicle was entrusted is a proximate cause of the collision.
"Exemplary damages" means an amount that you may in your discretion award as an example to others and as a penalty or by way of punishment, in addition to any amount that you may have found as actual damages.
Factors to consider in awarding exemplary damages, if any, are—
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a. The nature of the wrong.
b. The character of the conduct involved.
c. The degree of culpability of the wrongdoer.
d. The situation and sensibilities of the parties concerned.
e. The extent to which such conduct offends a public sense of justice and propriety.
JURY INSTRUCTIONS:
LADIES AND GENTLEMEN OF THE JURY:
This case is submitted to you by asking questions about the facts, which you must decide from the evidence you have heard in this trial. You are the sole judges of the credibility of the witnesses and the weight to be given their testimony, but in matters of law, you must be governed by the instructions in this charge. In discharging your responsibility on this jury, you will observe all the instructions which have previously been given you. I shall now give you additional instructions which you should carefully and strictly follow during your deliberations.
1. Do not let bias, prejudice or sympathy play any part in your deliberations.
2. In arriving at your answers, consider only the evidence introduced here under oath and such exhibits, if any, as have been introduced for your consideration under the rulings of the court, that is, what you have seen and heard in this courtroom, together with the law as given you by the court. In your deliberations, you will not consider or discuss anything that is not represented by the evidence in this case.
3. Since every answer that is required by the charge is important, no juror should state or consider that any required answer is not important.
4. You must not decide who you think should win, and then try to answer the questions accordingly. Simply answer the questions, and do not discuss nor concern yourselves with the effect of your answers.
5. You will not decide the answer to a question by lot or by drawing straws, or by any other method of chance. Do not return a quotient verdict. A quotient verdict means that the jurors agree to abide by the result to be reached by adding together each juror's figures and dividing by the number of jurors to get an average. Do not do any trading on your answers; that is, one juror should not agree to answer a certain question one way if others will agree to answer another question another way.
6. Unless otherwise instructed, you may answer a question upon the vote of ten or more jurors. If you answer more than one question upon the vote of ten or more jurors, the same group of at least ten of you must agree upon the answers to each of those questions.
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These instructions are given you because your conduct is subject to review the same as that of the witnesses, parties, attorneys and the judge. If it should be found that you have disregarded any of these instructions, it will be jury misconduct and it may require another trial by another jury; then all of our time will have been wasted.
The presiding juror or any other who observes a violation of the court's instructions shall immediately warn the one who is violating the same and caution the juror not to do so again.
When words are used in this charge in a sense that varies from the meaning commonly understood, you are given a proper legal definition, which you are bound to accept in place of any other meaning.
Answer "Yes" or "No" to all questions unless otherwise instructed. A "Yes" answer must be based on a preponderance of the evidence unless you are otherwise instructed. If you do not find that a preponderance of the evidence supports a "Yes" answer, then answer "No." The term "preponderance of the evidence" means the greater weight and degree of credible evidence admitted in this case. Whenever a question requires an answer other than "Yes" or "No," your answer must be based on a preponderance of the evidence unless you are otherwise instructed.
After you retire to the jury room, you will select your own presiding juror. The first thing the presiding juror will do is to have this complete charge read aloud and then you will deliberate upon your answers to the questions asked.
It is the duty of the presiding juror —
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1. to preside during your deliberations,
2. to see that your deliberations are conducted in an orderly manner and in accordance with the instructions in this charge,
3. to write out and hand to the bailiff any communications concerning the case that you desire to have delivered to the judge,
4. to vote on the questions,
5. to write your answers to the questions in the spaces provided, and
6. to certify to your verdict in the space provided for the presiding juror's signature or to obtain the signatures of all the jurors who agree with the verdict if your verdict is less than unanimous.
You should not discuss the case with anyone, not even with other members of the jury, unless all of you are present and assembled in the jury room. Should anyone attempt to talk to you about the case before the verdict is returned, whether at the courthouse, at your home, or elsewhere, please inform the judge of this fact.
When you have answered all the questions you are required to answer under the instructions of the judge and your presiding juror has placed your answers in the spaces provided and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at the door of the jury room that you have reached a verdict, and then you will return into court with your verdict.
JUDGE PRESIDING
Personal Injury Damages:
What sum of money, if paid now in cash, would fairly and reasonably compensate _____ for his injuries, if any, that resulted from the occurrence in question?
Consider the elements of damages listed below and none other. Consider each element separately. Do not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Do not include interest on any amount of damages you find.
Answer separately, in dollars and cents, for damages, if any. Do not reduce the amounts, if any, in your answers because of the negligence, if any, of _____.
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a. Physical pain and mental anguish sustained in the past.
Answer: _______________
b. Physical pain and mental anguish that, in reasonable probability, _____ will sustain in the future.
Answer: _______________
c. Loss of earning capacity sustained in the past.
Answer: _______________
d. Loss of earning capacity that, in reasonable probability, _____ will sustain in the future.
Answer: _______________
e. Disfigurement sustained in the past.
Answer: _______________
f. Disfigurement that, in reasonable probability, _____ will sustain in the future.
Answer: _______________
g. Physical impairment sustained in the past.
Answer: _______________
h. Physical impairment that, in reasonable probability, ______ will sustain in the future.
Answer: _______________
i. Medical care expenses incurred in the past.
Answer: _______________
j. Medical care expenses that, in reasonable probability, ______ will incur in the future.
Answer: _______________
What sum of money, if paid now in cash, would fairly and reasonably compensate ______ for her damages, if any, resulting from the death of _____?
Consider the elements of damages listed below and none other. Consider each element separately. Do not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Do not include interest on any amount of damages you find.
Answer separately, in dollars and cents, for damages, if any. Do not reduce the amounts, if any, in your answers because of the negligence, if any, of Paul Payne.
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a. Pecuniary loss sustained in the past.
"Pecuniary loss" means the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value, excluding loss of inheritance, that _____, in reasonable probability, would have received from _____ had he lived.
Answer: _______________
b. Pecuniary loss that, in reasonable probability, will be sustained in the future.
Answer: _______________
c. Loss of companionship and society sustained in the past.
"Loss of companionship and society" means the loss of the positive benefits flowing from the love, comfort, companionship, and society that _____, in reasonable probability, would have received from _____ had he lived.
Answer: _______________
d. Loss of companionship and society that, in reasonable probability, will be sustained in the future.
Answer: _______________
e. Mental anguish sustained in the past.
"Mental anguish" means the emotional pain, torment, and suffering experienced by _____ because of the death of _____.
Answer: _______________
f. Mental anguish that, in reasonable probability, will be sustained in the future.
Answer: _______________
In determining damages for elements c, d, e, and f, you may consider the relationship between _____ and _____, their living arrangements, any extended absences from one another, the harmony of their family relations, and their common interests and activities.
g. Loss of inheritance.
"Loss of inheritance" means the loss of the present value of the assets that the deceased, in reasonable probability, would have added to the estate and left at natural death to _____.
Answer: _______________
What sum of money would have fairly and reasonably compensated _____ for—
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a. Pain and mental anguish.
"Pain and mental anguish" means the conscious physical pain and emotional pain, torment, and suffering experienced by _____ before his death as a result of the occurrence in question.
Answer in dollars and cents for damages, if any.
Answer: _______________
b. Medical expenses.
"Medical expenses" means the reasonable expense of the necessary medical and hospital care received by _____ for treatment of injuries sustained by him as a result of the occurrence in question.
Answer in dollars and cents for damages, if any.
Answer: _______________
c. Funeral and burial expenses.
"Funeral and burial expenses" means the reasonable amount of expenses for funeral and burial for _____ reasonably suitable to his station in life.
Answer in dollars and cents for damages, if any.
Answer: _______________
