Harding et al v. Dollar Tree Stores Inc et al

Filing 41

ORDER: The Hardings' motion in limine, 24 , is granted by agreement. The Court will hold a pre-trial hearing by telephone at 10:00 a.m. on Wednesday, 10 June 2015. The Court is attaching its current working drafts of (1) the preliminary instructions, (2) the final instructions, and (3) the verdict forms. Signed by Judge D. P. Marshall Jr. on 6/2/2015. (Attachments: # 1 Preliminary Instructions, # 2 Jury Instructions, # 3 Verdict Forms)(jak)

INSTRUCTION NO. 1
Members of the Jury, the instructions I gave you at the beginning of the
trial and during the trial remain in effect. I now give you some additional
instructions on the law that applies to this case. You must, of course, continue
to follow all the instructions I gave you earlier, as well those I give you now.
The instructions I am about to give you now are in writing and will be
available to you in writing in the jury room. I emphasize, however, that this
does not mean they are more important than my earlier instructions. Again,
all my instructions, whether given in writing or spoken from this bench, must
be followed.
It is your duty as jurors to follow the law as stated in the instructions,
and to apply the given rules of law to the facts as you find them to be from the
evidence in this case.
You are not to single out one instruction alone as stating the law, but
must consider the instructions as a whole.
Neither are you to be concerned with the wisdom of any rule of law as
stated by the Court. Regardless of any opinion you may have as to what the
law ought to be, it would be a violation of your sworn duty to base a verdict
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upon any other view of the law other than that given in the instructions of the
Court; just as it would be a violation of your sworn duty, as judges of the
facts, to base a verdict upon anything but the evidence in the case.
Nothing I say in the instructions is to be taken as an indication that I
have any opinion about the facts of the case, or what that opinion is. It is not
my function to determine the facts. You will determine the facts. During this
trial I have occasionally asked questions of witnesses. Do not assume that
because I asked questions I hold any opinion on the matters to which my
questions related.
Justice through trial by jury must always depend on the willingness of
each individual juror to seek the truth about the facts from the same evidence
presented to all the jurors; and to arrive at a verdict by applying the same
rules of law as given in the Court’s instructions.
Statements and arguments of counsel are not evidence in the case.
When the lawyers on both sides stipulate or agree on the existence of a fact,
however, the Jury must accept the stipulation and regard that fact as proved.
The evidence in the case always consists of the sworn testimony of the
witnesses, regardless of who may have called them and any documents,
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photographs, or other items that are received by the Court, and all facts that
may have been admitted or stipulated. Any evidence on which an objection
was sustained by the Court—and any witness statement or tangible item that
was stricken by the Court—must be entirely disregarded.
Anything you may have seen or heard outside this courtroom is not
evidence, and it must be entirely disregarded.

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INSTRUCTION NO. 2
In conducting your deliberations and returning your verdict, there are
certain rules you must follow.
First, when you go to the jury room, you must select one of your
members as your foreperson. That person will preside over your discussions
and speak for you all here in court.
Second, it is your duty, as jurors, to discuss this case with one another in
the jury room. You should try to reach agreement if you can do so without
violence to individual judgment, because a verdict must be unanimous.
Each of you must make your own conscientious decision, but only after
you have considered all the evidence, discussed it fully with your fellow
jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your opinions if the discussion persuades
you that you should. But do not come to a decision simply because other
jurors think it is right, or 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.

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Third, if you need to communicate with me during your deliberations,
you may send a note to me, through the court security officer, that is signed
by one or more jurors. I will respond as soon as possible either in writing or
orally in open court.

Remember that you should never tell anyone

—including me—how your votes stand numerically.
Fourth, your verdict must be based solely on the evidence and on the
law that I have given to you in my instructions. The verdict must be
unanimous. Again, nothing I have said or done is intended to suggest what
your verdict should be—that is entirely for you to decide.

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INSTRUCTION NO. 3
This case should be considered and decided by you as a dispute
between persons of equal worth. All persons stand equal before the law and
are to be treated as equals.

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INSTRUCTION NO. 4
You are the sole judges of the credibility of the witnesses and the weight
and value to be given to their testimony. In deciding what the facts are, you
may have to decide what testimony you believe and what testimony you do
not believe. You may believe all of what a witness said, or only part of it, or
none of it.
In deciding what testimony to believe, you may consider the witness’s
intelligence; the opportunity the witness had to see or hear the things about
which he or she testified; the witness’s memory; any motives a witness may
have for testifying a certain way; the manner and demeanor of the witness
while testifying; whether the witness said something different at an earlier
time; the general reasonableness or unreasonableness of the testimony; and
the extent to which the testimony is consistent with any other evidence that
you believe.
In deciding whether or not to believe a witness, keep in mind that
people sometimes hear or see things differently and sometimes forget things.
You need to consider therefore whether a contradiction is an innocent

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misrecollection, lapse of memory, or a lie—and that may depend on whether
it has to do with an important fact or only a small detail.

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INSTRUCTION NO. 5
A witness may be discredited or impeached by contradictory evidence
or by evidence that at some other time the witness has said or done
something, or has failed to say or do something, that is inconsistent with the
witness’s present testimony.
If you believe any witness has been impeached and thus discredited,
you may give the testimony of that witness whatever credibility, if any, you
think it deserves.
If a witness is shown knowingly to have testified falsely about any
material matter, you have a right to distrust that witness’s other testimony
and you may reject all the testimony of that witness or give it whatever
credibility you think it deserves.
An act or omission is “knowingly” done, if the act is done voluntarily
or intentionally, and not because of mistake or accident or other innocent
reason.

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INSTRUCTION NO. 6
In considering the evidence in this case you are not required to set aside
your common sense or common knowledge. You have the right to consider
all the evidence in light of your own observations and experiences in the
affairs of life.

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INSTRUCTION NO. 7
In these instructions you are told that one or the other party has the
burden to prove certain facts. The burden of proving a fact is placed upon the
party whose claim or defense depends upon that fact. The party who has the
burden of proving a fact must prove it by a preponderance of the evidence.
To prove something by the “preponderance of the evidence” is to prove that
it is more likely true than not true. It is determined by considering all of the
evidence and deciding which evidence is more believable.
If, on any issue of fact in the case, the evidence is equally balanced, you
cannot find that fact has been proved. The preponderance of the evidence is
not necessarily established by the greater number of witnesses or exhibits a
party has presented.
You may have heard of the term “proof beyond a reasonable doubt.”
This is a stricter standard, which applies in criminal cases. It does not apply
in civil cases like this one. You should, therefore, put it out of your minds.

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INSTRUCTION NO. 8
A fact in dispute may be proved by circumstantial evidence and by
direct evidence. A fact is established by direct evidence when, for example,
it is proved by witnesses who testify to what they saw, heard, or experienced.
A fact is established by circumstantial evidence when its existence can
reasonably be inferred from other facts proved in the case.

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INSTRUCTION NO. 9
An expert witness is a person who has special knowledge, skill,
experience, training, or education on the subject to which his or her testimony
relates.
An expert witness may give an opinion on questions in controversy. You
may consider the expert’s opinion in the light of his or her qualifications and
credibility, the reasons given for the opinion, and the facts and other matters
upon which the opinion is based.
You are not bound to accept an expert opinion as conclusive, but should
give it whatever weight you think it should have. You may disregard any
opinion testimony if you find it to be unreasonable.

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INSTRUCTION NO. 10
The rights of Jonnas Harding and Rodney Harding are separate and
distinct. Treat their claims as if they were separate suits. If an instruction or
evidence applies to one of their claims, then it governs his or her case.
Consider the evidence about each of their claims, though some may be
relevant to both claims. Likewise, follow my instructions about each claim,
though some may apply to both claims.

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INSTRUCTION NO. 11
Jonnas Harding claims damages from Dollar Tree Stores, Inc. and has
the burden of proving each of three essential propositions:
First, that she has sustained damages;
Second, that Dollar Tree was negligent;
And third, that Dollar Tree’s negligence was a proximate cause of her
damages.
If you find from the evidence in this case that each of these propositions
has been proved, then your verdict should be for Jonnas Harding; but if, on
the other hand, you find from the evidence that any of these propositions has
not been proved, then your verdict should be for Dollar Tree.

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INSTRUCTION NO. 12
Rodney Harding claims loss-of-consortium damages from Dollar Tree
Stores, Inc. and has the burden of proving each of three essential propositions:
First, that he has sustained damages;
Second, that Dollar Tree was negligent;
And third, that Dollar Tree’s negligence was a proximate cause of his
damages.
If you find from the evidence in this case that each of these propositions
has been proved, then your verdict should be for Rodney Harding; but if, on
the other hand, you find from the evidence that any of these propositions has
not been proved, then your verdict should be for Dollar Tree.

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INSTRUCTION NO. 13
Dollar Tree Stores, Inc. contends that Jonnas Harding was negligent and
that her negligence was a proximate cause of her injuries. Dollar Tree has the
burden of proving this contention.

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INSTRUCTION NO. 14
When I use the word "negligence" in these instructions I mean the
failure to do something which a reasonably careful person would do, or the
doing of something which a reasonably careful person would not do, under
circumstances similar to those shown by the evidence in this case. To
constitute negligence, an act must be one from which a reasonably careful
person would foresee such an appreciable risk of harm to others as to cause
him or her not to do the act, or to do it in a more careful manner.

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INSTRUCTION NO. 15
A failure to exercise ordinary care is negligence. When I use the words
"ordinary care," I mean the care a reasonably careful person would use under
circumstances similar to those shown by the evidence in this case. It is for you
to decide how a reasonably careful person would act under those
circumstances.

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INSTRUCTION NO. 16
It was the duty of all persons or businesses involved in the occurrence
to use ordinary care for their own safety and the safety of others.

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INSTRUCTION NO. 17
The law frequently uses the expression "proximate cause," with which
you may not be familiar. When I use the expression "proximate cause," I mean
a cause which, in a natural and continuous sequence, produces damage and
without which the damage would not have occurred.
This does not mean that the law recognizes only one proximate cause
of damage. To the contrary, if two or more causes work together to produce
damage, then you may find that each of them was a proximate cause.

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INSTRUCTION NO. 18
Every person using ordinary care has a right to assume, until the
contrary is or reasonably should be apparent, that every other person or
business will use ordinary care and obey the law. To act on that assumption
is not negligence.

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INSTRUCTION NO. 19
The fact that an injury occurred is not, of itself, evidence of negligence
on the part of anyone.

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INSTRUCTION NO. 20
In this case, Jonnas Harding was an invitee upon the premises of Dollar
Tree Stores, Inc. The company owed Mrs. Harding a duty to use ordinary care
to maintain the premises in a reasonably safe condition. No such duty exists,
however, if the condition of the premises that creates the danger was known
by or obvious to Mrs. Harding—unless Dollar Tree should have reasonably
anticipated that she would be exposed to the danger despite her knowledge
of it or its obvious nature.

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INSTRUCTION NO. 21
If you should find that the occurrence was proximately caused by
negligence on the part of Dollar Tree Stores, Inc. and not by negligence on the
part of Jonnas Harding, then she is entitled to recover the full amount of any
damages you may find she has sustained as a result of the occurrence.
If you should find that the occurrence was proximately caused by
negligence of both Mrs. Harding and Dollar Tree, then you must compare the
percentages of their negligence.
If the negligence of Mrs. Harding is of less degree than the negligence
of Dollar Tree, then she is entitled to recover any damages which you may
find she has sustained as a result of the occurrence after you have reduced
them in proportion to the degree of her own negligence.
On the other hand, if Dollar Tree was not negligent, or if the negligence
of Mrs. Harding is equal to or greater in degree than the negligence of Dollar
Tree, then Mrs. Harding is not entitled to recover any damages.

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INSTRUCTION NO. 22
If you decide for Jonnas Harding on the question of liability, you must
then fix the amount of money which will reasonably and fairly compensate
her for any of the following four elements of damage sustained, which you
find were proximately caused by the negligence of Dollar Tree Stores, Inc.:
First: The nature, extent, and duration of any injury and whether it is
temporary or permanent.
Second: The reasonable expense of any necessary medical care,
treatment and services received, and the present value of such expense
reasonably certain to be required in the future.
Third: Any pain and suffering and mental anguish experienced in the
past and reasonably certain to be experienced in the future.
Fourth: Any scars and disfigurement and visible results of her injury.
Whether any of these four elements of damage has been proved by the
evidence is for you to decide.

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INSTRUCTION NO. 23
If you find for Rodney Harding on his claim for loss of consortium, you
should award him such damages as from the evidence would fairly
compensate him for the reasonable value of any loss of the services, society,
companionship, and marriage relationship of his wife proximately caused by
the negligence of Dollar Tree Stores, Inc.

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INSTRUCTION NO. 24
If it becomes necessary for you to assess damages, then in fixing the
amount of money which will reasonably and fairly compensate Jonnas
Harding, you are to consider that an injured person must use ordinary care
to determine whether medical treatment is needed and to obtain medical
treatment and to follow the instructions of her physician, and that any
damages resulting from a failure to use such care cannot be recovered.

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INSTRUCTION NO. 25
In assessing the damages of Jonnas Harding, do not reduce the amount
of the damages by any insurance payments including, but not limited to,
health insurance, Medicare, or Medicaid received or to be received by, or on
behalf of Jonnas Harding. Any reduction required by law will be made by the
Court.

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INSTRUCTION NO. 26
In the event that you find that Jonnas Harding is entitled to damages
arising in the future because of injuries or future medical expenses, you must
determine the amount of these damages.
If these damages are of a continuing nature, you may consider how long
they will continue. If they are permanent in nature, then in computing these
damages you may consider how long Mrs. Harding is likely to live.
Mortality tables are evidence of an average life expectancy of a person
who has reached a certain age, but they are not conclusive. They may be
considered by you in connection with other evidence relating to the probable
life expectancy of Mrs. Harding, including evidence of her occupation, health,
habits, and other activities, bearing in mind that some persons live longer than
the average and some persons less than the average.

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INSTRUCTION NO. 27
I have used the expression "present value" in these instructions with
respect to certain elements of damage which you may find that Jonnas
Harding will sustain in the future. This simply means that if you find that
Mrs. Harding is entitled to recover any elements of damage which require you
to determine their present value, you must take into consideration the fact that
money recovered will earn interest, if invested, until the time in the future
when these losses will actually occur. Therefore, you must reduce any award
of such damages to compensate for the reasonable earning power of money.

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INSTRUCTION NO. 28
The verdict forms are simply the written notice of your decision. See the
attached questions.
You will take the verdict forms to the jury room, and when each of you
has agreed on the answers, your foreperson will fill in the forms for each
question that you are called upon to answer to reflect your unanimous
decision, sign and date them, and then advise the court security officer that
you are ready to return to the courtroom.
I add the caution that nothing said in the instructions—and nothing in
the verdict forms I’ve prepared for your convenience—is or was intended to
suggest or convey in any way or manner any intimation as to what answers
I think you should find. How you choose to answer the verdict forms shall be
the sole and exclusive responsibility of you, the Jury.
If it becomes necessary during your deliberations to communicate with
the Court, you may send a note by the court security officer, signed by your
foreperson, or by one or more members of the Jury. No member of the Jury
should ever attempt to communicate with the Court by any means other than
a signed writing; and the Court will never communicate with any member of
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the Jury on any subject touching the merits of the case, other than in writing,
or orally here in open Court.
You will note from the oath about to be taken by the court security
officer to act as bailiff that he, and all other persons, are forbidden to
communicate in any way or manner with any member of the Jury on any
subject touching the merits of the case. Bear in mind also that you must never
reveal to any person, not even to the Court, how the Jury stands, numerically
or otherwise, on the issue presented to you unless or until you reach a
unanimous verdict.
Court security officer, do you solemnly swear to keep this Jury together
in the jury room, and not to permit any person to speak to or communicate
with them, concerning this case, nor to do so yourself unless by order of the
Court or to ask whether they have agreed on a verdict, and to return them into
the Courtroom when they have so agreed, or when otherwise ordered by the
Court, so help you God?

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