Prince v. Southern Snow Manufacturing Inc

Filing 29

ORDER: The Court appreciates Prince's proposed jury instructions. The Court is attaching its current working drafts of the (1) the voir dire outline, (2) the preliminary instructions, (3) the final instructions, and (4) the verdict form. Please file any comment or objection to the preliminary instructions by noon 11/9/2016. There's no need to comment or object yet on the final instructions or the verdict form. The Court directs the Clerk to correct the defendant's name on the docket. It should be Southern Snow Manufacturing Co., Inc. 28 . Signed by Judge D. P. Marshall Jr. on 11/3/2016. (Attachments: # 1 Voir Dire Outline, # 2 Preliminary Instructions, # 3 Final Instructions, # 4 Verdict Form)(jak)

INSTRUCTION NO. 1
Members of the Jury, the instructions I gave you at the
beginning of the trial and during the trial are still in effect. Now I’m
going to give you some additional instructions.
You have to follow all of my instructions—the ones I gave you
earlier, as well as those I give you now. Do not single out some
instructions and ignore others because they are all important. This
is true even though I am not going to repeat some of the instructions
I gave you before and during the trial.
You will have copies of the instructions I am about to give you
now in the jury room. This does not mean they are more important
than my earlier instructions. Remember, you have to follow all
instructions, no matter when I give them, whether or not you have
written copies.

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 2
There are rules you must follow when you go to the jury room
to deliberate and return with your verdict:
First, you must select a 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 this without going against what you believe to be the truth,
because all jurors have to agree on the verdict.
Each of you must make your own decision, but only after you
have considered all the evidence, discussed the evidence fully with
your fellow jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your mind if the discussion
persuades you that you should. But do not come to a decision just
because other jurors think it is right, or just to reach a verdict.
Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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Remember you are not for or against a party.

You are

judges—judges of the facts. Your only job is to study the evidence
and decide what is true.
Third, if you need to communicate with me during your
deliberations, send me a note signed by one or more of you. Give
the note to the court security officer; and I will answer you as soon
as I can, either in writing or here in court.

While you are

deliberating, do not tell anyone —including me—how many jurors
are voting for any side.
Fourth, your verdict must be based solely on the evidence and
on the law that I have given to you in my instructions. Nothing I
have said or done was meant to suggest what I think your verdict
should be. The verdict is entirely up to you.

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 3
In deciding what the facts are, you will have to decide what
testimony you believe and what testimony you don’t 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, consider several things:
the witnesses’ intelligence; their opportunity to have seen or heard
the things they testify about; their memories; any motives they may
have for testifying a certain way; their demeanor while testifying;
whether they said something different at an earlier time; the general
reasonableness of their testimony; and the extent to which their
testimony is consistent with other evidence that you believe.
A caution about considering a witness’s demeanor while
testifying. Many folks are nervous just being in court. And there are
bold liars and shy truth tellers. Use your common sense and be
Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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discerning when judging someone’s credibility based on their
demeanor on the stand.
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 will have to decide whether a contradiction is an
innocent misrecollection, a lapse of memory, or a lie—and that may
depend on whether the contradiction has to do with an important
fact or only a small detail.

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 4
In considering the evidence in this case, you aren’t required to
set aside your common sense or common knowledge. Consider the
evidence in light of your own observations and experiences in the
affairs of life. Use your common sense.

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 5
You will have to decide whether certain facts have been proved
by the greater weight of the evidence. A fact has been proved if you
find that it is more likely true than not true. You decide that by
considering all the evidence, and then deciding what evidence is
more believable.

The greater weight of the evidence is not

established by who has the most witnesses or exhibits. You are,
instead, looking for the truth in the whole case.
You have probably heard the phrase “proof beyond a
reasonable doubt.” That is a stricter standard than “more likely true
than not true.” The standard of “proof beyond a reasonable doubt”
applies in criminal cases, but not in this civil case; so put it out of
your minds.

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 6
Prince has the burden of proving four elements:
First, Prince has sustained damages;
Second, Southern Snow was engaged in the business of
manufacturing, assembling, selling, or otherwise distributing snow
cone machines;
Third, the snow cone machine that Southern Snow supplied
was in a defective condition that rendered it unreasonably
dangerous for reasonable and foreseeable uses; and
Fourth, the defective condition was a proximate cause of
Prince’s damages.
If Prince doesn’t prove all four of the elements listed above,
then your verdict must be for Southern Snow. If Prince proves all
four elements, then you must compare her fault (if any) with

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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Southern Snow’s fault to decide who is entitled to your verdict. See
Instructions No. 12-13.
“Defective condition” means a condition of the snow cone
machine that renders it unsafe for reasonably foreseeable use.
“Unreasonably dangerous” means that the snow cone machine
is dangerous to an extent beyond what an ordinary and reasonable
user would expect. An ordinary and reasonable user has the
ordinary knowledge of a community member about the snow cone
machine’s characteristics, propensities, risks, dangers, and proper
and improper uses. An ordinary and reasonable user also has any
special knowledge, training, or experience that Prince individually
had, or that she was required to have. In evaluating whether this
snow cone machine was unreasonably dangerous, you should also
consider what warnings were given about the machine.

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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[Note to counsel: The Court has used the Arkansas Model Jury
Instructions, Civil 2015 edition, as a foundation but has made
changes in several instructions. For example, this instruction has
been revised. See the Court’s notes on later instructions.]

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 7
In determining whether Southern Snow supplied the snow
cone machine in a defective condition, you may consider the state of
scientific and technological knowledge available to Southern Snow
when the machine left its control. In considering whether the design
of the machine is defective, you may also consider the customary
designs and techniques used by other manufacturers of snow cone
machines at that time.

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 8
Prince alleges that the snow cone machine was defectively
designed. You may not find that the machine was defectively
designed solely because there was an injury or an accident. Instead,
you may find that the machine was defectively designed only if you
find that it was unsafe for its reasonably foreseeable uses.

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 9
Southern Snow contends that Prince was negligent and that her
negligence was the only proximate cause of her injuries. Southern
Snow has the burden of proving this contention.

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 10
When I use the word “negligence” in these instructions, I mean
not doing something that a reasonably careful person would do, or
doing something that a reasonably careful person would not do,
under circumstances similar to those shown by the evidence in this
case. To be negligent, an act must be one from which a reasonably
careful person would foresee such an appreciable risk of harm to
herself or others that she would not to do the act, or she would do
it in a more careful manner.

[Note to counsel: The Court has revised this instruction.]
Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 11
“Proximate cause” is a legal term. When I use the term
“proximate cause” in these instructions, 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. But, in some instances, there is only one
proximate cause. You must decide whether there was one or more
proximate causes of this occurrence.

[Note to counsel: The Court has revised this instruction.]
Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 12
If you find that the occurrence was proximately caused by
Southern Snow’s fault and not by Prince’s fault, then Prince is
entitled to recover the full amount of any damages you may find
she has sustained as a result of the occurrence.
If you find that the occurrence was proximately caused by
the fault of both Prince and Southern Snow, then you must
compare the percentages of their fault. Use 100% and divide the
fault, as you decide from the evidence, between Prince and
Southern Snow.
If Prince’s fault is less than Southern Snow’s fault, then
Prince is entitled to recover reduced damages: any damages that
you may find she has sustained as a result of the occurrence,
reduced by you in proportion to Prince’s own fault.

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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On the other hand, if Southern Snow was not at fault, or if
Prince’s fault is equal to or greater than Southern Snow’s fault,
then Prince is not entitled to recover any damages, and you must
find for Southern Snow.

[Note to counsel: The Court has revised this instruction.]
Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 13
When I use the word “fault” in these instructions, I mean to
cover both Prince’s alleged negligence and Southern Snow’s
allegedly supplying the snow cone machine in a defective condition
that made it unreasonably dangerous.

[Note to counsel: The Court has revised this instruction.]
Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 14
It was the duty of both Prince and Southern Snow to use
ordinary care for their own safety and the safety of others.

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 15
If you decide for Prince on the question of liability against
Southern Snow, you must fix the amount of money which will
reasonably and fairly compensate her for any damages she sustained
which you find were proximately caused by the fault of Southern
Snow. You should consider the following elements of damages:
First: Any physical pain and mental or emotional suffering
Prince has experienced and is reasonably certain to experience in the
future;
Second: The nature and extent of any injury, whether that
injury is temporary or permanent;
Third: The reasonable value of any necessary medical care,
treatment and services received, and the present value of such
expense reasonably certain to be needed and provided in the future;

Court’s Draft Final Instructions
3 November 2016

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No. 4:14-cv-31-DPM

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Fourth: The reasonable value of the working time Prince has
lost and the present value of any earnings reasonably certain to be
lost in the future;
Fifth: The present value of any loss of ability to earn in the
future because of her diminished ability to work; and
Sixth: Any scars and disfigurement and visible results of her
injury.
Whether any of these elements of damage has been proved by
the evidence is for you to decide. Remember, throughout your
deliberations you must not engage in speculation, guesswork, or
conjecture. And you must not award any damages under this
Instruction as punishment or because of sympathy.

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 16
I have used the expression “present value” in these instructions
about certain elements of damage which you may find that Prince
will sustain in the future. This simply means 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. You must therefore reduce any award of future damages to
compensate for the reasonable earning power of money.

[Note to counsel: The Court has revised this instruction.]
Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 17
The fact that I’ve instructed you on damages is not intended
to suggest what I think your liability verdict should be. I’ve given
instructions on damages, as I do in all cases, for your guidance in
the event you find for Prince on liability. But the question of
damages is entirely distinct and different from the question of
liability. Do not consider damages until you have first considered
and decided whether Southern Snow is liable to Prince.

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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INSTRUCTION NO. 18
The verdict is simply your written decision. I’m going to hand
out the verdict form now and go over it with you.
You will take this form to the jury room. When each of you has
agreed on the verdict, your foreperson will fill in the form to reflect
your unanimous decisions, sign and date it, 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 form—is intended to suggest what answers I
think you should give. How you chose to complete the verdict form
is solely and exclusively your responsibility.
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

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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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
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 from communicating 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’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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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?

Court’s Draft Final Instructions
3 November 2016

Prince v. Southern Snow Manufacturing
No. 4:14-cv-31-DPM

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