Bush v. Wal-Mart Stores East, Limited Partnership

Filing 76

Jury Instructions. (CDF)

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VANESSA L AR
MSTRONG, CLERK

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:18-CV-00072-GNS-LLK

JU 1 ijU,Htl .
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U.S. DISTRICT GOUHT

WEST'N. DIST. KENTUCKY

CHARLES BUSH II

PLAINTIFF

V.

WAL-MART STORES EAST, LIMITED PARTNERSHIP

DEFENDANT

JURY INSTRUCTIONS

These instructions will be in three parts: first, general rules that define and control your
duties as jurors; second, the rules of law that you must apply in deciding whether the parties have
proven their claims; and third, some rules for your deliberations. A copy of these instructions
will be available to you in the jury room.

I.

GENERAL RULES CONCERNING JURY DUTY

You have two main duties as jurors. The first one is to decide what the facts are from the
evidence that you saw and heard here in court. Deciding what the facts are is your job, not mine,
and nothing that I have said or done during this trial was meant to influence your decision about
the facts in any way. Your second duty is to take the law that I give you, apply it to the facts,
and decide if the plaintiff has proven the defendant liable on the claim by a preponderance of the
evidence and if the defendant has proven the plaintiff liable on the counterclaim by a
preponderance of the evidence.
It is my job to instruct you about the law, and you are bound by the oath that you took at
the beginning of the trial to follow the instructions that I give you, even if you personally
disagree with them. This includes the instructions that I gave you before and during the trial, and
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these instructions. All the instructions are important, and you should consider them together as a
whole. The lawyers have talked about the law during their arguments. But if what they said is
different from what I say, you must follow what I say. What I say about the law controls.
Perform these duties fairly. Do not let any bias, sympathy or prejudice that you may feel
toward one side or the other influence your decision in any way.
A.

Evidence

You must make your decision based only on the evidence that you saw and heard here in
court. Do not let rumors, suspicions, or anything else that you may have seen or heard outside of
court influence your decision in any way. The evidence in this case includes only what the
witnesses said while they were testifying under oath; the exhibits that I allowed into evidence;
and the stipulations that the lawyers agreed to.
Nothing else is evidence.

The lawyers' statements and arguments are not evidence.

Their questions and objections are not evidence. My legal rulings are not evidence. And my
comments and questions are not evidence.
During the trial I did not let you hear the answers to some of the questions that the
lawyers asked. Sometimes I ordered you to disregard things that you saw or heard, or I struck ,
things from the record. You must completely ignore all of these things. Do not even think about
them. Do not speculate about what a witness might have said or what an exhibit might have
shown. These things are not evidence, and you are bound by your oath not to let them influence
your decision in any way.
Make your decision based only on the evidence, as I have defined it here, and nothing
else.

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You should use your common sense in weighing the evidence. Consider it in light of
your everyday experience with people and events, and give it whatever weight you believe it
deserves. If your experience tells you that certain evidence reasonably leads to a conclusion, you
are free to reach that conclusion.
B.

Credibility of Witnesses

Another part of your job as jurors is to decide how credible or believable each witness
was. This is your job, not mine. It is up to you to decide if a witness's testimony was believable,
and how much weight you think it deserves. You are free to believe everything that a witness
said, or only part of it, or none of it at all. But you should act reasonably and carefully in making
these decisions.
Let me suggest some things for you to consider in evaluating each witness's testimony.
(a)

Ask yourself if the witness was able to clearly see or hear the events.

Sometimes even an honest witness may not have been able to see or hear what was .
happening, and may make a mistake.
(b)

Ask yourself how good the witness's memory seemed to be. Did the

witness seem able to accurately remember what happened?
(c)

Ask yourself if there was anything else that may have interfered with the

witness's ability to perceive or remember the events.
(d)

Ask yourself how the witness acted while testifying.

Did the witness

appear honest? Or did the witness appear to be lying?
(e)

Ask yourself if the witness had any relationship to the plaintiff or the

defendant, or anything to gain or lose from the case that might influence the witness's
testimony. Ask yourself if the witness had any bias, or prejudice, or reason for testifying

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that might cause the witness to lie or to slant the testimony in favor of one side or the
other.
(f)

And ask yourself how believable the witness's testimony was in light of

all the other evidence. Was the witness's testimony supported or contradicted by other
evidence that you found believable?

If you believe that a witness's testimony was

contradicted by other evidence, remember that people sometimes forget things, and that
even two honest people who witness the same event may not describe it exactly the same
way.
These are only some of the things that you may consider in deciding how believable each witness
was.

You may also consider other things that you think shed some light on the witness's

believability.
people.

Use your common sense and your everyday experience in dealing with other

And then decide what testimony you believe, and how much weight you think it

deserves.
One more important point about witnesses. Sometimes jurors wonder if the number of
witnesses who testified makes any difference. Do not make any decisions based solely on the
number of witnesses who testified. What is more important is how believable the witnesses
were, and how much weight you think their testimony deserves. Concentrate on that, not the
numbers.

C.

Lawyers' Objections

There is one more general subject that I want to talk to you about before I begin
explaining the elements of the plaintiff's claims. The lawyers for both sides objected to some of
the things that were said or done during the trial. Do not hold that against either side. The

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lawyers have a duty to object whenever they think that something is not permitted by the rules of
evidence. Those rules are designed to make sure that both sides receive a fair trial.
Do riot interpret my rulings on their objections as any indication of how I think the case ·
should be decided. My rulings were based on the rules of evidence, not on how I feel about the
case. Remember that your decision must be based only on the evidence that you saw and heard
here in court.

II.

JURY DELIBERATIONS

The first thing you should do in the jury room is choose someone to be your foreperson.
This person will help to guide your discussions, and will speak for you here in court. Once you
start deliberating, do not talk to the jury officer, or to me, or to anyone else except each other
about the case.

If you have any questions or messages, you must write them down on a piece of paper,
sign them, and then give them to the jury officer. The officer will give them to me, and I will
respond as soon as I can. I may have to talk to the lawyers about what you have asked, so it may
take me some time to get back to you. Any questions or messages normally should be sent to me
through your foreperson. One more thing about messages.

Do not ever write down or tell

anyone, including me, how you stand on your votes. For example, do not write down or tell
anyone that you are split 4-3 , or 3-4, or whatever your vote happens to be. That should stay
secret until you are finished.

a.

Experiments, Research, Investigation, and Outside Communications

Remember that you must make your decision based only on the evidence that you saw
and heard here in court. During your deliberations, you must not communicate with or provide
any information to anyone by any means about this case.

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You may not use any electronic device or media, such as a telephone, cell phone, smart
phone, iPhone, Blackberry, or computer, the Internet, any Internet service, or any text or instant
messaging service, any Internet chat room, blog, or website such as Facebook, MySpace,
Linkedln, YouTube, or Twitter, to communicate to anyone any information about this case or to
conduct any research about this case until I accept your verdict. In other words, you cannot talk
to anyone on the phone, correspond with anyone, or electronically communicate with anyone
about this case. You can only discuss the case in the jury room with your fellow jurors during
deliberations. I expect you will inform me as soon as you become aware of another juror's
violation of these instructions.
You may not use these electronic means to investigate or communicate about the case
because it is important that you decide this case based solely on the evidence presented in this
courtroom. Information on the Internet or available through social media might be wrong,
incomplete, or inaccurate. You are only permitted to discuss the case with your fellow jurors
during deliberations because they have seen and heard the same evidence you have. In our
judicial system, it is important that you are not influenced by anything or anyone outside of this
courtroom. Otherwise, your decision may be based on information known only by you and not
your fellow jurors or the parties in the case. This would unfairly and adversely impact the
judicial process.

A juror who violates these restrictions jeopardizes the fairness of these

proceedings, and a mistrial could result, which would require the entire trial process to start over.
b.

Unanimous Verdict

Your verdict or answer to any question must be unanimous.
members of the jury must agree on any answer to the question and verdict.

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That is, all seven (7)

c.

Duty to Deliberate

Now that all the evidence is in and the arguments are completed, you are free to talk
about the case in the jury room. In fact, it is your duty to talk with each other about the evidence,
and to make every reasonable effort you can to reach unanimous agreement. Talk with each
other, listen carefully and respectfully to each other's views, and keep an open mind as you listen
to what your fellow jurors have to say. Try your best to work out your differences. Do not
hesitate to change you mind if you are convinced that other jurors are right and that your original
position was wrong.
But do not ever change your mind just because other jurors see things differently, or just
to get the case over with. In the end, your vote must be exactly that-your own vote. It is
important for you to reach unanimous agreement, but only if you can do so honestly and in good
conscience.
No one will be allowed to hear your discussions in the jury room, and no record will be
made of what you say. So you should all feel free to speak your minds. Listen carefully to what
the other jurors have to say, and then decide for yourself if the plaintiff has established every
essential element of his claim by a preponderance of the evidence as to each claim.
d.

Juror Notes

Remember that if you elected to take notes during the trial, your notes should be used
only as memory aids. You should not give your notes greater weight than your independent
recollection of the evidence. You should rely upon your own independent recollection of the
evidence or lack of any evidence and you should not be unduly influenced by the notes of other
jurors. Notes are not entitled to any more weight than the memory or impression of each juror.

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Whether you took notes or not, each of you must form and express your own opinion as to the
facts of the case.

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INSTRUCTION NO. 1
Upon retiring to the jury room, you will select one of you to act as your foreperson. The
foreperson will preside over your deliberations and will be your spokesperson here in Court.
A verdict fonn has been prepared for your convenience. You will take this form to the
jury room and, when you have reached a verdict, you will fill out the verdict fom1 as appropriate.
You will then return with your verdict to the courtroom. All seven (7) of you must unanimously
agree upon a verdict.
Please proceed to Instruction No. 2.

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INSTRUCTION NO. 2
Burden of Proof
The Plaintiff has the burden of proving his case against the Defendant by what is called a
"preponderance of the evidence." This means that the Plaintiff has to produce evidence that,
considered in light of all the facts, leads you to believe that what the Plaintiff claims is more
likely true than not. The term "preponderance of the evidence" does not, of course, require proof
to an absolute certainty, since proof to an absolute certainty is seldom possible in any case.
The Defendant has alleged that the Plaintiff failed to exercise ordinary care for his own
safety and that was a substantial factor in causing his injury.
The Defendant has the burden of proving that allegation against the Plaintiff by what is
called a preponderance of the evidence.

In regard to that allegation this means that the

Defendant has to produce evidence that, considered in light of all the facts, leads you to believe
that what the Defendant claims is more likely true than not.

In determining whether any fact in issue has been established by a preponderance of the
evidence in the case, you may-unless otherwise instructed-consider the testimony of all
witnesses, regardless of who may have called them, and all exhibits received into evidence,
regardless of who may have produced them.
You may have heard of the term "proof beyond a reasonable doubt." That is a stricter ·
standard applicable in criminal cases.

It does not apply in civil cases, such as this one.

Therefore, you should disregard it.
Please proceed to Instruction No. 3.

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INSTRUCTION NO. 3

The term "ordinary care" as used in these instructions means such care as the jury would
expect an ordinary prudent person or business to exercise under the same or similar
circumstances.
Please proceed to Instruction No. 4.

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INSTRUCTION NO. 4
Elements of the Plaintiff's Claim
It was Wal-Mart's duty to exercise ordinary care for the safety of its customers, including
the Plaintiff. You will find Wal-Mart at fault if you are satisfied from the evidence as follows:
1.

The Plaintiff's injuries were caused by slipping on a liquid substance; and

2.

By reason of the presence of the liquid substance on the floor, the Defendant's
floor was not in a reasonably safe condition for the use of its business invitees,
including the Plaintiff; and

3.

The Defendant knew, or in the exercise of ordinary care, should have discovered
the liquid substance on the floor in sufficient time to have remedied the condition
or warned the Plaintiff of its presence before he slipped on it; and

4.

The Defendant's failure, in the exercise of ordinary care, to remedy the condition
was a substantial factor in causing the Plaintiffs accident.

We, the jury, find the Defendant at fault by a preponderance of the evidence.
YES _ _ _ __
NO - - - - - - -

FOREPERSON

If you have answered YES to this Instruction No. 4, please proceed to Instruction No. 5.
If you have answered NO to this Instrnction No. 4, proceed no further with these Instructions and
Inten-ogatory, and return the verdict form to a Court Security Officer.

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INSTRUCTION NO. 5
Elements of the Defendant's Claim that the Plaintiff was at Fault
It was the Plaintiffs duty upon the occasion in question to exercise ordinary care for his

own health and safety. If you are satisfied from the evidence that the Plaintiff failed to comply
with this duty, and that such failure was a substantial factor in causing his injury, you shall find
the Plaintiff at fault.
We, the jury, fmd the Plaintiff at fault by preponderance of the evidence.
YES _ _ _ __

NO - - - - - - -

FOREPERSON

If you answered YES, please proceed to Instruction No. 6.
If you answered NO, please proceed to Instruction No. 7.

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INSTRUCTION NO. 6
Comparative Fault

If you find the Defendant at fault in Instruction No . 4, and also find the Plaintiff at fault

in Instruction No. 5, you will detennine from the evidence and indicate in the blank spaces below
what percentage of the total fault was attributable to each entity.
In detennining the percentage of fault, you shall consider both the nature of the conduct
of each entity at fault and the extent of the causal relation between his/its conduct and the
injuries claimed by the Plaintiff.
Please assess the percentage of fault you believe are attributable to each party.
Defendant:

- - -%

Plaintiff:

- - -%

Total:

100%

FOREPERSON

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INSTRUCTION NO. 7
Compensatory Damages

If you answer "yes" under instruction No. 4, then you shall award Plaintiff such a sum of
money as will fairly and reasonably compensate him for any damages or injuries which you are
satisfied from the evidence he sustained as a direct result of this accident including:
1.

Expenses for medical services you believe from the evidence he has incurred.

2.

Physical or mental suff~ring you are satisfied from the evidence he has sustained
or is reasonably certain to endure in the future.

Indicate your award of damages, if any, by answering Interrogatory No. 1 on the next page.

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INTERROGATORY NO. 1

What sums, if any, will fairly and reasonably compensate the Plaintiff for any dan1ages
for the injury that you believe was sustained by him as a direct result of the alleged accident?
A.

Reasonable medical expenses:

$_ __

B.

Pain and suffering:

$ _ __

TOTAL

$ _ _ _ __

FOREPERSON

Your verdict form is complete, and you should notify the Court Secmity Officer.

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