Model Jury - Section 7
CIVIL INSTRUCTIONS
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7. DAMAGES
7.01 DAMAGES--PROOF
If you find for the plaintiff [on plaintiff's claim], you must determine plaintiff's damages. Plaintiff has the burden of proving damages by a preponderance of the evidence. Damages means the amount of money which will reasonably and fairly compensate the plaintiff for any [injury] [and] [or] [property damage] you find was [proximately] [legally] caused by the [ ] of the defendant. You should consider the following:
[Here insert types of damages. See Instruction 7.02--
MEASURES OF TYPES OF DAMAGES]
[You may not include any amounts for the purpose of punishing the defendant or setting an example.] [You may not include damages that are speculative, only possible, or that are based on guesswork.]
Comment
There is not a uniform causation standard for federal or state claims. Depending on the case, the trial judge may use "proximate" cause, "legal" cause, or some other standard of causation. See Comment to Instruction 3.09. See, for example, Instructions 8.02.03, 8.03.03, 9.01.03, and 9.02.03.
If particular damages or types of damages are not disputed, the court may wish to add a paragraph beginning: "Any damage award should include the following: ...."
If liability is not disputed, omit the first sentence of the instruction.
Use the last two bracketed sentences only where, under the evidence and damage instructions, there is a risk that a jury might improperly award either punitive damages or speculative damages.
7.02 MEASURES OF TYPES OF DAMAGES
[The nature and extent of the injuries.]
[The [disability] [disfigurement] [loss of enjoyment of life] experienced [and which with reasonable probability will be experienced in the future].]
[The [mental,] [physical,] [emotional] pain and suffering experienced [and which with reasonable probability will be experienced in the future].]
[The reasonable value of necessary medical care, treatment, and services received to the present time.]
[The reasonable value of necessary medical care, treatment, and services which with reasonable probability will be required in the future.]
[The reasonable value of [wages] [earnings] [earning capacity] [salaries] [employment] [business opportunities] [employment opportunities] lost to the present time.]
[The reasonable value of [wages] [earnings] [earning capacity] [salaries] [employment] [business opportunities] [employment opportunities] which with reasonable probability will be lost in the future.]
[The reasonable value of necessary [household help] [services other than medical] [and] [expenses] [________________________________] required to the present time.]
[The reasonable value of necessary [household help] [services other than medical] [and] [expenses] [________________________________] which with reasonable probability will be required in the future.]
[The reasonable value of necessary repairs to any property which was damaged.]
[The difference between the fair market value of any damaged property immediately before the occurrence and its fair market value immediately thereafter.]
[The reasonable value of necessary repairs to any property which was damaged plus the difference between the fair market value of the property immediately before the occurrence and its fair market value after it is repaired.]
[The lesser of the following:
1. the reasonable cost of necessary repairs to any property which was damaged plus the difference between the fair market value of the property immediately before the occurrence and its fair market value after it is repaired; or
2. the difference between the fair market value of the property immediately before the occurrence and the fair market value of the unrepaired property immediately after the occurrence.]
[Such sum as will reasonably compensate for any loss of use of any damaged property during the time reasonably required for its [repair] [replacement].]
Comment
Insert only the appropriate paragraph or paragraphs into Instruction 7.01. Additional paragraphs may have to be drafted to fit other types of damages. Particular claims may have special rules on damages. See, for example, Instructions 9.03.01, 9.04, 12.03.01, and 16.06.03.
7.03 DAMAGES--MITIGATION
The plaintiff has a duty to use reasonable efforts to mitigate damages. To mitigate means to avoid or reduce damages.
The defendant has the burden of proving by a preponderance of the evidence:
1. that plaintiff failed to use reasonable efforts to mitigate damages; and
2. the amount by which damages would have been mitigated.
7.04 DAMAGES ARISING IN THE FUTURE--DISCOUNT TO PRESENT CASH VALUE
[Any award for future economic damages must be for the present cash value of those damages.]
[Noneconomic damages [such as] [pain and suffering] [disability] [disfigurement] [and] [_____________] are not reduced to present cash value.]
Present cash value means the sum of money needed now, which, when invested at a reasonable rate of return, will pay future damages at the times and in the amounts that you find the damages [will be incurred] [or] [would have been received].
The rate of return to be applied in determining present cash value should be the interest that can reasonably be expected from safe investments that can be made by a person of ordinary prudence, who has ordinary financial experience and skill. [You should also consider decreases in the value of money which may be caused by future inflation.]
Comment
There must be evidence to support this instruction. See Monessen Southwestern Ry. v. Morgan, 486 U.S. 330, 339-42 (1988).
7.05 PUNITIVE DAMAGES
If you find for plaintiff, and if you award compensatory or nominal damages, you may, but are not required to, award punitive damages. The purposes of punitive damages are to punish a defendant and to deter a defendant and others from committing similar acts in the future.
Plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. You may award punitive damages only if you find that defendant's conduct was malicious, or in reckless disregard of plaintiff's rights. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is in reckless disregard of plaintiff's rights if, under the circumstances, it reflects complete indifference to the safety and rights of others.
If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice or sympathy toward any party.
[Punitive damages may not be awarded against ____________________.] [You may impose punitive damages against one or more of the defendants and not others, and may award different amounts against different defendants.] [Punitive damages may be awarded even if you award plaintiff only nominal, and not compensatory, damages.]
Comment
Punitive damages are not available in every case. In diversity cases, look to state law for an appropriate instruction.
If punitive damages are available, and evidence of defendant's financial condition is offered in support of such damages, the judge may be requested to instruct the jury during trial and/or at the end of the case about the limited purpose of such evidence. See Instructions 1.04, 2.08, and the bracketed material in 3.05.
See Pacific Mut. Life Ins. Co. v. Haslip, ___ U.S.___, 111 S. Ct. 1032 (1991).