Opinion
19-CV-6814 (RA)(JLC)
07-28-2022
JANETTE E. AJASIN, Plaintiff, v. ANTONIO ORTIZ and COMMUNITY COACH, Defendants.
JURY INSTRUCTIONS
I. GENERAL INSTRUCTIONS
A. Introductory Remarks
Members of the jury, you have now heard all of the evidence in the case as well as the final arguments of the parties. You have paid careful attention to the evidence, and I am confident that you will act together with fairness and impartiality to reach a just verdict in the case.
Now it is time for me to instruct you as to the law that governs the case. There are three parts to these instructions. First, I'm going to give you some general instructions about your role, and about how you are to decide the facts of the case. Most of these instructions would apply to just about any trial. Second, I'll give you some specific instructions about the legal rules applicable to this particular case. Third, I'll give you some final instructions about procedure.
Listening to these instructions may not be easy. It is important, however, that you listen carefully and concentrate. I ask you for patient cooperation and attention. You'll notice that I'm reading these instructions from a prepared text. It would be more lively, no doubt, if I just improvised. But it's important that I not do that. The law is made up of words, and those words are very carefully chosen. So, when I tell you the law, it's critical that I use exactly the right words.
Because my instructions are lengthy, I have provided each of you with a copy of them, not only so that you can follow them as I read them now, but also so that you can have them with you for reference as you deliberate. Nonetheless, feel free to just listen for now.
B. Role of the Court
My duty at this point is to instruct you as to the law. It is your duty to accept these instructions of law and to apply them to the facts as you determine them. With respect to legal matters, you must take the law as I give it to you. If any attorney or witness has stated a legal principle different from any that I state to you in my instructions, it is my instructions that you must follow. You must not substitute your own notions or opinions of what the law is or ought to be.
C. Role of the Jury
As members of the jury, you are the sole and exclusive judges of the facts. You evaluate the evidence. You determine the credibility of the witnesses. You resolve such conflicts as there may be in the testimony. You draw whatever reasonable inferences you decide to draw from the facts as you have determined them, and you determine the weight of the evidence.
Do not conclude from any of my questions or any of my rulings on objections or anything else I have done during this trial that I have any view as to the credibility of the witnesses or how you should decide the case.
It is your sworn duty, and you have taken the oath as jurors, to determine the facts. Any opinion I might have regarding the facts is of absolutely no consequence.
I also ask you to draw no inference from the fact that upon occasion I asked questions of certain witnesses. These questions were only intended for clarification or to expedite matters and certainly were not intended to suggest any opinions on my part as to the verdict you should render, or whether any of the witnesses may have been more credible than any other witnesses. The court has no opinion as to the verdict you should render in this case.
D. Role of Counsel
It is the duty of the attorneys to object when the other side offers testimony or other evidence that the attorney believes is not properly admissible. It is my job to rule on those objections. Therefore, why an objection was made or why I ruled on it the way I did is not your concern. You should draw no inference from the fact that an attorney objects to any evidence. Nor should you draw any inference from the fact that I might have sustained or overruled an objection.
The personalities and the conduct of counsel in the courtroom are not in any way at issue. If you formed reactions of any kind to any of the lawyers in the case, favorable or unfavorable, whether you approved or disapproved of their behavior as advocates, those reactions should not enter into your deliberations.
During the course of the trial, I may have had to correct the presentation of an attorney, for example, to ask them to rephrase a question. You should draw no inference against him or her or the client. It is the duty of the attorneys to advocate on behalf of their clients.
From time to time, the lawyers and I had conferences out of your hearing. These conferences involved procedural and other legal matters, and none of the events relating to these conferences should enter into your deliberations at all.
E. Sympathy or Bias
Under your oath as jurors you are not to be swayed by sympathy or prejudice. Your verdict must be based solely upon the evidence developed at this trial, or the lack thereof. It must be clear to you that once you let fear or prejudice or bias or sympathy interfere with your thinking, there is a risk that you will not arrive at a true and just verdict.
It would be improper for you to consider any personal feelings you may have about one of the parties' race, religion, national origin, gender, age, sexual orientation, disability, or physical appearance. It would be equally improper for you to allow any feelings you might have about the nature of the claim against the defendants to influence you in any way. The parties in this case are entitled to a trial free from prejudice and bias. Our judicial system cannot work unless you reach your verdict through a fair and impartial consideration of the evidence.
F. All Persons Equal Before the Law
In reaching your verdict, you must remember that all parties stand equal before a jury in the courts of the United States. You should consider and decide this case as a dispute between parties of equal standing before the law, and of equal worth. All persons and entities deserve fair, impartial, and conscientious consideration by you. All parties expect that you will fairly and impartially consider all of the evidence, follow the law as it is now being given to you, and reach a just verdict, regardless of the consequences.
G. Burden of Proof
As this is a civil case, the plaintiff, Ms. Ajasin, has the burden of proving her claims by a preponderance of the evidence. This means that the plaintiff must prove by a preponderance of the evidence each and every disputed element of her claim. If you find that the plaintiff has failed to establish a claim by a preponderance of the evidence, you must decide against her on that claim.
What does a “preponderance of the evidence” mean? To establish a fact by a preponderance of the evidence means to prove that the fact is more likely true than not true. A preponderance of the evidence means the greater weight of the evidence. It refers to the quality and persuasiveness of the evidence, not to the number of witnesses or documents. In determining whether a claim has been proved by a preponderance of the evidence, you may consider the relevant testimony of all witnesses, regardless of who may have called them, and all the relevant exhibits received in evidence, regardless of who may have produced them.
If you find that the credible evidence on a given issue is evenly divided between the parties-that it is equally probable that one side is right as it is that the other side is right-then you must decide that issue against the party having this burden of proof. That is because the party bearing this burden must prove more than simple equality of evidence-the party must prove the element at issue by a preponderance of the evidence. On the other hand, the party with this burden of proof need prove no more than a preponderance. So long as you find that the scales tip, however slightly, in favor of the party with this burden of proof-that what the party claims is more likely true than not true-then that element will have been proved by a preponderance of the evidence.
In this case, the plaintiff has the burden of proving each element of her claim.
One final note on the burden of proof: some of you may have heard of “proof beyond a reasonable doubt.” As I told you at the beginning of the trial, “beyond a reasonable doubt” is the standard of proof in a criminal trial. It does not apply to a civil case such as this and you should put it out of your mind.
H. What Is and Is Not Evidence
In determining the facts, you must rely upon your own recollection of the evidence. The evidence in this case is the sworn testimony of the witnesses and the exhibits received in evidence. Testimony that I may have stricken or excluded, however, is not evidence and may not be considered by you in rendering your verdict. Also, if certain testimony was received for a limited purpose, you must follow the limiting instructions I gave you, and use the evidence only for the purpose I indicated.
The only exhibits that are evidence in this case are those that were received in evidence. Exhibits marked for identification but not admitted are not evidence, nor are materials that were used only to refresh a witness's recollection.
As I told you at the start of this case, statements and arguments by lawyers are not evidence, because the lawyers are not witnesses. What they have said to you in their opening statements and in their summations is intended to help you understand the evidence to reach your verdict. If your recollection of the facts differs from the lawyers' statements, however, it is your recollection that controls.
For the same reasons, you are not to consider a lawyer's questions as evidence. It is the witnesses' answers to those questions that are evidence. Similarly, any statements that I may have made do not constitute evidence. It is for you alone to decide the weight, if any, to be given to the testimony you have heard and the exhibits you have seen.
Finally, this means, of course, that anything you may have heard or read on the internet, in the news media or anything outside of this courtroom may play no role in your deliberations. Your decision in this case must be made solely on the evidence presented at trial.
I. Direct and Circumstantial Evidence
Generally, there are two types of evidence that you may consider in reaching your verdict. One type of evidence is direct evidence. Direct evidence is testimony by a witness about something he or she knows by virtue of his or her own senses-something the witness has seen, felt, touched, or heard. For example, if a witness testified that when he or she left the house this morning, it was raining, that would be direct evidence about the weather.
Circumstantial evidence is evidence from which you may infer the existence of certain facts. For example, assume that when you came into the courthouse this morning the sun was shining and it was a nice day. Assume that the courtroom blinds were drawn and you could not look outside. As you were sitting here, someone walked in with an umbrella, which was dripping wet. Then a few minutes later another person entered with a wet raincoat. Now, you cannot look outside of the courtroom and you cannot see whether or not it is raining. So, you have no direct evidence of that fact. But on the combination of facts that I have asked you to assume, it would be reasonable and logical for you to conclude that it had been raining.
That is all there is to circumstantial evidence. You infer on the basis of reason, experience, and common sense from one established fact the existence or non-existence of some other fact. As you can see, the matter of drawing inferences from facts in evidence is not a matter of guesswork or speculation. An inference is a logical, factual conclusion which you might reasonably draw from other facts that have been proven. Many material facts-such as what a person was thinking or intending-can rarely be proved by direct evidence.
Circumstantial evidence is as valuable as direct evidence. The law makes no distinction between direct and circumstantial evidence.
There are times when different inferences may be drawn from the evidence. The plaintiff asks you to draw one set of inferences. The defendants ask you to draw another. It is for you, and for you alone, to decide what inferences you will draw.
J. Witness Credibility
You have had the opportunity to observe the witnesses. It is now your job to decide how believable each witness was in his or her testimony. You are the sole judges of the credibility of each witness and of the importance of his or her testimony.
You should carefully scrutinize all of the testimony of each witness, the circumstances under which each witness testified, the impression the witness made when testifying, the relationship of the witness to the controversy and the parties, the witness's bias or impartiality, the reasonableness of the witness's statement, the strength or weakness of the witness's recollection viewed in the light of all other testimony, and any other matter in evidence that may help you decide the truth and the importance of each witness's testimony.
In other words, what you must try to do in deciding credibility is to size a witness up in light of his or her demeanor, the explanations given and all of the other evidence in the case. How did the witness appear? Was the witness candid, frank, and forthright; or, did the witness seem to be evasive or suspect in some way? How did the way the witness testified on direct examination compare with how the witness testified on cross-examination? Was the witness consistent or contradictory? Did the witness appear to know what he or she was talking about? Did the witness strike you as someone who was trying to report his or her knowledge accurately? These are examples of the kinds of common-sense questions you should ask yourselves in deciding whether a witness is, or is not, truthful.
In passing upon the credibility of a witness, you may take into account any inconsistencies or contradictions as to material matters in his or her testimony. You should also take into account any evidence that the witness who testified may benefit in some way from the outcome in this case. Likewise, you should note any evidence of hostility or affection that the witness may have towards one of the parties. Such bias or interest in the outcome creates a motive to testify falsely. It is your duty to consider whether the witness has permitted any such bias or interest to color his or her testimony and bear that factor in mind when evaluating the credibility of the testimony.
This is not to suggest that every witness who has an interest in the outcome of a case will testify falsely. It is for you to decide to what extent, if at all, the witness's interest has affected or colored his or her testimony.
If you find that any witness has willfully testified falsely as to any material fact, you have the right to reject the testimony of that witness in its entirety. On the other hand, even if you find that a witness has testified falsely about one matter, you may reject as false that portion of his or her testimony and accept as true any other portion of the testimony which you find credible or which you may find corroborated by other evidence in this case. A witness may be inaccurate, contradictory, or even untruthful in some aspects, and yet be truthful and entirely credible in other aspects of his or her testimony.
The ultimate question for you to decide in passing upon credibility is: did the witness tell the truth before you? It is for you to say whether his or her testimony at this trial was truthful in whole or in part.
K. Expert Witnesses
You will recall that Dr. Gabriel Dassa, Dr. Neil Roth, and John Desch, P.E. testified as experts and gave their opinions concerning issues in this case. Experts are witnesses who have acquired learning or experience in science or a specialized area of knowledge by education, experience or training. They are permitted to give their opinions on matters in which they profess to be experts and to give the reasons for their opinions. Someone who is experienced in a field may assist you in understanding the evidence and in reaching your independent decision of the facts.
Your role in judging credibility applies to experts as well as other witnesses. You should judge the expert testimony in the same way that you judge the testimony of any other witness. In weighing expert testimony, you should consider the factors that generally bear upon the credibility of a witness, as well as the expert witness's education, training and experience, the soundness of the reasons given for the opinion and all the other evidence in the case. You should also consider whether the factual assumptions on which the expert relied were proven.
L. Use of Depositions as Evidence
During the trial, certain testimony has been presented by way of deposition testimony. The deposition consisted of sworn answers of the witness to questions asked by attorneys for the parties to the case in advance of the trial. Such testimony is entitled to the same consideration and is to be judged as to credibility, weighed, and otherwise considered by you, insofar as possible, in the same way as if the witness had testified from the witness stand. You should not draw any negative inference against either party for introducing evidence by presenting deposition testimony instead of live testimony.
M. Prior Inconsistent Statement
You have heard evidence that certain witnesses may have made statements on earlier occasions which counsel argue are inconsistent with their trial testimony. Evidence of a prior inconsistent statement by someone who is not a plaintiff or a defendant is not to be considered by you as affirmative evidence in determining liability. Evidence of any such prior inconsistent statements was placed before you for the limited purpose of helping you decide whether to believe the trial testimony of the witness who may have contradicted himself or herself. If you find that a witness made an earlier statement that conflicts with that witness's trial testimony, you may consider that fact in deciding how much of the trial testimony, if any, to believe.
In making this determination, you may consider whether the witness purposely made a false statement or whether it was an innocent mistake; whether the inconsistency concerns an important fact, or whether it had to do with a small detail; whether the witness had an explanation for the inconsistency; and whether that explanation appealed to your common sense.
It is exclusively your duty, based upon all the evidence and your own good judgment, to determine whether the prior statement was inconsistent, and if so how much, if any, weight to be given to the inconsistent statement in determining whether to believe all or part of the witness's testimony.
Where, however, the witness is the plaintiff or the defendant, and who by a prior statement has admitted some fact or facts against her, his, or its interest, then such statement, if knowingly made, may be considered as evidence of the truth of the fact or facts admitted by that party, as well as for the credibility of the party as a witness. Again, how much, if any, weight to be given to the prior statement is up to you.
N. All Available Witnesses or Evidence Need Not Be Produced
The law does not require any party to call as witnesses all persons who may have been present at any time or place involved in the case, or who may appear to have some knowledge of the matters at issue in this trial. Nor does the law require any party to produce as exhibits all papers and things mentioned in the evidence in the case.
The weight of the evidence is not necessarily determined by the number of witnesses testifying to the existence or nonexistence of any fact. You may find that the testimony of one witness as to any fact is more probative or compelling than the testimony of a larger number of witnesses to the contrary.
II. SUBSTANTIVE INSTRUCTIONS
I will turn now to my instructions on the substantive law to be applied to this case. Ms. Ajasin has asserted a claim for negligence. You should consider each element of the claim separately and determine whether Ms. Ajasin has proven the elements of her claim by a preponderance of the evidence.
A. Negligence
Negligence is a lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person would have used under the same circumstances. Negligence may arise from doing an act that a reasonably prudent person would not have done under the same circumstances, or, on the other hand, from failing to do an action that a reasonably prudent person would have done under the same circumstances.
Negligence requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger. A person is only responsible for the results of his or her conduct if the risk of injury is reasonably foreseeable. The exact occurrence or exact injury does not have to be foreseeable; but injury as a result of negligent conduct must be not merely possible, but probable.
There is negligence if a reasonably prudent person could foresee injury as a result of his or her conduct, and acted unreasonably in light of what could be foreseen. On the other hand, there is no negligence if a reasonably prudent person could not have foreseen any injury as a result of his or her conduct, or acted reasonably in light of what could have been foreseen.
Negligence also requires proximate causation. An act or omission is regarded as a proximate cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury. There may be more than one cause of an injury, but to be substantial, it cannot be slight or trivial. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to it.
If you find that Ms. Ajasin has proven by a preponderance of the evidence that Mr. Ortiz was negligent and that his negligence proximately caused Ms. Ajasin's injury, then you must return a verdict for Ms. Ajasin on her negligence claim. On the other hand, if you conclude that Ms. Ajasin has not proven all of these elements by a preponderance of the evidence, then you must return a verdict for the defendants.
B. Vehicle and Traffic Law
1. Negligence in Use/Operation of a Vehicle
Every owner of a vehicle used or operated in the State of New York shall be liable and responsible for death and injuries to persons or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner.
2. Statutory Standard of Care - Vehicle and Traffic Law § 1128 Driving on Roadways Laned for Traffic
The Vehicle and Traffic Law establishes rules of conduct that must be obeyed by motorists. Section 1128 of the Vehicle and Traffic Law provides as follows:
Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith shall apply: (a) a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
C. Duty Toward Other Motorists
It is the duty of all drivers to operate their vehicles with reasonable care, taking into account the actual and potential dangers existing from weather, road, traffic and other conditions.
Every driver is under a duty to maintain a reasonably safe rate of speed; to have their vehicle under reasonable control; to keep a proper lookout under the circumstances then existing; to see and be aware of what was in their view; and to use reasonable care to avoid an accident.
D. Duty to See That Which Should Have Been Seen
A driver is charged with the duty to see that which under the facts and circumstances they should have seen by the proper use of his senses, and if you find that either party did not observe that which was there to be seen, you may find that they were negligent in failing to look or in not looking carefully.
E. Comparative Negligence
If you find that the defendants were negligent and that the defendants' negligence contributed to causing the accident in issue, you must next consider whether the plaintiff was also negligent and whether the plaintiff's conduct contributed to causing the accident. The burden is on the defendants to prove that the plaintiff was negligent and that her negligence contributed to causing the accident. If you find that the plaintiff was not negligent, or if negligent, that her negligence did not contribute to causing the accident, you must find that the plaintiff was not at fault and you must go on to consider damages. If, however, you find that the plaintiff was negligent and that her negligence contributed to causing the accident, you must then apportion the fault between the plaintiff and the defendants. Weighing all the facts and circumstances, you must consider the total fault, that is, the fault of both the plaintiff and the defendants and determine what percentage of fault is chargeable to each. In your verdict, you will state the percentages you find. The total of those percentages must equal one hundred percent.
For example, if you should find that the defendants and the plaintiff were equally at fault, you would report that each was 50% responsible. If you should find that one party was more at fault, you would assign a higher percentage to that party and a lower percentage to the other, with the total of the percentages equaling one hundred percent.
F. Vicarious Liability
Under Section 388, subdivision 1, of the Vehicle and Traffic Law an owner of a vehicle, although not personally driving it, is fully responsible for injuries resulting from its negligent operation/use by another regardless of the purpose for which it was being operated/used, if in fact such operation/use was with the express or implied permission of the owner. There is no dispute here that the driver, Mr. Ortiz, was driving the bus with the express permission of the owner of the bus, Defendant Community Coach. Assuming you find Mr. Ortiz was negligent, you must also find Community Coach liable as an extension.
III. DAMAGES
If you find in favor of the plaintiff on her claim of negligence, you must also decide the amount of damages that she should be awarded. I will now instruct you on the law for measuring damages.
The fact that I am instructing you as to the proper measure of damages does not indicate any view of mine as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given for your guidance only in the event that you should find in favor of the plaintiff in accordance with my other instructions.
If you do find that damages should be awarded, you should not take into consideration attorneys' fees or court costs, which will be decided by the Court. If you make any award of damages, that award is not subject to federal income taxes and you should not consider such taxes in determining the amount of damages, if any. Further, do not reduce your damages award based on any finding you may have made regarding contributory negligence. Rather, after you return your verdict, I will decrease the amount of damages you have found, if any, by the percentage by which you find the plaintiff's negligence contributed to her own injuries.
The verdict form I will give you will assist you in recording the determinations, if any, that you make as to damages.
A. Compensatory and Nominal Damages
If you find liability on the plaintiff's claim, then, pursuant to the instructions that follow, you should award her the sum that you find will fairly and justly compensate her for any injury you believe was proximately caused by the defendants conduct.
1. Compensatory Damages
If you find in favor of the plaintiff on her claim of negligence, then you must determine an amount that is fair compensation for her injuries. This type of damages is known as “compensatory damages.” You may award compensatory damages only for injuries that the plaintiff proved were caused by the defendants' wrongful conduct. The damages that you award must be fair compensation-no more and no less-for the loss, if any, which resulted from the defendants' wrongful conduct. The purpose of these damages is to make the plaintiff whole-to put her in the same position in which she would have been had there been no violation of her rights. The purpose is not to punish the defendants.
a. Pain and Suffering
Compensatory damages may include damages for the physical injury, pain and suffering, mental anguish, shock, and discomfort that the plaintiff suffered because of the defendants' conduct. In assessing compensatory damages, you may include an amount for pain, suffering, and emotional distress-past, present and future-that you determine to be reasonable compensation in the light of all the evidence in this case. Keep in mind that in order to recover damages for pain and suffering, the plaintiff must present credible evidence with respect to her suffering and corroboration that the defendants' impermissible conduct caused this suffering. To satisfy the requirement, the plaintiff does not need to provide evidence from a medical expert.
In determining the amount, if any, to award the plaintiff for pain and suffering, you may take into consideration the effect that the plaintiff's injuries have had on her ability to enjoy life. Loss of enjoyment of life involves the loss of the ability to perform daily tasks, to participate in the activities which were a part of the person's life before the injury, and to experience the pleasures of life. If you find that as a result of her injuries, the plaintiff suffered some loss of the ability to enjoy life and that the plaintiff was aware, at some level, of a loss, you may take that loss into consideration in determining the amount to be awarded to the plaintiff for pain and suffering to date.
The plaintiff is also entitled to recover for future pain, suffering and disability and the loss of her ability to enjoy life. In this regard, you should take into consideration the period of time that the injuries or disabilities are expected to continue. If you find that the injuries or disabilities are permanent, you should take into consideration the period of time that the plaintiff can be expected to live. In accordance with statistical life expectancy tables, the plaintiff has a life expectancy of 20.7 more years. Such table provides nothing more than a statistical average. It neither guarantees that the plaintiff will live an additional 20.7 more years, nor does it mean that the plaintiff will not live for a longer period. The life expectancy figure I have given you is not binding upon you but may be considered by you, together with your own experience, and the evidence you have heard concerning the condition of the plaintiff's health, habits, employment and activities in determining the plaintiff's present life expectancy.
There is no exact standard for determining the precise amount of damages for pain and suffering. Any award you make must be fair and reasonable in light of the evidence at trial. An award must not be based only on speculation or sympathy.
b. Expenses Incurred
If you decide for the plaintiff on the question of liability, the plaintiff also will be entitled to recover the amount of reasonable expenditures for medical services and medicines, including physician's charges, nursing charges, hospital expenses, diagnostic expenses and X-ray charges. Included in your verdict will be the amount that you find from the evidence to be a fair and reasonable amount of the medical expenses necessarily incurred as a result of the plaintiff's injuries. If you find that the plaintiff will need medical, hospital and/or nursing expenses in the future, your verdict should include an amount for those anticipated medical, hospital and nursing expenses which are reasonably certain to be incurred in the future and that were necessitated by the plaintiff's injuries. If you find that the plaintiff is entitled to an award for medical expenses to be incurred in the future, you should fix the dollar amount of expenses over the entire period that you find the plaintiff will incur such expenses and include that amount in your verdict.
2. Nominal Damages
If you find for Ms. Ajasin on her negligence claim, but you find that she has failed to prove actual damages, you shall return an award of nominal damages not to exceed one dollar.
B. Serious Injury
The verdict form will also contain a question about whether or not Ms. Ajasin sustained a “serious injury” as a result of the accident. If you find for Ms. Ajasin on her negligence claim, the law requires you to answer this question. There are three different ways to sustain a serious injury: (1) a permanent consequential limitation of use of a body organ or member; (2) a significant limitation of use of a body function or system; and (3) a medically determined injury or impairment of a non-permanent nature which prevented her from performing substantially all of the material acts that constituted her usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the accident.
If you find that Ms. Ajasin sustained any one of these three types of serious injuries as a result of the accident, you must answer the question on your verdict form “yes.” If you find that Ms. Ajasin did not sustain any of these three types of serious injuries as a result of the accident, you must answer the question “no.”
I will now explain what each of these types of serious injuries mean.
1. Permanent Consequential Limitation of Use of Body Organ or Member
The first type of serious injury is a permanent consequential limitation of use of a body organ or member. A limitation of use of a body organ or member means that the body organ or member does not operate at all or operates only in some limited way. It is not necessary for you to find that there has been a total loss of the use of the body organ or member. The limitation of use must be consequential, which means that it is significant, important or of consequence. A minor, mild or slight limitation of use is not significant, important or of consequence.
2. Significant Limitation of Use of Body Function or System
The second type of serious injury is a significant limitation of use of a body function or system. A limitation of use of a body function or system means that the function or system does not operate at all or operates only in some limited way. It is not necessary for you to find that there has been a total loss of the body function or system or that the limitation of use is permanent. However, the limitation of use must be significant, meaning that the loss is important or meaningful. A minor, mild or slight limitation of use is not significant.
3. Medically Determined Injury or Impairment of a Non-Permanent Injury
Finally, the third type of serious injury is a medically determined injury or impairment of a non-permanent nature that prevented her from performing substantially all of the material acts that constituted her usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the accident. A medically determined injury is one that is supported by testimony by a physician.
IV. DELIBERATIONS OF THE JURY
Ladies and gentlemen of the jury, that concludes the substantive portion of my instructions to you. You are about to go into the jury room and begin your deliberations. I will now give you a few final instructions on those deliberations.
A. Selection and Duties of Foreperson
Before you begin deliberating, you should by your own vote select one of you to sit as your foreperson. The foreperson doesn't have any more power or authority than any other juror, and his or her vote or opinion doesn't count for any more than any other juror's vote or opinion. The foreperson is merely your spokesperson to the court. He or she will send out any notes, and when the jury has reached a verdict, he or she will notify the marshal that the jury has reached a verdict, and you will come into open court and give the verdict.
B. Right to See Exhibits and Hear Testimony; Communication with the Court
All of the exhibits admitted into evidence will be sent to the jury room with you. If you want any of the testimony read, you may request that. Please remember that it is not always easy to locate what you might want, so be as specific as you possibly can be in requesting portions of the testimony. If you want any further explanation of the law as I have explained it to you, you may also request that.
Your requests for testimony-in fact any communications with the Court-should be made to me in writing, signed, dated, and timed by your foreperson, and given to one of the marshals. In any event, do not tell me or anyone else how the jury stands on any issue until after a unanimous verdict is reached and announced in open court by your foreperson.
C.
Some of you have taken notes periodically throughout this trial. I want to emphasize to you, as you are about to begin your deliberations, that notes are simply an aid to memory. Notes that any of you may have made may not be given any greater weight or influence than the recollections or impressions of other jurors, whether from notes or memory, with respect to the evidence presented or what conclusions, if any, should be drawn from such evidence. All jurors' recollections are equal. If you can't agree on what you remember the testimony was, you can ask to have the transcript read back.
D. Duty to Deliberate; Unanimous Verdict
Shortly, you will retire to decide the case. You must base your verdict solely on the evidence and these instructions as to the law, and you are obliged on your oath as jurors to follow the law as I instruct you, whether you agree or disagree with the particular law in question.
It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement. Each of you must decide the case for himself or herself, but you should do so only after a consideration of the case with your fellow jurors, and you should not hesitate to change an opinion when convinced that it is erroneous. Discuss and weigh your respective opinions dispassionately, without regard to sympathy, without regard to prejudice or favor for either party, and adopt that conclusion which in your good conscience appears to be in accordance with the truth.
Again, your verdict must be unanimous, but you are not bound to surrender your honest convictions concerning the effect or weight of the evidence for the mere purpose of returning a verdict or solely because of the opinion of other jurors. Each of you must make your own decision about the proper outcome of this case based on your consideration of the evidence and your discussions with your fellow jurors. No juror should surrender his or her conscientious beliefs solely for the purpose of returning a unanimous verdict.
Remember at all times, 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. Nothing said in these instructions and nothing in any verdict form prepared for your convenience is meant to suggest or convey in any way or manner any suggestion or hint as to what verdict I think you should find. What the verdict shall be is your sole and exclusive duty and responsibility.
If you are divided, do not report how the vote stands and if you have reached a verdict do not report what it is until you are asked in open court.
E. Verdict Form
In a few moments, I will give you the verdict form with the questions for you to answer and you will retire to deliberate your decision.
You should answer every question except where the verdict form indicates otherwise. You should also proceed through the questions in the order in which they are listed.
F. Return of Verdict
After you have reached a verdict, your foreperson will fill in the form that has been given to you, you will all sign and date it, and your foreperson will advise the marshal outside your door that you are ready to return to the courtroom.
I will stress that each of you must be in agreement with the verdict which is announced in court. Once your verdict is announced by your foreperson in open court and officially recorded, it cannot ordinarily be revoked.
V. CONCLUSION
In conclusion, ladies and gentlemen, I am sure that if you listen to the views of your fellow jurors, if you apply your own common sense, and if you follow my instructions on the law, you will reach a fair verdict here.