O:\SmithCamp\LSC\Public\Cases\Civil\Sherman, Margaret v ... · Web viewCT—GENER A LLY Parts of the Federal Hazardous Substances Act govern the label on the Saturn Missile, and are

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

MARGARET SHERMAN AND )RICHARD SHERMAN, )

)Plaintiffs, )

)

vs. ))) WINCO FIREWORKS, INC., AND )

WINCO FIREWORKS )INTERNATIONAL, LLC, )

)Defendants. )

CASE NO. 8:04CV300

JURY INSTRUCTIONS

INSTRUCTION NO. 1

2

EXPLANATORY

Members of the jury, the instructions I gave at the beginning of the trial and during

the trial remain in effect. I now give you some additional instructions.

You must, of course, continue to follow the instructions I gave you earlier, as well

as those I give you now. You must not single out some instructions and ignore others,

because all are important. This is true even though some of those I gave you at the

beginning of the trial are not repeated here.

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INSTRUCTION NO. 2

JUDGE’S OPINION

Neither in these instructions nor in any ruling, action, or remark that I have made

during the course of this trial have I intended to give any opinion or suggestion as to

what your verdict should be.

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INSTRUCTION NO. 3

CREDIBILITY OF WITNESSES

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 a witness’s intelligence,

the opportunity a witness had to see or hear the things testified about, a witness’s

memory, any motives a witness may have for testifying a certain way, the manner of a

witness while testifying, whether a witness said something different at an earlier time,

the general reasonableness of the testimony, and the extent to which the testimony is

consistent with any 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 misrecollection or lapse of

memory or an intentional falsehood, 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. 4

BURDEN OF PROOF

In these instructions you are told that your verdict depends on whether you find

certain facts have been proved. The burden of proving a fact is 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 the preponderance, or greater weight, of the evidence. To prove

something by the preponderance, or greater weight, 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 in the case, the evidence is

equally balanced, you cannot find that issue has been proved.

The preponderance, or greater weight, of the evidence is not necessarily

determined by the greater number of witnesses or exhibits a party has presented.

You may have heard of the term “proof beyond a reasonable doubt.” That is a

stricter standard that applies in criminal cases. It does not apply in civil cases such as

this. You should, therefore, put it out of your minds.

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INSTRUCTION NO. 5

MULTIPLE DEFENDANTS

There are two Defendants in this lawsuit who are present at trial. They are Winco

Fireworks, Inc., and Winco Fireworks International, LLC. The interests of Winco

Fireworks, Inc., and Winco Fireworks International, LLC are the same. If you find in

favor of one of them, you must find in favor of both of them. If you find against one of

them, you must find against both of them.

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INSTRUCTION NO. 7

STATEMENT OF THE CASE

This case involves a civil action brought by the Plaintiffs Margaret Sherman and

Richard Sherman. The Plaintiffs allege that on July 3, 2002, while they were watching a

fireworks display in the backyard of Margaret Sherman’s daughter, one of the fireworks,

a Saturn Missile, malfunctioned and flew directly into Margaret Sherman’s eye, causing

permanent damage.

The Plaintiff Margaret Sherman claims that the Winco Defendants distributed the

Saturn Missile in question, and that the Winco Defendants were negligent by failing to

use reasonable care to see that the product was safe for its intended use; that the

Winco Defendants were negligent by failing to properly warn those persons reasonably

expected to be endangered by the probable use of the Saturn Missile; and that the

Winco Defendants breached an implied warranty of merchantability. The Plaintiff

Richard Sherman claims that, because of the injury to his wife, he has been

deprived of her affection, companionship, comfort, and assistance.

The Winco Defendants deny that they were involved in the distribution of the

firework in question. Further, they deny the allegations that they were negligent in failing

to use reasonable care to see that the product was safe for its intended use; that they

were negligent in failing to properly warn those reasonably expected to be endangered

by the probable use of the Saturn Missile; and that they breached an implied warranty

of merchantability. Finally, the Winco Defendants claim that there are third parties who

are

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not or are no longer parties to this litigation whose actions were the sole or partial

proximate cause of the injuries sustained by the Plaintiff Margaret Sherman. These third

parties are (1) Stanley Kapustka and Nathan Kapustka; (2) Hale Fireworks, Inc.; and (3)

Shiu Fung Fireworks Co. Ltd.

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INSTRUCTION NO. 7

NEGLIGENT FAILURE TO USE REASONABLE CARE TO SEE THAT GOODS ARE SAFE FOR INTENDED USE

A. ISSUES

The Plaintiff Margaret Sherman claims that the Winco Defendants were negligent

in failing to use reasonable care to see that the Saturn Missile was safe for the use for

which it was distributed, supplied, or sold.

B. BURDEN OF PROOF

Before the Plaintiff Margaret Sherman can recover against the Winco Defendants

on her claim that the Winco Defendants failed to use reasonable care to see that the

Saturn Missile was safe for the use for which it was distributed, supplied, or sold, the

Plaintiff Margaret Sherman must prove, by the preponderance, or greater weight, of the

evidence, each and all of the following:

1. That the Saturn Missile was distributed, supplied, or sold by the Defendants;

2. That the Plaintiff Margaret Sherman was among the group of people that the

Winco Defendants should reasonably have expected would be endangered by

the probable use of the Saturn Missile;

3. That the Winco Defendants failed to use reasonable care to see that the Saturn

Missile was safe for the use for which it was distributed, supplied, or sold;

4. That this failure to use reasonable care to see that the Saturn Missile was safe for

the use for which it was distributed, supplied, or sold was the proximate cause of

some damage to the Plaintiff Margaret Sherman; and

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5. The nature and extent of that damage.

C. EFFECT OF FINDINGS

If the Plaintiff Margaret Sherman h as met this burden of proof, then your verdict

must be for the Plaintiff Margaret Sherman and against the Winco Defendants on the

Plaintiff’s claim of negligent failure to use reasonable care to see that goods are safe for

intended use.

If the Plaintiff Margaret Sherman has not met this burden of proof, then your

verdict must be for the Winco Defendants and against the Plaintiff Margaret Sherman

on the Plaintiff’s claim for negligent failure to use reasonable care to see that goods are

safe for intended use.

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INSTRUCTION NO. 8

NEGLIGENT FAILURE TO WARN

A. ISSUES

The Plaintiff Margaret Sherman claims that the Winco Defendants were negligent

in failing to warn the Plaintiff Margaret Sherman that the Saturn Missile was dangerous.

B. BURDEN OF PROOF


on her claim that the Winco Defendants failed to warn her that the Saturn Missile was

dangerous, the Plaintiff Margaret Sherman must prove, by the preponderance, or

greater weight, of the evidence, each and all of the following:

1. That the Saturn Missile was distributed, supplied, or sold by the Defendants;

2. That the Plaintiff Margaret Sherman was among the group of people that the

Winco Defendants should reasonably have expected would be endangered by

the probable use of the Saturn Missile;

3. That the Saturn Missile had a label that failed to state conspicuously those

statements required by the Federal Hazardous Substances Act as set forth in

Instruction No. 9;

4. That this failure to state conspicuously those statements required by the Federal

Hazardous Substances Act was the proximate cause of some damage to the

Plaintiff Margaret Sherman; and



12

If the Plaintiff Margaret Sherman has met this burden of proof, then your verdict


Plaintiff’s claim for negligent failure warn.



on the Plaintiff’s claim for negligent failure warn.

INSTRUCTION NO. 9

13

FEDERAL HAZARDOUS SUBSTANCES ACT—GENERALLY

Parts of the Federal Hazardous Substances Act govern the label on the Saturn

Missile, and are incorporated into your decision with respect to Instruction No. 8.B.3.

Under the Federal Hazardous Substances Act, the label on the Saturn Missile must

state conspicuously:

(A) The name and place of the manufacturer, packer, distributor or seller;

(B) The signal word “WARNING” or “CAUTION” on all other hazardous

substances;

(C) An affirmative statement of the principal hazard(s), such as “Flammable,”

“Combustible,” “Vapor Harmful,” “Causes Burns,” “Absorbed Through

Skin,” or similar wording descriptive of the hazard(s);

(D) Precautionary measures describing the action to be followed or avoided;

(E) Instruction, when necessary or appropriate, for first aid treatment;

(F) Adequate directions for the protection of children from the hazard(s); and

These statements must be located prominently on the label, be in the English language

in conspicuous and legible type of contrast by typography, layout, or color with other

printed matter on the label.

INSTRUCTION NO. 10

14

FEDERAL HAZARDOUS SUBSTANCES ACT—“PROMINENTLY” AND “CONSPICUOUS” DEFINED

As used in the Federal Hazardous Substances Act and Instruction No. 8, the

terms “Prominently” and “Conspicuous” mean that, under customary conditions of

purchase, storage, and use, the required information shall be visible, noticeable, and in

clear and legible English. Some factors affecting a warning’s prominence and

conspicuousness are: location, size of type, and contract of printing against background.

Terms of cautionary labeling required by the Federal Hazardous Substances Act

must appear on a display panel. A display panel includes any surface of the immediate

container which bears labeling. A product may have more than one display panel. The

name and place of the manufacturer, packer, distributor, or seller may appear separately

on any display panel. The size of cautionary labeling must be reasonably related to the

type size of any other printing appearing on the same display panel. All statements of

principal hazard or hazards on a label must appear in the same size and style of type,

and must appear in the same color or have the same degree of boldness. The signal

word and the statement(s) of principal hazard(s) must be in capital letters. Where color

is the primary method to achieve appropriate contrast, the color of any cautionary

labeling statement shall be in sharp contrast with the color of the background upon

which such a statement appears. Examples of combinations of colors which may not

satisfy the requirement for sharp contrast are: black letters on a dark blue or dark green

background, dark red letters on a light background, light red letters on a reflective silver

background, and white letters

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on a light gray or tan background.

INSTRUCTION NO. 11

16

DEFINITION OF NEGLIGENCE

Negligence is doing something that a reasonably careful person would not do

under similar circumstances, or failing to do something that a reasonably careful person

would do under similar circumstances.

INSTRUCTION NO. 12

17

PROXIMATE CAUSE

A proximate cause is a cause that produces a result in a natural and continuous

sequence, and without which the result would not have occurred.

INSTRUCTION NO. 13

18

BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY

A. ISSUES

The Plaintiff Margaret Sherman claims that the Winco Defendants breached an

implied warranty of merchantability.

B. BURDEN OF PROOF


on her claim of breach of implied warranty of merchantability, the Plaintiff Margaret

Sherman must prove, by a preponderance, or greater weight, of the evidence, each and

all of the following:

1. That the Winco Defendants sold the Saturn Missle;

2. That, at the time of the sale, the Winco Defendants were merchants with respect

to goods of that kind;

3. That, at the time the Saturn Missile was sold by the Winco Defendants, it was not

merchantable, as defined in Instruction No. 14;

4. That the failure of the Saturn Missile to perform as warranted was a proximate

cause of some damage to the Plaintiff Margaret Sherman; and



If the Plaintiff Margaret Sherman has met this burden of proof, then your verdict


Plaintiff’s claim for breach of implied warranty of merchantability.

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on the Plaintiff’s claim for breach of implied warranty of merchantability.

INSTRUCTION NO. 14

20

IMPLIED WARRANTY OF MERCHANTABILITY DEFINED

To be merchantable, goods must:

1. Be such as would pass without objection in the trade as goods of that kind;

2. Be fit for the ordinary purposes for which such goods are used;

3. Be adequately contained, packaged, and labeled; and

4. Conform to the promises or affirmations of fact made on the container or the

label, if any.

INSTRUCTION NO. 15

21

CORPORATE PARTY

All of the parties to a lawsuit are entitled to the same fair and impartial

consideration, whether they are corporations or individuals.

INSTRUCTION NO. 16

22

AGENCY

A corporation acts only through its agents or employees and any agent or

employee of a corporation may bind the corporation by acts and statements made while

acting within the scope of the authority delegated to the agent by the corporation, or

within the scope of his/her duties as an employee of the corporation.

INSTRUCTION NO. 17

23

EVALUATION OF DEPOSITION EVIDENCE

During the trial, testimony was presented to you by deposition. Such testimony is

under oath and is entitled to the same fair and impartial consideration you give other

testimony.

INSTRUCTION NO. 18

24

EXPERT TESTIMONY

A witness who has special knowledge, skill, experience, training, or education in a

particular area may testify as an expert in that area. You determine what weight, if any,

to give to an expert’s testimony just as you do with the testimony of any other witness.

You should consider the expert’s credibility as a witness, the expert’s qualifications

as an expert, the sources of the expert’s information, and the reasons given for any

opinions expressed by the expert.

INSTRUCTION NO. 19

25

PROXIMATE CAUSE—CONDUCT OF NONPARTY THIRD PERSON

The Winco Defendants claim that nonparty third persons’ conduct was the only

proximate cause of the occurrence. By doing so, the Winco Defendants are simply

denying that their negligence was a proximate cause of the occurrence. Remember, the

Plaintiff Margaret Sherman must prove that the Winco Defendants’ negligence was a

proximate cause of the occurrence.

INSTRUCTION NO. 20

26

FAULT ALLOCATION

If you find that at least some of the Plaintiff Margaret Sherman’s injury was

proximately caused by the Winco Defendants, you will be required to consider and

assign the respective shares of fault, if any, of the Winco Defendants against the

persons or entities with whom the Plaintiffs have settled.

The fact that a person or entity entered into a release, covenant not to sue, or

similar agreement is not evidence of liability of that person or entity.

All of the persons and entities to be considered are:

1. Shiu Fung Fireworks Co. Ltd.;

2. Hale Fireworks, Inc.;

3. Stanley Kapustka and Nathan Kapustka; and

4. The Winco Defendants.

INSTRUCTION NO. 21

27

NEGLIGENCE—CHILDREN

In the case of a child, negligence is the failure to use the care that would be used

by a reasonably careful child of like age, intelligence, and experience under similar

circumstances.

INSTRUCTION NO. 22

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GENERAL INSTRUCTION ON DAMAGES IN A TORT ACTION WHERE JOINT AND SEVERAL LIABILITY IS AN ISSUE—ECONOMIC AND NONECONOMIC DAMAGES

If you find for the Plaintiff Margaret Sherman and against the Winco Defendants,

you are required to determine her damages and identify those damages as either

economic or noneconomic damages.

ECONOMIC DAMAGES

I am about to give you a list of things you may consider in making your decision

regarding economic damages. From this list, you must only consider those things you

decide were proximately caused by the Winco Defendants’ negligence.

1. The reasonable value of medical, hospital, nursing, and similar care and supplies

reasonably needed by and actually provided to the Plaintiff Margaret Sherman,

and reasonably certain to be needed and provided in the future; and

2. The reasonable value of the earning capacity, business or employment

opportunities the Plaintiff Margaret Sherman is reasonably certain to lose in the

future.

NONECONOMIC DAMAGES

I am about to give you a list of things you may consider in making your decision

regarding noneconomic damages. From this list, you must only consider those things

you decide were proximately caused by the Winco Defendants’ conduct.

1. The reasonable monetary value of the physical pain and mental suffering and

emotional distress the Plaintiff Margaret Sherman has experienced and is

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reasonably certain to experience in the future;

2. The reasonable monetary value of the inconvenience the Plaintiff Margaret

Sherman has experienced and is reasonably certain to experience in the future;

3. The reasonable monetary value of loss of society and companionship suffered by

the Plaintiff Margaret Sherman and reasonably certain to be suffered in the

future;

4. The reasonable monetary value of any injury to the Plaintiff Margaret Sherman’s

reputation; and

5. The reasonable monetary value of any humiliation the Plaintiff Margaret Sherman

has experienced and is reasonably certain to experience in the future.

ECONOMIC AND NONECONOMIC DAMAGES

In your determination of economic and noneconomic damages, you must

consider the nature and extent of the injury, including whether the injury is temporary or

permanent and whether any resulting disability is partial or total.

INSTRUCTION NO. 23

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LOSS OF CONSORTIUM—RICHARD SHERMAN

If, and only if, you find for the Plaintiff Margaret Sherman and against the Winco

Defendants, then you are required to determine Richard Sherman’s damages, if any, for

his claim for loss of consortium.

Consortium means those things to which a person is entitled by reason of the

marriage relationship. It includes affection, love, companionship, comfort, assistance,

moral support, and the enjoyment of intimate relations. Loss of consortium is a

noneconomic damage.

INSTRUCTION NO. 24

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MORTALITY TABLES

There is evidence before you from life expectancy tables. This evidence may

assist you in determining probable life expectancy. This is only an estimate based on

average experience. It is not conclusive. You should consider it along with any other

evidence bearing on probable life expectancy, such as evidence of health, occupation,

habits, and the like.

INSTRUCTION NO. 25

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VERDICT DETERMINED BY CHANCE—QUOTIENT VERDICT

The law forbids you to return a verdict determined by chance. You may not, for

instance, agree in advance that each juror will state an amount to be awarded in

damages, that all of those amounts will be added together, that the total will be divided

by the number of jurors, and that the result will be returned as the jury's verdict. A

verdict determined by chance is invalid.

INSTRUCTION NO. 26

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PRESENT CASH VALUE

If you decide that the Plaintiffs are entitled to recover damages for any future

losses, then you must reduce those damages to their present cash value. You must

decide how much money must be given today to compensate them fairly for their future

losses.

INSTRUCTION NO. 27

34

ELECTION OF FOREPERSON; DUTY TO DELIBERATE; COMMUNICATIONS WITH

COURT; CAUTIONARY; UNANIMOUS VERDICT; VERDICT FORM

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 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.

Third, if you need to communicate with me during your deliberations, you may

send a note to me through the marshal or bailiff, signed by one or more jurors. I will

respond as soon as possible either in writing or orally in open court. Remember that

INSTRUCTION NO. 27

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you should not

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tell anyone - including me - how your votes stand numerically.

Fourth, your verdict must be based solely on the evidence and on the law which I

have given to you in my instructions. The verdict must be unanimous. Nothing I have

said or done is intended to suggest what your verdict should be - that is entirely for you

to decide.

Finally, the verdict form is simply the written notice of the decision that you reach

in this case. You will take this form to the jury room, and when each of you has agreed

on the verdict, your foreperson will fill in the form, sign and date it, and advise the

marshal or bailiff that you are ready to return to the courtroom.

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INSTRUCTION NO. 28

“ALLEN CHARGE”

As stated in my instructions, it is your duty to consult with one another and to

deliberate with a view to reaching agreement if you can do so without violence to your

individual judgment. Of course you must not surrender your honest convictions as to the

weight or effect of the evidence solely because of the opinions of other jurors or for the

mere purpose of returning a verdict. Each of you must decide the case for yourself; but

you should do so only after consideration of the evidence with your fellow jurors.

In the course of your deliberations you should not hesitate to reexamine your own

views, and to change your opinion if you are convinced it is wrong. To reach a

unanimous result you must examine the questions submitted to you openly and frankly,

with proper regard for the opinions of others and with a willingness to re-examine your

own views.

Finally, remember that you are not partisans; you are judges - judges of the facts.

Your sole interest is to seek the truth from the evidence. You are the judges of the

credibility of the witnesses and the weight of the evidence.

You may conduct your deliberations as you choose. But I suggest that you

carefully consider all the evidence bearing upon the questions before you. You may

take all the time that you feel is necessary.

There is no reason to think that another trial would be tried in a better way or that

a more conscientious, impartial or competent jury would be selected to hear it. Any

future jury must be selected in the same manner and from the same source as you. If

37

you should fail to agree on a verdict, the case is left open and must be disposed of at

some later time.

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Please go back now to finish your deliberations in a manner consistent with your

good judgment as reasonable persons.

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