IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES—REPORT NO. 19-03. (2020)

The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Committee) has submitted proposed changes to the standard jury instructions and asks the Court to authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee filed a report on July 24, 2019, proposing amendments to the following existing standard civil jury instructions: 403.7 (Strict Liability); 403.8 (Strict Liability Failure to Warn); 403.15 (Issues on Main Claim); 403.17 (Burden of Proof on Main Claim); 403.18 (Defense Issues); 403.19 (Burden of Proof on Defense Issues); and Model Instruction Number 7. The proposals were published by the Committee in The Florida Bar News. Two comments, from Attorney William Ourand and Attorneys Julie H. Littky-Rubin, Donald R. Fountain, and W. Hampton Keen, were received by the Committee. After the Committee filed its report, the Court published the proposals for comments. No comments were received by the Court.

We authorize the proposed amendments to the instructions herein at issue for publication and use as proposed. We discuss the more significant amendments below.

First, instruction 403.7b is amended to delete “[and]” between the consumer expectations and risk/benefit tests to reflect that a plaintiff may choose to prove a product's defectiveness through the risk/benefit test but is not required to do so pursuant to our decision in Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015). The same amendment is also made to instruction 403.15e.

Instruction 403.7b is further amended to add the following language to the definition of design defect to better track the statutory language of section 768.1257, Florida Statutes (2019):

[In deciding whether (the product) was defective because of a design defect, you shall consider the state-of-the-art of scientific and technical knowledge and other circumstances that existed at the time of (the product's) manufacture, not at the time of the [loss] [injury] [or] [damage].

The Notes on Use for instruction 403.7 are amended as follows. Current Note on Use 1 is revised to direct readers to Aubin regarding when the jury should be instructed on the consumer expectations or risk/benefit test. Current Notes on Use 3 and 4 are deleted and the remaining Notes on Use are renumbered. New Note on Use 5 is added to refer the reader to section 768.1257, Florida Statutes, for the state-of-the-art defense.

Next, pertaining to instructions 403.17 and 403.19, the jury instructions on apportionment of fault are revised insofar as they are currently inconsistent with the instructions on legal causation and comparative fault. The current language in the instructions describes the apportionment of comparative fault as requiring the jury to determine what percentage of the “total negligence” of the parties to the action was “caused” by each of them. The Committee determined, and we agree, that the current comparative fault instructions are confusing because it is unclear how a person or entity can “cause” negligence, fault, or responsibility. We recently approved similar changes to instructions 401.21 (Burden of Proof on Main Claim), 401.23 (Burden of Proof on Defense Issues), 402.13 (Burden of Proof on Main Claim), 402.15 (Burden of Proof on Defense Issues), 409.12 (Burden of Proof on Defense Issues), and 412.8 (Issues on Claim and Burden of Proof). See In re Standard Jury Instructions in Civil Cases—Report No. 17-03, 287 So.3d 401 (Fla. 2018).

As it pertains to instruction 403.18, instruction 403.18b is amended to delete the risk/benefit defense from its Note on Use. Instructions 403.18c (Government Rules Defense) and 403.18d (State-of-the-art Defense) are also deleted. Accordingly, existing instruction 403.18e (Apportionment of Fault) is renumbered as 403.18b. Finally, new instruction 403.18c is added on the learned intermediary defense to failure to warn claims for products supplied through an intermediary. New Note on Use 3 is added to clarify that, for an apportionment of fault, the term “negligence” is appropriate in most cases, but other terms may be appropriate if another type of fault is at issue.

Having considered the Committee's report, we authorize the amended instructions as set forth in the appendix to this opinion for publication and use. New language is indicated by underlining, and deleted language is indicated by struck-through type. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective immediately upon the filing of this opinion.

It is so ordered.

APPENDIX

PER CURIAM.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ., concur.