Danton v. St. Francis
Plaintiff's Attorney:
Adam P. Karp
Defendant's Attorney:
Douglas K. Weigel
Topic:
Damages - boarding of cat
Case File #:
Case No.: 06-2-01172-8 (Wulle)
Jurisdiction:
Washington
Year Case Filed:
2007
Name of the Document:
COURT’S INSTRUCTIONS TO THE JURY
Printible Version
The Honorable John P. Wulle
Trial Date: 8/15/07
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF CLARK
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MARILYN DANTON,
Plaintiff,
vs.
ST. FRANCIS 24 HOUR ANIMAL HOSPITAL, P.C. a Washington professional services corporation (UBI 602-029-072); and DOES 1-10;
Defendants. |
Case No.: 06-2-01172-8 (Wulle)
PLAINTIFF’S PROPOSED JURY INSTRUCTIONS
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RESPECTFULLY SUBMITTED this August 13, 2007.
ANIMAL LAW OFFICES
________________________________
Adam P. Karp, WSBA #28622
Attorney for Plaintiff
The Honorable John P. Wulle
Trial Date: 8/15/07
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF CLARK
|
MARILYN DANTON,
Plaintiff,
vs.
ST. FRANCIS 24 HOUR ANIMAL HOSPITAL, P.C. a Washington professional services corporation (UBI 602-029-072); and DOES 1-10;
Defendants. |
Case No.: 06-2-01172-8 (Wulle)
PLAINTIFF’S PROPOSED JURY INSTRUCTIONS
Trial Date: Wednesday, August 15, 2007
Time: 9:00 a.m.
Judge John P. Wulle
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______________________________________________________________________
COURT’S INSTRUCTIONS TO THE JURY
______________________________________________________________________
DATED THIS August 15, 2007.
_________________________________
JUDGE JOHN P. WULLE
PLAINTIFF’S PROPOSED JURY INSTRUCTIONS
No. Authority Description
1 WPI 1.01 & 1.01.04 Introductory Instruction (with notes)
2 WPI 1.03 Direct and Circumstantial Evidence
3 WPI 1.11 Concluding Instruction – Special Verdict Form
4 WPI 2.10 Expert Testimony
5 WPI 20.01 Issues
6 WPI 21.01 & 21.03 Burden of Proof - Issues
7 Sollenberger Purchase Price Not Dispositive
8 WPI 30.02.01 & 31.06.01 Measure of Damages
& 30.06
9 Rest. (2nd) Torts § 901; Purpose of Tort Law
Spokane Truck & Dray Co.
10 WPI 60.03, Negligence Per Se
WAC 246-933-330(6)
11 Rev Proc. 2006-49 Mileage
Rev Proc 2005-78
IRS Announcement 2005-71
12 WPI 45.24 Special Verdict Form
PLAINTIFFS’ INSTRUCTION NO. 1
This is a civil case brought by plaintiff Marilyn Danton against defendant St. Francis 24-Hour Animal Hospital, P.C. The plaintiff’s lawyer is Adam Karp. Defendant’s lawyer is Douglas Weigel. This case arises out of the disappearance of Plaintiff’s cat, Moochie, from Defendant’s facility on or about September 28, 2005 and the search that ensued. The plaintiff claims damages for the intrinsic value of her cat and search time and expense. Defendant denies liability and damages but has admitted that all its employees who were handling Moochie during his boarding period and at the time he disappeared were acting within the scope of their employment. Accordingly, if you find that an individual employee of Defendant was liable, then that liability will be imputed to the Defendant as the employer.
In determining the damages to be awarded to the plaintiff, should you find Defendant liable, the court has found that the appropriate measure of damages for the death of Moochie is not fair market value. Rather, it will be up to you to determine whether his value is measured by replacement value, intrinsic value, or something in-between. The court has also found that loss of use or companionship, while not independently recoverable, may be considered in determining the measure of damages for the value of Moochie.
It is your duty as a jury to decide the facts in this case based upon the evidence presented to you during this trial. Evidence is a legal term. Evidence includes such things as testimony of witnesses, documents, or other physical objects.
One of my duties as judge is to decide whether or not evidence should be admitted during this trial. What this means is that I must decide whether or not you should consider evidence offered by the parties. For example, if a party offers a photograph as an exhibit, I will decide whether it is admissible. Do not be concerned about the reasons for my rulings. You must not consider or discuss any evidence that I do not admit or that I tell you to disregard.
The evidence in this case may include testimony of witnesses or actual physical objects, such as papers, photographs, or other exhibits. Any exhibits admitted into evidence will go with you to the jury room when you begin your deliberations. When witnesses testify before you, please listen very carefully. You will need to remember testimony during your deliberations because testimony will rarely, if ever, be repeated for you.
The lawyers' remarks, statements, and arguments are intended to help you understand the evidence and apply the law. Although the lawyers will frequently make reference to the evidence and the law, their statements are not evidence or the law. The evidence is the testimony and the exhibits. The law is the law as I give it to you. You must disregard anything the lawyers say that is at odds with the evidence or the law as I give it to you.
Our state constitution prohibits a trial judge from making a comment on the evidence. For example, it would be improper for me to express my personal opinion about the value of a particular witness's testimony. Although I will not intentionally do so, if it appears to you that I have indicated my personal opinion concerning any evidence, you must disregard that opinion entirely.
You may hear objections made by the lawyers during trial. Each party has the right to object to questions asked by another lawyer, and may have a duty to do so. These objections should not influence you. Do not make any assumptions or draw any conclusions based on a lawyer's objections.
In deciding this case, you will be asked to apply a concept called "burden of proof." The phrase "burden of proof" may be unfamiliar to you. Burden of proof refers to the measure or amount of proof required to prove a fact. The burden of proof in this case is proof by a preponderance of the evidence. Proof by a preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that a proposition is more probably true than not true.
During your deliberations, you must apply the law to the facts that you find to be true. It is your duty to accept the law as I give it to you, regardless of what you personally believe the law is or what you think it ought to be. You are to apply the law you receive from me to the facts and in this way decide the case.
In this courtroom we record all proceedings with a special audio recording system. All of the proceedings are preserved to create a "court record."
At this time, I would like to introduce you to the court reporter, [Mr.] [Ms.] ______________, who will record everything that is said or done in this courtroom during this trial. [He] [She] is responsible for recording these proceedings accurately. What [he] [she] transcribes is referred to as the "record."
I would [also] like to introduce you to the court clerk, [Mr.] [Ms.] ______________, and the bailiff, [Mr.] [Ms.] ______________. The job of the court clerk is to keep track of all documents and exhibits and to make a record of rulings made during the trial. The bailiff keeps the trial running smoothly. You will be in the care of the bailiff throughout this trial. [Mr.] [Ms.] ______________ will help you with any problems you may have related to jury service. Please follow any instructions that [he] [she] gives you.
Now I will explain the procedure to be followed during the trial.
First: The lawyers will have an opportunity to make opening statements outlining the testimony of witnesses and other evidence that they expect to be presented during trial.
Next: The plaintiff will present the testimony of witnesses or other evidence to you. When the plaintiff has finished, the defendant may present the testimony of witnesses or other evidence. Each witness may be cross-examined by the other side.
Next: When all of the evidence has been presented to you, I will tell you what law applies to this case. The law that applies will be set out in written instructions, which I will read out loud. You will have the written instructions with you in the jury room during your deliberations.
Next: The lawyers will make closing arguments.
Finally: You will be taken to the jury room by the bailiff where you will select a presiding juror. The presiding juror will preside over your discussions of the case, which are called deliberations. You will then deliberate in order to reach a decision, which is called a "verdict." Until you are in the jury room for those deliberations, you must not discuss the case with the other jurors or with anyone else, or remain within hearing of anyone discussing it.
Throughout this trial, you must come and go directly from the jury room. Do not remain in the hall or courtroom, as witnesses and parties may not recognize you as a juror, and you may accidentally overhear some discussion about this case. I have instructed the lawyers, parties, and witnesses not to talk to you during trial.
It is essential to a fair trial that everything you learn about this case comes to you in this courtroom, and only in this courtroom. You must not allow yourself to be exposed to any outside information about this case. Do not permit anyone to discuss or comment about it in your presence. You must keep your mind free of outside influences so that your decision will be based entirely on the evidence presented during the trial and on my instructions to you about the law.
Until you are dismissed at the end of this trial, you must avoid outside sources such as newspapers, magazines, the Internet, or radio or television broadcasts which may discuss this case or issues involved in this trial. By giving this instruction I do not mean to suggest that this particular case is newsworthy; I give this instruction in every case.
During the trial, do not try to determine on your own what the law is. Do not seek out any evidence on your own. Do not consult any reference materials, such as dictionaries and the like. Do not inspect the scene of any event involved in this case. If your ordinary travel will result in passing or seeing the location of any event involved in this case, do not stop or try to investigate. You must keep your mind clear of anything that is not presented to you in this courtroom.
Throughout the trial, you must maintain an open mind. You must not form any firm and fixed opinion about any issue in the case until the entire case has been submitted to you for deliberation.
You will be allowed to take notes during this trial. I am not instructing you to take notes, nor am I encouraging you to do so. Taking notes may interfere with your ability to listen and observe. If you choose to take notes, I must remind you to listen carefully to all testimony and to carefully observe all witnesses.
At an appropriate time, the bailiff will provide a note pad and a pen or pencil to each of you. Your juror number will be on the front page of the note pad. You must take notes on this pad only, not on any other paper. You must not take your note pad from the courtroom or the jury room for any reason. When you recess during the trial, you may review your own notes but may not share or discuss them with other jurors until you begin deliberating. At the end of the day, the note pads must be left with the bailiff and destroyed immediately after rendering the verdict. While you are away from the courtroom or the jury room, no one else will read your notes.
You must not discuss your notes with anyone or show your notes to anyone until you begin deliberating on your verdict. This includes other jurors. During deliberation, you may discuss your notes with the other jurors or show your notes to them.
You are not to assume that your notes are necessarily more accurate than your memory. I am allowing you to take notes to assist you in remembering clearly, not to substitute for your memory. You are also not to assume that your notes are more accurate than the memories or notes of the other jurors.
After you have reached a verdict, your notes will be collected and destroyed by the bailiff. No one will be allowed to read them.
As jurors, you are officers of this court. As such, you must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, bias, or personal preference. To assure that all parties receive a fair trial, you must act impartially with an earnest desire to reach a just and proper verdict.
To accomplish a fair trial takes work, commitment, and cooperation. A fair trial is possible only with a serious and continuous effort by each one of us, working together.
Thank you for your willingness to serve this court and our system of justice.
WPI 1.01 & WPI 1.01.04
Advance Oral Instruction--Beginning of Proceedings & Jurors Taking Notes
[Modified based on CRLJ 38(h)]
PLAINTIFF’S INSTRUCTION NO. 2
The evidence that has been presented to you may be either direct or circumstantial. The term “direct evidence” refers to evidence that is given by a witness who has directly perceived something at issue in this case. The term “circumstantial evidence” refers to evidence from which, based on your common sense and experience, you may reasonably infer something that is at issue in this case.
The law does not distinguish between direct and circumstances evidence in terms of their weight or value in finding the facts in this case. One is not necessarily more or less valuable than the other.
Direct and Circumstantial Evidence
PLAINTIFF’S INSTRUCTION NO. 3
Upon retiring to the jury room for your deliberations, first select a presiding juror. The presiding juror shall see that your discussion is sensible and orderly, that you fully and fairly discuss the issues submitted to you, and that each of you has an opportunity to be heard and to participate in the deliberations on each question before the jury.
You will be given the exhibits admitted in evidence and these instructions. You will also be given a special verdict form that consists of several questions for you to answer. You must answer the questions in the order in which they are written, and according to the directions on the form. It is important that you read all the questions before you begin answering, and that you follow the directions exactly. Your answer to some questions will determine whether you are to answer all, some, or none of the remaining questions.
During your deliberations, you may discuss any notes that you have taken during the trial, if you wish. You have been allowed to take notes to assist you in remembering clearly, not to substitute for your memory or the memories or notes of other jurors. However, do not assume that your notes are more or less accurate than your memory.
You will need to rely on your notes and memory as to the testimony presented in this case. Testimony will rarely, if ever, be repeated for you during your deliberations.
If you need to ask the court a question that you have been unable to answer among yourselves after reviewing the evidence and instructions, write the question simply and clearly. The presiding juror should sign and date the question and give it to the judicial assistant. The court will confer with counsel to determine what answer, if any, can be given.
In your question, do not indicate how your deliberations are proceeding. Do not state how the jurors have voted on any particular question, issue, or claim, nor in any other way express your opinions about the case.
In order to answer any question, five jurors must agree upon the answer. It is not necessary that the jurors who agree on the answer be the same jurors who agreed on the answer to any other question, so long as five jurors agree to each answer.
When you have finished answering the questions according to the directions on the verdict form, the presiding juror must sign the form, whether or not the presiding juror agrees with the verdict. The presiding juror will then tell the judicial assistant that the jury has reached a verdict, and the judicial assistant will bring you back into court where your verdict will be announced.
PLAINTIFF’S INSTRUCTION NO. 4
A witness who has special training, education or experience may be allowed to express an opinion in addition to giving testimony as to facts.
You are not, however, required to accept his or her opinion. To determine the credibility and weight to be given to this type of evidence, you may consider, among other things, the education, training, experience, knowledge and ability of that witness. You may also consider the reasons given for the opinion and the sources of his or her information, as well as considering the factors already given you for evaluating the testimony of any other witness.
Expert Testimony
PLAINTIFF’S INSTRUCTION NO. 5
Negligence:
(1) The plaintiff claims that the defendants were negligent in the following respect:
· Defendants failed to exercise reasonable care in properly confining and supervising Moochie to prevent his escape;
The plaintiff claims that defendants’ negligence was a proximate cause of injuries and damage to plaintiff. Defendant denies this claim.
Breach of Bailment Contract:
(2) Plaintiff claims that the defendant breached its bailment contract with her in the following respect:
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