l

IN, THE SUPRE:M:E COURT OF FLORIDA

In the matter of Standard Jury Committee Report Number 09-07 Instructi(}ns (CiVil), '

,IntentionalTort As An Exception to Exclusive ~eIriedy OfWorkers' ' Compe~sation

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REPORT (NO. 09-0J}OF THE , SUPREMECOtJRt,cbMMITTEEON:STANDARD

JURy INSTRUCTIONS (C:rVIL)

Honorable Charles Kahn, Jr. ' 'TracyRafflesGunn, Florida Bar Number 243051' 'FloridaBarNUJ.ilber 984371 Subcommittee ChaIT, " Conwrittee Chair, IntentionalTort Exception to Workers', "SupremeCourt C6:mrnittee on

"Col11pensatibn Immunity Subcommittee Standard Jufy Iristructions (Civil) FITst District Court ofAppeal GUlll1App'ellate PraCtice , 301 S.Martin Luther King Jr Blvd 777 S. Harbour IslandBlvd. Suite 770 Tallahassee,Florida 32399-1850 Tampa, ~lorida 33602

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(850}487-1000,ext.170 (813) ,254-3183 " ,;' '(850) 488~7989 (fax) (813) ~54-3258(fax)

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JosephH. Lang, JI. Honorable James M. Barton, II ,Florida Bar Number 059404 Florida Bar Number 189239 Subcommittee ChaIT, Committee Vice-Chair, Supreme CourtrFiling Subcommittee 'Sup~eme Court Committee on

. Carlton Fields P.A. Standard Jury Instructions (Civil) 4221 W. Boy Scout Blvd. Hillsborough County· Courthouse .Ari:O.ex Tampa, Florida 33607 800 East Twiggs, Room 512,

, (813) 229-4253 Tampa, Florida 33q02 (813) 229-4133 (fax) (813) 272-6994

(813) 276-2725 (fax)

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To the ChiefJustice and Justices of the SupreineCourt of Florida: "

The Committee on Standard Jury Instructions in Civil Cases recorrimends . 1 . . .

this Court approve for publication and use a: new Florida Stan"dard Jury Instruction

for Intentionai Tort Exception To Exclusive RemedyOJWorkers' Compensation, as . . . . .'

set forth below. This Report is filed pursuant to article V, section 2(a), ofthe

Florida Constitution.

. { . .

1. INTRODUCTION AND PROCEDURAL NOTE . .

the Committee has submitted simultaneouslyherewith a proposal fqr

reorganization of the Standard Jury Instructions in Civil Cases, which lnchides a . . -' .

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r~numbering. of the instructions. The ''book reorganization" proposal was

separately filed as this Committee's report number 09-01.

,This report, number 09-07,. proposes a new instruction for use ·in eases' . .

involving the intentional tort exception to worker.'s compensation immuhity; For \

. ease ofreference, this reportuses the new proposed numbering.system.

Additionally, the appendix to report number 09-01 includes this proposed

instruction as it would appear in the reorganized book if adopted by the Court.

.The instruction propqsed herem is a stand-alone instruction that can be

adoptedppor to a ruling on the book reorgimization. Should this Court elect to

rule 011 this proposal first, the Committee wou:ld simply use its current numbering

system for the new instruction.

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ll. PROPOSED INSTRUCTION

, The Committee believes that there is a need fOf a standard instruction to be. ., . ,

used incases where the plaintiff claims that the int~ntional tort exception to

·1 workers' compensation immunity applies to allow a tort claim against his or her

employer.

Prior to 2003, this exception was based on case law. See Turner v. peR,: .

The Committee initially drafted both a common law instruction for use in

.cases involving pre-2003 accidents and a statutory instruction for use in cases

involving post-2003 accident~.The Committee then dete~edthat few pre-2003

cases are still being tried. Accordingly, the proposed instruction is for use in cases

involving accidents on or after October 1,2003, and is based on section

440.11(1)(b), Florida Statutes.. Th~ Committee proposal includes a No~eOIi Use

explaining this.

The proposed instruction is as follows: . r

INTENTIONAL TORT EXCEPTION TO EXCLUSIVE REMEDY PROYISION' OF WORKERS' CQ:MPENSATION .LAW

The issue for your determination on the cla!m of (claimant) against (defendant) is whether:

(1) .. (defendant) deliberately intended to injure (claimant), or

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(2) whether (defendant)

(a) engaged in conduct that (defenqant)' mew, based upon [prior similar accidents] or [explicit warnings, specifically identifying a mown dangerJ', was virtUally certain to result in death or injury to ' (claimant) and,

'(b)(claim~t)' was not aware' of the risk because the danger was not apparent; and "\

(c) (defendant) deliberately concealed or misrepresented the danger so as to prevent (claimant) from exercising an mformed judgment;

and, if so, whether that conduct was a legal cause of [loss], [inJury][or][damage] to (claimant).

III. APPENDICES'

The following appendices ¥e attached to this Report: , ,

Appendix A: Proposed instruction , Appendix B: May 1, 2008, Flo~da Bar News published notice of

proposed mstruction AppendixC: Comments received by the Committee in response to

publibation' , " AppendixD: Relevant excerpts vom the Committee's minutes Appendix. E: Committee materials relevant to this proposal

IV. DISSENTING VIEWS FROMTHE COMMITTEE

There are no dissenting views from the Committee. The ColIlJ])jttee

unaniJ?1ous1y recommends that this Court approve the instruction for publication

and use.

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V.CONmdENTSRECEfVED

.The proposed new instruction was puplished for comment, and tWo

coIiJrnents were received. One corriment recommended adoption and required no

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\ .action_by th~ Committee. The other was in the fon.1:l of a ·question about what the )

iristruction means. The subcommittee believed that the commentator correctly . . I

understood the instruction and·so reported to the Committee.

VI. CONCLUSION

WHEREFORE, the Co111l1littee respectfully requests that the Court approve \

the· instruction set forth above and in Appendix A for publication and u·se as a new

standard jury instruction for civil cases.

\ (signature block on next page)

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Honorable Char1~s Kahn, 1r. Florida Bar Number 243051 Subcommittee Chair, IntentiorlalfortException to Workers' (;ompensation InnnuniiYSubcoillmittee

.FirstDistrictCourt ofAppeal . ." 301"S:Martin Luther King "Ir l3,lvd Tall:ili!:1ssee, Florida 32399~ 18~O (850) A87~1000, ext.170 (850) 4$8~7~89 (fax)

"JosephH~ L~g, Jr. Florida Bar NUmber 059404' . Subcommittee Chair,

. , :Supreme Court Filing Subcommittee "Carlton Fields P.A. " 4221 W. Boy Scout Blvd.. " Tal11pa,Florid~ 33607 (813) 229-4253 (813) 229-4133 (fax)

Respectfully submitted,

Tracy Raffld; Guim. .,

FloridaBar Number 984371 Committee Chair, Supreme.Court Committee on· StandardJury Iristructjons (Civil) Gunn Appellate Practice 777 S. Harbour.TS1and Blvd. Suite 770 Tampa, Florida 33602 (813)254-3183 (813) 254-3258(fax)

Honorable James M. Barton, II Florida Bar Number 189239 .' Committee Vice-Chair, Supreme Court Committee on Standard Jury Instructions (Civil) llillsborough County Courthouse Annex 8,00 East Twiggs, Room 512 Tampa, Florida 33602 (813) 272-6994

. (813) 276-2725 (fax)

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. CERTIFICATE OF COMPLIANCE . ,..

The undersigned. hereby' certifies that this report complies with I the font . . . . . . .

standards set forth in Florida Rule of Appella~e Procedure 9.210 by using Times'

New Roman 14-point font.

__~__By:_--;rC~~~~

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TAB A

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APPENDIX A

The issue for your determination, on the' ~laiin of (claiInant) agaip~t I, (defendant) is whether:'\ .

,(l) (defendant) deliBerately ihtendedtb itij11fe (claimant), ot

(~) whether' (defendant)

(a) ,engaged' in conduct that (~efendant) Imew,'hasectupoh .[prio:t~in1ilar acCidettts] 'or .[explicit warnings ,speci;tidaI1Y. identifying a knoWn danger], w~s virtually certain tb result in death drinjury to (clairhant) and,

(b)(c1aimant) was not aware of the risk becaus'e the danger was not apparent; ahd ' '.' . '.

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(c) (defendant) deliberately concealed of inisrepres'entedthe d~ri.g~r so as to prevent (claimaIlt) from· exercising arrmfoimedjudgmeht;

and, if so" whether, that conduct was a legal cause of '\ [loss] [injury][or](damage] to (claimant).

NotE ON USE FoIt414:5 .

This instruction applies to causes of action accruing on br '

after October 1, ' ; 2003. See F.S. 440.11 (2003). (codifying intentional tort exception to workers. 'compensation im11lUhity and modIfying standard. announced in

-, ./ , ,I . .' , Turner v. PCR' Inc., 754 So.2d 683 (Fla. 2000)); see 'also Travelers

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Indem.nity Co. v. PCR, Inc., 889 So~2d I 779, n.5 (Fla. 2004) (discussing legislature.s codIfication of intentional tort exception arid l1ew,heightened virtual certainty standard). , '\

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TABB

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IS-The FloridaBar NewslMay I, 2008 ovcroll reorganization ofilie book nnd they follow the format used in the proposed reorgaaized book (sec Notice published on April 15). The tnblc of contents for this section ~PPI?MS bcJow to Hlustrnlc how this iostruction fits in!O the new proposed formnl Comments nrc iDVi~d. Pr~vidc comrn:n~Notices 00. inst:ruction 4145 scpllmt.cly from comments on othCt' aspects oftba proposed book reorgllDlzn­

Pr~posed civil jUry instructions for medical malpractice insurer's bad faith failure to settle

The ·Supreme Court Committee on StnndnrdJury Instructions in Civil Cascs proposcs a new instruc-D don 4045 for B. medical mnlproctice. insurer's bad faith failure to settle. This instruction is proposed as

pnrt "fthe overnll reorganization of the book. The new instruc;tion is.numbered in nccordance witb the reorganized boo~ and shows where it would fit within the book. This instruction is based on section 766.1185(2) FloridaStntutes. Comments nrc invited. Provide comments on this instruction separatelyfromcOmm~ts· On other nspects ofthe bookreorgnnizntion.AftC"reviewinc all comm70ts. the committee may submit itS proposal to the Florida Supreme Court. Send all comments conccmmg thcse proposed changes'tO .True}' Ruffi.cs GUM, Committee ChiaI', Fowler White Boggs Bank:r, 501 East Kennedy Blvd.-Suite 1700, Tampa 33602 or e~mnil comments to ber at tgunn@fowlerwhlte.com or fax them to berat(813) 229-8313. Cmments must be recetved by May 30 to ensure that they nre considered by the committeeo . .

4045 MEDICAL MALPRACTICE INSURER'S BAD FAITH FAILURE TO SElTLE In dctcrmlnlng whether (Defeadnnt) aeled In bad faith, you shall consider the roltowlng factors

or drci.iinst.o."nccs;· . . [(D~fetidantts) willingncss to ncgotlnte with (Claimant) in onUclpntlon afsettrementJ, [the'proprlety of(Defendnnt's} methods o(lnvcstigaUng nnd cvnluating the claim or(Claim­

nnt)).. ,.. : [wlll:~th·er.(Defcndnnt) timely inrormcd (Insured) or an orrer to settle within the limits or cover­

ngc, the·rlgbt to r,ctolnpersooal e,nuosel, nod tbe rbk ofUUgnUnnl, . [wh·ether.'OoSured) denlCllllabll1ty or requested thot tbe case be defended after (Defendant)

·fuIlY.,ndVfscd (lnsurco) DS fa the rncts nnd risks}, .

tiOD. After reviewing all comments, the committee may submit· its proposnl to the ~uprcmc Court. Send aU comments. concerning these proposed changes ,to Tracy Rnffles Guell, Comu:ittcc ~hntr, FowlerWbitc Boggs Banker, 501 Bast Kennedy Blvd. SUllc 1700. Tnmpn 33602 or c-mnd comments Jo tgunh@fowlcrwbit.c.com or fllX them to bel' at (813) 229-8313. Comments must be received by May 30 to ensure that they nrc considered by the committee.

414 INTENTIONALTORTASAN EXCEPTION TO EXCLUSIVEREMEDVOFWORK­

E~;~~~~~~~J:~N ) 414.1·Summnry or Claims 4]4.3 Clear.nnd Convintlng Evidence. li 414.4 Legal Cause 414.5 ISsues on Claim 414.6 Burden oCProor

414.5 ISSUES ON CLAIM . The issues you must decide on (Claimant's) claim ngnlnst (Dcrcndnnt) nrc whether: 1. (Defendant) deliberately Intended to Injure (Clnima~t), orZ. whether (Defendnnt) .

. (n) engaged In conduct thnt {Defendant) knew, .bnsc,d upo~ {prior similar accidents} (orl (cxpllcltwnrnlngsspcclficnlly IdenUfylng n known dODger}, was vIrtually ~r1nln to result In death Dr Injury to (Claimant); nnd

(b) (Claimant) wns DOt aware ofthc risk been usc the danger was n.o~ apparent; Bod . "(e) (Dcfc~dnnt) dctlbcrsdcly concealed or mlsrcprcsc~t~d t~c dn~gc~ 50'1lS to;prcvcnt

(Claimant) from e~crclslng Dl1lnro~mcd judgment; . and; Irso,.wb'cfber that conduct was D legal couse orIloss} UnjurYl1or} Idnmage] to'(Clatm~t).

sell\;~~1hte:c(:;;:~:i',£:mposed ooy condltlo~, ?lher tbnn lhe tender of the poUcy UmUs, on IheProposed .changes and reOrgani~ti,!n.ofci"i1jury . (wboibor (CI.iniant) provided relevnnt InCormation to (DeCeodent) nn a tlm,ly hll!lsj, instructions for cases for pr.ofessiona. negligence[~het.~.er:n~d,wheD,otberdefendan·ts In the cosesettled or were: dismissed rrom the: CJlSCl , ·Th.'c Sup·i-c·me Court Commiuee on Stnndard Jut)' Ins~ctions in Givil CnS~ P~pOSC$-cbnngcs",·nnd

.. ·[Whe~ber:fbe.r~;weremu~Uple claimants sc}ldng,In tbc aggregate, eompensnUon In excessDr, • • fi Ii' I II A fth 11 poUcynmlts.rr~~ (Insured) or Croni (Defendant)], reorg~izntion of the jury instructions for CIVIl cnses, or pro C5S10na neg gcncc:. 5 p~rt.o ,e OVera

. [whetber. mlsrep'resented material rncts to (Defcndant) or mnde material omissions rcorgnnizlitie:n,ofjury instructions'for civil cnscs, the committee has·g~uped together aU professional·n~glige9c.c·instructions in. a single· section, numbered 402.' Theso. ~orgnnizcd.,!nstructioi1s:,r.o.lIow the

or~.[.:~J... (li.it...'suc... b.· .... iooal.. factors as the court may determine to bc relevant)]. snme Jormot ,as, is. used in' the' n~w reorganized. book (sec Notice pu~1ished·on April -.1.5),' so ~~~ ~e . I .. .• ," . jurY is firS~ infonned of the basic definitions that they must ~pplYt follo,:"ed by th~. issues that they must

JuryJnStnictions· for intentional torts as an exception . decIde.,'ln ndditlon, some or the prnfessInn.1 negligence instructions hove heen substnnti,lIy rewritten ·· th·":·o".··· ·'·1····· .. · ..... d f k J e 5 t- and new provIsions have been ndded to refiectnew stntutorynnd/crcase Iaw. Finally. as with the rcstoft ~~•... ,l!.;',~~~ 1;I~lve .reme y 0 wor ers comp n a Ion the renrg.nized book, the CommIttee elso bss substituted "pinin Engllsh"l.ngu.ge wherever possIble

·:·:The,'Suilfcmc CO.lU'!- Committee on StnndardJwy Instructioas in Civil Cases proposes new instroc- . withoutalteri~g th.esubstnntivcmcnni~gofthe instructions. The table ofcontents for the neW, reorganized tions 'fo:rintealic.O:iip.o~,nS,an' exception.to the exclusive remedy ofworkcrs' compensntioo. InstruC'- ,,'::'profcs~ioniil negligence,instriJ9tions nppcn~ below•. Due to size limitntions, t~e insJ:n.lc~ons thems,~.lves

: tion 414.5'is bllSCd o·D·sectfo[1'440~11~Floridn Statutes. These instructions nrc propos~d ns pnrt~fth~'~i~Y;are noUncluded in this pubHention but nrcllvnitable to be viewed ntwwW.floridabnr.org~Y clicking on •.• ," '" , .'•• ,. •• ,,,. ,.... 0' •••• ' .••• ,." ., •• ~.' .. ... • ". • . . •. ..

U's a delicate dilemma. You want to discuss the many benefits of charitable giving with your clientS, but you want to avoid recommending specific charitable causes or organizations.

Fortunately, there's a simple solution. It's your local community foundation. A community foundation is a single. trusted vchicle your clients can use to address the issues they care about most, while gaining maximum tax benefit under state and federal law. We offer a variety ofgiving options­including the ability to set up a charitable fund in you.t client's name. It's just one way we can help you help your clients achieve their charitable goals.

To find your local community foundation and to learn more, visit www.communityfoundationsfl.org.

COMMUNITY

www.communityfoundatlonsfl.org

in pmnenhip with r~ JlIhn S. lId limn L.

~,-- Knight Foundation

. ,~~~~i~:.ti~~::ri~~::-rr:~'~~~~~~~~~;i~~b~\i

·cornmen~,"t~e ;c()~~i;ti:'ejnay· sUbm.it its,prop~s~1 ~;~o'the FlondnSuprcme C::.our;· Please PFv1de com­: ments on these ch~nge5. ~epnrntety 'fro~cornmcnts . .:on·other aspects of the book reorganizJl~on.:Send all comments ta TrncY,l!-afflcS Gunn.. Committee Chair, ~.Fowlcr White Boggs ~n~r PA,.SOI ~ Kennedy ·'.B~vd. Suite' 17DOj'Tnmpn·33602'or c-~ail:i:omments ", to her tit tgunri@fowlenY~,ite.com or,fnx them 1,? (813)~'P?-8313.·Comt11etiis must be reC,eiv'cd by Mny 30 to ensure that they, arc'considered by th.e committee•

.(4~202.1 Int;:~~~~~~~DI Negllge-nce ' ,'. 40Z,2 . .. ..

40Z.3 40Z.4 4025 OUi~r P~o~essloriBINegligence 402.6 LegalCnuse' I •

402.7 Legal Cause (Treatment Without In· ·Tormed Cons~nt).'. .

401.8 ' Prtem~~ve Ch'a~gC5 .: .. 4D2~9 Prcllmhiary Issues ;•.VJcariDus LlablIlty

:: .• ~~~:~~ ~~~~,~~f~~trif~~~':llminary lssucs , 402.12 Issu·eso'n Clnlm· orAttor,neyMntprac.

: tJc4eo~1~lng ~:~o:nCJ;~;~}g:~lMDln Chilm "401.14 DCreDie~ssucs·" ..

401.15 Burden orproof on Defense Issues .402.16 Emergency'Medlcal Tre~'rnent Claims

Proposed all'u!ndments· to jUI-y i~s.~u.cti.ons..for punitive damages 'c~ses

The Supreme Court Committee on,Stnndard Jury Instructions In Civil Cases:proposes chaagcs and reorganization'oftbcjury instructions for civil cases for punitive damages:

As part of the overall reorganization of jury instructions far civil ,·cases, the Committee has re­organized tho punitive damagemstructicns. New material hIlS been added in the form of,tmnsitional language nod "plain English" terms. Tbese~bargcs

nrc not intended to.allcrthe.substnntivc m.eaniog of the instructions but only to mllke them morc un­derstandable. In addition, the proposed insttu.ctions clarify the distinction between a clnim of direct liabflity as opposed to vicarious lIobility :againsl an employer. Anew section hIlS been added to address tbe fnctulll scenario where punitive dnmages nre being,sought against nn employer for the a~ts ofits employee who is either not n party or is not being sued for punitive damages.

The instructions forcnuScs ofactioa nrisingprior to October 1. 1999 bave been movea to a new Ap~ pendixC.

Thcse proposed instructions,arepart ofllie OVer­ntl reorganization of the civil jury lOstructions nod arc numbered in accordance with the reorganized book to sbow where it would fit within the book.

Due to size limitations; the inslIUctions arc 0.01 included in this publication but"nrc available to be viewed at www.FlciridaBar.org by clicking. on PliblicaUdTts, then'click Tlte Florida Bar CLE Publications. Comments nrc invited. 'After review­ing nIl comments,. the commit1cc, may submit its proposal to the Florida Supreme Court. Provide comments on the:se cbnnges separately from com" ments on other aspects of the book reorgn~izntiol1.

Send all comments to Tracy Ruffles Gune, Com­mittee Cbinr. Fowler White Boggs Banker. Sal Enst Kennedy Blvd. Suite. 1700. Tnmpa 33602 or e-mail your comments to ber at tgunn@fowlerwhite.com or fwe. them to ber at (813) 229~8313. COmqleats must be received by May 30 to ensure that they are cODsiden:d by the committee.

TABC

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FLORIDA JUSTICE ASSOCIATION

i 18 South Monroe St Tallahassee, FL 32301

May 30, 2008

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.I CommentS ofFlofidaJustlce ASSocHltionoD:PtoTiosed R.e'visl()llsfo Standard. Jury instt'ucnons

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The Florida Justice Association, ,following review by ana.dhoc cO:futilittee'of , I. . ' I

) ,trial lawyers experienced in the' field of trail pr~ctice and board~ertifieda.ppeliat~ , ' ( ,

specia.lists; and approval by the 'FiA EX<i'cutive Cotrrrniftee, comments as follows

J concerrringthe Proposed Revisions to Standard JuryfustructiotlS.

'Ptoposed lristrlittidfi4'01.3"":"7"Greater Weight of the EViderrce I r. "

"The proposed instruCtion re-defining greater weight ofthe evidence should hot

,be·recom.niended for approval b~cause it substantively changes the parti~'es' burden

ofptoof.

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Proposed instruction 401.3, Greater Weight ofthe Evidence, is identical to'the

existing standardjury instruction on greater weight ofthe evidence, Florida Standard

JUry Instruction (Civil) 3~9, except for the addition ofthi~ sentence:

To prove a claim [or defense] by the greater weight ofthe evidence,the party must convince you,.qy the evidence presented in court, that what [he] [she] [it] istryirtg to prove is probably true. ,

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This revision is a substantive change to the defInition ofgreater weight ofthe

evidence because it introduces a new element that is not present in the current

instrUction, specifIcally, a probability that the matter to be proven is true. FIA objects

to this revision because it is a substantive change in the instruction that can lead to

anomalous and unfair results.

The current instruction on greater weight ofthe evidence does hot require,the'

juryto~etertninewhether the claim or defense to be proven is probablyttue. l?stead,

it asks the jury to determine whether the evidence favoring the claim or defen.se is , .

more persuasive 'and convincing thah the evidence opposing it. Cutrentinsttuction

3.9 re'ads: "'Greater weight of the evidence' means the more persuasive and

convincing force and effect of the entire evidence in the case." Thus, the current f'

iristruction directs the jury to perform a balancing test and ciedde which side's

evidence is more persuasive and convincing than the evidence on the· other side. It \

does not ask the jury to determine whether it believes the claim or defense to be

.­proven is probably true.

This distinction will affect the outcome in cases in which the jury is not

convincedthat eitherparty's case is probably true. After considering all the evidence,

jury may decide that the truth is not quite what the plaintiff claims it to be and not

quite what the defense claims it to be either. The jury may beHeve that the truth is

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some third version of~vents that does not match what either party presented in court, l ..

or it may find that it simply cannot de,termine what· happened with sufficientJ .

confidence to say that it is probably true. Iri that situation, however, the jury almost . . . \

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always be able to determine that the evidence favoring one side is ~or~ persuasive

and convincing thantheevidence favoring the other. Under the currentinstru6tion,

that is all that is necessary. .. ".

If the party that hasltheburden ofproofputs forth the more convincing case, . ".. (. .

then it would prevail under the current instruction, but it ·would,-hot prevail under

proposed rule 401.3 ifth~ jury is no~ convinded that its claim or defense is probably

true. This would lead to an anomalous result, becalise the partY who put forth the

mm;t convincing case w()uldloS~, having failedto convince the jury that its ,Claim or ~ . l

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defense is probably true, andrthe party who put forth the least convincing case would

WIn. .~

To state this hypothetical in terms of probability percentages, assume a jury ~ .

'decide,s there is a 45% probability that theplaintiff's version of ev~nts is true and a

35% likelihood that the defendant's ve~sion ofevents is true. lfthe plaintiffhas the I

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burden ofproof, the plaintiffwould prevail under the current instruction because the',

jury has found the plaintiff's case mor~ convincing than the defendant's, but under

I

the proposed new instruction, the defendant would prevail because the plaintiff has

,

not convince~ the jury that there is a 50% or greater probability that the plaintiff's

version is true. Under the proposed new mstrtlction, the defendant would prevail

even though its case was the least convincing and least persuasive. \

The SecondDistrict Court ofAppeal's discussion ofthe greater-weight-of4he­

evidence standard in In re Estate ofBrackett,Wakejield v. Brackett, 109 So. 2d 375 ,

(Fla. 2d DCA 1959) supports the balancing approach\embodied' in thectitrent

instruction, instruction 3.9. The court wrote:

Weight of the evidence" has been held to be equivalent to "preponderance ofthe evidence." It simplymeans that proofon one side of a cause outweighs the proof on the other side.

As was stated in the case of Waldron v. New York Cent. Ry. Co., 1922, 106 Ohio St. 371, 140N.B. 161, 163, as follows:

"The terms 'weight of evidence' ~nd 'sufficient evidence' have long beenregarded as. synonymous tertrls and used interchangeably."

"Weight ofevidence" does notnecessarilymean a.greaternul1lber of witnesses, since quality of testimony 'and credibility must also be considered. Bjor#und v. Continental Casualty Co., 1931,161 Wash.. 340,297 P. 155, 160.

"Weight of evidence" is. not a question of mathematics but depends on its effect in inducing belief. Chenery v. Russell, 1933, 132 Me. 130, 167 A. 857, 858.

,

The expression "welght of evidence" signifies that the proof on one side is greater than on the other, and itt any proceedings before a trial judge, probative value ofthe testimony ofeach witness, and not the quantity or amount of evidence, determines its weight.

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,109 So. 2d 378.

Proposed instruction 401.3 confusingly narrows the gap between the greater I I '

weight of the evidence standard and the "clear and convincing evidence" standard. . .

To satisfy the greater weight ofthe evidence standard under 401.3, the paftY bearing

the burden of proof "inust convilice" the jury to believe the fact in question.

Reasonable jurors m.ay fInd that standard to be indistinguishable from the ,standard

for cleat and convincirigevidence that the proof"produces a fmn beliefor conviction' l I

. \ ,without hesitation about the matter in issue." The "must convince" standlird is too

high.

For these reasons, we object to the second sentence in proposed instnlction

401.3, which adds a new ,element to the defmition of greater weight of the evidence

requiting the jury to detetrrrine if the claim or defense is probably true. We reque'st \

that this sentence be deleted, recognizing that this would leave the current instruction

unchanged.

Therefore; the'instruction should'not be recotnmended for approval by the

Supreme Court of Florida.

Proposed Instruction 402.4c-Pi-ofessional Negligence

The Florida Justice Association submits that the proposed instruction 402.4c.

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shouldbe modifiedbecause the proposedinstructioninaccuratelyreflects Florida law ,

- concerning the effect ofthe discovery ofthe presence ofa foreign object in aperson' s

body.

Florida Statute section 766.102(3) establishes that "the discovery of the

.presence ofa foreign body, such as sponge, c1~111P, forceps, surgical needle, or other ..

'paraphernalia cortttnonlyused in s1i1'gical;exa~ation,or diagliostic pro'cedures shall

be priJza facie evidence of negligence on the part of the healthcare provider."

Proposed. instruction 402.4c.omits any reference-either expressly or by

defmltion-of the concept of ''prima facie." instead, that instruction states': "The

presence of an object in. (claimant's) body, such as a ,{name of foreign hody} is

. evidence of negligence on the part of (defendant) and'may be considered by you;

together withthe other facts and circumstances, in determining whether slich person I

was negligent." The omission from the ins1:tiLCtion ofany reference to the concept of

~'pritnfl facie" mischaracterizes the legal effect of the discovery of a foreign object

because that omission conceals from the jury the fact that discovery of the foreign

object is, in and of itself, sufficient evidence of negligence to support a verdict in

favor of the claimant.

The definition of''primafacie" employedby the Florida Supreme Court means

"evidence sufficient to establish a fact unless and until rebutted." State v. Kahler, 232

6

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So. 2d 166, 168 (Fla. 1970). Accord, e.g., Castleman'v. Office ofCdinptroller, 538

So. 2d 1365 (Fla~ PtDCA 1989). Proposedinstruction402.4(c) is legallyirtsufficient , I .'

for failing to instruct the jurors that the presence of a fore~gn object in theclairnalit' s

. body is evidence sufficient to establish the fact ofn1.edical'malpr'actice,uIlless and

until reb'utted by the Defendant. Therefore, the' instruction .shoul<i 'not be,

\

. recommended for approval by the Supreme COllrt ofFlorlda. ,

ProposeCl Instruction 402·Ad-''ProfessionalNe'gligence.,

Prbposedinstruction 402.4d. shouldnot be recotnn1.~nded for approvalbecause . ,

it mistakenly states the legal effect ofthe failure of adefendant tomaintain iequired

records. The Florida Supreme COlirt, in Public Health Trust v. Valcin, 507 So. 2d

596 (Fla. 1987), held that the effect of a malpractice defendant's failure to maintain

required records that works: to the prejudice of the claimant created a "rebuttable

presamption ... [which] shifts the burden of proof; insuring that the' issue of

negligence goes to the jurr." ld. at 600-01. 'The instruction propo'sedby the ,..

collllJJ.itteemistakenlyprovides only that thejury"mayinfer that the missing evidence I

contain proofofnegligence," not that a presumption is created by which the burden

of disproving negligence is shifted to the defendant. .

Therefore, the instruction should not be recommended for approval by the

Supreme Court ofFlorida.

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Proposed Instruction 404.5-MediCal Malpr~rcticeInsurer's Bad Faith

[Comment to be provided' separately]

Proposed Instruction 411.4a~and 414.4a~-=,Legal CaUse'

Th.e FloridaJustice Association coflfnients as follows concern~g the proposed i

instructions defining "legal cauSe" in cases iJivolving claims ofciviltheft andc1aims

by employees against employers possibly subject to the exceptioli to Workers' .

Compensation immunity. /

Proposed instructio11s 411.4a. and 414.4a., appa~entlymistaken1Y, ;efer to

actiotls being a cause of"severe emotionaldistress." Such severe, emotionaldistress

is not likely to be a consequence of civil theft, ahd is not necessarily an element of. .

a tort claim against an employer. Apparently the language was imported ,from the

defmition oflegal causein cases involving extreme outrageous conduct (IristriIdtio11 (

41 O.6a.) andwas not appropriately1llodified. Therefore, these two instnictionsshouid

be corrected before being submitted to the Florida Supreme Court for approval.

Proposed Instruction 414~5-'Workers'Contpensatio'n Immunity Exception

The Florida Justice Association submits tha.tproposed instruction 414.5should,

be recommended for adoption and approvalby the Supreme Court ofFlorida, because

the proposed instruction accurately reflects Florida law concerning the matter in '­

question in a clear and understandable form.

8

40

\. Proposed Instruction, 503.1-Punitive Damages

. , ' . .

,The Florida Justice Association sub~ts that proposed instruct~on 503.1, . .. \ -.

, , dealing with punitive damages, should he revised before being recotn.:J:nended for

adoption and approval by the Supreme Court of Fldricia so as to substitute another \ .' '.."I

, terth forthe'term "guilty," where the instruction states that, "[p]UI~.itive damages ,are , , , "

w~rranted against (defendant) 1£ you fnid that clear and convincing evidence that jI

(defendant) was' guiltyofintentional J.TIiscondllct otgross negligence." Similatly, the '

Committee should substitute different language for the terrtl "perso~ally guilty'~

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contained, in all of the subparagraphs (2) (b); (c), and (d).

\, • r The' FJA states 'that the tertn: "guilty" is 'extremely J.TIisle~dil1g because it J

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connotes a level of culpability equal to that which would support a criJ.TIinal

conviction. Jurors wi,ll ~variably confuse the "cleat and, c0!lvincing" standard of

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- proofappl~~ableto punitive damages witH the ''beyond a reasonable doubt" standard

necessary for a "guilty" verdict in a criJ.TIinal case. , '

The FJA acknowledges that the term "guilty" has been used in s'tandard'I, ' (' . . .

instruction PJ;) 1 previously approved by the Court. However, because the Supreme ,

Court's committee is recommending revisions to instructions including the punitive

damages instruction, instruction 503.1 should be revised to use less confusing

'terniinology. Therefore, th~ instruction should not be recommended for approval by

9

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the Supreme Court ofFlorida.

Respectfully submitted,

By:._~_~_~",---,,-----,-~_,,---_

FRANKM. PETO,SA; President

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Fro~: Rick Piedra Sent: Monday, May 05,20088:25 AM To: 'tgunn@fowlerwhite.com' Cc:: Tom Koval; R:.alph Gonzalez

. Subject: Proposed Jury Instruction/We Immunity · bi3ar Tracy, ' ~ .

I have a question on the proposed jury instructiohsfbr intentional torts as an exceptiqhto the exclusive remedy of workers compensation.· I've been folloWing this issue for sorTie time.

The proposed instruction 414.5 states in par; 2"whefher(lJefehdarlt)(a)ehgaged incondiJCt that­(Defendant) knew, based upon [prior sirriila~ irlCid¥nts] [br] [explicitwarhirigsspecifically

· ideritifying a known danger], was virtually' certain to result ind~athor injLiryto [Claimant): .."

i notice that the "priorsimilar i!1cident.suand the"expIibit wMriirigs" phrases are ill brackets. I assumethis means that mie or the other, (or Doth?), MUSTbegiven tothejury, correct? In other words, before the jUdge would allow this togo to the jury, he wOuld have to find that the plaihtiff

· has presented evidence of either priorsiriiil'ar accidents of expiicit Warningsaboutthe cbhdition. Then, sLibpars. (b) and (c) irnpose additional requirements to a fIndirigofIiability.

Thanks.

Rick Piedra, Esq. Senior Corporate Counsel/Litigation FCCI Insurance 'Group 6300 University Parkway Sarasota, FL 34240-8424 Tel. (941) 907-2557 Fax (941) 907-3380 Email: rpiedra@fcci-group.com

84

TABD

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,ebruary 23-24, 2006 February 23;2006 (1:00 p.m. to 5:00p.m.)

,Febfu::iry14, 2006 (8:30 a.m. to noon)

iv. Worker'sCompensation--Intentional Tort Exception: 'La.ngexplamed i ' , ,that practitioners have asked th¢ coIrn.trittee to Cbllsi4er

drafting an, instruction on theiriteiitiotial tortexceptiorito worker's compensation imrnunify.Thisissue..isarismK ' with mcreasmg frequency. Gui111 explain,ed,thaf hetfrrn1 recently handled an appeal dealing "with the appropria:te, ihl:ltruction. Although the Legishi1iir'e' recently changed

, the' st~tutory standard, the \ dOll1tnitteecotll&dia.~"art" mstruction fOf both the curientatid f0rn1eriSfantlartht

\, Guim recommehcied forming 'a new subcortUnitte~,i() , ,corisider this issue. Barton agreed that ahiIisttUctibn would be useful. Makar ,cre~ted, asubcomtriiit'ee to

" , dratt a,ll instruction for ,the iDlentionaitort,exc'~ption toth~ 'Worker's CompeIisaJion Act. 'The' subcommittee will draft versiolls', applica.btetind~r b~th the former and current statutory standards. Makar appointed Kahn (chaIr), Langa.lldWagri.et~

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. SUPREME COURT' COM:l\1ITTEE ON ..... , ' ".J '

STANDARD JlJJ1Y INSTRUCTIONS (CIVlL)

MINiJl'ES The Bteakers

West 'Palin Beach, Florida

July 13-14; 2006 'July 13, 2006 (1:00p.m. to·S:OO'p.rn.)

July ~4;3.006 (8:30 a.m. tonoon)

9. INTENTIONAL ·tORT EX'CEPTION'( 'TO wom:RS" . /

. COMPENSATION.ACT (TaB- 10) I

. . ( \.

'. . . : . - . '" 'I

Kahn explained' that\. the Legislature amended .th,.e WQtker's Coliip.eiisationAct iri2003 tq overrule' the deCision. in Turner\': peR, IilC;, 754> So; 2d(583, 691 (Fla. 2(00)... The amended' statuien;iakes it yery . difffcUltforp\larntiffsto prove that the/employer's c6nductmeets ,th~ ihtefit1bnaltbrt;exception to worker's compensation-il1Ul).unity. Asatesult; at leasfone SU~C()rrimittye'.merriber,Wagner,feels that ajurYinstfucti6~ i~ U1U1,ecessaryhecause' almost all cases will be deCided' against the plaintiffas a'matter oflaw.

\ . The dtaft instruction on pages 10-2 to 10-3.attempts to remain. :faith:fulto the language ofthe statute. The amendm~nt raised the burde:n ofproof to

:c1ear c

'ahd corivinciIig eVidence. The proposed instru:ction borrows the punitive damag'es instruction on clear and convincing evidence.

On page J0;.4, the subcon1mittee also drafted· an instruction for cases applying the intentional tort exception in effect before the 2003 atnendInent.. Kahn sugge~ted that-the instructions may need to use a more plain Ertg1ish tenil than "intentional tort." Stewart suggested using the language frOIi1

instruction 3.6, without describing the type of claim. Kahn and Warner .agreed.

Lang expla4!ed that his firm has a case pending in the Supreme Court, . Bakerman y.Bombay Co., SCOS-3S8, that may illuminate the meailiilg of

"substantially certa.in" used in the pre-2003 instruction.' I

Barton joinedWagner inquestioning whether the committee should exert its r:esources draftipg an instruction for the 2003 amendment. Only a

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h.andful of cases applying the 2005,I Ia:w will pteseJ;lt a jury qy.estion 'ohthe intentional tort exception. 'Makar .agreed jf the .committee drafts an instruction, itrislcscreatinga quagtilire forth~ benefit ofvery few cases. Rosevvill e;.,mail the reVised draftinsttuctionto the committee. tlie dtaftwiUbeJi~lalnabeyancepeAdfngthe Suptem'e:Courlopinion·in Bakerman v.Boniba.YdCO~,SC05;'358. . . . . ". . , '.' (

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SUPREME COuRT cOMMITTEE ON STAND-{\lID JURy INSTRUCTIONS (CIVIL)

MINUTES T~mpa; Florida

DATES Thursday, February 15,2007 (1:00 p.m. t05:00 p.m.)

Friday,'Pebnimy 16,2007 (8:30,a.m.to noon),

11. INTENTIONAL TORT EXCEPTION TO WORKERS' , ' " .-' ." . ',' . ;., ·i '._ '_., " "", : . -:'," ,.-:' -',: " ,.', "~,,, " .' •.. ,.,.,' '. \ , ._.' -'.. . "'" . ,', .".',' ,-',:. ," \

COMPENSAr;rION ACT (Tab 10}: ,Kahn noted tllatthe subcofurtrittee has 'hot talcertany action since July 2006 when theconi.inittee set the issue aside. Larig:ndte:d that thesubco~tteeis waiting for the SuptemeCourtt6 ' de~ide Bakerhlahv. BOl11bayCo., SC05-358.

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SlJltREME COURT COMMITTEE ON . ~ -,"" .. .... ','

STANDAIU1,JURY INSTRtJCTIONS (CIVIL)

MINtXfFiS ! The Btea:kers

P~lm:Beach,. Florida . " ..,; .

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SUPREME COURT COMMITTEE ON ' stANDARD .JuRy INSTRUCTIONS (CIVIL) /

MINuTES \ [Thell'innl Hotel]

-' ,JacksonVille, Florida ·f

.' [DAtES] . '.. ,J

October 25,2007 (1:00'p.m. to 5:00 p;pi.) October 26,2007 (8:30 a.m. to 'noon) ,

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. • ,_, . .". "'.',,' ... .' \.' '.. .... .. " ." ." . . , " . ,-' ..,;', ' . . . .- . . ',.' '. i ... ~ , ,.;' "". ," .. ".... _

6~ INTENTIONAL. ,TORT ,EXCEPTION 'TO WORKERS' CC)lVWENSATION ACt crab 10): kah11explained that, wHhthe ihtehti6lialtort exception to the worker's eoinperi~ati6h,beingjneffect, '" .... , .... ',.. . (.': .... " :" .',-' "

foffiYe yeats ,now, there's debat~ about wheth~r aco,IrlmofI law instruction is even needed at this time. ;Kahn asked for guidancefrbrri the C611ll.11ittee as to whether the intentional tort subconuniit~e should still corit~ue to pursue a common law (pre-statutory) instrudlon.

. Lang;ex.plajtied that when the subcommittee startedtmsprdjeCt tWo y¢a.rsag;o; it believed there were enough pt~-sta.tuteGa:~e;s still lingerlJ;1g'tojustify work on the common laWinsfuIctiQn.IIowever" 'Langibelievesthat isprobably no longer the ~ase, ahdit ispt6bablyno lotig¢r worth purstting the pre-statutory instruction. He.: b(;m~ves, the' subcommittee ~hould focus instea.d on the statUtory instruction. ' ,

, 1

Kahn stated that the su.bcommittee'-s statutory instrUction will ,likely,be ready to be viewed by the. Committee 'at the Februarymeetirig. Makar'·asked Rose .' to add the 'statutory intentional tort exception instriIction to the agenda. . . \ .

for the February meeting, and to make sure the instruction andfhe underlYing statute are inchidedin the February materials.

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SUPREME COURT COMMITTEE ON STANDARo JURy ~STRUCt'IONS(CIVIL)

.\

\ MINUTES)

[february 21~22,.2008] Tampa, Florid~

February 21,2008 (l:OOp,.ni. to 5:DO p.m.) ) February 22, 2008 (8:30~.m. t<?l1oon)

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6. INTENTIONAL TORT. EXCEPTION. TO . woRK:E:Jis' ;COMPENSATION ACT (Tab 10)' . . " I ,', •. I

K.:ihn irifoI111edthe Cottnnittee that the lindeIlying statute, section 440.11,FlbridaStatutes; appears on pag'e 10'=-18 ofthemaferials. The proposed instruction appears on' page, 10;.14 of the Irtateria:ls. ,The·

J Co:mtnittee reviewed the proposed instruction. The Cormnittee revised the'instructidnto,read:

. ',., " . ." "r- ~'I' .• '. INT:E:NTIONAL TORT EXCEPTION TO EXCLUSIvE-. ,:REMEDY PRovisION OF WORKE:R.S~

CQMPENSATION LAW . \

The issue for your determination on the dairri of [Claimant] against [defendant] is whether: (1) [defendant] deliberately intended ton injure [Claimant], or . ~.

I (2)(a) {defendant] engaged ill. conduct that [defendant] lmew, based upon [prior similar acCidents] or [explicit wanllngs" specifically identifying a lmown danger], was virtually ce1iain to resuLt in death or injury to [Claimant] and,

(b) [Claimant] was not aware of the risk' because the danger ~as not apparent; and .

(c) [defendarit] deliberately concealed or misrepresented the . danger so as to prevent [Claimant] from .exercising

irtfotrried judgment. . I'

If\clear' and' convincing evidence sUPPQrts .the' claim of' [Claimant], then. your verdict should be for [Claimant] on

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I .. ,, " , "

this issue; however, if clear and convincing 'evidencedoes not support the, clalrn (j)f [Claimant] on this issue, then yout verdict 'should be fot'the defehdart(on this issue. ,

-' " ' " "

"Clear ahd convincing evidence" rnean~evidence, that i~ precise, explicit; la,cking in confusion, aIid oLsuch Weight '

,that' itpt()~tLces it f1l.11i 'beliefdr conviction, withbut h~sitatibn,abblit the JJ,1attetin issue.) ,

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Gunn directed that the lJiS~""~tion (3,s'" modified above) be published fQr comments and sibultalleottsly iJcorporatedlp:to the reorganiZed. booI{.

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SUPREME COURT CQMMITTEE ON STANDARD JURy INSTRUCTIONS (CIVIL)

, MlNUTES) : , [July 10-11;,20Q8]

The,Breakers, WestPalm'lJeach, Florida'

July 10, 2()Og'(12:00 p.m. to 5:00 p.l11~)

July 11,2008 (8:00 a.rrL to 1:00 p.m.) \

ConuneIitsConcerning the Ihtentional Tort Exception to Workers'" C,' Compensation: . ,,'

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• T'Yocornmeilts were received. Oriequestioned the rtie'cming of the instruction. The subcommittee reported. tlia:ifhe­

"', ,',' ", ,\ , " ,,', ,,',' ,,' '" " ," '

commentator correctly nndersto()d the instruction, s0ll'0 'actionw:as required. "The otherCOIninenttecdmiiie~ded; adoption of the ,instruction. This too requires 'no action.

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The committee agreed. r)

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TAB.E "

MEMORANDUM

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DATE: June 30, 2006 \ .-' ,

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TO: ~tandard JUry Instructions Corrnnitte~ (9ivil) . . ) ,

FROM: SubcorriInittee on Intentional Tort Jkxc:eption to Wdrkets ~ lCoirtpeasatidll " j • • . • •

RE:' InteritidhalTort Exception to Exclusive Remedy Provision ofW6rkets' Comp~l1satioll Law ' ,

FoHowirtgyou willfindtwo instiuctionsdrafted by thesllbcomrl1ittee.. The'fustirisrructi()h is irttendeaJoapplyto accidents on or afterOdto~er 1, 2003, the effective date 6fsection 440.11(l){b), the I-.e~slative,codiftcation .of the' exception' t(} .exchlsivehess of ",6tkers' ,

'C0InP~l1sation liability. Thes,ecortdinstructionis forpre-Octobcr1, 2003; injuries aIidis based liPOll Tumer:v~PCR. hic., 754 So. 2d .683' (Fla. 2()OO). 'Thesubcotr@itteehascOlhmentsdahoutbotho'f tl1es/e'irisfructions. .(I '. , " " . ..' ,. '

As to-thestathtbryinStfuCtion;atleasto~e'ine1IllJer oftll~subcon1mittee questionedwhether ' / a standard instrUctibnisactuallyneeded because the' instruction111erelytfacks·thel~gtiag-eofse'6tion 440.11(1)(b)1., 2.,:F16Hda,Statutes(200S).Ontheather hand, tb:e'sub~oininitteereco'gnii¢s thatthe existeilce:ofa fOml instruction may well bean aid ta a busy trial judge. .i .

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, '. Asto theprci~Oct()b\err,2003~jhStrubtion:thesuhcomn,#tt~enote!?thatalthoughthepr9Pbsed instruction uses the"subst~tial certainty" langUage of Tumer, it is pos~ible,tha( the irisri:tlciion~ I'

standing alone, dbe'snofconveyth~tt4e law\:vouldrequit.e~sh(}wing:greaterthangrossnegiigence.· See Turner"754 So. 2d at 687, n.4. joe Lang riotes,thafdleFlondfiSuptemeCoUrtisctirrently ,

. cOllsidering this issue in the case OfBakermanv. The Bombay Co.,~{C05-358, andthitthedecisi6n Iin that base tnayoffer somediredtguidance on thedefi.nitioriof."su~stantialceIi:ainty." AC96rdingly; l

at this point, the subcdn,iriiittee ,has not offered a m6re,specifi6 instruction. attempting to define "substantial certainty;' bU,t is wiiling to take any directive from thecorinnittee asa whole.

",j ReSpectfullysubmitted,

AlanJVagner Joseph H. Lang Charles J. Kahn, Jr.

July 13 - 14, 2006 10 -1

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Instruction for Section 440.1 1(1)(b);effective October 1.2003

INTENTIONAL TORT. EXCEPTION to': EXCLUSIVE REMEDY PROVISION OF WORKERS' COMPENSATION LAW

. The issue for Y01ir determination on the claim of[plaintiff] against [defendant] . is whether.: '

(1)' [defendant] deliberately intended to injure [plaintiffj, or

I·

. (2) (a) [defendant] ehgagedin conduct that:.

\, 1. [defendant] knew, basedupon print similar accidents orexplicit warnings specifically identifying a known danger, that [plaintiff] would e.~ther suffer death or injul1f from the dange~; ahd

2. [defendant] knew was virtually cenainto result in death or injury to [plaintiff]; and.

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(b) In order to find such conduct, you niust also find:·

1. [defendantl~ctivelymisled [plaintiff] as to the existence bfthe dmg~, .

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'2.. [plaintiff] was not aware ofthe risk because the danger was not apparent; and

I

3. [defendmt1 deliberately concealed ormisrepresentedthe danger. " '\ '

so as to prevent [plaintiff] from exercising infbrmedjudgment.

• I

Ifclear and convincing evidence suppbrts the claim of [plaintiff], then your verdict should be forplaintiffon this issue; however, ifclear and convincing evidence . does notsupport the claim of [plaintiff] on this issue, then ¥our verdict should be for the deferidallt on this issue. \~

"Clear ,and convincing evidence" means evidence that is precise, explicit, . lacking in confusion, and of such weight that it produces a firm beliefor conviction, without hesitation, about the matter in issue.

JUly 13 - 14, 2006 10 -2

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-NOTE ON USE

This charge should be given\when the cause of actionaccnted on or after October 1, 2003. - ­

COMMENT

_.... 1. . See.§440.11,. Fla. SHit. (2003) (codifyingJhe intentional torle.,(ceptio.lf ." . ,attdmodifyiIlg: the;statidard annoiilibed in Tumet·v. Pelt-Inc., 754 So.2d,6:g:3(~ia; 2qOO})\seealsoTraveIets I~deri1. Co•.'v.PCR, llic.,'889 So."2d 779j783n.$ '(Fla. 2004)(discussing the LegiSlafute'scodification of the'intentional tort exception and the new, heightened virttialcertCl,inty standard).'

, - . - (

2. An employee rnustprove an- intentional tort by clear and convincing evi.dence~ § 440.l1(1)(b).

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July 13 - 14, 2006 . 10 ~3

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Illstruction for Section 440.1 1(1)(b), effective pre-October 1,2003 \ "

INtENTIONAL TORT EXCEPll()N TO' EXCLUSIVE REMEUV PROyISION OF WOR:l{ERs'COMPENSATION LAW

, The iss;u:e for your detemination on the claim of[plaintiff] against [defendant] is Whether [defendant]: ' " .

.' (1) intended to injure [plaintiff], ot

, (2). knew or shouid have knoWIi that its conduct was substa.ntia.lly . 'certa~n to result in injury or deathfo [plaintiff].

If,the greater weight of the evidence supports a finding that [defehdant] . committed an intentiona.l .tort, your determination on this isSue should' be for [plaintiff]. '

However, ifthe greater weightofthe evidence does not support a finding; that .[defenqant] contrnltted an intentional tort, yourdetenninationon this.issue snouldhe for [defendant]. '

I .

"Greater weight of the evidence" \means the m~re,persuasive ,and convinCing force and ieffect of the entire evidence in the case. \

NOTE ON USE

This charge should be 'given when the cause of action accrued 'prior to October 1, 2003. ' '\ . I !

COIvIMENT

1. See Turnerv. peR, Inc., 754 So. 2d 683,691 (Fla. 2000), supersededby statute, ch. 2003-412, § 14, at 3890-91, Laws ofFla. (codified-at'§ 440.11, Fla~ ~tat. (2003), ("[I]ntentional tort exception includes an objective standard to measure whether the employer 'engaged in conduct which was sub'stantially certa.in to result ininjury. This standard imputes intentuponefrtployers in circ~mstanceswhere'injurY

.or death is objectiv~ly 'substantially certai~' to occur."). '

July 13 - 14, 2006 10 -4

2. An employee mustproye an intentional tort~ by aprepondetance ofthe evidence. See Turner; 754 So~. 2d at 691 (failing to demand a.heigh~ened burden ofproof). . . '.

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-July 13 - 14,' 2006 10'-5

WEST'S FLORIDA STATlJTES ANNOTATED TITLE XXXJ.LABOR(CIIAPTERS43'S453} ", '( CHAPTER 440. WORlffiRSi COMPENSATION

cui-rent th~oug~Ch'apter362 (E~ld) of the20'05Spe'ciai "B" Session of the Nineteenth Legislature·,

I

, 440.1.1. ExclnsiVen'ess ofliability

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(1) The liability of an employer prescribed in's. 440.10,shall beexclusi~e and. ih phtc~ ofall other liaoilityiincluding vicarious..Jjability, 6f'such~Inployertci ariy third;'I:>arty tortfeas()r and totheerilP16yee, the legaLrepresentative thereof, , ',' . husband or wife,parents,\dependefits; next'ofkin, aridanyoneotheIivise entitled' to recover damagbs froin suchemployet at law or in'admiraIty on account of such injutyor de~th, except'a.sfollows:

* * *

(b) When an employer ,corriliiits ahihtentionaltottthatcausesthe injutyordeath of the employee~ ,'For p~oses6fthisparagr~ph;anemployer~sactiOriS shfillbe deemed to constitute an intentiona.l tarland not ari accident oilly wheh the employee proves, by clear·arid convincing eVidence, that:' , ,J, '

1. The employer deliberately intended to injure the emplo;Y-.ee; or '.

2. The employer ellgaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifica.llYideritifyiriga,knowil dfuIger,

, was virtUally certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent a:n:dihe employer deliberately concealed or misrepresehted,thedanger so a,;topreventthe employee from ,exercising iriforined judgIIient about whether to perfotin the work.

JUly 13 -14,2006 10 ..6

.MEMORANDUM

DATE: . July 5, 2007 \

TO: Standard JuryJnstrUctions C~)Imnittee (Civil) I

FROM: SubcomIniftee on Intentionai Tori Eiceptioh to'W~rkets' CompensatiOli·

. , ...•. ( ,

RE: Intentional Tori Exception to Exclusive Remedy PtovisionofWorkers' Compensation·. Law . .......

FdllowiIig ,you will fil1d two iIistructimls', drafted' by the subcomririttee~The fIrst . iIistructioi;l isiritended to .apply· to accidents On or after OCtober i, 2003,the effective date of . sectiOri440.11(1)(b), the Legl~lative c6diflmitioliof the exception to exclusiveness ofworkers '. compensation liability.. The second iIistffi6tion is fotpre;'Oct()b~:r 1; 2003, .,ll1juriesand isba.sed upon tllfiier v. peR, Inc., 754 So.2d' 683 (Fla. 2000).. The sub\committee has c'i:>InmelitsalJbut both of these mstfuctibns. ,.

\

As to the statcttoryiIistrucfion"atleast one member of the' subconfu:ritteequestioned whether a standard, iIistructiOli is actually neededbecau1i~ theiIistructionmerely tracks: the language of section 440.11(1)(b)1., 2;, Florida statUtes, (200S).. On the other harid,. the subcol:ri.ii:rittee recognizes that the existence of a fotiniIistniction may well he an aId to a busy\ trial judge. ­

I \.

As to the pte;..october 1, 2003, iIistruction, the suhCbl'lJi'$ttee noteS tha:tillthdugh the . .. ·.. 1 . ".' '. •.. ..'. .. . .. .. ;...•.

proposed mstructiofl uses the ."substantial. cert~ty"language of Turner, it ". ispossibl~,that the mstruption,standiRgEilEme, does not convey that the laiN 'would re,quireashEl'tvmggreatertl1an gross nsgligeuoo.. ~ee tumer; :754 8o~2da(6g7, flA.j'Jde Lang,flotes thatthe'Florida,Buptffip6, Court iseurrently considering this issu'em the base ofBakeririanv.The Bombay 00;;.8005 358; .. ;and that the deeisiofl inthl;lt case may offer sElme direct guidmio0on. thedefiIlitionof"substantiill· certainty."·· l\ccordmgiy,at this poffit,the subtoBIDilitee has not offered a !D:or~ specific

\; instruction attemptmg to derme "substantial certaitiry;" but is. \villmg to take any directive from the committee as a whole. the Florida Supreme Court has. i;:tOW deCided that concealrrient of the danger is not an ihdispensable requirement ofthe old substan~al certaiIity test.

Respectfully submitted,

. Alan Wagner Joseph H. Lang Charles J. Kahn, Jr.

JULY 12/13 2007 10 -7

Instruction/for Section 440.11 (l)(b), effective October 1, 2003

INTENTIONAL TORT EXCEPTION TO EXCLUSIVE REMEDY , PROVISIONOFWORKERS'COMPENSATION LAW

The issue for y'our deterrilimition on the claiin of [plaintiff] against [defendant] is whether:

(1) [defendant] deliberately intended to injure [plaintiff],. 01· , f " ' /

'(2) [defendant] 'engaged in conduct that:

, a; [defendant]llmew, based upon prior siti1ilaraccide.nts or ,explicit wat'nings specifically identifying a mown danger, ,that

[plaintiff] would either suffer death 'or injury from the ,~anger; and

b. ' [defendant] mew was virtuallyIcertain to ,result in de~th ~r injury to [plaintiff]; and

'u[Give the folloWing ifpro'ceeding under (~) above]:

In order to frnd such conduct, you must also frnd:

(3) [defendant] deliberately concealed or misrepresented the danger so as to prevent [plaintiff] from exercising informed judgment.

If clear and convincing evidence supports the claim of [plaintiff], then your verdict ( , should be for plaititiff onthis issue; however, if clear and convincitig'evicience'

does not support the claim of [plaintiff] on this issue, then your verdict shduld be for the defendanton this issu~. '

"Clear and convincing evidence'; tE-eans evidence that is precise, explicit, lacking

JULY 12/13 2007 10 - 8

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in confusion, and of such weight that it produces a firm belief o! conviction~ , without p.esitation,about the matter in issue.

NOTE ON USE

This charge should be given when the cause ofciction accrued on or after Octob~r 1, 2003.

-', '. COMIVlENT

1. See.§ 440.11, Flli. Stat. (2003) {codifying the intentional tort \ ex.ceptionand modifying the standard annoUl1cedin Turner v. PCR" Inc., 754, So. '. '. . ... ''', " ..' J' . ' . ..'.,.... " .. ',,, .'"

2d683 (Fla. 2000)); see also Travelers Indem. Co. v.,PCR, Itic.,889 So. 2d 779, J ,.',', _ .' ":" ',' (._ _ " " '.. '

783 n.5 (FIl:l. 2004) (discussing the Legislature's codificatton of the intelitiolialtort exception and the new, heightened virtual certainty standard).

2. "An employee must prove an: intentional tort by clear and convincing evidence. §440.11(i)(b). . r

JULY 12/132007 10 - 9

Instruction for Section 440.11 (1)(b), effective pre.,October 1, 2003 (

INTENTIONAL TORT EXCEPTION TO'EXCLUSIVE RElVIEDY PROVISION OF.WORKERS' COMPENSATION LAW

. 'the issue for your determination on thec1aini.bf [plaintiff] agairist . ~defendant]' is whether [tlefendant]: .

(1). intended to injure ,[plaintiff], or

(2) knew or should have knownthat its cqnduct was sub~ta:ntially . certain to result in injury or death to [plaintiff].

. . , ! . lJthe.greaterweight of the evidence suppo~s afmding that [defertd~nt]

committed an intentional tort, YQur deterniination on this issue should be for . I

[plaintiff]. .

. . . However, if the greater weight of the evidence does not support afmdiiig

that [defendant] committed an intentional tort, your determination on) this issue should be for [defendant]. I

"Greater 'weightof the evidence" means the more persuasive and) convincing force, and effect of the entire evidence in the c~se.

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NOTE ON USE

This charge should be given when the caus,e of action accrued prior to .October 1, 2003. . .

COMMENT

1. See Turner v. peR, Inc., 754 So.2d 6~3,691 (Fla. 2000), superseded .by statute, ch. 2003-412, § 14, at 3890-91, Laws of Fla. (codified at §'440.11, Fla. Stat. (2003), ("[I]ntentional tort exception includes an objective standard-to - ,\,. measure whether the employer engaged in conduct which was substantially certain' to result in injury. This standard imputes intent upon employers in circumstances

JULY 12/132007 10 - 10

. !

where injury or death is objectively 'substantially certain' to occur."). '. . ,'2., Anenipldyee mustpr6vean iriteiltional tbrt by Cl prep(mderance of the

evidence; See Tutner,'754 So. 2d at 691 (failing to dem'anda: h~ightened burden of ·proof)...

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JULY 12/13 2007 10 - 12

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ME~ORANfiUJVl

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DATE: F~btuary4, 2008

, " ,', \c TO: Standard Jury Instructions COfuinittee (Civil) \

FROM: Subcommittee dn Intentional Tort Exception to Workers' Compensation

RE: Inteiitional, tort Exception toExc1usiv~ Remedy Pro.visiol1 of Workers ~ CompensationLa\v. ' ' . ..

Following you will' find tWo, 1nstructlonsdrafted by tliesubcdmmitt~e~afid the controlling stamte.,Tliefirstirtstruction is intended to apply toaccidenis on or after' October 1,2003'~ the effecHvedate ,'. of sectidn 44d.li(l)(~), the'Legislative c'6cliflcation of the.exgeptiqn, to .exclusiveness.o£.wotkers'compensation liabiiity.' ,The-secoIld?irisiruction. is for pr~~Oet()ber ,1, 2003;injUriesan~isbasedupon Tuitler v.peR,Inc;, 754 So.2d 683 (Fla. '2000r The suhcominittee has COniltl'ents abbutbdthoftneseinstructions. - , ,

I ,(As to, t1lestattitorY'ins~ctiOl1,..at least Ol1e member ort,he.su.b.co~itte~q~~~~i?Ile.d' whether, a stan.dard' ,itJ.sfitlctiortis.actually. needed" because tIle !rtstruction,:1tlerely.tt~c~s:the . 'lan.guage . 6fsection 44().11'(1)(b)1., 2., Florida', Stahites '(2005)., ,On the. other hand,tlie .stibcoriiiTIitteerecogllizesthatthe eXistence of a forin irtstructionmay wellbeari. aid to a busy ttialjudge. ," r . ,; -\

As to the pre~Oct()ber 1, 2003; instruction,' the Florida Supreme CoUrt-has now decided that concealment of .the danger is not all indispensable ,requirement of the ord, subshiiitiaI certainty test. The subcolriniittee sees no particular reason to. include the old instruction.

'Ryspectfully submitted,

Alan Wagner Joseph H; Lang Charles J. KaI1n, Jr.

---------·-----------1---·---------·--------··--·---­

FEBRUARY 21/22 20'08 10 - 13

Instruction for Section-440.11(1)(b), effectiveOctober 1~ 2003 . . ,

INTENTIQNAL TORT EXCEPTION TO EXCLUSIVE REMEDY .... . . . .•... .'. ..... '. .... . f'

;PROVISION OF WORKERS' COMPENSATION LAW

The issue for your determination on the clam of [plaintiff] against [defendant] is whether: I

" (~) [defendant] deliberately intended to injure [plaintiffj,or

(2) [defendant] engaged in conduct that [defendant] kn~w, ba:.seduptm prior similar accidents or explicit warnings specifically ideiltifYmga known danger, was.'virtuallycertainto result in death or injury to , ., ,', ~ .[plaintiff]. . .

.[Give the following ifproceeding under (2) above]:

. In order to'fmd, such conduct, you IIlust also find:

r

(I) [defendant] actively misled [plaintiff] as tb the existence of the dang¢t,

(2) [plaintiff] was not aware ofthe risk because the danger was not apparent; and

I

'(3) [defendant] deliberately concealed or rtrisrepresented the danger so as to prevent [plaintiff] from exerCising infonned judgment.

. . If clear and convincing evidence supports the claim of [plaintiff], then your verdict should be for"plaintiff on this issUe; however, ifclear and convincing-evidence does not support the claim of [plaintiff]_ on this issue, then your verdict should be for the defendant on this issue.

"Clear and convincing evidence" means evidence that is precise, ­explicit, lacking in- confusion, and-of such weight that it pr~duces a·firm belief-or conviction, wi~hout hesitation, about the :tn~tter in is~ue.

._--_._------ ._- --------------------_.--_.-_._-..-----_._--_.--,.----•I

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FEBRUARY 21/222008 10 - 14

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NOTE ON USB" t

This charge should be given when the cause of acti011 accrued on or after October 1, 2003. '

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COivIM;ENT

. . . 1. .See § 440.11 ,Fla. Stat (2003).(codifyitlgthe intentionaltort exceptionandillodifying the standard annoUnced'· in turner v. PGR, Ihc.,7S4 So... 2d683.(Fla.. 2000));see.also.TravelersInden1~'~o.v.PCR,Inc;,889·So~.2d779; 783 n~5'(Fht"2904}(discllssingtheLegislature's codifiqation of"theititehtiol1altort .. exceptfon and the new, heightened virtual cehaintY standard).- .

. \ ""'. .. , ,"

)

. 2. .An employee mtlstprove an'intehtional tort by clearan4 convincing evidence; § 440.11(1)(b).

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FEBRUARY 21/22 2008 10 - 15

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Instruction for Section440.11(1~(~), effective pre-October 1,2003 \

.INTENTIONAL TORT EXC:EPTIONTO EXCLUSIVE REMEDY PROVISION OF WORKERS' COMPENSATION LAW \

{' .

The issue fot yourdetemlination on the claim of[plairitiff] against [defendant] 'is whethe~ [defendant]: .

(1) intended to injure [plaintiff], or

(2) jmew or should have mown thatits conduct was substantially certairi. to result in injury or death to [plaintiff] ~ (

If the greater weight of the evide~ce supports a fmding that [defend,ant] ·comniitted· an intentional tort, your detennination on this issue should be for [plaintiff]. \ l.

. , '. However, if the greater weight of the evidence does not support a fin:ti1rig / thattdefendant] committed an intentionaltort, yoUr detenriination on this issue·

should.be for [defendant]. '

"Greater weight ofthe ev~dei.1ce" means 'the more persuasive and convincing force and effect ofthe entire evidence in the case.

NOTE ON USE

This'charge should be given when the' 'cause of action accrued prior to October 1,2003. ''''

'­

CO:MJ.\.1ENT

1. See Turner'v. peR, Inc., 754 So. 2d 683,691 (Fla. 2000), Superseded 'iby statUte, ch. 2003'-412, § 14, at 3890-91,.LaWs ofFla. (codi~ed at§ 440.11, Fl~. Stat. (1003), ("[I]ntentional tort exception includes an objective standard to me~sure whether the employer engaged in conduct. which was substantially certain to result in injury. This standard imputes intertt upon errtployers ill oircutnstances where injury or death is objectively 'substantially certain' to occur.~').

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FEBRUARY 21/22.2008 10 - 16,

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2. An employee must prove 'an intentional tort by a preponderance of the evidence. See Turner, 154 So. 2d a1691 (failing todernanda heightened' bUrden ofproof). . . . .

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FEBRUARY 21/22 2008 10-17 . i

FSA Sec. 440.1 1, Exclusiveness ofIiability

*5765S'West's F.S.A. § 440.11

WEST'S FLORIDA STATUTES " '

'ANNOTATED I,TITLE~. LAlJOR

(CHAPTERS 435-453) CIiAPTER 440. WORKERS'

COMPENSATION 1

Current with chapters in effectfrorn the 2007 First Regular Session oftke

T,weritieth Legislature through March 12, ,2007 ' '

• 0

440:U.Exclusiveness of liability

, (l)Tl1e liability of an employer prescribeiUri' -s.440:,iOshalI be excl:usive and in placeof'all 'oth(lf .Iiapility, ,including vicarious liability" of such,e#!ployer. to any third-party tortfe~or and t~ th~.emploYee, the legal representative,' thereof; hllsbfulaot ,wife, parents, dependents, "next Of

. kiir'~iid ,anyone othetwiseentitled to recover darriaMs from: such employer at law, ·or in '

.' a,dmitaity on account of such injury' or death; exceptas follows: '

(a) If an employer fails to secure payment of cOnlpensatioll, as required by this chap~er,; an injured', employee, or the legal representative thei'eofiricase death results from the injury,may elect to elilim compensation under this chapter or to' niairitain, an action at law or "in admira~ty for damages on' account of such injury or death: In

. l. such action the defendant may not plead ,as a defense that. the injury was caused qy. negligence ofa fellow employee, that the employee assumed the"risk of the employment, or that the injury was , due to the comparative negligenceofth~ employee. .

(b) When an employer cmnmits an intentional tort that causes the injury or death of the emplqyee. For purposes of this' paragraph; an empl()yer's actions shall be deemed to constitute ,an mtentiorial tort and 110t an acci~ent only when the employee proves, by clear arid convincing evidence, that:

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Page 1

1. The employer deliberately irttended to injure the employee; or

2. The employer engaged in conduct that the employer knew, based on prior similar accidentS or on explicit warnings 'speci:flcaliyideritifyinga known' danger, wasvirtuaily certain to result ill injury 01' death to the employee, and the· employee was not aware of ~he risk because the ~anger was not· apparent and the employer deliberately concealed or (misrepi'esent~d the

/danger so as to prevent the. employee from exercising informed judgtnentaboutwhethet to perform the work. . ' ,

, ,

The same immunities from liability enjoyed by' ap. employer shall ~xtend as weil to each . employee of the employer When, suchetriployeeis acting 'in fill1:heranceOf the' employer's business ~nd' the injured e~pl6yee ,:is entitled to' .r~ceive benefits Ulider this' chapter. ,Such fellow­employee immunities shallno1: be applicable to

)aii eh1ployee who acts, with respec(to a.fellow 'employee, with willfQland' wanton 'disregard' or unprovoked pl1ysicaliiggression or with gross negligence when such acts result in irljUry or death. or such acts, proxtrnately ~atisesucp., injliry or death, nor shall sucl1immimities:beappliciible

. to employ~es of the same emplbyer:When :each is operating in the fuitheraric~ Of the ,ernployer's business but they are· assigned ·prhnariiy :to unrelated works 'within private or public, emploYment. The same" immunity provisions

. enjoyed by an employer shalialso' apply to any sole proprietor, partner, corporate officer, or director, supervisor, or other person who in 'the course and scope of his or her duties acts in a' Iilanagerial or policymakirtg capacity. at:ld the conduct which caused' the alleged· irijuryarose within the course and.scopeof saidmariagerial or policymaking duties and was not.a violation of a law, whether or not a violation was charged, fot which the maximum penalty which maybe imposed does not exceed' 60 days' imprisonment a~ s,et',forth in s. 775.0~2. Th~ immunity from liability· provided in this subsection extends to county governments with respect to employees of county constitutional officers whose offices are funded by the board ofcounty commissioners.

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© 2007 Thomson/West. No claim to original U.S; Govt. works.

FEBRUARY 21/22 2008 10 - 18

FSA sec. 440.11, Exclusiveness' of liability

*57659 (2) The immunity from lil:).bility described in ,subsection (1) shall extend to an . employer and to each employee of the employer which utilizes the services of the employees of a help supply services company, as set forth in' Standard Industry Code Industry Number 7363, when such employees, whether~ management or staff, are acting in furtherance of the employer's bu~ihess. An employee so engaged by the el11ployer shall be considered a borrowed'

• I enJ.ployee of the eIn,ployer, ~nd, for the purposes of this section, shall be treated, as any other ,empl()yee of the employer~ The etnplC!.yer shall be liable for and shall secure the payment of compensation to all such borrowed employees as regJ;iired in s. 440.10, except whensuch payment hasbeeil secured by the help supply services

. '... ' ( company. '

(3) An 'employer's workers' compensation carrier, service agent, or safety consultant shall

l _.. ' 'nof,be ,liable as a third"party tortfefisor to employees, of the employer or einployees of its

,subcolltfactors for' ~sisting the employer and its subcontractors, if any, in carrying out the employer's rights and responsibilities under this chapter by furnishing any safety inspectio~, safety consultative service, or other safety service incidental to the w9rkers' compensation or employers' liability ,coverage or to the workers' compensation or employer's liability servicing contract. Without limitation, a safety consultant may include an owner, as defined in chapter 713" .or an owner's related, affiliated" or subsidiary companies and the employees of each. The exqlusion from liability under this' subsection shall not apply in anY case in which injury or death is proximately caused by the willful and unprovo~ed' physical aggression, or by the negligent operation of a motor vehicle, by employees, "officers, or dir,ectors of the

, employer's workers' compensation carrier, service agent, or safety consultant.

, {4) ..N.otwithstanding the prQvlslons of s. 624.155, the liability of a carrier to an employee or -to anyone ,entitled to bring suit in the name ,of the empioyee shall be as provided, in this chapter, which shall be exclusive and in place of alI other liability.

Page 2

CREDIT(S)

Laws 1935, c. 17481, § 11; Comp.Gen.Laws Supp.1936, § 5966(11); Laws 1970, c. ]0-25, § 1,' Laws 1971,' c. 71-190, § 1; Laws 1975, c. 75-209, §4; Laws 1978;0.' 78-300, § 2,' Laws 1979, c. 79-40, § 6; Laws 1983, ,c. 83-30.5, § 3; Laws 1988, c. 88-284, § I; Laws 1989, C. 89-289, § 18: Laws 1990, c. 90-201,§ 16,' LaV(s 1991,9. 91-1, § 14. Amended by !-aws r99~, c. 93~4J5,·§i6,eff.. J~n.1,'1994; .Laws 1997, c. 97-103,§108. ejJ. July I, 1997; Laws 2003, c.(2,003-412, § 14, effi OcO, 2003. ,

<General Materials (GM) - References, Anriot~tions. or Tables> .

*57660

HISTORICAL NOTES

HffiTORICALAND~TATUTORY NOTES

(

Amendment Notes; Laws 1970; c. 70-25, § I, 'de'si~ated subsec. (I) ,and

added foifuer subsec. (2).

Laws 1971" c, 71~190, § 1, inserted in thefirstlsenten~e of subsec. (1) "to anythird party tort-feasor and'i preceding' "to the employee, his legal representative".­

. . ..

Laws 1975, C. 75-209, deleted in referen~e to 'employees , excillsiv,e references to the male gender and insetted "or

comparative negligence" preceding "of the employee" at the end of subsec. (1).

Laws, 1'978, .c. 78-300, added the third and fourth sentences to subsec. (1).

Laws 1979, c. 79-40 deleted "contributory negligence or" , preceding "comparative negligence" in the secorid sentence

of subsec. (1), and\ substituted "wotkers' "'for "workmen's" compensation throughout former subsec. (2)."

Laws 1983, c. 83-305, § 3, added former subsec. (3). '. . . ,

Laws 1988, c. 88-284,§ 1, eft: Oct. 1, 1988, added the concluding sentence to subsec. (l).

Laws 1989, c. 89-289, § 8, eft: Oct. I, 1989, amended subsec. (1) without apparent change; inserted subsec. (2); arid renumbered former subsecs. (2) and (3) as subsecs. (3) and (4).

Laws 1990, c. 90·201, § 16, eff. July I, 1990, insubsec. ,(I), s\lbstitl.!ted ~'emp'loyee" for "serva1J,t'.' following "felloW" in the second s,entence. '

Laws 1991, c. 91·1, § 14, eft". Jan. 24, 1991, reenacted subsec:-(1)ofthtfS(fction witnoutcnlifige.

© 2007 ThomsonlWest. No claim to original U.S. Govt. works.

FEBRUARY 21/22 2008 10 - 19.

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FEBRUARY 21/22 2008 10 - 20

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F;LORIDA JUSTICE ASSO~IATION ( 218 South Monroe 8t.

Tallahassee,FL 32301

May 30, 2008

.' .

.ComiiletitsofFloddaJustice Association onProposed ReVisions.'io Standatd'Jutylnsftuctions " .

the Flbrida Justice Association; following review by an ad hoc coli1J.JJittee or

trialla~ets eC-l?eriencedin the field of trail. practice .and board certified appella~e .'\

spetialists; and approval py the FIA Executive CoIIlllJjttee~ cotn:rl1ehts: as follows I I .'

conceriIin.g thePropo,sed Revisions to Standard Juryrnstfucti6ns.

Pro"losed~l1struction:40103-"-Greater Weight ofthe Evide~ce .\L.

, '. . i'"

. theproposedinstructionre~defininggreater weighj: o'ithe evidenc~ shouldnot

\ "

i be recom:rr:tended for approval because it substantively,changes the parties' burden I

ofproof. . " :'

Proposed instructiob 401.3, Greater Weight ofthe E'videnge, is identical to the .' \ . I .

,existing standardjury instruction on greater weight ofthe evidence, Florida Standard , .,

JuryInstruction (Civil) 3.9,'except forthe addition oft1;J.is sentence: .

T<;> prove a 9laim [or defenseJby the greater weight ofthe evidence, the ( party must convince you~ by the evidence presel)ted in court, that what [he] [she} [it] is trying to prove is probably true.

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This revi,sion is a substantive 'chal1ge to the defmition or greater weight ofth~ / " , ' ' '1 ' . .

evidence because it introduces a new element that is hot present in the current

,y .

instruction, specifically, a probability that the matter to be proven is true. FJA objects

to·this revision because it is a substantive change in the instruction that can lead to , . 1 . , .' .

anomalous and unfair results.

The current instruction on greater weight of the evidence does hot require' the

. • I •

jury tp determine whether theiclaim or defense to bevroven is probably true. Instead, ,

. .' '\ . ,

it asks the jury to determine whether the evidence favoring the claim or ,defense is

more persuasive and convincing than the evidence OPposiilg it. Currentinstruction '

3.9 reads: "'Greater weight of the evidence' means the more persuasive and·

convrncing force and effect of the entire evidel1ce in the case.;' Thus, the current

mstruction directs the jury to perform a balancing.test and decide which side's . \

" !

evidence is more·persuasive and cOlivincing than the evidence on the other side. It

ddes not ask the jury to determine whether it believes the claim or defense to be

provep is probably true.

This distinctiol1 will affect the outcome' in .cases in. which the jury is not

convincedthat eitherparty's case is probably true. After considering all the evidence,

\.

jury may decide that the truth is not quite what the plaintiff claims it to be and not

quite what the defense claims it to be either. The jury may believe that the truth is

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34

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some third version ofevents that does'n~t match,what either party presentedin court,

or it may fmd that it simply cannot determine what happened with sufficient

confidence to say that it is probahlytrlle. In that situatiop., however, the juryaltnost , )

always be able to detertnine that the evidence fav9ring one side is more persuasive

i and convincing than the evidence favoring the qther. Under the cUrrent instrllctibn,

that is all that is necessary.

lithe party that has the burden of proofpilts forth the'more convincmg ca~e, " I

" , , ' .. ' , ,', ,I

thenit would prevail under the currentinstruction,'lJlit it wouldn6t prevail under • /'. I ' •

\ , ,

proposed rule 401.3 if the jury is not ~onvin6edthat ,its c.laiin ord.efense is probably

trlle. This would lead to an ah6inalbus result, because the' party who put forth the , I

. ; , ,

most convincing case would lqse, having failedto convinc~ the jury that its claim or • • I .

I ) _".,

defepse is probably trlle, and the party who put forth the feast convincing cas~ would

WIn.

, To state this hypothetical ,in termS ofprobability percentages, assume ajhry

decides there is a 45% probability that the plaintiff's version of eventsis true and a

, ,

35% likelihood that the defendant's version ofeventsis trlle. Ifthe plairitiffhas the J '

, '

burden ofproof, the plaintiffwould prevail under the current mstruction Becausethe

\ " jury has found the plaintiff's case more convincing than the defendant's, but under

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the proposed new instruction, the def~ndant would prevail because the plamtiff has,

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,not convinced-'t1).ejury that there is a50% or greater probability that the piaintiffs

, version is true. Under the proposed new instruction, the defendant would prevail ' . ) I

even though its case was the least convincing and least persuasive., ,

": The SecondDistrict Court ofAppeal's discussion ofthe greater;.weight-df4he'­. L . .

evidence standard ihIn re Estate ofBrackett,Wakefieldv. Brackett, 109 Sb. 2d 375 , . '. j

(Fla. 2d DCA 1959) supports the balancing approach embodied in the current , !

instruction, instruction. 3.9. -The courtwrdte: , .

, i

Weight of the' evidence'" has been held" to be~ equivalent to "preponderance ofthe evidence." It simplymeans that proofon on~ side of a causeoutweighs the proof on the other side.

. Aswassta~ed in the case ofWcildron v. New York Cent.Ry; ·Co., 1922, 106 Ohio S1. 371, 140 N.B. 161, 163,as follows:

"The,terms 'weight of evide.nce' and 'sufficierit evidence' have long been rega~ded as synonymous-terms 8:nd lised interchangeably."

"Weightofevidence" does not necessarily lIie~n a greaternUthber 'of witnesses, since quality of testimony and credibility must also be consi4ered. Bjorklund v. Continental Casualty Co., 1931, 161 Wash. 340,297 P. 155, 160.

"Weight of evidence" is not a question o~ mathematics but depends on its effect in inducing belief. Chenery v. Russell, 1933, 132' Me. 130, 167A. 857, 858.

The expression "weight~of evidence" signifies that the proof on one side is greater than on the other, and. in any proceedings before a trialju,dge,probative value ofthe testimony ofeach witness, and not the quantity or amount of evidence, detemiines its weight.

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109 So; 2d 378.·

Propos~d instruction 401.? confusingly narrows the gap betweeiithe greater.

vyeight of the evidence standard and the "clear and convincing evidence" standa.rd.

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To satisfy the greater wtiight ofthe evidence standard under 401.3, t4e party hearing .. . . .. / . .' . ... .. 'I·· .

the burden of proof "must convince" the jupr to believe. the. fact in question;

Reasonable jlirors;·mayfmd that standard to:be indistinguishable from the statrdard

. i • \. , ," .

for clear and convincing evidence thafthe proof"produces a flITIl beliefor conviction·

. without hesitation about the matter in issue."· The "mu.st convince" standard is too

high.

Forth~se reasons,· we oQjel~ftothe seco~d sentence inpropose,dinstruction· '\ ' '.

401.3, which adds a'-new element to thedefmition of greaterweight of the evidence

requiting the jury to detetrhine if the claim or defense is probably true. We request I .,

that this sentence be deleted, recognizing that this would leave the curtent instruction

unchanged.

Therefore,· t~e instructi~n should not be recommended for approval by the ( (

Supreme Court of Florida.

Proposed Instruction 402.4c-Professiolial Negligence

The Florida Justice Associa~ion submits that the proposed instruction 402:4c..

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,-' shouldbe modifiedbecause the proposedins~ctioninaccurately reflectsFloridalaw

concemib:g the effect ofthe 4iscovery ofthe presence ofa foreign Cibjectin a person'8

body.

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Florida Statute section 766.102(3) 'establishes that "the discovery of the

presence ofa foreign body, such as sponge,clamp, forceps, surgical needle, or other

paraphernaliacommonlyused in surgidtl, exatrrination, or diagn~sticprocedtites shall

be prima facie evidence of negligence on the part of the healthcare provider."

) , Proposed insttuction 4Q2.4c. omits any reference-either expressly or byl '.,

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defihition~f the concept of ''primafacie.'' Instead, that instruction states: "The

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presence of an object in (clai1l1atit's) body; sucp as a (n,ame of foreign"body) is j

--;,evidence of negligence on the part of (defendant) and may be considered by you:; 'j

tog9ther with the other facts andcircumstances, in determining whether su.ch pers~)I~ , . . J .

was negligent." The omission from the instruction ofany reference to the cOIrcept of

''prima facie" ririscharacterizes the legal effect o~ the discovery of a for~ign object

because thatonllssion conceals from the july the fact that discovery of the foreign

object is, in and of itself, sufficient evidence of negligence to support a verdict in

favor of the claimant.

. The defmition of''primafacie" employedby the Florida Supreme Court meatls

"evidence sufficient to establish a fact1ll1less'and untilrebutted." State v. Kahler, 232

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So. 24 166, 168 (Fla;. 1970). Acco,rd, e.g., Castleman v. Offi(J'e a/Comptroller, 538

So. 2d 1365(Fla. 1st DCA 1989). Propose,d instruction402.4(c) is legally insufficient , ~.

.-for failing to instruct the jurors that the presence ofa foreign object in the claimant's

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body is evidence sufficient to establish the fact of inedicallI}.alpractice, 'unless and

until re~utted by the Defendant. Therefore, the' instruction should not be

, recoIi:m:l.ended for approval by the 'Supreme Court ofFlorida.

Proposed Instruction 402.4d-=ProfessioIial Negligence " \

Proposed,instruction 402.4d. shouldnotbetecommen'~edfori approval because ,/

. " .it mistakenly state~ the-legal effect ofthe failUre of a defendant to mamtain ryquirlf'd

records. The Florida Supreme Court, in Public Health Trust v. 'Valcin, 507 So. 2d r ' /

596 (Fla.. 1987); ~eld that the effect ofa malpractice defendant'$ failure to maintain // H

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requITed records that, works to the prejudice of the c~aimaht cr~ated a "rebuttable '~

presumption'. . . [which] shifts the burden of proof, insuring. that the iSsue of

negligence goes to, the jury." ld. at 600-01. The instruction proposed by the , . 7 committee mistakenlyprovides only that the jury"mayinfer that the missing evidence

contain proofofnegligence," not that a presumption is created by which the burden

.of disproving negligence is shifted to the defendant.

. Therefore, the instructionsh(n~:1d not be recoIIlItlended for approval by the

Supreme Court of Florida.

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Propo'sed Instruction 404.5-Medical Malpractice Insurer's Bad Faith

[Col:UIl+ent to be provided separately]

Pr6~osed Instruction 411.4a. andA14.4a.-'LegalCause

, The Florida Justice Association; Cbfmne1?-ts as follo,¥>sconcerriing the propo'~ed

, instructions defining "legal cause" in cases involving claims Qfdvil theftandclaimS ' ri

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by employees aga;inst emplo):'erspo'ssibly subject to the exception to Workers'

Compen"sation iIl11nu~ity.

Proposed instructions 411Aa. and 414Aa., apparently mistakenly, refer to

actions being ~'cause of"severe: emotional distreks." Such severe emotional distress

is not likely to be a consequence of civil.theft, and is not necessarily an' element of \ . . ,

!i tort claim 'against an employer. 1\pparentiy the l'ap.guage was'irrip'orted frd:tti.the '

,,' defmitipn oflegal cause in cases iilvolving extreme outrageous, conduct (Iiistruction

410.6a.) andwas not appropriatelymodified. Therefore, thesetwo instructions should ,,

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'be 'corrected before being subIDitted to the Florida Supreme Court for approval., , I

Proposed Instruction 414.5-Workers', Compensation Immunity Exception

The FloridaJustice Assodatidn submits that proposedjnstruction 414.5should

be recommendeclfor adoption and approval bythe Supreme Court ofFlorida, because

the proposed'instruction accurately reflects Florida'law concern.ing the 111a~et in

", question in a clear and understandable form.

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Proposed ,Instruction 503.1-Punitive Damages

The Florida Justice Association submits that proposed instruction 503.1, , ~ "

dealing jwith punitiv~ damages, should be revised before being recofum.en.ded' for ' , I ' '

adoption, anq ~pproval by the Supreme Court of Florida so as to substittrte another ! ' ". \ '

term for the term "guilty," where the mstruction states that, "[p]unitiye' damages are, /, ,

warranted against (defendatit) it you fJ.ri.d' that Clear and convincin.g evidence that

\ (defendant) was guiity ofintentional misconduCt or gross negligence." Similarly, the

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. Committee ,should substitute different lan~age for the term "personally guilty" \

contaitled in allJof the subparagraphs (2) (b), (c), and (d).

, The FJA states that the term "guilty" isextremelytrusleading b~cause it , ,

connotes a level of culpability equal' to that ,which would support a criminal , , ) ,-,

, conviction. Jurors will invariably confuse the "clear and convincing'" standard of

proofapplicable to punitive damages with the "beyond areasonable doubt" standard

nece~sary for a "guilty" verdict in a cri~al case. I

, The FJA acknowledges, that the term "guilty" has, been used in standard

instruction PD 1 previously approved by the CoUrt. However, becal1se the Supreme / . !,

Court's committee is recommending revisions to instructions includin.g the punitive I

damages instruction, instruction 503.1 should be revised to use less confusing

terminology. Therefore, the instruction should not be recoImnended for appr~val by

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the SU'prerne Court of Florida.

. Respectfully -submitted,

By:---,--"'--'------.,.'----'--'---'----'-- _ FRANKM. PETosA,Ptesident.

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Frain: Rick Piedra Sent: Monday, May 05,20088:25 AM To: 'tgunn@fowlerwhite.com' I ' ~c: Tom Koval; Ralph Gonzalez ­Stibject:Proposed Jury Instruction/We Immunity Dear Tracy, .

, ­

I have a question on the proposedjury instruction~ f?rintehtional torts as an exception to the exclusive remedy of "Vorkers compensatioh. I'Ve been fqllbwing this issue for some time.

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The proposed instruction 414.5 states in par. 2 "vvhether (D~fendant) (a)engag~din>t:ohdut:t that (Defendant) knew, based upon [priorsimBarincidentsl [orJ[explicitwarningsspecifically _ . \identifying a knoWn danger], was virtually c-e'rtaintoresalfin.deafhor injury to [Claimant)..."

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. " notice that the "prior simiiar incidents" arid the "expJiclfwaniings" ,phrases are in brackets~ . I assume this mearisthat one or the other,(or both?),'MUS1begiven tothejurY, correct? In.ottier words, before the judge would. a.llow this togo tathe jury,_heW6uICl have tOfind that the plaintiff .has presented evidence of either prior simiiaraccidentsorexplicitvltarJ:1irigs cabout the condition. Theh,subpars. (b) and (c) impose additional requirements to afihdlng of liability. .

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Thanks. . i. . Rick Piedra, Esq.

Senior Corporate Counsel/Litigation · FGCllnsurance Group 6300 University Parkway -Sarasota, FL 34240-8424 Tel. (941) 907-2557

· Fax (941) 907-3380 ~mail: rpiedra@fcci-group.com

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