united states district court for the district of nebraska · web view2014. 9. 17. · christopher...

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JUN!OtzotoIN THE UNITED STATES DISTRICT COUR OF;-::,'CEo

FOR THE DISTRICT OF NEBRASKA P THf!! eLEFIK

CHRISTOPHER S. MANN, )))

Vs. )

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MOBILE MEDIA ENTERPRISES LLC, ))

Defendant. )

8:07CV479

FINAL JURY INSTRUCTIONS

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INSTRUCTION NO. 1

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

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

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

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

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

are not repeated here.

The instructions I am about to give you now are in writing and will be available to you

in the jury room. I emphasize, however, that this does not mean they are more important than

my earlier instructions. Again, all instructions, whenever given and whether in writing or

not, must be followed.

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INSTRUCTION NO. 2

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

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

your verdict should be.

II

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INSTRUCTION NO.3

In deciding what the facts are, you may have to decide what testimony you believe and

what testimony you do not believe. You may believe all of what a witness said, or only part

of it, or none of it.

In deciding what testimony to believe, you may consider a witness' intelligence, the

opportunity a witness had to see or hear the things testified about, a witness' memory, any

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

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

reasonableness of the testimony, and the extent to which the testimony is consistent with any

evidence that you believe.

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INSTRUCTION NO. 4 tf

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

whether they are corporations or individuals.

INSTRUCTION NO. 5

NEGLIGENCE

I. PLAINTIFF'S CLAIMS

A. Issues

The parties have agreed that on June 16, 2006, plaintiff Christopher Mann, his wife

Sherrie, and his son Garrett attended the NCAA College World Series in Omaha, Nebraska.

Plaintiff and his son walked through a tent hosted by defendant Mobile Media Enterprises,

LLC on their way to the stadium. Mobile Media Enterprises had erected a tent in order to

present its marketing and promotional activities on behalf of its client, Cingular Wireless, and

had designed and constructed approximately nine stations throughout the tent featuring sports

related games and events incorporating Cingular Wireless branding. One of the stations

featured a "Test Your Strength" game in which a participant swings a mallet in an attempt

to ring a bell and win prizes. In the "Test Your Strength" game, Mobile Media Enterprises

employed the use of two different mallets (a long-handled mallet and a short-handled mallet)

and two strike stations (one with a short bell board and one with a longer bell board). On

June 16, 2006, one of Defendant's employees, Joe Franzese, urged plaintiff and his son to

"test his strength." After his son failed to ring the bell, plaintiff swung the mallet in an

attempt to ring the bell and win prizes for his son. After he swung the mallet and struck the

plate on the lever arm, the mallet struck the plaintiff, breaking his nose and cutting his face

below the right eye. Plaintiff received subsequent medical treatment for his injuries.

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The plaintiff, Christopher S. Mann, claims that the defendant, Mobile Media

Enterprises LLC, was negligent in one or more of the following ways

I. In failing to provide any adequate warning to plaintiff of the risks of physical injury involved in playing the "Test Your Strength" game;

2. In failing to provide any adequate warning to plaintiff of the risk that the mallet supplied by defendant to plaintiff could bounce off the strike plate upon contact with such force that it could strike plaintiffs face or

3. In providing a mallet for the "Test Your Strength" game which, because of its size and properties, was unsuitable for plaintiff in that it exposed plaintiff to an unreasonable risk of harm.

The plaintiff, Christopher S. Mann, also claims that he was injured as a result of that

negligence and seeks a judgment against the defendant for his damages.

The defendant, Mobile Media Enterprises, denies it was negligent in any fashion, and

in addition, affirmatively alleges that the plaintiff was contributorily negligent and assumed

the risk of injury.

B. Plaintiffs Burden of Proof

In this case, the plaintiff may prove negligence in any one of three different ways: (1)

Common Law Negligence, (2) Premises Liability, or (3) Negligently Supplying a Chattel.

1. Common Law Negligence

Before the plaintiff can recover against the defendant for common law negligence, the

plaintiff must prove, by the greater weight of the evidence, each and all of the following:

a. That the defendant was negligent in one or more of the ways claimed by the plaintiff

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b. That this negligence was a proximate cause of the occurrence;

c. That the occurrence was a proximate cause of some damage to the plaintiff;and

d. The nature and extent of that damage.

2. Premises Liability

The plaintiff, Christopher S. Mann, was a lawful entrant in the defendant's marketing

tent on June 16, 2006. Before the plaintiff can recover against the defendant on his claim of

damages based on a condition in the defendant's marketing tent, the plaintiff must prove by

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

a. That the defendant either created the condition, knew of the condition, or by the exercise of reasonable care, would have discovered the condition;

b. That the defendant should have realized that the condition involved an unreasonable risk of harm to lawful entrants, such as the Plaintiff;

c. That the defendant should have expected a lawful entrant, such as the plaintiff, either:

1. Would not discover or realize the danger; or

n. Would fail to protect himself against the danger;

d. That the defendant failed to use reasonable care to protect lawful entrants against the danger;

e. That the condition was a proximate cause of some damage to the plaintiff;and

f. The nature and extent of that damage.

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3. Supplying a Chattel

Before the plaintiff can recover against the defendant on his claim that the defendant

failed to warn him that playing the Test Your Strength game using the short mallet was

dangerous, the plaintiff must prove, by the greater weight of the evidence, each and all of the

following:

1. That the short mallet was supplied by the defendant;

2. That the plaintiff is someone the defendant should expect to be endangered by the short mallet's probable use;

3. That the defendant knew or had reason to know that its short mallet was or was likely to be dangerous when put to the use for which it was supplied;

4. That the defendant knew or had reason to know that those for whose use the short mallet was supplied would not realize the danger;

5. That the defendant failed to provide reasonably foreseeable users of the short mallet with adequate warning of that danger;

6. That this failure to warn reasonably foreseeable users of the short mallet of the danger was a proximate cause of some damage to the plaintiff; and

7. The nature and extent of that damage.

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C. Effect of Findings

If the plaintiff has failed to establish that the defendant was negligent in any one of

the three different ways described above, your verdict will be for the defendant and you will

complete Verdict Form No. 1.

On the other hand, if the Plaintiff has established by the greater weight of the

evidence that the defendant was negligent in any one of the three different ways described

above, then you must consider the defenses of the defendant.

II. DEFENDANT'S DEFENSES

A. Issues

In defense to the Plaintiffs claim, the defendant claims that the plaintiff, Christopher

S. Mann, was contributorily negligent, and that plaintiff assumed the risk of his injuries.

The plaintiff denies all of the defendant's claims.

B. Burden of Proof

1. Assumption of Risk

In connection with the defense of assumption of risk," the burden is on the defendant

to prove, by the greater weight of the evidence, each and all of the following:

a. That the plaintiff knew of and understood the specific danger;

b. That the plaintiff voluntarily exposed himself to that danger; and

c. That the plaintiffs injury occurred as a result of his exposure to that danger.

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If the defendant has met its burden of proving that the plaintiff assumed the risk, then

your verdict must be for the defendant, and this is true even if you find that the defendant was

negligent and that its negligence was also a proximate cause of the plaintiffs injury.

If the defendant has not met this burden of proof, you must disregard the defense of

assumption of risk.

2. Contributory Negligence

Defendant claims that the plaintiff himself was negligent in one or more of the

following ways:

a. In using the Test Your Strength game in a manner which created the risk of injury to the plaintiff;

b. In placing his face in a position that created the risk of danger to the plaintiff;

c. In not using the Test Your Strength game in a reasonable and ordinary manner;

d. In creating and exposing himself to an open and obvious danger;

e. In failing to exercise due care for his own safety;

f. In failing or neglecting to control the force of the blow on rebound;

g. In failing to adjust his stance or posture while swinging the mallet so as to permit the mallet to hit the strike pad without injury to himself.

In connection with the defendant's claim that the plaintiff, Christopher S. Mann, was

contributorily negligent, the burden is upon the defendant to prove by the greater weight of

evidence, each of the following:

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a. That the plaintiff was negligent in one or more of the ways claimed by the defendant, and

b. That this negligence on the part of the plaintiff was a proximate cause of his own injury.

If the plaintiff has met his burden of proof and the defendant has not met its burden

of proof in connection with contributory negligence, then your verdict must be for the

plaintiff and, using Instruction No. 14, you must determine the amount of damage suffered

by the plaintiff and complete Verdict Form No.2.

Under Nebraska law, any contributory negligence chargeable to the plaintiff shall

diminish proportionately the amount awarded as damages for an injury attributable to the

plaintiffs contributory negligence; however, if the contributory negligence of the plaintiff

is equal to or greater than the total negligence of the defendant, the plaintiff must be totally

barred from recovery.

If both the plaintiff and the defendant have met their burdens of proof, then you must

compare their negligence. You will do that by completing Verdict Form No.3, which I will

read to you at the end of these instructions.

INSTRUCTION NO.6

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

facts have been proved by the greater weight of the evidence. In order to find that a fact has

been proved by the greater weight of the evidence, you must find that it is more likely true

than not true. It is determined by considering all of the evidence and deciding which

evidence is more believable. If, on any issue in the case, you cannot decide whether a fact

is more likely true than not true, you cannot find that it has been proved.

The greater weight of the evidence is not necessarily determined by the greater

number of witnesses or exhibits a party has presented.

You may have heard of the term "proof beyond a reasonable doubt." That is a stricter

standard which applies in criminal cases. It does not apply in civil cases such as this. You

should, therefore, put it out of your minds.

INSTRUCTION NO. 7

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

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

under similar circumstances.

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INSTRUCTION NO. 8

"Reasonable care" means the care that a reasonable person would exercise under

similar circumstances.

The term "unreasonable risk of harm" means a risk that a reasonable person, under all

the circumstances of the case, would not allow to continue.

INSTRUCTION NO. 9

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The words "should have realized'' mean that the defendant was required to be

reasonably attentive and, where adequate information could not be obtained by being

reasonably attentive, to make reasonable inspections or investigations. The defendant was

also required to draw reasonably correct conclusions.

INSTRUCTION NO. 10

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

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

INSTRUCTION NO. 11

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

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

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

should consider the expert's credibility as a witness, the expert's information, and the reasons

given for any opinions expressed by the expert.

INSTRUCTION NO.12

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During this trial, testimony was given to you by deposition. Such testimony is under

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

INSTRUCTION NO. 13

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You are the sole judge of the credibility of the witnesses and the weight to be given

to their testimony. In determining this, you may consider the following:

1. The conduct and demeanor of the witness while testifying;

2. The sources of information, including the opportunity for seeing and knowing

/('he things about which the witness testified;

3. The ability of the witness to remember and to communicate accurately;

4. The reasonableness or unreasonableness of the testimony of the witness;

5. The interest or lack of interest of the witness in the result of this case;

6. The apparent fairness or bias of the witness;

7. Any previous statement or conduct of the witness that i s consistent or

inconsistent with the testimony of the witness at this trial; and

8. Any other evidence that affects the credibility of the witness or that tends to

support or contradict the testimony of the witness.

INSTRUCTION NO. 14

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If you return a verdict for the Plaintiff, then you must decide how much money will

fairly compensate the Plaintiff for his injuries.

I am about to give you a list of the things you may consider in making this decision.

From this list, you must only consider those things you decide were proximately caused by

Defendant's negligence:

1. The nature and extent of the injury, including whether the injury is temporary or

permanent and whether any resulting disability is partial;

2. The reasonable value of the medical, similar care and supplies reasonably needed

by and provided in the future; and

3. The physical pain and mental suffering the plaintiff experienced as a result of

the injury, and is reasonably certain to experience in the future.

Remember, throughout your deliberations you must not engage in any speculation,

guess, or conjecture and you must not award any damages by way of punishment or through

sympathy.

INSTRUCTION NO. 15

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If you decide that the plaintiff is entitled to recover damages for any future losses,

then you must reduce those damages to their present cash value. You must decide how much

money must be given to the plaintiff today to compensate him fairly for his future losses.

INSTRUCTION NO. 16

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

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

all of those amounts will be added together, and that the total will be divided by the number

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

chance is invalid.

INSTRUCTION NO. 17

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In conducting your deliberations and returning your verdict, there are certain rules you must

follow.

First, when you go to the jury room, you must select one of your members as your

foreperson. That person will preside over your discussions and speak for you here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You

should try to reach agreement if you can do so without violence to individual judgment, because a

verdict must be unanimous. After two hours of deliberation, you may reach a verdict agreed to by

eight of nine of you. After four hours of deliberation, you may reach a verdict agreed to by seven of

nine of you. If your verdict is unanimous, it should be signed by the presiding juror only. If you

verdict is not unanimous, it should be signed by each of the jurors who do agree to it.

Each of you must make your own conscientious decision, but only after you have considered

all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow

JUrors.

Do not be afraid to change your opinions if the discussion persuades you that you should.

But do not come to a decision simply because other jurors think it is right, or simply to reach a

verdict. Remember at all times that you are not partisans. You are judges- judges of the facts.

Your sole interest is to seek the truth from the evidence in the case.

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

to me through the marshal or bailiff, signed by one or more jurors. I will respond as soon as possible

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either in writing or orally in open court. Remember that you should not tell anyone- including me

how your votes stand numerically.

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

to you in my instructions. The verdict must be unanimous. Nothing I have said or done is intended

to suggest what your verdict should be that is entirely for you to decide.

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

case. The verdict forms read:

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VERDICT FORM NO. 1

We, the jury duly impaneled and sworn in the above-entitled cause, do find for the

Defendant.

DATED this day of June, 20__.

Foreperson- - -- --- ---

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VERDICT FORM NO. 2

We, the jury duly impaneled and sworn in the above-entitled cause, do find for the Plaintiff

and assess the Plaintiffs damages as follows:

$ _

DATED this day of June, 2010.

Foreperson

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VERDICT FORM NO. 3

We, the jury, find that both the Plaintiff and the Defendant have met their burdens of proof. We answer the questions on Verdict Form No. 3 as follows:

LIST OF PERCENTAGES:

What percentage of the negligence was attributed toChristopher S. Mann?

What percentage of the negligence was attributed to Mobile Media Enterprises LLC?

---- %

%

The total negligence must add up to 100%. TOTAL = 100%

If the negligence of the Plaintiff, Christopher S. Mann, equals 50% or more, then you must return a verdict for the Defendant: Date and sign a verdict (Verdict Form No. 1) for the Defendant and return it to the Court.

If the negligence of the Plaintiff is less than 50%, then you must return a verdict for the Plaintiff and, using Instruction No. 14, you must determine the amount of damage suffered by the Plaintiff, and enter that figure.

Plaintiff Christopher S. Mann's damages (100%) figured pursuant to Instruction No. 14 are$ _

DATED this day of June, 2010.

Foreperson

You will take these forms to the jury room, and when each of you has agreed on the

verdict, your foreperson will fill in the appropriate forms, sign and date them, and advise the

courtroom deputy that you are ready to return to the courtroom.

If you do not agree on a verdict by 5:00 o'clock p.m., you may separate and return for

deliberation at 9:00 o'clock a.m. on the next business day. You may deliberate after 5:00

o'clock p.m., but if so, please advise the courtroom deputy of your intention to do so. You may

also separate for meals during the course of your deliberations, but if you do separate for meals

please contact the courtroom deputy to advise her of your intention to separate and when you

expect to return to the jury room to reconvene your deliberations. If you do separate, then

during that time, you are not allowed to discuss this case with anyone, even another juror.

SUBMITTED /2: t )Q a.m.

DATED June , 20__.

BY THE COURT:

United States Magistrate Judge

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