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Filing # 81489228 E-Filed 11/30/2018 05:39:03 PM
IN THE CIRCUIT COURT OF THE
TWELFTH JUDICIAL CIRCUIT, IN
AND FOR SARASOTA COUNTY,
FLORIDA
JUDY RILEY, CASE NO. 16-CA-006106
Plaintiff,
VS.
KIA MOTORS AMERICA, INC,,
Defendant.
/
DEFENDANT, KIA MOTORS AMERICA, INC.'S, OBJECTIONS TO PLAINTIFEF’S
PROPOSED JURY INSTRUCTIONS
Defendant, KIA MOTORS AMERICA, INC.’s (““KMA”), by and through its undersigned
counsel, hereby files its Objections to Plaintiff's Proposed Jury Instruction Nos. 16, 18, 19, 20, 22,
23, 24, 25, 26, 26 (mis-numbered), 27, 28, 29 and 30 as they are not standard instructions, are
argumentative, repetitive and misstatements of Florida law. KMA submits the following in
support of its objections:
MEMORANDUM OF LAW.
I The Purpose of Jury Instructions.
Jury instructions should use easily understandable language that is not argumentative,
repetitive, or negative. Since 1967, the purpose of the Florida Supreme Court Committee on
Standard Jury Instructions (“Committee”) “has been to prepare instructions that express the
applicable issues and guiding legal principles briefly and in simple, understandable language,
without argument, without unnecessary repetition and without reliance on negative charges.”
Fla. Std. Jury Instr. (Civ.), “The Theory and Technique of Charging a Jury with These Instructions”
(emphasis added), attached hereto as Exhibit A; see also Wood vy. Equitable Life Assur. Soc. of U.
S., 212 So. 2d 77, 78 (Fla. 3d DCA 1968).
Filed 11/30/2018 07:03 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL
The Florida Supreme Court has approved this purpose. See Jn the matter of the use by the
trial courts of the Standard Jury Instructions, 198 So. 2d 319 (1967). Further, as it will be
discussed in greater detail below, Florida courts have consistently held that instructions may not
be argumentative, repetitive, or negative.
Il. General Principles of Jury Instructions.
A jury instruction is immaterial if it is argumentative, repetitive or negative, regardless of
whether or not it correctly states the law. Thus, a jury instruction that may be a correct statement
of the law does not excuse the use of argumentative, repetitive, or negative language. See
Gutierrez v. State, 177 So. 3d 226, 230 (Fla. 2015) (“[L]lack of corroboration is a proper subject
of argument, not jury instruction.”); Seaboard Sys. R.R., Inc. v. Mells, 528 So. 2d 934, 938 (Fla.
Ist DCA 1988) (“[A|lthough the charges in question correctly stated the principles of law, ‘such
charges as framed are essentially argumentative, repetitive, and adequately covered by the general
charges on negligence.’”’).
In fact, the standard jury instructions are preferred, and the Florida Rules of Civil Procedure
require a trial court to explain any variance from the standard instructions. See Gutierrez, 177 So.
3d at 230 (“Standard jury instructions are presumed correct and are preferred over special
instructions.”); BellSouth Telecommunications, Inc. v. Meeks, 863 So. 2d 287, 292 (Fla. 2003). A
trial court should not vary from the standard instructions unless the “applicable Standard Jury
Instruction is erroneous or inadequate.” Fla. R. Civ. P. 1.470(b). If the trial court deviates from
the standard instructions, the court is required to state, on the record, why 1t modified an applicable
standard instruction or gave an additional special instruction. Fla. R. Civ. P. 1.470(b).
Special or case-specific instructions should be drafted in the same manner as the standard
instructions. When special or case-specific instructions are required in a case, “the format,
sequence, and technique used in the standard instructions should be followed to the extent
possible.” Fla. Std. Jury Instr. (Civ.), “How to Use This Book,” attached hereto as Exhibit B.
Hil. Jury Instructions Should Not Be Argumentative.
Since 1967, one of the Committee’s overlying goals has been “to omit such argumentative
charges and to remove all advocacy from the charge....” St. Louis-San Francisco Ry. Co. v. White,
369 So. 2d 1007, 1014 (Fla. Ist DCA 1979) (Smith, C.J., concurring); see also Robin Gibson,
“Theories of Liability,” Products Liability in Florida § 2.3 (Fla. Bar. CLE 3d ed. 1995) (“Most
defensive instructions that historically had been used in negligence cases...were felt to be
argumentative, best left for lawyer advocacy, and have been excluded.”) (citing Committee Notes
on Use for Instructions 3.3(a), 4.1, 4.3, 4.7, 4.8, 4.13, 4.14); Jn re Standard Jury Instructions In
Civil Cases-Report No. 09-01, 35 So. 3d 666, 685 (Fla. 2010) (in Notes on Use for Instruction
401.4, the Committee recommends an “argumentative and negative” charge not be given); Veliz v.
Am. Hosp., Inc., 414 So. 2d 226, 227-28 (Fla. 3d DCA 1982).
A jury does not need argumentative instructions to make an informed decision. The jury
should be given general or neutral statements of the law. Hunzinger Const. Corp. v. Quarles &
Brady Gen. P’ship, 735 So. 2d 589, 596 (Fla. 4th DCA 1999) (disapproving of jury instruction
that “was not a neutral statement of the law to be applied to the case”); City of Tampa v. Long, 638
So. 2d 35 (Fla. 1994) (instruction that did not address all factors that jurors could consider gave
only part of story and was therefore not balanced).
Giving an argumentative jury instruction may be reversible error. See Smith v. Canevary,
553 So. 2d 1312, 1312-16 (Fla. 3d DCA 1989) (holding it is reversible error to give a special jury
instruction on doctrine of unavoidable accident, absent extraordinary circumstances, because
instruction is “unnecessary, argumentative, and may mislead or confuse the jury as to the legal
standard of negligence in Florida”); Sierra v. Winn Dixie Stores, Inc., 646 So. 2d 264 (Fla. 3d DCA
1994) (reversing trial court for giving jury an instruction that tended to endorse argumentative
position of defendant and was otherwise unnecessary and potentially confusing).
IV. Jury Instructions Should Not Be Repetitive.
Florida courts have also long disapproved of repetition in jury instructions. Lithgow
Funeral Centers v. Loftin, 60 So. 2d 745, 747 (Fla. 1952) (citing Biscayne Beach Theatre y. Hill,
9 So. 2d 109 (Fla. 1942); Farnsworth vy. Tampa Elec. Co., 57 So. 233 (Fla. 1911); Jacksonville
Elec. Co. v. Adams, 39 So. 183 (Fla. 1905)).
Repetition gives undue emphasis to a specific fact or concept. “There is no reason for
saying the same thing more than once except for the purpose of adding emphasis to the statement.”
Lithgow Funeral Centers v. Loftin, 60 So. 2d 745, 747 (Fla. 1952) (citations omitted); see also
Florida Power & Light Co. v. Robinson, 68 So. 2d 406, 413 (Fla. 1953) (“A brief but explicit
charge on the subject was given. Repetition 1s not required, as it serves only to give undue
emphasis.”’).
Giving a repetitive jury instruction can be reversible error. McCray v. State, 102 So. 831
(Fla. 1925) (“Repetition of a particular portion of charge after argument may be prejudicial
error.”); Collins Fruit Co. v. Giglio, 184 So. 2d 447, 450 (Fla. 2d DCA 1966) (finding that although
repetitive instruction did not rise to level of undue emphasis, this repetition along with other
irregularities supported the trial court’s decision to grant a new trial); Shaw v. Cong. Bldg., Inc.,
113 So. 2d 245, 247 (Fla. 3d DCA 1959) (reversing for a new trial in part because Jury instructions
unduly emphasized issue of contributory negligence where three full charges were given on the
issue In addition to multiple other mentions).
Vv
Jury Instructions Should Not Be Negative.
The Committee also disapproves of negative jury instructions. See, e.g., Fla. Std. Jury
Instr. (Civ.), “The Theory and Technique of Charging a Jury with These Instructions,” attached as
Exhibit A (“The Committee generally disapproved of negative instructions—those that tell the jury
not to do something.”); In re Standard Jury Instructions In Civil Cases-Report No. 09-01, 35 So.
3d 666, 685 (Fla. 2010) (in Notes on Use for Instruction 401.4, the Committee recommends an
“argumentative and negative” charge not be given’); see also Villar y. Pereiras, 588 So. 2d 678,
679 (Fla. 3d DCA 1991).
Rather, a proper instruction tells the jury what it should do, and giving a negative jury
instruction may be reversible error. Hunzinger Const. Corp. v. Quarles & Brady Gen. P'ship, 735
So. 2d 589, 596 (Fla. 4th DCA 1999) (affirming in part and reversing in part, but finding a negative
instruction was error); Villar v. Pereiras, 588 So. 2d 678, 679 (Fla. 3d DCA 1991) (reversing trial
court and noting that Supreme Court Committee on Standard Jury Instructions disfavors
“argumentative and negative” instructions).
OBJECTIONS TO PLAINTIFF’S PROPOSED JURY INSTRUCTIONS
No. 16. Plaintiff filed a one-count Complaint against Defendant for breach of
express warranty for defects arising from Plaintiff’s purchase of a 2013 Kia
Soul.
Defendant denies that it breached the express warranty.
Plaintiff objected to KMA’s Proposed Jury Instruction No. 16, and submitted a non-
standard instruction in its place. KMA’s Proposed Jury Instruction No. 16 tracks the Florida
Standard Jury Instruction 403.2, and should be used at trial.
No. 18. Plaintiff, Judy Riley, claims:
1. Defendant Kia Motors America breached its warranty by failing or refusing
to reasonably and adequately repair defects in Plaintiff’s vehicle covered
under Kia Motors America’s warranty;
2. Plaintiff's damages resulted from Kia Motor America’s breach.
3. Defendant Kia Motors America denies that it breached the warranty.
Plaintiff did provide any authority for Proposed Jury Instruction No. 18. However, this
Proposed Jury Instruction 1s repetitive of Plaintiff's Proposed Jury Instruction Nos. 16 and 20. To
include this instruction is nothing more than a self-serving statement by the Plaintiff to emphasize
to the jury, one more time, what the Plaintiff is claiming in this lawsuit. This 1s improper. KMA
and Plaintiff have both submitted Proposed Jury Instructions regarding the alleged claims in this
case. To permit a second instruction on the exact same issue is improper and the Plaintiff's
Proposed Jury Instruction No. 18 should not be given.
No. 19. The term “written warranty” means “any written affirmation of fact
or written promise made in connection with the sale of a consumer product by
a supplier to a buyer which relates to the nature of the material or
workmanship and affirms or promises that such material or workmanship is
defect free or will meet a specified level of performance over a specified period
of time, OR
Any undertaking in writing in connection with the sale by a supplier of a
consumer product to refund, repair, replace, or take other remedial action
with respect to such product in the event that such product fails to meet the
specifications set forth in the undertaking, which written affirmation, promise,
or undertaking becomes part of the basis of the bargain between a supplier
and a buyer for purposes other than resale of such product.”
The Plaintiff's Proposed Jury Instruction No. 19 quotes 15 U.S.C. § 2301(6)(A) and (B).
KMA’s Proposed Jury Instruction No. 19 only quotes 15 U.S.C. § 2301(6)(B), as that 1s the only
definition that is applicable to KMA’s express limited warranty and the issues in this case.
Plaintiff’s claims are that the vehicle did not brake properly and drifted to the right excessively.
KMA’s express limited warranty does not warrant that the vehicle will be defect free or have a
specified level of performance (e.g. the vehicle will stop within a certain distance of applying the
brakes), as included in 15 U.S.C. § 2301(6)(A). Rather, the express limited warranty at issue in
this case 1s to repair or replace any covered defect in materials or workmanship that may arise
during the covered time period, and it 1s subject to the terms of the warranty. KMA’s New Motor
Vehicle Limited Warranty does not warrant that the vehicle’s steering or braking will meet a
specified level of performance. In fact, the level of performance of the steering and braking are
dependent on many factors outside of KMA’s control, such as the owner’s maintenance of the
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vehicle, individual driving habits, weather, and road conditions. Therefore, the first paragraph of
Plaintiff's Proposed Jury Instruction No. 19 should not be given as it is not the proper statement
of law in this case.
No. 20. In order for Plaintiff to recover against Defendant for breach of
express warranty, Plaintiff must prove the following:
1. The defect or defects exist in a part or parts covered by the express
warranty;
2. The defect resulted from factory supplied materials or workmanship;
3. Defendant failed to comply with the terms of the express warranty by
refusing or failing to repair or replace parts defective in materials or
workmanship free of charge within a reasonable amount of time;
4. Plaintiff suffered damages as a result of Defendant’s failure to comply with
an obligation under its Limited Warranty.
If you find from your consideration of all the evidence, that Plaintiff has met
all of these elements, then your verdict should be for Plaintiff, Judy Riley, on
the claim of breach of express warranty.
If you find from your consideration of all the evidence, that Plaintiff has not
met all of these elements, then your verdict should be for Defendant, Kia
Motors America, on the claim of breach of express warranty.
KMA’s Proposed Jury Instruction No. 20 quotes the elements of Plaintiff's claim under
Florida law from Johnson v. Thor Motor Coach, Inc., 2016 WL 8939134, *4 (M.D. Fla. Aug. 1,
2016). As such, KMA’s Proposed Jury Instruction No. 20 is an accurate statement of Florida law.
On the other hand, Plaintiff's Proposed Jury Instruction No. 20 is simply self-serving
language drafted by the Plaintiff that is argumentative and not supported, as drafted, by the
authority cited to by Plaintiff. Plaintiff relies on 15 U.S.C. § 2310, but this only provides the
remedies available for consumer disputes and does not provide the elements of the cause of action.
Furthermore, Plaintiff relies upon case law based on the Florida Lemon Law and 15 U.S.C. § 2304,
which is the standard for full warranties. Both are inapplicable in this case. Plaintiff has not brought
any Florida Lemon Law claims and the warranty at issue is a limited warranty so §2304 does not
apply.! In stark contrast to the strict guidelines and requirements set forth under federal law for
full warranties, the law is "virtually silent with respect to the imposition of requirements on
manufacturers or sellers who issue a limited warranty." Ocana v. Ford, 992 So. 2d 319 (Fla. 3d
DCA 2008). In rejecting the plaintiff's argument, the Ocana court stated:
The plain language of the Act does not engraft the standards and
remedies of section 2304 to all warranties as argued by Ocana ... as
noted in the Act itself, those warranties that meet the federal
minimum standards are "full" warranties, and those that do not, are
"limited" warranties. To accept Ocana's argument would obliterate
the careful distinction that Congress established between the two
categories of warranties.
Id. at 325. Thus, Plaintiff's reliance on Mason is also misplaced as that case involved Florida
Lemon Law claims and claims brought pursuant to 15 U.S.C. 2304(a)(4).
Further, the additional cases Plaintiff relies upon show that KMA’s proposed jury
instruction is an accurate statement of the law. Chaurasia v. General Motors Corp., 126 P.3d 165
(Ariz. Ct. App. 2007) (“There is no cause of action under the MMWA for a limited warranty unless
the consumer can prove that the manufacturer did not comply with the limited express warranty’s
terms...to prove a breach of this warranty, Chaurasia must demonstrate that GM refused or
otherwise failed to pay for the repair to a covered item.”); Ocana y. Ford Motor Co., 992 So. 2d
319 (Fla. 3d DCA 2008) (“Under this state’s law, there can be no cause of action for breach of
express limited warranty unless the consumer can allege and prove that the manufacturer did not
comply with the limited express warranty’s terms.”); Brisson vy. Ford Motor Company, 2009 WL
605277 (M.D. Fla. March 9, 2009) (“To assert a cause of action for breach of express warranty
under Florida law, a consumer must allege that the manufacturer did not comply with the limited
' If a warrantor issues a full warranty that complies with the terms of 15 U.S.C. §2304, then the consumer
is entitled to the remedies listed therein which include "refund" or "replacement" if the warrantor cannot
remedy defects or malfunctions in the vehicle after a "reasonable number of attempts." See 15 U.S.C.
§2304(a)(4). However, this quoted language of Section 2304 does not apply to actions based on limited
watranties.
express warranty’s terms... The consumer must alleged that the manufacturer refused or failed to
adequately repair a covered item.”).
No. 22. A warrantor does not have unlimited time to comply with the
obligation to repair or replace under a limited warranty. If the warrantor has
not made adequate repairs or exceeded a reasonable time or number of repairs
the warranty has failed of its essential purpose and has been breached.
Plaintiff's Proposed Jury Instruction No. 22 is repetitive and argumentative and should not
be given. The elements of Plaintiff's claim will be outlined in either Plaintiff's Proposed Jury
Instruction No. 20 or KMA’s Proposed Jury Instruction No. 20. To then permit another instruction
is repetitive and unnecessary.
Additionally, this Proposed Jury Instruction 1s not a statement of law for breach of express
watranty cases. Rather, this is a statement that may be applicable in revocation of acceptance
cases. See Bland y. Freightliner LLC, 206 F. Supp. 2d 1202 (M.D. Fla. 2002). This is not such a
case. Therefore, Plaintiff's Proposed Jury Instruction No. 22 is unnecessary and not applicable to
a breach of express warranty claim.
No. 23. Plaintiffs need only show the manifestation of the defect in order to
prove the existence of the defect.
Plaintiff's Proposed Jury Instruction No. 23 is an incorrect statement of Florida law. Of
note, neither of the cases cited by Plaintiff support giving this instruction. In Armor Elevator Co.
v. Wood, the defendant was not permitted to offer a jury instruction that the plaintiff was under a
duty “to pin point [the] exact mechanical deficiency for or by reason of which the device proved
defective and failed...” 312 So. 2d 514, 515 (Fla. 3d DCA 1975). As such, Armor did not address
the propriety of giving this instruction. Additionally, Armor is cited to in the Standard Jury
Instructions as only being applicable, “[i]f a product fails under circumstances precluding any
other reasonable inference other than a defect in the product, a plaintiff is not required to pinpoint
any specific defect in the product.” See Notes on use for Florida Standard Jury Instruction 403.9.
That is not the situation in this case. Additionally, Florida law has clearly stated that Plaintiff is
required to prove the existence of a defect or malfunction if it 1s “not within the reasonable purview
of the average layperson.” See Pearson vy. Winnebago Industries, Inc., 2016 WL 6893937, *6
(M.D. Fla. Nov. 23, 2016); Johnson v. Thor Motor Coach, Inc., 2016 WL 8939134, *4 (M.D. Fla.
Aug. 1, 2016). Therefore, to permit the Plaintiff's Proposed Jury Instruction No. 23 would be a
misstatement of Florida law to the jury.
No. 24. The precise technical cause of a malfunction or defect need not be
pinpointed by the consumer to prove a breach of warranty.
Similar to Plaintiffs Proposed Jury Instruction No. 23, Jury Instruction No. 24 is a
misstatement of Florida law. KMA refers to and incorporates its objection to Plaintiff's Proposed
Jury Instruction No. 23 above.
Further, none of the cases cited by Plaintiff apply Florida law. As such, these cases are not
controlling, and the Standard Jury Instructions should be utilized.
No. 25. Plaintiff is not required to offer expert testimony in order to prove the
existence of a defect.
Plaintiff's Proposed Jury Instruction No. 25 is not a proper statement of the law. Rather,
in cases involving allegations of a defect in a vehicle’s brake system or steering system, expert
testimony is necessary. See Bailey v. Monaco Coach Corp., 350 F. Supp. 2d 1036 (N.D. Ga. 2004).
In fact, the cases Plaintiff cites, do not support this proposed instruction whatsoever. In Mason y.
Porsche Cars of North America, Inc., both parties presented expert testimony regarding whether
an alleged “shudder” constituted a non-conformity under Florida’s Lemon Law. 688 So. 2d 361
(Fla. 5th DCA 1997). As such, Mason did not stand for the proposition that a plaintiff is not
required to offer expert testimony, as in Mason the plaintiff did offer expert testimony. In
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Courtland Group Inc., v. Phillips Gold & Co., LLP, the only issue before the court was whether
the defendant was permitted to offer expert testimony regarding damages. 876 So. 2d 629 (Fla.
3d DCA 2004). Perhaps the most concerning, is Plaintiff's reliance on Bailey. Bailey
unequivocally states, “the proper functioning of a motorhome brake system is not within the
reasonable purview of the average layperson and, therefore, requires expert testimony.” 350 F.
Supp. 2d at 1045. Plaintiff has not cited to a single source that supports her Proposed Jury
Instruction No. 25; rather, Plaintiff's authority stands for the opposition proposition, that expert
testimony is necessary. Therefore, Plaintiff's Proposed Jury Instruction No. 25 should not be
given.
No. 26. A property owner is competent to testify as to the value of his or her
own personal property, such as an automobile.
Plaintiff's Proposed Jury Instruction No. 26 1s a misstatement of Florida law. An individual
is not per se able to testify about the value of their motor vehicle. Plaintiffs instruction fails to
include a vital portion of Florida law, that an owner can only testify to the value of property “if he
has personal knowledge of the property.” Cutler v. Pelletier, 507 So. 2d 676, 679 (Fla. 4th DCA
1987). The court further explained that “[p]ersonal knowledge means that the owner is familiar
with the characteristics of the property, has knowledge in or is acquainted with its uses and
purposes, and has experience in dealing with it.” Jd. (A witness was not qualified to testify
regarding the value of artwork when she lacked the necessary personal knowledge regarding the
works).
Plaintiff unequivocally testified at her deposition that she does not have any mechanical
training or experience. Deposition of Judy Riley pg. 31 line 19 thru 22. Plaintiff also does not
have any experience in vehicle appraisal or valuation. /d. 32:8-10. Nor has Plaintiff ever worked
for business that sold cars. /d. 32:14-16. Perhaps most importantly, Plaintiff testified she had not
1]
tried to calculate or make any notes regarding the damages she was seeking to recover in the
lawsuit. /d. 15:25-16:7. Therefore, Plaintiffis not able to competently testify regarding the value
of her vehicle as she lacks the necessary personal knowledge. Kia Motors Am., Inc. v. Doughty,
242 So. 3d 1172, 1177 (Fla. 2d DCA 2018) (reversing damages award and finding that any
conclusion about value a jury might draw from the facts presented by plaintiff “would be nothing
but speculation”). Therefore, this instruction should be denied.
No. 26 (mis-numbered). If you find for Plaintiff on her claims, then you must
calculate the amount of damages.
Plaintiff's Proposed Jury Instruction No. 26 (mis-numbered) deviates from the Standard
Jury Instructions. KMA’s Proposed Jury Instruction No. 23 closely tracks the Standard Jury
Instructions on damages, and that language should be utilized as Florida courts prefer the use of
the Standard Jury Instructions. Further, Plaintiff's proposed instruction 1s improper because it
directs that the jury “must calculate the amount of damages,” regardless of what evidence, or lack
thereof, has been presented regarding diminution in value. This is a misstatement of the law. If
Plaintiff fails to produce competent evidence to prove the amount of diminution of value, then
Plaintiff would only be entitled to nominal damages, if any. Kia Motors Am., Inc. v. Doughty, 242
So. 3d 1172, 1177 (Fla. 2d DCA 2018). Plaintiffs proposed instruction that the Jury “must
calculate amount of damages” requires the jury to determine mathematically an amount which
implies the award must be more than a nominal amount even though the Jury 1s required to only
award nominal damages, if any, if there 1s insufficient evidence presented regarding diminution of
value.
No. 27. The typical measure of damages for a claim for a breach of warranty
is the difference at the time and place of acceptance between the goods
accepted and the value that they would have been in if they had been as
warranted.
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ALTERNATIVE-SPECIAL DAMAGES
The measure of damages is the difference between the value of the vehicle as
warranted and the value of the vehicle at the time that the Plaintiff reasonably
should have concluded that Defendant would be unable to repair the vehicle.
Plaintiff does not cite to a single Florida case in support of her Proposed Jury Instruction
No. 27. Additionally, this is repetitive of Plaintiff's Proposed Jury Instruction No. 28. There
should only be one jury instruction regarding the measurement of damages. Permitting two
instructions 1s confusing and repetitive and must be precluded.
No. 28. To establish the difference in value, or diminished value, of the vehicle,
Plaintiff must provide credible evidence of the difference between (1) the value
of the vehicle in its defective condition as accepted, and (2) the value of the
vehicle if it had been in a non-defective condition as warranted.
Plaintiff's Proposed Jury Instruction No. 28 is repetitive, argumentative and not a proper
statement of Florida law and should not be permitted. Plaintiff cites to Florida Statute § 672.714(2)
in support of this proposed instruction. Florida Statute § 672.714(2) states: “[t]he measure of
damages for breach of warranty is the difference at the time and place of acceptance between the
value of the goods accepted and the value they would have had if they had been as warranted,
unless special circumstances show proximate damages of a different amount.” The language of
the statute should be standard given to the jury. Additionally, as cited and explained in KMA’s
Proposed Jury Instruction No. 23, Johnson v. Thor Motor Coach, Inc., provides the measurement
of damages under Florida law. 2016 WL 8939134, *5 (“Under Florida law, ‘[t]he measure of
damages for breach of warranty is the difference at the time and place of acceptance between the
value of the goods accepted and the value they would have had if they had been as warranted.’ Fla.
Stat. § 672.714(2). Accordingly, the proper measure of damages is the diminished value—1.e., the
difference between the purchase price of a non-defective RV on January 23, 2013, less the value
13
of a defective RV on January 23, 2013.”). Therefore, Plaintiff's Proposed Jury Instruction No. 28
should not be given as it 1s repetitive, argumentative and not an accurate statement of Florida law.
No. 29. The valuation of the vehicle at the time and place of acceptance can be
founded upon the trade-in value of the vehicle.
Plaintiff's Proposed Jury Instruction No. 29 is a misstatement of Florida law and Plaintiff
does not cite to a single Florida authority in support of this proposed instruction. Florida law is
clear that “[t]he measure of damages for breach of warranty is the difference at the time and place
of acceptance between the value of the goods accepted and the value they would have had if they
had been as warranted...” Fla. Stat. § 672.714(2); Kia Motors America, Inc. v. Doughty, 242 So.
3d 1172, 1175 (Fla. 2d DCA 2018). Additionally, Florida law has recognized that “the current
value of the defective car 1s irrelevant.” Bentley v. Volkswagen Group of America, Inc., 2013 WL
5927974, *1 (M.D. Fla. Nov. 5, 2013). Therefore, Plaintiff's Proposed Jury Instruction No. 29
should not be given.
No. 30. Diminished value may be calculated in any reasonable manner with
or without expert testimony.
Plaintiff's Proposed Jury Instruction No. 30 is a misstatement of Florida law and is not
supported by the cases she cites to. Rather, in Hill v. Mercedes Benz USA, LLC, the appellate court
upheld the trial court’s ruling that the plaintiffs failed to present competent evidence of damages.
619 S.E. 2d 353, 353 (Ct. of Appeals GA 2005). The trial court determined that the plaintiff's
“affidavit expressing her lay opinion as to the diminished value of the vehicle was insufficient
because it lacked a proper foundation,” therefore, summary Judgment was properly entered. /d. at
354,
Plaintiff's Proposed Jury Instruction No. 30 is also incomplete as it fails to explain what
“reasonable” means. As addressed above in response to Plaintiff’s Proposed Jury Instruction No.
14
26, an owner can only testify to the value of property “if he has personal knowledge of the
property.” Cutler v. Pelletier, 507 So. 2d 676, 679 (Fla. 4th DCA 1987). The court further
explained that “[p]ersonal knowledge means that the owner 1s familiar with the characteristics of
the property, has knowledge in or is acquainted with its uses and purposes, and has experience in
dealing with it.” /d. (A witness was not qualified to testify regarding the value of artwork when
she lacked the necessary personal knowledge regarding the works). To permit the Plaintiff's
Proposed Jury Instruction No. 30 omits this vital aspect of Florida law and would mislead the jury
to assuming that the Plaintiff's testimony alone 1s sufficient to establish diminished value, which
is not the standard. Therefore, Plaintiff's Proposed Jury Instruction No. 30 should not be given.
WHEREFORE, Defendant, KIA MOTORS AMERICA, INC., requests that this Court
enter an Order sustaining KMA’s objections to Plaintiffs Proposed Jury Instruction Nos. 16, 18,
19, 20, 22, 23, 24, 25, 26, 26 (mis-numbered), 27, 28, 29 and 30 and refraining from giving the
instructions to the jury.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on November 30, 2018, a true and correct copy of the foregoing
document was filed with the Clerk of Court using the Florida Courts e-Filing Portal which will
send an automatic e-mail message to all parties who have registered with the e-Filing Portal
system.
is) Atemee M. Adamy
FRANK D. HOSLEY
Florida Bar No. 078972
JUSTIN D. NIZNIK
Florida Bar No. 774901
Designated email addresses: AIMEE M. ADAMS
frank .hosley@bowmanandbrooke.com Florida Bar No. 099274
singer.casey@bowmanandbrooke.com BOWMAN AND BROOKE LLP
justin. niznik@bowmanandbrooke.com 1064 Greenwood Boulevard - Suite 212
valerie.serwert(@bowmanandbrooke.com Lake Mary, Florida 32746-5419
aimee.adams@bowmanandbrooke.com (407) 585-7600 — Tel (407) 585-7610 - Fax
tammie.proffitt@bowmanandbrooke.com Attorneys for Defendant,
KIA MOTORS AMERICA, INC.
15
EXHIBIT “A”
THE THEORY AND TECHNIQUE OF CHARGING
A JURY WITH THESE INSTRUCTIONS!
The Committee’s purpose has been to prepare imstructions that express the applicable issues and guiding
legal principles briefly and in simple, understandable language, without argument, without unnecessary
repetition and without reliance on negative charges. A serious commitment to that purpose seemed to the
Committee to require a number of changes in what appears to have been the customary manner of charging
juries in negligence cases.
More than a few familiar expressions which have been accepted in jury charges through years of repetition
have purposefully been omitted from Florida Standard Jury Instructions. In some instances, the Committee
has not only omitted the familiar expression but has also recommended affirmatively that it not be used.
Specific explanations of important omissions and recommendations are included in notes and comments
throughout the book. But consideration for the sensibilities of those experienced lawyers and judges who
will wonder at the absence of such familiar terms as negligence per se, dangerous instrumentality,
contributory negligence, burden of proof, preponderance of evidence and proximate cause requires some
general explanation at the outset of how and why, in keeping with the general purpose stated above, the
Committee found it necessary to omit such expressions
“to ... express the applicable issues and
guiding legal principles briefly and in simple,
understandable language”
Convinced that many jurors lose interest in and misinterpret the court’s charge simply because of the
tedium involved in listening to it for so long a time, the Committee strove for brevity in the charge. In this
effort, many words and phrases and some entire charges, heretofore in general use
From the Supreme Court’s order entered April 19, 1967: “The Court generally approves the theory and
technique of charging civil juries as recommended by the Committee and embodied in its proposed instructions.” Jn
the matter of the use by the trial courts of the Standard Jury Instructions, 198 So.2d 319 (1967). The Committee has
adhered to the same basic theory in the reorganization of the book. While the references in this section are to the
original instructions, the theory applies equally to the new and renumbered instructions. For conversion to the
current instructions, see the Conversion Chart on pages xxvil—xxxIV.
and not objectionable in themselves, were omitted from Florida Standard Jury Instructions in Civil Cases
because they appeared to add more length than substance to the charge.
The consequence of brevity in these charges is generality. For example, after repeated attempts to define
negligence both briefly and comprehensively, the Committee became satisfied that negligence is the
failure to use that degree of care which a reasonably careful person would use under like
circumstances (4.1). And the Committee became satisfied also that the benefits of elaborating upon,
paraphrasing, and particularizing the general definition of negligence, by the use of other language found
in abundance in appellate court opinions, treatises and texts, are not worth the price paid in lengthening
and complicating the charge.
Using Part IV of Florida Standard Jury Instructions, the trial judge will define negligence for the jury as
briefly and as generally as accuracy permits, not with a purpose to banish from the case the necessary
elaborations, paraphrases and particulars of negligence, but rather to rely on the jury, assisted by the
lawyers’ arguments, to deduce from the general definition the specific application appropriate to the case.
The goal of brevity seems to have been attained. This book of instructions is by far the slimmest of the
several volumes of standard or pattern instructions published in recent years (some are mentioned in the
Introduction). And, in types of cases that previously seemed to require charges of 20 minutes or more, as
few as 10 minutes are adequate for a charge employing Florida Standard Jury Instructions.
The effort to use understandable language is perhaps best illustrated by the charges on causation. See Part V and
especially 5.1. The Committee felt generally that more jurors are dazzled than are enlightened by charges that
assemble all the expressions 1n legal language on the subject of causation: the proximate cause, the remote cause,
the efficient cause, the concurring cause and the intervening cause that might or might not “break the chain” of
causation. Charge 5.1 is the result of the Committee’s attempt to express the essential elements of legal cause
without resorting to obscure or technical language, that 1s,
“|... without argument, without unnecessary repetition
and without reliance on negative charges. ’
One of the unfortunate roles assumed by trial judges 1n the past is that of advocating both sides of the case
by reading to the jury a series of argumentative charges favoring one side of the case and then, “on the
other hand,” reading another series of equally argumentative charges favoring the other side of the case. It
has been the Committee’s purpose to omit such argumentative charges and to remove all advocacy from
the charge. It was with this purpose in mind that the Committee recommended, among other things, that
the automobile not be characterized as a “dangerous instrumentality” (Comment on 3.3a) and that the
court not warn the jury not to infer negligence from the “mere fact of accident” (4.1).
A less obvious form of argument but one that the Committee devoted no less effort to avoid is the practice,
mn cases in which plaintiff cannot prevail unless he occupied a particular relationship to the defendant, of
instructing the jury upon the lesser duties owed plaintiff 1f he did not have that relationship to defendant. It
is of no benefit, for example, to charge the jury in a negligence case that a landowner need only refrain from
willfully or wantonly injuring a trespasser. If plaintiff cannot win unless he is an invitee, it 1s sufficient for
the jury to decide whether he was an invitee (3.2a, 3.4) before proceeding to determine whether the
landowner was negligent (3.5f). For similar reasons, 1f plaintiff was undoubtedly one to whom reasonable
care was owed by the defendant, the court should not charge in detail upon the reasons for the existence of
that duty. And, if the defendant is unquestionably responsible for the negligence of another, a recital of the
reasons for that rule is likewise better left to the argument of counsel. Part III is designed to permit the
elimination of such preliminary issues 1n cases 1n which they are not really issues at all.
The elimination of the term “contributory” negligence from the instruction (4.3; see also 5.1 Comment 4)
made unnecessary the usual repetition involved in explaining concepts of negligence and causation once
when speaking of conduct rendering the defendant liable and again when speaking of conduct reducing
plaintiff's recovery. The jury is plainly told (3.8, page 3) that the amount of claimant’s recovery will be
reduced if claimant was negligent (as defined in 4.1) and if that negligence was a “contributing” legal
cause (as defined in 5.1) of the complained of damage.
The Committee generally disapproved of negative instructions — those that tell the jury not to do
something.
EXHIBIT “B”
HOW TO USE THIS BOOK
This book contains standard jury instructions prepared by the Florida Standard Jury Instructions
Committee (Civil) and approved for publication by the Florida Supreme Court. Because it is
impossible to cover every circumstance or issue with standard instructions, these instructions
include only those that have been approved for the types of cases, primarily torts, that occur with
enough frequency to have warranted their preparation. Also, because of changes in the law, these
instructions may become outdated or in need of revision or supplementation. Although the
committee expends substantial effort in preparing standard instructions, the Florida Supreme
Court does not express an opinion as to their correctness. For these reasons, parties remain free to
contest a standard instruction’s legal correctness or to request additional or alternative
instructions.
A. Getting Started.
When compiling a set of proposed instructions, the following minimum steps should be taken:
] Determine the current and complete law required for instructing the jury 1n your case.
2 Make sure you are using the current version of Florida Standard Jury Instructions.
The official version of FSJI is located at the committee’s website,
www.floridasupremecourt.org/civ_jury_instructions/index.shtml. You can also check for
the latest updates by accessing the most recent publication date on the “Court Decisions
& Rules” link of the Florida Supreme Court’s website homepage,
www.floridasupremecourt.org. Also, check the “Rule Cases” link on the Clerk’s Office
webpage for instructions. Ensure that all updates from The Florida Bar are fully and
correctly inserted in printed versions of the book, and check the committee’s website for
any approved instructions that have not yet reached publication.
Compile a complete set of proposed instructions for your case from the instructions in this
book and, if necessary, by modifying standard instructions or drafting your own case-
specific instructions using other appropriate sources.
B. Using This Book for the First Time.
The introductory passages below provide useful guidance for preparation of jury instructions by
first-trme users of this book. Assembling a set of proposed instructions for the court follows
custom and organization that may vary somewhat depending on the type of case, and the judge
may have specific requirements as well. The model instructions in this book are included as
examples of how a set of instructions is customarily assembled. Even if those charges are not
specifically applicable to your particular case, they can assist you in organizing your proposed
instructions. Remember that standard instructions and model instructions may not fully cover the law
in any given case, and case-specific instructions may be required.
C. Finding the Right Instruction.
The instructions are listed by subject matter in the table of contents and in alphabetical order by
name in the index. At the start of each section, there is a list of the structions 1n that section. All
instructions are numbered and presented in numerical order. An instruction may be located by
number by quickly scanning the numbers in the running heads. As part of the 2008 reorganization
of this book, all substantive instructions for a particular claim have been grouped together.
D. Ensuring the Instruction Is Current.
Supplements to the Second Edition will have pages that contain the date when the page was last
revised. No date means the page was part of the revised, reorganized book published in 2010. The
notes below certain instructions may include the dates for authorities on which the instruction is based.
If the law has changed, the instruction may need to be modified accordingly. The committee’s process
of revising standard instructions can be lengthy because it involves discovering the need for a change,
researching the law, preparing and revising proposed instructions, and publishing the proposed
instructions for comment. Based on comments received, the proposed instructions may again be
modified. Only after this process is completed are the proposed instructions submitted to the Florida
Supreme Court for approval. Even if new instructions are approved by the Court, they may not yet
have appeared in a printed update to this book. All new instructions and revisions to this book,
including the latest Florida Supreme Court opinions and text of instructions, are published on the
Florida Supreme Court’s website homepage, www.floridasupremecourt.org. Check the site to ensure
that the book you are using is up to date and to ensure that you have the most current version of the
instruction.
E. Assembling a Set of Instructions.
This book contains a core of four sections, arranged in the order in which the trial judge will normally
instruct the jury, together with additional sections covering oaths, voir dire, instructions for evidentiary
and supplemental issues, verdict forms, and model instructions. Standard jury instructions were
initially developed for simple negligence cases and were added on an ad hoc basis over the ensuing
years.
In 2008, to improve juror communication, this book was substantially reorganized and many
instructions were modified by “plain English” changes. As now organized, the substantive
instructions for different types of claims are contained in a single section, followed by damage
instructions, general instructions, and closing instructions. The substantive instructions have also
been reordered so that the jury 1s instructed first on the issues and the legal rules that will govern
its decision. In addition, the comments to the instructions were completely updated.
F. Drafting Case-Specific Instructions.
In most cases, standard jury instructions will be used to instruct the jury in whole or part.
However, standard instructions on substantive issues for certain types of cases have not yet been
developed or approved for publication. The trial judge has the responsibility to choose and give
appropriate and complete instructions in a given case, whether or not the instructions are
“standard.” See, e.g., In the matter of the use by the trial courts of the Standard Jury Instructions,
198 So.2d 319 (Fla. 1967).
When drafting case-specific instructions, the format, sequence, and technique used in the standard
instructions should be followed to the extent possible. Consult the Theory and Technique of
Charging a Jury with These Instructions section on page xxiv and the model instructions in Appendix
A. Any instructions in this book on introductory and procedural matters must be used to the extent
that they correctly apply in a given case. Florida Rule of Civil Procedure 1.470(b) sets forth the
procedure to be followed when varying from the standard jury instructions 1n this book. See page 5.
G. Referring to Instructions by Number.
Refer to instructions by number to facilitate cross-referencing in electronic versions, in case
citations, and in publications by other publishers.
H. Providing Written Instructions to the Jury.
Florida Rule of Civil Procedure 1.470(b) provides that the court shall furnish a written copy of its
instructions to each juror. The trial judge must include all instructions. A// Bank Repos, Ine. v.
Underwriters of Lloyds of London, 582 So.2d 692, 695 (Fla. 4th DCA 1991). Th
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Filing # 81489228 E-Filed 11/30/2018 05:39:03 PM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT, IN AND FOR SARASOTA COUNTY, FLORIDA JUDY RILEY, CASE NO. 16-CA-006106 Plaintiff, VS. KIA MOTORS AMERICA, INC,, Defendant. / DEFENDANT, KIA MOTORS AMERICA, INC.'S, OBJECTIONS TO PLAINTIFEF’S PROPOSED JURY INSTRUCTIONS Defendant, KIA MOTORS AMERICA, INC.’s (““KMA”), by and through its undersigned counsel, hereby files its Objections to Plaintiff's Proposed Jury Instruction Nos. 16, 18, 19, 20, 22, 23, 24, 25, 26, 26 (mis-numbered), 27, 28, 29 and 30 as they are not standard instructions, are argumentative, repetitive and misstatements of Florida law. KMA submits the following in support of its objections: MEMORANDUM OF LAW. I The Purpose of Jury Instructions. Jury instructions should use easily understandable language that is not argumentative, repetitive, or negative. Since 1967, the purpose of the Florida Supreme Court Committee on Standard Jury Instructions (“Committee”) “has been to prepare instructions that express the applicable issues and guiding legal principles briefly and in simple, understandable language, without argument, without unnecessary repetition and without reliance on negative charges.” Fla. Std. Jury Instr. (Civ.), “The Theory and Technique of Charging a Jury with These Instructions” (emphasis added), attached hereto as Exhibit A; see also Wood vy. Equitable Life Assur. Soc. of U. S., 212 So. 2d 77, 78 (Fla. 3d DCA 1968). Filed 11/30/2018 07:03 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL The Florida Supreme Court has approved this purpose. See Jn the matter of the use by the trial courts of the Standard Jury Instructions, 198 So. 2d 319 (1967). Further, as it will be discussed in greater detail below, Florida courts have consistently held that instructions may not be argumentative, repetitive, or negative. Il. General Principles of Jury Instructions. A jury instruction is immaterial if it is argumentative, repetitive or negative, regardless of whether or not it correctly states the law. Thus, a jury instruction that may be a correct statement of the law does not excuse the use of argumentative, repetitive, or negative language. See Gutierrez v. State, 177 So. 3d 226, 230 (Fla. 2015) (“[L]lack of corroboration is a proper subject of argument, not jury instruction.”); Seaboard Sys. R.R., Inc. v. Mells, 528 So. 2d 934, 938 (Fla. Ist DCA 1988) (“[A|lthough the charges in question correctly stated the principles of law, ‘such charges as framed are essentially argumentative, repetitive, and adequately covered by the general charges on negligence.’”’). In fact, the standard jury instructions are preferred, and the Florida Rules of Civil Procedure require a trial court to explain any variance from the standard instructions. See Gutierrez, 177 So. 3d at 230 (“Standard jury instructions are presumed correct and are preferred over special instructions.”); BellSouth Telecommunications, Inc. v. Meeks, 863 So. 2d 287, 292 (Fla. 2003). A trial court should not vary from the standard instructions unless the “applicable Standard Jury Instruction is erroneous or inadequate.” Fla. R. Civ. P. 1.470(b). If the trial court deviates from the standard instructions, the court is required to state, on the record, why 1t modified an applicable standard instruction or gave an additional special instruction. Fla. R. Civ. P. 1.470(b). Special or case-specific instructions should be drafted in the same manner as the standard instructions. When special or case-specific instructions are required in a case, “the format, sequence, and technique used in the standard instructions should be followed to the extent possible.” Fla. Std. Jury Instr. (Civ.), “How to Use This Book,” attached hereto as Exhibit B. Hil. Jury Instructions Should Not Be Argumentative. Since 1967, one of the Committee’s overlying goals has been “to omit such argumentative charges and to remove all advocacy from the charge....” St. Louis-San Francisco Ry. Co. v. White, 369 So. 2d 1007, 1014 (Fla. Ist DCA 1979) (Smith, C.J., concurring); see also Robin Gibson, “Theories of Liability,” Products Liability in Florida § 2.3 (Fla. Bar. CLE 3d ed. 1995) (“Most defensive instructions that historically had been used in negligence cases...were felt to be argumentative, best left for lawyer advocacy, and have been excluded.”) (citing Committee Notes on Use for Instructions 3.3(a), 4.1, 4.3, 4.7, 4.8, 4.13, 4.14); Jn re Standard Jury Instructions In Civil Cases-Report No. 09-01, 35 So. 3d 666, 685 (Fla. 2010) (in Notes on Use for Instruction 401.4, the Committee recommends an “argumentative and negative” charge not be given); Veliz v. Am. Hosp., Inc., 414 So. 2d 226, 227-28 (Fla. 3d DCA 1982). A jury does not need argumentative instructions to make an informed decision. The jury should be given general or neutral statements of the law. Hunzinger Const. Corp. v. Quarles & Brady Gen. P’ship, 735 So. 2d 589, 596 (Fla. 4th DCA 1999) (disapproving of jury instruction that “was not a neutral statement of the law to be applied to the case”); City of Tampa v. Long, 638 So. 2d 35 (Fla. 1994) (instruction that did not address all factors that jurors could consider gave only part of story and was therefore not balanced). Giving an argumentative jury instruction may be reversible error. See Smith v. Canevary, 553 So. 2d 1312, 1312-16 (Fla. 3d DCA 1989) (holding it is reversible error to give a special jury instruction on doctrine of unavoidable accident, absent extraordinary circumstances, because instruction is “unnecessary, argumentative, and may mislead or confuse the jury as to the legal standard of negligence in Florida”); Sierra v. Winn Dixie Stores, Inc., 646 So. 2d 264 (Fla. 3d DCA 1994) (reversing trial court for giving jury an instruction that tended to endorse argumentative position of defendant and was otherwise unnecessary and potentially confusing). IV. Jury Instructions Should Not Be Repetitive. Florida courts have also long disapproved of repetition in jury instructions. Lithgow Funeral Centers v. Loftin, 60 So. 2d 745, 747 (Fla. 1952) (citing Biscayne Beach Theatre y. Hill, 9 So. 2d 109 (Fla. 1942); Farnsworth vy. Tampa Elec. Co., 57 So. 233 (Fla. 1911); Jacksonville Elec. Co. v. Adams, 39 So. 183 (Fla. 1905)). Repetition gives undue emphasis to a specific fact or concept. “There is no reason for saying the same thing more than once except for the purpose of adding emphasis to the statement.” Lithgow Funeral Centers v. Loftin, 60 So. 2d 745, 747 (Fla. 1952) (citations omitted); see also Florida Power & Light Co. v. Robinson, 68 So. 2d 406, 413 (Fla. 1953) (“A brief but explicit charge on the subject was given. Repetition 1s not required, as it serves only to give undue emphasis.”’). Giving a repetitive jury instruction can be reversible error. McCray v. State, 102 So. 831 (Fla. 1925) (“Repetition of a particular portion of charge after argument may be prejudicial error.”); Collins Fruit Co. v. Giglio, 184 So. 2d 447, 450 (Fla. 2d DCA 1966) (finding that although repetitive instruction did not rise to level of undue emphasis, this repetition along with other irregularities supported the trial court’s decision to grant a new trial); Shaw v. Cong. Bldg., Inc., 113 So. 2d 245, 247 (Fla. 3d DCA 1959) (reversing for a new trial in part because Jury instructions unduly emphasized issue of contributory negligence where three full charges were given on the issue In addition to multiple other mentions). Vv Jury Instructions Should Not Be Negative. The Committee also disapproves of negative jury instructions. See, e.g., Fla. Std. Jury Instr. (Civ.), “The Theory and Technique of Charging a Jury with These Instructions,” attached as Exhibit A (“The Committee generally disapproved of negative instructions—those that tell the jury not to do something.”); In re Standard Jury Instructions In Civil Cases-Report No. 09-01, 35 So. 3d 666, 685 (Fla. 2010) (in Notes on Use for Instruction 401.4, the Committee recommends an “argumentative and negative” charge not be given’); see also Villar y. Pereiras, 588 So. 2d 678, 679 (Fla. 3d DCA 1991). Rather, a proper instruction tells the jury what it should do, and giving a negative jury instruction may be reversible error. Hunzinger Const. Corp. v. Quarles & Brady Gen. P'ship, 735 So. 2d 589, 596 (Fla. 4th DCA 1999) (affirming in part and reversing in part, but finding a negative instruction was error); Villar v. Pereiras, 588 So. 2d 678, 679 (Fla. 3d DCA 1991) (reversing trial court and noting that Supreme Court Committee on Standard Jury Instructions disfavors “argumentative and negative” instructions). OBJECTIONS TO PLAINTIFF’S PROPOSED JURY INSTRUCTIONS No. 16. Plaintiff filed a one-count Complaint against Defendant for breach of express warranty for defects arising from Plaintiff’s purchase of a 2013 Kia Soul. Defendant denies that it breached the express warranty. Plaintiff objected to KMA’s Proposed Jury Instruction No. 16, and submitted a non- standard instruction in its place. KMA’s Proposed Jury Instruction No. 16 tracks the Florida Standard Jury Instruction 403.2, and should be used at trial. No. 18. Plaintiff, Judy Riley, claims: 1. Defendant Kia Motors America breached its warranty by failing or refusing to reasonably and adequately repair defects in Plaintiff’s vehicle covered under Kia Motors America’s warranty; 2. Plaintiff's damages resulted from Kia Motor America’s breach. 3. Defendant Kia Motors America denies that it breached the warranty. Plaintiff did provide any authority for Proposed Jury Instruction No. 18. However, this Proposed Jury Instruction 1s repetitive of Plaintiff's Proposed Jury Instruction Nos. 16 and 20. To include this instruction is nothing more than a self-serving statement by the Plaintiff to emphasize to the jury, one more time, what the Plaintiff is claiming in this lawsuit. This 1s improper. KMA and Plaintiff have both submitted Proposed Jury Instructions regarding the alleged claims in this case. To permit a second instruction on the exact same issue is improper and the Plaintiff's Proposed Jury Instruction No. 18 should not be given. No. 19. The term “written warranty” means “any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, OR Any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking, which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product.” The Plaintiff's Proposed Jury Instruction No. 19 quotes 15 U.S.C. § 2301(6)(A) and (B). KMA’s Proposed Jury Instruction No. 19 only quotes 15 U.S.C. § 2301(6)(B), as that 1s the only definition that is applicable to KMA’s express limited warranty and the issues in this case. Plaintiff’s claims are that the vehicle did not brake properly and drifted to the right excessively. KMA’s express limited warranty does not warrant that the vehicle will be defect free or have a specified level of performance (e.g. the vehicle will stop within a certain distance of applying the brakes), as included in 15 U.S.C. § 2301(6)(A). Rather, the express limited warranty at issue in this case 1s to repair or replace any covered defect in materials or workmanship that may arise during the covered time period, and it 1s subject to the terms of the warranty. KMA’s New Motor Vehicle Limited Warranty does not warrant that the vehicle’s steering or braking will meet a specified level of performance. In fact, the level of performance of the steering and braking are dependent on many factors outside of KMA’s control, such as the owner’s maintenance of the 6 vehicle, individual driving habits, weather, and road conditions. Therefore, the first paragraph of Plaintiff's Proposed Jury Instruction No. 19 should not be given as it is not the proper statement of law in this case. No. 20. In order for Plaintiff to recover against Defendant for breach of express warranty, Plaintiff must prove the following: 1. The defect or defects exist in a part or parts covered by the express warranty; 2. The defect resulted from factory supplied materials or workmanship; 3. Defendant failed to comply with the terms of the express warranty by refusing or failing to repair or replace parts defective in materials or workmanship free of charge within a reasonable amount of time; 4. Plaintiff suffered damages as a result of Defendant’s failure to comply with an obligation under its Limited Warranty. If you find from your consideration of all the evidence, that Plaintiff has met all of these elements, then your verdict should be for Plaintiff, Judy Riley, on the claim of breach of express warranty. If you find from your consideration of all the evidence, that Plaintiff has not met all of these elements, then your verdict should be for Defendant, Kia Motors America, on the claim of breach of express warranty. KMA’s Proposed Jury Instruction No. 20 quotes the elements of Plaintiff's claim under Florida law from Johnson v. Thor Motor Coach, Inc., 2016 WL 8939134, *4 (M.D. Fla. Aug. 1, 2016). As such, KMA’s Proposed Jury Instruction No. 20 is an accurate statement of Florida law. On the other hand, Plaintiff's Proposed Jury Instruction No. 20 is simply self-serving language drafted by the Plaintiff that is argumentative and not supported, as drafted, by the authority cited to by Plaintiff. Plaintiff relies on 15 U.S.C. § 2310, but this only provides the remedies available for consumer disputes and does not provide the elements of the cause of action. Furthermore, Plaintiff relies upon case law based on the Florida Lemon Law and 15 U.S.C. § 2304, which is the standard for full warranties. Both are inapplicable in this case. Plaintiff has not brought any Florida Lemon Law claims and the warranty at issue is a limited warranty so §2304 does not apply.! In stark contrast to the strict guidelines and requirements set forth under federal law for full warranties, the law is "virtually silent with respect to the imposition of requirements on manufacturers or sellers who issue a limited warranty." Ocana v. Ford, 992 So. 2d 319 (Fla. 3d DCA 2008). In rejecting the plaintiff's argument, the Ocana court stated: The plain language of the Act does not engraft the standards and remedies of section 2304 to all warranties as argued by Ocana ... as noted in the Act itself, those warranties that meet the federal minimum standards are "full" warranties, and those that do not, are "limited" warranties. To accept Ocana's argument would obliterate the careful distinction that Congress established between the two categories of warranties. Id. at 325. Thus, Plaintiff's reliance on Mason is also misplaced as that case involved Florida Lemon Law claims and claims brought pursuant to 15 U.S.C. 2304(a)(4). Further, the additional cases Plaintiff relies upon show that KMA’s proposed jury instruction is an accurate statement of the law. Chaurasia v. General Motors Corp., 126 P.3d 165 (Ariz. Ct. App. 2007) (“There is no cause of action under the MMWA for a limited warranty unless the consumer can prove that the manufacturer did not comply with the limited express warranty’s terms...to prove a breach of this warranty, Chaurasia must demonstrate that GM refused or otherwise failed to pay for the repair to a covered item.”); Ocana y. Ford Motor Co., 992 So. 2d 319 (Fla. 3d DCA 2008) (“Under this state’s law, there can be no cause of action for breach of express limited warranty unless the consumer can allege and prove that the manufacturer did not comply with the limited express warranty’s terms.”); Brisson vy. Ford Motor Company, 2009 WL 605277 (M.D. Fla. March 9, 2009) (“To assert a cause of action for breach of express warranty under Florida law, a consumer must allege that the manufacturer did not comply with the limited ' If a warrantor issues a full warranty that complies with the terms of 15 U.S.C. §2304, then the consumer is entitled to the remedies listed therein which include "refund" or "replacement" if the warrantor cannot remedy defects or malfunctions in the vehicle after a "reasonable number of attempts." See 15 U.S.C. §2304(a)(4). However, this quoted language of Section 2304 does not apply to actions based on limited watranties. express warranty’s terms... The consumer must alleged that the manufacturer refused or failed to adequately repair a covered item.”). No. 22. A warrantor does not have unlimited time to comply with the obligation to repair or replace under a limited warranty. If the warrantor has not made adequate repairs or exceeded a reasonable time or number of repairs the warranty has failed of its essential purpose and has been breached. Plaintiff's Proposed Jury Instruction No. 22 is repetitive and argumentative and should not be given. The elements of Plaintiff's claim will be outlined in either Plaintiff's Proposed Jury Instruction No. 20 or KMA’s Proposed Jury Instruction No. 20. To then permit another instruction is repetitive and unnecessary. Additionally, this Proposed Jury Instruction 1s not a statement of law for breach of express watranty cases. Rather, this is a statement that may be applicable in revocation of acceptance cases. See Bland y. Freightliner LLC, 206 F. Supp. 2d 1202 (M.D. Fla. 2002). This is not such a case. Therefore, Plaintiff's Proposed Jury Instruction No. 22 is unnecessary and not applicable to a breach of express warranty claim. No. 23. Plaintiffs need only show the manifestation of the defect in order to prove the existence of the defect. Plaintiff's Proposed Jury Instruction No. 23 is an incorrect statement of Florida law. Of note, neither of the cases cited by Plaintiff support giving this instruction. In Armor Elevator Co. v. Wood, the defendant was not permitted to offer a jury instruction that the plaintiff was under a duty “to pin point [the] exact mechanical deficiency for or by reason of which the device proved defective and failed...” 312 So. 2d 514, 515 (Fla. 3d DCA 1975). As such, Armor did not address the propriety of giving this instruction. Additionally, Armor is cited to in the Standard Jury Instructions as only being applicable, “[i]f a product fails under circumstances precluding any other reasonable inference other than a defect in the product, a plaintiff is not required to pinpoint any specific defect in the product.” See Notes on use for Florida Standard Jury Instruction 403.9. That is not the situation in this case. Additionally, Florida law has clearly stated that Plaintiff is required to prove the existence of a defect or malfunction if it 1s “not within the reasonable purview of the average layperson.” See Pearson vy. Winnebago Industries, Inc., 2016 WL 6893937, *6 (M.D. Fla. Nov. 23, 2016); Johnson v. Thor Motor Coach, Inc., 2016 WL 8939134, *4 (M.D. Fla. Aug. 1, 2016). Therefore, to permit the Plaintiff's Proposed Jury Instruction No. 23 would be a misstatement of Florida law to the jury. No. 24. The precise technical cause of a malfunction or defect need not be pinpointed by the consumer to prove a breach of warranty. Similar to Plaintiffs Proposed Jury Instruction No. 23, Jury Instruction No. 24 is a misstatement of Florida law. KMA refers to and incorporates its objection to Plaintiff's Proposed Jury Instruction No. 23 above. Further, none of the cases cited by Plaintiff apply Florida law. As such, these cases are not controlling, and the Standard Jury Instructions should be utilized. No. 25. Plaintiff is not required to offer expert testimony in order to prove the existence of a defect. Plaintiff's Proposed Jury Instruction No. 25 is not a proper statement of the law. Rather, in cases involving allegations of a defect in a vehicle’s brake system or steering system, expert testimony is necessary. See Bailey v. Monaco Coach Corp., 350 F. Supp. 2d 1036 (N.D. Ga. 2004). In fact, the cases Plaintiff cites, do not support this proposed instruction whatsoever. In Mason y. Porsche Cars of North America, Inc., both parties presented expert testimony regarding whether an alleged “shudder” constituted a non-conformity under Florida’s Lemon Law. 688 So. 2d 361 (Fla. 5th DCA 1997). As such, Mason did not stand for the proposition that a plaintiff is not required to offer expert testimony, as in Mason the plaintiff did offer expert testimony. In 10 Courtland Group Inc., v. Phillips Gold & Co., LLP, the only issue before the court was whether the defendant was permitted to offer expert testimony regarding damages. 876 So. 2d 629 (Fla. 3d DCA 2004). Perhaps the most concerning, is Plaintiff's reliance on Bailey. Bailey unequivocally states, “the proper functioning of a motorhome brake system is not within the reasonable purview of the average layperson and, therefore, requires expert testimony.” 350 F. Supp. 2d at 1045. Plaintiff has not cited to a single source that supports her Proposed Jury Instruction No. 25; rather, Plaintiff's authority stands for the opposition proposition, that expert testimony is necessary. Therefore, Plaintiff's Proposed Jury Instruction No. 25 should not be given. No. 26. A property owner is competent to testify as to the value of his or her own personal property, such as an automobile. Plaintiff's Proposed Jury Instruction No. 26 1s a misstatement of Florida law. An individual is not per se able to testify about the value of their motor vehicle. Plaintiffs instruction fails to include a vital portion of Florida law, that an owner can only testify to the value of property “if he has personal knowledge of the property.” Cutler v. Pelletier, 507 So. 2d 676, 679 (Fla. 4th DCA 1987). The court further explained that “[p]ersonal knowledge means that the owner is familiar with the characteristics of the property, has knowledge in or is acquainted with its uses and purposes, and has experience in dealing with it.” Jd. (A witness was not qualified to testify regarding the value of artwork when she lacked the necessary personal knowledge regarding the works). Plaintiff unequivocally testified at her deposition that she does not have any mechanical training or experience. Deposition of Judy Riley pg. 31 line 19 thru 22. Plaintiff also does not have any experience in vehicle appraisal or valuation. /d. 32:8-10. Nor has Plaintiff ever worked for business that sold cars. /d. 32:14-16. Perhaps most importantly, Plaintiff testified she had not 1] tried to calculate or make any notes regarding the damages she was seeking to recover in the lawsuit. /d. 15:25-16:7. Therefore, Plaintiffis not able to competently testify regarding the value of her vehicle as she lacks the necessary personal knowledge. Kia Motors Am., Inc. v. Doughty, 242 So. 3d 1172, 1177 (Fla. 2d DCA 2018) (reversing damages award and finding that any conclusion about value a jury might draw from the facts presented by plaintiff “would be nothing but speculation”). Therefore, this instruction should be denied. No. 26 (mis-numbered). If you find for Plaintiff on her claims, then you must calculate the amount of damages. Plaintiff's Proposed Jury Instruction No. 26 (mis-numbered) deviates from the Standard Jury Instructions. KMA’s Proposed Jury Instruction No. 23 closely tracks the Standard Jury Instructions on damages, and that language should be utilized as Florida courts prefer the use of the Standard Jury Instructions. Further, Plaintiff's proposed instruction 1s improper because it directs that the jury “must calculate the amount of damages,” regardless of what evidence, or lack thereof, has been presented regarding diminution in value. This is a misstatement of the law. If Plaintiff fails to produce competent evidence to prove the amount of diminution of value, then Plaintiff would only be entitled to nominal damages, if any. Kia Motors Am., Inc. v. Doughty, 242 So. 3d 1172, 1177 (Fla. 2d DCA 2018). Plaintiffs proposed instruction that the Jury “must calculate amount of damages” requires the jury to determine mathematically an amount which implies the award must be more than a nominal amount even though the Jury 1s required to only award nominal damages, if any, if there 1s insufficient evidence presented regarding diminution of value. No. 27. The typical measure of damages for a claim for a breach of warranty is the difference at the time and place of acceptance between the goods accepted and the value that they would have been in if they had been as warranted. 12 ALTERNATIVE-SPECIAL DAMAGES The measure of damages is the difference between the value of the vehicle as warranted and the value of the vehicle at the time that the Plaintiff reasonably should have concluded that Defendant would be unable to repair the vehicle. Plaintiff does not cite to a single Florida case in support of her Proposed Jury Instruction No. 27. Additionally, this is repetitive of Plaintiff's Proposed Jury Instruction No. 28. There should only be one jury instruction regarding the measurement of damages. Permitting two instructions 1s confusing and repetitive and must be precluded. No. 28. To establish the difference in value, or diminished value, of the vehicle, Plaintiff must provide credible evidence of the difference between (1) the value of the vehicle in its defective condition as accepted, and (2) the value of the vehicle if it had been in a non-defective condition as warranted. Plaintiff's Proposed Jury Instruction No. 28 is repetitive, argumentative and not a proper statement of Florida law and should not be permitted. Plaintiff cites to Florida Statute § 672.714(2) in support of this proposed instruction. Florida Statute § 672.714(2) states: “[t]he measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.” The language of the statute should be standard given to the jury. Additionally, as cited and explained in KMA’s Proposed Jury Instruction No. 23, Johnson v. Thor Motor Coach, Inc., provides the measurement of damages under Florida law. 2016 WL 8939134, *5 (“Under Florida law, ‘[t]he measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted.’ Fla. Stat. § 672.714(2). Accordingly, the proper measure of damages is the diminished value—1.e., the difference between the purchase price of a non-defective RV on January 23, 2013, less the value 13 of a defective RV on January 23, 2013.”). Therefore, Plaintiff's Proposed Jury Instruction No. 28 should not be given as it 1s repetitive, argumentative and not an accurate statement of Florida law. No. 29. The valuation of the vehicle at the time and place of acceptance can be founded upon the trade-in value of the vehicle. Plaintiff's Proposed Jury Instruction No. 29 is a misstatement of Florida law and Plaintiff does not cite to a single Florida authority in support of this proposed instruction. Florida law is clear that “[t]he measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted...” Fla. Stat. § 672.714(2); Kia Motors America, Inc. v. Doughty, 242 So. 3d 1172, 1175 (Fla. 2d DCA 2018). Additionally, Florida law has recognized that “the current value of the defective car 1s irrelevant.” Bentley v. Volkswagen Group of America, Inc., 2013 WL 5927974, *1 (M.D. Fla. Nov. 5, 2013). Therefore, Plaintiff's Proposed Jury Instruction No. 29 should not be given. No. 30. Diminished value may be calculated in any reasonable manner with or without expert testimony. Plaintiff's Proposed Jury Instruction No. 30 is a misstatement of Florida law and is not supported by the cases she cites to. Rather, in Hill v. Mercedes Benz USA, LLC, the appellate court upheld the trial court’s ruling that the plaintiffs failed to present competent evidence of damages. 619 S.E. 2d 353, 353 (Ct. of Appeals GA 2005). The trial court determined that the plaintiff's “affidavit expressing her lay opinion as to the diminished value of the vehicle was insufficient because it lacked a proper foundation,” therefore, summary Judgment was properly entered. /d. at 354, Plaintiff's Proposed Jury Instruction No. 30 is also incomplete as it fails to explain what “reasonable” means. As addressed above in response to Plaintiff’s Proposed Jury Instruction No. 14 26, an owner can only testify to the value of property “if he has personal knowledge of the property.” Cutler v. Pelletier, 507 So. 2d 676, 679 (Fla. 4th DCA 1987). The court further explained that “[p]ersonal knowledge means that the owner 1s familiar with the characteristics of the property, has knowledge in or is acquainted with its uses and purposes, and has experience in dealing with it.” /d. (A witness was not qualified to testify regarding the value of artwork when she lacked the necessary personal knowledge regarding the works). To permit the Plaintiff's Proposed Jury Instruction No. 30 omits this vital aspect of Florida law and would mislead the jury to assuming that the Plaintiff's testimony alone 1s sufficient to establish diminished value, which is not the standard. Therefore, Plaintiff's Proposed Jury Instruction No. 30 should not be given. WHEREFORE, Defendant, KIA MOTORS AMERICA, INC., requests that this Court enter an Order sustaining KMA’s objections to Plaintiffs Proposed Jury Instruction Nos. 16, 18, 19, 20, 22, 23, 24, 25, 26, 26 (mis-numbered), 27, 28, 29 and 30 and refraining from giving the instructions to the jury. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on November 30, 2018, a true and correct copy of the foregoing document was filed with the Clerk of Court using the Florida Courts e-Filing Portal which will send an automatic e-mail message to all parties who have registered with the e-Filing Portal system. is) Atemee M. Adamy FRANK D. HOSLEY Florida Bar No. 078972 JUSTIN D. NIZNIK Florida Bar No. 774901 Designated email addresses: AIMEE M. ADAMS frank .hosley@bowmanandbrooke.com Florida Bar No. 099274 singer.casey@bowmanandbrooke.com BOWMAN AND BROOKE LLP justin. niznik@bowmanandbrooke.com 1064 Greenwood Boulevard - Suite 212 valerie.serwert(@bowmanandbrooke.com Lake Mary, Florida 32746-5419 aimee.adams@bowmanandbrooke.com (407) 585-7600 — Tel (407) 585-7610 - Fax tammie.proffitt@bowmanandbrooke.com Attorneys for Defendant, KIA MOTORS AMERICA, INC. 15 EXHIBIT “A” THE THEORY AND TECHNIQUE OF CHARGING A JURY WITH THESE INSTRUCTIONS! The Committee’s purpose has been to prepare imstructions that express the applicable issues and guiding legal principles briefly and in simple, understandable language, without argument, without unnecessary repetition and without reliance on negative charges. A serious commitment to that purpose seemed to the Committee to require a number of changes in what appears to have been the customary manner of charging juries in negligence cases. More than a few familiar expressions which have been accepted in jury charges through years of repetition have purposefully been omitted from Florida Standard Jury Instructions. In some instances, the Committee has not only omitted the familiar expression but has also recommended affirmatively that it not be used. Specific explanations of important omissions and recommendations are included in notes and comments throughout the book. But consideration for the sensibilities of those experienced lawyers and judges who will wonder at the absence of such familiar terms as negligence per se, dangerous instrumentality, contributory negligence, burden of proof, preponderance of evidence and proximate cause requires some general explanation at the outset of how and why, in keeping with the general purpose stated above, the Committee found it necessary to omit such expressions “to ... express the applicable issues and guiding legal principles briefly and in simple, understandable language” Convinced that many jurors lose interest in and misinterpret the court’s charge simply because of the tedium involved in listening to it for so long a time, the Committee strove for brevity in the charge. In this effort, many words and phrases and some entire charges, heretofore in general use From the Supreme Court’s order entered April 19, 1967: “The Court generally approves the theory and technique of charging civil juries as recommended by the Committee and embodied in its proposed instructions.” Jn the matter of the use by the trial courts of the Standard Jury Instructions, 198 So.2d 319 (1967). The Committee has adhered to the same basic theory in the reorganization of the book. While the references in this section are to the original instructions, the theory applies equally to the new and renumbered instructions. For conversion to the current instructions, see the Conversion Chart on pages xxvil—xxxIV. and not objectionable in themselves, were omitted from Florida Standard Jury Instructions in Civil Cases because they appeared to add more length than substance to the charge. The consequence of brevity in these charges is generality. For example, after repeated attempts to define negligence both briefly and comprehensively, the Committee became satisfied that negligence is the failure to use that degree of care which a reasonably careful person would use under like circumstances (4.1). And the Committee became satisfied also that the benefits of elaborating upon, paraphrasing, and particularizing the general definition of negligence, by the use of other language found in abundance in appellate court opinions, treatises and texts, are not worth the price paid in lengthening and complicating the charge. Using Part IV of Florida Standard Jury Instructions, the trial judge will define negligence for the jury as briefly and as generally as accuracy permits, not with a purpose to banish from the case the necessary elaborations, paraphrases and particulars of negligence, but rather to rely on the jury, assisted by the lawyers’ arguments, to deduce from the general definition the specific application appropriate to the case. The goal of brevity seems to have been attained. This book of instructions is by far the slimmest of the several volumes of standard or pattern instructions published in recent years (some are mentioned in the Introduction). And, in types of cases that previously seemed to require charges of 20 minutes or more, as few as 10 minutes are adequate for a charge employing Florida Standard Jury Instructions. The effort to use understandable language is perhaps best illustrated by the charges on causation. See Part V and especially 5.1. The Committee felt generally that more jurors are dazzled than are enlightened by charges that assemble all the expressions 1n legal language on the subject of causation: the proximate cause, the remote cause, the efficient cause, the concurring cause and the intervening cause that might or might not “break the chain” of causation. Charge 5.1 is the result of the Committee’s attempt to express the essential elements of legal cause without resorting to obscure or technical language, that 1s, “|... without argument, without unnecessary repetition and without reliance on negative charges. ’ One of the unfortunate roles assumed by trial judges 1n the past is that of advocating both sides of the case by reading to the jury a series of argumentative charges favoring one side of the case and then, “on the other hand,” reading another series of equally argumentative charges favoring the other side of the case. It has been the Committee’s purpose to omit such argumentative charges and to remove all advocacy from the charge. It was with this purpose in mind that the Committee recommended, among other things, that the automobile not be characterized as a “dangerous instrumentality” (Comment on 3.3a) and that the court not warn the jury not to infer negligence from the “mere fact of accident” (4.1). A less obvious form of argument but one that the Committee devoted no less effort to avoid is the practice, mn cases in which plaintiff cannot prevail unless he occupied a particular relationship to the defendant, of instructing the jury upon the lesser duties owed plaintiff 1f he did not have that relationship to defendant. It is of no benefit, for example, to charge the jury in a negligence case that a landowner need only refrain from willfully or wantonly injuring a trespasser. If plaintiff cannot win unless he is an invitee, it 1s sufficient for the jury to decide whether he was an invitee (3.2a, 3.4) before proceeding to determine whether the landowner was negligent (3.5f). For similar reasons, 1f plaintiff was undoubtedly one to whom reasonable care was owed by the defendant, the court should not charge in detail upon the reasons for the existence of that duty. And, if the defendant is unquestionably responsible for the negligence of another, a recital of the reasons for that rule is likewise better left to the argument of counsel. Part III is designed to permit the elimination of such preliminary issues 1n cases 1n which they are not really issues at all. The elimination of the term “contributory” negligence from the instruction (4.3; see also 5.1 Comment 4) made unnecessary the usual repetition involved in explaining concepts of negligence and causation once when speaking of conduct rendering the defendant liable and again when speaking of conduct reducing plaintiff's recovery. The jury is plainly told (3.8, page 3) that the amount of claimant’s recovery will be reduced if claimant was negligent (as defined in 4.1) and if that negligence was a “contributing” legal cause (as defined in 5.1) of the complained of damage. The Committee generally disapproved of negative instructions — those that tell the jury not to do something. EXHIBIT “B” HOW TO USE THIS BOOK This book contains standard jury instructions prepared by the Florida Standard Jury Instructions Committee (Civil) and approved for publication by the Florida Supreme Court. Because it is impossible to cover every circumstance or issue with standard instructions, these instructions include only those that have been approved for the types of cases, primarily torts, that occur with enough frequency to have warranted their preparation. Also, because of changes in the law, these instructions may become outdated or in need of revision or supplementation. Although the committee expends substantial effort in preparing standard instructions, the Florida Supreme Court does not express an opinion as to their correctness. For these reasons, parties remain free to contest a standard instruction’s legal correctness or to request additional or alternative instructions. A. Getting Started. When compiling a set of proposed instructions, the following minimum steps should be taken: ] Determine the current and complete law required for instructing the jury 1n your case. 2 Make sure you are using the current version of Florida Standard Jury Instructions. The official version of FSJI is located at the committee’s website, www.floridasupremecourt.org/civ_jury_instructions/index.shtml. You can also check for the latest updates by accessing the most recent publication date on the “Court Decisions & Rules” link of the Florida Supreme Court’s website homepage, www.floridasupremecourt.org. Also, check the “Rule Cases” link on the Clerk’s Office webpage for instructions. Ensure that all updates from The Florida Bar are fully and correctly inserted in printed versions of the book, and check the committee’s website for any approved instructions that have not yet reached publication. Compile a complete set of proposed instructions for your case from the instructions in this book and, if necessary, by modifying standard instructions or drafting your own case- specific instructions using other appropriate sources. B. Using This Book for the First Time. The introductory passages below provide useful guidance for preparation of jury instructions by first-trme users of this book. Assembling a set of proposed instructions for the court follows custom and organization that may vary somewhat depending on the type of case, and the judge may have specific requirements as well. The model instructions in this book are included as examples of how a set of instructions is customarily assembled. Even if those charges are not specifically applicable to your particular case, they can assist you in organizing your proposed instructions. Remember that standard instructions and model instructions may not fully cover the law in any given case, and case-specific instructions may be required. C. Finding the Right Instruction. The instructions are listed by subject matter in the table of contents and in alphabetical order by name in the index. At the start of each section, there is a list of the structions 1n that section. All instructions are numbered and presented in numerical order. An instruction may be located by number by quickly scanning the numbers in the running heads. As part of the 2008 reorganization of this book, all substantive instructions for a particular claim have been grouped together. D. Ensuring the Instruction Is Current. Supplements to the Second Edition will have pages that contain the date when the page was last revised. No date means the page was part of the revised, reorganized book published in 2010. The notes below certain instructions may include the dates for authorities on which the instruction is based. If the law has changed, the instruction may need to be modified accordingly. The committee’s process of revising standard instructions can be lengthy because it involves discovering the need for a change, researching the law, preparing and revising proposed instructions, and publishing the proposed instructions for comment. Based on comments received, the proposed instructions may again be modified. Only after this process is completed are the proposed instructions submitted to the Florida Supreme Court for approval. Even if new instructions are approved by the Court, they may not yet have appeared in a printed update to this book. All new instructions and revisions to this book, including the latest Florida Supreme Court opinions and text of instructions, are published on the Florida Supreme Court’s website homepage, www.floridasupremecourt.org. Check the site to ensure that the book you are using is up to date and to ensure that you have the most current version of the instruction. E. Assembling a Set of Instructions. This book contains a core of four sections, arranged in the order in which the trial judge will normally instruct the jury, together with additional sections covering oaths, voir dire, instructions for evidentiary and supplemental issues, verdict forms, and model instructions. Standard jury instructions were initially developed for simple negligence cases and were added on an ad hoc basis over the ensuing years. In 2008, to improve juror communication, this book was substantially reorganized and many instructions were modified by “plain English” changes. As now organized, the substantive instructions for different types of claims are contained in a single section, followed by damage instructions, general instructions, and closing instructions. The substantive instructions have also been reordered so that the jury 1s instructed first on the issues and the legal rules that will govern its decision. In addition, the comments to the instructions were completely updated. F. Drafting Case-Specific Instructions. In most cases, standard jury instructions will be used to instruct the jury in whole or part. However, standard instructions on substantive issues for certain types of cases have not yet been developed or approved for publication. The trial judge has the responsibility to choose and give appropriate and complete instructions in a given case, whether or not the instructions are “standard.” See, e.g., In the matter of the use by the trial courts of the Standard Jury Instructions, 198 So.2d 319 (Fla. 1967). When drafting case-specific instructions, the format, sequence, and technique used in the standard instructions should be followed to the extent possible. Consult the Theory and Technique of Charging a Jury with These Instructions section on page xxiv and the model instructions in Appendix A. Any instructions in this book on introductory and procedural matters must be used to the extent that they correctly apply in a given case. Florida Rule of Civil Procedure 1.470(b) sets forth the procedure to be followed when varying from the standard jury instructions 1n this book. See page 5. G. Referring to Instructions by Number. Refer to instructions by number to facilitate cross-referencing in electronic versions, in case citations, and in publications by other publishers. H. Providing Written Instructions to the Jury. Florida Rule of Civil Procedure 1.470(b) provides that the court shall furnish a written copy of its instructions to each juror. The trial judge must include all instructions. A// Bank Repos, Ine. v. Underwriters of Lloyds of London, 582 So.2d 692, 695 (Fla. 4th DCA 1991). Th