This document contains the court's instructions to the jury in the Danton v. St. Francis case that concerned the escape of a companion animal (cat) from defendant animal hospital. The cat was being boarded at the hospital at the time it escaped.
The Honorable John P. Wulle
Trial Date: 8/15/07
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF CLARK
|
MARILYN DANTON,
Plaintiff,
vs.
ST. FRANCIS 24 HOUR ANIMAL HOSPITAL, P.C. a Washington professional services corporation (UBI 602-029-072); and DOES 1-10;
Defendants. |
Case No.: 06-2-01172-8 (Wulle)
PLAINTIFF’S PROPOSED JURY INSTRUCTIONS
|
RESPECTFULLY SUBMITTED this August 13, 2007.
ANIMAL LAW OFFICES
________________________________
Adam P. Karp, WSBA #28622
Attorney for Plaintiff
The Honorable John P. Wulle
Trial Date: 8/15/07
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF CLARK
|
MARILYN DANTON,
Plaintiff,
vs.
ST. FRANCIS 24 HOUR ANIMAL HOSPITAL, P.C. a Washington professional services corporation (UBI 602-029-072); and DOES 1-10;
Defendants. |
Case No.: 06-2-01172-8 (Wulle)
PLAINTIFF’S PROPOSED JURY INSTRUCTIONS
Trial Date: Wednesday, August 15, 2007 Time: 9:00 a.m. Judge John P. Wulle
|
______________________________________________________________________
COURT’S INSTRUCTIONS TO THE JURY
______________________________________________________________________
DATED THIS August 15, 2007.
_________________________________
JUDGE JOHN P. WULLE
PLAINTIFF’S PROPOSED JURY INSTRUCTIONS
No. Authority Description
1 WPI 1.01 & 1.01.04 Introductory Instruction (with notes)
2 WPI 1.03 Direct and Circumstantial Evidence
3 WPI 1.11 Concluding Instruction – Special Verdict Form
4 WPI 2.10 Expert Testimony
5 WPI 20.01 Issues
6 WPI 21.01 & 21.03 Burden of Proof - Issues
7 Sollenberger Purchase Price Not Dispositive
8 WPI 30.02.01 & 31.06.01 Measure of Damages
& 30.06
9 Rest. (2 nd ) Torts § 901; Purpose of Tort Law
Spokane Truck & Dray Co.
10 WPI 60.03, Negligence Per Se
WAC 246-933-330(6)
11 Rev Proc. 2006-49 Mileage
Rev Proc 2005-78
IRS Announcement 2005-71
12 WPI 45.24 Special Verdict Form
PLAINTIFFS’ INSTRUCTION NO. 1
This is a civil case brought by plaintiff Marilyn Danton against defendant St. Francis 24-Hour Animal Hospital, P.C. The plaintiff’s lawyer is Adam Karp . Defendant’s lawyer is Douglas Weigel. This case arises out of the disappearance of Plaintiff’s cat, Moochie, from Defendant’s facility on or about September 28, 2005 and the search that ensued. The plaintiff claims damages for the intrinsic value of her cat and search time and expense. Defendant denies liability and damages but has admitted that all its employees who were handling Moochie during his boarding period and at the time he disappeared were acting within the scope of their employment. Accordingly, if you find that an individual employee of Defendant was liable, then that liability will be imputed to the Defendant as the employer.
In determining the damages to be awarded to the plaintiff, should you find Defendant liable, the court has found that the appropriate measure of damages for the death of Moochie is not fair market value. Rather, it will be up to you to determine whether his value is measured by replacement value, intrinsic value, or something in-between. The court has also found that loss of use or companionship, while not independently recoverable, may be considered in determining the measure of damages for the value of Moochie.
It is your duty as a jury to decide the facts in this case based upon the evidence presented to you during this trial. Evidence is a legal term. Evidence includes such things as testimony of witnesses, documents, or other physical objects.
One of my duties as judge is to decide whether or not evidence should be admitted during this trial. What this means is that I must decide whether or not you should consider evidence offered by the parties. For example, if a party offers a photograph as an exhibit, I will decide whether it is admissible. Do not be concerned about the reasons for my rulings. You must not consider or discuss any evidence that I do not admit or that I tell you to disregard.
The evidence in this case may include testimony of witnesses or actual physical objects, such as papers, photographs, or other exhibits. Any exhibits admitted into evidence will go with you to the jury room when you begin your deliberations. When witnesses testify before you, please listen very carefully. You will need to remember testimony during your deliberations because testimony will rarely, if ever, be repeated for you.
The lawyers' remarks, statements, and arguments are intended to help you understand the evidence and apply the law. Although the lawyers will frequently make reference to the evidence and the law, their statements are not evidence or the law. The evidence is the testimony and the exhibits. The law is the law as I give it to you. You must disregard anything the lawyers say that is at odds with the evidence or the law as I give it to you.
Our state constitution prohibits a trial judge from making a comment on the evidence. For example, it would be improper for me to express my personal opinion about the value of a particular witness's testimony. Although I will not intentionally do so, if it appears to you that I have indicated my personal opinion concerning any evidence, you must disregard that opinion entirely.
You may hear objections made by the lawyers during trial. Each party has the right to object to questions asked by another lawyer, and may have a duty to do so. These objections should not influence you. Do not make any assumptions or draw any conclusions based on a lawyer's objections.
In deciding this case, you will be asked to apply a concept called "burden of proof." The phrase "burden of proof" may be unfamiliar to you. Burden of proof refers to the measure or amount of proof required to prove a fact. The burden of proof in this case is proof by a preponderance of the evidence. Proof by a preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that a proposition is more probably true than not true.
During your deliberations, you must apply the law to the facts that you find to be true. It is your duty to accept the law as I give it to you, regardless of what you personally believe the law is or what you think it ought to be. You are to apply the law you receive from me to the facts and in this way decide the case.
In this courtroom we record all proceedings with a special audio recording system. All of the proceedings are preserved to create a "court record."
At this time, I would like to introduce you to the court reporter, [Mr.] [Ms.] ______________, who will record everything that is said or done in this courtroom during this trial. [He] [She] is responsible for recording these proceedings accurately. What [he] [she] transcribes is referred to as the "record."
I would [also] like to introduce you to the court clerk, [Mr.] [Ms.] ______________, and the bailiff, [Mr.] [Ms.] ______________. The job of the court clerk is to keep track of all documents and exhibits and to make a record of rulings made during the trial. The bailiff keeps the trial running smoothly. You will be in the care of the bailiff throughout this trial. [Mr.] [Ms.] ______________ will help you with any problems you may have related to jury service. Please follow any instructions that [he] [she] gives you.
Now I will explain the procedure to be followed during the trial.
First: The lawyers will have an opportunity to make opening statements outlining the testimony of witnesses and other evidence that they expect to be presented during trial.
Next: The plaintiff will present the testimony of witnesses or other evidence to you. When the plaintiff has finished, the defendant may present the testimony of witnesses or other evidence. Each witness may be cross-examined by the other side.
Next: When all of the evidence has been presented to you, I will tell you what law applies to this case. The law that applies will be set out in written instructions, which I will read out loud. You will have the written instructions with you in the jury room during your deliberations.
Next: The lawyers will make closing arguments.
Finally: You will be taken to the jury room by the bailiff where you will select a presiding juror. The presiding juror will preside over your discussions of the case, which are called deliberations. You will then deliberate in order to reach a decision, which is called a "verdict." Until you are in the jury room for those deliberations, you must not discuss the case with the other jurors or with anyone else, or remain within hearing of anyone discussing it.
Throughout this trial, you must come and go directly from the jury room. Do not remain in the hall or courtroom, as witnesses and parties may not recognize you as a juror, and you may accidentally overhear some discussion about this case. I have instructed the lawyers, parties, and witnesses not to talk to you during trial.
It is essential to a fair trial that everything you learn about this case comes to you in this courtroom, and only in this courtroom. You must not allow yourself to be exposed to any outside information about this case. Do not permit anyone to discuss or comment about it in your presence. You must keep your mind free of outside influences so that your decision will be based entirely on the evidence presented during the trial and on my instructions to you about the law.
Until you are dismissed at the end of this trial, you must avoid outside sources such as newspapers, magazines, the Internet, or radio or television broadcasts which may discuss this case or issues involved in this trial. By giving this instruction I do not mean to suggest that this particular case is newsworthy; I give this instruction in every case.
During the trial, do not try to determine on your own what the law is. Do not seek out any evidence on your own. Do not consult any reference materials, such as dictionaries and the like. Do not inspect the scene of any event involved in this case. If your ordinary travel will result in passing or seeing the location of any event involved in this case, do not stop or try to investigate. You must keep your mind clear of anything that is not presented to you in this courtroom.
Throughout the trial, you must maintain an open mind. You must not form any firm and fixed opinion about any issue in the case until the entire case has been submitted to you for deliberation.
You will be allowed to take notes during this trial. I am not instructing you to take notes, nor am I encouraging you to do so. Taking notes may interfere with your ability to listen and observe. If you choose to take notes, I must remind you to listen carefully to all testimony and to carefully observe all witnesses.
At an appropriate time, the bailiff will provide a note pad and a pen or pencil to each of you. Your juror number will be on the front page of the note pad. You must take notes on this pad only, not on any other paper. You must not take your note pad from the courtroom or the jury room for any reason. When you recess during the trial, you may review your own notes but may not share or discuss them with other jurors until you begin deliberating. At the end of the day, the note pads must be left with the bailiff and destroyed immediately after rendering the verdict. While you are away from the courtroom or the jury room, no one else will read your notes.
You must not discuss your notes with anyone or show your notes to anyone until you begin deliberating on your verdict. This includes other jurors. During deliberation, you may discuss your notes with the other jurors or show your notes to them.
You are not to assume that your notes are necessarily more accurate than your memory. I am allowing you to take notes to assist you in remembering clearly, not to substitute for your memory. You are also not to assume that your notes are more accurate than the memories or notes of the other jurors.
After you have reached a verdict, your notes will be collected and destroyed by the bailiff. No one will be allowed to read them.
As jurors, you are officers of this court. As such, you must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, bias, or personal preference. To assure that all parties receive a fair trial, you must act impartially with an earnest desire to reach a just and proper verdict.
To accomplish a fair trial takes work, commitment, and cooperation. A fair trial is possible only with a serious and continuous effort by each one of us, working together.
Thank you for your willingness to serve this court and our system of justice.
WPI 1.01 & WPI 1.01.04
Advance Oral Instruction--Beginning of Proceedings & Jurors Taking Notes
[Modified based on CRLJ 38(h)]
PLAINTIFF’S INSTRUCTION NO. 2
The evidence that has been presented to you may be either direct or circumstantial. The term “direct evidence” refers to evidence that is given by a witness who has directly perceived something at issue in this case. The term “circumstantial evidence” refers to evidence from which, based on your common sense and experience, you may reasonably infer something that is at issue in this case.
The law does not distinguish between direct and circumstances evidence in terms of their weight or value in finding the facts in this case. One is not necessarily more or less valuable than the other.
Direct and Circumstantial Evidence
PLAINTIFF’S INSTRUCTION NO. 3
Upon retiring to the jury room for your deliberations, first select a presiding juror. The presiding juror shall see that your discussion is sensible and orderly, that you fully and fairly discuss the issues submitted to you, and that each of you has an opportunity to be heard and to participate in the deliberations on each question before the jury.
You will be given the exhibits admitted in evidence and these instructions. You will also be given a special verdict form that consists of several questions for you to answer. You must answer the questions in the order in which they are written, and according to the directions on the form. It is important that you read all the questions before you begin answering, and that you follow the directions exactly. Your answer to some questions will determine whether you are to answer all, some, or none of the remaining questions.
During your deliberations, you may discuss any notes that you have taken during the trial, if you wish. You have been allowed to take notes to assist you in remembering clearly, not to substitute for your memory or the memories or notes of other jurors. However, do not assume that your notes are more or less accurate than your memory.
You will need to rely on your notes and memory as to the testimony presented in this case. Testimony will rarely, if ever, be repeated for you during your deliberations.
If you need to ask the court a question that you have been unable to answer among yourselves after reviewing the evidence and instructions, write the question simply and clearly. The presiding juror should sign and date the question and give it to the judicial assistant. The court will confer with counsel to determine what answer, if any, can be given.
In your question, do not indicate how your deliberations are proceeding. Do not state how the jurors have voted on any particular question, issue, or claim, nor in any other way express your opinions about the case.
In order to answer any question, five jurors must agree upon the answer. It is not necessary that the jurors who agree on the answer be the same jurors who agreed on the answer to any other question, so long as five jurors agree to each answer.
When you have finished answering the questions according to the directions on the verdict form, the presiding juror must sign the form, whether or not the presiding juror agrees with the verdict. The presiding juror will then tell the judicial assistant that the jury has reached a verdict, and the judicial assistant will bring you back into court where your verdict will be announced.
PLAINTIFF’S INSTRUCTION NO. 4
A witness who has special training, education or experience may be allowed to express an opinion in addition to giving testimony as to facts.
You are not, however, required to accept his or her opinion. To determine the credibility and weight to be given to this type of evidence, you may consider, among other things, the education, training, experience, knowledge and ability of that witness. You may also consider the reasons given for the opinion and the sources of his or her information, as well as considering the factors already given you for evaluating the testimony of any other witness.
Expert Testimony
PLAINTIFF’S INSTRUCTION NO. 5
Negligence:
(1) The plaintiff claims that the defendants were negligent in the following respect:
· Defendants failed to exercise reasonable care in properly confining and supervising Moochie to prevent his escape;
The plaintiff claims that defendants’ negligence was a proximate cause of injuries and damage to plaintiff. Defendant denies this claim.
Breach of Bailment Contract:
(2) Plaintiff claims that the defendant breached its bailment contract with her in the following respect:
· Plaintiff delivered possession of Moochie to Defendant for boarding pursuant to an express agreement.
· Defendant failed to return Moochie as contracted.
· Their failure was due to their negligent or reckless conduct.
Plaintiff claims that defendants’ breach was a proximate cause of injuries and damage to plaintiff. Defendant denies this claim.
When it is said that a party has the burden of proof on any proposition, or that any proposition must be proved by a preponderance of the evidence, or the expression “if you find” is used, it means that you must be persuaded, considering all the evidence in the case, that the proposition on which that party has the burden of proof is more probably true than not true.
For Negligence:
The plaintiff ordinarily has the burden of proving each of the following propositions:
First , that a defendant and/or defendants acted, or failed to act, in one of the ways claimed by the plaintiff and that in so acting or failing to act, a defendant and/or defendants were negligent;
Second , that the plaintiff suffered damage;
Third , that the negligence of a defendant and/or defendants was a proximate cause of the injury to the plaintiff.
However , if you find that:
(1) an agency or instrumentality that produced injury or damage to the plaintiff was under the exclusive control of the defendant at the time of the injury or damage to the plaintiff; and
(2) the injury or damage to the plaintiff would not have occurred if the defendant had used ordinary care;
Then, in the absence of satisfactory explanation, you may infer, but you are not required to infer, that the defendant was negligent and that such negligence produced the injury or damages complained of by the plaintiff.
For Breach of Bailment Contract:
The plaintiff has the burden of proving each of the following propositions:
First , that she transferred possession of Moochie to Defendant for boarding with an express or implied contract to redeliver him at the end of the boarding period.
Second , that Moochie was lost, destroyed, or compromised while in Defendant’s possession and not returned in the condition in which he was transferred initially.
Defendant has admitted the above propositions. Accordingly, the law presumes that the Defendant was negligent , and you are bound by that presumption unless you find that the Defendant meets its burden in proving the following proposition:
First, that the Defendant exercised due care or can show the loss was caused by burglary, larceny, fire, or other causes which of themselves do not point to negligence on the part of the bailee.
If you find that the defendant has proved this proposition, then the burden returns to the plaintiff to demonstrate the defendant’s negligence or reckless conduct.
If you find that Plaintiff has proved that Defendant acted recklessly in breaching this bailment contract, and you further believe that Plaintiff has proved that the Defendant knew or should have known at the time of entering into the boarding contract with Plaintiff that recklessly breaching that contract would cause Plaintiff emotional distress for reasons unrelated to economic loss, then you must also award Plaintiff emotional distress damages.
“Recklessness” is defined by the creation of a substantial and unjustifiable risk of harm to others and by a conscious disregard for or indifference to that risk. It is a gross deviation from what a reasonable person would do under the circumstances but does not require proof that the actor desired harmful consequence. It merely requires that the actor foresaw the possibility and consciously took the risk.
PLAINTIFFS’ INSTRUCTION NO. 7
The purchase price of an animal is not a measure of value of the animal by itself but is one factor to consider when determining the value to its guardian.
Sollenberger v. Cranwell , 26 Wn. App. 783, 788 ( Wash. App. 1980).
PLAINTIFFS’ INSTRUCTION NO. 8
It is the duty of the court to instruct you as to the measure of damages. By instructing you on damages, the court does not mean to suggest for which party your verdict should be rendered.
If your verdict is for the plaintiff, then you must determine the amount of money that will reasonably and fairly compensate plaintiff for such damages as you find were proximately caused by the defendants.
If you find for the plaintiff your verdict must include the following:
(1) The value of Moochie, expressed as either:
a. the actual or intrinsic value of Moochie to plaintiff, including loss of love, use, companionship, mutual society, protection, his unique personality, solace, affection, and friendship;
b. the replacement value of Moochie, which includes all characteristics of Moochie, and all adaptations to which Moochie was put, as well as any accessions to Moochie (e.g., bond, relationship, training); OR
c. some sum in-between (a) and (b).
(2) Plaintiff’s search costs and time spent searching for Moochie; AND
(3) If you find that the Defendant acted recklessly and had reason to believe at the time of contracting with Plaintiff that she would suffer emotional distress for nonpecuniary reasons if the contract were breached recklessly, then you must also award Plaintiff emotional distress damages.
The court has determined that Moochie had no fair market value at the time of his presumed death.
Intrinsic value is the “actual value to the owner.” While you may not award damages for unusual sentimental value, you may consider such factors as will fairly and justly compensate the plaintiff for the loss sustained, such as feeling, sensibility, or emotional idealism – so long as it is not excessively mawkish or fanciful. Intrinsic value places worth on factors apart from those entering into exchange value that cause the article to be more desirable to the owner than to others. Some things may have no exchange value but may be valuable to the owner; other things may be have a comparatively small exchange value but have a special and greater value to the owner. The absence or inadequacy of the exchange value may result from the fact that others could not or would not use the thing for any purpose, or would employ it only in a less useful manner. Thus, a personal record or manuscript, an artificial eye or a dog trained to obey only one master, will have substantially no value to others than the owner. The same is true of articles that give enjoyment to the user but have no substantial value to others, such as family portraits. Second-hand clothing and furniture have an exchange value, but frequently the value is far less than its use value to the owner. In these cases it would be unjust to limit the damages for destroying or harming the articles to the exchange value. Likewise an author who with great labor has compiled a manuscript, useful to him but with no exchange value, is entitled, in case of its destruction, to the value of the time spent in producing it or necessary to spend to reproduce it.
In the case of animals, the value to the owner may include considerations such as duration of care, nature of care before the animal’s death, circumstances of acquiring the animal, the method of disposition of the animal after death (e.g., burial versus tossing in the trash), the affection given and received by the animal, the unique personality of the animal, the quality of the bond created, and the emotional reaction to the animal’s loss.
Although you may consider loss of use in calculating Moochie’s intrinsic value, should you believe that measure applies, you may not award a separate “line item” measure of damages for loss of companionship.
The burden of proving damages rests upon the plaintiff. It is for you to determine, based upon the evidence, whether any particular element has been proved by a preponderance of the evidence.
Your award must be based upon evidence and not upon speculation, guess, or conjecture.
The law has not furnished us with any fixed standards by which to measure noneconomic damages. With reference to these matters you must be governed by your own judgment, by the evidence in the case, and by these instructions.
WPI 31.06.01, WPI 30.02.01 & WPI 30.06
WPI 30.09.01 (economic damages include “the reasonable value of necessary substitute domestic services [and] nonmedical expenses which have been required to the present time); duty to mitigate satisfied by searching for Moochie
PLAINTIFFS’ INSTRUCTION NO. 9
You may take into consideration in your deliberations that the law of torts serves two basic functions: It deters future conduct through a finding of liability and it compensates the injured person for the damages sustained.
Restatement (2 nd ) Torts § 901 (1979)
Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45 (1891)
Babcock v. State, 112 Wn.2d 83, 113 (1989)(Utter Dissent)(“The law of torts serves two functions: it seeks to prevent future harm through the deterring effect of potential liability and it provides a remedy for the damages suffered.”)
Any v. Martin, 154 Wn.2d 477 (2005)(Chambers Dissent)(“Tort actions are maintained for a variety of reasons, including the deterrence of wrongful conduct. Ford v. Trendwest Resorts, Inc., 146 Wn.2d 146, 154 (2002)[.]”)
PLAINTIFFS’ INSTRUCTION NO. 10
A state administrative regulation governing veterinary facilities states:
Animal housing areas: Any veterinary medical facility confining animals shall have individual cages, pens, exercise areas or stalls to confine said animals in a comfortable, sanitary and safe manner. Cages and stalls shall be of impervious material and of adequate size to assure patient comfort and sanitation. Runs and exercise pens shall be of a size to allow patient comfort and exercise. Runs and exercise pens shall provide and allow effective separation of adjacent animals and their waste products, and shall be constructed in such a manner as to protect against escape or injury.
The violation, if you find any, of an administrative rule relating to confining animals in veterinary hospitals is not necessarily negligence, but may be considered by you as evidence in determining negligence.
WPI 60.03 Violation of Statute, Ordinance, or Administrative Rule—Evidence of Negligence
WAC 246-933-330(6)
PLAINTIFFS’ INSTRUCTION NO. 11
The IRS mileage rate for September 1, 2005 to December 31, 2005 was 48.5 cents a mile.
The IRS mileage rate for January 1, 2006 to December 31, 2006 was 44.5 cents a mile.
The IRS mileage rate for January 1, 2007 to date is 48.5 cents a mile.
Rev Proc. 2006-49
Rev Proc 2005-78
IRS Announcement 2005-71
The Honorable John P. Wulle
Trial Date: 8/15/07
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF CLARK
|
MARILYN DANTON,
Plaintiff,
vs.
ST. FRANCIS 24 HOUR ANIMAL HOSPITAL, P.C. a Washington professional services corporation (UBI 602-029-072); and DOES 1-10;
Defendants. |
Case No.: 06-2-01172-8 (Wulle)
SPECIAL VERDICT FORM
|
We, the jury, make the following answers to the questions submitted by the court:
QUESTION NO. 1: Were all or any one of the defendants negligent?
Answer: ____________ .(Write “yes” or “no”)
QUESTION NO. 2: Did all or any of the defendants breach their bailment contract with plaintiff?
Answer: ____________ .(Write “yes” or “no”)
QUESTION NO. 3: Was defendants’ negligence a proximate cause of damage to the plaintiff?
Answer: ____________. (Write “yes” or “no”)
(If you answered “no” to Question 1, answer Question 4.)
QUESTION NO. 4: Was defendants’ breach of bailment contract a proximate cause of damage to the plaintiff?
Answer: ____________ (Write “yes” or “no”)
(If you answered “no” to Question 2, answer Question 5.)
QUESTION NO. 5: What do you find to be Plaintiff’s damages for the death or loss of Moochie?
Amount: $_________________
QUESTION NO. 6: What do you find to be the Plaintiff’s damages for the search time and costs incurred to find Moochie?
Amount: $_________________
QUESTION NO. 7: If you answered yes to Question 2 above, did Defendants breach their contract with Plaintiff recklessly, knowing or should have been knowing at the time of contracting that such a breach would cause Plaintiff emotional distress for nonpecuniary reasons?
Answer: ____________ (Write “yes” or “no”)
QUESTION NO. 8: What do you find to be the Plaintiff’s damages for emotional distress?
Amount: $_________________
(If you answered “no” to Question 7, disregard this Question 8.)
(Sign and return this verdict to bailiff).
Dated: August ___, 2007.
______________________________
Presiding Juror
INSTRUCTION NO. ___
This is a civil case brought by plaintiff Marilyn Danton against defendant St. Francis 24-Hour Animal Hospital, P.C. The plaintiff’s lawyer is Adam Karp . Defendant’s lawyer is Douglas Weigel. This case arises out of the disappearance of Plaintiff’s cat, Moochie, from Defendant’s facility on or about September 28, 2005 and the search that ensued. The plaintiff claims damages for the intrinsic value of her cat and search time and expense. Defendant denies liability and damages but has admitted that all its employees who were handling Moochie during his boarding period and at the time he disappeared were acting within the scope of their employment. Accordingly, if you find that an individual employee of Defendant was liable, then that liability will be imputed to the Defendant as the employer.
In determining the damages to be awarded to the plaintiff, should you find Defendant liable, the court has found that the appropriate measure of damages for the death of Moochie is not fair market value. Rather, it will be up to you to determine whether his value is measured by replacement value, intrinsic value, or something in-between. The court has also found that loss of use or companionship, while not independently recoverable, may be considered in determining the measure of damages for the value of Moochie.
It is your duty as a jury to decide the facts in this case based upon the evidence presented to you during this trial. Evidence is a legal term. Evidence includes such things as testimony of witnesses, documents, or other physical objects.
One of my duties as judge is to decide whether or not evidence should be admitted during this trial. What this means is that I must decide whether or not you should consider evidence offered by the parties. For example, if a party offers a photograph as an exhibit, I will decide whether it is admissible. Do not be concerned about the reasons for my rulings. You must not consider or discuss any evidence that I do not admit or that I tell you to disregard.
The evidence in this case may include testimony of witnesses or actual physical objects, such as papers, photographs, or other exhibits. Any exhibits admitted into evidence will go with you to the jury room when you begin your deliberations. When witnesses testify before you, please listen very carefully. You will need to remember testimony during your deliberations because testimony will rarely, if ever, be repeated for you.
The lawyers' remarks, statements, and arguments are intended to help you understand the evidence and apply the law. Although the lawyers will frequently make reference to the evidence and the law, their statements are not evidence or the law. The evidence is the testimony and the exhibits. The law is the law as I give it to you. You must disregard anything the lawyers say that is at odds with the evidence or the law as I give it to you.
Our state constitution prohibits a trial judge from making a comment on the evidence. For example, it would be improper for me to express my personal opinion about the value of a particular witness's testimony. Although I will not intentionally do so, if it appears to you that I have indicated my personal opinion concerning any evidence, you must disregard that opinion entirely.
You may hear objections made by the lawyers during trial. Each party has the right to object to questions asked by another lawyer, and may have a duty to do so. These objections should not influence you. Do not make any assumptions or draw any conclusions based on a lawyer's objections.
In deciding this case, you will be asked to apply a concept called "burden of proof." The phrase "burden of proof" may be unfamiliar to you. Burden of proof refers to the measure or amount of proof required to prove a fact. The burden of proof in this case is proof by a preponderance of the evidence. Proof by a preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that a proposition is more probably true than not true.
During your deliberations, you must apply the law to the facts that you find to be true. It is your duty to accept the law as I give it to you, regardless of what you personally believe the law is or what you think it ought to be. You are to apply the law you receive from me to the facts and in this way decide the case.
In this courtroom we record all proceedings with a special audio recording system. All of the proceedings are preserved to create a "court record."
At this time, I would like to introduce you to the court reporter, [Mr.] [Ms.] ______________, who will record everything that is said or done in this courtroom during this trial. [He] [She] is responsible for recording these proceedings accurately. What [he] [she] transcribes is referred to as the "record."
I would [also] like to introduce you to the court clerk, [Mr.] [Ms.] ______________, and the bailiff, [Mr.] [Ms.] ______________. The job of the court clerk is to keep track of all documents and exhibits and to make a record of rulings made during the trial. The bailiff keeps the trial running smoothly. You will be in the care of the bailiff throughout this trial. [Mr.] [Ms.] ______________ will help you with any problems you may have related to jury service. Please follow any instructions that [he] [she] gives you.
Now I will explain the procedure to be followed during the trial.
First: The lawyers will have an opportunity to make opening statements outlining the testimony of witnesses and other evidence that they expect to be presented during trial.
Next: The plaintiff will present the testimony of witnesses or other evidence to you. When the plaintiff has finished, the defendant may present the testimony of witnesses or other evidence. Each witness may be cross-examined by the other side.
Next: When all of the evidence has been presented to you, I will tell you what law applies to this case. The law that applies will be set out in written instructions, which I will read out loud. You will have the written instructions with you in the jury room during your deliberations.
Next: The lawyers will make closing arguments.
Finally: You will be taken to the jury room by the bailiff where you will select a presiding juror. The presiding juror will preside over your discussions of the case, which are called deliberations. You will then deliberate in order to reach a decision, which is called a "verdict." Until you are in the jury room for those deliberations, you must not discuss the case with the other jurors or with anyone else, or remain within hearing of anyone discussing it.
Throughout this trial, you must come and go directly from the jury room. Do not remain in the hall or courtroom, as witnesses and parties may not recognize you as a juror, and you may accidentally overhear some discussion about this case. I have instructed the lawyers, parties, and witnesses not to talk to you during trial.
It is essential to a fair trial that everything you learn about this case comes to you in this courtroom, and only in this courtroom. You must not allow yourself to be exposed to any outside information about this case. Do not permit anyone to discuss or comment about it in your presence. You must keep your mind free of outside influences so that your decision will be based entirely on the evidence presented during the trial and on my instructions to you about the law.
Until you are dismissed at the end of this trial, you must avoid outside sources such as newspapers, magazines, the Internet, or radio or television broadcasts which may discuss this case or issues involved in this trial. By giving this instruction I do not mean to suggest that this particular case is newsworthy; I give this instruction in every case.
During the trial, do not try to determine on your own what the law is. Do not seek out any evidence on your own. Do not consult any reference materials, such as dictionaries and the like. Do not inspect the scene of any event involved in this case. If your ordinary travel will result in passing or seeing the location of any event involved in this case, do not stop or try to investigate. You must keep your mind clear of anything that is not presented to you in this courtroom.
Throughout the trial, you must maintain an open mind. You must not form any firm and fixed opinion about any issue in the case until the entire case has been submitted to you for deliberation.
You will be allowed to take notes during this trial. I am not instructing you to take notes, nor am I encouraging you to do so. Taking notes may interfere with your ability to listen and observe. If you choose to take notes, I must remind you to listen carefully to all testimony and to carefully observe all witnesses.
At an appropriate time, the bailiff will provide a note pad and a pen or pencil to each of you. Your juror number will be on the front page of the note pad. You must take notes on this pad only, not on any other paper. You must not take your note pad from the courtroom or the jury room for any reason. When you recess during the trial, you may review your own notes but may not share or discuss them with other jurors until you begin deliberating. At the end of the day, the note pads must be left with the bailiff and destroyed immediately after rendering the verdict. While you are away from the courtroom or the jury room, no one else will read your notes.
You must not discuss your notes with anyone or show your notes to anyone until you begin deliberating on your verdict. This includes other jurors. During deliberation, you may discuss your notes with the other jurors or show your notes to them.
You are not to assume that your notes are necessarily more accurate than your memory. I am allowing you to take notes to assist you in remembering clearly, not to substitute for your memory. You are also not to assume that your notes are more accurate than the memories or notes of the other jurors.
After you have reached a verdict, your notes will be collected and destroyed by the bailiff. No one will be allowed to read them.
As jurors, you are officers of this court. As such, you must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, bias, or personal preference. To assure that all parties receive a fair trial, you must act impartially with an earnest desire to reach a just and proper verdict.
To accomplish a fair trial takes work, commitment, and cooperation. A fair trial is possible only with a serious and continuous effort by each one of us, working together.
Thank you for your willingness to serve this court and our system of justice.
INSTRUCTION NO. ____
The evidence that has been presented to you may be either direct or circumstantial. The term “direct evidence” refers to evidence that is given by a witness who has directly perceived something at issue in this case. The term “circumstantial evidence” refers to evidence from which, based on your common sense and experience, you may reasonably infer something that is at issue in this case.
The law does not distinguish between direct and circumstances evidence in terms of their weight or value in finding the facts in this case. One is not necessarily more or less valuable than the other.
INSTRUCTION NO. ___
Upon retiring to the jury room for your deliberations, first select a presiding juror. The presiding juror shall see that your discussion is sensible and orderly, that you fully and fairly discuss the issues submitted to you, and that each of you has an opportunity to be heard and to participate in the deliberations on each question before the jury.
You will be given the exhibits admitted in evidence and these instructions. You will also be given a special verdict form that consists of several questions for you to answer. You must answer the questions in the order in which they are written, and according to the directions on the form. It is important that you read all the questions before you begin answering, and that you follow the directions exactly. Your answer to some questions will determine whether you are to answer all, some, or none of the remaining questions.
During your deliberations, you may discuss any notes that you have taken during the trial, if you wish. You have been allowed to take notes to assist you in remembering clearly, not to substitute for your memory or the memories or notes of other jurors. However, do not assume that your notes are more or less accurate than your memory.
You will need to rely on your notes and memory as to the testimony presented in this case. Testimony will rarely, if ever, be repeated for you during your deliberations.
If you need to ask the court a question that you have been unable to answer among yourselves after reviewing the evidence and instructions, write the question simply and clearly. The presiding juror should sign and date the question and give it to the judicial assistant. The court will confer with counsel to determine what answer, if any, can be given.
In your question, do not indicate how your deliberations are proceeding. Do not state how the jurors have voted on any particular question, issue, or claim, nor in any other way express your opinions about the case.
In order to answer any question, five jurors must agree upon the answer. It is not necessary that the jurors who agree on the answer be the same jurors who agreed on the answer to any other question, so long as five jurors agree to each answer.
When you have finished answering the questions according to the directions on the verdict form, the presiding juror must sign the form, whether or not the presiding juror agrees with the verdict. The presiding juror will then tell the judicial assistant that the jury has reached a verdict, and the judicial assistant will bring you back into court where your verdict will be announced.
INSTRUCTION NO. ____
A witness who has special training, education or experience may be allowed to express an opinion in addition to giving testimony as to facts.
You are not, however, required to accept his or her opinion. To determine the credibility and weight to be given to this type of evidence, you may consider, among other things, the education, training, experience, knowledge and ability of that witness. You may also consider the reasons given for the opinion and the sources of his or her information, as well as considering the factors already given you for evaluating the testimony of any other witness.
INSTRUCTION NO. ___
Negligence:
(3) The plaintiff claims that the defendants were negligent in the following respect:
· Defendants failed to exercise reasonable care in properly confining and supervising Moochie to prevent his escape;
The plaintiff claims that defendants’ negligence was a proximate cause of injuries and damage to plaintiff. Defendant denies this claim.
Breach of Bailment Contract:
(4) Plaintiff claims that the defendant breached its bailment contract with her in the following respect:
· Plaintiff delivered possession of Moochie to Defendant for boarding pursuant to an express agreement.
· Defendant failed to return Moochie as contracted.
· Their failure was due to their negligent or reckless conduct.
Plaintiff claims that defendants’ breach was a proximate cause of injuries and damage to plaintiff. Defendant denies this claim.
INSTRUCTION NO. ___
When it is said that a party has the burden of proof on any proposition, or that any proposition must be proved by a preponderance of the evidence, or the expression “if you find” is used, it means that you must be persuaded, considering all the evidence in the case, that the proposition on which that party has the burden of proof is more probably true than not true.
For Negligence:
The plaintiff ordinarily has the burden of proving each of the following propositions:
First , that a defendant and/or defendants acted, or failed to act, in one of the ways claimed by the plaintiff and that in so acting or failing to act, a defendant and/or defendants were negligent;
Second , that the plaintiff suffered damage;
Third , that the negligence of a defendant and/or defendants was a proximate cause of the injury to the plaintiff.
However , if you find that:
(3) an agency or instrumentality that produced injury or damage to the plaintiff was under the exclusive control of the defendant at the time of the injury or damage to the plaintiff; and
(4) the injury or damage to the plaintiff would not have occurred if the defendant had used ordinary care;
Then, in the absence of satisfactory explanation, you may infer, but you are not required to infer, that the defendant was negligent and that such negligence produced the injury or damages complained of by the plaintiff.
For Breach of Bailment Contract:
The plaintiff has the burden of proving each of the following propositions:
First , that she transferred possession of Moochie to Defendant for boarding with an express or implied contract to redeliver him at the end of the boarding period.
Second , that Moochie was lost, destroyed, or compromised while in Defendant’s possession and not returned in the condition in which he was transferred initially.
Defendant has admitted the above propositions. Accordingly, the law presumes that the Defendant was negligent , and you are bound by that presumption unless you find that the Defendant meets its burden in proving the following proposition:
First, that the Defendant exercised due care or can show the loss was caused by burglary, larceny, fire, or other causes which of themselves do not point to negligence on the part of the bailee.
If you find that the defendant has proved this proposition, then the burden returns to the plaintiff to demonstrate the defendant’s negligence or reckless conduct.
If you find that Plaintiff has proved that Defendant acted recklessly in breaching this bailment contract, and you further believe that Plaintiff has proved that the Defendant knew or should have known at the time of entering into the boarding contract with Plaintiff that recklessly breaching that contract would cause Plaintiff emotional distress for reasons unrelated to economic loss, then you must also award Plaintiff emotional distress damages.
“Recklessness” is defined by the creation of a substantial and unjustifiable risk of harm to others and by a conscious disregard for or indifference to that risk. It is a gross deviation from what a reasonable person would do under the circumstances but does not require proof that the actor desired harmful consequence. It merely requires that the actor foresaw the possibility and consciously took the risk.
INSTRUCTION NO. ___
The purchase price of an animal is not a measure of value of the animal by itself but is one factor to consider when determining the value to its guardian.
INSTRUCTION NO. ___
It is the duty of the court to instruct you as to the measure of damages. By instructing you on damages, the court does not mean to suggest for which party your verdict should be rendered.
If your verdict is for the plaintiff, then you must determine the amount of money that will reasonably and fairly compensate plaintiff for such damages as you find were proximately caused by the defendants.
If you find for the plaintiff your verdict must include the following:
(4) The value of Moochie, expressed as either:
a. the actual or intrinsic value of Moochie to plaintiff, including loss of love, use, companionship, mutual society, protection, his unique personality, solace, affection, and friendship;
b. the replacement value of Moochie, which includes all characteristics of Moochie, and all adaptations to which Moochie was put, as well as any accessions to Moochie (e.g., bond, relationship, training); OR
c. some sum in-between (a) and (b).
(5) Plaintiff’s search costs and time spent searching for Moochie; AND
(6) If you find that the Defendant acted recklessly and had reason to believe at the time of contracting with Plaintiff that she would suffer emotional distress for nonpecuniary reasons if the contract were breached recklessly, then you must also award Plaintiff emotional distress damages.
The court has determined that Moochie had no fair market value at the time of his presumed death.
Intrinsic value is the “actual value to the owner.” While you may not award damages for unusual sentimental value, you may consider such factors as will fairly and justly compensate the plaintiff for the loss sustained, such as feeling, sensibility, or emotional idealism – so long as it is not excessively mawkish or fanciful. Intrinsic value places worth on factors apart from those entering into exchange value that cause the article to be more desirable to the owner than to others. Some things may have no exchange value but may be valuable to the owner; other things may be have a comparatively small exchange value but have a special and greater value to the owner. The absence or inadequacy of the exchange value may result from the fact that others could not or would not use the thing for any purpose, or would employ it only in a less useful manner. Thus, a personal record or manuscript, an artificial eye or a dog trained to obey only one master, will have substantially no value to others than the owner. The same is true of articles that give enjoyment to the user but have no substantial value to others, such as family portraits. Second-hand clothing and furniture have an exchange value, but frequently the value is far less than its use value to the owner. In these cases it would be unjust to limit the damages for destroying or harming the articles to the exchange value. Likewise an author who with great labor has compiled a manuscript, useful to him but with no exchange value, is entitled, in case of its destruction, to the value of the time spent in producing it or necessary to spend to reproduce it.
In the case of animals, the value to the owner may include considerations such as duration of care, nature of care before the animal’s death, circumstances of acquiring the animal, the method of disposition of the animal after death (e.g., burial versus tossing in the trash), the affection given and received by the animal, the unique personality of the animal, the quality of the bond created, and the emotional reaction to the animal’s loss.
Although you may consider loss of use in calculating Moochie’s intrinsic value, should you believe that measure applies, you may not award a separate “line item” measure of damages for loss of companionship.
The burden of proving damages rests upon the plaintiff. It is for you to determine, based upon the evidence, whether any particular element has been proved by a preponderance of the evidence.
Your award must be based upon evidence and not upon speculation, guess, or conjecture.
The law has not furnished us with any fixed standards by which to measure noneconomic damages. With reference to these matters you must be governed by your own judgment, by the evidence in the case, and by these instructions.
INSTRUCTION NO. ___
You may take into consideration in your deliberations that the law of torts serves two basic functions: It deters future conduct through a finding of liability and it compensates the injured person for the damages sustained.
INSTRUCTION NO. __
A state administrative regulation governing veterinary facilities states:
Animal housing areas: Any veterinary medical facility confining animals shall have individual cages, pens, exercise areas or stalls to confine said animals in a comfortable, sanitary and safe manner. Cages and stalls shall be of impervious material and of adequate size to assure patient comfort and sanitation. Runs and exercise pens shall be of a size to allow patient comfort and exercise. Runs and exercise pens shall provide and allow effective separation of adjacent animals and their waste products, and shall be constructed in such a manner as to protect against escape or injury.
The violation, if you find any, of an administrative rule relating to confining animals in veterinary hospitals is not necessarily negligence, but may be considered by you as evidence in determining negligence.
INSTRUCTION NO. ___
The IRS mileage rate for September 1, 2005 to December 31, 2005 was 48.5 cents a mile.
The IRS mileage rate for January 1, 2006 to December 31, 2006 was 44.5 cents a mile.
The IRS mileage rate for January 1, 2007 to date is 48.5 cents a mile.
The Honorable John P. Wulle
Trial Date: 8/15/07
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF CLARK
|
MARILYN DANTON,
Plaintiff,
vs.
ST. FRANCIS 24 HOUR ANIMAL HOSPITAL, P.C. a Washington professional services corporation (UBI 602-029-072); and DOES 1-10;
Defendants. |
Case No.: 06-2-01172-8 (Wulle)
SPECIAL VERDICT FORM
|
We, the jury, make the following answers to the questions submitted by the court:
QUESTION NO. 1: Were all or any one of the defendants negligent?
Answer: ____________ .(Write “yes” or “no”)
QUESTION NO. 2: Did all or any of the defendants breach their bailment contract with plaintiff?
Answer: ____________ .(Write “yes” or “no”)
QUESTION NO. 3: Was defendants’ negligence a proximate cause of damage to the plaintiff?
Answer: ____________. (Write “yes” or “no”)
(If you answered “no” to Question 1, answer Question 4.)
QUESTION NO. 4: Was defendants’ breach of bailment contract a proximate cause of damage to the plaintiff?
Answer: ____________ (Write “yes” or “no”)
(If you answered “no” to Question 2, answer Question 5.)
QUESTION NO. 5: What do you find to be Plaintiff’s damages for the death or loss of Moochie?
Amount: $_________________
QUESTION NO. 6: What do you find to be the Plaintiff’s damages for the search time and costs incurred to find Moochie?
Amount: $_________________
QUESTION NO. 7: If you answered yes to Question 2 above, did Defendants breach their contract with Plaintiff recklessly, knowing or should have been knowing at the time of contracting that such a breach would cause Plaintiff emotional distress for nonpecuniary reasons?
Answer: ____________ (Write “yes” or “no”)
QUESTION NO. 8: What do you find to be the Plaintiff’s damages for emotional distress?
Amount: $_________________
(If you answered “no” to Question 7, disregard this Question 8.)
(Sign and return this verdict to bailiff).
Dated: August ___, 2007.
______________________________
Presiding Juror