Utah Courts

CV99 Introducing a self-represented litigant to the jury.

In this case, [name of plaintiff] [name of defendant] is representing [himself] [herself]. The fact that one party is represented by counsel and another party is not should not play any part in your deliberations. Parties have a right to represent themselves, and you must apply the law without regard to the litigant's status as a self-represented party. You should neither favor nor penalize a litigant because that litigant is self-represented.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV101 General admonitions.

Now that you have been chosen as jurors, you are required to decide this case based only on the evidence that you see and hear in this courtroom and the law that I will instruct you about. For your verdict to be fair, you must not be exposed to any other information about the case. This is very important, and so I need to give you some very detailed explanations about what you should do and not do during your time as jurors.

First, although it may seem natural to want to investigate a case, you must not try to get information from any source other than what you see and hear in this courtroom. You may not use any printed or electronic sources to get information about this case or the issues involved. This includes the Internet, reference books or dictionaries, newspapers, magazines, television, radio, computers, iPhones, Smartphones, or any social media or electronic device. You may not do any personal investigation. This includes visiting any of the places involved in this case, using Internet maps or Google Earth, talking to possible witnesses, or creating your own experiments or reenactments.

Second, although it may seem natural, you must not communicate with anyone about this case, and you must not allow anyone to communicate with you. You may not communicate about the case by any means, including by emails, text messages, tweets, blogs, chat rooms, comments, other postings, or any social media.

You may notify your family and your employer that you have been selected as a juror and you may let them know your schedule. But do not talk with anyone about the case, including your family and employer. You must not even talk with your fellow jurors about the case until I send you to deliberate. If you are asked or approached in any way about your jury service or anything about this case, you must respond that you have been ordered not to discuss the matter. And then please report the contact to the clerk or the bailiff, and they will notify me.

Also, do not talk with the lawyers, parties or witnesses about anything, not even to pass the time of day.

I know that these restrictions affect activities that you consider to be normal and harmless and very important in your daily lives. However, these restrictions ensure that the parties have a fair trial based only on the evidence and not on outside information. Information from an outside source might be inaccurate or incomplete, or it might simply not apply to this case, and the parties would not have a chance to explain or contradict that information because they wouldn't know about it. That's why it is so important that you base your verdict only on information you receive in this courtroom.

Courts used to sequester-or isolate-jurors to keep them away from information that might affect the fairness of the trial, but we seldom do that anymore. But this means that we must rely upon your honor to obey these restrictions, especially during recesses when no one is watching.

Any juror who violates these restrictions jeopardizes the fairness of the proceedings, and the entire trial may need to start over. That is a tremendous expense and inconvenience to the parties, the court and the taxpayers. Violations may also result in substantial penalties for the juror.

If any of you have any difficulty whatsoever in following these instructions, please let me know now. If any of you becomes aware that one of your fellow jurors has done something that violates these instructions, you are obligated to report that as well. If anyone tries to contact you about the case, either directly or indirectly, or sends you any information about the case, please report this promptly as well. Notify the bailiff or the clerk, who will notify me. These restrictions must remain in effect throughout this trial. Once the trial is over, you may resume your normal activities. At that point, you will be free to read or research anything you wish. You will be able to speak-or choose not to speak-about the trial to anyone you wish. You may write, or post, or tweet about the case if you choose to do so. The only limitation is that you must wait until after the verdict, when you have been discharged from your jury service.

So, keep an open mind throughout the trial. The evidence that will form the basis of your verdict can be presented only one piece at a time, and it is only fair that you do not form an opinion until I send you to deliberate.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV101A General admonitions. [self-represented litigant version]

Now that you have been chosen as jurors, you are required to decide this case based only on the evidence that you see and hear in this courtroom and the law that I will instruct you about. For your verdict to be fair, you must not be exposed to any other information about the case. This is very important, and so I need to give you some very detailed explanations about what you should do and not do during your time as jurors.

First, although it may seem natural to want to investigate a case, you must not try to get information from any source other than what you see and hear in this courtroom. You may not use any printed or electronic sources to get information about this case or the issues involved. This includes the Internet, reference books or dictionaries, newspapers, magazines, television, radio, computers, iPhones, Smartphones, or any social media or electronic device.

You may not do any personal investigation. This includes visiting any of the places involved in this case, using Internet maps or Google Earth, talking to possible witnesses, or creating your own experiments or reenactments.

Second, although it may seem natural, you must not communicate with anyone about this case, and you must not allow anyone to communicate with you. You may not communicate about the case by any means, including by emails, text messages, tweets, blogs, chat rooms, comments, other postings, or any social media.

You may notify your family and your employer that you have been selected as a juror and you may let them know your schedule. But do not talk with anyone about the case, including your family and employer. You must not even talk with your fellow jurors about the case until I send you to deliberate. If you are asked or approached in any way about your jury service or anything about this case, you must respond that you have been ordered not to discuss the matter. And then please report the contact to the clerk or the bailiff, and they will notify me.

[Name of plaintiff] [name of defendant] is representing him/herself.

[Name of defendant] [name of plaintiff] is represented by __________________.

[Name of plaintiff], [name of defendant], attorneys for the [plaintiff][defense] and witnesses are not allowed to speak with you during the case. When you see [plaintiff's] [defendant's] attorneys at a recess or pass them in the halls and they do not speak to you, they are not being rude or unfriendly - they are simply following the law.

I know that these restrictions affect activities that you consider to be normal and harmless and very important in your daily lives. However, these restrictions ensure that the parties have a fair trial based only on the evidence and not on outside information. Information from an outside source might be inaccurate or incomplete, or it might simply not apply to this case, and the parties would not have a chance to explain or contradict that information because they wouldn't know about it. That's why it is so important that you base your verdict only on information you receive in this courtroom. Courts used to sequester-or isolate-jurors to keep them away from information that might affect the fairness of the trial, but we seldom do that anymore. But this means that we must rely upon your honor to obey these restrictions, especially during recesses when no one is watching.

Any juror who violates these restrictions jeopardizes the fairness of the proceedings, and the entire trial may need to start over. That is a tremendous expense and inconvenience to the parties, the court and the taxpayers. Violations may also result in substantial penalties for the juror.

If any of you have any difficulty whatsoever in following these instructions, please let me know now. If any of you becomes aware that one of your fellow jurors has done something that violates these instructions, you are obligated to report that as well. If anyone tries to contact you about the case, either directly or indirectly, or sends you any information about the case, please report this promptly as well. Notify the bailiff or the clerk, who will notify me. These restrictions must remain in effect throughout this trial. Once the trial is over, you may resume your normal activities. At that point, you will be free to read or research anything you wish. You will be able to speak-or choose not to speak-about the trial to anyone you wish. You may write, or post, or tweet about the case if you choose to do so. The only limitation is that you must wait until after the verdict, when you have been discharged from your jury service.

So, keep an open mind throughout the trial. The evidence that will form the basis of your verdict can be presented only one piece at a time, and it is only fair that you do not form an opinion until I send you to deliberate.

References

Committee Notes

Committee Amended

CV101B Further admonition about electronic devices.

Removed 9/2011. Incorporated into CV 101.

CV102 Role of the judge, jury and lawyers.

All of us, judge, lawyers, and jury, are officers of the court and have different roles during the trial:

As the judge I will supervise the trial, decide what evidence is admissible, and instruct you on the law.

The lawyers will present evidence and try to persuade you to decide the case in one way or the other.

As the jury, you must follow the law as you weigh the evidence and decide the factual issues. Factual issues relate to what did, or did not, happen in this case.

Neither the lawyers nor I decide the case. That is your role. Do not be influenced by what you think our opinions might be. Make your decision based on the law given in my instructions and on the evidence presented in court.

References

MUJI 1st Instruction

Committee Amended

CV102A Role of the judge, jury, parties, lawyers. [self-represented litigant version]

All of us, judge, lawyers, [name of plaintiff] [name of defendant], and jury have different roles during the trial:

As the judge I will supervise the trial, decide what evidence is admissible, and instruct you on the law.

The lawyers and [name of self-represented plaintiff] [name of self-represented defendant] will present evidence and try to persuade you to decide the case in one way or the other.

As the jury, you must follow the law as you weigh the evidence and decide the factual issues. Factual issues relate to what did, or did not, happen in this case.

Neither the lawyers, parties, nor I decide the case. That is your role. Make your decision based on the law given in my instructions and on the evidence presented in court.

References

Committee Amended

CV103 Nature of the case.

In this case [Name of plaintiff] seeks [describe claim].

[Name of defendant] [denies liability, etc.].

[Name of defendant] has filed what is known as a [counterclaim/cross-claim/third-party complaint/etc.,] seeking [describe claim].

MUJI 1st Instruction

Committee Amended

CV104 Order of trial.

The trial will proceed as follows:

(1) The lawyers will make opening statements, outlining what the case is about and what they think the evidence will show.

(2) [Name of plaintiff] will offer evidence first, followed by [name of defendant]. I may allow the parties to later offer more evidence.

(3) Throughout the trial and after the evidence has been fully presented, I will instruct you on the law. You must follow the law as I explain it to you, even if you do not agree with it.

(4) The lawyers will then summarize and argue the case. They will share with you their views of the evidence, how it relates to the law and how they think you should decide the case.

(5) The final step is for you to go to the jury room and discuss the evidence and the instructions among yourselves until you reach a verdict.

MUJI 1st Instruction

Committee Amended

CV105 Sequence of instructions not significant.

The order in which I give the instructions has no significance. You must consider the instructions in their entirety, giving them all equal weight. I do not intend to emphasize any particular instruction, and neither should you.

MUJI 1st Instruction

Committee Amended

CV106 Jurors must follow the instructions.

Removed 9/2011. Incorporated into CV 102.

MUJI 1st Instruction

CV107 Jurors may not decide based on sympathy, passion, and prejudice.

You must decide this case based on the facts and the law, without regard to sympathy, passion, or prejudice. You must not decide for or against anyone because you feel sorry for or angry at that person or anyone else.

MUJI 1st Instruction

Committee Amended

CV107A Avoiding Bias.

Our system of justice requires all of us--attorneys, judges, and jurors--to minimize the impact of any biases, whether conscious or subconscious, on our decision making. Researchers have identified several techniques we can use to accomplish this difficult, but necessary task:

First, reflect carefully and consciously about the evidence presented. Focus on the facts and on the evidence you hear and see. The law requires that jurors' decision(s) are to be based on the evidence, and not on bias, sympathy, passion, or prejudice.

Second, take the time you need to challenge what might be bias in your own thinking. Don't jump to conclusions that may be influenced by stereotypes about the parties, witnesses, or events.

Third, try taking another perspective. Ask yourself if your opinion of the parties or witnesses would be different if the people participating looked different or if they belonged to a different group or if they had a different accent or if they spoke in a more or less educated manner.

Fourth, when deliberating at the end of trial, listen to the opinions of the other jurors, who may have different backgrounds and perspectives from your own. Working together with the other jurors will help achieve a fair result. However, keep in mind that your decision(s) must be your own.

You may consider these techniques helpful in lessening the impact of any biases on your decision-making.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV108 Note-taking.

Feel free to take notes during the trial to help you remember the evidence, but do not let note-taking distract you. Your notes are not evidence and may be incomplete.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV109 Juror questions for witnesses. [Optional for judges who permit questions]

During the trial you may submit questions to be asked of the witnesses, but you are not required to do so. You should write your questions down as they occur to you. Please do not ask your questions out loud. To make sure the questions are legally appropriate, we will use the following procedure: After the lawyers have finished questioning each witness, I will ask if you have any questions for that witness. You should hand your questions to the bailiff when I ask for them. I will review them with the lawyers to determine if they are allowed. If they are allowed, your questions will be asked.

References

Committee Amended

CV110 Rules applicable to recesses.

Removed 9/2011. Incorporated into CV 101.

MUJI 1st Instruction

CV111A Definition of "person."

"Person" means an individual, corporation, organization, or other legal entity.

Committee Amended

CV111B All persons equal before the law.

The fact that one party is a natural person and another party is a [corporation/partnership/other legal entity] should not play any part in your deliberations. You must decide this case as if it were between individuals.

MUJI 1st Instruction

Committee Amended

CV112 Multiple parties.

There are multiple parties in this case, and each party is entitled to have its claims or defenses considered on their own merits. You must evaluate the evidence fairly and separately as to each plaintiff and each defendant. Unless otherwise instructed, all instructions apply to all parties.

Committee Amended

CV113 Multiple plaintiffs.

Although there are _____ plaintiffs, that does not mean that they are equally entitled to recover or that any of them is entitled to recover. [Name of defendant] is entitled to a fair consideration of [his] defense against each plaintiff, just as each plaintiff is entitled to a fair consideration of [his] claim against [name of defendant].

MUJI 1st Instruction

Committee Amended

CV114 Multiple defendants.

Although there are _____ defendants, that does not mean that they are equally liable or that any of them is liable. Each defendant is entitled to a fair consideration of [his] defense against each of [name of plaintiff]'s claims. If you conclude that one defendant is liable, that does not necessarily mean that one or more of the other defendants are liable.

MUJI 1st Instruction

Committee Amended

CV115 Settling parties.

[Name of persons] have reached a settlement agreement.

There are many reasons why persons settle their dispute. A settlement does not mean that anyone has conceded anything. Although [name of settling person] is not a party, you must still decide whether any of the persons, including [name of settling person], were at fault.

You must not consider the settlement as a reflection of the strengths or weaknesses of any person's position. You may consider the settlement in deciding how believable a witness is.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV116 Discontinuance as to some defendants.

[Name of defendant] is no longer involved in this case because [explain reasons]. But you must still decide whether fault should be allocated to [name of defendant] as if [he] were still a party.

MUJI 1st Instruction

Committee Notes

CV117 Preponderance of the evidence.

You may have heard that in a criminal case proof must be beyond a reasonable doubt, but this is not a criminal case. In a civil case such as this one, a different level of proof applies: proof by a preponderance of the evidence.

When I tell you that a party has the burden of proof or that a party must prove something by a "preponderance of the evidence," I mean that the party must persuade you, by the evidence, that the fact is more likely to be true than not true.

Another way of saying this is proof by the greater weight of the evidence, however slight. Weighing the evidence does not mean counting the number of witnesses nor the amount of testimony. Rather, it means evaluating the persuasive character of the evidence. In weighing the evidence, you should consider all of the evidence that applies to a fact, no matter which party presented it. The weight to be given to each piece of evidence is for you to decide.

After weighing all of the evidence, if you decide that a fact is more likely true than not, then you must find that the fact has been proved. On the other hand, if you decide that the evidence regarding a fact is evenly balanced, then you must find that the fact has not been proved, and the party has therefore failed to meet its burden of proof to establish that fact.

[Now] [At the close of the trial] I will instruct you in more detail about the specific elements that must be proved.

References

MUJI 1st Instruction

Committee Amended

CV118 Clear and convincing evidence.

Some facts in this case must be proved by a higher level of proof called "clear and convincing evidence." When I tell you that a party must prove something by clear and convincing evidence, I mean that the party must persuade you, by the evidence, to the point that there remains no serious or substantial doubt as to the truth of the fact.

Proof by clear and convincing evidence requires a greater degree of persuasion than proof by a preponderance of the evidence but less than proof beyond a reasonable doubt.

I will tell you specifically which of the facts must be proved by clear and convincing evidence.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV119 Evidence.

"Evidence" is anything that tends to prove or disprove a disputed fact. It can be the testimony of a witness or documents or objects or photographs or certain qualified opinions or any combination of these things.

You must entirely disregard any evidence for which I sustain an objection and any evidence that I order to be struck.

Anything you may have seen or heard outside the courtroom is not evidence and you must entirely disregard it.

The lawyers might stipulate-or agree-to a fact or I might take judicial notice of a fact. Otherwise, what I say and what the lawyers say is not evidence.

You are to consider only the evidence in the case, but you are not expected to abandon your common sense. You are permitted to interpret the evidence in light of your experience.

MUJI 1st Instruction

Committee Amended

CV119A Evidence. [self-represented litigant version]

"Evidence" is anything that tends to prove or disprove a disputed fact. It can be the testimony of a witness or documents or objects or photographs or certain qualified opinions or any combination of these things.

You must entirely disregard any evidence for which I sustain an objection and any evidence that I order to be struck.

Anything you may have seen or heard outside the courtroom is not evidence and you must entirely disregard it.

In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you:

(1) Arguments and statements by [self-represented plaintiff] [self-represented defendant] and [plaintiff] [defense] counsel are not evidence. [Self-represented plaintiff] [self-represented defendant] when acting as [his/her/their] own counsel and [plaintiff] [defense] counsel are not witnesses. What they say in their opening and closing statements and what they say when they are not testifying as a witness is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way they have stated them, your memory of them controls. However, [self-represented plaintiff] [self-represented defendant]'s statements as a witness are evidence.

(2) Questions and objections by [self-represented plaintiff] [self-represented defendant] and [plaintiff] [defense] counsel are not evidence. The parties might stipulate -- or agree -- to a fact or I might take judicial notice of a fact. Otherwise, what is said in court, other than sworn testimony, is not evidence.

You are to consider only the evidence in this case, but you are not expected to abandon your common sense. You are permitted to interpret the evidence in light of your experience.

References

Committee Amended

CV120 Direct and circumstantial evidence.

Facts may be proved by direct or circumstantial evidence. The law does not treat one type of evidence as better than the other.

Direct evidence can prove a fact by itself. It usually comes from a witness who perceived firsthand the fact in question. For example, if a witness testified he looked outside and saw it was raining, that would be direct evidence that it had rained.

Circumstantial evidence is indirect evidence. It usually comes from a witness who perceived a set of related events, but not the fact in question. However, based on that testimony someone could conclude that the fact in question had occurred. For example, if a witness testified that she looked outside and saw that the ground was wet and people were closing their umbrellas, that would be circumstantial evidence that it had rained.

References

MUJI 1st Instruction

Committee Amended

CV121 Believability of witnesses.

In deciding this case you will need to decide how believable each witness was. Use your judgment and common sense. Let me suggest a few things to think about as you weigh each witness's testimony:

How good was the witness's opportunity to see, hear, or otherwise observe what the witness testified about?
Does the witness have something to gain or lose from this case?
Does the witness have any connection to the people involved in this case?
Does the witness have any reason to lie or slant the testimony?
Was the witness's testimony consistent over time? If not, is there a good reason for the inconsistency? If the witness was inconsistent, was it about something important or unimportant?
How believable was the witness's testimony in light of other evidence presented at trial?
How believable was the witness's testimony in light of human experience?
Was there anything about the way the witness testified that made the testimony more or less believable?

In deciding whether or not to believe a witness, you may also consider anything else you think is important.

You do not have to believe everything that a witness said. You may believe part and disbelieve the rest. On the other hand, if you are convinced that a witness lied, you may disbelieve anything the witness said. In other words, you may believe all, part, or none of a witness's testimony. You may believe many witnesses against one or one witness against many.

In deciding whether a witness testified truthfully, remember that no one's memory is perfect. Anyone can make an honest mistake. Honest people may remember the same event differently.

References

MUJI 1st Instruction

Committee Amended

CV122 Inconsistent statements.

Removed 3/2020. Incorporated into CV 121.

MUJI 1st Instruction

CV123 Effect of willfully false testimony.

Removed 3/2020. Incorporated into CV 121.

CV124 Stipulated facts.

A stipulation is an agreement. Unless I instruct you otherwise, when the lawyers on both sides stipulate or agree to a fact, you must accept the stipulation as evidence and regard that fact as proved.

The parties have stipulated to the following facts:

[Here read stipulated facts.]

Since the parties have agreed on these facts, you must accept them as true for purposes of this case.

MUJI 1st Instruction

Committee Notes

CV125 Judicial notice.

I have taken judicial notice of [state the fact] for purposes of this trial. This means that you must accept the fact as true.

MUJI 1st Instruction

Committee Notes

CV126 Depositions.

A deposition is the sworn testimony of a witness that was given previously, outside of court, with the lawyer for each party present and entitled to ask questions. Testimony provided in a deposition is evidence and may be read to you in court or may be seen on a video monitor. You should consider deposition testimony the same way that you would consider the testimony of a witness testifying in court.

MUJI 1st Instruction

Committee Amended

CV127 Limited purpose evidence.

Some evidence is received for a limited purpose only. When I instruct you that an item of evidence has been received for a limited purpose, you must consider it only for that limited purpose.

MUJI 1st Instruction

Committee Amended

CV128 Objections and rulings on evidence and procedure.

From time to time during the trial, I may have to make rulings on objections or motions made by the lawyers. Lawyers on each side of a case have a right to object when the other side offers evidence that the lawyer believes is not admissible. You should not think less of a lawyer or a party because the lawyer makes objections. You should not conclude from any ruling or comment that I make that I have any opinion about the merits of the case or that I favor one side or the other. And if a lawyer objects and I sustain the objection, you should disregard the question and any answer.

During the trial I may have to confer with the lawyers out of your hearing about questions of law or procedure. Sometimes you may be excused from the courtroom for that same reason. I will try to limit these interruptions as much as possible. Please be patient even if the case may seem to go slowly.

MUJI 1st Instruction

Committee Amended

CV128A Objections and rulings on evidence and procedure. [Self-represented litigant version.]

From time to time during the trial, I may have to make rulings on objections or motions made by the lawyers or the parties. Lawyers and parties on each side of a case have a right to object when the other side offers evidence that the lawyer believes is not admissible. You should not think less of a lawyer or a party because they make objections. You should not conclude from any ruling or comment that I make that I have any opinion about the merits of the case or that I favor one side or the other. And if a lawyer or party objects and I sustain the objection, you should disregard the question and any answer.

During the trial I may have to confer with the lawyers and parties out of your hearing about questions of law or procedure. Sometimes you may be excused from the courtroom for that same reason. I will try to limit these interruptions as much as possible. Please be patient even if the case may seem to go slowly.

Committee Amended

CV129 Statement of opinion.

Under limited circumstances, I will allow a witness to express an opinion. Consider opinion testimony as you would any other evidence, and give it the weight you think it deserves.

You may choose to rely on the opinion, but you are not required to do so.

If you find that a witness, in forming an opinion, has relied on a fact that has not been proved, or has been disproved, you may consider that in determining the value of the witness's opinion.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV130A Charts and summaries as evidence.

Charts and summaries that are received as evidence will be with you in the jury room when you deliberate, and you should consider the information contained in them as you would any other evidence.

MUJI 1st Instruction

Committee Notes

Committee Amended

CV130B Charts and summaries of evidence.

Certain charts and summaries will be shown to you to help explain the evidence. However, these charts and summaries are not themselves evidence, and you will not have them in the jury room when you deliberate. You may consider them to the extent that they correctly reflect the evidence.

MUJI 1st Instruction

Committee Notes

Committee Amended

CV131 Spoliation.

I have determined that [name of party] intentionally concealed, destroyed, altered, or failed to preserve [describe evidence]. You [may/must] assume that the evidence would have been unfavorable to [name of party].

References

Committee Notes

Committee Amended

CV132 Out-of-state or out-of-town experts.

You may not discount the opinions of [name of expert] merely because of where [he/she] lives or practices.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV132A Remote Testimony.

You may not discount the opinions of a witness merely because their testimony was given remotely through audio or visual means.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV133 Conflicting testimony of experts.

In resolving any conflict that may exist in the testimony of [names of experts], you may compare and weigh the opinion of one against that of another. In doing this, you may consider the qualifications and credibility of each, as well as the reasons for each opinion and the facts on which the opinions are based.

MUJI 1st Instruction

Committee Amended

CV134 No record of testimony.

At the end of trial, you must make your decision based on what you recall of the testimony. You will not have a transcript or recording of the witnesses' testimony. I urge you to pay close attention to the testimony as it is given.

Committee Amended

CV135 Time taken for case to arrive at trial.

There are many reasons cases take months or years to arrive at trial. These reasons vary from, among other things, procedural requirements and court system scheduling issues. You must not consider the time taken for a case to arrive at trial as a reflection of the strengths or weaknesses of a person's position.

Committee Notes

Committee Amended

CV151 Closing roadmap

Members of the jury, you now have all the evidence. Three things remain to be done:

First, I will give you additional instructions that you will follow in deciding this case.
Second, the lawyers will give their closing arguments. The Plaintiff(s) will go first, then the Defendant(s). The Plaintiff(s) may give a rebuttal.
Finally, you will go to the jury room to decide the case.

In the jury room you will have two main duties as jurors.

First, you will decide from the evidence what the facts are. You may draw all reasonable inferences from that evidence.
Second, you will take the law I give you in the instructions, apply it to the facts, and reach a verdict.

Committee Amended

CV152 Closing arguments

When the lawyers give their closing arguments, keep in mind that they are advocating their views of the case. What they say during their closing arguments is not evidence. If the lawyers say anything about the evidence that conflicts with what you remember, you are to rely on your memory of the evidence. If they say anything about the law that conflicts with these instructions, you are to rely on these instructions.

Committee Amended

CV153 Legal rulings

During the trial I have made certain rulings. I made those rulings based on the law, and not because I favor one side or the other.

However,

• if I sustained an objection,
• if I did not accept evidence offered by one side or the other, or
• if I ordered that certain testimony be stricken, then you must not consider those things in reaching your verdict.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV154 Judicial neutrality

As the judge, I am neutral. If I have said or done anything that makes you think I favor one side or the other, that was not my intention. Do not interpret anything I have done as indicating that I have any particular view of the evidence or the decision you should reach.

Committee Amended

CV155 Foreperson selection and duties and jury deliberations

Among the first things you should do when you go to the jury room to deliberate is to appoint someone to serve as the jury foreperson. The foreperson should not dominate the jury's discussion, but rather should facilitate the discussion of the evidence and make sure that all members of the jury get the chance to speak. The foreperson's opinions should be given the same weight as those of other members of the jury. Once the jury has reached a verdict, the foreperson is responsible for filling out and signing the verdict form(s) on behalf of the entire jury.

In the jury room, discuss the evidence and speak your minds with each other. Open discussion should help you reach an agreement on a verdict. Listen carefully and respectfully to each other's views and keep an open mind about what others have to say. I recommend that you not commit yourselves to a particular verdict before discussing all the evidence.

Try to reach an agreement, but only if you can do so honestly and in good conscience. If there is a difference of opinion about the evidence or the verdict, do not hesitate to change your mind if you become convinced that your position is wrong. On the other hand, do not give up your honestly held views about the evidence simply to agree on a verdict, to give in to pressure from other jurors, or just to get the case over with. In the end, your vote must be your own.

In reaching your verdict you may not use methods of chance, such as drawing straws or flipping a coin. Rather, the verdict must reflect your individual, careful, and conscientious judgment

Committee Amended

CV156 Do not resort to chance

When you deliberate, do not flip a coin, draw straws, choose opinions at random, or use other methods of chance. Instead you must weigh the evidence carefully and come to a decision that is supported by the evidence.

If you decide that a party is entitled to recover damages, you must then agree upon the amount of money to award that party. Each of you should state your own independent judgment on what the amount should be. You must thoughtfully consider the amounts suggested, evaluate them according to these instructions and the evidence, and reach an agreement on the amount. You must not agree in advance to average the estimates.

References

Committee Amended

CV157 Agreement on special verdict

I am going to give you a form called the Special Verdict that contains several questions and instructions. You must answer the questions based upon the instructions and the evidence you have seen and heard during this trial.

Because this is not a criminal case, your verdict does not have to be unanimous. At least six jurors must agree on the answer to each question, but they do not have to be the same six jurors on each question.

As soon as six or more of you agree on the answer to all of the required questions, the foreperson should sign and date the verdict form and tell the bailiff you have finished. The bailiff will escort you back to this courtroom; you should bring the completed Special Verdict with you.

Committee Amended

CV158 Discussing the case after trial

Ladies and gentlemen of the jury, this trial is finished. Thank you for your service. The American system of justice relies on your time and your sound judgment, and you have been generous with both. You serve justice by your fair and impartial decision. I hope you found the experience rewarding.

You may now talk about this case with anyone you like. You might be contacted by the press or by the lawyers. You do not have to talk with them - or with anyone else, but you may. The choice is yours. I turn now to the lawyers to instruct them to honor your wishes if you say you do not want to talk about the case.

If you do talk about the case, please respect the privacy of the other jurors. The confidences they may have shared with you during deliberations are not yours to share with others.

Again, thank you for your service.

Committee Amended

CV201 "Fault" defined.

Your goal as jurors is to decide whether [name of plaintiff] was harmed and, if so, whether anyone is at fault for that harm. If you decide that more than one person is at fault, you must then allocate fault among them.

Fault means any wrongful act or failure to act. The wrongful act or failure to act alleged in this case is [negligence, etc.]

Your answers to the questions on the verdict form will determine whether anyone is at fault. We will review the verdict form in a few minutes.

References

MUJI 1st Instruction

Committee Notes

CV202A "Negligence" defined.

You must decide whether [names of persons on the verdict form] were negligent.

Negligence means that a person did not use reasonable care. We all have a duty to use reasonable care to avoid injuring others. Reasonable care is simply what a reasonably careful person would do in a similar situation. A person may be negligent in acting or in failing to act.

The amount of care that is reasonable depends upon the situation. Ordinary circumstances do not require extraordinary caution. But some situations require more care because a reasonably careful person would understand that more danger is involved.

To establish negligence, [name of plaintiff] has the burden of proving that:

(1) [name of defendant] was negligent; and

(2) this negligence was a cause of [name of plaintiff]'s harm.

In this action, [name of plaintiff] alleges that [name of defendant] was negligent in the following respects:

(1)

(2)

(3)

If you find that the [name of defendant] was negligent in any of these respects, then you must determine whether that negligence was a cause of [name of plaintiff]'s harm.

[[Name of defendant] claims that [name of plaintiff] was negligent in causing [his] own harm. To establish [name of plaintiff]'s negligence, [name of defendant] has the burden of proving that:

(1) [name of plaintiff] was negligent; and

(2) this negligence was a cause of [name of plaintiff]'s harm.

In this action, [name of defendant] alleges that [name of plaintiff] was negligent in the following respects:

(1)

(2)

(3)

If you find that the [name of plaintiff] was negligent in any of these respects, then you must determine whether that negligence was a cause of [his] harm.]

References

MUJI 1st Instruction

CV202B "Gross negligence" defined.

You must decide whether [names of persons on the verdict form] were grossly negligent. Gross negligence means a failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences.

References

CV203 "Negligence" defined. Person with disability.

You must decide whether [names of persons on the verdict form] were negligent.

Negligence means that a person did not use reasonable care. We all have a duty to use reasonable care to avoid injuring others. Reasonable care is simply what a reasonably careful person would do in a similar situation. A person may be negligent in acting or in failing to act.

[Name of person] has a physical disability. A person with a physical disability is held to the same standard of care as a person without that disability. However, you may consider [name of person]'s disability among all of the other circumstances when deciding whether [his] conduct was reasonable. In other words, a physically disabled person must use the care that a reasonable person with a similar disability would use in a similar situation.

The amount of care that is reasonable depends upon the situation. Ordinary circumstances do not require extraordinary caution. But some situations require more care because a reasonably careful person would understand that more danger is involved.

References

MUJI 1st Instruction

Committee Notes

CV204 Care required when children are present.

An adult must anticipate the ordinary behavior of children. An adult must be more careful when children are present than when only adults are present.

References

MUJI 1st Instruction

Committee Notes

CV205 Care required by children.

You must decide whether a child aged ______ was negligent. A child is not judged by the adult standard. Rather, a child is negligent if [he] does not use the amount of care that is ordinarily used by children of similar age, intelligence, knowledge or experience in similar circumstances.

References

Committee Notes

CV206 Care required for a child participating in an adult activity.

A child participating in an adult activity, such as operating a motor vehicle, is held to the same standard of care as an adult.

References

Committee Notes

CV207 Abnormally dangerous activity.

I have determined that [name of defendant]'s activity was abnormally dangerous. One who carries on an abnormally dangerous activity is liable for harm caused by that activity whether or not [he] exercised reasonable care.

References

MUJI 1st Instruction

Committee Notes

CV208 Care required in controlling electricity.

Power companies and others who control power lines and power stations must use extra care to prevent people and their equipment from coming in contact with high-voltage electricity. The greater the danger, the greater the care that must be used.

References

MUJI 1st Instruction

CV209 "Cause" defined.

I've instructed you before that fault is a wrongful act or failure to act. You must also determine whether a person's fault caused the harm.

As used in the law, the word "cause" has a special meaning, and you must use this meaning whenever you apply the word. "Cause" means that:

(1) the person's act or failure to act produced the harm directly or set in motion events that produced the harm in a natural and continuous sequence;

and

(2) the person's act or failure to act could be foreseen by a reasonable person to produce a harm of the same general nature.

There may be more than one cause of the same harm.

References

MUJI 1st Instruction

Committee Notes

CV210 Superseding cause.

[Name of defendant] claims that [he] is not liable for [name of plaintiff]'s harm because of the later fault of [name of third party]. To avoid liability for the harm, [name of defendant] must prove all of the following:

(1) that [name of third party]'s conduct occurred after [name of defendant]'s conduct;

(2) that a reasonable person would consider [name of third party]'s conduct extraordinary;

(3) that [name of defendant] could not foresee that [name of third party] would act in

[Alternative A: an intentional]

[Alternative B: a negligent]

manner; and

(4) that the harm resulting from [name of third party]'s conduct was different from the kind of harm that could have been reasonably expected from [name of defendant]'s conduct.

References

MUJI 1st Instruction

Committee Notes

CV211 Allocation of fault.

[Name of party] claims that more than one person's fault was a cause of the harm. If you decide that more than one person is at fault, you must decide each person's percentage of fault that caused the harm. This allocation must total 100%.

You may also decide to allocate a percentage to the plaintiff. [Name of plaintiff]'s total recovery will be reduced by the percentage that you attribute to [him]. If you decide that [name of plaintiff]'s percentage is 50% or greater, [name of plaintiff] will recover nothing.

When you answer the questions on damages, do not reduce the award by [name of plaintiff]'s percentage. I will make that calculation later.

References

MUJI 1st Instruction

Committee Notes

CV212 Violation of a safety law.

Violation of a safety law is evidence of negligence unless the violation is excused. [name of plaintiff] claims that [name of defendant] violated a safety law that says:

[Summarize or quote the statute, ordinance or rule.]

If you decide that [name of defendant] violated this safety law, you must decide whether the violation is excused.

[Name of defendant] claims the violation is excused because:

[(1) Obeying the law would have created an even greater risk of harm.]

[(2) [He] could not obey the law because [he] faced an emergency that [he] did not create.]

[(3) [He] was unable to obey the law despite a reasonable effort to do so.]

[(4) [He] was incapable of obeying the law.]

[(5) [He] was incapable of understanding what the law required.]

If you decide that [name of defendant] violated the safety law and that the violation was not excused, you may consider the violation as evidence of negligence. If you decide that [name of defendant] did not violate the safety law or that the violation should be excused, you must disregard the violation and decide whether [name of defendant] acted with reasonable care under the circumstances.

References

MUJI 1st Instruction

Committee Notes

CV299 Verdict Forms

Personal Injury (Word file)

Wrongful Death (Word file)

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV301A Medical Malpractice Instruction Notes

The Advisory Committee intentionally omitted several of the MUJI 1st medical malpractice instructions.

MUJI 1st 6.27 (Physician Not Guarantor of Results) was deleted in view of the decisions in Green v. Louder, 2001 UT 62, 29 P.3d 638 (trial courts directed not to instruct juries that the "mere fact" of an accident does not mean that anyone was negligent), and Randle v. Allen, 863 P.2d 1329 (trial courts directed not to instruct juries on "unavoidable accidents").

MUJI 1st 6.34 and 6.35 (causation instructions) have been replaced by a single instruction.

The Advisory Committee considered but did not include instructions on the role of custom in determining the standard of care, loss-of-chance causation, and apparent agency claims against hospitals. There is no clear appellate authority on whether those claims exist in this state.

As with all MUJI 2d instructions, these are intended to replace the earlier versions found in MUJI 1st.

For a comparison of MUJI 1st and MUJI 2d medical malpractice instructions, and for further information on the deletion or revision of certain MUJI 1st instructions, see the advisory committee's Correlation Table.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV301B Elements of a medical negligence claim.

To establish that (name of defendant) was at fault, (name of plaintiff) has the burden of proving two things, a breach of the standard of care, and that the breach was a cause of (name of plaintiff)'s harm.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV301C "Standard of care" defined.

A [health care provider] [doctor] is required to use that degree of learning, care, and skill used in the same situation by reasonably prudent [providers] [doctors] in good standing practicing in the same [specialty] [field]. This is known as the "standard of care." The failure to follow the standard of care is a form of fault known as either "medical negligence" or "medical malpractice." (They mean the same thing.)

The standard of care is established through expert witnesses and other evidence. You may not use a standard based on your own experience or any other standard of your own. It is your duty to decide, based on the evidence, what the standard of care is. The expert witnesses may disagree as to what the standard of care is and what it requires. It will be your responsibility to determine the credibility of the experts and to resolve any dispute.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV302 "Standard of care" for nurses defined.

A nurse is required to use that degree of learning, care, and skill used in the same situation by reasonably prudent nurses in good standing practicing in the same [specialty] [field]. This is known as the "standard of care." The failure to follow the standard of care is a form of fault known as either "nursing negligence" or "nursing malpractice." (They mean the same thing.)

The standard of care is established through expert witnesses and other evidence. You may not use a standard based on your own experience or any other standard of your own. It is your duty to decide, based on the evidence, what the standard of care is. The expert witnesses may disagree as to what the standard of care is and what it requires. If so, it will be your responsibility to determine the credibility of the experts and to resolve the dispute.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV303 Care owed by nurse under varying circumstances.

The amount of care required of a nurse is measured by the patient's condition, the danger to the patient involved in the treatment, the service undertaken by the nurse, the information and instructions given to the nurse by the attending physician or surgeon, and other surrounding circumstances. These circumstances may require continuous attention or service, or they may justify lesser vigilance. These are matters for you to consider in deciding whether the nurse followed the standard of care.

References

CV304 Duty to disclose material medical information.

[Name of defendant] had a duty to disclose to [name of plaintiff] information concerning [name of plaintiff]'s condition that was unknown to [name of plaintiff], if the information would be important to a reasonable person in making decisions about health care, and if disclosure of the information would not be expected to make [name of plaintiff]'s health worse.

References

MUJI 1st Instruction

Committee Notes

CV305 Duty to refer.

If [name of defendant] knew or should have known that [he] did not possess the necessary expertise to properly treat [name of plaintiff]'s condition, and a referral to another who has the appropriate expertise could reasonably have been made under the circumstances, then [name of defendant] had a duty to offer that referral.

References

MUJI 1st Instruction

CV306 Duty to warn of how to avoid injury.

[Name of defendant] had a duty to warn [name of plaintiff] how to avoid injury [to the area treated] following treatment.

References

MUJI 1st Instruction

Committee Notes

CV307 Duties of hospital to patients.

A hospital has a duty to act with reasonable care towards its patients. In this action, [name of plaintiff] alleges that [name of defendant hospital] failed to do so in the following respects:

(1)

(2)

(3)

If you find that [name of hospital] failed to act with reasonable care toward [name of plaintiff] in any of these respects, then you must determine whether that failure was a cause of [name of plaintiff]'s harm.

References

MUJI 1st Instruction

Committee Notes

CV308 Physicians may assume compliance with orders.

A physician may assume that appropriate orders and instructions to hospital nurses and other personnel for the care and management of a patient will be carried out. A physician is not at fault if hospital personnel fail to do so, unless that failure is brought to the physician's attention, and the physician then fails to take steps to remedy the situation.

References

MUJI 1st Instruction

Committee Notes

CV309 "Cause" defined.

[If you find that (name of defendant) breached the standard of care, then you must determine whether that failure was a cause of (name of plaintiff)'s harm.]

As used in the law, the word "cause" has a special meaning, and you must use this meaning whenever you apply the word.

"Cause" means that:

(1) (name of defendant)'s act or failure to act produced the harm directly or set in motion events that produced the harm in a natural and continuous sequence; and

(2) (name of defendant)'s act or failure to act could be foreseen by a reasonable person to produce a harm of the same general nature.

There may be more than one cause of the same harm.

MUJI 1st Instruction

Committee Notes

Committee Amended

CV310 Duty to obtain informed consent. "Informed consent" defined.

A physician has a duty to obtain the patient's informed consent to proposed care. Consent is informed if the patient gives consent after the physician outlines the substantial and significant risks of serious harm from the care and the reasonable alternatives to the care.

References

MUJI 1st Instruction

Committee Notes

CV311 Elements of an informed consent claim.

To establish a claim for the failure to obtain informed consent, [name of plaintiff] has the burden to prove all of the following:

(1) that a physician-patient relationship existed between [name of plaintiff] and [name of defendant];

(2) that [name of defendant] provided care to [name of plaintiff];

(3) that the care posed a substantial and significant risk of causing serious harm;

(4) that [name of plaintiff] was not informed of the substantial and significant risk or of reasonable alternatives,

(5) that a reasonable person in [name of plaintiff]'s position would [not have consented to] [would have rejected] the care after having been informed of the substantial and significant risks and alternatives; and

(6) that the care that was not consented to was a cause of [name of plaintiff]'s harm.

References

MUJI 1st Instruction

Committee Notes

CV312 "Substantial and significant risk" defined.

A risk is "substantial and significant" if it occurs frequently enough and is serious enough that a reasonable patient would want to be informed about it.

References

MUJI 1st Instruction

Committee Notes

CV313 Standard for judging patient's consent.

To determine whether a reasonable person would [not have consented to] [have rejected] the care, you must take the viewpoint of a reasonable person in [name of plaintiff]'s position before the care was provided and before any harm occurred.

References

MUJI 1st Instruction

CV314 Consent to or refusal of treatment.

A [consent to/refusal of] treatment is binding even if it is not in writing.

MUJI 1st Instruction

Committee Notes

CV315 Consent is presumed.

If a person submits to health care, the care was authorized, unless proved otherwise.

References

MUJI 1st Instruction

CV316 Common knowledge defense.

You must decide whether the risk of harm was commonly known to the public. If the risk of harm was commonly known to the public, then [name of plaintiff] cannot succeed on a claim that informed consent was not obtained.

References

MUJI 1st Instruction

Committee Notes

CV317 Refusal of information defense.

You must decide whether [name of plaintiff] refused to be informed of the risk of harm. If [name of plaintiff] refused to be informed of the risk of harm, then [he] cannot succeed on a claim that informed consent was not obtained.

References

MUJI 1st Instruction

Committee Notes

CV318 Reasonable non-disclosure defense.

You must decide whether [name of defendant] reasonably believed that disclosure of the risk of harm could have had a substantial and adverse effect on [name of plaintiff]'s condition. If [name of defendant] reasonably believed that disclosure of the risk of harm could have had a substantial and adverse effect on [name of plaintiff]'s condition, then [he] was not required to make that disclosure.

References

MUJI 1st Instruction

CV319 Written consent defense.

A written consent is a defense to a claim for failure to obtain informed consent, unless:

[(1) [Name of plaintiff] proves by a preponderance of the evidence that the person giving consent lacked the capacity to do so.]

[(2) [Name of plaintiff] proves by clear and convincing evidence that [name of defendant] obtained the consent by fraudulent misrepresentation or fraudulent failure to state facts important to a reasonable person in making decisions about health care.]

References

MUJI 1st Instruction

Committee Notes

CV320 Patient's duty of care.

A patient has the duty to use reasonable care to provide for his own health and safety. In this action, [name of defendant] claims that [name of plaintiff] failed to use reasonable care in the following respects:

(1)

(2)

(3)

If you find that [name of plaintiff] failed to act with reasonable care in any of these respects, then you must determine whether that failure was a cause of [his] harm.

CV321 Patient's negligence in failing to follow instructions.

[Name of plaintiff] had a duty to follow [name of health care provider]'s reasonable instructions. You may consider the failure to do so in deciding whether the [name of plaintiff] was at fault and whether any of [name of plaintiff]'s fault was a cause of [his] harm.

MUJI 1st Instruction

CV322 Patient's negligence in giving medical history.

A patient must use ordinary care in giving an accurate history to [his] treating physician. In determining whether this was done, you may consider whether the physician's questions were sufficient to alert the patient of the need to disclose particular aspects of that history.

References

MUJI 1st Instruction

CV323 Reserved.

CV324 Use of alternative treatment methods.

Removed 5/2024.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV325 Timely filing claim. "Discovery of injury" defined.

[Name of plaintiff] must file a medical malpractice claim within two years from the date [he] discovered the injury or the claim is barred. You must decide the date by which [name of plaintiff] should have discovered the injury.

"Discovery" of an injury from medical malpractice occurs when a patient knows or through reasonable diligence should know each of the following:

(1) that [he] sustained an injury;

(2) the cause of the injury; and

(3) the possibility of a health care provider's fault in causing the injury.

References

MUJI 1st Instruction

CV326 Expert testimony required.

You must use only the standard of care established through evidence presented in this trial by expert witnesses and through other evidence admitted for the purpose of defining the standard of care. You may not use a standard based on your own experience or any other standard of your own.

References

MUJI 1st Instruction

Committee Notes

CV327 Inference of fault (res ipsa loquitur).

You may infer that [name of defendant] was at fault if three things are proved by a preponderance of the evidence:

(1) that [name of plaintiff]'s injury was of a kind that, in the ordinary course of events, would not have happened if due care had been observed;

(2) that [name of plaintiff]'s actions were not responsible for the injury; and,

(3) that the cause of the injury was under the exclusive control of [name of defendant].

If you find that all three of these things have been proved, this is sufficient to support a finding of fault by [name of defendant] without expert testimony, unless proved otherwise. [Name of defendant] may introduce evidence to rebut the inference of fault.

References

MUJI 1st Instruction

CV328 Common knowledge and need for expert testimony.

Expert testimony is not needed to establish the [standard of care/cause] if the medical procedure is of a kind, or the outcome so offends commonly held notions of proper medical treatment, that the [standard of care/cause] can be established by the common knowledge, experience and understanding of jurors.

References

MUJI 1st Instruction

Committee Notes

CV329 Patient may rely on advice.

A patient may rely on the physician's professional skill and advice. A patient is not required to determine whether the physician's advice is correct.

References

MUJI 1st Instruction

CV330 No recovery for oral promises.

To be enforceable, a guarantee, warranty, contract or assurance regarding a result to be obtained from the health care must be in writing and signed by [name of defendant] or [his] authorized agent.

References

MUJI 1st Instruction

CV399 Verdict Forms

Medical Malpractice

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV401 Legal Malpractice Instruction Notes

Committee Notes

CV402 Elements of claim for legal malpractice.

[Name of plaintiff] claims that [name of defendant] negligently performed legal services. To succeed on this claim, [name of plaintiff] must prove three things:

(1) [he] and [name of defendant] had an attorney-client relationship;

(2) [name of defendant] failed to use the same degree of care, skill, judgment and diligence used by reasonably careful attorneys under similar circumstances; and

(3) [name of defendant]'s failure to use that degree of care was a cause of [name of plaintiff]'s harm.

References

MUJI 1st Instruction

CV403 Elements of claim for breach of fiduciary duty.

[Name of plaintiff] claims that [name of defendant] breached a fiduciary duty. To succeed on this claim, [name of plaintiff] must prove three things:

(1) [he] and [name of defendant] had an attorney-client relationship;

(2) [name of defendant]:

References

MUJI 1st Instruction

Committee Notes

CV404 Attorney-client relationship.

An attorney-client relationship can be established by an express contract between the parties, or by an implied contract based upon [name of defendant]'s statements or conduct. An implied attorney-client relationship exists when [name of plaintiff] reasonably believes that [name of defendant] represents [name of plaintiff]'s legal interests. The reasonableness of that belief must be weighed in light of all of the facts.

References

MUJI 1st Instruction

Committee Notes

CV405 Duty of care.

[Name of defendant] has a duty to use the same degree of care, skill, judgment and diligence used by reasonably careful attorneys under similar circumstances.

References

MUJI 1st Instruction

CV406 Scope of representation.

In general, an attorney has no duty to act beyond the scope of representation. "Scope of representation" means what the attorney will do for the client. [Name of defendant] may limit the scope of representation if the limitation is reasonable, and if [name of plaintiff] gives informed consent.

References

MUJI 1st Instruction

Committee Notes

CV407 "Cause" defined.

[Name of plaintiff] claims that [name of defendant] caused harm by [describe the act or failure to act].

As used in the law, the word "cause" has a special meaning, and you must use this meaning whenever you apply the word. "Cause" means that:

(1) the person's act or failure to act produced the harm directly or set in motion events that produced the harm in a natural and continuous sequence;

and

(2) the person's act or failure to act could be foreseen by a reasonable person to produce a harm of the same general nature.

There may be more than one cause of the same harm.

References

MUJI 1st Instruction

Committee Notes

CV408 Plaintiff's fault.

[Name of defendant] claims that [name of plaintiff]'s actions were a cause of the harm. In deciding whether [name of plaintiff] was at fault,

(1) you may not consider [his] actions before hiring [name of defendant];

(2) however, you may consider [his] actions after hiring [name of defendant].

References

MUJI 1st Instruction

CV409 Damages caused by a judicial mistake.

[Name of defendant] claims that any damages [name of plaintiff] may have suffered were caused by mistakes made by a judge. [Name of defendant] is not liable for damages that result from mistakes by a judge.

References

CV501 Standard of care for design professionals.

A[n] [architect] [landscape architect] [engineer] [land surveyor] is required to use the same degree of learning, care, and skill ordinarily used by other [architects] [landscape architects] [engineers] [land surveyors] under like circumstances. This is known as the "standard of care." The law does not require perfect [plans/drawings/services] or satisfactory results but rather requires compliance with the standard of care.

[The "applicable standard of care" is the standard of care existing at the time of [name of defendant]'s services and in the same or similar locality as where [name of defendant]'s services were performed.]

The failure to follow the standard of care is a form of fault known as "professional malpractice." [Name of defendant] is a[n] [architect] [landscape architect] [engineer] [land surveyor]. To establish professional malpractice by [name of defendant], [name of plaintiff] has the burden of proving three things:

(1) what the standard of care is;

(2) that [name of defendant] failed to follow this standard of care; and

(3) that this failure to follow the standard of care was the cause of [name of plaintiff]'s harm.

In this case, [name of plaintiff] alleges that [name of defendant] failed to follow the standard of care in the following respects:

(1)

(2)

(3)

If you decide that [name of defendant] failed to follow the standard of care in any of these respects, then you must determine whether that failure was the cause of [name of plaintiff]'s harm and, if so, the amount of the harm.

References

MUJI 1st Instruction

Committee Amended

CV502 Standard of care of a specialist.

A[n] [architect] [landscape architect] [engineer] [land surveyor] holding itself out to the public to be a specialist in a particular field of [architecture] [landscape architecture] [engineering] [land surveying] is held to the standard of learning, skill and care ordinarily possessed by others who are specialists in that field.

References

MUJI 1st Instruction

Committee Amended

CV503 Evidence of standard of care where expert is required.

Due to the advanced learning and skill involved in [architecture] [landscape architecture] [engineering] [land surveying], I have determined that you must use only the standard of care established through evidence presented by expert witnesses and through other evidence admitted for the purpose of defining the standard of care. You may not use a standard based on your own experience or any other standard of your own.

If you find that an expert witness has relied on a fact that has not been proved, or has been disproved, you may consider that in determining the value of the witness's opinion.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV504 Measure of damages. Defective improvements.

If [name of defendant]'s breach of the standard of care has caused a defective improvements, the amount of money that will reasonably compensate [name of plaintiff] for the injury resulting from the defective improvements will be either (1) a "repair" measure of damages or (2) a "loss in market value" measure of damages.

"Repair" Measure of Damages: If repairing the improvements is possible and would not be unreasonably wasteful, you must award [name of plaintiff] the reasonable cost to repair the improvements to the condition they would have been in if [name of defendant] had not breached the standard of care. This is called the "repair" measure of damages.

"Loss in Market Value" Measure of Damages: If repairing the improvements is not possible, or if [name of defendant] proves that the cost to repair the improvements is unreasonably wasteful then you cannot award [name of plaintiff] the "repair" measure of damages. You must instead award [name of plaintiff] damages equal to the difference between the fair market value that the improvements would have had if [name of defendant] had not breached the standard of care and the fair market value of the improvements received by [name of plaintiff] following [name of defendant]'s breach of the standard of care. This is called the "loss in market value" measure of damages.

The repair is unreasonably wasteful if the cost of repair is sufficiently more than the loss in fair market value of the improvements caused by the breach of the standard of care, so that a reasonable person would not make the repair under the circumstances. If you find that a repair is unreasonably wasteful, then you should award to [name of plaintiff] the "loss in the market value" measure of damages.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV505 Betterment or value added.

The damages you award to [name of plaintiff] cannot place [him] in a better position than [he] would have been in if [name of defendant] had not breached the standard of care.

To prevent [name of plaintiff] from being in a better position, you must reduce from the damages any additional amount of money that [name of plaintiff] would have paid in designing and constructing the [facility name] if [name of defendant] had provided services that met the standard of care. You must make this reduction only if [name of defendant] proves that [name of plaintiff] would have completed the [facility name] at the additional cost for construction and services that met the standard of care.

For the same reasons, you must reduce from the damages you award to [name of plaintiff] using a "repair" measure of damages the costs of any repairs that add value to the [facility name] beyond the value it would have had if [name of defendant] had not breached the standard of care.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV506 Creation of a warranty.

[Name of plaintiff] claims that [name of defendant] owes damages for breach of warranty. A warranty is an assurance or promise of a certain fact or condition regarding [name of defendant]'s [work/service]. A warranty that is expressed in written or oral words is an express warranty. A warranty that is made by law is known as an implied warranty. You must decide whether [name of defendant] made a warranty of [his] [work/service] to [name of plaintiff].

References

MUJI 1st Instruction

Committee Amended

CV507 Breach of warranty essential elements.

To prove breach of warranty [name of plaintiff] must prove all of the following:

(1) [name of defendant] made a warranty [describe warranty]; and

(2) [name of plaintiff] relied on the warranty; and

(3) [name of defendant] reasonably expected that [name of plaintiff] would rely on the warranty; and

(4) [name of defendant]'s services were not as promised in the warranty; and

(5) [name of defendant]'s breach of warranty caused [name of plaintiff]'s harm; and

(6) it was reasonably foreseeable at the time the warranty was made that [name of plaintiff] would be harmed if [name of defendant]'s services were not performed as promised in the warranty.

[To establish breach of an express warranty, [name of plaintiff] does not also have to prove that the [name of defendant] breached the standard of care.]

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV508 Implied warranties. Accuracy and fitness for purpose.

[Name of defendant] made an implied warranty to [name of plaintiff] that his services would not fall below the standard of care, but did not make an implied warranty to [name of plaintiff] that [his] services would be performed without errors or defects, or that [his] services would be suitable for the purpose intended by [name of plaintiff].

References

MUJI 1st Instruction

Committee Notes

CV601A Motor Vehicle Instruction Notes

Committee Notes

CV601B Introduction

Under the law, a driver has various duties that [he] must comply with while driving. I will now explain these duties that apply to this case.

CV602 Violation of statute, ordinance or safety law.

A violation of a safety law is evidence of fault unless the violation is excused. [Name of plaintiff] claims that [name of defendant] violated a safety law that says:

[Quote or summarize in plain language the statute, ordinance or rule.]

If you decide that [name of defendant] violated this safety law, you must decide whether the violation is excused.

[Name of defendant] claims the violation is excused because:

[(1) Obeying the law would have created an even greater risk of harm.]

[(2) [He] could not obey the law because [he] faced an emergency that [he] did not create.]

[(3) [He] was unable to obey the law despite a reasonable effort to do so.]

[(4) [He] was incapable of obeying the law.]

[(5) [He] was incapable of understanding what the law required.]

Even if a driver complies with a safety law, or is excused from complying with the safety law, the driver must still comply with all other duties that I will explain to you.

References

MUJI 1st Instruction

Committee Notes

CV603 Reasonable care.

A driver has the duty to use reasonable care at all times.

MUJI 1st Instruction

Committee Notes

CV604 Control of vehicle.

A driver has a duty to keep the vehicle under reasonable control and to operate the vehicle so as to avoid danger.

References

MUJI 1st Instruction

CV605 Lookout.

A driver has a duty to keep a proper lookout for other traffic and hazards that can be reasonably anticipated.

References

MUJI 1st Instruction

CV606 Following at a safe distance.

A driver has a duty to follow another vehicle at a distance that is reasonable and prudent under all existing conditions and circumstances.

References

CV607 Vehicle maintenance.

A [driver/owner] has a duty to [drive/move a vehicle] [allow a vehicle to be driven/moved] on a roadway only if the vehicle is in a safe condition.

References

MUJI 1st Instruction

CV608 Speed.

A driver has a duty to drive at a safe speed. The speed limit at the place of this accident was [ __ ] miles per hour. Driving at a speed in excess of the limit may be evidence of fault. However, conditions and circumstances may allow a driver to drive at a [lower/greater] speed with proper regard for existing and potential hazards.

References

MUJI 1st Instruction

CV609 Minimum speed.

A driver may not drive at a speed so slow as to interfere with the normal and reasonable movement of traffic unless conditions or circumstances justify a reduced speed for safe operation.

References

CV610 Turning/lane change.

A driver may [turn a vehicle/change lanes] only if it can be done with reasonable safety and after giving an appropriate signal.

References

MUJI 1st Instruction

CV611 "Right-of-way" defined.

A [vehicle/pedestrian] has the right-of-way when [he] has the right to proceed in a lawful manner in preference to an approaching [vehicle/pedestrian]. But both a driver and a pedestrian have a continuing duty to use reasonable care for the safety of others and themselves, even when one has the right-of-way over the other.

References

MUJI 1st Instruction

CV612 Right-of-way. Left turns.

A driver turning left has a duty to yield the right-of-way to any vehicle approaching from the opposite direction that is so close it is an immediate hazard.

References

MUJI 1st Instruction

CV613 Right-of-way. Unregulated intersection.

A driver approaching an intersection not regulated by a traffic control device or stop signs has a duty to yield the right-of-way to any vehicle that is already in the intersection.

When more than one vehicle enters or approaches the intersection at approximately the same time, the driver of the vehicle on the left has a duty to yield the right-of-way to the vehicle on [his] right.

[However, a driver may not speed up to enter an intersection first.]

[In order for a driver approaching from the left to have the right-of-way, that driver must enter the intersection clearly ahead of the driver approaching from the right.]

References

MUJI 1st Instruction

Committee Notes

CV614 Right-of-way. Traffic signals.

A driver who approaches an intersection with a red light has a duty to stop. The driver with the green light has the right to assume that traffic will not enter the intersection against a red light. However, if that driver sees, or in the exercise of reasonable care should see, that another vehicle is going to proceed against the red light, the driver with the green light has a duty to use reasonable care to avoid a collision.

References

MUJI 1st Instruction

CV615 Right-of-way. Flashing red light.

A driver who approaches an intersection with a flashing red light must stop. After stopping, the driver must yield the right-of-way to any vehicle in the intersection or approaching so closely as to constitute an immediate hazard. [The driver must yield the right-of-way to a pedestrian in a crosswalk.]

References

CV616 Right-of-way. Flashing yellow light.

A driver who approaches an intersection with a flashing yellow light may proceed through the intersection with caution. The driver must yield the right-of-way to [insert factual dispute].

References

CV617 Intoxicated driver.

A driver may not operate a vehicle

[(1) if [he] has a blood or breath alcohol concentration of .08 grams or greater at the time of operation of the vehicle.]

[(2) if [he] is under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that the person cannot operate the vehicle safely.]

References

MUJI 1st Instruction

CV618 Young drivers.

A minor driving a motor vehicle is held to the same standard of care as an adult driver.

References

CV619 Drivers approached by emergency vehicle.

When approached by an emergency vehicle using audio or visual warning devices or signals, a driver has a duty to:

(1) yield the right-of-way to the emergency vehicle;

(2) immediately move parallel to, and as close as possible to, the right edge or curb of the roadway, clear of any intersection; and

(3) stop and remain stopped until the emergency vehicle has passed.

In complying with these duties, a driver must use reasonable care under all of the conditions and circumstances.

References

MUJI 1st Instruction

Committee Notes

CV620 Emergency vehicle drivers.

You must decide whether [name of emergency vehicle driver] acted reasonably.

The law allows the driver of an emergency vehicle to disregard certain duties if each of the following is true:

(1) if the driver of an emergency vehicle sounds an audible signal or uses emergency lights which are visible from the front of the emergency vehicle, and

(2) the driver was

[(a) responding to, but not returning from, an emergency call.]

[(b) in pursuit of an actual or suspected violator of the law.]

[(c) responding to, but not returning from, a fire alarm.]

If you decide that both of these conditions are true, then [name of emergency vehicle driver] may

[(1) park or stand in the roadway.]

[(2) drive through a stop signal or stop sign, slowing down as needed for safety.]

[(3) exceed the posted speed limit.]

[(4) disregard the duties concerning direction of travel, lane change, or turning.]

[(5) describe any other applicable duty.]

The right to disregard this duty, however, does not relieve [name of emergency vehicle driver] of the duty to operate the emergency vehicle with reasonable care, considering the emergency situation and all other circumstances.

References

MUJI 1st Instruction

Committee Notes

CV621 Pedestrians.

A pedestrian must use reasonable care to avoid harm to [himself] and others and to avoid causing an accident.

MUJI 1st Instruction

CV622 Pedestrian crossing a roadway.

To decide whether [name of pedestrian] acted reasonably, you must consider the following:

[(1) A pedestrian crossing a road at any point other than within a marked crosswalk must yield the right-of-way to all vehicles on the road.]

[(2) A pedestrian crossing a road other than in an unmarked crosswalk at an intersection must yield right-of-way to all vehicles on the road.]

[(3) A pedestrian may not suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close as to be an immediate hazard. An "immediate hazard" exists whenever a reasonable pedestrian would realize that [he] would be in danger.]

References

MUJI 1st Instruction

Committee Notes

CV623 Right-of-way toward pedestrians.

If traffic signals are [not in place/not in operation], a driver must yield the right-of-way to a pedestrian:

(1) if the pedestrian is in a crosswalk on the half of the road where the driver is traveling, or

(2) if the pedestrian is approaching so closely from the opposite half of the road as to be in danger.

References

CV624 Pedestrian signals.

When pedestrian traffic control signals exist, a pedestrian has the following rights and duties:

(1) A pedestrian facing a steady "Walk" or "Walking Person" signal has the right-of-way and may cross the road in the direction of the signal.

(2) A pedestrian facing a flashing or steady "Don't Walk" or "Upraised Hand" signal may not start to cross the road in the direction of the signal, but a pedestrian who has started crossing keeps the right-of-way while continuing to a [sidewalk/safety island].

References

MUJI 1st Instruction

Committee Notes

CV625 Driving near children.

A driver must anticipate the ordinary behavior of children and must be more careful when children are present than when only adults are present.

References

CV626 Bicyclist.

A bicyclist must use reasonable care to operate [his] bicycle safely under the circumstances, both for [his] own safety and for the safety of others. However, a driver should be more cautious when [he] knows or should know a bicyclist is riding in the vicinity.

References

CV627 Bicycles. Three-foot rule.

A driver may not drive within three feet of a moving bicycle, unless it is necessary to drive closer and it can be done safely.

References

CV628 Real property owner to remove obstruction impairing view.

A property-owner has a duty to remove from [his] property any part of a tree, plant, shrub or other obstruction, that creates a traffic hazard by obstructing the view of a driver on a roadway.

References

CV629 Assuming obedience to law.

A driver has a right to assume that others will obey the law and exercise reasonable care, unless there is a good reason to believe otherwise.

References

MUJI 1st Instruction

CV630 Owner who allows minor to drive.

[[Name of plaintiff] claims that [name of owner] gave [name of driver] permission to drive the vehicle. [Name of owner] denies giving permission. You must decide whether [name of owner] gave [name of driver] permission to drive.]

The owner of a vehicle who knowingly permits a person under age 18 to drive [his] vehicle [or a person who gives or furnishes a vehicle to a person under the age of 18] is responsible for that driver's fault, regardless of how cautious the [owner, giver or furnisher] may have been. If you find that the driver is at fault, any judgment will be applied fully against both the driver and the vehicle owner.

References

MUJI 1st Instruction

Committee Notes

CV631 Negligent entrustment.

[Name of plaintiff] claims that [name of owner] was negligent in allowing [name of driver] to drive the vehicle. [Name of owner] is responsible for the harm to [name of plaintiff] if all of the following are true:

(1) [Name of owner] owns the vehicle.

(2) [Name of owner] permitted [name of driver] to drive the vehicle.

(3) At the time [name of owner] gave permission to drive, [he] knew that [name of driver] was a [careless, reckless, incompetent, inexperienced, intoxicated] driver.

(4) [Name of driver] was negligent in driving the vehicle.

(5) [Name of driver]'s negligence caused the accident.

References

Committee Notes

CV632 Minimum Injury Requirements.

[Name of defendant] claims that [name of plaintiff] has not met the minimum injury requirements and therefore cannot recover non-economic damages.

In order to recover non-economic damages resulting from an automobile accident [name of Plaintiff] must prove [he/she] has suffered one of the following:

[(1) death.] or

[(2) dismemberment.] or

[(3) permanent disability or permanent impairment based on objective findings.] or

[(4) permanent disfigurement.] or

[(5) a bone fracture.] or

[(6) reasonable and necessary medical expenses in excess of $3,000.]

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV632A "Permanent Disability" Defined.

A "permanent disability" is an inability to work that is reasonably certain to continue throughout the life of the person suffering from it.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV632B "Permanent Impairment" Defined.

A "permanent impairment" is the loss of a bodily function that is reasonably certain to continue throughout the life of the person suffering from it.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV632C "Permanent Disfigurement" Defined.

A "permanent disfigurement" is a disfigurement that is reasonably certain to continue throughout the life of the person suffering from it.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV632D "Objective Findings" Defined.

To be considered objective, a finding that [plaintiff] is permanently disabled or permanently impaired must be based on externally verifiable evidence; that is, the finding must be based on something other than [plaintiff's] own subjective testimony.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV633 Police officer testimony.

A police officer may testify as a fact witness or as an expert witness or both.

If the police officer testified about what [he] saw, about [his] observations of the accident scene or the individuals or vehicles involved, or about [his] interviews of the parties or witnesses, the officer was testifying as a fact witness.

If the officer offered opinions based on [his] education, training, or experience, [he] was testifying as an expert witness.

In either case, you should evaluate the officer's testimony the same as you would the testimony of any other fact or expert witness and give the testimony the weight you think it deserves. You should not give a police officer's testimony greater weight simply because [he] is a police officer.

References

Committee Notes

CV634 Insurance.

You should not consider sources of payment for bills that [name of plaintiff] has incurred, nor how the verdict in this case will be paid. If you have heard or seen any references to insurance during this trial, that information should not be a factor one way or the other in your decision-making. You should not speculate about whether a party had insurance, did not have insurance, nor the amount of insurance, if any. Doing so might produce a verdict which is not based on the evidence.

References

Committee Notes

CV635 Seatbelt usage.

You must decide this case without regard to whether you believe that a [seatbelt/child restraint device] was used or not used by any party in this case. If you have heard or if you believe that any party in this case used or did not use a [seatbelt/child restraint device], you should not consider such information in deciding a verdict.

References

Committee Notes

CV901 Boundary by Acquiescence

[Name of plaintiff] and [name of defendant] are adjoining landowners. There is a dispute over where the legal property line is between the adjoining pieces of property. [Name of plaintiff] claims that a visible [fence, monument, building, or natural features treated as a boundary] between [name of plaintiff]'s property and [name of defendant]'s property is a "boundary by acquiescence," that should be recognized as the legal boundary between the properties.

References

CV902 Visible Line

"Visible line," as used in the first requirement of boundary by acquiescence, is an observable line created by a fence, building, monument, hedge, or similar visible items, either human made or natural.

References

CV903 Occupy Defined

"Occupy," as used in the second element of boundary by acquiescence, means that [name of plaintiff] has used [his or her] property up to the visible line in a way that would put a reasonable person on notice that [name of plaintiff] treats the visible line as a boundary between the adjoining properties. Examples of activities that could constitute occupation are farming the property, placing homes or other structures on the property, improving the property, irrigating the property, using it to raise livestock, or similar uses.

References

CV904 Mutual Acquiescence

Mutual acquiescence as used in the third requirement of boundary by acquiescence means that adjoining landowners have acted in a manner that shows they have treated a line as a boundary of their properties. The [name of defendant]'s acquiescence can be shown by action, inaction, or silence. Direct evidence of a landowner's subjective belief concerning the boundary is not required to show acquiescence. Rather, you should base your decision on whether [name of defendant]'s objective behavior shows [he or she] recognized the line as a property line. You may infer acquiescence from the evidence.

References

CV905 Exception to Silence Equaling Acquiescence

[Name of defendant] asserts that [he or she] did not acquiesce to the boundary on the basis that [he or she] could not access [his or her] property. If [name of defendant] proves shows by a preponderance of the evidence that [he or she] could not access [his or her] property, then you must find that [name of defendant] did not acquiesce to the boundary.

References

Committee Notes

CV920 "Easement" Defined.

An "easement" is a right to use or control land owned by another person for a specific limited purpose (such as to cross it for access [or insert other example]). An easement prohibits the landowner from unreasonably interfering with the uses authorized by the easement.

[An express easement is an easement that the landowner grants to someone else in writing, such as in a contract or a deed.]

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV921 Prescriptive Easement. Introduction.

A prescriptive easement is a legal right to continue to use property of another based on longstanding use.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV922 Prescriptive Easement. Elements of a claim.

[Plaintiff] claims a prescriptive easement to continue to use [Defendant's] property in the following manner: [describe the particular use]. To establish this prescriptive easement, [Plaintiff] must prove by clear and convincing evidence that, for at least 20 years:

1. [Plaintiff] has continuously used [Defendant's] property for [describe the particular use];

2. [Plaintiff's] use of [Defendant's] property in this manner was open and notorious; and

3. [Plaintiff's] use of [Defendant's] property in this manner was adverse.

If you find that [Plaintiff] has proved each of these elements by clear and convincing evidence, then [Plaintiff] is entitled to a prescriptive easement to continue using [Defendant's] property for [describe the particular use].

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV923 Prescriptive Easement. "Continuous" Defined.

[Plaintiff's] use of [Defendant's] property was continuous if [Plaintiff] used [Defendant's] property as often as required by the nature of the use and [Plaintiff's] needs, for an uninterrupted period of at least twenty years.

A prescriptive use is not continuous where, sometime during the twenty-year period:

(1) [Plaintiff] stops using [Defendant's] property;

(2) [Defendant] [or a previous owner of [Defendant's] property] prevents [Plaintiff] from using the property; or

(3) [Plaintiff] accepts permission from [Defendant] [or a previous owner of [Defendant's] property] to continue using the property.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV924 Prescriptive Easement. "Open and Notorious" Defined.

[Plaintiff's] use of [Defendant's] property was "open and notorious" if [Defendant] knew about the use, or if [Defendant] could have learned about the use through the exercise of reasonable diligence.

"Notorious" in this context does not mean a criminal act or some wrongdoing, but only that the use of the easement was carried out openly (that is, with notoriety) so that any person familiar with the property would be aware that the easement is being used.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV925 Prescriptive Easement. "Adverse" Defined.

[Plaintiff's] use of [Defendant's] property was "adverse" if [Plaintiff] did not obtain permission for the use.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV926A Adverse Presumption.

If you find [Plaintiff's] open and notorious use of [Defendant's] property continued for a period of twenty years, then you must presume that the use was adverse.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV926B Overcoming Adverse Presumption.

[Defendant] may overcome the adverse presumption in one of two ways.

• First, [Defendant] can prove that [Plaintiff] used the property with [Defendant's] permission when [Plaintiff] first began using the property; or,
• Second, [Defendant] can prove that within the twenty-year period [Defendant] gave permission to [Plaintiff] to use the property and [Plaintiff's] use thereafter was within the scope of [Defendant's] permission.

If [Defendant] successfully proves by a preponderance of the evidence either of the above, then the burden shifts back to [Plaintiff] to prove that [Plaintiff]'s use became adverse at some point thereafter for the twenty-year period.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV930 Easement by Necessity. Introduction.

An easement by necessity arises when there is a transfer of property from one owner to another that results in a tract of land becoming landlocked.

[Plaintiff] and [Defendant] are adjoining landowners. [Plaintiff] asserts that because [his/her/its] property is completely landlocked, [he/she/it] should be granted an "easement by necessity" across [Defendant's] property so that [Plaintiff] can get to or from [his/her/its] property from the [public road]. [Defendant] asserts that [Plaintiff] has no right to enter or use [Defendant's] property to access [Plaintiff's] property.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV931 Easement by Necessity. Elements of a claim for access to landlocked property.

To succeed on this claim, [Plaintiff] must prove by clear and convincing evidence each of the following elements:

(1) All of the property was once owned by a single landowner who then divided the land and transferred away one tract of land, creating a landlocked property; and

(2) The easement is reasonably necessary to the enjoyment of the landlocked property.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV940 Easement by Implication. Introduction.

An easement by implication is an easement that can arise when a landowner divides property into two or more pieces ([Parcel A] and [Parcel B]) and transfers [Parcel B] away. The transfer of [Parcel B] to the new landowner may include by implication all those apparent, obvious, and visible easements over [Parcel A] which were used by the original landowner for the benefit of [Parcel B] before it was transferred.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV941 Easement by Implication. Elements.

To succeed on this claim, [Plaintiff] must prove by clear and convincing evidence each of the following elements:

(1) All of the property was once owned by a single landowner who then divided the land and transferred away one tract of land;

(2) At the time the property was divided, the use giving rise to the easement [across/ on] the [retained/transferred] parcel for the benefit of the [transferred/retained] parcel was apparent, obvious, and visible;

(3) The easement is reasonably necessary to the enjoyment of the [transferred/retained] property; and

(4) The use giving rise to the easement was continuous rather than sporadic.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV1001 Strict liability. Introduction.

[Name of plaintiff] seeks to recover damages based upon a claim that [he] was injured by a defective and unreasonably dangerous [product]. A product may be defective and unreasonably dangerous

[(1) in the way that it was designed.]

[(2) in the way that it was manufactured.]

[(3) in the way that its users were warned.]

References

Committee Notes

CV1002 Strict liability. Elements of claim for a [design] [manufacturing] defect.

[Name of plaintiff] claims that [he] was injured by a [product] that had a [design] [manufacturing] defect that made the [product] unreasonably dangerous. You must decide whether:

(1) there was a [design] [manufacturing] defect in the [product];

(2) the [design] [manufacturing] defect made the [product] unreasonably dangerous;

(3) the [design] [manufacturing] defect was present at the time [name of defendant] [manufactured/distributed/sold] the [product]; and

(4) the [design] [manufacturing] defect was a cause of [name of plaintiff]'s injuries.

I will now explain what the terms ["design] ["manufacturing] defect" and "unreasonably dangerous" mean.

References

MUJI 1st Instruction

Committee Notes

CV1003 Strict liability. Definition of "design defect."

[Alternative A.]

The [product] had a design defect if as a result of its design, the [product] failed to perform as safely as an ordinary user would expect when the [product] was used in a manner reasonably foreseeable to the manufacturer.

[Alternative B.]

The [product] had a design defect if:

(1) as a result of its design, the [product] failed to perform as safely as an ordinary user would expect when the [product] was used in a manner reasonably foreseeable to the manufacturer; and

(2) at the time the [product] was designed, a safer alternative design was available that was technically and economically feasible under the circumstances.

References

MUJI 1st Instruction

Committee Notes

CV1004 Strict liability. Definition of "manufacturing defect."

The [product] had a manufacturing defect if it differed from

[(1) the manufacturer's design or specifications.]

[(2) products from the same manufacturer that were intended to be identical.]

References

MUJI 1st Instruction

Committee Notes

CV1005 Industry standard.

In deciding whether the [product] is defective, you may consider the evidence presented concerning the design, testing, manufacture and type of warning for similar products.

References

CV1006 Strict liability. Definition of "unreasonably dangerous."

[Alternative A.]

A [product] with [a design defect] [a manufacturing defect] [an inadequate warning] was unreasonably dangerous if it was more dangerous than an ordinary user of the [product] would expect considering the [product]'s characteristics, risks, dangers, and uses, together with any actual knowledge, training, or experience that the user had.

[Alternative B.]

A [product] with [a design defect] [a manufacturing defect] [an inadequate warning] was unreasonably dangerous if:

(1) it was more dangerous than an ordinary user of the [product] would expect considering the [product]'s characteristics, uses that were foreseeable to the manufacturer, and any instructions or warnings; and

(2) [name of user] did not have actual knowledge, training, or experience sufficient to know the danger from the [product] or from its use.

References

MUJI 1st Instruction

Committee Notes

CV1007 Strict liability. Duty to warn.

[Name of plaintiff] claims that he was injured by a [product] that was defective and unreasonably dangerous because it lacked an adequate warning.

You must first decide if [name of defendant] was required to provide a warning.

[Name of defendant] was required to warn about a danger from the [product]'s foreseeable use of which [he] knew or reasonably should have known and that a reasonable user would not expect.

[Name of defendant] was not required to warn about a danger from the [product]'s foreseeable use that is generally known and recognized.

References

MUJI 1st Instruction

Committee Notes

CV1008 Strict liability. Elements of claim for failure to adequately warn.

[If you find that a warning was required,] you must [next] decide whether:

(1) [name of defendant] failed to provide an adequate warning at the time the product was [manufactured/distributed/sold];

(2) the lack of an adequate warning made the product defective and unreasonably dangerous; and

(3) the lack of an adequate warning was a cause of [name of plaintiff]'s injuries.

I will now explain what the terms "adequate warning" and "unreasonably dangerous" mean.

References

MUJI 1st Instruction

Committee Notes

CV1009 Strict liability. Definition of "adequate warning."

A warning is adequate if, in light of the ordinary knowledge common to members of the community who use the [product], the warning:

(1) was designed to reasonably catch the user's attention;

(2) was understandable to foreseeable users;

(3) fairly indicated the danger from the [product]'s foreseeable use; and

(4) was sufficiently conspicuous to match the magnitude of the danger.

References

Committee Notes

CV1010 Strict liability. Failure to warn. Presumption that a warning would have been read and followed.

You can presume that if [name of defendant] had provided an adequate warning, [name of plaintiff] would have read and followed it unless the evidence shows that [name of plaintiff] would not have read or followed such a warning.

References

Committee Notes

CV1011 Strict liability. Failure to warn. Presumption that a warning will be read and followed.

If you find that [name of defendant] gave a[n adequate] warning, [he] could reasonably presume that the warning would be read and followed.

References

MUJI 1st Instruction

Committee Notes

CV1012 Strict liability. Component part manufacturer. Part defective only as incorporated into finished product.

[Name of defendant] [designed/manufactured/distributed/sold] a component part of the [product]. If you find that the component part was not defective as [designed/manufactured/distributed/sold] but only became defective as a result of the way it was [installed/incorporated/used] in the finished [product], then [name of defendant] can only be liable to [name of plaintiff] if:

(1) [Name of defendant] knew enough about the design or operation of the finished [product] that [he] could have reasonably foreseen that an injury could occur because of the way the component part would be used in the [product], and

(2) [Name of defendant] did not warn the [final assembler of the product] of that danger.

MUJI 1st Instruction

CV1013 Strict liability. Component part manufacturer. Defective part incorporated into finished product.

[Name of defendant] [designed/manufactured/distributed/sold] a component part of the [product].

If you find that the component part was defective as [designed/manufactured/distributed/sold] and that the defective part made the finished product unreasonably dangerous, then you may find both [name of defendant], the manufacturer of the component part, and [name of co-defendant or third party], the manufacturer of the finished product, liable to [name of plaintiff].

References

Committee Notes

CV1014 Strict liability. Defective condition of FDA approved drugs.

If a drug product conformed with the United States Food and Drug Administration (FDA) standards in existence at the time the product was sold, the product is free of any design defect. However, [name of plaintiff] may still prove that the product was defective and unreasonably dangerous due to a manufacturing defect or an inadequate warning.

References

MUJI 1st Instruction

Committee Notes

CV1015 Negligence. Definition of "Negligence."

[Name of plaintiff] seeks to recover damages based upon a claim that [he] was injured due to [name of defendant]'s negligence. You must decide whether [name of defendant] was negligent.

Negligence means that a [manufacturer/designer/tester/inspector] did not use reasonable care in [designing/manufacturing/testing/inspecting] the product [to avoid causing a defective and unreasonably dangerous condition] [to eliminate any unreasonable risk of foreseeable injury]. Reasonable care means what a reasonably careful [manufacturer/designer/tester/inspector] would do under similar circumstances. A person may be negligent in acting or failing to act.

For example, a [designer/manufacturer/tester/inspector] of a product might be required to use more care if a prudent [designer/manufacturer/tester/inspector] would understand that more danger is involved in the use of the product. In contrast, a [designer/manufacturer/tester/inspector] of a product may be able to use less care because a prudent [designer/manufacturer/tester/inspector] would understand that less danger is involved in the use of the product.

The [designer/manufacturer/tester/inspector] of the product owes a duty of reasonable care to any persons who the [designer/manufacturer/tester/inspector] expects would use the product.

References

Committee Notes

CV1016 Negligence. Elements of claim for [design] [manufacturing] defect.

[Name of plaintiff] claims that [he] was injured by [name of defendant]'s negligence. You must decide whether:

(1) there was a [design] [manufacturing] defect in the product;

(2) the [design] [manufacturing] defect made the [product] unreasonably dangerous;

(3) the [product]'s defect was the result of [name of defendant]'s failure to use reasonable care; and

(4) the defect was a cause of [name of plaintiff]'s injuries.

References

MUJI 1st Instruction

Committee Notes

CV1017 Negligence. Duty to warn.

[Name of plaintiff] claims that [he] was injured because [name of defendant] failed to exercise reasonable care in providing an adequate warning.

You must first decide if the defendant was required to provide a warning.

[Name of defendant] was required to warn about a danger from the [product] or from its foreseeable use of which [he] knew or reasonably should have known and that a reasonable user would not expect.

[Name of defendant] was not required to warn about a danger from the [product]'s foreseeable use that is generally known and recognized.

References

MUJI 1st Instruction

CV1018 Negligence. Elements of claim for failure to adequately warn.

[If you find that a warning was required,] you must [next] determine whether:

(1) [name of defendant] failed to exercise reasonable care because [he] did not provide an adequate warning;

(2) the lack of an adequate warning made the product defective and unreasonably dangerous; and

(3) the lack of an adequate warning was a cause of [name of plaintiff]'s injuries.

I will now explain what the terms "adequate warning" and "unreasonably dangerous" mean.

References

MUJI 1st Instruction

Committee Notes

CV1019 Negligence. Definition of "adequate warning."

A [manufacturer/seller] fails to exercise reasonable care if [he] does not provide a warning or provides an inadequate warning where a warning is required.

A warning is adequate if, in light of the ordinary knowledge common to members of the community who use the product, it:

(1) was designed to reasonably catch the user's attention;

(2) was understandable to foreseeable users;

(3) fairly indicated the danger from the [product]'s foreseeable use; and

(4) was sufficiently conspicuous to match the magnitude of the danger.

References

Committee Notes

CV1020 Negligence. Duty of designer/manufacturer.

[Name of defendant] has a duty to [design/manufacture] a product to eliminate any unreasonable risk of foreseeable injury.

However, [name of defendant] may market a non-defective product even if a safer model is available. There is no duty to make a safe product safer. [Name of defendant] has no duty to inform the consumer of the availability of the safer model.

References

MUJI 1st Instruction

CV1021 Negligence. Drug manufacturer's duty.

[Name of defendant] is a drug manufacturer and, as such, is considered to be an expert in its field. [Name of defendant] is under a continuous duty to stay current on scientific developments about its product, and has a duty to give timely and adequate warnings to the medical profession of any dangerous side effects produced by its drugs of which it knows or has reason to know. [Name of defendant] is responsible not only for actual knowledge gained from its research and adverse reaction reports, but also for what it could have learned from trustworthy scientific literature and other communications.

References

Committee Notes

CV1022 Negligence. Retailer's duty.

[Alternative A]

Ordinarily, one who is in the business of [selling/distributing] a [product] that was made by another does not have a duty to inspect or test the [product] for possible defects. One who merely [sells/distributes] the [product] and does not know and had no reason to know of its defective condition is not responsible for any harm caused by the unreasonably dangerous and defective condition of the [product].

If, however, [name of defendant] knew or had reason to know that the [product] was defective and unreasonably dangerous, then [name of defendant] may be at fault if [he] did not exercise reasonable care to inform [name of plaintiff] or otherwise protect [him] from the dangerous and defective condition of the [product].

[Alternative B]

Ordinarily, one who [sells/distributes] a [product] that was made by another does not have a duty to inspect or test the [product]. One who merely [sells/distributes] the [product] and does not know and had no reason to know of a problem with the [product] is not responsible for any harm caused by the [product].

If, however, [name of defendant] knew or had reason to know that the [product] was or was likely to be dangerous for its intended use and had no reason to believe that the user would realize the danger, then [name of defendant] may be at fault if [name of defendant] did not exercise reasonable care to inform [name of plaintiff] or otherwise protect [him] from the risk and [name of defendant]'s failure to exercise reasonable care was a cause of [name of plaintiff]'s injury.

References

MUJI 1st Instruction

Committee Notes

CV1023 Breach of Warranty. Definition of "Warranty."

[Name of plaintiff] claims that [name of defendant] breached a warranty. A warranty is a promise or guarantee about the condition or performance of a product.

References

MUJI 1st Instruction

Committee Notes

CV1024 Breach of Express Warranty. Creation of an express warranty.

An express warranty is created if:

(1) The seller makes a promise or statement of fact about the [product] that reasonably persuades the other party to rely on the promise or statement. In that case, the seller has made an express warranty that the [product] will conform to the promise or statement.

(2) A description of the [product] is made part of the basis for the sale. In that case there is an express warranty that the goods will conform to the description.

(3) A sample or model is made part of the basis for the sale. In that case, there is an express warranty that the [product] will conform to the sample or model.

References

MUJI 1st Instruction

Committee Notes

CV1025 Breach of Express Warranty. Description of goods.

A description of goods may be by words or may be expressed in any other manner, such as use of technical specifications or blueprints, which may be more exact than language. As long as the description is made part of the basis for entering into the transaction, the goods must conform to that description.

References

MUJI 1st Instruction

CV1026 Breach of Express Warranty. What is not required to create an express warranty.

A warranty does not require any particular words. Formal words such as "warrant" or "warranty" or "guarantee" are not necessary to create a warranty.

Also, [name of defendant] does not have to specifically intend to create a warranty for a warranty to exist.

But a warranty is not created simply because [name of defendant] stated the value of the [product], gave [his] opinion about the [product] or recommended the [product].

References

MUJI 1st Instruction

CV1027 Breach of Express Warranty. Objective standard to create an express warranty.

You must consider any [statement of fact/promise/description of the product] as a reasonable person would have understood it. If a reasonable person would have relied on the [statement/promise/description] in buying the [product], then you may find that the [statement/promise/description] created an express warranty.

In deciding whether a reasonable person would have relied on the [statement/promise/description], you should consider such facts as:

(1) the ability of a reasonable buyer to see and understand whether the [product] conformed to the [statement/promise/description];

(2) how specific or vague the [statement/promise/description] was; and

(3) how believable the [statement/promise/description] was.

References

MUJI 1st Instruction

CV1028 Breach of Express Warranty. Elements of claim. (Contract).

In this case, [name of plaintiff] claims that [name of defendant] made an express warranty that [describe the alleged warranty]. To establish this claim, [name of plaintiff] must prove all of the following:

(1) that [name of defendant] made an express warranty [that became part of the basis of the parties' bargain] [upon which [name of plaintiff] relied];

(2) that the [product] did not conform to this warranty;

(3) that [name of plaintiff] was harmed;

(4) that the failure of the [product] to conform to the warranty was a cause of [name of plaintiff]'s harm; and

(5) that [name of plaintiff] could have reasonably been expected to use or be affected by the [product].

[Name of plaintiff] does not have to prove that [name of defendant] knew or should have known that the representation or promise [he] was making was false. [Name of defendant] may be at fault for breach of warranty even if [he] exercised reasonable care in making the statement. Similarly, [name of plaintiff] can recover even though [he] did nothing to determine whether or not the statement was true.

References

MUJI 1st Instruction

Committee Notes

CV1029 Breach of Express Warranty. Elements of claim. (Tort)

In this case, [name of plaintiff] claims that [name of defendant] made an express warranty that [describe the alleged warranty]. To establish this claim, [name of plaintiff] must prove all of the following:

(1) that [name of defendant] made an express warranty about the [product] [that became part of the basis of the parties' bargain] [upon which [name of plaintiff] relied];

(2) that the [product] did not conform to this warranty, resulting in a defective and unreasonably dangerous condition;

(3) that [name of plaintiff] was harmed;

(4) that the defective condition and failure of the [product] to conform to the warranty was a cause of [name of plaintiff]'s harm; and

(5) that [name of plaintiff] could have reasonably been expected to use or be affected by the [product].

[Name of plaintiff] does not have to prove that [name of defendant] knew or should have known that the representation or promise [he] was making was false. [Name of defendant] may be at fault for breach of warranty even if [he] exercised reasonable care in making the statement.

References

MUJI 1st Instruction

Committee Notes

CV1030 Breach of Implied Warranty. Elements of implied warranty of merchantability claim. (Contract).

In this case, [name of plaintiff] claims that [name of defendant] breached an implied warranty that the [product] was merchantable. To establish this claim, [name of plaintiff] must prove all of the following:

(1) that at the time of the purchase, [name of defendant] was in the business of selling these [products] or by [his] occupation held [himself] out as having special knowledge or skill regarding these [products];

(2) that the [product]:

[(a) was not reasonably fit for the ordinary purposes for which such [products] are used;] or

[(b) was not of the same kind and quality as other [products] with which it was sold;] or

[(c) would not pass without objection in the industry;]

(3) that [name of plaintiff] was harmed;

(4) that the failure of the [product] to have the expected quality was a cause of [name of plaintiff]'s harm; and

(5) that [name of plaintiff] could have reasonably been expected to use or be affected by the [product].

References

MUJI 1st Instruction

Committee Notes

CV1031 Breach of Implied Warranty. Elements of implied warranty of merchantability claim. (Tort).

In this case, [name of plaintiff] claims that [name of defendant] breached an implied warranty that the [product] was merchantable. To establish this claim, [name of plaintiff] must prove all of the following:

(1) that [name of defendant] sold the [product;]

(2) that at the time of sale, the [product]:

[(a) was not reasonably fit for the ordinary purposes for which such [products] are used;] or

[(b) was not of the same kind and quality as other [products] with which it was sold;] or

[(c) would not pass without objection in the industry;]

(3) that this condition rendered the [product] defective and unreasonably dangerous;

(4) that [name of plaintiff] was harmed;

(5) that the defective condition of the [product] was a cause of [name of plaintiff]'s harm.

References

Committee Notes

CV1032 Breach of Implied Warranty. Creation of an implied warranty of fitness for a particular purpose.

Unless excluded or modified, an implied warranty of fitness for a particular purpose exists if at the time of sale:

(1) [name of seller] has reason to know that [name of buyer] was buying the [product] for a particular purpose, and

(2) [name of buyer] was relying on [name of seller]'s skill or judgment to select or furnish a suitable [product].

References

MUJI 1st Instruction

Committee Notes

CV1033 Breach of Implied Warranty. Elements of claim for breach of an implied warranty of fitness for a particular purpose. (Contract).

In this case, [name of plaintiff] claims that [name of defendant] made an implied warranty that the [product] was fit for [describe the particular purpose]. To establish this claim, [name of plaintiff] must prove all of the following:

(1) that [name of defendant] knew or had reason to know that [name of plaintiff] was buying the [product] for a particular purpose;

(2) that [name of defendant] knew or had reason to know that [name of plaintiff] was relying on [name of defendant]'s skill or judgment to select or furnish a suitable [product];

(3) that the [product] was unfit for the particular purpose [name of plaintiff] bought it for;

(4) that [name of plaintiff] was harmed, and

(5) that the failure of the [product] to conform to the warranty was a cause of [name of plaintiff]'s harm.

References

MUJI 1st Instruction

CV1034 Breach of Implied Warranty. Elements of claim for breach of an implied warranty of fitness for a particular purpose. (Tort).

In this case, [name of plaintiff] claims that [name of defendant] made an implied warranty that the [product] was fit for [describe the particular purpose]. To establish this claim, [name of plaintiff] must prove all of the following:

(1) that [name of defendant] knew or had reason to know that [name of plaintiff] was buying the [product] for a particular purpose;

(2) that [name of defendant] knew or had reason to know that [name of plaintiff] was relying on [name of defendant]'s skill or judgment to select or furnish a suitable [product];

(3) that the [product] was defective, unreasonably dangerous, and unfit for the particular purpose [name of plaintiff] bought it for;

(4) that [name of plaintiff] was harmed, and

(5) that the defective condition was a cause of [name of plaintiff]'s harm.

References

Committee Notes

CV1035 Breach of Implied Warranty. Warranty implied by course of dealing or usage of trade. (Contract).

[Name of plaintiff] claims that [name of defendant] breached a warranty implied from a course of dealing or a usage of trade.

Unless excluded or modified, an implied warranty may arise from a course of dealing or usage of trade.

A "course of dealing" is prior conduct between [name of plaintiff] and [name of defendant] that shows their understanding or provides a basis for interpreting their statements or conduct.

A "usage of trade" is any practice or method of dealing that is so regularly followed in a particular trade, vocation or place that one would expect it to be observed in this case.

To establish a claim for breach of a warranty implied by course of dealing or usage of trade, [name of plaintiff] must prove all of the following:

(1) That the prior conduct between [name of plaintiff] and [name of defendant] or the practices regularly followed in the trade or place gave rise to an implied warranty that [describe the alleged warranty];

(2) That the [product] did not conform to this warranty;

(3) That [name of plaintiff] was harmed, and

(4) That the failure of the [product] to conform to the implied warranty was a cause of [name of plaintiff]'s harm.

A warranty will not be implied contrary to a course of dealing between [name of plaintiff] and [name of defendant] [or] [a usage of trade].

References

MUJI 1st Instruction

Committee Notes

CV1036 Breach of Warranty. Allergic reaction or hypersensitivity.

Any warranty that the [product] had certain characteristics or was suitable for a certain purpose was based on the assumption that the [product] would be used by a normal person. If you find that [name of plaintiff]' s injuries in this case resulted from an allergy or physical hypersensitivity that most people do not have and [name of defendant] did not know about, then there is no breach of warranty.

MUJI 1st Instruction

CV1037 Breach of Warranty. Improper use.

Any warranty was based on the assumption that the [product] would be used in a reasonable manner, appropriate for the purpose for which it was intended. If you find that [name of plaintiff]'s improper use of the [product] was a cause of [his] harm, then you must find that [name of plaintiff] was at fault, and [name of plaintiff]'s fault must be compared with any fault on the part of [name of defendant] [or others], according to the other instructions I [will give] [have given] you.

References

MUJI 1st Instruction

CV1038 Breach of Warranty. Effect of buyer's examination.

If [name of plaintiff] examined the [product] [sample/model of the product] as much as [he] wanted before buying it, or if [name of defendant] demanded that [name of plaintiff] examine the product and [name of plaintiff] refused to examine it, then there is no implied warranty as to defects that a reasonable examination under the circumstances should have discovered. However, [name of defendant] is still responsible for defects that could not have been discovered by a reasonable examination.

[Name of plaintiff] may rely on an express warranty even though [he] may have had an opportunity to examine the [product] before [he] bought it. If [name of plaintiff] actually examined the [product], [he] may still rely on [name of defendant]'s express warranty rather than on [his] own examination as to any defect that was not obvious or was concealed.

References

MUJI 1st Instruction

CV1039 Breach of Warranty. Exclusion or modification of express warranties by agreement.

The buyer and seller may agree that there are no express warranties relating to the goods [or they may agree that only certain warranties apply and all others are excluded]. If such an agreement was made, there is no express warranty contrary to the terms of the agreement.

References

MUJI 1st Instruction

CV1040 Breach of Warranty. Validity of disclaimer.

To exclude or modify an implied warranty of merchantability, or any part of it, the language of the exclusion or modification must mention the word "merchantability," and if written, the writing must be conspicuous. To exclude or modify any implied warranty of fitness, the exclusion or modification must be in writing and be conspicuous.

Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," "with all faults," or other language which, in common understanding, calls that buyer's attention to the exclusion of warranties and makes plain that there are no implied warranties.

References

MUJI 1st Instruction

CV1041 Breach of Warranty. Notice of breach.

A seller is not liable for a breach of warranty unless the buyer gave the seller notice of the breach within a reasonable time after the buyer knew, or in the exercise of reasonable care should have known, of the alleged [defect in goods] [breach of warranty]. What amounts to a reasonable time depends on the circumstances and the kind of product involved.

Notice may be oral or in writing; no particular form of notice is required. The notice must inform the seller of the alleged breach of warranty and buyer's intention to look to the seller for damages. Whether the buyer gave this information to the seller and, if so, whether the buyer acted within a reasonable time are for you to determine.

References

MUJI 1st Instruction

CV1042 Breach of Warranty. Definition of "goods."

"Goods" means all tangible things, including specially manufactured products or articles, which are moveable and are the subject of the contract for sale.

References

MUJI 1st Instruction

Committee Notes

CV1043 Breach of Warranty. Definition of "sale." (Contract)

A "sale" consists in the passing of ownership in goods from the seller to the buyer for a price.

References

MUJI 1st Instruction

CV1044 Breach of Warranty. Definition of "sample" or "model." (Contract)

A "sample" is drawn from the bulk of the goods which is the subject matter of the sale. A "model" is a specially created item offered for inspection and has not been drawn from the bulk of the goods.

References

MUJI 1st Instruction

CV1045 Sophisticated user.

[Name of defendant] claims that [name of plaintiff] was a sophisticated user of the [product]. A "sophisticated user" is a user who either:

(1) has special knowledge or expertise about the dangerous or unsafe character of the [product]; or

(2) belongs to a group or profession that reasonably should have general knowledge or expertise about the dangerous or unsafe character of the [product].

If you find that [name of plaintiff] was a sophisticated user, then [name of defendant] cannot be liable for failure to give an adequate warning.

References

CV1046 Conformity with government standard.

If the manufacturer of a [product] complies with federal or state laws, standards or regulations for the industry, regarding proper design, inspection, testing, manufacture or warnings, that are in effect when it makes the [product], it is presumed that the [product] is not defective. However, if you find that [name of plaintiff] has established by a preponderance of evidence that the [product] was defective even though the manufacturer followed government laws, standards or regulations, then the presumption that the product is not defective no longer applies.

References

MUJI 1st Instruction

CV1047 Product misuse.

[Name of defendant] claims that [name of plaintiff] misused the [product] and that the misuse was a cause of [name of plaintiff]'s harm. To establish this defense, [name of defendant] must prove that:

(1) [name of plaintiff] used [the product] in a way that the manufacturer did not intend and could not have reasonably anticipated; and

(2) the misuse was a cause of [name of plaintiff]'s harm.

If you find that [name of defendant] has proved these points, you may consider [name of plaintiff]'s misuse of the [product] in apportioning fault on the Special Verdict form.

MUJI 1st Instruction

CV1048 Product alteration.

[Name of defendant] claims that the [product] was modified or altered by someone. To prove this defense, [name of defendant] must prove that:

(1) the [product] was altered or modified after [name of defendant] sold the [product];

(2) the alteration or modification changed the manufacturer's intended purpose, use, construction, function, design, or manner of use of the [product]; and

(3) the modification or alteration was a cause of [name of plaintiff]'s harm.

If [name of defendant] proves these things, you may consider this defense when apportioning fault on the Special Verdict form.

References

MUJI 1st Instruction

CV1049 Unreasonable use. (Assumption of a known risk.)

[Name of defendant] claims that, if the [product] was defective, [name of plaintiff] knew about the defect and voluntarily proceeded to use the [product]. To establish this defense, [name of defendant] must show that [name of plaintiff]:

(1) knew about the defect;

(2) knew the defect could cause injury;

(3) proceeded to use the [product] despite this knowledge; and that

(4) a reasonably prudent person would not have used the [product] under the circumstances.

If [name of defendant] proves these things, you may consider this defense when apportioning fault on the Special Verdict form.

References

MUJI 1st Instruction

CV1050 Comparative fault.

[Alternative A.]

[Name of defendant] claims that [name of plaintiff] was at fault and that [name of plaintiff]'s fault caused or contributed to the harm. This is called comparative fault.

Comparative fault is [negligence] [misuse] [assumption of risk] [or other misconduct] by [name of plaintiff] that causes or contributes to the harm.

[Name of defendant] has the burden of proving [name of plaintiff]'s comparative fault by a preponderance of the evidence.

Any comparative fault of [name of plaintiff] does not bar [his] recovery unless you apportion 50% or more of the total fault to [name of plaintiff]. In other words, [name of plaintiff] may recover from [name of defendant(s)] if [name of defendant(s)]'s fault is greater than [name of plaintiff]'s.

If you allocate 50% or more of the total fault of all parties listed on the verdict form to [name of plaintiff], then [name of plaintiff] will recover nothing. If you allocate less than 50% of the total fault to [name of plaintiff], then I will reduce [name of plaintiff]'s total damages you have determined by the percentage of fault you attribute to [name of plaintiff].

[Alternative B.]

[Name of defendant] claims that [name of plaintiff] was at fault and that [name of plaintiff]'s fault caused or contributed to the harm. This is called comparative fault.

Comparative fault is [misuse] or [assumption of risk] by [name of plaintiff] that causes or contributes to the harm.

[Name of defendant] has the burden of proving [name of plaintiff]'s comparative fault by a preponderance of the evidence.

If you determine that both [name of plaintiff] and [name of defendant] were at fault in causing [name of plaintiff]'s harm, then you must determine the percentages of fault attributable to [name of plaintiff] and [name of defendant]. You must also determine the total damages [name of plaintiff] has sustained as a result of the harm. Then I will then reduce the total amount of damages by the percentage of [name of plaintiff]'s fault.

References

MUJI 1st Instruction

Committee Notes

CV1051 Product unavoidably unsafe.

In response to [name of plaintiff]'s claim that the [product] was defective in design, [name of defendant] claims that the [product] was unavoidably unsafe and that it is therefore not at fault. Some products cannot be made safe for their intended use, but their benefits are great enough to justify their risks of harm. The rabies vaccination is an example, since a few recipients will suffer serious side effects, but the result of not receiving the vaccination is death.

To establish the defense that the [product] was unavoidably unsafe, [name of defendant] must prove that:

(1) when the [product] was made, it could not be made safe for its intended use even applying the best available testing and research; and

(2) the benefits of the [product] justified its risk.

If [name of defendant] proves both by a preponderance of the evidence, the [product] is not defective.

This defense does not apply to [name of plaintiff]'s claims that the [product] was improperly manufactured or had inadequate warnings.

References

Committee Notes

CV1052 Learned intermediary.

Manufacturers of prescription drugs have a duty to warn only the physician prescribing the drug, not the patient, of the risks associated with the drug and the procedures for its use. If you find that the manufacturer gave appropriate warnings to the physician, you must find that the manufacturer fulfilled its duty to warn.

References

CV1053 Definition of "state of the art."

"State of the art" means the best technical, mechanical, and scientific knowledge and methods that are practical and available in the same or similar industry for the same or similar products, when the [product] was designed and tested.

In this case, if you find that the [product] as designed and manufactured conformed to the state of the art in the industry at the time of sale, then you may consider this as evidence that the product was not defective or unreasonably dangerous. A manufacturer's duty to safely design a product does not include a duty to incorporate into its products features representing the ultimate in safety.

References

CV1054 Later remedial measures.

Any evidence you have heard about design changes with respect to the [product] made after the [accident] [injury] [product was designed/manufactured] cannot be considered to prove negligence, culpable conduct, a defect in the product, a defect in the [product]'s design, or a need for a warning or instruction. However, you may consider such evidence as proof of [ownership] [control] [the feasibility of precautionary measures] or to impeach a witness's testimony.

References

Committee Notes

CV1101 Premises Liability Committee Notes.

CV1102 Duty to invitee.

[Name of plaintiff] claims that [name of defendant] failed to use reasonable care to [conduct [describe activity]] [discover [describe condition]] on [name of defendant]'s property and to repair, replace, or adequately warn about it. To succeed in this claim, [name of plaintiff] must prove that [name of defendant]:

[(1) held [his] property open to the public or that [name of defendant] held [his] property open for a purpose directly or indirectly connected to [his] business; and]

(2) knew or should have known of [describe activity or condition]; and

(3) knew or should have known that [describe activity or condition] presented an unreasonable risk of harm; and

(4) knew or should have known that [name of plaintiff] would not discover [describe activity or condition] or that [name of plaintiff] would fail to protect [himself].

In deciding whether [name of defendant] used reasonable care to discover or correct the [describe activity or condition], you may consider, among other factors, the following:

[(a) the location of the property; or]

[(b) the likelihood that someone would come onto the property in the same manner as [name of plaintiff] did; or]

[(c) the likelihood of harm; or]

[(d) the probable seriousness of the harm.]

References

MUJI 1st Instruction

Committee Notes

CV1103 Duty to licensee for an activity on the property.

[Name of plaintiff] claims that [name of defendant] failed to use reasonable care in [describe activity] on [name of defendant]'s property. To succeed in this claim, [name of plaintiff] must prove that:

[(1) [name of plaintiff] entered or remained on [name of defendant]'s property with [name of defendant]'s express or implied permission; and]

(2) [name of defendant] knew or had reason to know that [name of plaintiff] would not realize the danger involved in [describe activity]; and

(3) [name of plaintiff] did not know or have reason to know of [describe activity] or did not know or have reason to know of its danger.

References

MUJI 1st Instruction

Committee Notes

CV1104 Duty to licensee for a condition on the property.

[Name of plaintiff] claims that [name of defendant] failed to use reasonable care to repair, replace, or adequately warn about [describe condition] on [name of defendant]'s property. To succeed in this claim, [name of plaintiff] must prove that:

[(1) [name of plaintiff] went onto [name of defendant]'s property with [name of defendant]'s express or implied permission; and]

(2) [name of defendant] knew or had reason to know of [describe condition]; and

(3) [name of defendant] knew or had reason to know that [describe condition] presented an unreasonable risk of harm; and

(4) [name of defendant] knew or had reason to know that [name of plaintiff] would not discover [describe condition] or realize its danger; and

(5) [name of plaintiff] did not discover [describe condition] or did not realize its danger.

References

MUJI 1st Instruction

Committee Notes

CV1105 General duty to a trespasser.

If you find that [name of plaintiff] entered or remained on [name of defendant's] property without [invitation / permission / privilege / consent], then, generally, [name of defendant] owes [name of plaintiff] no duty to use reasonable care to put the property in a safe condition or to use reasonable care to [describe activity] so as not to endanger [name of plaintiff].

[However, ... [As applicable, follow with:

Instruction CV1105A. Duty to a trespasser for an activity on the property.

Instruction CV1105B. Duty to trespasser for an artificial condition on the property.

Instruction CV1105C. Duty to trespassing child for an attractive nuisance on the property.]

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV1105A Duty to a trespasser for an activity on the property.

... [name of plaintiff] claims that [name of defendant] owes a duty to use reasonable care in [describe activity or force]. To succeed in this claim, [name of plaintiff] must prove that:

(1) [name of defendant] knew or should have known:

[(a) that trespassers constantly intruded upon a limited area of the property in dangerous proximity to [describe activity or force]; or]

[(b) that [name of plaintiff] was on the property in dangerous proximity to [describe activity or force];] and

(2) [name of defendant] was in immediate control of [describe activity or force]; and

(3) [name of plaintiff] did not discover [describe activity or force] or did not realize its danger.

References

Committee Notes

CV1105B Duty to trespasser for an artificial condition on the property.

... [name of plaintiff] claims that [name of defendant] owes a duty to use reasonable care to warn about [describe condition]. To succeed in this claim, [name of plaintiff] must prove that:

(1) [name of defendant] knew or should have known:

[(a) that trespassers constantly intruded upon a limited area of the property in dangerous proximity to [describe condition]; or]

[(b) that [name of plaintiff] was on the property in dangerous proximity to [describe condition];] and

(2) [describe condition] is an artificial condition that [name of defendant] created or maintained; and

(3) [name of defendant] knew that coming in contact with [describe condition] likely would cause death or seriously bodily harm; and

(4) [describe condition] is of such a nature that [name of defendant] had reason to believe that trespassers would not discover it or would not realize its danger; and

(5) [name of plaintiff] did not discover [describe condition] or did not realize its danger.

References

Committee Notes

CV1105C Duty to trespassing child for an attractive nuisance on the property.

... [name of plaintiff] claims that [name of defendant] owes a duty to use reasonable care to eliminate the danger from [describe condition] or to protect children from the danger. To succeed in this claim, [name of plaintiff] must prove that:

(1) [describe condition] is an artificial condition; and

(2) [name of defendant] knew or had reason to know that [describe condition] involves an unreasonable risk of death or serious bodily harm; and

(3) [name of defendant] knew or had reason to know that children were likely to intrude on the property in dangerous proximity to [describe condition]; and

(4) [name of child], because of [his] youth, did not discover [describe condition] or did not realize its danger; and

(5) the benefit to [name of defendant] of maintaining [describe condition] and the burden of eliminating the danger are slight compared to the risk to children.

References

Committee Notes

CV1106 Duty to persons on a public way.

[Name of plaintiff] claims that [name of defendant] failed to use reasonable care to discover conditions creating an unreasonable risk of harm to persons on [describe public way] and to repair the condition. To succeed in this claim, [name of plaintiff] must prove that:

(1) [name of defendant] created [describe condition] or that it was created with [name of defendant]'s express or implied consent; and

(2) [name of defendant] did not use reasonable care to make [describe condition] safe after [name of defendant] knew or should have known of it; and

[(3) [name of defendant] knew or should have known that [name of plaintiff] might leave the [describe public way] and encounter the [describe condition.]

References

Committee Notes

CV1107 Duty of landlord.

[Name of plaintiff] claims that [name of defendant] is liable for [name of plaintiff]'s harm. To succeed in this claim, [name of plaintiff] must prove that:

[(1) [name of defendant] is the landlord for the property; and that]

(2) [name of defendant] failed to use reasonable care to keep the rented property:

[(a) safe and suitable for its intended use; or]

[(b) free of defects or dangerous conditions of which [name of defendant] knew or should have known would expose others to an unreasonable risk of harm.]

References

MUJI 1st Instruction

Committee Notes

CV1108 Duty of property seller.

[Name of plaintiff] claims that [name of defendant] is liable for [name of plaintiff]'s physical injury. To succeed in this claim, [name of plaintiff] must prove that:

[(1) [name of defendant] sold the property;]

[(2) [name of plaintiff] [purchased the property / was on the property with [name of purchaser]'s permission];]

(3) [name of defendant] knew or had reason to know of [describe condition] on the property and the risk involved;

(4) [name of defendant] had reason to believe that [name of purchaser] would not discover [describe condition] or realize the risk;

(5) [name of purchaser did not discover [describe condition]; and

(6) [name of defendant] failed to disclose [describe condition] to [name of purchaser].

References

Committee Notes

CV1109 Duty of recreational property owner.

[Name of defendant] claims that [he] is not liable for [name of plaintiff]'s harm. To succeed in this claim, [name of defendant] must prove that:

(1) [name of defendant] did not charge [name of plaintiff] a fee to come upon [name of defendant]'s property for a recreational purpose; and,

(2) [name of defendant] held the property open to the public for [insert relevant usage enumerated under Utah Code Section 57-14-2].

If you find that both (1) and (2) above are true, then [name of defendant] owed no duty to exercise reasonable care to make the land safe or to warn of conditions on the land, unless [name of plaintiff] proves that:

(A) [name of defendant] willfully or maliciously caused [name of plaintiff]'s harm; or

(B) [name of defendant] willfully or maliciously failed to guard or warn against [describe the condition, use, structure or activity].

If you find either (A) or (B), then [name of defendant] is liable for harm caused as a result of (A) or (B).

References

MUJI 1st Instruction

Committee Notes

CV1110 Recovery for injury to ski resort patrons.

No skier may recover from any ski area operator for injury resulting from any of the inherent risks of skiing.

References

MUJI 1st Instruction

Committee Notes

CV1111 Inherent risks of skiing defined.

"Inherent risks of skiing" means those dangers or conditions which are such an integral part of the sport of recreational, competitive, or professional skiing that the sport cannot be undertaken without confronting these risks. These risks may include the following:

(1) changing weather conditions;

(2) snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow;

(3) surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects;

(4) variations or steepness in terrain, whether natural or as a result of slope design, snowmaking or grooming operations, and other terrain modifications such as terrain parks, and terrain features such as jumps, rails, fun boxes, and all other constructed and natural features such as half pipes, quarter pipes, or freestyle-bump terrain;

(5) impact with lift towers and other structures and their components such as signs, posts, fences or enclosures, hydrants, or water pipes;

(6) collisions with other skiers;

(7) participation in, or practicing or training for, competitions or special events; and

(8) the failure of a skier to ski within the skier's own ability.

References

MUJI 1st Instruction

Committee Amended

CV1112 Types of inherent risks of skiing.

There are two types of inherent risks of skiing:

The first are risks that skiers want to confront or that [name of defendant] cannot eliminate by using reasonable care. [Name of defendant] has no obligation to eliminate these types of risks.

The second are risks that skiers do not want to confront and that [name of defendant] can eliminate by using reasonable care. Such risks are also inherent in skiing, but [name of defendant] must use reasonable care to eliminate risks of this second type.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV1113A Burden of proof.

[Name of plaintiff] claims that the risk causing [his] harm was not an inherent risk of skiing. To prove this claim, [name of plaintiff] must prove:

(1) that [he] did not want to confront this risk; and

(2) that [name of defendant] could have eliminated the risk by using reasonable care.

If you find that both are true, then the risk is not an inherent risk of skiing.

Committee Notes

Committee Amended

CV1113B Burden of proof.

[Name of defendant] claims that the risk causing [name of plaintiff]'s harm was an inherent risk of skiing. To prove this claim, [name of defendant] must prove:

(1) that [name of plaintiff] wanted to confront the risk; or

(2) that [name of defendant] could not have eliminated the risk by using reasonable care.

If you find that either is true, the risk is an inherent risk of skiing.

Committee Notes

Committee Amended

CV1113C Burden of proof.

An inherent risk of skiing is one that [name of plaintiff] wanted to confront or that [name of defendant] could not have eliminated by using reasonable care. If you find that either is true, then the risk is an inherent risk of skiing.

[Name of defendant] has the burden of proving that the risk was an inherent risk of the first type, risks that [name of plaintiff] wanted to confront.

[Name of plaintiff] has the burden of proving that the risk was an inherent risk of the second type, risks that [name of defendant] could have eliminated using reasonable care.

Committee Notes

Committee Amended

CV1201 Trespass to real property

In this action, [name of plaintiff] seeks to recover damages from [name of defendant] for a trespass to [name of plaintiff]'s property.

To establish [name of plaintiff]'s claim for trespass against the property involved in this case, you must find that:

1) [name of plaintiff] [owned/lawfully possessed] the property;
2) [name of defendant] interfered with [name of plaintiff]'s exclusive right to possession of the property by physically entering or encroaching upon [or causing some thing to physically enter or encroach upon] [name of plaintiff]'s land;
3) [name of defendant] intended to perform the act that resulted in the unlawful entry or encroachment upon [name of plaintiff]'s property; and
4) [name of defendant] had no right to do the act that constituted the unlawful entry or encroachment upon [name of plaintiff]'s property.

References

CV1202 Trespass to personal property

In this action, [name of plaintiff] seeks to recover damages from [name of defendant] for a trespass to [name of plaintiff]'s property.

To establish [name of plaintiff]'s claim for trespass against the property involved in this case, you must find that:

1) [name of plaintiff] had [ownership/lawful possession] of the property at the time of the alleged trespass;
2) [name of defendant] interfered with [name of plaintiff]'s exclusive right to possession of the property, by [specify briefly the acts alleged to constitute wrongful interference with [name of plaintiff]'s personal property];
3) [name of defendant] intended to perform the act that amounted to the unlawful interference with the personal property of [name of plaintiff]; and
4) [name of defendant] had no right to do the act that constituted the interference with the personal property of [name of plaintiff].

References

CV1203 Consent

[Name of defendant] asserts that [he/she/it] was given consent by [name of plaintiff] or [name of plaintiff]'s agent to [use/enter upon] [name of plaintiff]'s property, and that [name of defendant] is thus not liable for trespass.

[Name of defendant] is not liable for trespass if [he/she/it] can establish that [name of plaintiff] consented to the entry or encroachment upon the property, but only to the extent that the entire entry or encroachment was authorized.

Consent means permission to enter or encroach upon property was communicated. Consent can be expressed or implied.

References

Committee Notes

CV1204 Implied consent - custom and usage

[Name of defendant] asserts that [name of defendant] had the implied consent of [name of plaintiff] or [name of plaintiff]'s agent to [use/enter upon] [name of plaintiff]'s property, and that [name of defendant] is thus not liable for trespass.

Consent is an absolute defense to an action for trespass. Consent for [use of/entry upon] real property need not be expressly given but may be implied from the circumstances. The implied consent may be derived from custom, usage, or conduct. Therefore, [name of defendant] is not liable for trespass if [name of defendant] can show that:

1) [name of defendant] was a member of a category of persons for whom [use of/entry upon] the property would be considered customary or common;
2) [name of defendant]'s [use of/entry upon] [name of plaintiff]'s property was within the fair and reasonable bounds of the implied consent to [use/enter upon] the property; and
3) [name of plaintiff] did not indicate, either verbally or by posted signs on the property, that [name of plaintiff] did not consent to the entry.

References

CV1205 Damages - nominal damages

If you found that [name of defendant] trespassed [name of plaintiff]'s [real/personal] property, you may award economic, non-economic, or nominal damages to [name of plaintiff].

Even if you find that no actual damage was suffered by [name of plaintiff] as a result of [name of defendant]'s trespass, you may still award [name of plaintiff] a trivial amount, called "nominal damages," to compensate [name of plaintiff] for the invasion of [name of plaintiff]'s property rights. "Nominal damages" has been defined as a trivial sum such as one dollar.

References

Committee Notes

CV1206 Nuisance - introductory instruction

One person can interfere with the use or enjoyment of another person's property even without entering that other person's property. In some instances, the legal term for this is "nuisance."

In this case, [name of plaintiff] claims that [name of defendant], through [describe the conduct, action, or thing], has created a nuisance that has interfered with [name of plaintiff]'s use or enjoyment of [his/her/its] property.

[Name of plaintiff] claims that [name of plaintiff] has suffered harm as a result of this nuisance, and seeks to recover damages from [name of defendant] for that harm.

References

CV1207 Nuisance per se

The court has determined that, under the law, [name of defendant]'s conduct, [describe the conduct, action, or thing], constitutes a nuisance.

References

Committee Notes

CV1208 Statutory nuisance claim

You must decide whether [name of plaintiff] has established a claim under the nuisance statutes.

To establish such a claim, [name of plaintiff] must show that [name of defendant]'s [describe the conduct, action, or thing]:

1) Was indecent, injurious to health, offensive to the senses, or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property;
2) [name of defendant]'s conduct was unreasonable or unlawful; and
3) [name of plaintiff]'s property was injuriously affected or plaintiff's personal enjoyment was lessened by [describe the conduct, action, or thing].

References

Committee Notes

CV1209 Common law private nuisance claim

A private nuisance is any activity that substantially and unreasonably interferes with the use and enjoyment by another of that person's property, other than by entering upon it.

[Name of plaintiff] claims that [name of defendant] has interfered with [name of plaintiff]'s use and enjoyment of [name of plaintiff]'s property by [specify nature of alleged nuisance].

To establish [name of plaintiff]'s claim for private nuisance, you must find that:

1) [name of plaintiff] owned or possessed a legal interest in the real property that is the subject of this action];
2) [name of defendant] caused or was responsible for a substantial interference with [name of plaintiff]'s use and enjoyment of [name of plaintiff]'s property; and
3) [name of defendant]'s use of the property was either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable.

A "substantial interference" with [name of plaintiff]'s use and enjoyment of the land is typically one that results in substantial annoyance, discomfort, or harm. The degree of interference is measured by what would be offensive to a reasonable person, or to a person who has ordinary health and ordinary sensitivities.

An unintentional use that is "otherwise actionable" is generally one that is 1) negligent or reckless, or 2) that results in abnormally dangerous conditions or activities in an inappropriate place.

References

Committee Notes

CV1210 Statutory public nuisance claim

To establish [name of plaintiff]'s claim that defendant created a public nuisance, you must find:

1) The alleged nuisance consists of unlawfully doing any act or omitting to perform any duty;

2) [name of defendant]'s conduct was unreasonable;

3) The act or omission either:
a) Annoys, injures, or endangers the comfort, repose, health, or safety of three or more persons;
b) Offends public decency;
c) Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, any lake, stream, canal, or basin, or any public park, square, street, or highway; or
d) In any way renders three or more persons insecure in life or the use of property; and

4) [name of plaintiff] has suffered damages different from those of society at large.

An act or omission which affects three or more persons in any of the ways specified in this instruction is still a nuisance regardless of the extent of annoyance and regardless of whether the damage inflicted on individuals is unequal.

References

Committee Notes

CV1211 Damages for nuisance

If you determine that [name of defendant] is liable to [name of plaintiff] for nuisance, you must award some amount of damages. To determine the proper amount of damages, you must consider:

1) the degree of [name of defendant]'s interference in the use and enjoyment of [name of plaintiff]'s land; and
2) the reasonableness of the interference in the context of wider community interests.

Considering these factors and the evidence presented at trial, you may award damages that range from "nominal damages" up to an amount necessary to fully compensate name of plaintiff] for [name of plaintiff]'s economic and/or non-economic harm.

"Nominal damages" is an amount such as one dollar.

Economic and non-economic damages are defined in other instructions.

References

Committee Notes

CV1212 Non-economic damages for nuisance

In addition to any economic damages incurred by [name of plaintiff], you may also award damages for personal inconvenience, annoyance, and discomfort caused by the existence of a nuisance.

References

Committee Notes

CV1213 Reasonableness

[Name of defendant]'s [specify nature of alleged nuisance] may be "unreasonable" under circumstances where the harm caused by [name of defendant]'s [alleged nuisance] outweighs whatever benefit it may have to society, or the [alleged nuisance] is not suitable to the location.

To determine if [name of defendant]'s [alleged nuisance] is "reasonable" or "unreasonable," you may consider things such as the specific location where the nuisance is alleged to have occurred, when [name of defendant]'s [alleged nuisance] began, the nature and value of [name of defendant]'s [alleged nuisance], the character of the neighborhood, the extent and frequency of the injury to [name of plaintiff], and the effect on the enjoyment of [name of plaintiff]'s life, health, and property.

References

Committee Notes

CV1301 Section 1983 Claim--Elements.

To establish [his/her] claims under Section 1983, [name of plaintiff] must demonstrate, by a preponderance of the evidence, the following four elements:

First, that [name of defendant] had authority to act on behalf of the government;

Second, was acting or claiming to act in performance of [his/her] official duties;

Third, that this conduct deprived [name of plaintiff] of a right protected by federal law; and

Fourth, that [name of defendant]'s conduct was a cause of harm sustained by [name of plaintiff].

References

Committee Notes

Committee Amended

CV1302 Section 1983 Claim--Deprivation of Rights.

The second element of [name of plaintiff]'s claims is that [name of defendant]'s conduct deprived [him/her] of a right protected by federal law. [Name of plaintiff] claims in this case that [he/she] was deprived of [his/her] right to [list the right or rights].

I will explain [this/these] right[s]] later in the Instructions.

CV1303 Warrantless Arrest.

The Constitution prohibits the police from carrying out unreasonable seizures. An arrest is considered a "seizure" within the meaning of the Constitution. Under the Constitution an arrest may be made only when 1) a police officer has an arrest warrant, or 2) when a police officer has probable cause to believe that the person arrested has engaged in criminal conduct. An arrest without either an arrest warrant or probable cause is an unreasonable seizure.

[Name of plaintiff] claims that [he/she] was unlawfully arrested by [name of defendant] on [date]. [Name of defendant] did not have an arrest warrant. Therefore, you must determine whether [name of defendant] had probable cause to arrest [name of plaintiff].

Committee Notes

Committee Amended

CV1304 Probable Cause.

Probable cause does not require that the officer had proof beyond a reasonable doubt, or even proof by a preponderance of the evidence. Probable cause exists when an officer has knowledge of facts and circumstances that are of such weight and persuasiveness as to convince a prudent and reasonable person of ordinary intelligence, judgment, and experience that it is reasonably likely that a crime has been committed and the person arrested committed that crime.

The existence of probable cause is measured as of the moment of the arrest, not on the basis of later developments. Thus, the ultimate resolution of the criminal charges is irrelevant.

CV1304A Offenses at Issue.

You are to determine whether [name of defendant] had probable cause to believe [name of plaintiff] committed [any of] the following offense[s]:

1)

2)

3)

Committee Notes

CV1305 Unlawful Arrest--Any Crime.

It is not necessary that [name of officer[s]] had probable cause to arrest [name of plaintiff] for the offense with which [he/she] was charged, so long as [name of officer[s]] had probable cause to arrest [name of plaintiff] for some criminal offense.

CV1307 Reasonable Suspicion.

Reasonable suspicion means the officer was aware of specific facts that would lead a reasonable officer to conclude that the person in question committed a crime. The level of suspicion required for reasonable suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. But reasonable suspicion requires something more than a mere guess or hunch.

Whether an officer has reasonable suspicion is evaluated objectively under all of the circumstances known to the officer.

References

CV1307A Investigative Stop.

The Constitution permits a law enforcement officer to detain a person without arresting [him/her] if two requirements are met.

First, the officer must have reasonable suspicion that the person detained has committed a crime.

Second, the officer's actions must be reasonably limited in time and scope to the investigation of the suspected crime.

References

CV1308 Unreasonable or Excessive Force--Introductory Instruction.

[Name of plaintiff] claims that [name of officer] used excessive force in [arresting/stopping] [him/her]. Excessive force is unreasonable force.

[Name of officer] claims the force [s]he used in [arresting/stopping] [name of plaintiff] was reasonable. I will explain what force is reasonable in another instruction.

It is your duty to determine whether [name of plaintiff] has proved [his/her] claims against [name of officer] by a preponderance of the evidence.

Committee Amended

CV1309 Unreasonable or Excessive Force--Standard.

A person interacting with a law enforcement officer has a constitutional right to be free from unreasonable force. A police officer is entitled to use such force as is reasonably necessary to lawfully stop a person, take an arrested citizen into custody or prevent harm to the officer or others. A police officer is not allowed to use force beyond that reasonably necessary to accomplish these lawful purposes.

The test of reasonableness requires careful attention to the specific facts and circumstances of the case. The reasonableness of a particular use of force must be judged from the perspective of an officer on the scene rather than with the 20/20 vision of hindsight.

In determining whether [name of officer] used unreasonable force with [name of plaintiff], you should consider all the facts known to [name of officer] at the time [he/she] applied the force. You are not to consider facts unknown to [name of officer] at the time [name of officer] applied force to [name of plaintiff].

You are not to consider [name of officer]'s intentions or motivations, whether good or bad. An officer's evil intentions will not make a constitutional violation out of a reasonable use of force. Likewise, an officer's good intentions will not make an unreasonable use of force constitutional.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV1310 Search of Property--Definition.

Search has a special meaning under the law. A "search" of property occurs if a [government actor] intrudes into an area in which a person would have a reasonable expectation of privacy.

References

CV1311 Search of Property--Constitutional Right.

A person has a constitutional right to be free from an unreasonable [search/entry] of [his/her] [property]. To prove [name of defendant(s)] violated [name of plaintiff]'s constitutional right, [name of plaintiff] must prove the following by a preponderance of the evidence:

1. [Name of defendant(s)] [searched/entered] [name of plaintiff]'s [property];

2. [Name of defendant(s)] intended to [search/enter] the [property]; and

3. The [search/entry] was not "reasonable."

"Reasonable" has a special meaning under the law. I will now instruct you on what "reasonable" means.

References

Committee Notes

CV1312 Lawful Search of Real Property.

A search of real property is reasonable if:

1. The officer has a valid warrant;

2. The officer has obtained consent; or

3. The officer has probable cause, and exigent circumstances exist.

References

Committee Notes

CV1313 Consent.

Consent is permission for something to happen, or an agreement to do something. Consent must be freely given, but it may be either expressly stated or implied by the circumstances. [Name of defendant] has the burden to prove by a preponderance of the evidence that the officer reasonably believed based on all of the circumstances that [name of plaintiff] consented to the search.

References

Committee Notes

CV1314 Probable Cause--Search of Residence.

Probable cause to search exists when the facts and circumstances known to the officer, based on reasonably trustworthy information, are such that a reasonable officer would believe that [contraband], [evidence of a crime], [criminal activity], or [the subject of an arrest warrant] will be found in the residence.

References

Committee Notes

CV1315 Exigent Circumstances.

Exigent circumstances exist when an officer, acting on probable cause and in good faith, reasonably believes, based on all of the circumstances known to the officer at the time, that the delay in getting a search warrant will result in

(1) [evidence or contraband being destroyed immediately];

(2) [an officer or another person being placed in immediate danger]; or

(3) [a suspect potentially escaping].

References

Committee Notes

CV1316 Seizures of Property.

Seizure has a special meaning under the law. A "seizure" of property occurs when a [government actor] [takes/removes] a person's property or otherwise interferes in a meaningful way with a person's right to possess that property.

References

CV1317 Entry of Residence Pursuant to Arrest Warrant.

To lawfully enter a residence based on an arrest warrant, the officer must have reason to believe at the time of entry that 1) the person named in the arrest warrant was living at that residence; and 2) that person was actually in the residence at the time.

References

Committee Notes

CV1318 Protective Security Sweep.

If an officer has lawfully entered a residence based on an arrest warrant, the officer is allowed to conduct a "protective security sweep" if the officer has reasonable suspicion that a person posing danger to the officer or others is in the area to be searched.

A "protective security sweep" is a limited search of the residence for the sole purpose of securing the officers' safety during the arrest. It is a limited inspection of just those spaces where a person may be found.

An arrest warrant does not authorize any search greater than a protective security sweep.

References

CV1319 Validity of Search Warrant Application.

In this case, [name of plaintiff] claims that, even though the search was based on a search warrant, the search was nonetheless unconstitutional. In order to prevail on this claim, [name of plaintiff] must prove by a preponderance of the evidence that:

1) at the time of the search warrant application, [name of defendant officer(s)] knowingly, intentionally, or with reckless disregard for the truth omitted information from or included false statements in the application, and

2) the information, if accurately included, would have changed the magistrate's decision to issue the warrant.

References

Committee Notes

CV1401 Elements of a Claim for Intentional Interference with Economic Relations.

[Name of plaintiff] claims that [name of defendant] intentionally interfered with [name of plaintiff]'s economic relations. To award damages for this claim, [name of plaintiff] must prove three things:

(1) That [name of defendant] intentionally interfered with [an existing] or [a potential] economic relationship that [name of plaintiff] had;

(2) That [name of defendant] did so by improper means; and

(3) That [name of defendant]'s interference caused harm to [name of plaintiff].

References

MUJI 1st Instruction

Committee Notes

CV1402 "Economic Relationship" Defined.

An economic relationship exists when [name of plaintiff] has a reasonable expectation of economic benefit from [his/her/its] relationship with one or more third parties. This expectation must be present at the time of the interference.

An economic relationship can be based upon an existing contract but does not have to be. It is enough if you find that there were either dealings or a course of conduct between [name of plaintiff] and [name of third party] from which [name of plaintiff] had a reasonable expectation of economic benefit. The expected benefit must be likely to occur but does not have to be a certainty.

References

MUJI 1st Instruction

Committee Notes

CV1403 "Intentionally Interfered" Defined.

You must next determine whether [name of defendant] intentionally interfered with [name of plaintiff]'s [existing] or [potential] economic relationship. For [name of defendant] to have intentionally interfered with an existing or potential economic relationship of [name of plaintiff], [name of defendant] must have

1) acted for the purpose of interfering with that relationship or

2) acted knowing that the interference was substantially certain to occur as a result of [his/her/its] actions.

References

Committee Notes

CV1404 "Improper Means" Defined.

The second element of [name of plaintiff]'s claim is that [name of defendant] interfered with [name of plaintiff]'s existing or potential economic relations by improper means. "Improper means" is defined as action that was contrary to law or violated an established standard of a trade or profession. [Name of plaintiff] claims the improper means [was/were] [state the means].

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV1405 Defenses: Privilege.

[Name of defendant] claims that [his/her/its] actions in interfering with [name of plaintiff]'s economic relations were privileged [Name of defendant] claims that [his/her/its] conduct was privileged under the [describe the privilege]. [Name of defendant] must prove the following: [Describe the elements of the privilege.] To the extent you find [name of defendant]'s actions were subject to a privilege, you cannot find those actions to be an "improper means."

References

MUJI 1st Instruction

Committee Notes

CV1406 Damages.

If you find that [name of the defendant] intentionally interfered with [name of plaintiff]'s economic relations, then you should award [name of the plaintiff] damages that will reasonably compensate for any harm [name of the plaintiff] has suffered because of the interference with economic relations.

References

MUJI 1st Instruction

Committee Notes

CV1407 Damages: Lost Profits.

To award damages for lost profits, you must have a reasonable basis for calculating them. Although past profits cannot be taken as an exact measure of future or anticipated profits, you may consider the past profits and losses of the plaintiff's business in determining lost future profits. You may also consider any increase or decrease in business that might have been reasonably expected if there had been no interference.

References

MUJI 1st Instruction

CV1501 Intentional infliction of emotional distress.

To prove a claim for intentional infliction of emotional distress, [name of plaintiff] must prove each of the following elements:

References

CV1502 Outrageous conduct.

"Outrageous and intolerable" conduct is conduct that offends generally accepted standards of decency and morality or, in other words, conduct that is so extreme as to exceed all bounds of what is usually tolerated in a civilized community. Conduct that is merely unreasonable, unkind, or unfair does not qualify as outrageous and intolerable conduct.

References

CV1503 Severe or extreme emotional distress.

Emotional distress may include such things as mental suffering, mental anguish, mental or nervous shock, or highly unpleasant reactions, such as fright, horror, grief, or shame. However, you can award damages for emotional distress only when the distress is severe or extreme.

References

Committee Notes

Committee Amended

CV1504 Definition of intent and reckless disregard.

[Name of plaintiff] must show that [name of defendant] either (1) acted with the intent of inflicting emotional distress, or (2) with no intent to cause harm, intentionally performed an act so unreasonable and outrageous that [name of defendant] knew or should have known it was highly probable that harm would result.

References

CV1505 Negligent infliction of emotional distress-Direct victim.

In order to recover for negligent infliction of emotional distress, [name of plaintiff] must prove all of the following:

References

Committee Notes

Committee Amended

CV1506 Negligent infliction of emotional distress-Bystander

In order to recover for negligent infliction of emotional distress, [name of plaintiff] must prove all of the following:

1. [name of defendant] engaged in conduct that [he/she] should have realized involved an unreasonable risk of causing emotional distress to others,
2. [name of defendant] should have realized that [his/her] conduct could cause the sort of emotional distress that might result in illness or bodily harm;
3. [name of defendant]'s conduct unintentionally caused actual physical harm to a third party;
4. [name of plaintiff] actually witnessed the third party sustain physical harm;
5. [name of plaintiff] was within the zone of danger; and
6. [name of defendant]'s conduct caused [name of plaintiff] to sustain severe emotional distress, characterized by illness or bodily harm.

References

Committee Amended

CV1507 Definition of "zone of danger."

To be within the "zone of danger," [name of plaintiff] must be in such close proximity to a threat of harm created by [name of defendant]'s negligent conduct that [he/she] is placed in actual physical peril.

References

Committee Amended

CV1601 Introductory Notes to Practitioners (not to be read to the jury).

The law of defamation is unique. Although defamation is a common law tort, it is bounded by protections for free speech embodied in the First Amendment to the United States Constitution and Article I, sections 1 and 15 of the Utah Constitution. These instructions are based on the law of defamation as interpreted by the Utah courts and, in certain areas, by governing precedent of the United States Supreme Court.

CV1602 Elements of a Defamation Claim.

[Name of plaintiff] claims that [name of defendant] defamed [him/her]. To succeed on this claim, [name of plaintiff] must prove the following elements:

References

MUJI 1st Instruction

Committee Notes

CV1603 Definition: Publication.

[Name of plaintiff] must prove [name of defendant] "published" the allegedly defamatory statements. Publication means [name of defendant] communicated the statements to a person other than [name of plaintiff]. Publication can be oral, written, or non-verbal if a person's non-verbal conduct or actions specifically communicate facts about the plaintiff. "Written" statements include statements that are communicated electronically or digitally.

References

MUJI 1st Instruction

Committee Notes

CV1604A Definition: About the Plaintiff - Public Figure or Public Official Plaintiff - Connection to Plaintiff is Reasonable.

[Name of plaintiff] must prove that each allegedly defamatory statement referred to [him/her].

References

MUJI 1st Instruction

Committee Notes

CV1604B Definition: About the Plaintiff - Private Plaintiff - Matter of Public Concern - Connection to Plaintiff is Reasonable.

[Name of plaintiff] must prove that each allegedly defamatory statement referred to [him/her].

References

MUJI 1st Instruction

Committee Notes

CV1604C Definition: About the Plaintiff - Private Plaintiff - No Matter of Public Concern - Connection to Plaintiff is Reasonable - Negligence.

[Name of plaintiff] must prove that each allegedly defamatory statement referred to [him/her].

References

MUJI 1st Instruction

Committee Notes

CV1604D Definition: About the Plaintiff - Private Plaintiff - No Matter of Public Concern - Connection to Plaintiff is Reasonable - Strict Liability.

[Name of plaintiff] must prove that each allegedly defamatory statement referred to [him/her].

References

MUJI 1st Instruction

Committee Notes

CV1604E Definition: About the Plaintiff - Connection to Plaintiff is Unreasonable.

[Name of plaintiff] must prove that each allegedly defamatory statement referred to [him/her].

References

MUJI 1st Instruction

Committee Notes

CV1605 Definition: False Statement.

The allegedly defamatory statement must state or imply facts which can be proved to be false. [[Name of plaintiff] must show the statement to be false.] [[Name of Defendant] can defeat a defamation claim by showing the statement to be true.]

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV1606 Definition: Opinion.

A statement that expresses a mere opinion or belief rather than a verifiable statement of fact is protected by the Utah Constitution and cannot be used to support a defamation claim. A statement of an opinion can be the basis of a defamation claim only when the statement implies [a fact/facts] that [name of plaintiff] shows [is/are] false and defamatory. I have determined that the following statement(s) [is/are] statements of opinion: [insert specific statement(s).]

You must determine whether any particular statement of opinion implies one or more facts that are both false and defamatory.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV1607 Definition: Defamatory.

To support a defamation claim, [name of plaintiff] must prove the statement at issue is defamatory. A statement may be false but not necessarily defamatory. A statement is defamatory if it calls into question a person's honesty, integrity, virtue, or reputation and thereby exposes that person to public hatred, contempt, or ridicule in the eyes of the person to whom it is published or, if published to more than one person, to at least a substantial and respectable minority of its audience. A statement is not necessarily defamatory if it reports only that a person did things that you would not have done, or things of which you or other people might disapprove. A publication that is merely unpleasant, embarrassing, or uncomplimentary is not necessarily defamatory.

References

MUJI 1st Instruction

Committee Notes

CV1608 Conditional Privilege.

An otherwise defamatory statement cannot support a defamation claim if the statement is privileged. I have already determined that the statements [insert privileged statements] are covered by the [insert] privilege recognized under Utah law. The purpose of the [insert] privilege is [insert]. This privilege protects allegedly defamatory statements [insert applicable description].

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV1609 Non-actionable Statements.

During trial, you may have heard evidence about certain statements made by [name of defendant] that I have determined are not defamation. Specifically, you may have heard evidence of the following statements: [insert specific non-actionable statements].

Even though you heard evidence of them, you are instructed that those statements are not defamation, but you may consider them for other purposes.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV1610 Definition: Requisite Degree of Fault - Private Figure - Matter of Public Concern.

I have already determined that [name of plaintiff] is a private figure and that the subject matter of the allegedly defamatory statements pertains to a matter of public concern. As a result, [name of plaintiff] cannot recover on [his/her/its] defamation claim unless you find [he/she/it] has proved by a preponderance of the evidence that [name of defendant] made the allegedly defamatory statements with negligence. To prove negligence, [name of plaintiff] must prove that at the time [name of defendant] made the allegedly defamatory statements, [name of defendant] did not take reasonable care to avoid the publication of statements that are substantially false. Reasonable care is the degree of care and caution or attention that a reasonable person would use under similar circumstances.

References

MUJI 1st Instruction

Committee Notes

CV1611 Definition: Requisite Degree of Fault -Public Official or Public Figure.

I have already determined that [name of plaintiff] is a [public official, general purpose public figure, or limited purpose public figure]. As a result, [name of plaintiff] cannot recover on [his/her/its] defamation claim unless you find that [he/she/it] has proved by clear and convincing evidence that [name of defendant] made the allegedly defamatory statements with actual malice. To prove actual malice, [name of plaintiff] must prove that at the time [name of defendant] made the allegedly defamatory statements, [name of defendant] had actual knowledge the statements were false or actually entertained serious doubts as to whether the statements were true. The question is not whether a reasonable person would have known that the statements were false or entertained serious doubts about their truth, but whether [name of defendant] actually had such knowledge or doubts at the time of publication.

References

MUJI 1st Instruction

Committee Notes

CV1612 Group Defamation Rule.

To be actionable, a defamatory statement must refer to [name of plaintiff]. In general, statements that refer only to a group or class of people are not actionable. [Name of plaintiff] can maintain a defamation claim based on such a statement if and only if [he/she/it] shows either:

References

MUJI 1st Instruction

Committee Notes

CV1613 Causation.

In order to prove a claim for defamation, [name of plaintiff] must prove by a preponderance of the evidence that the allegedly defamatory statement[s] caused damage to [name of plaintiff].

References

MUJI 1st Instruction

Committee Notes

CV1614 Presumed Damages.

I have determined that the following statement[s] [is a/are] statement[s] that the law presumes will cause some type of damages to the plaintiff: [text of statement]. If you find that [name of plaintiff] has proved by a preponderance of the evidence that [name of defendant] published that statement, you may presume that [name of plaintiff] has been damaged and thus is entitled at least to nominal damages. The term "nominal damages" means an insignificant amount, such as one dollar. If [name of plaintiff] seeks more than nominal damages, [he/she/it] must prove the amount of damage.

References

MUJI 1st Instruction

Committee Notes

CV1615 Damages - Economic Damages.

Economic damages are awarded to compensate a plaintiff for actual and specific monetary losses that are caused by the publication of a defamatory statement. Economic damages are out-of-pocket losses and can include such things as loss of salary, employment, income, business, and other similar economic losses. [Name of plaintiff] must prove each item of economic damages with specific evidence.

References

MUJI 1st Instruction

Committee Notes

CV1616 Damages - Noneconomic Damages.

Noneconomic damages are awarded to compensate a plaintiff for actual injury to [his/her/its] reputation that is caused by publication of a defamatory statement, but that has not been compensated by economic damages. Noneconomic damages do not include specific monetary losses covered by economic damages. Factors you may consider in calculating non-economic damages are harm to reputation, impaired standing in the community, humiliation, shame, mental anguish and suffering, emotional distress and related physical injury, and other similar types of injuries. In making this determination, you may consider the state of [name of plaintiff's] reputation prior to the alleged defamation.

References

MUJI 1st Instruction

Committee Notes

CV1617 Damages - Punitive Damages - Public Figure/Official and/or Issue of Public Concern.

In addition to compensatory damages, [name of plaintiff] also seeks to recover punitive damages against [name of defendant]. Punitive damages are intended to punish a wrongdoer for extraordinary misconduct and to discourage others from similar conduct. They are not intended to compensate [name of plaintiff] for [his/her/its] loss.

References

MUJI 1st Instruction

Committee Notes

CV1618 Damages - Effect of Retraction.

If you find the allegedly defamatory statement[s] [was/were] [published in the newspaper] [broadcast on radio or television] by [name of defendant] in good faith, due to a mistake or misunderstanding of the facts, and that [name of defendant] made a full and fair retraction of the statements within [the time prescribed by statute] of [name of plaintiff]'s demand for a retraction or filing of this lawsuit by [the method prescribed by statute], then [name of plaintiff] may recover only those actual damages incurred by [name of plaintiff] as a direct result of the [publication] [broadcast] of the allegedly defamatory statements and no punitive damages may be awarded.

References

MUJI 1st Instruction

Committee Notes

CV1619 Affirmative Defense - Consent.

Consent is an absolute defense to a claim for defamation. That means if [name of defendant] proves by a preponderance of the evidence that [name of plaintiff] consented, by words or conduct, to [name of defendant]'s communication of the statement[s] at issue to others, there is no liability for defamation.

References

MUJI 1st Instruction

Committee Notes

CV1620 Affirmative Defense - Statute of Limitations.

An action for defamation must be filed within one year of the time that [name of plaintiff] could have reasonably discovered publication of the statement. You must decide when [name of plaintiff] could have reasonably discovered the alleged defamatory statement.

References

MUJI 1st Instruction

Committee Notes

CV1801 Elements of fraud.

[Name of plaintiff] claims that [name of defendant] defrauded [him] by making a false [oral/written], statement of fact that caused [him] harm. To succeed in this claim, [name of plaintiff] must prove each of the following by clear and convincing evidence:

(1) [name of defendant] made a false statement about an important fact; and

(2) either [name of defendant] made the statement knowing it was false, or [he] made the statement recklessly and without regard for its truth; and

(3) [name of defendant] intended that [name of plaintiff] would rely on the statement; and

(4) [name of plaintiff] reasonably relied on the statement; and

(5) [name of plaintiff] suffered damages as a result of relying on the statement.

I will provide you with more information about each of these in the following instructions.

References

MUJI 1st Instruction

Committee Notes

CV1802 Elements of negligent misrepresentation.

[Name of plaintiff] claims [he] was harmed when [name of defendant] negligently misrepresented an important fact. To succeed in this claim [name of plaintiff] must prove that:

(1) [name of defendant] represented to [name of plaintiff] that an important fact was true;

(2) [name of defendant]'s representation of fact was not true;

(3) [name of defendant] failed to use reasonable care to determine whether the representation was true;

(4) [name of defendant] was in a better position than [name of plaintiff] to know the true facts;

(5) [name of defendant] had a financial interest in the transaction;

(6) [name of plaintiff] relied on the representation and it was reasonable for [him] to do so; and

(7) [name of plaintiff] suffered damage as a result of relying on the representation.

References

Committee Notes

CV1803 Reckless false statement.

A false statement is made recklessly if [name of defendant] knew that [he] did not have sufficient knowledge to make the statement.

References

MUJI 1st Instruction

CV1804 Recovery for misrepresentation of fact.

You must decide whether the defendant's statement was a representation of fact as opposed to an opinion. Generally, a plaintiff may recover for fraud only if the defendant's statements were misrepresentations of facts.

References

MUJI 1st Instruction

CV1805 Promises and statements of future performance.

A promise about a future act is a false statement of fact if [name of plaintiff] proves that [name of defendant]:

(1) never intended to keep the promise; and

(2) made the promise for the purpose of deceiving [name of plaintiff].

References

MUJI 1st Instruction

CV1806 Important statement of fact.

A statement of fact is important if knowing that it is false would influence a reasonable person's judgment, or [his] decision to act or not to act.

References

MUJI 1st Instruction

CV1807 Duty to speak the whole truth.

If [name of defendant] made a statement, then [he] had a duty to tell the truth about the matter, to make a fair disclosure, and to prevent a partial statement from being misleading or giving a false impression.

References

CV1808 Intent to induce reliance.

You must decide whether [name of defendant] intended [name of plaintiff] to rely on a false statement, even though [name of defendant] did not make it directly to [name of plaintiff].

[Name of defendant] intended [name of plaintiff] to rely on the false statement if

[(1) [Name of defendant] made the statement to a group of people that included [name of plaintiff]].

[(2) [Name of defendant] made the statement to another person, with the intent or the belief that it would be communicated to [name of plaintiff]].

References

MUJI 1st Instruction

Committee Notes

CV1809 Intent.

Intent ordinarily cannot be proved directly because there is no way to read people's minds. However, you may determine intent from the surrounding circumstances and find that [name of defendant] intended the natural and probable consequences of acts done knowingly. You may consider any statement made or acts done by [name of defendant] and all other facts and circumstances that may show intent.

References

CV1810 Reasonable reliance.

In deciding whether [name of plaintiff]'s reliance on the false statement was reasonable, you must take into account all relevant circumstances, such as [his] age, mental capacity, knowledge, experience, and [his] relationship to [name of defendant].

References

MUJI 1st Instruction

CV1811 Concealment or fraudulent non-disclosure.

I have determined that [name of plaintiff] was in a [type of relationship] that gave [name of defendant] a duty to disclose an important fact to [name of plaintiff]. You must decide whether [name of defendant] failed to disclose an important fact. To establish that [name of defendant] failed to disclose an important fact, [name of plaintiff] must prove all of the following:

(1) that [name of defendant] knew [describe the important fact] and failed to disclose it to [name of plaintiff];

(2) that [name of plaintiff] did not know [describe the important fact]; and

(3) that [name of defendant]'s failure to disclose [describe the important fact] was a substantial factor in causing [name of plaintiff]'s damages.

References

Committee Notes

CV1812 Compensatory damages.

If you decide that [name of defendant] defrauded [name of plaintiff], then you must also decide how much money is needed to fairly compensate [name of plaintiff] for any damages caused by the fraud.

You may award damages for the harm [name of plaintiff] experienced because of [name of defendant]'s fraud as long as you determine that the damages were reasonably foreseeable, and that [name of plaintiff] has proven these damages with reasonable certainty. [Name of plaintiff] claims the following damages:

[(1) the difference between the value of the property that [name of plaintiff] [bought/sold] and the value the same property would have had if [name of defendant]'s statements about it had been true.]

[(2) loss of good will;]

[(3) expenditures in mitigation of damages;]

[(4) lost earnings;]

[(5) loss of interest on loans required to finance [describe the loss]]

[(6) lost profits;]

[(7) emotional distress;]

[(8) describe other items claimed.]

References

MUJI 1st Instruction

Committee Notes

CV1899 Special verdict form.

Please answer the following questions based on the instructions the court has given you.

(1) Do you find by clear and convincing evidence that [name of defendant] committed fraud on [name of plaintiff]?

Yes_____ No_____

(2) If you answered "yes" to question (1), do you find by clear and convincing evidence that such conduct was a cause of damage to [name of plaintiff]?

Yes_____ No_____

(3) If you answered "yes" to question number (2), what if any damages do you award [name of plaintiff]? (Counsel should specify the type of economic and non-economic damages so the judge can calculate prejudgment interest.)

Economic Damages $_______

Non-Economic Damages $_______

______________________ ______________________________

Date Jury Foreperson

CV1901 Injurious Falsehood-Introductory Notes to Practitioners (not to be read to the jury).

The tort of injurious falsehood encompasses two related claims known at common law as "slander of title" and "trade libel." "Slander of title has traditionally addressed statements casting doubt upon the fact or the extent of a plaintiff's ownership of property, most often real estate... More recently, slander of title has been expanded to apply to interests other than title and to property other than land." 2 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems sect. 13:1.1 (4th ed. 2016) (hereinafter, "Sack on Defamation"). "The tort of disparagement of quality, or 'trade libel,' developed from slander of title. It provides compensation for false derogatory statements about the quality, rather than the ownership, of property, most often a product or service being sold." Id. "In both cases it is the plaintiff's interest in property, real or personal, tangible or intangible, that is protected." Id. Because both claims involve essentially the same elements, the only difference being whether the injurious statements concern ownership or quality of property, they are treated together as a claim for injurious falsehood.

The use of "slander" and "libel" is largely anachronistic. Disparagement of property can be either oral (slander) or written (libel), or even non-verbal-and the same is true of trade libel (sometimes called "business disparagement"). Given the confusion associated with these common law terms, these instructions refer to both types of claims as "injurious falsehood."

Injurious falsehood shares a vocabulary with the tort of defamation. "However, despite the similarity in the names of the torts, there is a basic distinction between the two. They protect separate and unrelated interests. The tort of slander of title and the related tort of disparagement of property are based on an intentional interference with economic relations. They are not personal torts; unlike slander of the person, they do not protect a person's reputation." Bass v. Planned Mgmt. Servs., Inc., 761 P.2d 566, 568 (Utah 1988); see also Sack on Defamation sect. 13:1.4[B] ("The law of defamation protects the personal reputation of the defamed party; the law of business or commercial disparagement, or injurious falsehood, protects the economic interests of the injured party."). "[I]njurious falsehood is a far more difficult cause of action than defamation to sustain, because it is an action only for special damages caused by the false statement, and the burden of proving falsity, damages, and 'malice' in its many forms is generally higher than in defamation." Sack on Defamation sect. 13:1.4[A].

Nonetheless, despite the different interests protected by defamation and injurious falsehood, many courts and commentators have recognized that the First Amendment protections incorporated into defamation law should apply with equal force to an injurious falsehood claim, as both torts implicate freedom of speech. As one commentator has put it, "[t]here is no reason to accord lessened protection because the plaintiff's claim is denominated 'disparagement,' 'trade libel,' or 'injurious falsehood' rather than 'libel' or 'slander' or because the injury is to economic interests rather than to personal reputation. Since only economic injury and not injury to reputation and psyche is at issue, perhaps the balance should tip even further to the side of free expression." Sack on Defamation sect. 13:1.8. In Utah, this remains an open question because neither the United States Supreme Court nor the Utah appellate courts have ever addressed whether the constitutional protections of defamation apply to injurious falsehood. The issue has, however, been addressed by a federal district court in Utah. See SCO Grp., Inc. v. Novell, Inc., 692 F. Supp. 2d 1287, 1293 (D. Utah 2010) ("Having reviewed the relevant authority, the Court finds that slander of title claims are subject to the First Amendment."); cf. Jefferson Cnty. Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848 (10th Cir. 1999) (applying First Amendment opinion protection to injurious falsehood claim under Colorado law); Bose Corp. v. Consumers Union of United States, Inc., 508 F. Supp. 1249 (D. Mass 1981) (applying First Amendment actual malice standard to product disparagement claim), rev'd on other grounds, 692 F.2d 189 (1st Cir. 1982), aff'd, 466 U.S. 485 (1984); SIRQ, Inc. v. Layton Cos., 2016 UT 30, para. 50, 379 P.3d 1237 ("[F]alse light claims that arise from defamatory speech raise the same First Amendment concerns as are implicated by defamation claims."). Because application of the First Amendment to injurious falsehood remains an open question in Utah, the Committee has not drafted these instructions to incorporate the constitutional requirements of defamation law. However, should a party wish to argue for such protections, the modifications to these instructions would not be extensive. This is because, in Utah, the "malice" element of injurious falsehood already requires a plaintiff to prove the defendant published statements with actual knowledge of falsity. See Dillon v. S. Mgmt. Corp. Ret. Trust, 2014 UT 14, para.para. 35-36, 326 P.3d 656. This is not the rule in all jurisdictions, some of which allow "malice" for injurious falsehood to consist of common law malice, or ill will, at least in private figure cases. See Sack on Defamation sect. 13:1.4[E].

The Utah standard of malice for injurious falsehood, therefore, is already higher than the standard for constitutional "actual malice" set forth in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), which must be met in public official and public figure defamation cases, and which can be satisfied either by actual knowledge of falsity or reckless disregard for the truth. As a result, in Utah there is no need to distinguish between the types of plaintiffs in injurious falsehood cases, nor to include a separate instruction on punitive damages. In addition, there is no need for an instruction on conditional privilege, as conditional privileges are abused and vitiated by actual malice. See Ferguson v. Williams & Hunt, Inc., 2009 UT 49, para. 28, 221 P.3d 205.

Were the full scope of First Amendment protections from defamation law to apply to injurious falsehood claims, the Committee anticipates only two potentially necessary modifications to these instructions. First, under Sullivan, actual malice must be proven by clear and convincing evidence in public official and public figure cases. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). Second, although the United States Supreme Court has never explicitly said so, the same heightened standard may apply in public plaintiff cases to the standard for falsity. See CV1605 (Definition: False Statement), Committee Notes. The below instructions do not specify a standard of proof other than preponderance of the evidence, but they could be modified in an appropriate case to be consistent with the constitutional standards of proof for defamation claims.

Finally, although Utah courts have not directly addressed the issue, it is generally acknowledged that "the absolute privileges that apply to defamation actions apply also to injurious falsehood suits." Sack on Defamation sect. 13:1.5[A]; see also Restatement (Second) of Torts sect. 635 (1977) ("The circumstances under which there is an absolute privilege to publish an injurious falsehood are in all respects the same as those under which there is an absolute privilege to publish matter that is personally defamatory"). Examples of absolute privileges include, but are not limited to, the judicial proceedings privilege, see DeBry v. Godbe, 1999 UT 111, 992 P.2d 979, and the legislative proceedings privilege, see Riddle v. Perry, 2002 UT 10, 40 P.3d 1128. In the injurious falsehood context, other courts have found privileged "the filing of a lis pendens, a mechanic's lien, or a judgment[.]" Sack on Defamation sect. 13:1.5[A] (footnote citations omitted). Whether a statement is privileged, however, is typically a question for the court, not the jury, to decide. See Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 900 (Utah 1992); see also CV1608 (Conditional Privilege). Therefore, as with the MUJI 2d instructions for defamation, see CV1608 (Conditional Privilege), Committee Notes, the Committee has not included an instruction on absolute privilege. If, during trial, the jury has heard evidence of statements the court has determined are absolutely privileged, and there is some concern the jury may assume those statements are actionable, the parties may wish to use CV1909 (Non-actionable Statements).

Utah statutes may provide additional remedies for conduct that also constitutes injurious falsehood. Utah Code sect.sect. 38-9-101, et seq., and Utah Code sect.sect. 38-9a-101, et seq., for example, provide remedies for the recording of wrongful liens, which may also be actionable as slander of title. See, e.g., Rehn v. Christensen, 2017 UT App 21, 392 P.3d 872 (analyzing statutory and common law claims). These instructions deal only with the common law tort of injurious falsehood and are not intended to be used for any related or overlapping statutory claims.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV1902 Elements of an Injurious Falsehood Claim.

[Name of plaintiff] claims that [name of defendant] injured [him/her] by publishing one or more statements known as "injurious falsehoods." To succeed on this claim, [name of plaintiff] must prove the following elements:

(1) [name of defendant] published statement(s) that disparaged
(a) the quality of [name of plaintiff's] [property, goods, or services]; or
(b) [name of plaintiff's] property rights in [land, personal property, or intangible property];

(2) the statements were false;

(3) the statements were made with malice; and

(4) the statements caused specific monetary loss to [name of plaintiff].

Some of these words have special meanings, and they will be explained in the following instructions.

References

MUJI 1st Instruction

Committee Notes

CV1903 Definition: Publication.

[Name of plaintiff] must prove [name of defendant] "published" the alleged injurious falsehoods. Publication means [name of defendant] communicated the statements to a person other than [name of plaintiff]. Publication can be oral, written, or non-verbal if a person's non-verbal conduct or actions specifically communicate the injurious falsehoods. "Written" statements include statements that are communicated electronically or digitally.

References

MUJI 1st Instruction

Committee Notes

CV1904 Disparaging Statement.

I have already determined that the following statement(s) is/are capable of having a disparaging meaning: [insert statements].

You must determine whether the person to whom the statement(s) [was/were] published actually understood the statement(s) in [its/their] disparaging sense. You must also determine whether that person understood the statement(s) as referring to [name of plaintiff's] [interests]. "Published" has a special meaning and is defined in the previous instruction.

A statement is disparaging when it
(a) calls into question in a negative way the quality of [name of plaintiff's] property, goods, or services; or
(b) casts doubt on [name of plaintiff's] property rights. Property rights can mean an interest in land, personal property, or other types of property.

Some statements may convey more than one meaning. For example, a statement may have one meaning that is disparaging and another meaning that is not. To support an injurious falsehood claim, [name of plaintiff] must prove, for any particular statement, that someone to whom the statement was published actually understood it in its disparaging sense and understood it as referring to [name of plaintiff's] [interests]. If no one actually understood a particular statement in its disparaging sense and as referring to [name of plaintiff's] [interests], then that statement cannot be used to support an injurious falsehood claim.

References

MUJI 1st Instruction

Committee Notes

CV1905 Definition: False Statement.

The allegedly injurious statement must state or imply facts which can be proved to be false, and [name of plaintiff] must show the statement to be false.

"False" means that the statement is either directly untrue or that it implies a fact that is untrue. In addition, the statement must be materially false. A statement is "materially false" if it is false in a way that matters; that is, if it has more than minor or irrelevant inaccuracies.

A true statement cannot be the basis of an injurious falsehood claim, no matter how annoying, embarrassing, damaging, or insulting it may be. To be considered "true" in an injurious falsehood case, a statement need not be completely accurate. The statement need only be substantially true, which means the gist of the statement is true.

You should determine the truth or falsity of the statement according to the facts as they existed at the time [name of defendant] published the statement.

References

MUJI 1st Instruction

Committee Notes

CV1906 Definition: Opinion.

A statement that expresses a mere opinion or belief rather than a verifiable statement of fact is protected by the Utah Constitution and cannot be used to support an injurious falsehood claim. A statement of an opinion can be the basis of an injurious falsehood claim only when the statement implies [a fact/facts] that [name of plaintiff] shows [is/are] both false and disparaging. I have determined that the following statement(s) [is/are] statements of opinion: [insert specific statement(s).]

You must determine whether any particular statement of opinion implies one or more facts that are both false and disparaging.

References

MUJI 1st Instruction

Committee Notes

CV1907 Definition: Malice.

You must determine whether [name of plaintiff] has proved that the statements at issue were published with "malice." Malice in this context does not mean simply ill will or spite, as the word is commonly understood. Rather, to show that [name of defendant] published the injurious statements with malice, [name of plaintiff] must prove:

(1) [name of defendant] actually knew the injurious statements were false when [he/she/it] published them; and

(2) [name of defendant] either:
(a) intended to injure [name of plaintiff] by publishing the statements; or
(b) reasonably should have expected that the statements would injure [name of plaintiff].

References

MUJI 1st Instruction

Committee Notes

CV1908 Economic Damages.

[Name of plaintiff] must prove that the alleged injurious statements directly caused [him/her/it] economic damages. Economic damages are specific monetary losses.

In this case, [name of plaintiff] alleges economic damages of [list the specific monetary losses].

[A reduction in estimated value of property that [name of plaintiff] continues to own does not constitute a specific monetary loss.]

References

MUJI 1st Instruction

Committee Notes

CV1909 Non-actionable Statements.

During trial, you may have heard evidence of certain statements made by [name of defendant] that I have determined are not injurious falsehoods. Specifically, you may have heard evidence of the following statements [insert specific non-actionable statements].

Even though you heard evidence of them, you are instructed that those statements are not injurious falsehoods, but you may consider them for other purposes.

References

MUJI 1st Instruction

Committee Notes

CV2001 Introduction to tort damages. Economic and noneconomic damages introduced.

I will now instruct you about damages. My instructions are given as a guide for calculating what damages should be if you find that [name of plaintiff] is entitled to them. However, if you decide that [name of plaintiff] is not entitled to recover damages, then you must disregard these instructions.

If you decide that [name of defendant]'s fault caused [name of plaintiff]'s harm, you must decide how much money will fairly and adequately compensate [name of plaintiff] for that harm. There are two kinds of damages: economic and noneconomic.

MUJI 1st Instruction

Committee Notes

CV2002 Proof of damages.

To be entitled to damages, [name of plaintiff] must prove two points:

First, that damages occurred. There must be a reasonable probability, not just speculation, that [name of plaintiff] suffered damages from [name of defendant]'s fault.

Second, the amount of damages. The level of evidence required to prove the amount of damages is not as high as what is required to prove the occurrence of damages. There must still be evidence, not just speculation, that gives a reasonable estimate of the amount of damages, but the law does not require a mathematical certainty.

In other words, if [name plaintiff] has proved that [he] has been damaged and has established a reasonable estimate of those damages, [name of defendant] may not escape liability because of some uncertainty in the amount of damages.

References

CV2003 Economic damages defined.

Economic damages are the amount of money that will fairly and adequately compensate [name of plaintiff] for measurable losses of money or property caused by [name of defendant]'s fault.

MUJI 1st Instruction

CV2004 Noneconomic damages defined.

Noneconomic damages are the amount of money that will fairly and adequately compensate [name of plaintiff] for losses other than economic losses.

Noneconomic damages are not capable of being exactly measured, and there is no fixed rule, standard or formula for them. Noneconomic damage must still be awarded even though they may be difficult to compute. It is your duty to make this determination with calm and reasonable judgment. The law does not require the testimony of any witness to establish the amount of noneconomic damages.

In awarding noneconomic damages, among the things that you may consider are:

(1) the nature and extent of injuries;

(2) the pain and suffering, both mental and physical;

(3) the extent to which [name of plaintiff] has been prevented from pursuing [his] ordinary affairs;

(4) the degree and character of any disfigurement;

(5) the extent to which [name of plaintiff] has been limited in the enjoyment of life; and

(6) whether the consequences of these injuries are likely to continue and for how long.

While you may not award damages based upon speculation, the law requires only that the evidence provide a reasonable basis for assessing the damages but does not require a mathematical certainty.

I will now instruct you on particular items of economic and noneconomic damages presented in this case.

References

MUJI 1st Instruction

CV2005 Economic damages. Medical care and related expenses.

Economic damages include reasonable and necessary expenses for medical care and other related expenses incurred in the past and those that will probably be incurred in the future.

References

MUJI 1st Instruction

CV2006 Economic damages. Lost earnings. [Lost earning capacity.]

Economic damages include past and future lost earnings, including lost benefits, [and lost earning capacity].

Calculate past lost earnings from the date of the harm until the trial. [Calculate future lost earnings from the date of trial forward.]

[Lost earning capacity is not the same as lost earnings. Lost earning capacity means the lost potential to earn income. In determining lost earning capacity, you should consider:

(1) [name of plaintiff]'s actual earnings;

(2) [his] work before and after [describe event];

(3) what [he] was capable of earning had [he] not been injured; and

(4) any other facts that relate to [name of plaintiff]'s employment.]

References

MUJI 1st Instruction

Committee Notes

CV2007 Economic damages. Loss of household services.

Economic damages include loss of household services. To recover damages for this loss, [name of plaintiff] must prove the reasonable value of the household services that [he] has been or will be unable to do since the harm.

References

CV2008 Economic damages. Injury to personal property.

Economic damages include injury to or destruction of [name of plaintiff]'s [item of personal property].

The damages to be awarded for injury to personal property are the difference in the [item of personal property]'s fair market value immediately before and immediately after the injury, unless it can be repaired for a lesser amount. If the [item of personal property] can be repaired for a lesser amount, then the damages are the reasonable cost of repair.

If you find that the repairs do not restore the [item of personal property] to the same value as before the injury, the damages are the difference between its fair market value before the injury and its fair market value after the repairs, plus the reasonable cost of making the repairs. The total amount awarded must not exceed the [item of personal property]'s fair market value before the injury occurred.

References

MUJI 1st Instruction

Committee Notes

CV2009 Economic damages. Injury to real property.

Economic damages include injury to [name of plaintiff]'s real property.

The damages to be awarded for injury to real property are the difference in the fair market value of the real property immediately before and immediately after the injury, unless the property can be repaired or restored for a lesser amount. If the property can be repaired or restored for a lesser amount, then the damages are the reasonable cost of repair or restoration.

If you find that repair or restoration does not return the real property to the same value as before the injury, the damages to be awarded are the difference between the real property's fair market value before the injury and its fair market value after the repair or restoration, plus the reasonable cost of making the repair or restoration.

[In addition, if the evidence establishes that the injury to the real property has created a lingering negative public perception of it, then the damages would include any reduction in the value of the property as a result of the negative perception.]

References

MUJI 1st Instruction

Committee Notes

CV2010 "Fair market value" defined.

Fair market value is the highest price that a willing buyer would have paid to a willing seller, assuming that there was no pressure on either one to buy or sell; and that the buyer and seller were fully informed of the condition and quality of the [item of personal property].

References

MUJI 1st Instruction

CV2011 Economic damages. Loss of use of personal property.

To compensate [name of plaintiff] for the loss of use of [item of personal property], calculate the amount that you decide will restore [name of plaintiff] to the same position [he] was in prior to the damage. You may consider the following factors [as applicable]:

(1) the rental value of the [item of personal property];

(2) the lost income, meaning the income [name of plaintiff] would likely have earned through using the [item of personal property]; and

(3) what [name of plaintiff] reasonably spent to decrease the damage.

References

MUJI 1st Instruction

CV2012 Noneconomic damages. Loss of consortium.

Noneconomic damages include loss of consortium. Loss of consortium is loss of the benefits that one spouse expects to receive from the other, such as companionship, cooperation, affection, aid and sexual relations.

To award damages for loss of consortium, it must be proven that [name of plaintiff] has suffered a significant permanent injury that substantially changes [his] lifestyle. This may include, but is not limited to one or more of the following:

[(1) a partial or complete paralysis of one or more of the extremities;]

[(2) significant disfigurement;]

[(3) incapability of performing the types of jobs [he] performed before the injury; or]

[(4) other].

[You must decide whether [name of spouse] was [name of plaintiff]'s spouse at the time of [name of plaintiff]'s injury. "Spouse" means the legal relationship established between a man and a woman as recognized by the laws of Utah.]

You must allocate fault as I have instructed you in Instruction 211 including [name of spouse] in your allocation. If you decide that the [combined] fault of [name of plaintiff]'s and [name of spouse]'s is 50% or greater, [name of spouse] will recover nothing for loss of consortium. If you decide that [name of plaintiff] has no claim against [name of defendant], then [name of spouse] also has no claim. As with other damages, do not reduce the award by [name of plaintiff]'s and [name of spouse]'s percentage of fault. I will make that calculation later.

References

Committee Notes

Committee Amended

CV2013 Wrongful death claim. Adult. Factors for deciding damages.

Damages include an amount that will compensate [name of plaintiff] for the loss suffered due to [name of decedent]'s death.

Calculate this amount based on all circumstances existing at the time of [name of decedent]'s death that establish [name of plaintiff]'s loss, including the age, health and life expectancies of [name of decedent] and [name of plaintiff] immediately prior to the death.

You may calculate economic damages for:

(1) The loss of financial support, past and future, that [name of plaintiff] would likely have received, or been entitled to receive, from [name of decedent] had [name of decedent] lived.

(2) The loss or reduction of inheritance from [name of decedent] [name of plaintiff] is likely to suffer because of [name of decedent]'s death.

(3) Any other evidence of assistance or benefit that [name of plaintiff] would likely have received had [name of decedent] lived.

You may calculate non-economic damages for the loss of such things as love, companionship, society, comfort, pleasure, advice, care, protection and affection which [name of plaintiff] has sustained and will sustain in the future.

[In determining this award, you are not to consider any pain or suffering of [name of decedent] prior to [his] death.]

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV2014 Wrongful death claim. Minor. Factors for deciding damages.

Damages include an amount that will compensate [name of plaintiff] for the loss suffered due to [name of decedent]'s death. Calculate the amount based on all circumstances existing at the time of [name of decedent]'s death that establish [name of plaintiff]'s loss, including the following:

(1) The loss of financial support, past and future, that [name of plaintiff] would likely have received, or been entitled to receive, from [name of decedent] had [name of decedent] lived. This amount should be reduced by the costs that [name of plaintiff] would likely have incurred to support [name of decedent] had the child survived, until the child reached 18 years of age.

(2) The loss of love, companionship, society, comfort, care, protection and affection which [name of plaintiff] has sustained and will sustain in the future.

(3) The age, health and life expectancies of [name of decedent] and [name of plaintiff] immediately prior to the death.

(4) The loss of inheritance from [name of decedent] [name of plaintiff] is likely to suffer because of [name of decedent]'s death.

(5) Any other evidence of assistance or benefit that [name of plaintiff] would likely have received had [name of decedent] lived.

(6) The reasonable and necessary expenses incurred by [name of plaintiff] for [name of decedent] for any medical care because of [circumstances causing death].

(7) The reasonable expenses that were incurred for [name of decedent]'s funeral and burial.

[In determining this award, you are not to consider any pain or suffering of [name of decedent] prior to [his] death.]

References

MUJI 1st Instruction

Committee Notes

CV2015 Survival claim.

If you decide that [name of defendant]'s fault was a cause of [name of decedent]'s harm, you must award economic and non-economic damages for the period of time that [name of decedent] lived after the injuries, regardless of whether [name of defendant]'s fault caused the death.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV2017 Susceptibility to injury.

A person who may be more susceptible to injury than someone else is still entitled to recover the full amount of damages that were caused by [name of defendant]'s fault. In other words, the amount of damages should not be reduced merely because [name of plaintiff] may be more susceptible to injury than someone else.

References

MUJI 1st Instruction

CV2018 Pre-existing conditions.

A person who has a [physical, emotional, or mental] condition before the time of [describe event] is not entitled to recover damages for that condition or disability. However, the injured person is entitled to recover damages for any aggravation of the pre-existing condition that was caused by [name of defendant]'s fault, even if the person's pre-existing condition made [him] more vulnerable to physical [or emotional] harm than the average person. This is true even if another person may not have suffered any harm from the event at all.

[Name of defendant] has the burden to prove what portion of the [specific harm] to [name of plaintiff] was caused by the pre-existing condition.

If you are not able to make such an apportionment, then you must conclude that the entire [specific harm] to [name of plaintiff] was caused by [name of defendant]'s fault.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV2019 Aggravation of dormant pre-existing condition.

Removed 9/2013, pursuant to Harris v. Shopko Stores, Inc., 2011 UT App 329.

CV2020 Mitigation of damages.

[Name of plaintiff] has a duty to exercise reasonable diligence and ordinary care to minimize the damages caused by [name of defendant]'s fault. Any damages awarded to [name of plaintiff] should not include those that [name of plaintiff] could have avoided by taking reasonable steps. It is [name of defendant]'s burden to prove that [name of plaintiff] could have minimized [his] damages, but failed to do so. If [name of plaintiff] made reasonable efforts to minimize [his] damages, then your award should include the amounts that [he] reasonably incurred to minimize them.

References

MUJI 1st Instruction

CV2021 Present cash value.

If you decide that [name of plaintiff] is entitled to damages for future economic losses, then the amount of those damages must be adjusted to present cash value. This is because any damages awarded would be paid now, even though the plaintiff would not suffer the economic losses until some time in the future. Money received today would be invested and earn a return or yield.

To adjust an award for future damages to present cash value, you must determine the amount of money needed today that, when reasonably and safely invested, will provide [name of plaintiff] with the amount of money needed to compensate [name of plaintiff] for future economic losses. In making your determination, you should consider the earnings from a reasonably safe investment.

References

MUJI 1st Instruction

Committee Notes

Committee Amended

CV2022 Life expectancy.

According to mortality tables, a person of [name of plaintiff]'s age, race, and gender is expected to live ____ more years. You may consider this fact in deciding the amount of future damages. A life expectancy is merely an estimate of the average remaining life of all persons in our country of a given age, race, and gender, with average health and exposure to danger. Some people live longer and others die sooner. You may also consider all other evidence bearing on the expected life of [name of plaintiff], including [his] occupation, health, habits, life style, and other activities.

MUJI 1st Instruction

Committee Notes

CV2023 Effect of settlement.

[Name of plaintiff] has settled [his] claim against [name of settling party]. Your award of damages to [name of plaintiff] should be made without considering what [he] received under this settlement. After you have returned your verdict, I will make the appropriate adjustment to your award of damages.

CV2024 Collateral source payments.

You shall award damages in an amount that fully compensates [name of plaintiff]. Do not speculate on or consider any other possible sources of benefit [name of plaintiff] may have received. After you have returned your verdict, I will make whatever adjustments may be appropriate.

References

MUJI 1st Instruction

CV2025 Arguments of counsel not evidence of damages.

You may consider the arguments of the attorneys to assist you in deciding the amounts of damages, but their arguments are not evidence.

MUJI 1st Instruction

CV2026 Punitive damages. Introduction.

In addition to compensatory damages, [name of plaintiff] also seeks to recover punitive damages against [name of defendant]. Punitive damages are intended to punish a wrongdoer for extraordinary misconduct and to discourage others from similar conduct. They are not intended to compensate [name of plaintiff] for [his][her][its] loss.

References

MUJI 1st Instruction

Committee Notes

CV2027 Amount of punitive damages.

Now that you have decided to award punitive damages, you must determine the amount. Punitive damages should be the amount necessary to fulfill the two purposes of punitive damages: to punish past misconduct and to discourage future misconduct. Your decision should not be arbitrary. The amount must be reasonable and bear some relationship to [name of plaintiff]'s harm. Whether or not to award a specific amount or any amount of punitive damages is left entirely up to you.

References

MUJI 1st Instruction

Committee Notes

CV2028 Punitive damages and harm to other people.

In determining the amount of punitive damages, you may award punitive damages for the purpose of punishing [name of defendant] only for [harm] [attempted harm] [damage] to [name of plaintiff]. You may not award punitive damages for the purpose of punishing harm or attempted harm to other people.

References

MUJI 1st Instruction

CV2029 Factors to consider in determining the amount of damages.

In determining the amount of damages, you may also consider any evidence regarding the following: (1) the wealth or financial condition of [name of defendant]; (2) the nature of the alleged misconduct; (3) the facts and circumstances surrounding such conduct; (4) the effect of [name of defendant]'s conduct on [name of plaintiff]; (5) the probability of future reoccurrence of the misconduct toward [name of plaintiff] or others; (6) the relationship of the parties; and (7) the amount of compensatory damages awarded.

References

CV2030 Reprehensibility.

In determining the amount of punitive damages that should be awarded, you should consider the reprehensibility of [name of defendant]'s conduct. Greater reprehensibility may justify a higher punitive damage award while lesser reprehensibility may justify a lower amount.

References

MUJI 1st Instruction

CV2031 Reprehensibility. Similar Conduct Toward Other People.

When determining the degree of reprehensibility, you may consider evidence of similar conduct by [name of defendant] toward other people who are not in this lawsuit; however, I caution you that this evidence is to be considered only to determine reprehensibility. The actual harm to other people is not the measure of punitive damages in this case.

References

MUJI 1st Instruction

CV2032 Reprehensibility. Conduct in other states.

Evidence that [name of defendant] committed the same or similar conduct outside of Utah may not be considered to increase the level of reprehensibility if the conduct was legal when and where it was committed.

References

Committee Notes

CV2033 Driving under the influence.

In addition to compensatory damages, [name of plaintiff] also seeks to recover punitive damages against [name of defendant]. Punitive damages are not intended to compensate [name of plaintiff] for [his][her][its] loss. Punitive damages can be awarded to punish a wrongdoer for driving [a motor vehicle or motorboat] while voluntarily intoxicated or under the influence of any drug or a combination of alcohol and drugs in violation of the law.

Punitive damages may be awarded if [name of plaintiff] has proven by a preponderance of the evidence that [name of defendant] was operating or in actual physical control of a vehicle within this state and any one of the following:

(1) had sufficient alcohol in [his][her] body that a subsequent chemical test shows that [he][she] had a blood or breath alcohol concentration of .08 grams or greater at the time of the test; or

(2) had a blood or breath alcohol concentration of .08 grams or greater at the time of operation or actual physical control; or

(3) was under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that rendered the person incapable of safely operating a vehicle.

[There is a question on the Special Verdict form whether [name of plaintiff] has proved by a preponderance of the evidence that [name of defendant] violated the above law. If you answer "yes" to this question, I will then give you further instructions regarding punitive damages.]

References

CV2034 Providing controlled substance.

In addition to compensatory damages, [name of plaintiff] also seeks to recover punitive damages against [name of defendant]. Punitive damages are not intended to compensate [name of plaintiff] for [his][her][its] loss. Punitive damages can be awarded to punish a wrongdoer for causing the drug-related death of another person.

Punitive damages may be awarded if [name of plaintiff] has proven by a preponderance of the evidence that [name of defendant]

1) provided or administered an illegal controlled substance to the deceased person in violation of the law; or

2) provided an illegal controlled substance to any person in the chain of transfer connected directly to someone who subsequently provided or administered the substance to the person whose death was caused in whole or in part by the substance.

[There is a question on the Special Verdict form whether [name of plaintiff] has proved by a preponderance of the evidence that [name of defendant] violated this law. If you answer "yes" to this question, I will then give you further instructions regarding punitive damages.]

References

CV2101 Issues in a breach of contract case.

[Name of plaintiff] claims that [he] had a contract with [name of defendant] for [list purpose or description of the contract]. [Name of plaintiff] also claims that [name of defendant] breached the contract by not performing [his] obligations and that [name of plaintiff] has been damaged as a result. [Name of plaintiff] wants [name of defendant] to pay [him] money to compensate [him] for the damages [he] claims to have suffered.

[Name of defendant] denies [name of plaintiff]'s claims and in [his] defense claims that [list affirmative defenses].

MUJI 1st Instruction

CV2102 Elements for breach of contract.

In order to recover damages, [name of plaintiff] must prove each of these four things:

(1) that there was a contract between [name of plaintiff] and [name of defendant];

(2) that [name of plaintiff] did what the contract required [him] to do, or that [he] was excused from performing [his] contract obligations;

(3) that [name of defendant] breached the contract by not performing [his] obligations; and

(4) that [name of plaintiff] was damaged because [name of defendant] breached the contract.

References

MUJI 1st Instruction

CV2103 Creation of a contract.

You must decide whether [name of plaintiff] and [name of defendant] had a contract. A contract is an agreement between two or more parties. It can be either oral or written, or a mixture of both.

To create a contract, what the parties have promised to do for each other has to be spelled out well enough that they can tell what it is they have each promised to do for the other. If you cannot tell what it is they have promised to do for each other, then there is no contract.

References

MUJI 1st Instruction

Committee Notes

CV2104 Offer.

To create a contract, the parties have to agree on the terms of the contract. Whether they have agreed on the terms of the contract depends on whether [party's name] made an offer that was accepted by [other party's name].

A party makes an offer when [he] invites the other party to accept [his] terms in such a way that the party accepting the offer realizes that if [he] accepts the terms, both parties will become obligated to each other. The terms of the offer have to be clear and definite.

All of the important terms of the offer have to be accepted unconditionally. If the accepting party accepts some terms of the offer, but not others, or proposes different or additional terms, this becomes a counteroffer which then must be accepted unconditionally by the other party before a contract is formed.

References

MUJI 1st Instruction

CV2105 Acceptance.

A party accepts an offer when [he] agrees unconditionally to all of the terms. Unless an offer specifies that the terms need to be accepted in a certain manner, acceptance can be shown by something in writing, or orally, or by the conduct of the party who accepts the offer.

In order to decide whether the offer was accepted in this case, ask yourself whether [party's name] communicated [his] acceptance of the offer so that an objective, reasonable person would understand that a contract had been made.

References

MUJI 1st Instruction

CV2106 Withdrawal of offer.

An offer can be withdrawn at any time before it is accepted, but not afterwards.

References

MUJI 1st Instruction

CV2107 Consideration.

To create a contract, each party must promise to do something for the other party in exchange for something of value. This is called "consideration." It can be a promise to do some act in exchange for the other party's act. "Value" doesn't necessarily have to be money, but it can be.

If you find that either party did not agree to give something of value in exchange for the other party's promise to perform [his] obligations under the contract, then there is no contract.

References

MUJI 1st Instruction

Committee Notes

CV2108 Simultaneous duty to perform.

[Name of plaintiff] and [name of defendant] agree that their contract required both parties to perform their contract obligations at the same time. Consequently, [name of defendant] had to do what [he] promised to do only if [name of plaintiff] [did/was ready to do] what [he] promised to do.

References

MUJI 1st Instruction

CV2109 Unspecified time of performance.

When a provision in a contract requires an act to be performed without specifying the time to perform the act, the act must be done within a reasonable time under the circumstances.

Because the contract does not require [name of party] to [describe the act] by a particular date or time, you will need to decide, based on all of the circumstances, what a reasonable date or time was for [name of party] to [describe the act].

References

MUJI 1st Instruction

CV2110 Substantial performance.

[Name of plaintiff] claims that even though [he] did not do everything exactly as the contract required, [he] should still recover damages from [name of defendant] because [name of defendant] breached the contract. [Name of plaintiff]'s failure to do everything exactly as promised under the contract does not prevent [him] from recovering damages unless

(1) [he] acted in bad faith or

(2) what [he] failed to do was important to fulfilling the purpose of the contract. A failure was not important to fulfilling the purpose of the contract, if it was minor and could be fixed without difficulty.

References

MUJI 1st Instruction

CV2111 Occurrence or failure of condition precedent.

[Name of plaintiff] and [name of defendant] agree that their contract did not require [party's name] to [describe the obligation] unless [describe the condition] occurred. You must decide whether this condition occurred. If it did, then [party's name] had to [describe the obligation]. If the condition did not occur, then [party's name] did not have to perform [his] contract obligations.

References

MUJI 1st Instruction

CV2112 Disputed condition precedent.

[Party's name] claims that [he] did not have to [describe the obligation] unless [describe the alleged condition] occurred first. Based on the evidence, you must decide whether the parties intended that this condition was part of the contract. If you decide that this condition was part of the contract, then [party's name] had to [describe the obligation] before [other party's name] was required to perform his contract obligations.

References

MUJI 1st Instruction

Committee Notes

CV2113 When performance is not excused by other party's non-performance.

[Name of Party] cannot by a willful act or omission make it difficult or impossible for [name of other party] to perform [describe obligation] and then be excused from performing the obligation because [name of other party] did not perform.

If you decide that [name of party] was willing and able to perform [his] obligation, but that [he] could not perform the obligation because of something that [name of other party] purposely did or failed to do, then [name of party] was excused from performing [his] obligation.

References

MUJI 1st Instruction

CV2114 Promissory estoppel.

[Name of party] claims that [name of other party] must perform as promised even though there was no contract between them. To succeed on this claim, [name of party] must prove that:

(1) [name of other party] was aware of all the important facts;

(2) [name of other party] promised to [describe promise];

(3) [name of other party] knew or should have expected that this promise would lead [name of party] to act or not act;

(4) [name of party] reasonably relied on the promise;

(5) [name of party]'s action or inaction resulted in damages.

References

MUJI 1st Instruction

Committee Notes

CV2115 Breach of the contract.

[Name of plaintiff] claims that [name of defendant] breached their contract. A party to a contract breaches the contract if [he] fails to do what [he] promised to do in the contract.

References

MUJI 1st Instruction

CV2116 Material breach.

You must decide whether there was a material breach of the contract. A breach is material if a party fails to perform an obligation that was important to fulfilling the purpose of the contract. A breach is not material if the party's failure was minor and could be fixed without difficulty.

If you decide that [name of defendant] materially breached the contract, then [name of plaintiff] was excused from doing what [he] had promised to do under the contract.

However, if you decide that what [name of defendant] failed to do was not important to fulfilling the purpose of the contract, then [name of plaintiff] was not excused from doing what [he] promised to do in the contract.

References

MUJI 1st Instruction

CV2117 Partial breach.

If [name of defendant] did some but not all of the things [he] promised to do under the contract, then [name of plaintiff] may recover damages related only to what [name of defendant] failed to do under the contract.

References

MUJI 1st Instruction

CV2118 Anticipatory breach.

When a party is supposed to perform his contract obligations at some time in the future, that party breaches the contract if he indicates to the other party that when the time comes for him to perform his obligations, he will not do so. The contract obligations must be important to fulfilling the purpose of the contract. It is not a breach of the contract if the party merely indicates that he doesn't want to perform his contract obligations, or that he has misgivings about the contract. Rather, the party must indicate positively and unequivocally that he does not intend to perform his contract obligations.

A party who has indicated that he is not going to perform his contract obligations is allowed to change his mind before his performance is due, but only if he lets the other party know before the other party files a lawsuit or otherwise relies on the statements and significantly changes his position.

[Name of defendant] breached the contract if you find that [he]

(1) made statements that could be reasonably interpreted to mean that he positively and unequivocally refused to perform his contract obligations, and

(2) did not change his mind and notify [name of plaintiff] before [name of plaintiff] either filed a lawsuit or otherwise relied on the statements and significantly changed his position.

References

MUJI 1st Instruction

Committee Notes

CV2119 Implied covenant of good faith and fair dealing.

All contracts contain an unwritten or implied promise that the parties will deal with each other fairly and in good faith. This means that [name of plaintiff] and [name of defendant] have promised not to intentionally do anything to injure each other's right to receive the benefits of the contract. To decide if [name of defendant] violated this unwritten promise, you should consider whether [his] actions were consistent with the agreed common purpose and justified expectations of [name of plaintiff] in light of the contract language and the dealings between and conduct of the parties.

There are some limits to this unwritten promise that you need to keep in mind.

First, this unwritten promise between the parties to deal fairly with each other and in good faith does not establish new, independent rights or duties that [name of plaintiff] and [name of defendant] did not agree to.

Second, this unwritten promise does not create rights and duties that are inconsistent with the actual terms of the contract.

Third, this unwritten promise does not require either party to use a contract right in a way that will be harmful to themselves simply to benefit the other party.

Finally, you cannot use this unwritten promise to achieve an outcome that you believe is fair but is inconsistent with the actual terms of the contract.

If you find that [name of defendant] violated this unwritten promise to deal fairly and in good faith, then [name of defendant] breached the contract.

References

MUJI 1st Instruction

Committee Notes

CV2120 Accord and satisfaction.

[Name of defendant] claims that [he] did not have to perform [his] [describe old contract obligations] because [he] and [name of plaintiff] had a disagreement about the contract that they resolved by entering into a new contract that replaced the first contract. [Name of defendant] claims that the new contract required [describe the new obligation(s)] and that [he] has fully performed or is performing these obligations.

To succeed on this claim, [name of defendant] must prove that:(1) [name of plaintiff] and [name of defendant] had a dispute about the original contract that they resolved by entering into a new contract; and

(2) [name of defendant] fully performed or is performing [his] obligations under the new contract.

If you decide that [name of defendant] has proved both of these things, then [name of defendant] is released from performing [describe obligations] under the original contract.

References

MUJI 1st Instruction

CV2121 Novation.

[Name of defendant] claims that [he] did not need to perform [his] [describe old contract obligations] under the old contract because of a new contract that substitutes [name of new party] who will perform in [his] place,.

To succeed on this claim, [Name of defendant] must prove all of the following:

(1) There was a contract between [name of plaintiff] and [name of defendant].

(2) There is a new contract, agreed to by all of the parties, that replaces the old contract and substitutes the performance of a new party in place of [name of defendant].

(3) [Name of plaintiff] intended to accept the new party as a substitute for [name of defendant] and to release [name of defendant] of [his] obligations under the old contract.

References

MUJI 1st Instruction

CV2122 Duress.

[Name of defendant] claims that [his] contract with [name of plaintiff] is not binding because [he] was forced to enter into the contract. To succeed on this claim, [name of defendant] must prove that [he] did not intend to enter into the contract, and:

Either [Instruct only on the elements for which there is some evidence.]

(1) [he] was physically forced to enter into the contract by [name of plaintiff or plaintiff's agent]; or

(2) [he] was influenced to enter into the contract by an improper threat by [name of plaintiff or plaintiff's agent] that left [him] no reasonable alternative but to agree; or

(3) [he] was influenced to enter into the contract by an improper threat by [someone other than plaintiff or plaintiff's agent] that left [him] no reasonable alternative but to agree. This, however, will not relieve [name of defendant] from the contract if [name of plaintiff] in good faith and without reason to know of the improper threat either gave up something of value or relied on the contract in a significant way.

References

MUJI 1st Instruction

CV2123 Improper threat.

For purpose of the instruction I just read, a threat is "improper" if [use only those relevant to the case] what was threatened is:

(1) a crime [identify the criminal violation and, if necessary, the elements thereof] or a tort [identify the tort and, if necessary, the elements thereof], or the threat itself would be a crime or a tort if it resulted in obtaining property;

(2) a criminal prosecution;

(3) a lawsuit and the threat is made in bad faith, or

(4) a breach of the unwritten or implied promise to deal fairly and in good faith in a contract with the recipient.

A threat is also "improper" if [use only those relevant to the case] the resulting exchange is not on fair terms, and:

(1) the threatened act would harm the recipient and would not significantly benefit the party making the threat,

(2) the effectiveness of the threat in influencing the agreement is significantly increased by prior unfair dealing by the party making the threat, or

(3) what is threatened is otherwise a use of power for illegitimate ends.

References

MUJI 1st Instruction

Committee Notes

CV2124 Fraudulent inducement.

[Name of defendant] claims that no contract was created because [he] was induced to enter into the contract by fraud. To succeed on this claim, [name of defendant] must prove all of the following by clear and convincing evidence:

(1) [Name of plaintiff] made the following representation: [insert the representation];

(2) The representation was about a presently existing fact that was important;

(3) The representation was false and [Name of plaintiff] either knew that the representation was false or made the representation recklessly without sufficient knowledge upon which to base the representation;

(4) [Name of plaintiff] made the representation to induce [name of defendant] to agree to the contract

(5) [Name of defendant] reasonably relied on this representation without knowledge of its falsity;

(5) [Name of defendant] entered into the contract;

(6) [Name of defendant] would not have entered into the contract if [he] had known that the representation was not true.

References

CV2125 Impossibility/Impracticability.

[Name of defendant] claims that [his] performance under the contract was made impossible or highly impracticable by an unforeseen supervening event.

"Highly impracticable" means that performance under the contract can be done only at an excessive and unreasonable cost.

A "supervening event" is an event that creates a major change in the expected circumstances.

[Name of defendant] makes this assertion based on the following circumstances:

To prevail on this claim defendant must show:

[Insert description of circumstances, such as death of essential participant, destruction of essential property, unforeseen change of law, act of God, etc.]

If you decide that [name of the defendant] has proved these circumstances just described are a supervening event, unforeseen at the time the contract was entered into and occurred through no fault of [name of defendant] and that the circumstances rendered [name of defendant]'s performance of the contract impossible or highly impracticable, then [name of defendant]'s obligations under the contract are excused.

References

CV2126 Frustration of purpose.

[Name of defendant] claims that [his] performance under the contract is excused because of the following circumstances:

[Insert description of circumstances which frustrated that purpose.]

To determine if defendant is excused from performance under the contract, you must decide:

(1) the original purpose of the contract contemplated by the parties;

(2) whether the circumstances just described are a supervening event, unforeseen at the time the contract was entered into;

(3) whether the circumstances occurred through no fault of [name of defendant]; and

(4) whether the new circumstances have made the purpose of the contract useless.

References

CV2127 Substantive unconscionability.

[Name of party] claims that the contract [or, alternatively, the following terms of the contract (list terms)] is unenforceable because it is substantively unconscionable.

Substantive unconscionability focuses on the terms of the contract. It requires you to examine the relative fairness of the contract at the time it was entered into. Even if a contract is unreasonable or more advantageous to one party, the contract, without more, is not unconscionable. Rather, in order to find that the contract [or contract terms] is substantively unconscionable, you must find that [name of party] proved the following by clear and convincing evidence:

(1) That the contract terms are so one-sided as to oppress or surprise an innocent party, or

(2) That the contract terms result in an overall imbalance in the parties' obligations and rights that is inconsistent with accepted customs and business practices at the time and place the contract was made.

References

CV2128 Procedural unconscionability.

[Name of party] claims that the contract is unenforceable because it is procedurally unconscionable.

Procedural unconscionability focuses on the negotiation of the contract and the circumstances of the parties. In order to succeed on this claim, [name of party] must prove by clear and convincing evidence that at the time the contract was entered into, [name of other party] had an unfairly superior bargaining position and that he overreached in his negotiation with [name of party]. You may consider the following circumstances, keeping in mind that the purpose of procedural unconscionability is to prevent oppression and unfair surprise:

(1) whether each party had a reasonable opportunity to understand the terms and conditions of the agreement;

(2) whether there was a lack of opportunity for meaningful negotiation;

(3) whether the agreement was printed on a duplicate or boilerplate form drafted solely by the party in the strongest bargaining position;

(4) whether the terms of the agreement were explained to the weaker party;

(5) whether the [aggrieved party] had a meaningful choice or instead felt compelled to accept the terms of the agreement;

(6) whether the stronger party employed deceptive practices to hide key contractual provisions.

(7) [describe other circumstances raised by the evidence that show procedural unconscionability.]

References

Committee Notes

CV2129 Mutual mistake.

[Name of defendant] claims that the contract is not enforceable because both parties were mistaken about [describe mutually mistaken important fact].

For [name of defendant] to succeed on this claim, you must find that [he] proved the following by clear and convincing evidence:

(1) that at the time the contract was entered into both [name of defendant] and [name of plaintiff] were mistaken about these facts, and

(2) that these facts were a basic assumption or an important fact upon which they based their bargain.

References

MUJI 1st Instruction

Committee Notes

CV2130 Unilateral mistake.

[Name of defendant] claims the contract is not enforceable because [he] was mistaken about [insert description of unilateral mistake of fact].

For [name of defendant] to succeed on this claim, you must find that [he] has proved each of the following by clear and convincing evidence:

(1) [name of name of defendant] was mistaken about [insert description of mistake];

(2) [his] mistake has such serious consequences that to enforce the contract would be unconscionable;

(3) the matter about which the mistake was made related to an important feature of the contract;

(4) the mistake occurred even though [name of defendant] made a reasonable effort to understand the circumstances about which he was mistaken; and

(5) [name of plaintiff] can be put back in the same position [he] was in before the contract, losing only the benefit of the bargain.

References

MUJI 1st Instruction

Committee Notes

CV2131 Third-party beneficiary.

[Name of plaintiff] claims that [he] is a third party beneficiary of a contract between [list parties to the contract]. To be a third party beneficiary of a contract, [name of plaintiff] must prove:

(1) that the parties to the contract intended that [name of plaintiff] benefit from the contract, and

(2) the intention of the parties to benefit" the third party must be clear from the terms of the contract.

References

MUJI 1st Instruction

CV2132 Assignment.

[Name of party/assignee] claims that [assignor's name] assigned to [assignee's name] [assignor's name]'s right under the contract to [specify contractual right assigned]. An assignment transfers a party's rights under a contract to another.

[Assignor's name] was permitted to assign [her] rights under the contract to [Assignee's name] either orally or in writing unless such an assignment was prohibited by the contract or unless the assignment makes important changes to the duties, risks, or value of the contract to [Other Party].

If you find [name of party/assignee] has proved that [assignor's name] assigned his rights under the contract to [assignee's name], then [assignee's name] had the right to demand that [name of other party] do [specify contractual right assigned].

References

Committee Notes

CV2133 Modification.

[Name of party] claims that [he] and [name of other party] changed their contract. To change a contract, both parties must agree on the new terms. If you find that both parties agreed to change the contract, then any old terms that conflict with the new terms cannot be enforced.

References

Committee Notes

CV2134 Abandonment.

[Name of party] claims that [he] and [name of other party] abandoned their contract. To succeed on this claim [name of party] must prove by clear and convincing evidence either that:

(1) the parties agreed to abandon their contract; or

(2) the parties acted as if the contract no longer existed.

If you find that the parties abandoned their contract, then the parties have no further obligation to do what they promised to do.

References

CV2135 Expectation damages - General.

If [name of party] is damaged by a breach of a contract, then [he] has a right to recover damages that follow naturally from the breach as follows:

(1) the loss of the benefits from the contract caused by [name of party]'s breach; minus,

(2) any cost or other loss that [name of party] has avoided by not having to perform.

References

MUJI 1st Instruction

Committee Notes

CV2136 Consequential damages.

If a party recovers damages for the benefits [he] expected to receive from the contract, then that party is also entitled to recover "consequential" damages caused by [name of defendant]'s breach.

Consequential damages are those losses or injuries reasonably within the contemplation of the parties, that is, they could have considered them or reasonably foreseen them, at the time the contract was made.

In order to decide whether a loss or an injury was foreseeable at the time the contract was made, you should examine the nature and language of the contract and the reasonable expectations of the parties. A loss may be foreseeable because it follows from the breach

(1) in the ordinary course of events, or

(2) as a result of special circumstances, beyond the ordinary course of events, that [name of defendant] had reason to know.

References

MUJI 1st Instruction

CV2137 Reliance damages.

Instead of damages based on the benefits [name of plaintiff] expected to receive from the contract, [name of plaintiff] has a right to recover the reasonable expenditures that [name of plaintiff] would have sustained if [name of defendant] had performed the contract as agreed. It is up to [name of defendant] to prove with reasonable certainty the loss [name of plaintiff] would have sustained.

References

MUJI 1st Instruction

CV2138 Damages for non-performance.

[Name of plaintiff] is entitled to recover damages from [name of defendant] if [name of plaintiff] did everything [he] had promised to do under the contract and [name of defendant] failed to do what [he] had promised to do under the contract.

References

MUJI 1st Instruction

Committee Notes

CV2139 Mitigation and avoidance.

[Name of plaintiff] had a duty to mitigate, that is, to minimize or avoid, the damages caused by the breach. [Name of plaintiff] may not recover damages that [he] could have avoided without undue risk, burden or humiliation. Likewise, [name of plaintiff] may not recover the damages for losses that were caused by or made worse by [his] own action or inaction.

[Name of plaintiff] has a right to recover damages if [he] has made a reasonable but unsuccessful effort to avoid loss.

[Name of plaintiff] had no obligation to mitigate [his] damages by taking action which [name of defendant] refused to take. If [name of defendant] had the primary responsibility to perform [list the act] and had the same opportunity to perform [the act] and the same knowledge of the consequences as [name of plaintiff], [name of defendant] cannot succeed in a claim that [name of plaintiff] failed to perform [the act].

References

MUJI 1st Instruction

CV2140 Damages. Reasonable certainty.

Damages are only recoverable for loss in an amount that the evidence proves with reasonable certainty, although the actual amount of damages need not be proved with precision. Any alleged damages which are only remote, possible or a matter of guess work are not recoverable.

References

MUJI 1st Instruction

CV2141 Nominal damages.

A party damaged by the other party's breach of the contract has a right to recover the damages caused by the breach. However, if [name of plaintiff] has not proved any actual or substantial damages caused by the breach, or if [he] has not proved the amount of damages, then you may award as damages a small or nominal sum such as one dollar.

References

CV2201 Construction Contract Instruction Notes

These instructions name the owner and the contractor as the parties. They should be amended appropriately if the parties are the contractor and the subcontractor. The user may also want to consult the instructions for Commercial Contracts.

CV2202 Compliance with public bidding instructions.

[Name of contractor] claims that [name of governmental entity] was required by law to award [him] the construction contract. [Name of governmental entity] claims that [describe claim].

[Name of governmental entity] is not required to accept any bid. However, if [name of governmental entity] did accept a bid, it was required to accept the lowest "responsive responsible" bid. The contractor who submitted the lowest responsive responsible bid is the one who:

(1) submitted a bid that complies with the invitation to bid;

(2) submitted a bid that satisfies the plans and specifications of the invitation to bid;

(3) satisfies [name of owner governmental entity]'s requirements for financial strength, capacity to perform, integrity, and/or reliability;

(4) provides a bid bond or equivalent money as a condition of the construction contract; and

(5) provides a payment and performance bond as required by law.

If you find that [name of contractor] submitted the lowest responsive responsible bid and that [name of governmental entity] accepted a different bid, then [name of governmental entity] is liable to [name of contractor] for damages.

References

Committee Notes

CV2203 "Responsive bid" defined.

A bid is "responsive" if it provides all information and documentation required by the invitation to bid.

References

CV2204 "Responsible bid" defined.

A "responsible bid" is a bid made by a party who has the capability, integrity and reliability to fully perform the contract requirements in good faith.

References

Committee Notes

CV2205 Contractor's right to withdraw bid.

[Name of contractor] claims that [he] had the right to withdraw the bid even though the [statute/invitation to bid] states that a bid may not be revoked. To succeed on this claim, [name of contractor] must prove that:

(1) the bid contains a substantial clerical or mathematical mistake, as opposed to an error in judgment;

(2) [name of contractor]'s mistake was unintentional; and

(3) [name of contractor] communicated the mistake to [name of owner] before the contract was awarded.

References

CV2206 Owner's duty to inform.

[Name of contractor] claims that [name of owner] had a duty to disclose the following information before the bid was submitted: [describe information.] You must decide whether, [name of contractor] has proved that:

(1) [name of owner] did not disclose the above-described information to [name of contractor];

(2) the undisclosed information was important to [name of contractor]'s ability to perform the contract; and

(3) [name of owner] had knowledge about the undisclosed information that was not available to [name of contractor].

If you find that [name of contractor] has proved all of these facts, then [name of owner] is liable to [name of contractor] for damages.

References

CV2207 Contractor's right to rely on owner-furnished information.

[Name of contractor] claims that [he] should recover the costs of extra work caused by inaccurate or misleading information provided by [name of owner]: [describe information.] To succeed on this claim, [name of contractor] must prove that:

(1) [name of owner] provided the information to [name of contractor];

(2) the information was inaccurate or misleading;

(3) [name of contractor] reasonably relied on the information; and

(4) the information caused [name of contractor] to perform extra work, which added to [name of contractor]'s [time/costs].

References

CV2208 Promissory estoppel.

[Name of contractor] claims that [name of owner] must perform as promised even though there was no contract between them. To succeed on this claim, [name of contractor] must prove that:

(1) [name of owner] was aware of all the important facts;

(2) [name of owner] promised to [describe promise];

(3) [name of owner] knew or should have expected that this promise would lead [name of contractor] to act or not act;

(4) [name of contractor] reasonably relied on the promise;

(5) [name of contractor]'s action or inaction resulted in damages.

References

CV2209 Defective plans and specifications.

If [name of contractor] proves that [he] acted reasonably in following [describe plans and specifications] provided by [name of owner], then [name of contractor] can recover from [name of owner] the costs caused by reasonable reliance on the plans and specifications.

References

CV2210 Contractor's duty to inquire about or investigate specific information provided by owner.

[Name of contractor] claims that [name of owner] made the following incorrect representations: [describe the representations]. [Name of contractor] claims that [he] is entitled to damages caused by relying on the representations.

However, [name of owner] claims [he] is not liable for [name of contractor]'s damages because [name of contractor] should have investigated or inquired about each representation before submitting a proposal.

In order for [name of contractor] to establish that there was no obligation to investigate or inquire about the representations, [name of contractor] must prove that:

(1) [describe the representations] were incorrect;

(2) [name of contractor] should not reasonably have been expected to recognize that the representation was incorrect; and

(3) [name of owner] did not warn [name of contractor] that the specific representation(s) may not be reliable and may require further investigation or inquiry; and

(4) [name of contractor] conducted a reasonable inspection of the work site or made reasonable inquiry about the representations to confirm their accuracy before submitting a proposal.

References

Committee Notes

CV2211 Claim for damages due to interference.

[Name of contractor] claims [name of owner] interfered with [name of contractor]'s work. To succeed on this claim, [name of contractor] must prove that:

(1) [name of owner] interfered with [name of contractor]'s ability to perform the contract;

(2) the interference was unreasonable under the circumstances;

(3) the interference caused [name of contractor]'s damages.

References

CV2212 Claim for additional costs due to acceleration.

[Name of contractor] claims that [he] is entitled to recover extra costs incurred because [name of owner] [required [him] to perform the work in less time than required by the contract] [increased the scope of work and did not increase the contract time].

To succeed on this claim [name of contractor] must prove that:

(1) [name of contractor] is not at fault for any delay related to the claim;

(2) [name of owner]:

[(a) ordered [name of contractor] to complete the work in less time than required by the contract]

[(b) increased the scope of the work, but did not grant [name of contractor] an extension of time]; and

(3) [name of contractor] incurred extra costs.

References

Committee Notes

CV2213 Claim for additional costs/time due to denial of access to worksite.

[Name of contractor] claims [he] had additional costs and/or was delayed because [name of owner] failed to provide access to the worksite. To succeed on this claim, [name of contractor] must prove that:

(1) [he] was prepared to work on [dates];

(2) [his] failure to perform the work was exclusively because [name of owner] failed to [describe denial of access]; and

(3) [he] had additional costs and/or was delayed.

References

CV2214 Claim for extra work.

[Name of contractor] claims additional [time/compensation] for work that [name of owner] required but that was not part of the original contract. To succeed on this claim, [name of contractor] must prove that:

(1) the work was not in the parties' original contract;

(2) [name of owner], by words or conduct, directed [name of contractor] to perform the work;

(3) [name of owner] knew or should have known that the work required additional [time/compensation];

(4) [name of contractor] performed the work; and

(5) the work added to [name of contractor]'s [time/costs].

References

CV2215 Additional time or compensation for extra work.

In determining the amount of additional [time/compensation] to be awarded for extra work, [name of contractor] is entitled to the amount agreed to or, if there was no agreement, to a reasonable amount.

References

CV2216 Waiver of written change notice requirement.

The contract requires that change notices be made in writing. [Name of contractor] claims that [name of owner] waived the right to require written notice of contract changes. To succeed on this claim, [name of contractor] must prove that [name of owner], by words or by conduct:

(1) understood that the work performed by [name of contractor] was extra work; and

(2) agreed or acknowledged that this extra work would require a change to the contract [time/compensation].

References

CV2217 "Waiver" defined.

"Waiver" means intentionally giving up a known right. To decide whether a party has waived a contract right, you must determine that all of the following have been proved:

(1) a party has a contract right;

(2) the party knew of the right; and

(3) the party intended to give up that right.

The intent to give up a right may be express or implied, and may be determined by considering all relevant circumstances.

References

CV2218 Claim for extra work due to site conditions different from contract terms (Type 1 differing site condition).

[Name of contractor] claims additional [time/compensation] for extra work caused by actual site conditions different from those described in the contract documents. To succeed on this claim, [name of contractor] must prove that:

(1) the contract documents describe certain site conditions;

(2) [name of contractor] reasonably relied on the description;

(3) [the actual site conditions were different from those described; and

(4) the different site conditions added to [name of contractor]'s [time/costs].

References