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.

Allen v. Friel, 2008 UT 56, 194 P.3d 903.
State v. Winfield, 2006 UT 4, 128 P.3d 1171.
Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983).

A self-represented litigant "will be held to the same standard of knowledge and practice as any qualified member of the bar." Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983). See also State v. Winfield, 2006 UT 4, 128 P.3d, 1171; Allen v. Friel, 2008 UT 56, 194 P.3d 903. However, "because of his lack of technical knowledge of law and procedure [a self-represented litigant] should be accorded every consideration that may reasonably be indulged." Id. at 1213.

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.

News articles have highlighted the problem of jurors conducting their own internet research or engaging in outside communications regarding the trial while it is ongoing. See, e.g., Mistrial by iPhone: Juries' Web Research Upends Trials, New York Times (3/18/2009). The court may therefore wish to emphasize the importance of the traditional admonitions in the context of electronic research or communications.

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.

MUJI CV 101.
Preliminary Jury Instructions for use with self-represented litigants, U.S. District Court, Eastern District of California.

CV101B Further admonition about electronic devices.

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.

Utah Code Ann. sect. 77-17-10(1).
Utah Code Ann. sect. 78A-2-201.
State v. Sisneros, 631 P.2d 856, 859 (Utah 1981).
State v. Gleason, 40 P.2d 222, 226 (Utah 1935)
75 Am. Jur.2d Trial sect.sect. 714, 719, 817.

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.

MUJI CV 102.
Preliminary jury instructions for use with pro se litigants, U.S. District Court, Eastern District of California.

CV103 Nature of the case.

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

CV104 Order of trial.

(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.

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.

CV106 Jurors must follow the instructions.

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.

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:

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

Added May 2023. Amended December 2024.

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.

The judge may instruct the jurors on what to do with their notes at the end of each day and at the end of the trial.

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.

Utah R. Civ. P. 47(j)

CV110 Rules applicable to recesses.

CV111A Definition of "person."

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.

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.

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].

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.

CV115 Settling parties.

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.

Slusher v. Ospital, 777 P.2d 437 (Utah 1989).
Paulos v. Covenant Transp., Inc., 2004 UT App 35 (Utah App. 2004).
Child v. Gonda, 972 P.2d 425 (Utah App. 1998).
URE 408.

The judge and the parties must decide whether the fact of settlement and to what extent the terms of the settlement will be revealed to the jury in accordance with the principles set forth in Slusher v. Ospital, 777 P.2d 437 (Utah 1989).

Substitute other legal concepts if "fault" is not relevant. For example, in commercial disputes.

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.

This instruction should be given at the time the party is dismissed. The court should explain the reasons why the defendants have been dismissed to the extent possible. If allocation of fault to the dismissed party is not appropriate under applicable law the final sentence should not be given.

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.

Johns v. Shulsen, 717 P.2d 1336 (Utah 1986).
Morris v. Farmers Home Mut. Ins. Co., 500 P.2d 505 (Utah 1972).
Alvarado v. Tucker, 268 P.2d 986 (Utah 1954).
Hansen v. Hansen, 958 P.2d 931 (Utah App. 1998)

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.

Essential Botanical Farms, LC v. Kay, 2011 UT 71.
Jardine v. Archibald, 279 P.2d 454 (Utah 1955).
Greener v. Greener, 212 P.2d 194 (Utah 1949).
See also, Kirchgestner v. Denver & R.G.W.R. Co., 233 P.2d 699 (Utah 1951).

In giving the instruction on clear and convincing evidence, the judge should specify which elements must be held to this higher standard. This might be done in an instruction and/or as part of the verdict form. If the judge gives the clear and convincing evidence instruction at the start of the trial and for some reason those issues do not go to the jury (settlement, directed verdict, etc.) the judge should instruct the jury that those matters are no longer part of the case.

CV119 Evidence.

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.

CV 119.
Preliminary jury instructions for use with pro se litigants, U.S. District Court, Eastern District of California.

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.

29 Am. Jur.2d Evidence sect. 4
29 Am. Jur.2d Evidence sect. 1468

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.

Utah Code Ann. sect. 78B-1-128.
United States v. McKissick, 204 F.3d 1282, 1289 (10th Cir. 2000).
Toma v. Utah Power & Light Co., 365 P.2d 788, 792-793 (Utah 1961).
Gittens v. Lundberg, 3 Utah 2d 392, 284 P.2d 1115 (1955).
State v. Shockley, 80 P. 865, 879 (1905).
75 Am. Jur.2d Trial sect. 819.

CV122 Inconsistent statements.

CV123 Effect of willfully false testimony.

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.

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

This instruction should be given at the time a stipulated fact is entered into the record.

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.

This instruction should be given at the time the court takes judicial notice of a fact.

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.

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.

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.

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.

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.

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.

Lyon v Bryan, 2011 UT App 256 (jury entitled to disregard even unrebutted expert testimony).

This instruction may be given if an expert or another witness is permitted to express an opinion on a matter that the jury is capable of deciding with or without expert testimony. This instruction should not be given if the jury is required to rely on expert testimony to establish the standard of care or some other fact. See, for example, Instruction CV 326. Expert testimony required..

If the jury is required to rely on expert testimony for some decisions and is allowed to decide other facts with or without expert testimony, the court's instructions should distinguish for the jury which matters the jury must decide based only on expert testimony and which matters they may decide by giving the expert testimony the weight they think it deserves.

September, 2011; November 13, 2012.

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.

Use this instruction if the charts and summaries used at trial are introduced as evidence under URE 1006.

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.

Use this instruction if the charts and summaries used at trial are used only as demonstrative aids.

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].

Hills v. United Parcel Service, Inc., 2010 UT 39, 232 P.3d 1049.
Daynight, LLC v. Mobilight, Inc., 2011 UT App 28, 248 P.3d 1010.
Burns v. Cannondale Bicycle Co., 876 P.2d 415 (Utah Ct. App. 1994).
URCP 37(e).

Utah appellate courts have not recognized a cause of action for first-party spoliation (a claim against a party to the underlying action - or the party's attorney - who spoliates evidence necessary or relevant to the plaintiff's claims against that party), or a cause of action for third-party spoliation (a stranger to the underlying action or a party not alleged to have committed the underlying tort as to which the loss or destroyed evidence is related). Hills v. United Parcel Serv., Inc., 2010 UT 39, 232 P.3d 1049; Burns v. Cannondale Bicycle Co., 876 P.2d 415 (Utah Ct. App. 1994). Rule 37(b), (e), however, expressly provides authority to trial courts to address spoliation of evidence by a litigant, including instructing the jury regarding an adverse inference. See, URCP 37(b)(7). Instructing the jury to draw an adverse inference is just one of several sanctions the court may impose for spoliation. URCP37(e). There may be circumstances when whether spoliation occurred is a question for the jury.

In Daynight, LLC v. Mobilight, Inc., 2011 UT App. 28, 248 P.3d 1010, the Utah Court of Appeals observed that "spoliation under [Rule 37(e)], meaning the destruction and permanent deprivation of evidence, is on a qualitatively different level than a simple discovery abuse under [Rule 37(b)] which typically pertains only to a delay in the production of evidence. . . . [Rule 37(e)] of the Utah Rules of Civil Procedure does not require a finding of 'willfulness, bad faith, fault or persistent dilatory tactics' or the violation of court orders before a court may sanction a party." Id. at ¶ 2.

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.

Swan v. Lamb, 584 P.2d 814, 819 (Utah 1978).

The committee was not unanimous in its approval of this instruction. Use it with caution.

CV132A Remote Testimony.

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

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.

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.

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.

This instruction may not be appropriate in every case, such as in cases involving a laches or statute of limitations defense.

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.

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.

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.

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.

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

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.

Day v. Panos, 676 P.2d 403 (Utah 1984).

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.

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.

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.

Utah Code Sections 78B-5-817(2); 78B-5-818; 78B-5-820.
Bishop v. GenTec, 2002 UT 36.
Haase v. Ashley Valley Medical Center, 2003 UT App 260.
Biswell v. Duncan, 742 P.2d 80, (Utah App. 1987).

Fault under the Comparative Negligence Act includes negligence in all its degrees, comparative negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability, and misuse, modification, or abuse of a product.

This instruction should be followed by those defining the specific duty (for example, negligence), the instruction on cause, and the instruction on allocating fault.

The court and counsel must set forth the appropriate alleged act or failure to act that is claimed to constitute a breach of legal duty.

CV202A "Negligence" defined.

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.

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

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:

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

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.]

Dwiggins v. Morgan Jewelers, 811 P.2d 182 (Utah 1991).
Mitchell v. Pearson Enterprises, 697 P.2d 240 (Utah 1985).
Meese v. BYU, 639 P.2d 720 (Utah 1981).

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.

Penunuri v. Sundance Partners, 2016 UT App 154, para.16
Daniels v. Gamma West, 2009 UT 66, para.43
Pearce v. Utah Athletic Foundation, 2008 UT 13, para.24, 179 P.3d 760
Berry v. Greater Park City Co., 2007 UT 87, para.26, 171 P.3d 442
Atkin Wright & Miles v. Mountain State Tel. & Tel. Co., 709 P.2d 330, 335 (Utah 1985)

CV203 "Negligence" defined. Person with disability.

[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.

Mitchell v. Pearson Enters., 697 P.2d 240 (Utah 1985).
Meese v. BYU, 639 P.2d 720 (Utah 1981).

The standard of care for the physically disabled should be distinguished from the standard for the mentally disabled. Under Restatement 2d Torts § 283C "[i]f the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under the disability." This is not necessarily a diminished standard, but is subjective in that a party's circumstances, i.e. their physical disability, must be considered in determining whether the actor breached the standard of care.

However, a different approach exists for the mentally disabled. Under Restatement 2d Torts § 283B "[u]nless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances." Cited in Birkner v. Salt Lake County, et al., 771 P.2d 1053 (Utah 1989). While Birkner also appears to create a distinction in cases involving either "primary" or comparatively negligent mentally impaired actors, the distinction is factually specific and appears limited to the narrow context of conduct between a therapist and a patient with limited mental impairment. Id. at 1060.

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.

Kilpack v. Wignall, 604 P.2d 462 (Utah 1979).
Vitale v. Belmont Springs, 916 P2d 359 (Utah App. 1996). (It is improper to give this instruction if the child is older than fourteen.)

This instruction should be used where there is evidence that a person knew or should have known that young children would be present. It is not intended to create a new duty to anticipate the presence of children.

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.

Donohue v. Rolando, 16 Utah 2d 294, 296-297, 400 P.2d 12,14 (1965).
Restatement 2d Torts sect. 283A (1965).
Restatement 3d Torts sect. 8 (1999).

This instruction should not be given if the child is engaged in an 'adult' activity. See Summerill v. Shipley, 890 P.2d 1042, 1044 (Utah Ct. App. 1995).

It is unclear whether this instruction should be given if the child is less than seven years old. In S.H. By and Through Robinson v. Bistryski, the Utah Supreme Court states that children under the age of seven are legally incapable of negligence. 923 P.2d 1376, 1382 (Utah 1996)(citing Nelson v. Arrowhead Freight Lines Ltd., 104 P.2d 225, 228 (Utah 1940)). However, given the backdrop of additional Utah case law (such as Donohue v. Rolando, in which the minor was less that seven) that is not addressed by Bistryski, combined with its factually-specific nature, it is unclear whether a presumption that children under seven years old are wholly incapable of negligence exists in Utah.

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.

Summerill v. Shipley, 890 P.2d 1042, 1044 (Utah App. 1995).

Before giving this instruction the judge should make the preliminary decision whether an activity is an adult activity.

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.

Walker Drug Co., Inc. v. La Sal Oil Co., 902 P.2d 1229, 1233 (Utah 1995).
Branch v. Western Petroleum, 657 P.2d 267, 273 (Utah 1982).
Robison v. Robison, 394 P.2d 87, 877 (Utah 1964).
Restatement 2d Torts sect.520 (1976).
Restatement 3d Torts sect.20 (Tentative Draft No. 1).

Comment "l" to Section 520 of the First and Second Restatements indicates that the determination of whether an activity qualifies as "abnormally" dangerous is for the court, not the jury. However, there are courts that allow the jurors to weigh the factors and make the decision for themselves. See cases cited in Comment "l" to Restatement 3d Torts §20.

In Walker Drug Co., Inc. v. La Sal Oil Co., supra, the Utah Supreme Court adopted the factors set forth in the Second Restatement:

(a) existence of a high degree of risk of some harm to the person or property of others;

(b) likelihood that the harm that results from it will be great;

(d) extent to which the activity is not of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.

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.

Lish v. Utah Power & Light Co., 493 P.2d 611 (Utah 1972).
Brigham v. Moon Lake Elec. Ass'n, 470 P.2d 393 (Utah 1970).
See also, Burningham v. Utah Power & Light, 76 F. Supp. 2d 1243 (D. Utah 1999) (no duty owed to trespasser on power pole.)

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;

(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.

Pinney v. Carrera, 2019 UT App 12, para.para. 37-40.
State v. Oliver, 2018 UT App 101, para. 21, 427 P.3d 495, 501
True v. Utah Dep't of Transportation, 2018 UT App 86, para. 69, 427 P.3d 338, 355.
Lane v. Provo Rehab. & Nursing, 2018 UT App 10, para. 43, 414 P.3d 991, 1001, cert. denied, 421 P.3d 441 (Utah 2018)
Larsen v. Davis Cty. Sch. Dist., 2017 UT App 221, para. 18, 409 P.3d 114, 118, cert. denied, 421 P.3d 441. (Utah 2018)
Nebeker v. Summit Cty., 2014 UT App 244, 338 P.3d 203 (foreseeability element).
Raab v. Utah Railway Company, 2009 UT 61, 221 P3d 219.
Steffensen v. Smith's Management Corp., 862 P.2d 1342 (Utah 1993).
Proctor v. Costco Wholesale Corp., 2013 UT App 226, para.para. 9-17, 311 P.3d 564 (foreseeability element).
McCorvey v UDOT, 868 P.2d 41, 45 (Utah 1993) ("there can be more than one proximate cause or, more specifically, substantial causative factor, of an injury").
Mitchell v. Pearson Enterprises, 697 P2d 240 (Utah 1985).
Rees v. Albertson's, Inc., 587 P.2d 130 (Utah 1978).
Dee v. Johnson, 2012 UT App 237.
Holmstrom v. C.R. England, Inc., 2000 UT App 239, 8 P3d 281.

The term "proximate" cause should be avoided. While its meaning may be understood by lawyers, the lay juror may be unavoidably confused by the similarity of "proximate" to "approximate." The committee also rejected "legal cause" because jurors, looking for fault, may look only for "illegal" causes. Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions (1979) 79 Colum. L. Rev. 1306.

The Utah Code includes "proximate" cause in its definition of "fault" in Section 78B-5-817, but did not define the term. We intend to simplify the description of the traditional definition, but not change the meaning.

In Mitchell v. Gonzales, 819 P.2d 872 (Cal. 1991), the supreme court of California held that use of the so-called "proximate cause" instruction, which contained the "but for" test of cause in fact, constituted reversible error and should not be given in California negligence actions. The court determined, using a variety of scientific studies, that this instruction may improperly lead jurors to focus on a cause that is spatially or temporally closest to the harm and should be rejected in favor of the so-called "legal cause" instruction, which employs the "substantial factor" test of cause in fact. CACI 430 reflects this adjustment in the law; embracing the "substantial factor" test and abandoning the term "proximate cause."

Recognizing additional studies of the confusion surrounding "legal cause," the court also recommended that "the term 'legal cause' not be used in jury instructions; instead, the simple term 'cause' should be used, with the explanation that the law defines 'cause' in its own particular way." Id., at 879 (citation omitted). These recommendations have since been integrated into the California jury instructions.

Foreseeability relates both to the issue of duty and to the issue of proximate cause. Duty is a legal issue for the court to decide. See Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶¶ 17-18, 215 P.3d 152. It is not clear how foreseeability differs when it goes to the issue of duty from when it goes to the issue of proximate cause. Compare id. ¶ 18 (the "specific mechanism" of injury "is more properly an issue of proximate cause than one of duty") & ¶ 20 ("Foreseeability as a factor in determining duty does not relate to the specifics of the alleged tortious conduct but rather to the general relationship between the alleged tortfeasor and the victim."), with Steffensen v. Smith's Mgmt. Corp., 862 P.2d 1342, 1346 (while "foreseeability is required to meet the test of negligence and proximate cause," the defendant's "precise action" does not have to be foreseeable; all that has to be foreseeable is "a likelihood of an occurrence of the same general nature") (emphasis in original) (quoting Rees v. Albertson's, Inc., 587 P.2d 130, 133 (Utah 1978)). Compare also, e.g., McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla. 1992) ("The duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader 'zone of risk' that poses a general threat of harm to others. The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant's conduct foreseeably and substantially caused the specific injury that actually occurred.") (citations omitted), with Yonce v. SmithKline Beecham Clinical Labs., Inc., 680 A.2d 569, 579 (Md. Ct. Spec. App.) ("foreseeability is an element in the determination of a duty and in the determination of proximate cause and is defined the same in each," namely, "whether the general type of harm sustained was foreseeable"), cert. denied, 685 A.2d 452 (Md. 1996). Some committee members thought that, if the court submits the question of negligence to the jury, it has already determined that the defendant's conduct could reasonably be foreseen to produce a harm of the same general nature as the plaintiff suffered and that the jury should not be asked to decide this issue again, at the risk of reaching a contrary conclusion.

Utah appellate courts sometimes define "proximate cause" in terms of "that cause which, in natural and continuous sequence, produces the injury and without which the injury would not have occurred" or "one which sets in operation the factors that accomplish the injury," see, e.g., Mahmood v. Ross, 1999 UT 104, ¶ 22, 990 P.2d 933 (citations omitted), and sometimes in terms of a cause that is a "substantial factor" or plays a "substantial role" in causing the injury, see, e.g., Holmstrom v. C.R. England, Inc., 2000 UT App 239, ¶ 45, 8 P.3d 281. It is not clear whether courts intend any difference by their choice of definition. Cf., e.g., Doe v. Garcia, 961 P.2d 1181, 1185 (Idaho 1998) (a "substantial factor" is "one that 'in natural or probable sequence, produced the damage complained of' or one 'concurring with some other cause acting at the same time, which in combination with it, causes the damage'") (citation omitted).

The "substantial factor" test has been criticized as unhelpful to juries. See, e.g., 1 Dan B. Dobbs, The Law of Torts § 171, at 416 (2001) ("The substantial factor test is not so much a test as an incantation. It points neither to any reasoning nor to any facts that will assist courts or lawyers in resolving the question of causation. . . . It invites the jury's intuition.") (footnotes omitted).

The committee considered the "substantial factor" alternative of MUJI 3.14 and rejected it on the grounds that, under the Utah Liability Reform Act, Utah Code Ann. §§ 78B-5-817 through -823, the extent to which a defendant's conduct contributed to an injury is properly considered under allocation of fault (CV211) and not causation.

Although Holmstrom v. C.R. England, Inc., 2000 UT App 239, 8 P3d 281, uses the term "substantial factor," it treats the term as, essentially, the "but for" test of causation. It suggests that there can be no liability in the very circumstances that the "substantial factor" test was intended to cover--two tortfeasors whose acts independently were sufficient to cause the harm. See id. ¶ 46 (citations omitted). See also 1 Dobbs, supra, § 171, at 416 ("such cases represent the single most justified use for the substantial factor test") (footnote omitted).

This instruction cannot cover every circumstance. See Jury Instruction Forms: Utah 15.6 note, at 50 (1957) ("Most of the difficulty with proximate cause seems to arise from trying to state a definition which will be of universal application in various hypothetical situations."). Counsel and judges may need to modify this instruction or use the phrase "substantial factor" or some other definition in unusual cases, such as the case of two tortfeasors either of whose negligence would have been sufficient to cause the harm, or cases in which the actor's fault consists of failing to prevent harm caused by a third party.

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

(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.

Nebeker v. Summit Cnty., 2014 UT App 137, para.para. 41-43, --- P.3d ---.
Mitchell v. Pearson Enterprises, 697 P.2d 240 (Utah 1985).
Harris v. Utah Transit Auth., 671 P.2d 217 (Utah 1983).
Gardner v. SPX Corporation, 2012 UT App 45.
Bansanine v. Bodell, 927 P.2d 675 (Utah App. 1996).
Steffensen v. Smith's Management Corp., 820 P.2d 482, 488 (Utah App. 1991), aff'd, 862 P.2d 1342 (Utah 1993).
Restatement 2d Torts sect.442B (1965).
Restatement 2d Torts sect. 447 (1965).

The Committee drafted paragraph (3) in the alternative because parts of the law on superseding cause are unclear. What is well established is that for a subsequent act to break the chain of causation and be a superseding cause, the subsequent act must be unforeseeable. Further, to cut off the defendant's liability, the harm must be outside the scope of the risk created by the defendant's conduct. If the "general nature" of the harm is foreseeable, the defendant remains liable. Steffensen v. Smith's Management Corp., 862 P.2d 1342, 1346 (Utah 1993) As a concurrent contributing factor, the third person's acts would be analyzed under the Liability Reform Act, Utah Code Section 78B-5-817, et seq.

What is not as clear is whether the third person's act must be an intentional act or whether negligence is sufficient. Bansanine v. Bodell, 927 P.2d 675, 677 (Utah App. 1996) adopts the Restatement position, and this is reflected in the first alternative. To relieve the defendant of liability, the third person must not only act intentionally, the actor's intent must be to harm the plaintiff. This position is supported by reasoning that the doctrine of superseding cause has no role after the Liability Reform Act, at least for analyzing unintentional acts. If the cause of action is based on an unintentional act, the LRA operates to allocate fault. In an appropriate case, the jury might find that a subsequent actor bears 100% of the fault. The applicability of the LRA to intentional acts is an open question. See Jedrziewski v. Smith, 2005 UT 85.

In cases preceding the LRA, the court states that a negligent act, if it meets the other requirements, can be found to be a superseding cause of plaintiff's harm, thereby cutting off the defendant's liability. See Godesky v. Provo City Corp., 690 P.2d 541, 544 (Utah 1984), Jensen v. Mountain States Telephone & Telegraph Co., 611 P.2d 363, 365 (Utah 1980), and, subsequent to the LRA, Steffensen v. Smith's Management Corp., 820 P.2d 482, 488 (Utah Ct. App. 1991) aff'd, 862 P.2d 1342 (Utah 1993). The continued validity of this principle is an open question.

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.

Utah Code Sections 78B-5-817(2); 78B-5-818; 78B-5-820.
Bishop v. GenTec, 2002 UT 36.
Haase v. Ashley Valley Medical Center, 2003 UT App 260.
Biswell v. Duncan, 742 P.2d 80, (Utah App. 1987).

"Fault" under the Comparative Negligence Act includes negligence in all its degrees, comparative negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability, and misuse, modification, or abuse of a product. This applies to intentional torts as well. Graves v. North Eastern Services, Inc., 2015 UT 28.

The judge should ensure that the verdict form is written so that fault is allocated only among those parties for whom the jury finds both breach of duty and cause.

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:

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

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

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.

Child v. Gonda, 972 P.2d 425 (Utah 1998).
Hall v. Warren, 692 P.2d 737 (Utah 1984).
Intermountain Farmers Ass'n v. Fitzgerald, 574 P.2d 1162 (Utah 1978).
Thompson v. Ford Motor Co., 16 Utah 2d 30; 395 P.2d 62 (1964).
Gaw v. State ex rel. Dep't of Transp., 798 P.2d 1130 (Utah App. 1990).
Jorgensen v. Issa, 739 P.2d 80 (Utah App. 1987).

Before giving this instruction, the judge should decide whether the safety law applies. The safety law applies if:

(1) the plaintiff belongs to a class of people that the law is intended to protect; and

(2) the law is intended to protect against the type of harm that occurred as a result of the violation.

The judge should include the instruction on excused violations only if there is evidence to support an excuse and include only those grounds for which there is evidence.

CV299 Verdict Forms

These verdict forms must be tailored to fit the circumstances of the case. The templates include questions of fault about two defendants, a third party and plaintiff/decedent. Add or remove sections about parties and other actors as needed. Similarly, in the section on comparative fault, add or remove lines as needed to account for different actors. In the Wrongful Death Verdict Form, the section on damages for survival claims and wrongful death claims, add or remove lines as needed to describe the damages of each heir and of each decedent. Some damages for the estate may be authorized only if the decedent survived for a time after injury.

After editing the form to account for all of the parties and other actors, renumber the questions and the references to the questions accordingly, remembering to do so also in the "next set of instructions."

Regarding the question on damages, there must be some evidence to support each item of damages listed on the verdict form. The court should delete or add items as needed to conform to the evidence.

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.

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.

Meeks v. Peng, 2024 UT 5, paras. 34-43, --- P.3d ----.

March 2024; March 2014.

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.

Meeks v. Peng, 2024 UT 5, paras. 34-43, 545 P.3d 226.

Lyon v. Bryan, 2011 UT App 256 (jury entitled to disregard even unrebutted expert testimony). Jensen v. IHC Hosps., Inc., 2003 UT 51, ¶ 96, 82 P.3d 1076.

Schaerrer v. Stewart's Plaza Pharmacy, 2003 UT 43, 79 P.2d 922.

Dalley v. Utah Valley Regional Med. Ctr., 791 P.3d 193, 195 (Utah 1990).

Dikeou v. Osborn, 881 P.2d 943, 947 (Utah 1981).

Chadwick v. Nielsen, 763 P.2d 817, 821 (Utah 1981).

Kent v. Pioneer Valley Hospital, 930 P.2d 904 (Utah App. 1997).

Robb v. Anderton, 863 P.2d 1322 (Utah App. 1993).

Farrow v. Health Servs. Corp., 604 P.2d 474 (Utah 1979).

The Committee has met and considered footnote 5 from the Meeks decision, and determined that the instructions, when read together, accurately reflect the law. CV301B states it is the plaintiff's burden to prove breach of the standard of care, and proving the standard of care is implicit in that instruction. Additionally, CV301C is generally read immediately after CV301B. If either party has additional concerns, it may be appropriate to combine CV301B and CV301C into a single instruction to further clarify that the burden is on the plaintiff. A minority of the Committee advocated amending the language of the instruction regarding the burden of proof.

In Nielson v. Pioneer Valley Hospital, 830 P.2d 270 (Utah 1992), and Brady v. Gibb, 886 P.2d 104 (Utah App. 1994), the courts held that instructions similar to this should not be given in conjunction with a "common knowledge" or res ipsa loquitor instruction unless the plaintiff is also alleging breach of a different standard of care.

Instruction CV129, Statement of opinion, should not be given when this instruction is used, as it instructs the jurors that they may disregard expert testimony.

Sept. 2024; March 2024; March 2014.

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.

Lyon v. Bryan, 2011 UT App 256 (jury entitled to disregard even unrebutted expert testimony). Jensen v. IHC Hosps., Inc., 2003 UT 51, para. 96, 82 P.3d 1076.

Schaerrer v. Stewart's Plaza Pharmacy, 2003 UT 43, 79 P.2d 922.

Dalley v. Utah Valley Regional Med. Ctr., 791 P.3d 193, 195 (Utah 1990).

Dikeou v. Osborn, 881 P.2d 943, 947 (Utah 1981).

Chadwick v. Nielsen, 763 P.2d 817, 821 (Utah 1981).

Kent v. Pioneer Valley Hospital, 930 P.2d 904 (Utah App. 1997).

Robb v. Anderton, 863 P.2d 1322 (Utah App. 1993).

Farrow v. Health Servs. Corp., 604 P.2d 474 (Utah 1979).

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.

Potter v. Groves Latter-Day Saints Hosp., 99 Utah 71, 103 P.2d 280 (1940).
Gitzhoffen v. Sisters of Holy Cross Hosp. Ass'n, 32 Utah 46, 88 P. 691 (1907).

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.

Shah v. Intermountain Healthcare, Inc., 2013 UT App 261.
Daniels v. Gamma West, 2009 UT 66.
Nixdorf v. Hicken, 612 P.2d 348 (Utah 1980).

Nixdorf v. Hicken post-dates the informed consent statute, and appears to establish a related, but different, claim for relief. See fn 20 on p 354. When that claim for relief exists and when the informed consent statute applies, remain unclear.

In Daniels v. Gamma West, the Supreme Court reaffirmed that doctors stand in a fiduciary relationship to their patients, but held that the informed consent statute narrowed the common law duties of disclosure. Nevertheless, in some circumstances, there may still be a valid Nixdorf-type claim: "Informed consent applies only to pretreatment information about the risks of a procedure or treatment; the fiduciary duty to disclose requires health care providers to apprise patients of material physical conditions throughout the course of their health care. Therefore, patients have a cause of action for breach of the fiduciary duty of disclosure except where a disclosure is explicitly governed by the informed consent statute." Daniels ¶51.

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.

Swan v. Lamb, 584 P.2d 814 (Utah 1978).

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.

Mikkelsen v. Haslam, 764 P.2d 1384 (Utah App. 1988).

A jury must be specifically instructed on the duties of a physician in this context. Merely giving abstract instructions on negligence without adapting the instruction to the duties present in the case is error. Mikkelsen, 764 P.2d at 1388, citing Everts v. Worrell, 197 P. 1043, 1046 (Utah 1921).

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:

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.

Gitzhoffen v. Sisters of Holy Cross Hosp. Ass'n, 32 Utah 46, 88 P. 691 (1907).

The trial court should tailor this instruction to set forth the particular duties at issue in the case before it; e.g., the duty to monitor a patient's well-being, the duty to follow reasonable orders of an attending physician, etc. Mikkelsen v. Haslam, 764 P.2d 1384, 1388 (Utah App. 1988)

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.

Huggins v. Hicken, 6 Utah 2d 233, 310 P.2d 523 (1957).

Some members of the committee questioned whether this instruction would be appropriate where the physician has reason to believe, but did not know, that his orders would not be carried out.

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.

(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.

For more information on this instruction, see the Committee Notes to Instruction CV209, "Cause" defined.

Expert testimony is usually necessary to establish causation in a medical malpractice claim. Butterfield v. Okubo, 831 P.2d 97, 102 (Utah 1992). There are exceptions when the causal link is readily apparent using only "common knowledge." Bowman v. Kalm, 2008 UT 9, 179 P.3d 754.

The committee considered a "loss of chance" instruction, but decided that Utah law is unclear on whether such instructions are appropriate. Counsel should review Restatement (Second) of Torts § 323(a) (1965); Medved v. Glenn, 2005 UT 77; 125 P.3d 913 (increased risk of harm is a cognizable injury where a related injury is also present) ; Anderson v. BYU, 879 F.Supp 1124 (D. Utah 1995); Seale v. Gowans, 923 P.2d 1361 (Utah 1996); George v. LDS Hospital, 797 P.2d 1117 (Utah App. 1990); Anderson v. Nixon, 139 P.2d 216 (Utah 1943); R.A. Eades, Jury Instructions on Medical Issues, Instructions 10-10 to 10-12 (LexisNexis, 6th ed. 2007).

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.

Utah Code Section 78B-3-406.
Burton v. Youngblood, 711 P.2d 245 (Utah 1985).
Nixdorf v. Hicken, 612 P.2d 348 (Utah 1980).
Ficklin v. MacFarlane, 550 P.2d 1295 (Utah 1976).
Nguyen v. Primary Childrens' Med. Ctr., 2012 Utah App 288. (Hospital does not have an independent duty to obtain informed consent except in special circumstances.)
Lounsbury v. Capel, 836 P.2d 188 (Utah App. 1992).

It is important to distinguish actual consent from informed consent. Informed consent is an agreement by the patient to a procedure after having been made aware of the substantial and significant risks of serious harm from the care, and the alternatives to it. One may actually consent to a procedure and yet not have given an informed consent. See Lounsbury v. Capel, 836 P.2d 188 (Utah App. 1992).

The persons authorized to provide consent to treatment are designated in Utah Code Section 78B-3-406(4). Lounsbury v. Capel, 836 P.2d 188 (Utah App. 1992) held that the reference in Section 78B-3-406(4) to "spousal" consent can only be interpreted to mean that a spouse can consent for care to an incapacitated spouse. See also Reiser v. Lohner, 641 P.2d 93, 99 (Utah 1982), for the proposition that a husband's consent is not necessary for surgery on his wife.

Section 78B-3-407 has added a new limitation on actions brought against health care providers arising out of refusal of parents or guardians to consent to recommended treatment. There are other consent statutes scattered throughout the Utah Code. See for example, Sections 15-2-5 (parental consent not required for minor's blood donation), 26-6-18 (minor's power to consent to treatment for sexually transmitted diseases), 76-7-304.5 and -305 (abortions), and 62A-6-105 (sterilization).

The committee has not intended to provide an exhaustive list of every possible instruction that may be needed in any case alleging lack of consent. For this, we refer the reader to Chapter 5 of Professor Eade's comprehensive work, R.A. Eades, Jury Instructions on Medical Issues (LexisNexis, 6th ed. 2007).

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];

(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.

Utah Code Section 78B-3-406(1).
Ramon v. Farr, 770 P.2d 131 (Utah 1989).
Burton v. Youngblood, 711 P.2d 245 (Utah 1985).
Reiser v. Lohner, 641 P.2d 93 (Utah 1982).

Elements (1) and (2) will normally be undisputed, and the court should tailor the instruction accordingly.

Section 78B-3-406 does not address the patient's right to be informed of the risks from rejecting offered treatment. The committee has inserted the bracketed portion of Paragraph (5) in case the court wishes to consider the appropriateness of an instruction on rejection of offered care.

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.

Utah Code Section 78B-3-406(2).
Ramon v. Farr, 770 P.2d 131 (Utah 1989).
Reiser v. Lohner, 641 P.2d 93 (Utah 1982).
Ficklin v. MacFarlane, 550 P.2d 1295 (Utah 1976).

Chadwick v. Nielsen, 763 P.2d 817 (Utah App. 1988), discusses the need for expert testimony in informed consent cases to establish the materiality of risks; that is, what the risks are, how serious they are, and how often they occur. But whether those risks should be disclosed is usually a matter for the jury to decide based upon their determination of substantiality and significance, not upon standard medical practice.

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.

Utah Code Section 78B-3-406(1).

CV314 Consent to or refusal of treatment.

The "safe harbor" defense for written consent forms of Utah Code Section 78B-3-406(2)(e) does not foreclose consent obtained by other means; such as orally, by acquiescence, or by a writing that does not comply with the statute. The statute simply means that if there is a writing that complies with its requirements, it is a defense to the action for lack of informed consent unless the patient proves lack of capacity or fraud.

CV315 Consent is presumed.

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

Utah Code Section 78B-3-406(1).
Lounsbury v. Capel, 836 P.2d 188 (Utah App. 1992).

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.

Utah Code Section 78B-3-406(2)(b).

If this instruction is given, the verdict form should ask whether the risk of harm was commonly known to the public.

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.

Utah Code Section 78B-3-406(2)(c).

If this instruction is given, the verdict form should ask whether plaintiff refused to be informed of the risk of harm.

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.

Utah Code Section 78B-3-406(2)(d).

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.]

Utah Code Section 78B-3-406(2)(e).

The committee felt that the court would normally decide whether a written consent complies with the requirements of Section 78B-3-406(2)(e). Thus, there is no need for a jury instruction on the statutory elements of the "safe harbor" written consent as was contained in MUJI 1st 6.16. In this new instruction, "written consent" presumes a written consent that has been found to meet the statutory requirements. Otherwise, it should not be used.

It would be the unusual case where both lack of capacity and fraud are raised as defenses to a statutorily-compliant written consent. Therefore, the trial court will normally give only subsection (1) or (2) of this instruction, not both.

If the evidence warrants Paragraph (2), the verdict form should be amended to clear and convincing evidence instead of preponderance of the evidence.

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:

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.

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.

Mackey v. Greenview Hosp., Inc., 587 S.W.2d 249 (Ky. Ct. App. 1989).

CV323 Reserved.

CV324 Use of alternative treatment methods.

The wording of the removed instruction could have suggested bias in favor of the Defendant. However, there may be circumstances in which some version of an alternative treatment methods instruction would be appropriate.

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:

Daniels v Gamma West, 2009 UT 26.
Seale v. Gowans, 923 P.2d 1361 (Utah 1996).
Chapman v. Primary Children's Hosp., 784 P.2d 1181 (Utah 1989).
Brower v. Brown, 744 P.2d 1337 (Utah 1987).
Hove v. McMaster, 621 P.2d 694 (Utah 1980).
Foil v. Ballinger, 601 P.2d 144 (Utah 1979).
McDougal v. Weed, 945 P.2d 175 (Utah App. 1997).
Deschamps v. Pulley, 784 P.2d 471 (Utah App. 1989).
Hargett v. Limberg, 598 F. Supp. 152 (D. Utah 1984).

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.

Dalley v. Utah Valley Reg. Med. Ctr., 791 P.2d 193 (Utah 1990).
Farrow v. Health Servs. Corp., 604 P.2d 474 (Utah 1979).
Lyon v Bryan, 2011 UT App 256 (jury entitled to disregard even unrebutted expert testimony).

In Nielson v. Pioneer Valley Hospital, 830 P.2d 270 (Utah 1992), and Brady v. Gibb, 886 P.2d 104 (Utah App. 1994), the courts held that instructions similar to this should not be given in conjunction with a "common knowledge" or res ipsa loquitor instruction unless plaintiff is also alleging breach of a different standard of care.

Instruction CV129, Statement of opinion should not be given when this instruction is used, as it instructs the jurors that they may disregard expert testimony.

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.

Dalley v. Utah Valley Regional Medical Ctr., 791 P.2d 193 (Utah 1990).
Nixdorf v. Hicken, 612 P.2d 348 (Utah 1980).
Talbot v. Dr. W.H. Groves Latter-Day Saints Hosp., 21 Utah 2d 73, 440 P.2d 872 (1968).
Robb v. Anderton, 863 P.2d 1322 (Utah App. 1993).
Virginia S. v. Salt Lake Care Ctr., 741 P.2d 969 (Utah App. 1987).
Robinson v. Intermountain Health Care, Inc., 740 P.2d 262 (Utah App. 1987).
Roylance v. Rowe, 737 P.2d 232 (Utah App. 1987).
Weeks v. Latter-Day Saints Hosp., 418 F.2d 1035 (10th Cir. 1969).
Pete v. Youngblood 2006 Utah App. 303, 141 P.3d 636.

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.

Bowman v. Kalm, 2008 UT 9.
Nixdorf v. Hicken, 612 P.2d 348, 352 (Utah 1980).
Kim v. Anderson, 610 P.2d 1270 (Utah 1980).
Malmstrom v. Olsen, 16 Utah 2d 316, 400 P.2d 209 (1965).
Fredrickson v. Maw, 119 Utah 385, 227 P.2d 772 (1951).

Nielson v. Pioneer Valley Hospital, 830 P.2d 270 (Utah 1992), and Brady v. Gibb, 886 P.2d 104 (Utah App. 1994), held that instructions similar to this one are inconsistent with "need for expert testimony" instructions and should not be given together.

This instruction should be given only if there is another instruction stating the need for expert testimony on the standard of care as, for example, when a patient claims a needle was improperly left in the surgical site and that the suturing was done incorrectly. The first claim would probably not require expert testimony under Nixdorf v. Hicken; the second would. The instruction should also clarify which claim requires expert testimony and which does not.

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.

Mikkelsen v. Haslam, 764 P.2d 1384 (Utah App. 1988).

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.

Utah Code Section 78B-3-408.

CV331 Past Medical Expenses

In medical malpractice cases, expenses incurred for medical care [or medical devices] by the Plaintiff prior to trial are decided by the judge. Therefore, you will not hear evidence regarding the amount of Plaintiff’s past medical-related expenses. The fact that you will not be presented with past medical-related expense amounts must not influence your decisions on other issues in the case. [You may be asked to determine what award, if any, should be made for future medical expenses [or medical equipment] for the Plaintiff.]

Utah Code section 78B-3-405.5 (eff. May 7, 2025).

As of the date of publication (November 2025), the underlying statute has been held unconstitutional by at least one district court. This statute deals only with past medical expenses, so evidence of future medical expenses may still be presented to the jury.

CV399 Verdict Forms

These verdict forms must be tailored to fit the circumstances of the case. The templates include questions of fault about two defendants, a third party and plaintiff. Add or remove sections about parties and other actors as needed. Similarly, in the section on comparative fault, add or remove lines as needed to account for different actors.

Regarding the question on damages, there must be some evidence to support each item of damages listed on the verdict form. The court should delete or add items as needed to conform to the evidence.

Amended January 10, 2012

CV401 Legal Malpractice Instruction Notes

The Committee omitted MUJI 1st Instructions 7.45 and 7.46 because there is no Utah case law supporting them.

If the defendant claims not to be liable because the law is uncertain, the court decides as a matter of law whether the law is uncertain. Watkiss & Saperstein v. Williams, 931 P.2d 840 (Utah 1997).

For instructions on damages, see the damages instructions for Commercial Contracts and Tort Damages.

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:

(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.

Crestwood Cove Apartments Business Trust v. Turner, 2007 UT 48, 164 P.3d 1247.
Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9, 70 P.3d 17.

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:

Kirkpatrick v. Wiley, Rein & Fielding, 909 P2d 1283 (Utah 1996).
Smoot v. Lund, 13 Utah 2d 168, 369 P2d 933 (1962).
Shaw Resources v. Pruitt, Gushee & Bachtell, 2006 UT App 313,142 P.3d 560.
Walter v. Stewart, 2003 UT App 86, 67 P.3d 1042.

This instruction should be given only in cases that involve claims of breach of fiduciary duty, for example, mishandling client funds, breach of confidentiality, conflict of interest, etc. The list of fiduciary duties in Paragraph (2) is not exhaustive, and the judge should instruct only on those duties for which there is evidence.

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.

Roderick v. Ricks, 2002 UT 84, 54 P.3d 1119.
Kilpatrick v. Wiley, Rein & Fielding, 2001 UT 107, 37 P.3d 1130.
Utah State Bar Ethics Advisory Opinion No. 05-04, Issued September 8, 2005.

If the attorney-client relationship is not disputed, rather than give this instruction, the court should instruct the jury that the element is stipulated.

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.

Watkiss & Saperstein v. Williams, 931 P.2d 840 (Utah 1997).
Williams v. Barber, 765 P.2d 887 (Utah 1988).

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.

Lundberg v. Backman, 11 Utah 2d 330, 358 P.2d 987 (1961).
Bruer-Harrison, Inc. v. Combe, 799 P.2d 716 (Utah App. 1990).
Rule of Professional Conduct 1.2. Scope of Representation.
Utah State Bar Ethics Advisory Opinion No. 05-04.

There may be some circumstances in which there is a duty to act beyond an agreed upon limit. The court may need to draft an instruction defining "informed consent" because RPC 1.2 does not.

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;

(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.

Kilpatrick v. Wiley, Rein & Fielding, 909 P2d 1283 (Utah 1996).
Breton v. Clyde Snow &Sessions, 2013 Ut App 65.
Harline v. Barker, 854 P2d 595 (Utah App. 1992).
Dunn v. McKay, Burton, McMurray & Thurman 584 P2d 894 (Utah 1978).
Young v. Bridwell, 20 Utah 2d 332, 437 P2d 686 (1968).
See Instruction CV209, "Cause" defined.

This instruction tracks the MUJI 2nd instruction on causation. For a further explanation of this instruction, see the Committee Notes to Instruction CV209, "Cause" defined.

The instruction should describe, as part of the act or failure to act, the "case within the case."

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,

Steiner v. Johnson & Higgins, 996 P2d 531 (Utah 2000).

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.

Crestwood Cove Apartments Business Trust v. Turner, 2007 UT 48, 164 P.3d 1247.

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:

(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:

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.

SME Industries, Inc. v. Thompson, Ventulett, Stainback and Assoc., Inc., 2001 UT 54, para. 25-29, 28 P.3d 669.
Erickson Landscaping Co. v. Wessel, 711 P. 2d 250, 253 (Utah 1985).
Klein v. Catalano, 437 N.E.2d 514 (Mass. 1982).
Borman's, Inc. v. Lake State Dev. Co., 230 N.W.2d 363 (Mich. Ct. App. 1975).
Nauman v. Harold K. Beecher & Assocs., 467 P.2d 610, 614-15 (Utah 1970).
Whitman v. W.T. Grant Co., 395 P.2d 918, 920 (Utah 1964).

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.

Steiner Corp. v. Johnson & Higgins of California, 118 F. Supp. 2d 1174, 1182-83 (D. Utah 2000) (holding that an actuary holding itself out to public as a specializing expert in actuarial field is held to the "heightened standard of care" of similar professionals).

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.

Preston & Chambers, P.C. v. Koller, 943 P.2d 260, 263 (Utah Ct. App. 1997).
Wyaclis v. Guardian Title of Utah, 780 P.2d 1989, 726 n. 8 (Utah Ct. App. 1989).
Groen v. Tri-O-Inc., 667 P.2d 598, 603 (Utah 1983).
Dixon v. Stewart, 658 P.2d 591, 597 (Utah 1982).
Nauman v. Harold K. Beecher & Assocs., 24 Utah 2d 172, 467 P.2d 610 (1970).

This instruction should not be given unless the court has determined that expert testimony is required to establish the standard of care. It may be that lay persons are competent to decide whether the defendant breached the standard of care without relying on expert testimony.

Instruction CV 136, Conflicting testimony of experts, might be given in conjunction with this instruction.

This instruction will require modification if experts in disciplines other than the defendant's are found competent to testify to the applicable standard of care. See Wessel v. Erickson Landscaping Company, 711 P.2d 250 (Utah 1985).

If expert testimony is required to establish the element of causation, this instruction may be modified to address that issue at well. See Bowman v. Kalm, 2008 UT 9, 179 P.3d 754.

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.

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.

Western Land Equities, Inc. v. City of Logan, 617 P. 2d 388, 395 (Utah 1980) (holding that economic waste results from expenditures of construction costs without benefit to public or private property owners).
Winsness v. M. J. Conoco Distributors, Inc., 593 P.2d 1303, 1307 (Utah 1979).
F.C. Stangl, III v. Todd, 554 P.2d 1316, 1320 (Utah 1976).
Rex T. Fuhriman, Inc. v. Jarrell, 21 Utah 2d 298, 302-03, 445 P.2d 136, 139 (Utah 1968).
Restatement (First) of Contracts sect. 346(1) (1932).

It is appropriate to give in connection with Instruction CV 504, Instruction CV2010, "Fair market value" defined.

Due to Utah's economic loss rule, claims for recovery of solely economic losses (the damages claimed do not seek recovery for personal injuries or damage to property separate from the property that is the subject of the design professional's services contract) against design professionals are normally submitted to the jury on breach of contract causes of action. In those cases, in addition to this instruction and Instruction CV505, as applicable and appropriate, the court should use the damages instructions Instruction CV2135, Instruction CV2136, Instruction CV2137, Instruction CV2138, Instruction CV2140 and Instruction CV2141. In Commercial Contracts, use Instruction CV2101, et. seq., to the extent applicable and appropriately modified as circumstances in the case require.

With respect to claims against design professionals submitted to the jury in tort, including claims for personal injuries and claims for damages to property separate from the property that is the subject of the design professional's services contract, in addition to this instruction and Instruction CV505, as applicable and appropriate, the court should use the instructions in Tort Damages, Instruction CV2001, et. seq., to the extent applicable and appropriately modified as circumstances in the case require.

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.

Lochrane Engineering, Inc. v. Willingham Realgrowth Inv. Fund, Ltd., 552 So. 2d 228, 232-33 (Fla. App. 1989).
Reiman Construction Co. v. Jerry Hiller Co., 709 P.2d 1271, 1277 (Wyo. 1985).
St. Joseph Hosp. v. Corbetta Constr. Co., 316 N.E. 2d 51, 59-62 (Ill. App. 1974).
Henry J. Robb, Inc. v. Urdahl, 78 A. 2d 387, 388-89 (D.C. App. 1951).
Pingree v. Continental Group of Utah, Inc., 558 P.2d 1317, 1319-20 (Utah 1976).
Ogden Livestock Shows, Inc. v. Rice, 159 P.2d 130, 132-33 (Utah 1945).

Limiting damages so that plaintiff is not better off than he or she would have been had he or she not been harmed by defendant's breach is a well-established concept in many circumstances, but it has not specifically been adopted in Utah in the context of negligence by design professionals.

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].

SME Industries, Inc. v. Thompson,Ventulett, Stainbeck and Associates, 2001 UT 54, para. 21, 28 P. 2d 669.
Groen v. Tri-O-Inc., 667 P. 2d 598, 606 (Utah 1983).

CV507 Breach of warranty essential elements.

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

(3) [name of defendant] reasonably expected that [name of plaintiff] would rely on 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.]

SME Industries v. Thompson, 2001 UT 54, para. 29, 28 P.3d 669 (Utah 2001).
Management Comm. of Graystone Pines Homeowners Ass'n v. Graystone Pines, Inc., 652 P.2d 896 (Utah 1982).

This instruction should be given only if the express warranty is independent of the standard of care. Do not give the bracketed last paragraph if the warranty at issue is an implied warranty by a design professional implicit in the contract to do work or perform a service to use reasonable skill and care in doing so. See SME Industries, Inc. v. Thompson,Ventulett, Stainbeck and Associates, 2001 UT 54, ¶ 29, 28 P. 2d 669.

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].

SME Industries v. Thompson, 2001 UT 54, para. 29, 28 P.3d 669 (Utah 2001).
John Cruet, Jr. v. Robert Carroll, 2001 Conn. Super. Lexis 3336.
Nauman v. Harold K. Beecher & Assocs., 24 Utah 2d 172, 467 P.2d 610 (1970).
Mississippi Meadows, Inc. v. Hodson, 299 N.E.2d 359 (Ill. App. Ct. 1973).
Klein v. Catalano, 437 N.E.2d 514 (Mass. 1982).
Borman's, Inc. v. Lalm State Dev. Co., 230 N.W.2d 363 (Mich. Ct. App. 1975).

Give this instruction only if the design professional is an architect, engineer or land surveyor and the claim is that the architect, engineer or land surveyor made an implied warranty implicit in the contract to do work or perform a service to use reasonable skill and care in doing so. See, SME Industries, Inc. v. Thompson,Ventulett, Stainbeck and Associates, 2001 UT 54, ¶ 29, 28 P. 2d 669.

Do not give the first clause of this instruction if the plaintiff was not the party contracting with the design professional, as the implied warranty implicit in the contract of an architect, engineer or land surveyor to do work or perform a service to use reasonable skill and care in doing so is made only to the party contracting with the design professional. Id. Give this instruction in conjunction with Instruction CV501. Standard of care for design professionals.

CV601A Motor Vehicle Instruction Notes

Much of motor vehicle law is governed by statute, and a civil claim for damages will often involve a violation of the Utah Motor Vehicle Code or a municipal or county ordinance. These instructions are general in nature, and, rather than include the regulations in each instruction, the Committee recommends appropriate use of Instruction CV602, Violation of statute, ordinance or safety law. If the trial includes evidence of a violation, the court should supplement the general instruction with CV602, quoting or summarizing the specific subsection(s) - or even parts of subsections - relevant to the evidence.

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:

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

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

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.

Utah Code Section 41-6a-605.
Child v. Gonda, 972 P.2d 425 (Utah 1998).
Hall v. Warren, 692 P.2d 737 (Utah 1984).
Intermountain Farmers Ass'n v. Fitzgerald, 574 P.2d 1162 (Utah 1978).
Thompson v. Ford Motor Co., 16 Utah 2d 30; 395 P.2d 62 (1964).
Gaw v. State ex rel. Dep't of Transp., 798 P.2d 1130 (Utah App. 1990).
Jorgensen v. Issa, 739 P.2d 80 (Utah App. 1987).
See Instruction CV212, Violation of a safety law.

The safety law applies if:

(1) plaintiff belongs to a class of people that the law is intended to protect; and

(2) the law is intended to protect against the type of harm that occurred as a result of the violation.

The instruction should be modified to include only those excuses for which there is supporting evidence.

CV603 Reasonable care.

The court should instruct the jury on the definition of "reasonable care." See Instruction CV202, Negligence defined.

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.

Jorgensen v. Issa, 739 P.2d 80 (Utah Ct. App. 1987)

CV605 Lookout.

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

Henderson v. Meyer, 533 P.2d 290 (Utah 1975).
Wardell v. Jerman, 18 Utah 2d 359, 423 P.2d 485 (1967).

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.

Utah Code Section 41-6a-711.

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.

Utah Code Section 41 6a 1601.

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.

Utah Code Section 41-6a-601.
Anderson v. Bradley, 590 P.2d 339 (Utah 1979).

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.

Utah Code Section 41-6a-605.

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.

Utah Code Section 41-6A-804.
Batty v. Mitchell, 575 P.2d 1040 (Utah 1978).

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.

Utah Code Section 41-6a-102.

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.

Utah Code Section 41-6A-903.

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.

[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.]

Utah Code Section 41-6a-901.

This instruction would also apply to an intersection regulated from all directions by stop signs.

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.

Utah Code Sections 41-6a-304 and -305.

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.]

Utah Code Section 41-6a-307.
Utah Code Section 41-6a-902.

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].

Utah Code Section 41-6a-307.
Utah Code Section 41-6a-902.

CV617 Intoxicated driver.

[(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.]

Utah Code Section 41-6a-502.

CV618 Young drivers.

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

Summerhill v. Shipley, 890 P.2d 1042 (Utah App. 1995).

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:

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

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

See Utah Code Section 41-6a-904.

This instruction assumes that the emergency vehicle is authorized by law in its emergency travel. If authorization is not stipulated to, the court should address this issue as a matter of law or, if a question of fact exists, by additional instructions.

CV620 Emergency vehicle drivers.

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

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

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

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

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.

See Utah Code Section 41-6a-212.

CV621 Pedestrians.

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

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.]

See Utah Code Section 41-6a-1002 and Section41-6a-1003.

If the case calls for alternative (2), a definition of unmarked crosswalk should be given, see Utah Code Section 41-6a-102(a).

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.

See Utah Code Section 41-6a-1002(1)(a).

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].

See Utah Code Section 41-6a-306.

The judge should adjust this instruction if the pedestrian signal uses a different technology or the case is controlled by a local ordinance. See e.g., Section 12.32.055 of the Salt Lake City Traffic Code.

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.

Woodward v. Spring Canyon Coal Co. 90 Utah 578, 63 P.2d 267 (Utah 1936).
Rivas v. Pacific Finance Co. 16 Utah 2d 183, 397 P.2d 990 (1964).
Kilpack v. Wignall 604 P2d 462, 1979 Utah Lexis 953 (Utah 1979).
See Instruction CV204, Care required when children are present.

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.

Utah Code Sections 41-6a-1101 to -1114, 41-6a-706.5.
Utah Code Sections 41-6a-102(4), (34), (42).

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.

Utah Code Section 41-6a-706.5.

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.

Utah Code Section 41-6a-216.
Jones v. Bountiful, 834 P.2d 556, (Utah App 1992)

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.

Mulbach v. Hertig, 15 Utah 2d 121, 388 P.2d 414 (1964)
Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986)

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.

Utah Code Section 53-3-212.
Dixon v. Stewart, 658 P.2d 591 (Utah 1982).

The judge may instruct the jury on this point of law even if the owner stipulates that he gave the driver permission to drive.

The separate imputed liability addressed in Utah Code Section 53-3-211 seldom results in jury trial issues, and also involves insurance issues. As a result, such issues are normally resolved by the court, often in pre-trial motions. This Instruction does not attempt to address section -211.

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:

(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.

Wilcox v. Wunderlich, 73 Utah 1, 272 P 207 (1928).
Lane v. Messer, 731 P.2d 488 (Utah 1986).
Am Jur 2d Automobiles and Highway Traffic sect. 617

Liability for negligent entrustment is not imputed liability; rather, it is independent negligence for the act of entrustment. Therefore, the jury should apportion fault to the negligent entrustment tortfeasor pursuant to UCA 78B-5-818, -819 and -820.

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:

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

Utah Code Section 31A-22-309(1)(a).
Pinney v. Carrera, 2020 UT 43, 469 P.3d 970.

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.

Pinney v. Carrera, 2019 UT App 12, paras. 23-25, 438 P.3d 902, aff'd, Pinney v Carrera, 2020 UT 43, 469 P.3d 970.

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.

Pinney v. Carrera, 2019 UT App 12, paras. 23-25, 438 P.3d 902, aff'd, Pinney v. Carrera, 2020 UT 43, 469 P.3d 970.

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.

Pinney v. Carrera, 2019 UT App 12, paras. 23-25, 438 P.3d 902, aff'd, Pinney v. Carrera, 2020 UT 43, 469 P.3d 970.

Unlike disability and impairment, what is meant by "disfigurement" under this statute does not appear to have been defined so this definition just focuses on the "permanent" aspect. (In fact, the Supreme court specifically declined to reach the issue of disfigurement in Sheppard v. Geneva Rock, 2021 UT 31, para. 45 n.8, 493 P.3d 632, because it resolved the case on other grounds.) Only provide the jury with these definitions if applicable to the threshold or thresholds the plaintiff claims to meet.

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.

Pinney v. Carrera, 2019 UT App 12, paras. 26-27, 438 P.3d 902, aff'd, Pinney v. Carrera, 2020 UT 43, paras. 21-29, 469 P.3d 970.

Testimony from an expert or treating physician could satisfy the "objective findings" requirement.

CV633 Police officer testimony.

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.

URE 416, 608, 612, 613, 701-705.

This instruction is a practical answer to one of the most common questions posed by jurors in motor vehicle accident trials: Whether to defer to the police officer's assessment of the accident and the issuance of a traffic ticket. The instruction results from the Committee's extensive experience in jury trials involving motor vehicle accidents, and interviewing jurors after their verdicts. This instruction is not based on any specific Utah case law regarding police officer testimony, but instead, represents the Committee's unanimous view of the proper application of the Utah Rules of Evidence to police officer testimony.

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.

C.R. Owens Trucking Corp. v. Stewart, 29 Utah 2d 353, 509 P2d 821 (1973).
Robinson v. Hreinson, 17 Utah 2d 261, 409 P2d 121 (1965).
Ivie v. Richardson, 9 Utah 2d 5, 336 P2d 781 (1959).
Morrison v. Perry, 104 Utah 151, 140 P2d 772 (1943).
Gibbs M. Smith, Inc. v. U.S. Fidelity & Guar. Co., 949 P2d 337 (Utah 1997).
URE 411.

The Committee unanimously agreed on the need to address insurance in motor vehicle accident cases, given the ubiquitous nature of automobile insurance and jurors' knowledge of such, the frequency with which insurance is introduced at trial either intentionally or inadvertently, and the inclination of jurors to speculate about insurance coverage during deliberation.

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.

Utah Code Section 41-6a-1806.

While Utah Code Section 41-6a-1806 does not allow evidence of seatbelt nonuse with respect to issues of negligence, injuries, or the mitigation of damages, some members of the committee believe that this statute does not entirely prohibit evidence of seat belt usage. These members believe that evidence of seatbelt nonuse may be admissible for purposes outside of those restricted by the statute, such as explaining the accident sequence, causation, or vehicle design safety. See Utah R. Evid. 105 (evidence may be admissible for one purpose but not for another and "the court shall restrict the evidence to its proper scope and instruct the jury accordingly").

The issue of seatbelt evidence is particularly relevant in crashworthiness cases. In Whitehead v. American Motor Sales Corp., 801 P.2d 920, 928 (Utah 1990), a case involving allegations of defective vehicle design, the Utah Supreme Court held that evidence of how the presence of seatbelts affected the design safety of the vehicle should be admitted. Thus, in crashworthiness or design defect cases, seatbelt evidence should be admitted at least on the issue of overall vehicle design. Id.

Whether this instruction is appropriate must be evaluated on a case-by-case basis.

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.

Anderson v. Fautin, 2016 UT 22, para. 8, 379 P.3d 1186
RHN Corp. v. Veibell, 2004 UT 60, para. 23, 96 P.3d 935
Martin v. Lauder, 2010 UT App 216, para. 5, 239 P.3d 519
Q-2, LLC v. Hughes, 2014 UT App 19, para. 8, 319 P.3d 732
Ault v. Holden, 2002 UT 33, para. 18, 44 P.3d 781

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.

Linebaugh v. Gibson, 2020 UT App 108, para. 25, 471 P.3d 835
Bahr v. Imus, 2011 UT 19, para. 36, 250 P.3d 56
Gillmor v. Cummings, 904 P.2d 703, 707 (Utah Ct. App. 1995)
Fuoco v. Williams, 421 P.2d 944, 946 (Utah 1966)

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.

Anderson v. Fautin, 2016 UT 22, para. 26, 379 P.3d 1186
Bahr v. Imus, 2011 UT 19, para. 36, 250 P.3d 56
Staker v. Ainsworth, 785 P.2d 417, 420 (Utah 1990)

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.

Linebaugh v. Gibson, 2020 UT App 108, para.para. 26-27, 471 P.3d 835
Anderson v. Fautin, 2016 UT 22, para.para. 24, 30, 379 P.3d 1186
Essential Botanical Farms, LC v. Kay, 2011 UT 71, para.para. 27, 34, 270 P.3d 430
RHN Corp. v. Veibell, 2004 UT 60, para. 23, 96 P.3d 935
Martin v. Lauder, 2010 UT App 216, para. 5, 239 P.3d 519
Q-2, LLC v. Hughes, 2014 UT App 19, para. 8, 319 P.3d 732
Ault v. Holden, 2002 UT 33, para. 18, 44 P.3d 781

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.

Anderson v. Fautin, 2016 UT 22, para. 24, 379 P.3d 1186
Carter v. Hanrath, 925 P.2d 960, 962 (Utah 1996)

The burden of proof for this defense is not entirely clear from the case law; however, a preponderance of the evidence standard would apply in absence of authority to suggest the higher clear and convincing standard would be applicable.

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.]

Black's Law Dictionary (Abridged 7th ed.).

Metro. Water Dist. of Salt Lake & Sandy v. SHCH Alaska Tr., 2019 UT 62, para. 49, 452 P.3d 1158.

Wykoff v. Barton, 646 P.2d 756 (Utah 1982).

The parties may include in the parenthetical a description of additional or other particular uses more specific to the facts of the case. Depending on the easement at issue, the easement may include an area above or below the surface of the land.

If there are additional types of easements, the jury may be instructed according to the particular easement. By including these instructions, the Committee does not intend to take a position on the question of whether a right to a jury trial exists for any particular easement claim.

CV921 Prescriptive Easement. Introduction.

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

Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998) (prescriptive easement).

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:

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].

M.N.V. Holdings LC v. 200 South LLC, 2021 UT App 76, para. 9, 494 P.3d 402.

Judd v. Bowen, 2017 UT App 56, para. 10, 397 P.3d 686, 692.

Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998).

For the definition of clear and convincing, see CV118.

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:

SRB Inv. Co., Ltd v. Spencer, 2020 UT 23, 463 P.3d 654.

Harrison v. SPAH Family Ltd., 2020 UT 22, paras. 31, 41-43, 466 P.3d 107, 116-17.

Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998).

Marchant v. Park City, 788 P.2d 520, 524 (Utah 1990).

Lunt v. Kitchens, 260 P.2d 535, 537 (Utah 1953).

Zollinger v. Frank, 175 P.2d 714, 716 (Utah 1946).

Jensen v. Gerrard, 39 P.2d 1070, 1073 (Utah 1935).

M.N.V. Holdings LC v. 200 South LLC, 2021 UT App 76, paras. 14-15, 494 P.3d 402, 407-08.

Judd v. Bowen, 2017 UT App 56, para. 16, 397 P.3d 686, 693.

Jacob v. Bate, 2015 UT App 206, para. 27, 358 P.3d 346, 355.

In certain cases when there is a question whether the use is prescriptive or permissive, the user’s belief regarding whether the use is adverse may be at issue. See Harrison v. SPAH Family Ltd., 2020 UT 22, paras. 31, 41-43, 466 P.3d 107, 116-17.

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.

Judd v. Bowen, 2017 UT App 56, para. 22, 397 P.3d 686, 694.

Lunt v. Kitchens, 260 P.2d 535, 537 (Utah 1953).

Jensen v. Gerrard, 39 P.2d 1070, 1072 (1935).

David A. Thomas & James H. Backman on Utah Real Property Law, Easement by Necessity, sec. 12.02(b)(2)(ii), at 341 (ed. 2021).

https://propertyrights.utah.gov/find-the-law/legal-topics/easements/

CV925 Prescriptive Easement. "Adverse" Defined.

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

Harrison v. SPAH Family Ltd., 2020 UT 22, paras. 31-32 n.16, 39-40, 466 P.3d 107, 114-16.

Zollinger v. Frank, 175 P.2d 714, 716 (Utah 1946).

Judd v. Bowen, 2017 UT App 56, para. 25, 397 P.3d 686, 695.

Jacob v. Bate, 2015 UT App 206, para. 18, 358 P.3d 346, 353.

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.

Harrison v. SPAH Family Ltd., 2020 UT 22, paras. 31-32 n.16, 51, 466 P.3d 107, 114-15, 118.

Valcarce v. Fitzgerald, 961 P.2d 305, 311-12 (Utah 1998).

Zollinger v. Frank, 175 P.2d 714, 716 (Utah 1946).

Jacob v. Bate, 2015 UT App 206, paras. 18-19, 358 P.3d 346, 353.

CV926B Overcoming Adverse Presumption.

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.

Harrison v. SPAH Family Ltd., 2020 UT 22, paras. 31-32 n.16, 51, 466 P.3d 107, 118.

Valcarce v. Fitzgerald, 961 P.2d 305, 311-12 (Utah 1998).

Zollinger v. Frank, 175 P.2d 714, 716 (Utah 1946).

Jacob v. Bate, 2015 UT App 206, paras. 18-19, 358 P.3d 346, 353.

Since cases do not specifically state the standard of proof for rebuttal, the Committee presumes the applicable standard is preponderance of the evidence.

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.

Tschaggeny v. Union Pac. Land Res. Corp., 555 P.2d 277, 280 (Utah 1976).

Abraham & Assocs. Trust v. Park, 2012 UT App 173, para. 12, 282 P.3d 1027, 1030-31.

The term "public road" is meant to be illustrative only and it may be appropriate to replace it with a more specific description in a given case.

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.

Morris v. Blunt, 49 Utah 243, 161 P. 1127, 1132 (1916).

Savage v. Nielsen, 114 Utah 22, 31-33, 197 P.2d 117, 121-22 (1948).

Tschaggeny v. Union Pac. Land Res. Corp., 555 P.2d 277, 280 (Utah 1976).

Potter v. Chadaz, 1999 UT App 95, para. 18, 977 P.2d 533, 538.

David A. Thomas & James H. Backman on Utah Real Property Law, Easement by Necessity, sec. 12.02(b)(2)(ii), at 341 (ed. 2021).

This instruction applies to cases based solely upon a claim of an easement by necessity. Other easement claims will require proof of additional elements. Tschaggeny v. Union Pac. Land Res. Corp., 555 P.2d 277, 280 (Utah 1976).

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.

Tschaggeny v. Union Pac. Land Resources Corp., 555 P.2d 277, 280 (Utah 1976).

Bridge BLOQ NAC LLC v. Sorf, 2019 UT App 132, para. 24, 447 P.3d 1278, 1282.

The Committee notes that the Utah Supreme Court in Tschaggeny used both "apparent or visible easements" and "apparent, obvious, and visible" in defining an implied easement. In light of the ambiguity, the Committee chose to use the more recent formulation from the Sorf case.

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

Bridge BLOQ NAC LLC v. Sorf, 2019 UT App 132, para. 24, 447 P.3d 1278, 1282.

To make the instructions more understandable for jurors, the Committee uses the terms "transferred" and "retained" in place of "dominant" and "servient," respectively. In most cases, the easement would be on or across the retained parcel for the benefit of the transferred parcel, but it is conceivable that there are circumstances when the reverse could be true. Thus, those terms are placed in brackets. The parties may need to modify the fourth element depending on the factual circumstances of the case to elaborate on the meaning of the term "continuous."

Regarding element (2), see CV940 Committee Notes.

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

House v. Armour of America, 929 P.2d 340 (Utah 1996).

Instruct the jury only with the descriptions from (1), (2) and (3) that are relevant to the case.

Utah's Product Liability Act is codified at Utah Code Sections 78B-6-701 to 78B-6-707. Section 78-15-3of the Utah Product Liability Act was declared unconstitutional in Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985). Following the Berry decision, the Utah legislature repealed former sections 78-15-2 (legislative findings) and 78-15-3 (the unconstitutional statute of repose), and enacted a new section 78B-6-706 (statute of limitations). The legislature did not repeal, amend or otherwise change sections 78B-6-701, 78B-6-704, or 78B-6-703, which were held to be not severable from the portions of the statute declared unconstitutional in Berry. Although Utah courts have consistently cited and relied upon the Product Liability Act as codified since the legislature's action, the Utah Supreme Court has never directly addressed since Berry the constitutionality of those sections declared unconstitutional in Berry. See Egbert v. Nissan N. Am., Inc., 2007 UT 64, ¶ 8, n.3. The United States District Court for the District of Utah, however, has rejected the argument that section 78B-6-703 is unconstitutional. See Henrie v. Northrop Grumman Corp., 2006 U.S. LEXIS 23621 (D. Utah 2006).

In drafting instructions for a particular case, note that when the term "manufacturer" is used, the terms "retailer," "designer," "distributor," may be substituted, if appropriate, as the circumstances of the case warrant.

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:

(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.

Schaerrer v. Stewart's Plaza Pharmacy, Inc., 2003 UT 43, 16, 79 P.3d 922 (citing Interwest Constr. v. Palmer, 923 P.2d 1350, 1356 (Utah 1996)).
Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152 (Utah 1979).
Wankier v. Crown Equipment Corp., 353 F.3d 862, 867-68 (10th Cir. 2003).
Brown v. Sears, Roebuck & Co., 328 F.3d 1274, 1280 (10th Cir. 2003).
Allen v. Minnstar, Inc., 8 F.3d 1470, 1472 (10th Cir. 1993).
Restatement (Second) of Torts sect. 402A (1963 & 1964).

Section 402A of the Restatement (Second) of Torts, which the Utah Supreme Court adopted in Ernest W. Hahn, Inc., requires that the defendant be engaged in the business of selling the product. Occasional sellers are not liable in product liability actions. See Louis R. Frumer & Melvin I. Friedman, Product Liability. Section 5.04 (1997). In most cases, there will be no dispute as to whether the defendant was engaged in the business of selling the product. If the defendant was not, the court will dismiss any strict products liability claim before trial. If there is evidence from which reasonable minds could disagree, however, the court should add a fifth element: "whether ... (5) [Name of defendant] was engaged in the business of selling the [product]."

CV1003 Strict liability. Definition of "design defect."

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.

(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.

Brown v. Sears, Roebuck & Co., 328 F.3d 1274, 1280-82 (10th Cir. 2003).
Schaerrer v. Stewart's Plaza Pharmacy, Inc., 2003 UT 43, 16, 79 P.3d 922 (citing Interwest Constr. v. Palmer, 923 P.2d 1350, 1356 (Utah 1996)).
Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152 (Utah 1979).
Allen v. Minnstar, Inc., 8 F.3d 1470, 1472 (10th Cir. 1993).
Wankier v. Crown Equipment Corp., 353 F.3d 862, 867-68 (10th Cir. 2003).
Restatement (Second) of Torts sect. 402A (1963 & 1964).
Restatement (Third) of Torts sect. 2, notes.

Whether the second prong of the design defect definition in Alternative B - a safer alternative design - is an element of a design defect claim may be an open question. No Utah state appellate court has considered whether proving the existence of a safer alternative design is required, but the federal district courts in Utah and the Tenth Circuit have required this element as essential to a design defect claim. See Allen v. Minnstar, Inc., 8 F.3d 1470, 1472 (10th Cir. 1993); Brown v. Sears, Roebuck & Co., 328 F.3d 1274, 1280 (10th Cir. 2003); Wankier v. Crown Equipment Corp., 353 F.3d 862, 867-68 (10th Cir. 2003).

On the issue of availability, the court in Allen v. Minnstar recognized that plaintiff must prove the safer alternative design was "commercially available" or "commercially feasible." However, later pronouncements by the Tenth Circuit in Brown v. Sears, Roebuck & Co., and Wankier v. Crown Equipment Corp. have simply used the term "available." Whether the timeframe for the safer alternative design is at the time of design or manufacture or the date of sale will be determined by the particular facts of the case.

CV1004 Strict liability. Definition of "manufacturing defect."

Instruct the jury only with the descriptions from (1) or (2) that are relevant to the case.

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.

Tafoya v. Sears Roebuck & Co., 884 F.2d 1330, 1332 (10th Cir. 1989).
Restatement (Third) of Torts, Product Liability sect.4.

CV1006 Strict liability. Definition of "unreasonably dangerous."

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.

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.

Utah Code Section 78B-6-703(2).
Brown v. Sears, Roebuck & Co., 328 F.3d 1274, 1280-82 (10th Cir. 2003).
Restatement (Second) of Torts sect. 402A (1963 & 1964).

Alternative A is a restatement of Utah Code Section 78B-6-703, in which the knowledge, training, and experience of the user are among the factors for the jury to consider in deciding whether the product was unreasonably dangerous. Alternative B is a restatement of Brown v. Sears, Roebuck & Co., 328 F.3d 1274 (10th Cir. 2003), in which the knowledge, training, and experience of the user are a complete defense.

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.

[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.

House v. Armour of America, Inc., 929 P.2d 340, 344 (Utah 1996).
Restatement (Second) of Torts sect. 402A comment j (1963 & 1964).

This instruction may not be appropriate if the manufacturer provided a warning, or if the manufacturer does not dispute that it had a duty to warn the plaintiff of a particular danger.

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

(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.

House v. Armour of America, 929 P.2d 340 (Utah 1996).
Restatement (Second) of Torts sect. 402A (1963 & 1964).

The bracketed language should be given only if the jury, not the judge, decides whether there was a duty to warn.

A case might raise the issue of the adequacy of the product's instructions, rather than the adequacy of the warnings, in which case the judge would properly substitute "instruct" and "instructions" for "warn" and "warnings."

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:

House v. Armour of America, Inc., 886 P.2d 542 (Utah Ct App 1994), affd 929 P.2d 340 (Utah 1996).

This instruction should be followed by Instruction 1006. Definition of "unreasonably dangerous."

This instruction may not be appropriate if a regulatory body, such as the Food and Drug Administration, directs that a specific warning must be given for a product. See, e.g., 21 CFR 201.57, detailing format headings and order of warning for particular drugs and medical devices.

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.

House v. Armour of America, Inc., 886 P.2d 542 (Utah Ct App 1994), affd 929 P.2d 340, 347 (Utah 1996).
Rule 301. Utah Rules of Evidence.

This instruction is appropriate when it cannot be demonstrated whether the injured party would have read and followed an adequate warning. See House v. Armour of America, 886 P.2d 542 (Utah Ct App 1994), affd 929 P.2d 340, 347 (Utah 1996).

Some members of the committee do not believe this instruction is appropriate in cases in which the "learned intermediary doctrine" applies. See Schaerrer v. Stewart's Plaza Pharmacy, Inc., 2000 Utah 43, 16, 79 P.3d 922 (citation omitted). While the FDA regulates the labeling of prescription pharmaceuticals and medical devices, it does not regulate the practice of medicine, including the prescribing practices of physicians. See 59 FR 59820-04, 1994 WL 645925 (1994).

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.

Restatement (Second) of Torts sect. 402A comment j (1963 & 1964).
House v. Armour of America, Inc., 886 P.2d 542 (Utah Ct App 1994), affd 929 P.2d 340 (Utah 1996).

The unbracketed language in the first sentence is based on Comment j to Section 402A, which states: "Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous." Restatement (Second) of Torts § 402A cmt. j (1964). This language from Comment j was recognized in House v. Armour of Am., 886 P.2d 542 (Utah Ct. App. 1994), affirmed 929 P.2d 340 (Utah 1996), and incorporated in the first version of the Model Utah Jury Instructions in instructions 12.6 and 12.7.

Although the word "adequate" does not appear in this language of Comment j, some members of the committee believe that a defendant is entitled to the presumption only if the warning was adequate. These members suggest that the word "adequate" precede the word "warning" in this instruction to achieve uniformity with other instructions on warnings.

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.

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].

Utah Code Sections 78B-5-817 to 78B-5-823.

The Utah Supreme Court has not yet determined if or how fault should be apportioned between the manufacturer of a defective part and the manufacturer of the finished product. Some courts applying a comparative fault system similar to Utah's have concluded that, in some situations, such as in cases of vicarious liability or strict products liability, multiple defendants should be treated as a single unit, on the theory that they are "joint tortfeasors" in the original sense, that is, persons responsible for carrying out a tort by concerted action. See, e.g., In re Rapco Foam, Inc., 23 B.R. 692 (W.D. Wis. 1982); Arena v. Owens-Corning Fiberglas Corp., 74 Cal. Rptr. 2d 580, 593 (Ct. App.), review denied (Cal. 1998); Wimberly v. Derby Cycle Corp., 65 Cal. Rptr. 2d 532, 535-41 (Ct. App. 1997), and cases cited therein; Steenrod v. Doubrava, 498 N.Y.S.2d 225 (App. Div. 1986); Restatement (Third) of Torts: Apportionment of Liability §§ 7 cmt. j; 13 & cmts. a, c, d, and e. Therefore, some subcommittee members favored the following instruction:

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.

Grundberg v. Upjohn Co., 813 P.2d 89 (Utah 1991).

In Grundberg v. Upjohn Co., 813 P.2d 89 (Utah 1991), the Utah Supreme Court exempted claims for misrepresentation on the FDA from the operation of this rule. However, in the subsequent decision of Buckman Co. v. Plaintiffs' Legal Committee, 531 U.S. 341, 121 S.Ct. 1012, 69 USLW 4101, the United States Supreme Court held that state law fraud on the FDA claims conflict with and are preempted by federal law. 531 U.S. at 348, 121 S.Ct. at 1017. Accordingly, the committee has not included claims of misrepresentation on the FDA in this instruction. At the time of the drafting of this instruction, there was an unresolved split among federal district courts regarding preemption of warnings claims for FDA approved pharmaceuticals. The language of this instruction may, therefore, require amendment depending upon the resolution of that conflict.

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.

W. R. H., Inc. v. Economy Builders Supply, 633 P.2d 42 (Utah 1981).
Hunt v. ESI Engineering, Inc., 808 P.2d 1137 (Utah 1991).
Slisze v. Stanley-Bostitch, 1999 UT 20 (1999).
Bishop v. GenTec, Inc., 48 P.3d 218 (Utah 2002).
Utah Code Section 78B-6-703.

The bracketed portions of the second paragraph represent two viewpoints regarding the elements required for negligence in a products liability claim.

Under Utah's Product Liability Act, "In any action for damages for personal injury, death, or property damage allegedly caused by a defect in a product" a plaintiff must prove, among other things, that "a defect or defective condition in the product" rendered the product "unreasonably dangerous to the user or consumer." Utah Code Section 78B-6-703. In Bishop v. GenTec, the Utah Supreme Court confirmed that a claim sounding in "[p]roducts liability always requires proof of a defective product . . ." 48 P.3d 218 (Utah 2002) (citing Grundberg v. Upjohn Co., 813 P.2d 89, 92 (Utah 1991)) and "allegations of negligence contained in a claim for products liability do not transform the claim into one for ordinary negligence." Thus, some members of the committee believe that pursuant to the Product Liability Act and this authority from the Utah Supreme Court, no matter the theory, plaintiff must prove that a defect or defective condition rendered the product unreasonably dangerous.

However, the Utah Supreme Court in Slisze v. Stanley-Bostitch recognized that Utah's Product Liability Act "does not preclude a party from jointly bringing common law negligence claims and that it is, therefore, possible to simultaneously bring a negligence and strict liability claim." The Utah Supreme also recognized in that case that "a manufacturer may act negligently without its product being unreasonably dangerous . . . ." Slisze, 979 P.2d at 317. Thus, some members of the committee believe that in pursuing a common law negligence claim involving a product under Utah law plaintiff must prove that a manufacturer has a "duty to use reasonable care in manufacturing the product to eliminate any unreasonable risk to those who the manufacturer knows or should expect would be endangered by the product." These committee members believe that a negligence claim does not require proof that the product is defective and in an unreasonably dangerous condition. In addition to Slisze, these members believe Section 395 of the Restatement (Second) of Torts properly described the requirements for a common law negligence claim. Tallman v. City of Hurricane, 985 P.2d, 896 (Utah 1999). Section 395 does not require proof of a "defective and unreasonably dangerous condition."

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:

(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

Utah Code Section 78B-6-703.
Bishop v. GenTec, Inc., 48 P.3d 218 (Utah 2002).
Slisze v. Stanley-Bostitch, 1999 UT 20 (1999).

This instruction should be followed by Instruction 1003 (Definition of Design Defect) or Instruction 1004 (Definition of Manufacturing Defect) and Instruction 1006 (Definition of Unreasonably Dangerous.

Based upon their interpretation of Slisze v. Stanley-Bostitch, some committee members do not believe that the jury should be instructed that elements 1 and 2 are required for a negligence claim involving a product. See Committee Note to Instruction 1015. Definition of "Negligence."

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.

[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.

House v. Armour of America, Inc., 929 P.2d 340, 344 (Utah 1996).
Restatement (Second) of Torts sect. 402A cmt. j (1963 & 1964).

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

(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.

House v. Armour of America, Inc., 929 P.2d 340, 344 (Utah 1996).
Restatement (Second) of Torts sect. 402A cmt. j (1963 & 1964).

The bracketed language should be given only if the jury, not the judge, decides whether there was a duty to warn.

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:

House v. Armour of Am. 886 P.2d 542 (Utah Ct. App. 1994).

This instruction should be followed by Instruction 1006. Definition of unreasonably dangerous.

To the extent regulatory bodies, such as the Food and Drug Administration, dictate what specific warning must be given for a particular product, this instruction may not be appropriate. See, e.g., 21 CFR 201.57 (detailing format, headings and order of warnings for particular prescription drugs and medical devices.)

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.

Hunt v. ESI Engineering, Inc., 808 P.2d 1137 (Utah 1991).
Grundberg v. Upjohn Co., 813 P.2d 89 (Utah 1991).
Slisze v. Stanley-Bostitch, 1999 UT 20 (1999).

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.

Barson v. E. R. Squibb & Sons, Inc., 682 P.2d 832, 835-36 (Utah 1984).

Some members of the committee believe that this instruction conflicts with federal regulations governing the labeling of prescription drugs, see 21 C.F.R. § 201.57, and, therefore, it is inappropriate. The FDA's position at the time of the drafting of this instruction was that its approval of labeling for prescription drugs preempts state law failure to warn claims. See 71 Fed. Reg. 15, 3922, 3967-69 (Jan. 24, 2006)(amending 21 C.F.R. part 201). At the time of the drafting of this instruction, there was an unresolved split among federal district courts regarding preemption of warnings claims for FDA approved pharmaceuticals. This instruction may, therefore, be inapplicable or its language may require amendment depending upon the resolution of that conflict.

Regarding the issue of a post-sale duty to warn, the members of the committee believe that the manufacturer should not be deemed to have constructive knowledge of possible risks associated with the use of a drug that are reported from unreliable sources. "If pharmaceutical companies were required to warn of every suspected risk that could possibly attend the use of a drug, the consuming public would be so barraged with warnings that it would undermine the effectiveness of these warnings." Doe v. Miles Laboratories, Inc., Cutter Laboratories Div., 927 F.2d 187 (4th Cir. 1990). Therefore, the committee has included in the instruction that constructive knowledge of any dangerous side effects associated with the use of a particular drug imputed to a manufacturer must be based on sources that are trustworthy and reliable.

CV1022 Negligence. Retailer's duty.

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].

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.

Sanns v. Butterfield, 2004 UT App 203, 94 P.3d 301 (Utah Ct. App. 2004).
Restatement (Second) of Torts sect.sect. 401, 402.

This instruction may not be appropriate if the defendant distributes the product as his own, Restatement (Second) of Torts § 400, or if the manufacturer of the product is not a party to the action or is insolvent, see Sanns, 2004 UT App 203, ¶¶ 21 & 22.

This instruction is meant to state a retailer's liability for negligence. Members of the committee disagreed over whether a plaintiff must prove that the product was defective and unreasonably dangerous in a negligence action. Alternative A reflects the views of those members who think that a plaintiff must prove that the product was defective and unreasonably dangerous even where the plaintiff's claim sounds in negligence and not strict products liability. Alternative B reflects the views of those members of the committee who think that the elements of a negligence claim are different from those for strict products liability and do not require a showing that the product was "defective and unreasonably dangerous."

Some committee members think that a retailer can still be liable under a theory of strict products liability under the Liability Reform Act. One judge in the U.S. District Court for the District of Utah held that the Liability Reform Act did not do away with strict products liability for passive distributors in Kahler v. American Honda Motor Co., No. 2:00-CV-00294PGC, but the Utah Court of Appeals essentially rejected this position in Sanns v. Butterfield Ford, 2004 UT App. 203, 94 P.3d 301. The Utah Supreme Court has not yet decided this issue, but the Utah Court of Appeals essentially rejected this argument in Sanns. The court, however, did recognize possible exceptions. The first paragraph of this instruction may therefore not be appropriate if the defendant distributes the product as his own, Restatement (Second) of Torts § 400, or if the manufacturer of the product is not a party to the action or is insolvent. See Sanns, 2004 UT App 203, ¶¶ 21 & 22.

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.

Groen v. Tri-O-Inc., 667 P.2d 598 (Utah 1983).
Black's Law Dictionary 1618 (8th ed. 2004).

A breach of warranty claim may sound in contract or tort. Notably, under Utah law, the analysis applied to a warranty claim is determined by "the nature of the action and not the pleading labels chosen." Davidson Lumber v. Bonneville Inv., 794 P.2d 11, 14 (Utah 1990) (finding a clear distinction between implied warranties for contract purposes and implied warranties in tort).

Certain instructions may pertain exclusively to contract or tort actions. These instructions are appropriately labeled. Where the committee members could not agree on an instruction, their positions are set forth in the committee notes.

A plaintiff whose product has been damaged or destroyed, or who alleges lost profits because of the inability to use his or her product, may only seek recovery from the seller or manufacturer in contract, pursuant to the Uniform Commercial Code. American Towers Owners Association, Inc. v. CCI Mechanical, Inc., 930 P.2d 1182 (Utah 1996), quoting Maack v. Resource Design & Construction, Inc., 875 P.2d 570, 579-80 (Utah Ct. App. 1994) (holding under Utah law, economic damages are not recoverable in negligence or strict liability absent damage to property other than the subject product or bodily injury); Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214, 217-18 n.3 (Utah 1984) (stating the court has never blended tort and contract concepts to allow products liability for purely economic injuries). Under the economic loss rule, a plaintiff seeking this type of economic damages has no recourse in tort law.

However, plaintiffs who have suffered personal injuries and damage to property other than the product itself can recover under a tort theory, including the pursuit of a claim for breach of warranty. Utah courts have stated that when brought under a tort theory, the elements of strict liability and breach of implied warranty of merchantability"are essentially the same." Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152, 159 (Utah 1979) (citing William L. Prosser, The Assault Upon the Citadel, 69 Yale L.J. 1099 (1960); David G. Epstein, Products Liability: Defenses Based on Plaintiff's Conduct, 1968 Utah L. Rev. 267); Grundberg v. Upjohn Co., 813 P.2d 89, 91-92 (Utah 1991) (strict liability claim analyzed under Section 402A of the Restatement (Second) of Torts (1965) which preceded enactment of Utah's Product's Liability Act); Berry By and Through Berry v. Beech Aircraft, 717 P.2d 670, 672 (Utah 1985) (plaintiff's claims of strict liability and breach of warranty were analyzed under Utah's Product Liability law). See also Salt Lake City Corp. v. Kasler Corp., 855 F. Supp. 1560, 1572 (D. Utah 1994); Straub v. Fisher & Paykel Health Car, 1999 UT 102, ¶ 16 n.1, 990 P.2d 384; Burns v. Cannondale Bicycle Co., 876 P.2d 415, 418 n.2 (Utah Ct. App. 1994).

Moreover, pursuant to the language of Utah's Product Liability Act, Utah Code Section 78B-6-703 (stating "[I]n any action for damages for personal injury, death, or property damage allegedly caused by a defect in a product . . ."), applies to all claims for injuries caused by a product defect, regardless of the legal theory asserted. Courts interpreting Utah law have concluded that the Products Liability Act applies to all claims against a manufacturer based on a defective product, regardless of the legal theory. See McCollin v. Synthes, Inc., 50 F. Supp. 2d 1119, 1122 (D. Utah 1999); Strickland v. General Motors Corp., 852 F. Supp. 956, 958-59 (D. Utah 1994); McKinnon v. Tambrands, Inc., 815 F. Supp. 415, 418 (D. Utah 1993). See also Local Gov't Trust v. Wheeler Mach., 2006 UT App 513, ¶ 11, 154 P.3d 175 (the parties agreed, based on Strickland, that the Product Liability Act's statute of limitations would apply to all claims arising out of a product defect). Accordingly, some members of the committee believe that in a tort action for breach of warranty, plaintiff must prove, among other elements, that a specific defect rendered the product unreasonably dangerous.

Other committee members believe that the elements of a breach of warranty claim are essentially the same whether the claim sounds in contract or tort and that the principal differences between a breach of warranty claim sounding in contract and one sounding in tort are in the applicable statutes of limitations, privity requirements, defenses, and remedies. These committee members do not think that the plaintiff in a breach of warranty action must prove "a specific defect" other than the breach of warranty itself. The Utah Supreme Court has stated that the Products Liability Act does not subsume all claims involving products. Slisze v. Stanley-Bostitch, 979 P.2d 317, 319, ¶¶ 7 & 8 (Utah 1999) (holding that it is possible to bring a common-law negligence claim and a strict liability claim simultaneously). Cf. Alder v. Bayer Corp., 2002 UT 115, ¶¶ 21-23, 61 P.3d 1068 (the products liability statute of limitations did not apply to a claim based on the negligent installation and maintenance of a product); Misener v. General Motors, 924 F. Supp. 130, 132 & n.1 (D. Utah 1996) (per Magistrate Judge Boyce) (claims for negligence and breach of implied warranty are not governed by the Products Liability Act; to the extent Strickland implied otherwise, it has been undermined by Dansie v. Anderson Lumber Co., 878 P.2d 1155, 1159 (Utah Ct. App. 1994)).

Notably, the Utah Supreme Court has not explained how implied warranty claims and strict liability claims may differ.

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

(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.

Utah Code Section 70A-2-313.
Division of Consumer Protection v. GAF Corp. 760 P.2d 310 (Utah 1988).
Groen v. Tri-O-Inc., 667 P.2d 598 (Utah 1983).
CACI 1230.
Ronald W. Eades. Jury Instructions On Products Liability sect. 4-1 (3d ed. 1999).

The court should include in the instruction only the numbered paragraph or paragraphs that describe the plaintiffs' claim and that are supported by the evidence. For example, if the case does not involve a sample or model, the court should not include paragraph (3).

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.

Pacific Marine Schwabacher, Inc. v. Hydroswift Corp., 525 P.2d 615 (Utah 1974).

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].

Groen v. Tri-O-Inc., 667 P.2d 598 (Utah 1983).
CACI 1230.

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];

Division of Consumer Protection v. GAF Corp., 760 P.2d 310 (Utah 1988).

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];

(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.

Utah Code Section 70A-2-318.
Boud v. SDNCO, Inc. 2002 UT 83.
Division of Consumer Protection v. GAF Corp., 760 P.2d 310 (Utah 1988).
Groen v. Tri-O-Inc., 667 P.2d 598 (Utah 1983).
Management Committee of Graystone Pines HOA v. Graystone Pines, Inc., 652 P.2d 896, 900 (Utah 1982).
Erickson v. Poulsen, 15 Utah 2d 190,389 P.2d 739 (1964).
Ronald W. Eades, Jury Instructions On Products Liability sect. 4-1 (3d ed. 1999).

12.18; 12.19; 12.26.

The bracketed language at the end of paragraph (1) represents two alternatives, depending on whether the case is governed by the UCC or not. The first alternative is for cases governed by the UCC; the second is for cases not governed by the UCC. In cases not arising under the UCC, the Utah Supreme Court has said that reliance is generally necessary for a claim for breach of express warranty. See Groen v. Tri-O-Inc., 667 P.2d 598, 606 (Utah 1983); Management Comm. of Graystone Pines Homeowners Ass'n v. Graystone Pines, Inc., 652 P.2d 896, 900 (Utah 1982). The UCC, however, treats reliance under the "basis of the bargain" requirement. Some members of the committee believe that whether further reliance is required under the UCC is an open question under Utah law. See, e.g., Boud v. SDNCO, Inc. 2002 UT 83 (discussing whether Plaintiff relied on the express warranty under the UCC). Others believe the issue was resolved by dictum in GAF stating, "actual reliance need not be shown." 760 P.2d at 315.

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

(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;

(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].

Utah Code Section 78B-6-703.
Division of Consumer Protection v. GAF Corp., 760 P.2d 310 (Utah 1988).
Groen v. Tri-O-Inc., 667 P.2d 598 (Utah 1983).
Erickson v. Poulsen, 15 Utah 2d 190,389 P.2d 739 (1964).

12.18; 12.19; 12.26.

Some members of the committee believe in a tort action, the elements of strict liability and breach of warranty "are essentially the same." Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152, 159 (Utah 1979) (citing William L. Prosser, The Assault Upon the Citadel, 69 Yale L.J. 1099 (1960); David G. Epstein, Products Liability: Defenses Based on Plaintiff's Conduct, 1968 Utah L. Rev. 267); see also Salt Lake City Corp. v. Kasler Corp., 855 F. Supp. 1560, 1572 (D. Utah 1994) (citing Utah cases). Based upon Hahn and its progeny, some members of the committee believe that the elements for a claim of breach of express warranty are different if the claim sounds in tort than if it sounds in contract. This instruction is meant to state the elements of a tort claim for breach of express warranty.

However, other members of the committee note that the court in Hahn refered only to a claim for breach of implied warranty of merchantability, not for breach of an express warranty. Thus, these committee members believe that the elements of a claim for breach of express warranty are the same, whether the claim sounds in contract or tort. They believe that this instruction adds the elements of a strict liability claim to those of a claim for breach of express warranty, making a claim for breach of express warranty more onerous than a claim for strict liability and hence not "essentially the same."

The bracketed language at the end of paragraph 1 represents two alternatives, depending on whether the case is governed by the UCC or not. The first alternative is for cases governed by the UCC; the second is for cases not governed by the UCC. In cases not arising under the UCC, the Utah Supreme Court has said that reliance is generally necessary for a claim for breach of express warranty. See Groen v. Tri-O-Inc., 667 P.2d 598, 606 (Utah 1983); Management Comm. of Graystone Pines Homeowners Ass'n v. Graystone Pines, Inc., 652 P.2d 896, 900 (Utah 1982). The UCC, however, treats reliance under the "basis of the bargain" requirement. Some members of the committee believe whether further reliance is required under the UCC is an open question under Utah law. See Committee Note to Instruction 1028. Breach of Express Warranty. Elements of claim. (Contract).

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];

[(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

(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].

Utah Code Section 70A-2-314(1) to (2).
Utah Code Section 70A-2-318.
Groen v. Tri-O-Inc., 667 P.2d 598 (Utah 1983).
CACI 1231

Section 70A-2-314(2) lists six ways in which a product may be unmerchantable. Paragraph (2) of this instruction incorporates the most common ways in which a product is alleged to have been unmerchantable in a products liability case. The court should tailor the instruction to the party's claims and the particular facts of the case. In paragraph (2) instruct on subparagraphs (a), (b) or (c) for which there is evidence.

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

[(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

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

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

Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152, 159 (Utah 1979).
63 Am Jur 2d Products Liability sect. 707.

In a tort action, the elements of strict liability and breach of warranty "are essentially the same." Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152, 159 (Utah 1979) (citing William L. Prosser, The Assault Upon the Citadel, 69 Yale L.J. 1099 (1960); David G. Epstein, Products Liability: Defenses Based on Plaintiff's Conduct, 1968 Utah L. Rev. 267); see also Salt Lake City Corp. v. Kasler Corp., 855 F. Supp. 1560, 1572 (D. Utah 1994) (citing Utah cases). Thus, some members of the committee believe that the elements for a claim of breach of implied warranty of merchantability are different if the claim sounds in tort than if it sounds in contract. This instruction is meant to state the elements of a tort claim for breach of implied warranty of merchantability.

Other members of the committee believe that the elements of a claim for breach of implied warranty of merchantability are the same whether the claim sounds in contract or tort. These committee members believe that, when the court in Hahn said that the elements of strict liability and breach of implied warranty "are essentially the same," it merely meant that a product that breached the implied warranty of merchantability was, by definition, defective, at least under a consumer expectations test such as that set out in Utah Code Section 78B-6-703(2). These committee members do not believe that a plaintiff in a tort case must prove a product defect separate and apart from the breach of implied warranty of merchantability but only has to show that a breach of the implied warranty and that the breach caused his harm.

In paragraph (2) instruct on subparagraphs (a), (b) or (c) for which there is evidence.

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].

Utah Code Section 70A-2-315.
Weir v. Federal Ins. Co., 811 F.2d 1387 (10th Cir. 1987).

Under the Section 70A-2-315, it is the time at which the contract is formed that seller's knowledge and buyer's reliance is evaluated. If the contract was formed at a time other than at the tome of sale, substitute "time of contracting" for "time of sale."

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;

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

Utah Code Section 70A-2-315.
Weir v. Federal Ins. Co., 811 F.2d 1387 (10th Cir. 1987).

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

(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;

Fitz v. Synthes (USA), 1999 UT 103, para.9, 990 P.2d 391.
63 Am. Jur. 2d 586 Products Liability sect. 724 (1996).

See Committee Note to Instruction CV1029, Breach of Express Warranty. Elements of claim. (Tort)

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];

(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].

Utah Code Sections 70A-2-314(3); 70A-2-316(3)(c) .

If the course of dealing is between parties other than the plaintiff and defendant, change "plaintiff" and "defendant" to "buyer" and "seller."

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.

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.

Utah Code Sections 78B-5-817 and 78B-5-818.
Dixon v. Stewart, 658 P.2d 591 (Utah 1982).

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.

Utah Code Section 70A-2-316(3)(b).

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.

Utah Code Section 70A-2-316.

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.

Utah Code Section 70A-2-316(2) .
Billings Yamaha v. Rick Warner Ford, Inc., 681 P.2d 1276 (Utah 1984).
Christopher v. Larsen Ford Sales, Inc., 557 P.2d 1009 (Utah 1976).
Chrysler Credit Corp. v. Burns, 527 P.2d 655 (Utah 1974).

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.

Utah Code Section 70A-2-607.

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.

Utah Code Section 70A-2-105.

Instructions 1042-1044 are based on statutory definitions in the Uniform Commercial Code (UCC). They should only be used where there is a disputed issue of fact as to whether the statutory requirement has been met (that is, whether the product involved was a "good" under the UCC, whether there was a "sale" of the product, whether a "sample" or "model" gave rise to a warranty, or whether there was a sufficient "description" of the product to give rise to a warranty).

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.

Utah Code Section 70A-2-106(1).

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.

Pacific Marine Schwabacher, Inc. v. Hydroswift Corp., 525 P.2d 615 (Utah 1974).

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.

House v. Armour, 929 P.2d 340 (Utah 1996).
Smith v. Frandsen, 94 P.3d 919 (Utah 2004).

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.

Utah Code Section 78B-6-703(3).
Egbert v. Nissan, 2007 UT 64, para.14.

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

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.

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

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

Utah Code Section 78B-6-705.

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]:

(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.

Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301 (Utah 1981).
Jacobsen Constr. Co. v. Structo-Lite Eng'g Inc., 619 P.2d 306 (Utah 1980).
Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152, 158 (Utah 1979).
Restatement (Second) of Torts sect. 402A cmt. n (1963 & 1964).

CV1050 Comparative fault.

[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].

[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.

Utah Code Section 78B-5-817 et seq.

"Fault" is defined in Instruction CV201, Fault defined.

If nonparties are alleged to be at fault and will be listed on the verdict form, the instruction may have to be broadened to include nonparties as well as the plaintiff and defendants.

The definition of "comparative fault" in the second paragraph should include only those forms of comparative fault that are at issue in the case. The court should give separate instructions defining the particular type of misconduct involved (e.g., misuse or unreasonable use).

The committee has developed two comparative fault instructions for use in products liability cases. The committee is divided over whether the "pure comparative fault" rule established in Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301 (Utah 1981) survived the Liability Reform Act of 1986.

At the time Utah adopted strict products liability in 1979, the Utah comparative negligence statute applied the so-called 50/50 rule, under which a plaintiff could not recover if his or her negligence was greater than or equal to that of the defendants. In Mulherin v. Ingersoll Rand Co., 628 P.2d 1301 (Utah 1981), the Utah Supreme Court adopted a pure form of comparative fault in strict products liability cases. In 1986 the Utah Legislature enacted the Utah Liability Reform Act, which kept the 50/50 rule of the prior comparative negligence. MUJI contained two similar alternative instructions in light of the uncertainty at the time as to whether the Utah Liability Reform Act applied to strict liability claims involving comparative fault. Some committee members believe this uncertainty still exists. Thus, the two alternative positions are set forth.

However, the Utah Supreme Court has decided a case involving strict liability and other claims apparently based on the 50/50 rule of comparative fault. In Interwest Construction v. Palmer, 923 P.2d. 1350 (Utah 1996), the Utah Supreme Court, in an opinion affirming a bench trial found that the trial court had erred in not considering the appellant's strict liability and negligence claims but found the error harmless because the trial court had correctly ruled against the appellant on its breach of contract and warranty claims because the appellant had caused its own damage. The Supreme Court read this as a factual determination that [the appellant's] misuse of [the product] exceeded the fault, if any, of its suppliers [the appellees]. Otherwise, the trial court would have apportioned damages on [the appellant's] breach of warranty claim." 923 P.2d at 1357. This language suggests that the court thought the Liability Reform Act applied. Nonetheless, some members of the committee believe the trial court's ruling can also be read as meaning that the appellant was the sole proximate cause of damages, in which case an apportionment of fault would be neither necessary nor proper. Notably, in Red Flame, Inc. v. Martinez, 2000 UT 22 , the Utah Supreme Court held that the mere fact that the Dramshop Liability Act prescribes a form of strict liability rather than traditional negligence does not exclude it from application of the comparative fault statute. See also S.H. v. Bistryski, 923 P.2d 1376 (Utah 1996) (holding comparative fault provisions of sections 78B-5-817 and 78B-5-818 applied to Utah's strict liability dog bite statute).

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

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.

Grundberg v. Upjohn Co., 813 P.2d 89 (Utah 1991).
Restatement (Second) of Torts sect.402A, cmt. k.

Some committee members believe that the jury should be permitted to consider whether the safety features are cost prohibitive in determining whether the product was unavoidably unsafe.

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.

Schaerrer v. Stewart's Plaza Pharmacy, Inc., 79 P.3d 922 (Utah 2003).
See also, Downing v Hyland Pharmacy, 2008 UT 65 (learned intermediary rule does not preclude a negligence claim against a pharmacist for dispensing drug that has been withdrawn from the market.)

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.

Utah Code Section 78B-6-703(3) (2007).
Slisze v. Stanley-Bostitch, 1999 UT 20.

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.

Utah Code Section 78B-6-703.
Misener v. General Motors, 924 F. Supp. 130, 132-33 (D. Utah 1996).
Utah R. Evid. 407.

Some committee members believe that the relevant time frame for consideration of subsequent remedial measures is based on the date the accident occurred. See Misener v. General Motors, 924 F. Supp. 130, 132-33 (D. Utah 1996). Other committee members believe that the relevant time frame for consideration of product defect according to Utah's Product Liability Act is when the product was designed or manufactured; therefore, subsequent remedial measures that occurred after the design or manufacture are irrelevant. See Utah Code Section 78B-6-703. Two alternatives are presented to reflect these viewpoints.

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]

(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:

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

Porter v. Farmington City Corp., 2014 UT App 12, 318 P.3d 1198.
Jex v. JRA, Inc., 2008 UT 67, 196 P.3d 576.
Hale v. Beckstead, 2005 UT 24, 116 P.3d 263.
Berrett v Albertsons, 2012 UT App 371.
Gonzalez v. Russell Sorensen Construction, 2012 UT App 154, extends this principal to a general contractor who controls a job site.
Carlile v. Wal-Mart, 2002 UT App 412, 61 P.3d 287.
Canfield v. Albertsons, Inc., 841 P.2d 1224 (Utah App 1992).
Glenn v. Gibbons & Reed Co., 265 P.2d 1013 (1954).
Restatement (Second) of Torts sect.343 (1965).

If the status of the plaintiff as an invitee is not disputed, the court does not need to give bracketed paragraph (1) to the jury. For examples of an invitee, see the Restatement (Second) of Torts Section 343 (1965).

Instruct only on factors (a) - (d) for which there is evidence.

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.

Berrett v Albertsons, 2012 UT App 371.
Gonzalez v. Russell Sorensen Construction, 2012 UT App 154, extends this principal to a general contractor who controls a job site.
Lambert v. Western Pac. R. Co., 135 Cal. App. 81, 26 P.2d 824 (1933).
Restatement (Second) of Torts sect.341 Activities Dangerous to Licensees (1965).

If the status of the plaintiff as a licensee is not disputed, the court does not need to give bracketed paragraph (1) to the jury.

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]

(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.

Berrett v Albertsons, 2012 UT App 371.
Gonzalez v. Russell Sorensen Construction, 2012 UT App 154, extends this principal to a general contractor who controls a job site.
Lambert v. Western Pac. R. Co., 135 Cal. App. 81, 26 P.2d 824 (1933).
Stevens v. Salt Lake County, 25 Utah 2d 168, 171, 478 P.2d 496 (1970).
Restatement (Second) of Torts sect.342 Dangerous Conditions Known to Possessor (1965).

If the status of the plaintiff as a licensee is not disputed, the court does not need to give bracketed paragraph (1) to the jury.

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].

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.]

Kessler v. Mortenson, 2000 UT 95, 16 P.3d 1225, 1230 (rejecting 'allurement' basis for attractive nuisance doctrine in Brown v. Salt Lake City, 33 Utah 222, 93 P. 570, 572 (1908)).
Connor v. Union Pac. R.R. Co., 972 P.2d 414, 417 (Utah 1998).
Whipple v. Am. Fork Irr. Co., 910 P.2d 1218, 1220 (Utah 1996) (citing and quoting Restatement (Second) of Torts Sections 333-339).

The court in Whipple adopted the Restatement Sections 333-339 as the "more accurate" statement of the law regarding the duty owed by a possessor of land. While a possessor does not generally owe a duty to trespassers, there are several exceptions enumerated in the Restatement Sections 334-339. Only those exceptions at issue should be given as part of the jury instructions. The last exception is the 'attractive nuisance doctrine,' formerly MUJI 11.1. The conditions of the attractive nuisance doctrine, as described in Section 339, impose a reasonable balance between the interests of the property owner and the interests of children.

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:

[(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.

Restatement (Second) of Torts Section 334 (1965).
Restatement (Second) of Torts Section 336 (1965).
Restatement (Second) of Torts Section 338 (1965).

This instruction should be preceded by Instruction CV1105. General duty to a trespasser.

Instruct the jury on paragraphs (1)(a) and/or (1)(b), depending on the evidence.

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:

[(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.

Restatement (Second) of Torts Section 335 (1965).
Restatement (Second) of Torts Section 337 (1965).

This instruction should be preceded by Instruction CV1105. General duty to a trespasser.

Instruct the jury on paragraphs (1)(a) and/or (1)(b), depending on the evidence.

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:

(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.

Restatement (Second) of Torts Section 339 (1965).

This instruction should be preceded by Instruction CV1105. General duty to a trespasser.

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.]

Schulz v. Quintana, 576 P.2d 855, 856 (Utah 1978).
Restatement (Second) of Torts, Sections 364-370 (1965).

Bracketed paragraph (3) should be given for conditions existing wholly on the land of the defendant, but which a plaintiff may only encounter through an innocent deviation from the public way, e.g., a trench adjacent to a public sidewalk which the plaintiff may step into in the dark by virtue of having left the public sidewalk.

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:

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

[(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.]

Williams v. Melby, 699 P.2d 723 (Utah 1985) (quoting Stephenson v. Warner, 581 P.2d 567 (Utah 1978)).
Hall v. Warren, 632 P.2d 848 (Utah 1981).
Gregory v. Fourthwest Investments, Ltd., 754 P.2d 89, 91 (Utah App. 1988).
English v. Kienke, 848 P.2d 153 (Utah 1993), aff'g 774 P.2d 1154 (Utah App. 1989).
Darrington v. Wade, 812 P.2d 452, 458 (Utah App. 1991).
Utah Air Quality Bd. v. Truman, 2000 UT 67, para. 28, 8 P.3d 266, 272.

If the defendant's role as a landlord is not in dispute, the court does not need to instruct the jury with bracketed paragraph (1). Instruct the jury on bracketed paragraphs (2)(a) and/or (2)(b) as supported by the evidence.

Under Utah law "the landlord's common law duty has been expanded" and is not limited by the "artificial common law categories" of invitee, licensee or trespasser. Gregory v. Fourthwest Investments, Ltd., 754 P.2d 89, 91 (Utah App. 1988). Utah law recognizes that "a landlord may be subject to a duty of care imposed by a statute or ordinance." Hall v. Warren, 632 P.2d 848, 850 (Utah 1981). In such circumstances, counsel and the court should consider adding other duties based on these laws. Counsel may also consider use of Instruction CV212. Violation of a safety law.

Court and counsel should also consider including additional language as needed such as a duty to inspect under Darrington v. Wade, 812 P.2d 452, 458 (Utah App. 1991)("landlords who lease their property for public admission have a higher duty than run-of-the-mill landlords.")

Previous MUJI 11.13 and 11.14 have been eliminated as they involve a situation subject to resolution as a matter of law. In effect, if the condition is created by the tenant or in an area not subject to the control of the landlord, there is no duty and hence no question for the jury to resolve. See, e.g. English v. Kienke, 848 P.2d 153 (Utah 1993), aff'g 774 P.2d 1154 (Utah App. 1989)(summary judgment affirmed, no duty by landlord); Stephenson v. Warner, 581 P.2d 567 (Utah 1978) (directed verdict granted in favor of landlord, no evidence that landlord aware of or created the condition); and, Williams v. Melby, 699 P.2d 723 (Utah 1985) (overruling summary judgment on the grounds that the dangerous condition was located within area subject to control of the landlord).

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:

[(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;

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

Loveland v. Orem City Corp., 746 P.2d 763 (Utah 1987).
Restatement (Second) of Torts Section 353 (1964).

The committee adopts this instruction as a plain language replacement for MUJI 11.15. The committee notes, however, that Loveland v. Orem City Corp., 746 P.2d 763 (Utah 1987) was a split decision, which upheld a motion for summary judgment granted by the trial court. Accordingly, a paucity of facts prevented the clear adoption of a rule regarding a property seller's duty, but nonetheless provided the court with an opportunity to outline such a duty. For example, the court stated that liability should follow the ability to possess or control the land giving rise to the dangerous condition. "Thus, even where bare legal title has been divested, liability has been imposed where a vendor continued to exercise possession or control." Id. at 767. However, the court did not adopt this as a rule of law because there was "no reasonable dispute" that the defendant lacked control or supervision over the premises. Id. Further, the court noted that sellers owe a duty to disclose concealed dangerous conditions, but again found insufficient facts to support the theory of liability. Id. at 768. Ultimately, the court and counsel should use the above instruction as an outline of liability and tailor the instruction to fit the applicable facts and relevant authorities.

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).

Utah Code Section 57-14-3.
Utah Code Section 57-14-4.
Crawford v. Tilley, 780 P.2d 1248 (Utah 1989)
De Baritault v. Salt Lake City Corp., 913 P.2d 743, 748 (Utah 1996)
Perrine v. Kennecott Mining Corp, 911 P.2d 1290 (Utah 1996)

This instruction should be used only if a question of fact exists as to the application of the act limiting liability or as to the character of the alleged omissions as willful or malicious. The existence of a duty is generally a question of law. If no question exists about the application of the act or the nature of the conduct, the presence or absence of a duty will presumably be determined as a matter of law by application of the act and this instruction will be unnecessary.

This instruction should be accompanied by the related instructions defining "recreational lands" and "recreational purposes," and should also be accompanied by definitions of "willful" and "malicious." If appropriate, a definition of a "charge" for use of the land may be given. The last paragraph may be omitted if no question exists of an intentional or willful injury.

This instruction is inappropriate if applied to property that exists in an urban, improved land environment. The instruction is based on Utah's Recreational Use statute and should only be given where the land is: "(1) rural, (2) undeveloped, (3) appropriate for the type of activities listed in the statute, (4) open to the general public without charge, and (5) a type of land that would have been opened in response to the statute." De Baritault v. Salt Lake City Corp., 913 P.2d 743, 748 (Utah 1996).

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.

Utah Code Section 78B-4-402.
Utah Code Section 78B-4-403.
Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991).
Ghionis v. Deer Valley Resort Co., 839 F. Supp. 789 (D. Utah 1993).
White v. DeSeelhorst, 879 P.2d 1371 (Utah 1994).
Rothstein v. Snowbird Corp., 2007 UT 96, 175 P.3d 560.

This instruction is designed for use when a question of fact exists about whether the mechanics of the injuries or the instrumentality involved falls within those risks inherent in skiing. This instruction should be given with instructions defining the elements of negligence and reasonable care and with an instruction that all of the jury instructions be read together and considered as a whole.

Give this instruction in conjunction with Instruction CV202A. "Negligence" defined.

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:

(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;

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

Utah Code Section 78B-4-402.
Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1047 (Utah 1991).

CV1112 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.

Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1047 (Utah 1991).

Although Section 78B-4-402 lists several categories of inherent risks of skiing and several examples within each category, Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991) recognizes that the statutory list is not exclusive and further defines "inherent risk" as "those risks that are essential characteristics of skiing-risks that are so integrally related to skiing that the sport cannot be undertaken without confronting [them]." Id. at 1047.

Clover further differentiates among inherent risks, based on whether the skier wants to confront the risk and whether the risk can be eliminated using reasonable care. If the skier wants to confront the risk, there is an assumption of the risk; if the risk can be eliminated using reasonable care, the risk is not an essential characteristic of skiing. Sections 78B-4-401 through -404 protect a ski area operator from liability only for injuries caused by risks that the skier wants to confront and risks that cannot be eliminated by reasonable care.

"[W]ithout a duty, there can be no negligence. Such an interpretation, therefore, harmonizes the express purpose of the statute, protecting ski area operators from suits arising out of injuries caused by the inherent risks of skiing, with the fact that the statute does not purport to abrogate a skier's traditional right to recover for injuries caused by ski area operators' negligence." Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1046 (Utah 1991).

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:

(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.

Neither the statutes nor the caselaw establish who has the burden of proving whether a risk is an inherent risk.

If the court determines that the issue is an element of the cause of action, then the judge should instruct the jury with Instruction CV1113A.

If the court determines that the issue is an affirmative defense, then the judge should instruct the jury with Instruction CV1113B.

However, failure to use reasonable care is usually an element of the cause of action, suggesting that the plaintiff has the burden of proof on whether the defendant could have eliminated the risk by using reasonable care, and URCP 8 describes assumption of risk as an affirmative defense, suggesting that the defendant has the burden of proof on whether the plaintiff wanted to confront the risk. Instruction CV1113C is such a blended instruction.

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:

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

Neither the statutes nor the caselaw establish who has the burden of proving whether a risk is an inherent risk.

If the court determines that the issue is an element of the cause of action, then the judge should instruct the jury with Instruction CV1113A.

If the court determines that the issue is an affirmative defense, then the judge should instruct the jury with Instruction CV1113B.

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.

Neither the statutes nor the caselaw establish who has the burden of proving whether a risk is an inherent risk.

If the court determines that the issue is an element of the cause of action, then the judge should instruct the jury with Instruction CV1113A.

If the court determines that the issue is an affirmative defense, then the judge should instruct the jury with Instruction CV1113B.

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.

Sycamore Family, L.L.C. v. Vintage on the River Homeowners Ass'n, Inc., 2006 UT App 387, para. 4, 145 P.3d 1177
Purkey v. Roberts, 2012 UT App 241, para. 17, 285 P.3d 1242
John Price Associates v. Utah State Conference, 615 P.2d 1210 (Utah 1980)
Wood v. Myrup, 681 P.2d 1255 (Utah 1984)

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].

Purkey v. Roberts, 2012 UT App 241, para. 17, 285 P.3d 1242
Peterson v. Petterson, 117 P. 70, 71 (Utah 1911)

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.

Lee v. Langley, 2005 UT App 339, para. 20 n.3, 121 P.3d 33
Haycraft v. Adams, 24 P.2d 1110, 1115 (Utah 1933)
Restatement (Second) of Torts sect. 252 (1965)

The MUJI 1 instructions enumerated express and implied consent separately. But the Utah case law speaks only of consent, which may be express or implied.

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.

Lee v. Langley, 2005 UT App 339, para. 20 n.3, 121 P.3d 33
Haycraft v. Adams, 24 P.2d 1110, 1115 (Utah 1933)
Restatement (Second) of Torts sect. 252 (1965)

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.

Haycraft v. Adams, 24 P.2d 1110, 1115 (Utah 1933)
Henderson v. For-Shor Co., 757 P.2d 465 (Utah App. 1988)

For a definition of economic and non-economic instructions, see CV2001 et. seq. For instructions on the measure of damages for injury to personal or real property resulting from a trespass, see CV2004-2011. The damages instructions may be adapted to the circumstances of the case. For example, the noneconomic damages in trespass may include the addition of discomfort and annoyance to CV2004's list of considerations. See Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1245-1249 (Utah 1998).

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.

Utah Code sect. 76-10-801
Morgan v. Quailbrook Condominium Co., 704 P.2d 573 (Utah 1985)
Branch v. Western Petroleum, Inc., 657 P.2d 267 (Utah 1982)
Vincent v. Salt Lake County, 583 P.2d 105 (Utah 1978)
Turnbaugh v. Anderson, 793 P.2d 939 (Utah App. 1990)

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.

Utah Code sect. 78B-6-1101 (defining certain nuisances)
Erickson v. Sorensen, 877 P.2d 144, 149 (Utah App. 1994)
Branch v. Western Petroleum, Inc., 657 P.2d 267 (Utah 1982)
Turnbaugh v. Anderson, 793 P.2d 939 (Utah App. 1990)

This instruction will only be given when the court has already made a determination that the conduct constitutes nuisance per se. Utah Code §§ 78B-6-1101 and 78B-6-1107 list some things that constitute nuisance per se, but there may be others. A nuisance per se exists when the conduct creating the nuisance is specifically prohibited by statute.

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].

Utah Code sect. 78B-6-1101 et al.
Cannon v. Neuberger, 268 P.2d 425, 426 (Utah 1954)
Dahl v. Utah Oil Ref. Co., 262 P. 269, 273 (Utah 1927)

Although the statutes do not mention reasonableness, the committee added a reasonableness requirement to conform to case law. See CV1213 for a discussion of reasonableness.

The statute provides specific instructions for when tobacco smoke, manufacturing and agricultural operations, and certain types of criminal activity may or may not be considered a nuisance. Those specific statutory causes of action and exceptions to nuisance liability are not included herein, but specially tailored instructions may be warranted in cases involving those statutory provisions.

The difference between the common law and statutory private nuisance claims will only be material in limited cases. Practitioners and judges may wish to present to the jury only the instruction most applicable to the circumstances of their case.

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.

Whaley v. Park City Mun. Corp., 2008 UT App 234, 190 P.3d 1
Sanford v. Univ. of Utah, 488 P.2d 741 (Utah 1971)
Johnson v. Mount Ogden Enterprises, Inc., 460 P.2d 333 (Utah 1969)
Turnbaugh v. Anderson, 793 P.2d 939 (Utah Ct. App. 1990)
Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1245 (Utah 1998)
Canon v. Neuberger, 268 P.2d 425, 426 (Utah 1954)
Dahl v. Utah Oil Ref. Col, 71 Utah 1, 262 P. 269, 273 (1927)

The first element of this instruction may be omitted if there is no factual dispute over whether the plaintiff has a legal interest in the real property.

Negligence is defined in CV202A and it may be appropriate to also give that instruction to the jury. See CV1213 for a discussion of reasonableness.

The difference between the common law and statutory private nuisance claims will only be material in limited cases. Practitioners and judges may wish to present to the jury only the instruction most applicable to the circumstances of their case.

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.

Utah Code sect. 76-10-803 (2019)
Whaley v. Park City Mun. Corp., 2008 UT App 234, 190 P.3d 1
Solar Salt Co. v. Southern Pac. Transp. Co., 555 P.2d (Utah 1976)
Monroe City v. Arnold, 452 P.2d 321 (Utah 1969)
Turnbaugh v. Anderson, 793 P.2d 939 (Utah Ct. App. 1990)
Erickson v. Sorensen, 877 P.2d 144, 148 (Utah App. 1994)

This instruction cites the elements for a statutory public nuisance claim. There may also be a common law claim. See Riggins v. Dist. Court of Salt Lake Cty., 51 P.2d 645, 662 (1935). See also the committee note to CV1208 regarding specific statutory nuisances and exemptions.

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.

Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1245 (Utah 1998)

For a definition of economic and non-economic damages, see CV2001 et. seq. For instructions on the measure of damages for injury to personal or real property resulting from a nuisance, see CV2004-2011. The damages instructions may be adapted to the circumstances of the case. For example, the noneconomic damages in a nuisance case may include the addition of discomfort and annoyance to CV2004's list of considerations. See Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1245-1249 (Utah 1998) and CV1212. A possessor of land may be allowed to recover "incidental damages for harms to his person or chattels" in an action for nuisance. See Turnbaugh for Benefit of Heirs of Turnbaugh v. Anderson, 793 P.2d 939, 942-43 (Utah Ct. App. 1990). The committee concluded that "incidental damages" are included in either economic or non-economic damages. In public nuisance claims, the first element of interference in the use and enjoyment of land may not apply; there may be other factors to consider.

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.

Wade v. Fuller, 365 P.2d 802, 805 (Utah 1961)
Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1245-49 (Utah 1998)

This instruction reflects the language of the case law on nuisance. Parties may also consider adapting CV2004.

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.

Utah Code sect. 78B-6-1101 et al.
Cannon v. Neuberger, 268 P.2d 425, 426 (Utah 1954)
Dahl v. Utah Oil Ref. Col, 71 Utah 1, 262 P. 269, 273 (1927)
Whaley v. Park City Mun. Corp., 2008 UT App 234, 190 P.3d 1
Walker Drug Co. v. La Sal Oil Col, 972 P.2d 1238, 1245 (Utah 1998)

Utah courts appear to be conflicted on the applicable considerations of "unreasonableness," with some addressing it by focusing on the conduct:

"[W]hat is a reasonable use of one's property must necessarily depend upon the circumstances of each case, for a use for a particular purpose and in a particular way, in one locality, that would be lawful and reasonable might be unlawful and a nuisance in another. The test of whether the use of the property constitutes a nuisance is the reasonableness of the use complained of in the particular locality and in the manner and under the circumstances of the case." Cannon v. Neuberger, 268 P.2d 425, 426 (Utah 1954) (cleaned up) (emphasis in original).

While others address it by focusing on the injury:

"Unlike most other torts, [private nuisance law] is not centrally concerned with the nature of the conduct causing the damage, but with the nature and relative importance of the interests interfered with or invaded. The doctrine of nuisance has reference to the interests invaded, to the damage or harm inflicted, and not to any particular kind of action or omission which has lead to the invasion.... Distinguished from negligence liability, liability in nuisance is predicated upon unreasonable injury rather than upon unreasonable conduct." Whaley v. Park City Mun. Corp., 2008 UT App 234, ¶22, 190 P.3d 1.

This conflict seems understandable because "no hard and fast rule controls the subject, for a use that is reasonable under one set of facts would be unreasonable under another." Dahl v. Utah Oil Ref. Co., 71 Utah 1, 262 P.269, 273 (1927). This is a fact-specific inquiry that "requires the finder of fact to evaluate, among other things, the severity of the harm vis-a-vis its social value or utility." Walker Drug Co. v. La Sal Oil Col, 972 P.2d 1238, 1245 (Utah 1998).

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].

W. v. Atkins, 487 U.S. 42, 49, 108 S. Ct. 2250, 2255, 101 L. Ed. 2d 40 (U.S. 1988)

See CV209 for a definition of "cause."

In the first element above, the committee has attempted to define "acting under color of state law" in plain language. The United States Supreme Court case of W. v. Atkins, 487 U.S. 42, 49, 108 S. Ct. 2250, 2255, 101 L. Ed. 2d 40 (U.S. 1988) provides that "[t]he traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law."

This instruction addresses federal section 1983 claims. For state civil rights claims, see Spackman v. Board of Education of Box Elder County, 2000 UT 87, and Jensen v. Cunningham, 2011 UT 17.

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].

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].

Utah Code section 77-7-2 places limitations on when a police officer can make a warrantless arrest.

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]:

In this instruction, the parties will need to insert each offense. The elements of each offense will need to be listed in separate instructions.

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.

State v. Peterson, 2005 UT 17 para. 11 ("Whether an officer has reasonable suspicion to subject an individual to a Terry stop and frisk is 'evaluated objectively according to the totality of the circumstances.'")

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.

U.S. v. Fonseca, 744 F. 3d 674, 680-81 (10th Cir. 2014) ("A twofold inquiry determines whether a Terry stop is reasonable under the Fourth Amendment. 'First, the officer's action must be justified at its inception.'" United States v. King, 990 F.2d 1552, 1557 (10th Cir.1993) (quoting Terry, 392 U.S. at 20, 88 S.Ct. 1868) (internal quotation marks omitted). Thus, '[f]or an investigative detention, the officer must have an articulable and reasonable suspicion that the person detained is engaged in criminal activity.' Id. Second, the officer's actions must be 'reasonably related in scope to the circumstances which justified the interference in the first place.' Id. (quoting Terry, 392 U.S. at 20, 88 S.Ct. 1868) (internal quotation marks omitted). 'There is no bright-line rule to determine whether the scope of police conduct was reasonably related to the goals of the stop; rather our evaluation is guided by common sense and ordinary human experience.' United States v. Albert, 579 F.3d 1188, 1193 (10th Cir.2009) (internal quotation marks omitted).")

State v. Chettero, 2013 UT 9 n.11 (Terry stop "must be justified at its inception").

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.

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.

Graham v. Connor, 490 U.S. 386 (1989)

Graham v. Connor, 490 U.S. 386 (1989), confirms objective reasonableness as the standard by which an officer's use of force is measured. This instruction supplies a framework for the concept of "objective reasonableness." Linguistically, "objective" and "subjective" are difficult terms for the average person to understand, so in order to avoid confusion, the instruction does not use the term "objectively reasonable."

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.

Soldal v. Cook County, 506 U.S. 56, 62, (1992)

United States v. Jacobsen, 466 U.S. 109, 113 (1984)

United States v. Hutchings, 127 F.3d 1255, 1259 (1997)

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:

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

Minnesota v. Carter, 525 U.S. 83 (1998)

Kentucky v. King, 563 U.S. 462 (2011)

These instructions refer to "property" in brackets, but it may be clearer to refer to the specific type of property involved in the case, such as residences, businesses, vehicles, backpacks, computer files, etc.

CV1312 Lawful Search of Real Property.

Steagald v. U.S., 451 U.S. 204, 101 S.Ct. 1642 (1981)

If one or more of the above is not at issue in this case, it should be omitted from the instruction. Similar exceptions will be applicable to other searches, such as automobile searches. The committee has here attempted to define reasonableness in a single, common context. But in contexts other than real property, be it automobiles, backpacks, computers, etc., the parties and the court should define what a reasonable search or entry is.

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.

United States v. Dewitt, 946 F.2d 1497 (10th Cir. 1991)

This instruction should only be used when consent is at issue, such as in a warrantless search or when a warrant is claimed to be invalid.

The parties should argue whether the circumstances in a given case give rise to consent. Some of the cases that discuss factors relevant to consent include Eidson v. Owens, 515 F.3d 1139 (10th Cir. 2008) and United States v. Jones, 701 F.3d 1300, 1318 (10th Cir. 2012).

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.

State v. Moreno, 2009 UT 15, para. 37, 203 P.3d 1000, 1012

Illinois v. Gates, 462 U.S. 213 (1983)

If the search involves the subject of an arrest warrant, an instruction similar to the second paragraph of CV1315 should also be given.

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

Kirk v. Louisiana, 536 U.S. 635, 122 S. Ct. 2458 (2002)

Armijo ex rel. Armijo Sanchez v. Peterson, 601 F.2d 1065 (10th Cir. 2010)

State v. Yoder, 935 P.2d 534 (Utah Ct. App. 1997)

There may be other circumstances beyond those in brackets above. See State v. Yoder, 935 P.2d 534 (Utah Ct. App. 1997).

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.

Soldal v. Cook County, 506 U.S. 56, 62, (1992)

United States v. Jacobsen, 466 U.S. 109, 113 (1984)

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.

Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371 (1980)

This instruction is limited to entries of residences based only on an arrest warrant. It does not apply to entries based on a search warrant, consent, or exigent circumstances and probable cause.

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.

Maryland v. Buie, 494 U.S. 325, 327 (1990)

Fishbein ex rel. Fishbein v. City Of Glenwood Springs, Colorado, 469 F.3d 957, 961 (10th Cir. 2006)

State v. Grossi, 2003 UT App 181, 72 P.3d 686

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.

Salmon v. Schwarz, 948 F.2d 1131, 1139 (10th Cir. 1991)

Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978)

Malley v. Briggs, 475 U.S. 335, 345, (1986)

Some of the issues in this instruction may be questions for the judge to decide, rather than the jury. It will be up to the parties and the judge to determine how to appropriately tailor the instruction for the jury.

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].

Eldridge v. Johndrow, 2015 UT 21, para. 70, 345 P.3d 553
Anderson Dev. Co. v. Tobias, 2005 UT 36, 116 P.3d 323

The next three instructions define the critical terms of the first two elements--"economic relationship" (CV1402), "intentionally interfered" (CV1403), and "improper means" (CV1404).

The Utah Supreme Court first recognized a claim for intentional interference with prospective economic relations in Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293 (Utah 1982). In defining the elements of the tort, the court rejected the approaches of both the Restatement of Torts and the Restatement (Second) of Torts and instead followed the approach of the Oregon Supreme Court in Top Service Body Shop, Inc. v. Allstate Insurance Co., 582 P.2d 1365 (1978). As originally adopted, the court held that a plaintiff could make out a claim for tortious interference by proving that the defendant interfered with the plaintiff's economic relationship either for an improper purpose or by improper means. In Eldridge v. Johndrow, the court dropped the "improper purpose" prong of a tortious interference claim. Accordingly, the committee has eliminated "improper purpose" from this instruction and the former definition of "improper purpose" in MUJI 19.4.

MUJI 1st included separate instructions for intentional interference with prospective economic relations (MUJI 19.1 through 19.6) and interference with contract (MUJI 19.7 through 19.13). But MUJI 19.1, entitled "Intentional Interference with Prospective Economic Relations: Elements of Liability," expressly applied to both the plaintiff's "existing or potential economic relations." MUJI 19.8, titled "Interference with Contract: Elements of Liability," listed five elements for interference with contract. Those elements, however, are not found anywhere in Utah case law. Utah cases dealing with interference with contract have used the same elements as those dealing with "interference with economic relations." See, e.g., Eldridge, 2015 UT 21, ¶ 70; Alpine Orthopaedic Specialists, LLC v. Intermountain Healthcare, Inc., 2012 UT App 29, ¶¶ 4-10, 271 P.3d 174; Jones & Trevor Mktg., Inc. v. Lowry, 2010 UT App 113, ¶ 17 n.16, 233 P.3d 538. Other cases have referred broadly to intentional or tortious "interference with economic relations." See Eldridge, 2015 UT 21, ¶¶ 1, 8; St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 200 (Utah 1991); Anderson Dev. Co. v. Tobias, 2005 UT 36, ¶ 20, 116 P.3d 323. Because the elements of the two claims, as stated in Eldridge, are the same (the only difference being whether the economic relation is existing, as in the case of a contract, or prospective), the committee decided to treat the elements of a tortious interference claim in a single instruction.

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.

Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293 (Utah 1982)

If the case involves a claim of interference with an existing contract and the existence of the contract is disputed, the court should give the relevant general instructions regarding the creation and elements of a contract. See CV2103-07.

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.

Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293 (Utah 1982)
Mumford v. ITT Commercial Fin. Corp., 858 P.2d 1041, 1044 (Utah Ct. App. 1993)
Restatement (Second) of Torts sect. 8A (the word "intent" denotes that the actor desires to cause the consequences of his act or believes that the consequences are substantially certain to result from it)

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].

Eldridge v. Johndrow, 2015 UT 21, 345 P.3d 553
Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293 (Utah 1982)
Sampson v. Richins, 770 P.2d 998 (Utah Ct. App. 1989)
Walker v. Anderson-Oliver Title Ins. Agency, Inc., 2013 UT App 202, para.para. 20-21, 309 P.3d 267, 274

Improper means may include such things as acts of violence, threats or other intimidation, bribery, false statements, defamation, a wrongful lien, bringing a lawsuit without any basis, taking money or property to which one was not entitled, or violating a court order. The court and parties should tailor examples of improper means to the facts of the case. Depending on the theory of improper means, this instruction may be used in conjunction with other instructions. If there is some question as to whether the defendant violated a statute or rule or committed a separate tort as part of his improper means, the court may have to give separate instructions on the elements of the statute or tort.

Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293, 309 (Utah 1982), suggested that an intentional breach of contract with the intent to inflict injury may constitute improper means. The committee was not certain whether this part of the Leigh decision survived the Utah Supreme Court's abandonment of the "improper purpose" prong of Leigh in Eldridge v. Johndrow, 2015 UT 21. Arguably, the same considerations that caused the court to abandon the "improper purpose" prong might also counsel against finding liability for intentional interference with economic relations for even a malicious breach of contract. The court in Eldridge did not specifically address the issue but recognized that a defendant's motivation may still be relevant to an intentional interference claim, including "relevant to the improper means prong of the Leigh Furniture test." Id. ¶ 67. The committee thought that the Utah Supreme Court was probably referring to improper means that require intent as an element of the tort or crime and not to lawful actions that were taken with a bad motive. To hold otherwise may in effect reinstate the abandoned "improper purpose" alternative.

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."

Mumford v. ITT Commercial Financial Corp., 858 P.2d 1041 (Utah Ct. App. 1993)
Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293 (Utah 1982)

Privilege has been recognized by the Utah Supreme Court and the Utah Court of Appeals as an affirmative defense to an intentional interference with prospective economic relations claim. It does not become an issue unless "'the acts charged would be tortious on the part of an unprivileged defendant.'" Mumford v. ITT Commercial Financial Corp., 858 P.2d 1041, 1043-44 (Utah Ct. App. 1993) (quoting Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293, 304 (Utah 1982)).

The Utah Court of Appeals has explained that "'[e]ven a recognized privilege may be overcome when the means used by defendant are not justified by the reason for recognizing the privilege.'" Mumford, 858 P.2d at 1043-44 (quoting Top Serv. Body Shop, Inc. v. Allstate Ins. Co., 582 P.2d 1365, 1371 (Or. 1978) (en banc)). Therefore, a privilege is not an absolute defense. If the plaintiff claims that a recognized privilege should not apply because the reason for recognizing the privilege does not apply under the facts of the case, the court may also need to instruct the jury on the reason for the privilege and the parties' arguments for why it should or should not apply under the circumstances.

If a privilege instruction is given to the jury, an instruction defining and describing the applicable privilege should be given to the jury so that it can properly assess whether the privilege applies. For example, an individual may be able to raise a privilege for statements that would otherwise be defamatory if the statements were made in the course of or incident to juridical or quasi-judicial proceedings. Because of the number and variety of possible privileges, the subcommittee did not think it practicable to provide instructions on each possible privilege. Where a privilege is claimed, the court should instruct the jury as to the nature of the privilege claimed and what the jury must find to conclude that it bars the plaintiff's claim.

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.

TruGreen Cos. v. Mower Bros., Inc., 2008 UT 81, 199 P.3d 929
Sampson v. Richins, 770 P.2d 998 (Utah Ct. App. 1989)
Restatement (Second) of Torts sect. 774A (1979)

Practitioners should also use the tort damages instructions at CV2001, et. seq., that are applicable. Damages could include lost monetary or other benefits or expectations under a contract, any actual harm to plaintiff's reputation, lost profits, or emotional distress caused by defendant's interference.

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.

TruGreen Cos. v. Mower Bros., Inc., 2008 UT 81, 199 P.3d 929

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:

Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344 (1961)
White v. Blackburn, 787 P.2d 1315 (Utah Ct. App. 1990)
Nelson v. Target Corporation, 334 P.3d 1010 (Utah App. 2014)
Anderson Development Company v. Tobias, et al, 116 P.3d 323 (Utah 2005)

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.

Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344 (1961)
White v. Blackburn, 787 P.2d 1315 (Utah Ct. App. 1990)
Restatement (Second) of Torts sect. 46 comment d (1964)
Nelson v. Target Corporation, 334 P.3d 1010 (Utah App. 2014)
Anderson Development Company v. Tobias, et al, 116 P.3d 323 (Utah 2005)

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.

Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344 (1961)
Restatement (Second) of Torts sect. 46 comment j (1964)
See also, Anderson Development Company v. Tobias, et al, 116 P.3d 323 (Utah 2005)

Use of the bracketed sentence at the end of CV1503 may not be appropriate in NIED cases. It appears that the question of whether "it is possible to have severe and extreme emotional distress without observable behavioral or physical symptoms" remains unsettled in Utah in negligent infliction of emotional distress cases. See Harnicher v. University of Utah Med. Ctr., 962 P.2d 67, 69-72 (Utah 1998); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 974, 982-83 (Utah 1993).

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.

White v. Blackburn, 787 P.2d 1315 (Utah Ct. App. 1990)

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:

Candelaria v. CB Richard Ellis, 2014 UT App 1, para. 9, 319 P.3d 708
Harnicher v. University of Utah Med. Ctr., 962 P.2d 67, 69-72 (Utah 1998)
Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 974, 982-83 (Utah 1993)
Restatement (Second) of Torts, sect. 313(1)

The Utah Supreme Court case of Straub v. Fisher and Paykel Health Care, 1999 UT 102, ¶¶ 7-15, 990 P.2d 384, can be read in two different ways: either as requiring physical peril in all cases of NIED, or as simply rejecting the plaintiff's argument that she was a direct victim and concluding that she had to be in peril to recover as a bystander. The committee's review of the other case law in this area did not resolve this question. As such, the committee could not reach a consensus on whether a direct victim must be in actual physical peril (i.e. in the zone of danger), or if the zone of danger test only applies to bystanders. The instruction above is included separately from the bystander instruction in case the latter is true.

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.

Johnson v. Rogers, 763 P.2d 771, 780, 785 (Utah 1988)
Hansen v. Sea Ray Boats, Inc., 830 P.2d 236, 239-42 (Utah 1992)
Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013, 1016 (Utah 1995)
Straub v. Fisher and Paykel Health Care, 1999 UT 102, para.para. 7-15, 990 P.2d 384
Restatement (Second) of Torts, sect. 313(2)

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.

Hansen v. Sea Ray Boats, Inc., 830 P. 2d 236, 239-240 (Utah 1992)
Straub v. Fisher, 990 P.2d 384, 387 (Utah 1999)
Boucher v. Dixie Medical Center, 850 P.2d 1179, 1181 (Utah 1992)

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:

Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535
Oman v. Davis Sch. Dist., 2008 UT 70, 194 P.3d 956
West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994)
Pipkin v. Acumen, 2020 UT App 111, 472 P.3d 315
Davidson v. Baird, 2019 UT App 8, 438 P.3d 928

Element (2) is bracketed because whether a defamation plaintiff bears the burden of proving falsity or whether truth is an affirmative defense for which the defendant bears the burden of proof depends on the nature of the case. If the plaintiff is a public official or public figure, the plaintiff bears the burden of proving material falsity, which is entailed in the requisite showing of actual malice. See Air Wis. Airlines Corp. v. Hoeper, 571 U.S. 237, 250 (2014) ("[W]e have long held ... that actual malice entails falsity."). In addition, regardless of the status of the plaintiff, if the speech at issue involves a matter of public concern, the plaintiff likewise bears the burden of proving material falsity. See, e.g., Davidson v. Baird, 2019 UT App 8, ¶ 25 n.3, 438 P.3d 928; Pipkin v. Acumen, 2020 UT App 111, ¶ 16 n.10, 472 P.3d 315. "Speech deals with matters of public concern when it can 'be fairly considered as relating to any matter of political, social, or other concern to the community,' or when it 'is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.'" Snyder v. Phelps, 562 U.S. 443, 453 (2011) (citations omitted). This rule is of constitutional magnitude under the First Amendment. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1985); cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974) ("Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties."). If the case involves a private plaintiff and speech that does not involve a matter of public concern, the defendant bears the burden of proving substantial truth, and the falsity element should be removed from this instruction.

The Utah legislature has defined "libel" and "slander" in Utah Code § 45-2-2 for purposes of the statutory provisions in that chapter, which include several statutory privileges, retraction requirements, and matters relating to broadcasts. The definitions in that section, however, are inconsistent with the elements of a defamation claim consistently articulated by the Utah Supreme Court, see, e.g., Jacob v. Bezzant, 2009 UT 37, ¶¶ 21, 212 P.3d 535; West v. Thomson Newspapers, 872 P.2d 999, 1007-08 (Utah 1994), and may suffer from constitutional infirmities for failure to require falsity, see I.M.L. v. State, 2002 UT 110, ¶¶ 19, 23, 61 P.3d 1038; Garrison v. Louisiana, 379 U.S. 64, 70-73 (1964). For this reason, the committee has used the elements articulated in the caselaw rather than the statutory definitions in Utah Code § 45-2-2.

Element (4) is bracketed because it need not be given in a case where either no privilege has been asserted or the court has determined that the privilege is inapplicable.

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.

Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535
Jensen v. Sawyers, 2005 UT 81, 130 P.3d 325

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].

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
Pratt v. Nelson, 2007 UT 41, 164 P.3d 366
Restatement (Second) of Torts sect. 564 (1977)

This instruction should be used where the plaintiff is a public figure or public official, and the court has determined that it is reasonable to understand the statement(s) at issue to be referring to the plaintiff.

Since New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the requirement that a defamatory statement be about the plaintiff, often referred to as the "of and concerning" requirement, has been one of constitutional magnitude. See Restatement (Second) of Torts § 564 cmt. f (1977). Sullivan itself involved statements made generally about "police" in Alabama that did not name Mr. Sullivan specifically. 376 U.S. at 258. The Court found the evidence supporting the "of and concerning" requirement to be "constitutionally defective," explaining that the presumption employed by the Alabama Supreme Court struck "at the very center of the constitutionally protected area of free expression." Id. at 288, 292. This holding and the constitutional defamation cases that followed, including Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), displaced the common law rule that imposed a form of strict liability on a defamer who did not intend a statement to refer to a plaintiff, but the statement was nonetheless reasonably understood to do so. See 1 Rodney A. Smolla, Law of Defamation § 4:42 (2d ed. 2013) ("[T]he consensus appears to be that in cases governed by Gertz, fault is required not merely on the truth or falsity issue, but for all aspects of the cause of action, including reference to the plaintiff."); see also id. § 4:40.50; 1 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 2:9.1 (4th ed. 2013).

As a result of the constitutional overlay on the "of and concerning" requirement, the requirements of this element will vary depending on whether the case involves a public figure/public official plaintiff, a statement relating to a matter of public concern, or a private plaintiff alleging speech unrelated to any matter of public concern. This is similar to the varying level of fault on truth/falsity discussed in later instructions. In public official/public figure cases, mere negligence is not sufficient; therefore, this instruction requires, in cases where the reference was unintended by the defamer, knowledge of or intentional blindness to the facts or circumstances that may lead a recipient to reasonably conclude the statement at issue refers to the plaintiff. The term "intentional blindness" is used here as a counterpart to the "reckless disregard" component of the actual malice standard in the truth/falsity context. Although there is little authority interpreting the contours of the actual malice test in the "of and concerning" context, the Committee determined that "reckless disregard" was imprecise in this context because the facts and circumstances the defamer would be disregarding are facts and circumstances of which he or she is purportedly unaware. Using "reckless disregard" in this context therefore risks collapsing that subjective test into an objective negligence test, which would be constitutionally problematic under Sullivan. "Intentional blindness" is a better fit for unknown facts and captures situations where a defamer intentionally avoids acquiring information that would reveal the reasonable connection between the statements at issue and the plaintiff-conduct that would go beyond mere negligence.

The "of and concerning" test will also vary depending on whether it is reasonable to understand a statement as referring to the plaintiff. Like the related threshold inquiry of defamatory meaning, this determination is a question of law for the court, not the jury. See, e.g., Gilman v. Spitzer, 902 F. Supp. 2d 389, 394-95 (S.D.N.Y. 2012) ("Whether a challenged statement reasonably can be understood as of and concerning the plaintiff is a question of law for the Court, which 'should ordinarily be resolved at the pleading stage.'" (quoting Church of Scientology Int'l v. Behar, 238 F.3d 168, 173 (2d Cir. 2001))). In cases where the defamer intended the statement to refer to the plaintiff, there is no requirement that the recipient's actual understanding of that reference be reasonable. The element is satisfied "if [the communication] is so understood by the recipient of the communication, no matter how bizarre or extraordinary it is that the communication was in fact so understood." Law of Defamation § 4:41; see also Restatement (Second) of Torts § 564 cmt. a ("If it is in fact intended to refer to him, it is enough that it is so understood even though he is so inaccurately described that it is extraordinary that the communication is correctly understood."). If there was no such intent, an unreasonable connection cannot sustain a defamation claim. Restatement (Second) of Torts § 564 cmts. b and f. For this reason, there are five possible scenarios, and thus five instructions, for the "of and concerning" element: if the reference is reasonable, three varying levels of fault (with the open question of the standard of fault for purely private cases divided into two possible instructions); and if the reference is unreasonable, a requirement that the plaintiff show the reference was intended. Only one of these instructions should ordinarily be used, unless a case involves multiple statements or multiple plaintiffs that fall into different categories. In the unusual case where different standards apply to different statements, the court will have to instruct as to which instructions on standards accompany which statements.

The relevant inquiry for the "of and concerning" requirement is not whether any member of the "public" would understand a statement as referring to the plaintiff, as the MUJI 1st instruction on this element suggested. The issue is whether any of the actual recipients of the statement understood the statement to refer to the plaintiff (and, if the reference was unintended, did so reasonably). The actual recipients of a statement may have a basis for connecting a statement to the plaintiff that is not widely known or shared with the general public. See Restatement (Second) of Torts § 564 cmt. b ("It is not necessary that everyone recognize the other as the person intended; it is enough that any recipient of the communication reasonably so understands it. However, the fact that only one person believes that the plaintiff was referred to is an important factor in determining the reasonableness of his belief.").

When allegedly defamatory statements refer to a group rather than a specific individual, they are subject to the group defamation rule, which is addressed in a separate instruction. See CV1612 (Group Defamation Rule).

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].

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
Pratt v. Nelson, 2007 UT 41, 164 P.3d 366
Restatement (Second) of Torts sect. 564 (1977)

This instruction should be used where the plaintiff is not a public official or public figure, the statement(s) relate to a matter of public concern, and the court has determined that it is reasonable to understand the statement(s) at issue to be referring to the plaintiff.

Under Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the minimum level of fault required to impose liability for statements relating to a matter of public concern is negligence. See also Ferguson v. Williams & Hunt, Inc., 2009 UT 49, ¶¶ 22-23, 221 P.3d 205. "It is therefore necessary for the plaintiff to prove that a reasonable understanding on the part of the recipient that the communication referred to the plaintiff was one that the defamer was negligent in failing to anticipate. This is particularly important when the recipient knew of extrinsic facts that make the communication defamatory of the plaintiff but these facts were not known to the defamer." Restatement (Second) of Torts § 564 cmt. f (1977).

For a more detailed discussion of the "of and concerning" requirement, see the Committee Notes for CV1604A (Definition: About the Plaintiff - Public Figure or Public Official Plaintiff - Connection to Plaintiff is Reasonable).

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].

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
Pratt v. Nelson, 2007 UT 41, 164 P.3d 366
Restatement (Second) of Torts sect. 564 (1977)

This instruction should be used where the plaintiff is not a public official or public figure, the statement(s) do not relate to a matter of public concern, the court has determined that it is reasonable to understand the statement(s) at issue to be referring to the plaintiff, and the court has determined that the plaintiff must show at least negligence to hold the defendant liable.

As discussed in CV1601, whether strict liability may be constitutionally imposed in cases involving a private plaintiff and speech that does not relate to a matter of public concern has not been resolved by either the United States Supreme Court or the Utah Supreme Court. See Ferguson v. Williams & Hunt, Inc., 2009 UT 49, ¶ 26, 221 P.3d 205. If the court determines negligence is required, this instruction should be used. If the court determines strict liability is the standard of fault, the subsequent instruction (CV1604D Definition: About the Plaintiff - Private Plaintiff - No Matter of Public Concern - Connection to Plaintiff is Reasonable - Strict Liability Allowed) should be used. Until this open question is resolved by binding appellate authority, parties will need to argue this particular issue in their individual cases.

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].

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
Pratt v. Nelson, 2007 UT 41, 164 P.3d 366
Restatement (Second) of Torts sect. 564 (1977)

As discussed in CV1601, whether strict liability may be constitutionally imposed in cases involving a private plaintiff and speech that does not relate to a matter of public concern has not been resolved by either the United States Supreme Court or the Utah Supreme Court. See Ferguson v. Williams & Hunt, Inc., 2009 UT 49, ¶ 26, 221 P.3d 205. If the court determines strict liability is the standard of fault, this instruction should be used. If the court determines negligence is required, the previous instruction (CV1604C Definition: About the Plaintiff - Private Plaintiff - No Matter of Public Concern - Connection to Plaintiff is Reasonable - Negligence) should be used. Until this open question is resolved by binding appellate authority, parties will need to argue this particular issue in their individual cases.

CV1604E Definition: About the Plaintiff - Connection to Plaintiff is Unreasonable.

[Name of plaintiff] must prove that each allegedly defamatory statement referred to [him/her].

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
Pratt v. Nelson, 2007 UT 41, 164 P.3d 366
Restatement (Second) of Torts sect. 564 (1977)

This instruction should be used where the court has determined that it is not reasonable to understand the statement(s) at issue to be referring to the plaintiff, regardless of whether the plaintiff is a public figure or public official, or whether the statement(s) relate to a matter of public concern.

Because the varying standard of fault only arises when the reference to the plaintiff is unintended, and because reasonableness is an essential element of liability for an unintended reference, the varying standard of fault is not relevant where the court has determined the statements cannot reasonably be understood as referring to the plaintiff. This instruction therefore applies where the connection is unreasonable regardless of the status of the plaintiff or the subject matter of the speech.

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.]

Air Wis. Airlines Corp. v. Hoeper, 571 U.S. 237 (2014)
Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991)
Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535
Oman v. Davis Sch. Dist., 2008 UT 70, 194 P.3d 956
Jensen v. Sawyers, 2005 UT 81, 130 P.3d 325
West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994)
Brehany v. Nordstrom, Inc., 812 P.2d 49 (Utah 1991)
Auto West, Inc. v. Baggs, 678 P.2d 286 (Utah 1984)
Pipkin v. Acumen, 2020 UT App 111, 472 P.3d 315
Davidson v. Baird, 2019 UT App 8, 438 P.3d 928

The first sentence of this instruction includes alternative instructions in brackets because the burden of proof for truth/falsity can vary depending on the nature of the case. See CV1602. The first alternative should be given in cases where the plaintiff is a public official and/or public figure, or where the speech at issue relates to a matter of public concern. The second alternative should be given in cases where the plaintiff is neither a public official nor a public figure, and the speech at issue does not relate to a matter of public concern.

Although material falsity is usually a question of fact for the jury, where "the underlying facts as to the gist or sting [of the statements] are undisputed, substantial truth may be determined as a matter of law." Hogan v. Winder, 762 F.3d 1096, 1106 (10th Cir. 2014) (internal quotations omitted). See also Air Wis. Airlines Corp. v. Hoeper, 571 U.S. 237 (2014) ("[U]nder the First Amendment, a court's role is to determine whether '[a] reasonable jury could find a material difference between' the defendant's statement and the truth.") (Scalia, J., concurring and dissenting) (quoting Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 522 (1991)) (second alteration in original).

In addition to explaining that "[m]inor inaccuracies" do not make a statement materially false, Masson, 501 U.S. at 517, the United States Supreme Court has further explained the concept of whether an inaccuracy is "material" as follows: "[A] materially false statement is one that "'would have a different effect on the mind of the reader [or listener] from that which the ... truth would have produced.'" Air Wis., 571 U.S. at 250 (quoting Masson, 501 U.S. at 517) (further citation omitted) (second alteration and ellipses in original).

There is a potentially open question regarding the standard of proof for falsity in some types of defamation cases. In Hart-Hanks Communications, Inc. v. Cannaughton, 491 U.S. 657, 661 n.2 (1989), the United States Supreme Court took note of a split of authority as to whether, in a public figure or public official plaintiff case (where actual malice must be proved by clear and convincing evidence), material falsity must also be proved by clear and convincing evidence. At that time, the Court "express[ed] no view on this issue." Id. Since that time, however, the Supreme Court has twice emphasized that the issues of material falsity and actual malice are inextricably related, such that the definition of the latter requires a finding of the former. See Masson, 501 U.S. at 512; Air Wis., 571 U.S. at 246 ("[W]e have long held ... that actual malice entails falsity."). As a result, many courts have concluded that in public figure and public official cases, material falsity must also be proved by clear and convincing evidence. See, e.g., Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014) ("If the plaintiff is a public figure or the statement involves a matter of public concern, the plaintiff has the ultimate burden in his case-in-chief of proving the falsity of a challenged statement by 'clear and convincing proof.'" (citation omitted) (applying Colorado law)); DiBella v. Hopkins, 403 F.3d 102, 110-15 (2d Cir. 2005) (collecting cases and noting that only "a minority of jurisdictions require a public figure to prove falsity only by a preponderance of the evidence"); 1 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 3:4 (4th ed. 2013) (collecting cases).

If a case involves a public figure or public official plaintiff, and the court determines that the higher standard of proof applies to material falsity, the first paragraph of the instruction should be amended to state: "The allegedly defamatory statement must state or imply facts which can be proven to be false. [Name of plaintiff] must show the statement to be false by clear and convincing evidence."

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.

Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535
West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994)
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)
Utah Const. art. 1, sect.sect. 1, 15
Restatement (Second) of Torts sect. 566 cmt. c (1977)

The question of whether a statement is one of fact or opinion is a question of law for the court, not the jury. West v. Thomson Newspapers, 872 P.2d 999, 1018 (Utah 1994); Restatement (Second) of Torts § 566 cmt. c (1977). Likewise, the questions of whether a statement of opinion reasonably implies verifiable facts, and whether those facts are capable of sustaining defamatory meaning, are also questions for the court. Id. at 1019. Only if the court determines that a statement of opinion can reasonably imply facts capable of sustaining defamatory meaning is there a question for the jury as to whether the statement did, in fact, convey that defamatory meaning. Id. This instruction should be used in the event the court determines as a matter of law that one or more statements are opinion, but the statement(s) may nonetheless be actionable because they reasonably imply verifiable facts capable of sustaining defamatory meaning. The question for the jury is whether those facts were, in fact, implied, and whether the defamatory meaning was, in fact, conveyed.

The test for whether a statement is "defamatory" is explained in CV1607 (Definition: Defamatory).

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.

Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535
O'Connor v. Burningham, 2007 UT 58, 165 P.3d 1214
West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994)
Allred v. Cook, 590 P.2d 318 (Utah 1979)
Mast v. Overson, 971 P.2d 928 (Utah Ct. App. 1998)
Hogan v. Winder, 762 F.3d 1096 (10th Cir. 2014)
Restatement (Second) of Torts sect.sect. 559, 614 (1977)

The jury has a very limited role in the determination of whether a plaintiff has satisfied the "defamatory" element of a defamation claim, often referred to as "defamatory meaning." It is the court's role to decide, as a matter of law, whether a statement is capable of bearing a particular meaning and, if so, if that meaning is defamatory. See Jacob v. Bezzant, 2009 UT 37, ¶ 26, 212 P.3d 535; West v. Thomson Newspapers, 872 P.2d 999, 1008 (Utah 1994); Restatement (Second) of Torts § 614 (1977). "If the court decides against the plaintiff upon either of these questions, there is no further question for the jury to determine and the case is ended." Restatement (Second) of Torts § 614 cmt. b (1977). Thus, even though this instruction includes a description of what it means to be defamatory-i.e., that a statement exposes the plaintiff to public hatred, contempt, or ridicule-the determination of whether a statement satisfies that standard is for the court. The description is included in the instruction so the jury can differentiate between a defamatory meaning and a non-defamatory one if a statement is capable of more than one meaning.

The only role for the jury, assuming the court decides for the plaintiff on both threshold questions, is "whether a communication, capable of a defamatory meaning, was so understood by its recipient." Restatement (Second) of Torts § 614 (1977). This issue would generally arise only "[i]f the court determines that the statement is capable of two or more meanings, of which at least one is capable of a defamatory meaning[.]" 1 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 2:4.16 (4th ed. 2013). In that circumstance, it is for the jury to decide which meaning was in fact understood by the recipients of the communication." Id.; see also Restatement (Second) of Torts § 614 cmt. b (1977) (jury must decide "whether the communication was in fact understood by its recipient in the defamatory sense").

In cases involving mass communication (e.g., publication by television, newspaper, etc.), the parties may wish to consider adding the following sentence: "When determining how a statement was 'actually understood,' you should determine if that understanding is reasonable."

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].

Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535
Ferguson v. Williams & Hunt, Inc., 2009 UT 49, 221 P.3d 205
Pratt v. Nelson, 2007 UT 41, 164 P.3d 366
O'Connor v. Burningham, 2007 UT 58, 165 P.3d 1214
Jensen v. Sawyers, 2005 UT 81, 130 P.3d 325
Wayment v. Clear Channel Broad., Inc., 2005 UT 25, 116 P.3d 271
Krouse v. Bower, 2001 UT 28, 20 P.3d 895
Russell v. Thomson Newspapers, Inc., 842 P.2d 896 (Utah 1992)
Brehany v. Nordstrom, Inc., 812 P.2d 49 (Utah 1991)
Seegmiller v. KSL, Inc., 626 P.2d 968 (Utah 1981)
Combes v. Montgomery Ward & Co., 228 P.2d 272 (Utah 1951)

A party claiming that a statement is subject to a privilege bears the burden of proving the existence and application of the privilege, which determination is a question of law for the court.

Because applicability of a privilege is a matter of law for the court, Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 900 (Utah 1992), this instruction assumes, and should be used only if, the court has already made that determination and will instruct the jury as to its effect. The instruction should be adapted to describe whatever particular privilege is at issue. Likewise the instruction should be adapted to reflect the particular types of abuse the plaintiff is alleging, if he/she/it is not alleging all three.

Examples of conditional privileges recognized under Utah law include, but are not limited to:

the public interest privilege, see Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535, Utah Code sect. 45-2-3(5);
publisher's interest privilege, see Brehany v. Nordstrom, 812 P.2d 49 (Utah 1991);
police report privilege, Murphree v. U.S. Bank of Utah, N.A., 293 F.3d 1220, 1223 (10th Cir. 2002);
common interest privilege, see Lind v. Lynch, 665 P.2d 1276 (Utah 1983), Utah Code sect. 45-2-3(3);
family relationships privilege, see O'Connor v. Burningham, 2007 UT 58, 165 P.3d 1214;
fair report privilege, see Russell v. Thomson Newspapers, Inc., 842 P.2d 896 (Utah 1992), Utah Code sect. 45-2-3(4) and (5); and
neutral reportage privilege, see Schwarz v. Salt Lake Tribune, No. 20030981, 2005 WL 1037843 (Utah Ct. App. May 5, 2005) (unpublished).

The court's determination of whether a privilege applies to a particular statement is based on the circumstances surrounding its publication, such as what was said, to whom, and in what context. In most cases, the relevant aspects of those circumstances are not in dispute, allowing the court to make the applicability determination without the aid of the jury. Importantly, dispute as to the circumstances of publication is not the same as dispute as to the applicability of the privilege. For instance, the parties may dispute whether a particular statement has sufficient connection to a legal proceeding to be covered by the judicial proceedings privilege, or whether a speaker had a legitimate interest to protect for purposes of the publisher's interest privilege, or whether a statement implicates a sufficiently important interest for purposes of the public interest privilege, or whether two parties share a sufficient interest for purposes of the common interest privilege, or whether a statement was a fair and true report of public proceedings for purposes of the fair report privilege. But all of those issues are not factual questions for the jury; they are applicability determinations for the court.

In the event the circumstances of publication are in legitimate dispute in a way that matters to applicability of the privilege, however, such as where the parties dispute what was said in a way that matters to the privilege, or dispute the identity of the speaker (i.e., whether he or she was a litigant for purposes of the judicial proceedings privilege), those disputes may need to be resolved by the jury before the court can determine whether the privilege applies. See, e.g., 1 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems sect. 9:5 (4th ed. 2013). In such circumstances, a different instruction may need to be given, tailored to that situation, in which the jury is asked to make that specific factual determination. Because those instances are not common, the Committee opted not to include a standard instruction for such circumstances.

With regard to the test for actual malice, the requirement of subjective knowledge is based on the discussion in Ferguson v. Williams & Hunt, Inc., 2009 UT 49, para. 30, 221 P.3d 205, which held that "[t]o prove knowledge of falsity, a plaintiff must present evidence that shows the defendant knows the defamatory statement is untrue. Likewise, acting with reckless disregard as to falsity involves a showing of subjective intent or state of mind." Nonetheless, Ferguson did recognize certain rare circumstances in which the reckless disregard test could have an objective element: "But while reckless disregard is substantially subjective, certain facts may show, regardless of the publisher's bald assertions of belief, that 'the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation' or that 'there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.' Therefore, reckless disregard as to the falsity of a statement that a defendant honestly believed to be true is determined by a subjective inquiry as to the defendant's belief and an objective inquiry as to the inherent improbability of or obvious doubt created by the facts." Id. (quoting St. Amant v. Thompson, 390 U.S. 727, 732 (1968)). Because not all defamation claims involve allegations of inherent improbability, the committee opted not to include the objective test in the standard instruction, leaving to parties to adapt that portion depending on the facts of their cases.

In addition to conditional privileges, Utah law also recognizes certain absolute privileges that cannot be overcome by a showing of abuse. 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 legislative proceedings privilege, see Riddle v. Perry, 2002 UT 10, 40 P.3d 1128. Because, like a conditional privilege, application of an absolute privilege is a question of law for the court, and because there is no subsequent issue for the jury regarding abuse of an absolute privilege, the committee has not included an instruction regarding absolute privileges. In the event that the court decides certain statements are absolutely privileged, but those statements have come into evidence for some other purpose, they should be listed as part of the curative instruction set forth in CV1609 (Non-actionable Statements).

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.

Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535
O'Connor v. Burningham, 2007 UT 58, 165 P.3d 1214

This instruction recognizes that even where the court makes a determination that certain statements are non-actionable defamation as a matter of law, those statements may still be presented to jury for some other purpose or may have been presented prior to the court's legal determination. For that reason, and to effectuate the court's gatekeeping function in defamation cases, this instruction is designed to cure any prejudicial implication that non-actionable but otherwise admitted statements can support a defamation claim.

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.

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
Ferguson v. Williams & Hunt, Inc., 2009 UT 49, 221 P.3d 205
Oman v. Davis Sch. Dist., 2008 UT 70, 194 P.3d 956
Wayment v. Clear Channel Broad. Inc, 2005 UT 25, 116 P.3d 271
Russell v. Thomson Newspapers, Inc., 842 P.2d 896 (Utah 1992)
Cox v. Hatch, 761 P.2d 556 (Utah 1988)
Van Dyke v. KUTV, 663 P.2d 52 (Utah 1983)
Seegmiller v. KSL, Inc., 626 P.2d 968 (Utah 1981)

Because the public/private figure and public concern determinations are questions for the court, Wayment v. Clear Channel Broad., Inc., 2005 UT 25, ¶ 17, 116 P.3d 271; Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749, 762 (1985) (Powell, J.) (in plurality opinion, applying test as a matter of law); Connick v. Myers, 461 U.S. 138, 147-48 (1983); Arndt v. Koby, 309 F.3d 1247, 1252 (10th Cir. 2002), this instruction assumes, and should be used only if, the court has already made those determinations. As explained in CV1601 (Introductory Notes to Practitioners), no instruction is included on the standard of fault for private figure cases where the speech does not relate to a matter of public concern because that question has not yet been answered by the Utah Supreme Court. See Ferguson v. Williams & Hunt, Inc., 2009 UT 49, ¶ 26, 221 P.3d 205.

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.

St. Amant v. Thompson, 390 U.S. 727 (1968)
Curtis Publ'g Co v. Butts, 388 U.S. 130 (1967)
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
Ferguson v. Williams & Hunt, Inc., 2009 UT 49, 221 P.3d 205
O'Connor v. Burningham, 2007 UT 58, 165 P.3d 1214
Wayment v. Clear Channel Broad. Inc, 2005 UT 25, 116 P.3d 271
Cox v. Hatch, 761 P.2d 556 (Utah 1988)
Van Dyke v. KUTV, 663 P.2d 52 (Utah 1983)
Seegmiller v. KSL, Inc., 626 P.2d 968 (Utah 1981)

Because the public official/public figure determination is one for the court, Wayment v. Clear Channel Broad., Inc., 2005 UT 25, ¶ 17, 116 P.3d 271, this instruction assumes, and should be used only if, the court has already made that determination. For a discussion of the subjective nature of the actual malice standard, see CV1608 (Conditional Privilege), 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:

Pratt v. Nelson, 2007 UT 41, 164 P.3d 366
Restatement (Second) of Torts sect. 564A (1977)

The Restatement provides the following illustrative examples of this rule: "A newspaper publishes the statement that the officials of a labor organization are engaged in subversive activities. There are 162 officials. Neither the entire group nor any one of them can recover for defamation.... A newspaper publishes a statement that the officers of a corporation have embezzled its funds. There are only four officers. Each of them can be found to be defamed." Restatement (Second) of Torts § 564A cmt. a (1977).

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].

Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535
Proctor v. Costco Wholesale Corp., 2013 UT App 226, 311 P.3d 564
Thurston v. Workers Comp. Fund of Utah, 2003 UT App 438, 83 P.3d 391

This instruction is not intended to capture the concept of proximate causation. This instruction should be given along with some version of CV209 ("Cause" defined).

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.

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535
Larson v. SYSCO Corp., 767 P.2d 557 (Utah 1989)
Baum v. Gillman, 667 P.2d 41 (Utah 1983)
Westmont Mirador, LLC v. Miller, 2014 UT App 209, __ P.3d __

This instruction uses the term "presumed damages" to capture the concept of defamation per se. As explained in CV1601 (Defamation - Introduction), there was a historical distinction between the tests for defamation per se depending on whether the statements were slander or libel. At least one older case in Utah suggests in dicta that the four-category test requiring (1) criminal conduct, (2) having contracted a loathsome disease, (3) unchaste behavior (but only if the plaintiff is a woman), or (4) conduct incongruous with the exercise of a lawful business, trade, profession, or office applies only to slander, while the test for libel per se is whether the "words must, on their face, and without the aid of [extrinsic] proof, be unmistakably recognized as injurious." Seegmiller v. KSL, Inc., 626 P.2d 968, 977 n.7 (Utah 1981) (dicta) (quoting Lininger v. Knight, 226 P.2d 809, 813 (Colo. 1951)). (The actual quote in Seegmiller uses the phrase "intrinsic proof," rather than "extrinsic proof." Id. But that phrase appears to be either an error or an anachronism that actually means "extrinsic proof," consistent with what it means to be defamatory per se. See, e.g., Gordon v. Boyles, 99 P.3d 75, 78-79 (Colo. Ct. App. 2004) (citing Lininger for the proposition that "[t]o be actionable without proof of special damages, a libelous statement must be ... on its face and without extrinsic proof, unmistakably recognized as injurious.... (emphasis added)); 1 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 2:8.3 (4th ed. 2013) (statement is libelous per se if it is defamatory without the aid of "extrinsic facts")).

Subsequent to Seegmiller, however, Utah courts have applied the four-category test to written statements, rather than the more amorphous test for libel per se. See, e.g., Larson v. SYSCO Corp., 767 P.2d 557, 560 (Utah 1989); Westmont Mirador, LLC v. Miller, 2014 UT App 209, ¶ 2, __ P.3d __. In Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535, the Utah Supreme Court addressed this issue and explained that the tests for libel and slander per se were not distinct, but that "the Larson categories merely define injurious words as mentioned in Seegmiller." Id. at ¶ 26. Accordingly, and due to the increasingly anachronistic nature of a distinction between oral and written communication, this instruction employs the Larson categories and does not distinguish between libel per se and slander per se.

There is no clear Utah authority on what "presumed damages" encompass in defamation cases. Although the Utah Supreme Court has not addressed the issue, the Utah Court of Appeals has suggested that a plaintiff who proves defamation per se but presents no proof of actual injury is not entitled to recovery beyond nominal damages. See Westmont Mirador, LLC v. Miller, 2014 UT App 209, ¶ 5, __ P.3d __. This instruction reflects that principle. Although the non-binding plurality in Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (Powell, J.) construed the holding of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) as applying only to statements relating to matters of public concern, other authorities, including the Restatement, have more broadly interpreted Gertz to constitutionally prohibit presumed damages in all defamation contexts, requiring proof of actual injury. See Restatement (Second) of Torts § 621 & cmt. b (1977) ("Though the action in the Gertz case was one of libel and the defendant would be classified within the term, news media, and the defamatory statement involved a matter of public concern, there is little reason to conclude that the constitutional limitation on recoverable damages will be confined to these circumstances."). Because nominal damages likely do not offend the constitutional protections against presumed and punitive damages established in Gertz, limiting presumed damages absent proof of actual injury to nominal damages avoids this potential constitutional problem and makes it unnecessary in this instruction to distinguish between purely private cases and cases involving public officials, public figures, or speech relating to matters of public concern.

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.

Jensen v. Sawyers, 2005 UT 81, 130 P.3d 325
Baum v. Gillman, 667 P.2d 41 (Utah 1983)
Allred v. Cook, 590 P.2d 318 (Utah 1979)
Prince v. Peterson, 538 P.2d 1325 (Utah 1975)
Cohn v. J.C. Penney Co., Inc., 537 P.2d 306 (Utah 1975)
Nichols v. Daily Reporter Co., 83 P. 573 (Utah 1905)
Utah R. Civ. P. 9(g)
Restatement (Second) of Torts sect. 575 cmt. b (1977)

This instruction uses the term "economic damages" to capture the concept of special damages. Utah courts have not addressed whether medical expenses incurred as a proximate result of defamation are recoverable as special damages, and courts in other jurisdictions are split on that issue. With regard to attorneys' fees, it is important to distinguish between a claim for defamation and a claim for "slander of title." Although the two claims share some nomenclature, they are distinct claims. See Bass v. Planned Mgmt. Servs., Inc., 761 P.2d 566, 568 (Utah 1988). While attorneys' fees incurred in clearing a cloud placed on a title are recoverable as special damages in a slander of title claim, see id., Utah courts have not recognized attorneys' fees as special damages in a defamation claim. See Computerized Thermal Imaging, Inc. v. Bloomberg, L.P., 312 F.3d 1292, 1299-1300 & n.15 (10th Cir. 2002) (distinguishing slander of title and holding attorneys' fees on defamation claim are "an element of special damages not recognized by Utah law").

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.

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535
Baum v. Gillman, 667 P.2d 41 (Utah 1983)
Allred v. Cook, 590 P.2d 318 (Utah 1979)
Prince v. Peterson, 538 P.2d 1325 (Utah 1975)
Proctor v. Costco Wholesale Corp., 2013 UT App 226, 311 P.3d 564
Thurston v. Workers Comp. Fund of Utah, 2003 UT App 438, 83 P.3d 391
Restatement (Second) of Torts sect. 621 (1977)

This instruction uses the term "noneconomic damages" to capture the concept of general damages; use of the term "general damages" in these notes is thus interchangeable with the term "noneconomic damages." The term "actual injury" in this context refers to a determination that the plaintiff has actually suffered damages, as opposed to merely relying on the presumption of injury for statements that are defamatory per se, which entitles a plaintiff only to nominal damages. "Actual injury" can refer either to general or special damages, the former concerned with harm to reputation, standing in the community, and the other factors listed in this instruction, and the latter concerned with pecuniary, out-of-pocket losses. Actual injury in the context of general damages typically requires the plaintiff to put on evidence that his or her reputation has been diminished, or that he or she has suffered humiliation, shame, mental anguish, suffering, or other similar types of injuries.

The requirements for an award of general damages in this instruction reflect the longstanding common law rule that a plaintiff who does not prove defamation per se is entitled to general damages only if he or she also pleads and proves special damages. In cases of defamation per se, the jury may award general damages without special damages. See, e.g., Baum v. Gillman, 667 P.2d 41, 42 (Utah 1983) ("Inasmuch as the complaint contains no allegation of special damages, in order to state a claim upon which relief can be granted the statements attributed to Gillman must constitute defamation per se."); Allred v. Cook, 590 P.2d 318, 320-21 (Utah 1979) ("The general rule is that if special damages are not alleged, the slander must amount to slander per se before recovery is allowed."). Because the court determines whether the statements at issue are defamatory per se, see CV1614 (Presumed Damages), if the case does not involve defamation per se, this instruction may be modified to remove the disjunctive (2)(a) and require both actual injury and special damages.

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.

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
Ferguson v. Williams & Hunt, Inc., 2009 UT 49, 221 P.3d 205
Jensen v. Sawyers, 2005 UT 81, 130 P.3d 325
Cox v. Hatch, 761 P.2d 556 (Utah 1988)
Utah Code sect. 78B-8-201(1)(a)

This instruction is a modified version of the general instruction for punitive damages (CV2026). The primary modification is the addition of the constitutional requirement of proving actual malice in cases involving public officials, public figures, and/or speech relating to matters of public concern. This instruction also removes from the general instruction the possibility of harm "to property" in the definition of knowing and reckless indifference because defamation claims are always for personal harm to reputation; property damage caused by speech is covered by other torts, such as injurious falsehood. The other modification to this instruction is the removal of the optional brackets around the last paragraph in the instruction regarding negligence. For a discussion of the subjective nature of the actual malice standard, see CV1608 (Conditional Privilege), Committee Notes.

Neither the United States Supreme Court nor the Utah Supreme Court has addressed whether the Gertz actual malice requirement for punitive damages in cases involving public officials, public figures, and/or speech relating to a matter of public concern also applies in cases involving private figures and speech that does not relate to a matter of public concern. Cf. Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (Powell, J.) (in plurality opinion, declining to extend actual malice rule). Because it is an unresolved question, the parties could argue that this instruction should also be used in cases involving private figures and speech unrelated to a matter of public concern instead of the general punitive damages instruction set forth in CV2026 (Punitive Damages. Introduction.).

The concept of "actual malice" is captured in subsection (1) of this instruction, although the term itself is not used.

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.

Utah Code sect.sect. 45-2-1 to 1.5

Several different retraction methods are prescribed by statute, Utah Code §§ 45-2-1 to 1.5, depending on the circumstances of the newspaper publication or radio or television broadcast. This instruction should be modified to reflect those methods. This instruction is necessary only if there was a retraction made or issued by the defendant.

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.

Cox v. Hatch, 761 P.2d 556 (Utah 1988)
Restatement (Second) of Torts sect. 583 (1977)

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.

Russell v. The Standard Corp., 898 P.2d 263 (Utah 1995)
Allen v. Ortez, 802 P.2d 1307 (Utah 1990)
Utah Code sect. 78B-2-302(4)

Application of a statute of limitations can be a question of law for the court, particularly when the statements at issue are published in a widely-available publication, but in certain circumstances a court may determine that a question of fact exists as to when a plaintiff should have reasonably discovered the allegedly defamatory statement. This instruction is intended for such circumstances.

CV1701 Assault.

[Name of plaintiff] claims that [name of defendant] assaulted [him]. To succeed on this claim, [name of plaintiff] must prove the following:

Reynolds v. Macfarlane, 2014 UT App 57, para. 7, 322 P.3d 755.

Tiede v. State, 915 P.2d 500, 503 n.3 (Utah 1996).

D.D.Z. v. Molerway Freight Lines, Inc., 880 P.2d 1, 3 (Utah Ct. App. 1994), overruled on other grounds in Stephens v. Bonneville Travel, Inc., 935 P.2d 518 (Utah 1997).

Restatement (Second) of Torts section 21 (1965).

Tingey v. Midwest Off., Inc., No. 1:22-CV-00145-TC, 2023 WL 8602841, at *3 (D. Utah Dec. 12, 2023) (unpublished).

Billy v. Edge Homes, No. 2:19-CV-00058-JNP-EJF, 2020 WL 2572522, at *5 (D. Utah May 21, 2020) (unpublished).

For the definition of harmful or offensive physical contact, see CV1702.

CV1702 Harmful or Offensive Physical Contact Defined.

Contact is harmful or offensive if [name of plaintiff] did not consent to the contact either directly or by implication. This includes all physical contact that:

Wagner v. Utah Dep't of Human Servs., 2005 UT 54, para. 51, 122 P.3d 599.

CV1710 Battery.

[Name of plaintiff] claims that [name of defendant] committed a battery against [him or her]. To succeed on this claim, [name of plaintiff] must prove the following:

Wagner v. Utah Dep't of Human Servs., 2005 UT 54.

Erickson v. Canyons Sch. Dist., 2020 UT App 91.

Reynolds v. MacFarlane, 2014 UT App 57.

D.D.Z. v. Molerway Freight Lines, Inc., 880 P.2d 1, 3 (Utah Ct. App. 1994), overruled on other grounds in Stephens v. Bonneville Travel, Inc., 935 P.2d 518 (Utah 1997).

Restatement (Second) of Torts section 13 (1965).

For the definition of harmful or offensive physical contact, see CV1702.

CV1720 False Imprisonment.

[Name of plaintiff] claims [name of defendant] falsely imprisoned [him]. To succeed on this claim, [name of plaintiff] must prove the following elements:

[Name of plaintiff] can be confined, restrained, or detained through physical force, verbal threats, or any other actions that would reasonably lead [him] to believe [he] is not free to leave.

Tiede v. State, 915 P.2d 500, 503 n.4 (Utah 1996).

McFarland v. Skaggs Cos., 678 P.2d 298, 301 (Utah 1984).

Terry v. Zions Coop. Mercantile Inst., 605 P .2d 314 (Utah 1979).

Tolman v. K-Mart Enters., 560 P.2d 1127, 1128 (Utah 1977).

Mildon v. Bybee, 13 Utah 2d 400, 375 P.2d 458 (Utah 1962).

Hepworth v. Covey Bros. Amusement Co., 97 Utah 205, 210, 91 P.2d 507, 509 (Utah 1939).

Smith v. Clark, 37 Utah 116, 106 P. 653 (Utah 1910).

State v. Pass, 30 Utah 2d 197, 200, 515 P.2d 612, 613 (Utah 1973).

Lee v. Langley, 2005 UT App 339, para. 19, 121 P.3d 33.

Restatement (Second) of Torts section 35 (1965).

CV1730 Malicious Prosecution.

[Name of plaintiff] claims [name of defendant] harmed [him] through a malicious prosecution. To succeed on this claim, [name of plaintiff] must prove the following four elements:

Neff v. Neff, 2011 UT 6, para. 52, 247 P.3d 380.

Gilbert v. Paul R. Ince & Callister, 1999 UT 65, para. 18, 981 P.2d 841.

Hodges v. Gibson Prods. Co., 811 P.2d 151, 156 (Utah 1991).

Vandermeide v. Young, 2013 UT App 31, para. 27, 296 P.3d 787.

Cline v. State, Div. of Child & Family Servs., 2005 UT App 498, 142 P.3d 127.

Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 959 (Utah Ct. App. 1989).

Callioux v. Progressive Ins. Co., 745 P.2d 838, 843 (Utah Ct. App. 1987).

Johnson v. Mount Ogden Enterprises, Inc., 23 Utah 2d 169, 460 P.2d 333 (Utah 1969).

Restatement (Second) of Torts sections 653, 660 cmt. a (1977).

Where the innocence requirement is at issue, the Committee recommends reviewing the Restatement (Second) of Torts section 660 (1977).

CV1731 Definition of Probable Cause in Malicious Prosecution Claim.

[Name of defendant] has probable cause for beginning or continuing criminal proceedings against [name of plaintiff] if:

Neff v. Neff, 2011 UT 6, para. 58 n.34, 247 P.3d 380.

Hodges v. Gibson Prods. Co., 811 P.2d 151, 158 (Utah 1991).

Restatement (Second) of Torts section 662 (1977).

CV1740 Elements of abuse of process.

[Name of plaintiff] asserts that [name of defendant] abused the legal process in [name of defendant]'s actions against [name of plaintiff]. To succeed in this claim [name of plaintiff] must prove by a preponderance of the evidence that:

Mackey v. Krause, 2025 UT 37, ¶¶ 95-96, 575 P.3d 1162.

Moss v. Parr Waddoups Brown Gee & Loveless, 2012 UT 42, ¶ 37 n.6, 285 P.3d 1157.

Mountain W. Surgical Ctr., LLC v. Hospital Corp. of Utah, 2007 UT 92, ¶ 11, 173 P.3d 1276.

Hatch v. Davis (Hatch II), 2006 UT 44, ¶¶ 34-40, 147 P.3d 383.

Tomlinson v. NCR Corp., 2013 UT App 26, ¶¶ 14-15, 296 P.3d 760, rev’d on appeal on other grounds, 2014 UT 55, 345 P.3d 523.

See Mackey v. Krause, 2025 UT 37, ¶ 103 (not reaching the question of whether a false report to DCFS could qualify as abuse of legal process).

CV1741 Use of legal process for intended purpose.

If [name of defendant] used the legal process against [name of plaintiff] primarily for its proper and intended purpose, the fact that [name of defendant] received some secondary benefit does not support an abuse of process claim.

In deciding whether [name of defendant] used the legal process against [name of plaintiff] primarily to accomplish an improper purpose or a purpose that process was not designed for, you must consider whether [name of defendant] attempted to obtain an advantage or gain other than the outcome of the legal process itself.

Hatch v. Davis (Hatch II), 2006 UT 44, ¶¶ 34-40, 147 P.3d 383.

Tomlinson v. NCR Corp., 2013 UT App 26, ¶¶ 15-16, 296 P.3d 760, rev'd on appeal on other grounds, 2014 UT 55, 345 P.3d 523.

Puttuck v. Gendron, 2008 UT App 362, ¶ 14, 199 P.3d 971.

Hatch v. Davis (Hatch I), 2004 UT App 378, ¶ 33, 102 P.3d 774.

CV1742 Intent and knowledge of a company.

[Name of plaintiff] must show that [defendant company] intentionally misused the legal process. To satisfy this requirement, [name of plaintiff] must show that at least one agent of [defendant company] had all of the required knowledge necessary to establish the elements of the abuse of process claim.

Helf v. Chevron U.S.A. Inc., 2015 UT 81, ¶ 28, 361 P.3d 63.

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:

(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

(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.

Cardon v. Jean Brown Research, 2014 UT App 35, 327 P.3d 22.
Yazd v. Woodside Homes Corp., 143 P.3d 283 (Utah 2006).
Armed Forces Insurance Exchange v. Harrison, 70 P.3d 35 (Utah 2003).
Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060 (Utah 1996).
Taylor v. Gasor, Inc., 607 P.2d 293 (Utah 1990).
Dilworth v. Lauritzen, 18 Utah 2d 386, 424 P.2d 136 (1967).
Child v. Hayward, 16 Utah 2d 351, 400 P.2d 758 (1965).
See Instruction CV118, Clear and convincing evidence.

This instruction and the instructions that follow use the term "important" rather than "material." The Committee made this change because jurors are more likely to understand the former term, and because Utah case law defines materiality in terms of importance. See, e.g., Yazd v. Woodside Homes Corp., 143 P.3d 283 ¶ 34 (Utah 2006) ("To be material, the information must be 'important.'").

Although some of the instructions in this section may be useful in negligent misrepresentation cases, they do not purport to comprise a complete set of instructions for such cases.

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;

(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;

(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.

West v. Inter-Financial, Inc., 139 P.3d 1059, Court of Appeals (Utah 2006).
Smith v. Frandsen, 94 P.3rd 919, (Utah Sup. Ct. 2004).
Price v Orem Investment Company v. Rollins, Brown & Gunnel, Inc., 713 P.2d 55 (Utah Sup. Ct. 1986).
Jardine v. Brunswick Corporation, 423 P.2d 659 (Utah Sup. Ct. 1967).
Restatement 2d Torts, Section 552.

The standard of proof for negligent misrepresentation has not been established in Utah. Because a different standard is not stated in the instruction, this instruction assumes the burden to be preponderance of the evidence, rather than clear and convincing evidence. Compare State ex rel. Nichols v. Safeco Ins. Co., 100 N.M. 440, 671 P.2d 1151, 1154, certiorari denied 100 N.M. 327, 670 P.2d 581 (1983) and Hughes v. Holt, 140 Vt. 38, 435 A.2d 687, 689. (1981) (preponderance) with Duffy v. Brown, 708 P.2d 433, 437 (Wyo.1985) (clear and convincing).

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.

Kuhre v. Goodfellow, 2003 UT APP 1, 69 P.3d 286.
Prince v. Bear River Mut. Ins. Co., 2002 UT 68, 56 P.3d 524.
Rawson v. Conover, 2001 UT 24, 20 P.3d 876 ("To have made a false representation recklessly, defendants would have to know that they had insufficient knowledge upon which to base the representation made.")

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.

Cerritos Trucking Co. v. Utah Venture No. 1, 645 P.2d 608 (Utah 1982).

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]:

Cerritos Trucking Co. v. Utah Venture No. 1, 645 P.2d 608 (Utah 1982)
Hull v. Flanders, 83 Utah 158, 27 P.2d 56 (1933)

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.

Yazd v. Woodside Homes Corp., 2006 UT 47, 143 P.3d 283.
Walter v. Stewart, 2003 Utah App. 86, 67 P.3d 1042.

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.

Fraud and Deceit, AmJur 2d, Section 209.

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]].

Ellis v. Hale, 373 P.2d 382 (1962)

The judge should instruct only on the circumstances for which there is evidence.

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.

Anderson v. Kriser, 2011 UT 66 (Plaintiff must prove by clear and convincing evidence that the defendant had actual knowledge of the information that the defendant failed to disclose on a fraudulent concealment claim.)
Deseret Federal Savings and Loan Assn v. United States Fidelity & Guaranty Co., 714 P.2d 1143, 1146 (Utah 1986).
Hoffman v. Life Insurance Company of No. America, 669 P.2d 410, 420 (Utah 1983).
See Instruction CV120, Direct and circumstantial evidence.

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].

Mikkelson v. Quail Valley Realty, 641 P.2d 124 (Utah 1982)
Berkeley Bank for Coops. v. Meibos, 607 P.2d 1369 (Utah 1980)

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];

(3) that [name of defendant]'s failure to disclose [describe the important fact] was a substantial factor in causing [name of plaintiff]'s damages.

Anderson v. Kriser, 2011 UT 66.
Gilbert Development Corp., v. Wardley Corp., 2010 UT App 361.
Yazd v. Woodside, 143 P.3d 283 (Utah 2006).
Moore v. Smith, 158 P.3d 561 (Utah App. 2007).

This instruction should be given only if the Court has determined that a special relationship imposing the higher duty is established as a matter of law. Moore v. Smith, 158 P.3d 561 (Utah App. 2007).

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.]

Dugan v. Jones, 615 P.2d 1239 (Utah 1980)
Lamb v. Bangart, 525 P.2d 602 (Utah 1974)
Dilworth v. Lauritzen, 424 P.2d 136 (Utah 1967)
Restatement (Second) of Torts, sect. 549
Campbell v. State Farm Mutual Automobile Ins. Co., 65 P.3d 1134 (2001)
Ong International (U.S.A.) Inc., v. 11th Avenue Corp., 850 P.2d 447 (1993)
Crookston v. Fire Ins. Exch., 817 P.2d 789 (Utah 1991)

The judge should instruct only on the damanges for which there is evidence. The judge should describe for the jury which of these elements of damages are economic and which are non-economic so that the jury can differentiate them in the verdict form.

This instruction expands MUJI 17.11 to address a broader range of fraud cases. This instruction states the traditional measure of damages in fraud cases involving the purchase or sale of property, as recognized in Dugan v. Jones, 615 P.2d 1239 (Utah 1980) (real estate), Lamb v. Bangart, 525 P.2d 602 (Utah 1974) (livestock), Dilworth v. Lauritzen, 424 P.2d 136 (Utah 1967) (distributorship) and others.

The instruction also includes loss suffered in reliance on a fraudulent misrepresentation, even if there is not any purchase or sale between the plaintiff and defendant. This situation is presented in a variety of cases: e.g., where the plaintiff is fraudulently induced to extend money or credit, or where the plaintiff is fraudulently induced to purchase or use an article which is inappropriate for the intended use. See Restatement (Second) of Torts § 549, and comments thereto.

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]?

(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]?

(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.)

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.

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];

Some of these words have special meanings, and they will be explained in the following instructions.

Rehn v. Christensen, 2017 UT App 21, 392 P.3d 872
Dillon v. S. Mgmt. Corp. Ret. Trust, 2014 UT 14, 326 P.3d 656
Neff v. Neff, 2011 UT 6, 247 P.3d 380
First Sec. Bank of Utah, N.A. v. Banberry Crossing, 780 P.2d 1253 (Utah 1989)
Bass v. Planned Mgmt. Servs., Inc., 761 P.2d 566 (Utah 1988)
Jack B. Parson Cos. v. Nield, 751 P.2d 1131 (Utah 1988)
Direct Import Buyers Assoc. v. KSL, Inc., 572 P.2d 692 (Utah 1977)
Restatement (Second) of Torts sect.sect. 623A, 624, 626 (1977)

The first element in this instruction is intended to encompass both slander of title and trade libel claims, and is worded generally regarding the specific target of the injurious statements. It could be modified to be more specific if the parties and court so choose.

This instruction is not intended to address statutory causes of action for wrongful liens. See Utah Code sections 38-9-101 to 38-9-305 and 38-9a-101 to 38-9a-205 (2017).

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.

Utah cases do not address whether publication of an injurious falsehood must be intentional, or at least negligent, to create liability. The Restatement requires at least negligence. See Restatement (Second) of Torts § 630 (1977). In some ways, however, this concept is subsumed within the malice requirement, as a non-negligent, unintentional publication would rarely be published with the requisite degree of malice.

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.

Bass v. Planned Mgmt. Servs., Inc., 761 P.2d 566 (Utah 1988)
Restatement (Second) of Torts sect.sect. 629, 652 (1977)
Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535
O'Connor v. Burningham, 2007 UT 58, 165 P.3d 1214
West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994)
Allred v. Cook, 590 P.2d 318 (Utah 1979)
Mast v. Overson, 971 P.2d 928 (Utah Ct. App. 1998)
Hogan v. Winder, 762 F.3d 1096 (10th Cir. 2014)
Restatement (Second) of Torts sect.sect. 559, 614 (1977)

The element of "disparaging" has not been extensively addressed by Utah courts in the injurious falsehood context, including the question of the court's role in determining whether a statement is capable of conveying a disparaging meaning. The element is analogous, however, to the element of defamatory meaning for defamation claims, which has been addressed by Utah courts, and with respect to which the court's role is clearly defined. References are therefore included to defamation authority for this instruction. See also CV1607 (Definition: Defamatory); Restatement (Second) of Torts § 652 (1977) ("In an action for injurious falsehood, the court determines ... whether the statement is capable of disparaging or other injurious meaning; ... the jury determines whether ... the statement complained of was understood by the recipient as disparaging or otherwise injurious" and "the statement was understood to be published of and concerning the plaintiff's interest").

The definition of "disparaging" as "casting doubt" on the plaintiff's interests comes from the Restatement. See Restatement (Second) of Torts §§ 629 (1977). Because the phrase "casting doubt" may not be as inclusive of the types of statements that would constitute business disparagement, the instruction also uses the phrase, "calls into question in a negative way."

As with CV1902 (Elements of an Injurious Falsehood Claim), the third paragraph of this instruction could be narrowed and stated more specifically depending on the types of statements at issue in a particular case. The bracketed word [interests] could be used as a general descriptor, or the parties and court could decide to be more specific about the interests at issue in a particular case, i.e., the plaintiff's title in land, ownership of intangible property, quality of services, etc.

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.

Dillon v. S. Mgmt. Corp. Ret. Trust, 2014 UT 14, 326 P.3d 656
First Sec. Bank of Utah, N.A. v. Banberry Crossing, 780 P.2d 1253 (Utah 1989)
Bass v. Planned Mgmt. Servs., Inc., 761 P.2d 566 (Utah 1988)
Air Wis. Airlines Corp. v. Hoeper, __ U.S. __, 134 S. Ct. 852 (2014)
Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991)
Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535
Oman v. Davis Sch. Dist., 2008 UT 70, 194 P.3d 956
Jensen v. Sawyers, 2005 UT 81, 130 P.3d 325
West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994)
Brehany v. Nordstrom, Inc., 812 P.2d 49 (Utah 1991)
Auto West, Inc. v. Baggs, 678 P.2d 286 (Utah 1984)
Restatement (Second) of Torts sect. 634 (1977)

The issue of falsity has not been extensively discussed in the injurious falsehood context, but it is essentially the same as the requirement of falsity for defamation claims. References are therefore included to defamation authority for this instruction. See also CV1605 (Definition: False Statement).

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.

Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535
West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994)
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)
Direct Import Buyers Assoc. v. KSL, Inc., 572 P.2d 692 (Utah 1977)
Utah Const. art. 1, sect.sect. 1, 15
Restatement (Second) of Torts sect.sect. 566 cmt. c, 626 cmt. c, 634 (1977)

The issue of protected opinion has not been extensively discussed in the injurious falsehood context, but it is similar to the issue that arises in the defamation context. References are therefore included to defamation authority for this instruction. In West v. Thomson Newspapers, 872 P.2d 999, 1015-19 (Utah 1994), the Utah Supreme Court held that the Utah Constitution protects statements of pure opinion. The Committee discerns no reason the same protection would not apply in the injurious falsehood context. 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). This instruction also assumes that, as in the defamation context, whether a statement constitutes pure opinion is a question for the court to decide. See West, 872 P.2d at 1018. See also CV1606 (Opinion).

This instruction should be used in the event the court determines as a matter of law that one or more statements are opinion, but the statement(s) may nonetheless be actionable because they reasonably imply verifiable facts capable of sustaining a disparaging meaning. The question for the jury is whether those facts were, in fact, implied, and whether the disparaging meaning was, in fact, conveyed.

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].

Rehn v. Christensen, 2017 UT App 21, 392 P.3d 872
Dillon v. S. Mgmt. Corp. Ret. Trust, 2014 UT 14, 326 P.3d 656
Ferguson v. Williams & Hunt, Inc., 2009 UT 49, 221 P.3d 205
First Sec. Bank of Utah, N.A. v. Banberry Crossing, 780 P.2d 1253 (Utah 1989)
Bass v. Planned Mgmt. Servs., Inc., 761 P.2d 566 (Utah 1988)
Direct Import Buyers Assoc. v. KSL, Inc., 572 P.2d 692 (Utah 1977)
Howarth v. Ostergaard, 515 P.2d 442 (Utah 1973)
Restatement (Second) of Torts sect.sect. 623A (1977)

The meaning of "malice" in the injurious falsehood context has not always been clear in Utah. Some older cases suggest that malice requires actual knowledge of falsity, while others appear to endorse mere intent to injure or ill will, traditionally known as common law malice. Compare Direct Import Buyers Assoc. v. KSL, Inc., 572 P.2d 692, 696 (Utah 1977) (requiring "actual malice" for disparagement of quality claim) with First Sec. Bank of Utah, N.A. v. Banberry Crossing, 780 P.2d 1253, 1257 (Utah 1989) (appearing to allow a showing of malice from proof "that the wrong was done with an intent to injure, vex, or annoy"); see also Bass v. Planned Mgmt. Servs., Inc., 761 P.2d 566, 568 n.1 (Utah 1988) ("We forgo defining the term 'malice' in this opinion. We note, however, that the concept is not altogether clear under Utah law." (collecting cases)). This confusion may have stemmed from some courts' reliance on cases discussing conditional privilege in the defamation context, in which both actual malice and common law malice can constitute abuse of the privilege. In Dillon v. Southern Management Corporation Retirement Trust, 2014 UT 14, ¶¶ 34-40, 326 P.3d 656, the Utah Supreme Court resolved this confusion, "clarify[ing] that to show malice in a claim for slander of title, the plaintiff must prove that the defendant had actual knowledge that the statements at issue were false." Id. ¶ 35. This is a subjective, not objective, inquiry. Id. The court explained that the "intent to injure" and reasonable foreseeability requirements are alternative ways of showing malice, but that actual knowledge of falsity is required regardless. Id. ¶ 36. The latter method of proof (reasonable foreseeability) is sometimes referred to as "implied malice." Id. ¶ 38; see also Rehn v. Christensen, 2017 UT App 21, ¶ 62, 392 P.3d 872. This holding conformed Utah law to the Restatement position. See Restatement (Second) of Torts § 623A (1977). Dillon was a slander of title case, but the Committee discerns no reason the same definition of malice would not apply equally to disparagement of quality claims.

Notably, the Dillon court did not hold that malice for injurious falsehood can be shown by proof of the defendant's reckless disregard for the truth. The malice standard for injurious falsehood in Utah, therefore, appears to be higher than the actual malice standard mandated by the First Amendment in defamation law, which incorporates the reckless disregard concept. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Ferguson v. Williams & Hunt, Inc., 2009 UT 49, 221 P.3d 205. Cf. CV1608 (Conditional Privilege).

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.]

Rehn v. Christensen, 2017 UT App 21, 392 P.3d 872
Neff v. Neff, 2011 UT 6, 247 P.3d 380
Valley Colour, Inc. v. Beuchert Builders, Inc., 944 P.2d 361 (Utah 1997)
First Sec. Bank of Utah, N.A. v. Banberry Crossing, 780 P.2d 1253 (Utah 1989)
Bass v. Planned Mgmt. Servs., Inc., 761 P.2d 566 (Utah 1988)
Farm Bureau Life Ins. Co. v. Am. Nat'l Ins. Co., 505 F. Supp. 2d 1178 (D. Utah 2007)
Watkins v. Gen. Refractories Co., 805 F. Supp. 911 (D. Utah 1992)
Restatement (Second) of Torts sect. 633 (1977)

This instruction uses the term "economic damages" to capture the concept of special damages. Examples of such loss include, but are not limited to, lost sales of products, sale of an interest in land at a reduced price, or legal expenses reasonably necessary to remove a cloud on a title in property. This concept is similar (though not identical) to the concept of special damages in the defamation context. See CV1615 (Damages - Economic Damages). Among the differences, the Utah Supreme Court has held that attorneys' fees directly and necessarily incurred in clearing a cloud on title resulting from disparagement of property can constitute special damages for injurious falsehood. See Bass v. Planned Mgmt. Servs., Inc., 761 P.2d 566, 569 (Utah 1988); Neff v. Neff, 2011 UT 6, ¶ 80, 247 P.3d 380; see also Rehn v. Christensen, 2017 UT App 21, ¶ 69, 392 P.3d 872. Utah courts have not addressed whether the same rule applies to a disparagement of quality claim.

To constitute special damages, the loss must be liquidated. The last sentence of this instruction is intended to convey that requirement and can be used if appropriate to a particular case. See Neff, 2011 UT 6, ¶ 81 ("[W]here a party's claim for harm to the value of his property has been based on appraisal value instead of sale of the land at a reduced price, we have denied recovery because the damages had not yet been realized."); Valley Colour, Inc. v. Beuchert Builders, Inc., 944 P.2d 361, 364 (Utah 1997) ("Proof of special damages usually involves demonstrating a sale at a reduced price or at greater expense to the seller. It is not sufficient to show that the land's value has dropped on the market, as this is general damage, not a realized or liquidated loss.").

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.

Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535
O'Connor v. Burningham, 2007 UT 58, 165 P.3d 1214

This instruction recognizes that even where the court makes a determination that certain statements are non-actionable as a matter of law, such as when they are privileged or pure opinion, those statements may still be presented to jury for some other purpose or may have been presented prior to the court's legal determination. For that reason, and to effectuate the court's gatekeeping function, this instruction is designed to cure any prejudicial implication that non-actionable but otherwise admitted statements can support an injurious falsehood claim.

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.

This instruction should be given as a preliminary instruction to all personal injury damage instructions and should be modified to fit the particular situation. The case may be submitted to the jury on special verdict, general verdict, or stipulated liability.

The Advisory Committee recommends that the terms "special" and "general" damages not be used and that the terms "economic" and "noneconomic" damages are more descriptive. But they are intended as the equivalent of "special" and "general" damages. See, for example, Judd ex rel. Montgomery v. Drezga, 2004 UT 91, P4 (Utah 2004) and Utah Code Section 78B-3-410.

CV2002 Proof of damages.

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.

Atkin Wright & Miles v. Mountain States Telephone & Telegraph Co., et al., 709 P.2d 330, 336 (Utah 1985).
Renegade Oil, Inc. v. Progressive Cas. Ins. Co., 2004 UT App 356.
Sohm v Dixie Eye Center, 2007 UT App 235, 166 P.3d 614.

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.

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.

(3) the extent to which [name of plaintiff] has been prevented from pursuing [his] ordinary affairs;

(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.

C.S. v. Nielson, 767 P.2d 504 (Utah 1988).
Judd v. Rowley's Cherry Hill Orchards, Inc., 611 P.2d 1216 (Utah 1980).

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.

Wilson v. IHC, 2012 UT 43, n 11.
Judd v. Rowley's Cherry Hill Orchards, Inc., 611 P.2d 1216 (Utah 1980).

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:

Cohn v. J. C. Penney Co., 537 P.2d 306 (Utah 1975).
Dalebout v. Union Pacific R. Co., 1999 UT App 151, 980 P.2d 1194, 1200 (Utah App. 1999).
Corbett v. Seamons dba Big O Tire, 904 P.2d 229, 232, N.2 (Utah App. 1995).
Utah Code Section 78B-5-824.

The judge should instruct on lost earning capacity only if there is evidence to support the loss, such as injury to a student who may not be working at the time of the injury but whose prospects for future employment are proved.

The verdict form should distinguish between lost earnings and lost earning capacity before and after the trial. The former accrue interest from the date of the injury. The latter do not.

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.

Regal Ins. Co. v. Bott, 2001 UT 71.
Wilde v. Mid-Century Ins. Co., 635 P.2d 417 (Utah 1981).

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.

Knickerbocker v. Cannon, 912 P.2d 969 (Utah 1996).
Winters v. Charles Anthony, Inc., 586 P.2d 453 (Utah 1978).
Ault v. Dubois, 739 P.2d 1117 (Utah App. 1987).

If the property has no fair market value, use the first paragraph only.

CV2009 Economic damages. Injury to 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.]

Walker Drug vs. La Sal Oil, 972 P.2d 1238 (Utah 1998).
Thorsen v. Johnson, 745 P.2d 1243 (Utah 1987).
Pehrson v. Saderup, 28 Utah 2d 77, 498 P.2d 648 (1972).
Brereton v. Dixon, 20 Utah 2d 64, 433 P.2d 3 (1967).
Henderson v. For-Shor Co., 757 P.2d 465 (Utah App. 1988).
Ault v. Dubois, 739 P.2d 1117 (Utah App. 1987).

The sentence on "stigma damages" is to be given only if there is evidence to support a claim of lingering negative public perception.

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].

Knickerbocker v. Cannon, 912 P.2d 969, 982 (Utah 1996).
Winters v. Charles Anthony, Inc., 586 P.2d 453 (Utah 1978).

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]:

(2) the lost income, meaning the income [name of plaintiff] would likely have earned through using the [item of personal property]; and

Castillo v. Atlanta Casualty Co., 939 P.2d 1204, 1209 (Utah App. 1997).

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:

[(3) incapability of performing the types of jobs [he] performed before the injury; or]

[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.

Utah Code Section 30-2-11.
Boyle v Christensen, 2011 UT 20
Black's Law Dictionary, 8th Edition.

Often there is no dispute about whether the plaintiff's spouse is the spouse at the time of the injury. If there is, the jury should be instructed on this issue as well.

Utah Code Section 30-2-11 is ambiguous about whether the fault of the spouses is combined or separate for the purpose of calculating loss of consortium damages: that is, whether the jury should consider the fault of the non-injured spouse alone when calculating loss of consortium damages or whether the fault of the injured spouse also reduces the loss of consortium damages.

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.

(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.]

Utah Code Sections 78B-3-106 and 78B-3-107.
Oxendine v. Overturf, 1999 UT 4, 973 P.2d 417 (1999).
Switzer v. Reynolds, 606 P.2d 244 (UT 1980).
In re Behm's Estate, 117 Utah 151, 213 P.2d 657 (1950).
Morrison v. Perry, 104 Utah 151, 140 P.2d 772 (1943).
Allen v. United States, 558 F. Supp. 247 (D. Utah 1984).
Platis v. United States, 288 F. Supp. 254 (D. Utah 1968), aff'd, 409 F.2d 1009 (10th Cir. 1969).

This instruction applies to claims for wrongful death of an adult under Utah Code Section 78B-3-106. It should be given along with Instruction 2015 or 2016 in cases involving both wrongful death claims and survival claims under Utah Code Section 78B-3-107, and in such cases the bracketed provision should be deleted.

In appropriate cases, the court may also include a specific reference in Paragraph (3) to reasonable funeral and burial expenses, the decedent's medical expenses resulting from the subject event causing the death, and damage to or destruction of the decedent's personal property.

Statutory heirs may recover funeral and burial expenses only if the estate is impecunious. Utah Code Section 78B-3-106. Morrison v. Perry, 104 Utah 151, 140 P.2d 772 (1943).

The judge should include only those paragraphs for which there is evidence of loss.

Amended January 10, 2012

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.]

Utah Code Sections 78B-3-102, 78B-3-106 and 78B-3-107.
Jones v. Carvell, 641 P.2d 105 (Utah 1982)
In re Behm's Estate, 117 Utah 151, 213 657 (1950).
Allen v. United States, 588 F. Supp. 247 (D. Utah 1984).
Platis v. United States, 288 F. Supp. 254 (D. Utah 1968), aff'd, 409 F.2d 1009 (10th Cir. 1969).

This instruction applies to claims for wrongful death of a minor under Utah Code Section 78B-3-102. It should be given along with Instruction 2015 or 2016 in cases involving both wrongful death claims and survival claims under Utah Code Section 78B-3-107, and in such cases the bracketed provision should be deleted.

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.

Utah Code Section 78B-3-107.
In re Behm's Estate, 117 Utah 151, 213 657 (1950).
Allen v. United States, 588 F. Supp. 247 (D. Utah 1984).
Platis v. United States, 288 F. Supp 254 (D. Utah 1968), aff'd, 409 F.2d 1009 (10th Cir. 1969).

There was no Utah law at the time this was drafted regarding the meaning of "survival," and whether the decedent must be conscious to bring a survival action.

Under Utah's comparative negligence statute, any negligence of decedent is, in effect, imputed to the plaintiff: thus, if decedent is found to be more than 50% negligent all recovery is denied. Kelson v. Salt Lake County, 784 P.2d 1152 (Utah 1989)

Amended Sept. 9, 2024; Sept. 8, 2014.

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.

Tingey v. Christensen, 1999 UT 68, 987 P.2d 588 (Utah 1999).
Brunson v. Strong, 17 Utah 2d 364, 412 P.2d 451 (1966).
Biswell v. Duncan, 742 P.2d 80 (Utah App. 1987).

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.

Robinson v. All-Star Delivery, 992 P.2d 969, 972 (Utah 1999).
Tingey v. Christensen, 1999 UT 68, 987 P.2d 588 (Utah 1999).
Brunson v. Strong, 17 Utah 2d 364, 412 P.2d 451 (1966).
Harris v. ShopKo Stores, Inc., 2011 UT App 329.
Florez v Schindler Elevator, 2010 UT App 254 (Absence of life expectancy evidence does not preclude award of future medical costs as damages.)

This instruction should be used only when the court determines that the defendant made a showing that there is a nonarbitrary evidentiary basis for the jury to apportion damages.

This instruction is not intended to suggest that the verdict form include a line-item allocation of what part of the harm can be apportioned to the pre-existing condition, and what part to the defendant's fault. That question is answered by the jury's award of damages and should not be confused with allocation of comparative fault.

CV2019 Aggravation of dormant pre-existing condition.

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.

Gibbs M. Smith, Inc. v. United States Fid. & Guar. Co., 949 P.2d 337 (Utah 1997).
Gill v. Timm, 720 P.2d 1352 (Utah 1986).

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.

Florez v Schindler Elevator, 2010 UT App 254 (Absence of life expectancy evidence does not preclude award of future medical costs as damages.)
Gallegos ex rel. Rynes v. Dick Simon Trucking, Inc., 2004 UT App 322, 110 P.3d 710, cert. denied (Utah 2005).
Bennett v. Denver & Rio Grande Western R. Co., 213 P.2d 325 (Utah 1950).

Utah law is silent on whether inflation should be taken into account in discounting an award for future damages to present value. The United States Supreme Court, however, has ruled that inflation should be taken into account when discounting to present value. See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983).

Utah law is silent on whether plaintiff or defendant bears the burden of proving present cash value. Other jurisdictions are split. Some courts treat reduction to present value as part of the plaintiff's case in chief. See, e.g., Abdulghani v. Virgin Islands Seaplane Shuttle, Inc., 746 F. Supp. 583 (D. V.I. 1990); Steppi v. Stromwasser, 297 A.2d 26 (Del. Super. Ct. 1972). Other courts treat reduction to present value as a reduction of the plaintiff's damages akin to failure to mitigate, on which the defendant bears the burden of proof. See, e.g., Energy Capital Corp. v. United States, 47 Fed. Cl. 382 (Fed. Cl. 2000), aff'd in part, rev'd in part on other grounds, 302 F.3d 1314 (Fed. Cir. 2002); CSX Transp., Inc. v. Casale, 441 S.E.2d 212 (Va.1994). There is a good discussion of the issue in Lewin Realty III, Inc. v. Brooks, 771 A.2d 446 (Md. Ct. Spec. App. 2001), aff'd, 835 A.2d 616 (Md. 2003), holding the burden to be on the defendant. It cites Miller v. Union P.R. Co., 900F.2d 223, 226 (10th Cir. 1990), as support.

There are several Utah cases holding that the burden is on the defendant to show that a damage award should be reduced, but they deal with failure to mitigate, not reduction to present value. See Covey v. Covey, 2003 UT App 380, 29, 80 P.3d 553; John Call Eng'g, Inc. v. Manti City Corp., 795 P.2d 678, 680 (Utah Ct. App. 1990).

The Utah Court of Appeals has noted in dicta that, while having an expert testify as to the present value calculation of future economic damages is usually preferred, such expert testimony is not required. Brinkerhoff v. Fleming, 2023 UT App 92, para. 19 n.4.

Expert testimony on annuities as relevant to present value of future damages is permitted. Gallegos ex rel. Rynes v. Dick Simon Trucking, Inc., 2004 UT App 322, 110 P.3d 710, cert. denied (Utah 2005). Annuity tables and their related data also are permitted without expert testimony. See Schlatter v. McCarthy, 113 Utah 543, 196 P.2d 968 (1948).

October 2023; December 2024.

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.

The purpose for this instruction is to assist the jury in determining future damages. Therefore, life expectancy is determined from the date of trial, not the date of injury.

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.

Mahana v. Onyx Acceptance Corp., 2004 UT 59 P37, P39, 96 P.3d 893, 901.

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.

CV2026 Punitive damages. Introduction.

Utah Code sect. 78B-8-201(1)(a) (West 2014).
Westgate Resorts v Consumer Protection Group, LLC, 285 P.3d 1219, 1222-1223 (Utah 2012).
Daniels v. Gamma W. Brachytherapy, LLC, 2009 UT 66, 221 P.3d 256.
State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003).
Hall v. Walmart Stores, Inc., 959 P.2d 109 (Utah 1998).
BMW of N. Am. Inc. v. Gore, 517 U.S. 559, 568 (1996).
Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 19-20 (1991).
Johnson v. Rogers, 763 P.2d 771, 773 (Utah 1988)
Gleave v. Denver & Rio Grande W. R. Co., 749 P.2d 660 (Utah Ct. App. 1988)
Biswell v. Duncan, 742 P.2d 80, 84 (Utah Ct. App. 1987)
Behrens v. Raleigh Hills Hospital, 675 P.2d 1179 (Utah 1983).
Bundy v. Century Equipment, Inc., 697 P.2d 754, 759 (Utah 1984).

1. "Willful and malicious" conduct has not yet been well defined under Utah law, but several cases discuss what it could mean. For example, Gleave v. Denver & Rio Grande W. R. Co., 749 P.2d 660 (Utah Ct. App. 1988) discusses whether actual malice is required for punitive damages or whether implied malice is sufficient. See also Johnson v. Rogers, 763 P.2d 771 (Utah 1988) and Biswell v. Duncan, 742 P.2d 80, 84 (Utah Ct. App. 1987) (discussing whether actual malice is required). Clayton v. Crossroads Equip. Co., 655 P.2d 1125 (Utah 1982) refers to non-Utah case law to define "willful or malicious" conduct (emphasis added). And State v. Larsen, 865 P.2d 1355, n. 3 (Utah 1993), discusses what "willful" means. In the non-punitive damages context, Chang v. Soldier Summit Development, 1999 UT App 27 and Golding v. Ashley Cent. Irrigation Co., 793 P.2d 897, discuss "willful misconduct".

2. "Intentionally fraudulent" has not been defined by Utah case law. Counsel may review CV1801 (Elements of Fraud) and CV1809 (Intent) for a working definition and relevant case law.

3. The committee was divided on whether the last two paragraphs (in brackets) of this instruction should be given.

4. The statute requires bifurcation in all cases where punitive damages are sought at trial and evidence of wealth is introduced. The first phase will resolve the question of whether the plaintiff is entitled to punitive damages for the conduct alleged. If the jury determines that the plaintiff is so entitled, there will be a second phase. The second phase may include evidence of the defendant's wealth or financial condition (Section 78B-8-201(2)), with the jury answering only the question of what amount of punitive damages to award.

5. The committee did not feel that there is adequate legal direction to determine which punitive damages instructions should be given in the first phase and which should be given if there is a second phase. However, one option would be for 2026 (and/or 2033 and 2034) to be read in the first phase, with the remainder to be read during any second phase.

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.

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426 (2003).
Cooper Indus., Inc. v. Leatherman Tool Group, Inc. 532 U.S. 424, 440-42 (2001).
BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 580-83 (1996).
Crookston v. Fire Insurance Exchange, 817 P.2d 789, 811 (Utah 1991).

The Utah Supreme Court has opined regarding the ratios that apply in determining whether a punitive damage award is excessive. "The general rule to be drawn from our past cases appears to be that where the punitives are well below $100,000, punitive damage awards beyond a 3 to 1 ratio to actual damages have seldom been upheld and that where the award is in excess of $100,000, we have indicated some inclination to overturn awards having ratios of less than 3 to 1." Crookston v. Fire Insurance Exchange, 817 P.2d 789, 811 (Utah 1991).

The Crookston Court did not provide guidance on whether the presumptive ratios should be disclosed to the jury. The case law regarding presumptive ratios has been in the context of post-verdict motions addressed to the judge, and the committee felt that it did not provide guidance with regard to whether the ratio should be disclosed to the jury.

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.

Westgate Resorts v Consumer Protection Group, LLC, 285 P.3d 1219, 1222-1223 (Utah 2012).

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.

Crookston v. Fire Insurance Exchange, 817 P.2d 789, 811 (Utah 1991). The "harm to others" Crookston factor number 4 has been modified. Outside conduct or harm to others may now only be used to assess reprehensibility. See Westgate Resorts v Consumer Protection Group, LLC, 285 P.3d 1219, 1222-1223 (Utah 2012).

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.

Westgate Resorts v Consumer Protection Group, LLC, 285 P.3d 1219, 1222-1223 (Utah 2012).
Philip Morris v. Williams, 549 U.S. 346 (2007).

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.

Westgate Resorts v Consumer Protection Group, LLC, 285 P.3d 1219, 1222-1223 (Utah 2012).
Philip Morris v. Williams, 549 U.S. 346 (2007).

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.

Westgate Resorts v. Consumer Protection Group, LLC, 285 P.3d 1219, 1222-1223 (Utah 2012).
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 423 (2003).
BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 570-75 & 585 (1996).

This instruction should be used only in cases where the plaintiff asserts that the defendant's conduct is more reprehensible because it has occurred in other states and the defendant then responds that the conduct is legal in other states.

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.]

Utah Code sect. 78B-8-201(1)(b)(i).
Utah Code sect. 41-6a-502.
C.T. ex rel. Taylor v. Johnson, 1999 UT 35, 977 P.2d 479.

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.]

Utah Code sect. 78B-8-201(1)(b)(ii) and (iii).
Utah Code sect. 78B-3-801.
Utah Code sect. 58-37-1, et. Seq.
C.T. ex rel. Taylor v. Johnson, 1999 UT 35, 977 P.2d 479.

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].

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.

Bair v. Axiom Design, L.L.C., 2001 UT 20, para. 14, 20 P.3d 388, 392.

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.

Glacier Land Co., L.L.C. v. Claudia Klawe & Associates, L.L.C., 2006 UT App 516, 154 P.3d 852.
Golden Key Realty, Inc. v. Mantas, 699 P.2d 730 (Utah 1985).

A contract also requires consideration, which is conceptually different for bilateral and unilateral contracts. Instruction CV2107, Consideration should be read in conjunction with this instruction if the contract at issue is a bilateral contract.

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.

DCM Investment Corp. v. Pinecrest Investment Co., 2001 UT 91, para. 12, 34 P.3d 785, 788-89.
Nunley v. Westgates Casing Services, Inc., 1999 UT 100, para. 26, 989 P.2d 1077, 1086 (citing Engineering Assoc. v. Irving Place Assoc., 622 P.2d 784, 787 (Utah 1980)).
Cal Wadsworth Construction v. City of St. George, 898 P.2d 1372 (Utah 1995).
Equitable Life & Cas. Ins. Co. v. Ross, 849 P. 2d 1187, 1192 (Utah Ct. App. 1993).

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.

Nunley v. Westgates Casing Services, Inc., 1999 UT 100, para. 27, 989 P.2d 1077. 1086.
Cal Wadsworth Construction v. City of St. George, 898 P.2d 1372, 1376 (Utah 1995).
Engineering Assoc. v. Irving Place Assoc., 622 P.2d 784, 787 (Utah 1980).

26.6; 26.10; 26.13; 26.17

CV2106 Withdrawal of offer.

An offer can be withdrawn at any time before it is accepted, but not afterwards.

Jones v. New York Life Insurance Co., 15 Utah 522, 50 P. 620 (1897).

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.

Resources Management Co. v. Weston Ranch & Livestock Co., 706 P.2d 1028 (Utah 1985).
Latimer v. Holladay, 103 Utah 152, 134 P.2d 183 (1943).
Restatement (Second) of Contracts sect. 71 (1979).

This instruction, which applies only to bilateral contracts, is intended to address the concept of consideration in a way that will be plainly understood by jurors. Consideration in a bilateral contract is typically a return promise that is usually express, but may be implied. Consideration for a unilateral contract is not a return promise, but some performance by the promisee. E. Allen Farnsworth, Contracts, § 2.3 (1982).

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.

Collard v. Nagle Construction, Inc., 2002 UT App 306, para. 19, 57 P.3d 603, 607-08.
Century 21 All Western Real Estate and Inv., Inc. v. Webb, 645 P.2d 52, 55-56 (Utah 1982).
Restatement (Second) of Contracts sect. 238 (1981).

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].

Coulter & Smith, Ltd. v. Russell, 966 P.2d 852 (Utah 1998).
Bradford v. Alvey & Sons, 621 P.2d 1240, 1242 (Utah 1980).

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

(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.

Reliance Ins. Co. v. Utah Dep't of Transp., 858 P.2d 1363, 1370 (Utah 1993).

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.

Baxter v. Saunders Outdoor Advertising, Inc., 2007 UT App 340, 171 P.3d 469.

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.

Fairbourn Commercial, Inc. v. American Housing Partners, Inc., 2004 UT 54, para. 10, 94 P.3d 292, 295.
Young v. Wardley Corp., 2008 UT App 104, para. para. 10-13, 182 P.3d 412, 415.
State v. Ison, 2006 UT 26, para.para. 46-48, 135 P.3d 864, 873.
Baxter v. Saunders Outdoor Advertising, Inc., 2007 UT App 340, 171 P.3d 469.
McBride-Williams v. Huard, 2004 UT 21, para. 13, 94 P.3d 175, 178.

This instruction should only be used concerning a written contract if the court has determined as a matter of law that the contract is ambiguous. Otherwise, the terms of the condition precedent are a matter of law for the court's determination. This instruction is also appropriate when the terms of an oral or implied contract are disputed.

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.

Baxter v. Saunders Outdoor Advertising, Inc., 2007 UT App 340, para. 15, 171 P.3d 469, 473.
Saunders v. Sharp, 840 P.2d 796, 805-806 (Utah Ct. App. 1992).
Cahoon v. Cahoon, 641 P.2d 140, 144 (Utah 1982).

26.39; 26.40; 26.42; 26.43

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:

(3) [name of other party] knew or should have expected that this promise would lead [name of party] to act or not act;

Nunley v. Westates Casing Services, Inc., 989 P. 2d 1077 (Utah 1999)
Restatement (Second) of Contracts sect. 90(1981).

This instruction uses the term "important facts" rather than "material facts." The Committee made this change because jurors are more likely to understand the former term, and because Utah case law defines materiality in terms of importance. See, e.g., Yazd v. Woodside Homes Corp., 143 P.3d 283 ¶ 34 (Utah 2006) ("To be material, the information must be 'important.'").

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.

Restatement (Second) of Contracts sect. 235(1981).

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.

Eggett v. Wasatch Energy Corp., 2004 UT 28, para. 22, 94 P.3d 193, 199.
Polyglycoat Corp. v. Holcomb, 591 P.2d 449, 451 (Utah 1979).
Black's Law Dictionary (8th ed. 2004) (defining breach of contract).

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.

Restatement (Second) of Contracts sect. 236(1981).

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.

(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.

Cobabe v. Stanger, 844 P.2d 298, 303 (Utah 1992).
Kasco Services Corp. v. Benson, 831 P.2d 86, 89 (Utah 1992).
Hurwitz v. David K. Richards & Co., 436 P. 2d 794 (Utah 1968).
Scott v. Majors, 980 P. 2d 214, 218 (Utah Ct. App. 1999).
OLP, LLC v. Burningham, 2008 UT App 173, para.para. 43-44, 185 P.3d 1138, 1149.
Amoco Oil Co. v. Premium Oil Co., 313 F.Supp. 2d 1233, 1238 (D. Ut. 2004).
Lantec v. Novell, 306 F.3d 1003, 1014 (10th Cir. 2002).
Restatement (Second) of Contracts sect.sect.250, 253(1981).
Restatement (Second) of Contracts sect. 319(1981).

26.35; 26.36; 26.37; 26.38

The doctrine of anticipatory breach is not applicable to unilateral contracts. Greghuhn v. Mutual of Omaha Ins. Co., 461 P.2d 285 (Utah 1969).

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.

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.

Young Living Essential Oils, LC, v. Marin, 2011 UT 64
Mark Technologies Corp. v. Utah Resources International, Inc., 2006 UT App 418, para. 7, 147 P.3d 509, 512.
St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 199 (Utah 1991).
Oakwood Village, LLC v. Albertsons, Inc., 2004 UT 101, para. 45, 104 P.3d 1226, 1240.

The duty of good faith and fair dealing as it applies to insurance contracts is addressed in MUJI 2d, 2400 series.

The committee notes that there has been no judicial definition of "justified expectations."

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.

Cannon v. Stevens School of Business, Inc., 560 P.2d 1383 (Utah 1977).
Stratton v. West States Constr., 440 P.2d 117 (Utah 1968).
Restatement (Second) of Contracts sect. 281(1981).

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,.

(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.

First American Commerce Co. v. Washington Mut. Sav. Bank., 743 P.2d 1193, 1195 (Utah 1987).
Horman v. Gordon, 740 P. 2d 1346, 1352 (Utah Ct. App. 1987).
Kennedy v. Griffith, 95 P. 2d 752 (Utah 1939).

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:

(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.

Andreini v. Hultgren, 860 P.2d 916 (Utah 1993).
Brinton v. IHC Hospitals, Inc., 973 P.2d 956 (Utah 1998).
Restatement (Second) of Contracts sect.sect. 174-176(1981).

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;

(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

Andreini v. Hultgren, 860 P.2d 916 (Utah 1993).
Brinton v. IHC Hospitals, Inc., 973 P.2d 956 (Utah 1998).
Restatement (Second) of Contracts sect.sect. 174-176(1981).

Counsel are advised to consult the case law and Restatement (Second) of Contracts §§174-176 and to tailor this instruction to the specific facts and circumstances of the case.

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];

(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;

(6) [Name of defendant] would not have entered into the contract if [he] had known that the representation was not true.

Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, para. 16, 70 P.3d 35, 40.

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.

[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.

Holmgren v. Utah-Idaho Sugar Co., 582 P.2d 856, 861 (Utah 1978).
Commercial Union Associates v. Clayton, 863 P.2d 29, 38 (Utah Ct. App. 1993).

CV2126 Frustration of purpose.

[Name of defendant] claims that [his] performance under the contract is excused because of the following circumstances:

To determine if defendant is excused from performance under the contract, you must decide:

(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.

Castagno v. Church, 552 P.2d 1282 (Utah 1976).
Diston v. EnviroPak Medical Products, Inc., 893 P.2d 1071 (Utah Ct. App. 1995).

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.

Commercial Real Estate v. Comcast, 2012 UT 49.
The Cantamar, L.L.C. v. Champagne, 2006 UT App 321, para.para. 31-36, 142 P.3d 140, 151-52.
Ryan's v. Dan's Food Stores, Inc., 972 P.2d 395, 402 (Utah 1998).
Sosa v. Paulos, 924 P.2d 357 (Utah 1996).
Equitable Life & Cas. Ins. Co. v. Ross, 849 P.2d 1187, 1190 (Utah Ct. App. 1993).
Klas v. Van Wagoner, 829 P.2d 135 (Utah Ct. App. 1992).
Resource Management Co. v. Weston Ranch & Livestock Company, Inc., 706 P.2d 1028 (Utah 1985).

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;

(3) whether the agreement was printed on a duplicate or boilerplate form drafted solely by the party in the strongest bargaining position;

(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.]

The Cantamar, L.L.C. v. Champagne, 2006 UT App 321, para.para. 31-36, 142 P.3d 140, 151-52.
Ryan's v. Dan's Food Stores, Inc., 972 P.2d 395, 402 (Utah 1998).
Sosa v. Paulos, 924 P.2d 357 (Utah 1996).
Equitable Life & Cas. Ins. Co. v. Ross, 849 P.2d 1187, 1190 (Utah Ct. App. 1993).
Klas v. Van Wagoner, 829 P.2d 135 (Utah Ct. App. 1992).
Resource Management Co. v. Weston Ranch & Livestock Company, Inc., 706 P.2d 1028 (Utah 1985).

The court should instruct on the circumstances showing procedural unconscionability that are supported by the evidence. Case law suggests that "While a determination of substantive unconscionability may by itself lead to our concluding the contract was unconscionable, procedural unconscionability alone 'rarely render[s] a contract unconscionable.'" Ryan's v. Dan's Food Stores, Inc., 972 P. 2d 395, 402 (Utah 1998); see also, Resource Management Co. v. Weston Ranch & Livestock Company, Inc., 706 P.2d 1028, 1043 (Utah 1985). Accordingly, the parties may wish to include separate interrogatories on the verdict form.

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.

England v. Horbach, 944 P.2d 340 (Utah 1997).
Despain v. Despain, 855 P.2d 254 (Utah Ct. App. 1993).
Robert Langston Ltd. v. McQuarrie, 741 P.2d 554 (Utah Ct. App. 1987).
Restatement (Second) of Contracts sect.sect. 151, 152 (1979).

Mutual mistake of fact makes a contract voidable, and is a basis for equitable rescission. See Robert Langston Ltd. v. McQuarrie, 741 P.2d 554, 557 (Utah Ct. App. 1987). To reform a contract due to a mutual mistake in the integration, the party claiming mistake must prove "that the minds of both parties had been in agreement on a term which they mutually failed to incorporate into the writing." R.L.Warner v. Sirstens, 838 P. 2d 666, 669 (Utah Ct. App. 1992)(quoting Ingram v. Forrer, 563 P.2d 181, 183 (Utah 1977).

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.

Guardian State Bank v. Stangl, 778 P.2d 1, 4-5 (Utah 1989).
Equitable Life & Casualty Insurance Co., 849 P.2d 1187 (Utah Ct. App. 1993).
Klas v. Van Wagoner, 829 P.2d 135 (Utah Ct. App. 1992).

When giving this instruction the court should also read Instruction CV2127, Substantive Unconscionability and/or Instruction CV2128, Procedural Unconscionability, as appropriate.

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.

Wasatch Bank v. Surety Ins. Co., 703 P.2d 298 (Utah 1985).
Tracy Collins Bank & Trust v. Dickamore, 652 P.2d 1314 (Utah 1982).
Rio Algom Corp. v. Jimco Ltd., 618 P.2d 497 (Utah 1980).

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].

Winegar v. Froerer Corp., 813 P.2d 104, 107 (Utah 1991).
First American Commerce Co. v. Washington Mut. Sav. Bank, 743 P.2d 1193, 1194 (Utah 1987).
Restatement (Second) of Contracts sect.sect. 317, 324, 336 (1981).

This instruction addresses the assignment of contract rights, only. It does not address the delegation of duties or the assumption of the assignor's liabilities, the latter requiring proof by clear and convincing evidence. Winegar v. Froerer Corp., 813 P.2d 104 (Utah 1991).

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.

R.T. Nielson Co. v. Merrill Cook, 2002 UT 11, para. 13 n.4, 40 P.3d 1119, 1124.
Richard Barton Enterprises, Inc. v. Tsern, 928 P.2d 368, 373 (Utah 1996).
Copper State Leasing Co. v. Blacker Appliance & Furniture Co., 770 P.2d 88, 90 (Utah 1988).
Restatement (Second) of Contracts sect. 149 (1981).

Counsel and the court should consider the statute of frauds according to the particular circumstances of the case. "[I]f an original agreement is within the statute of frauds, a subsequent agreement which modifies the original agreement must also satisfy the statute of frauds to be enforceable." In re Olympus Construction, LC, 2007 UT App 361, ¶ 11, 173 P.3d 192, cert. granted by Matthews v. Olympus Co., 186 P.3d 957 (Utah Feb. 14, 2008).

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:

If you find that the parties abandoned their contract, then the parties have no further obligation to do what they promised to do.

Parduhn v. Bennett, 2002 UT 93, para. 11, 61 P.3d 982, 985.
Timpanogos Highlands, Inc. v. Harper, 544 P.2d 481, 484 (Utah 1975).
Restatement (Second) of Contracts sect. 283 (1981).

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.

Black v. Allstate Ins. Co., 2004 UT 66, para.28, 100 P.3d 1163, 1170.
Ford v. Am. Express Fin. Advisors, Inc., 2004 UT 70, para. 39, 98 P.3d 15, 26.
Mahmood v. Ross (In re Estate of Ross), 1999 UT 104, para. 19, 990 P.2d 933, 937.
Thurston v. Workers Comp. Fund of Utah, 2003 UT App 438, para.para. 21-22, 83 P.3d 391, 397.
Restatement (Second) of Contracts sect. 347 (1981).

This instruction is intended to be read in conjunction with Instruction CV2136, Consequential damages where appropriate.

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

(2) as a result of special circumstances, beyond the ordinary course of events, that [name of defendant] had reason to know.

McCleve Properties v. Hult Family, 2013 UT App 185 (direct and consequential damages distinguished).
Mahan v. UNUM Life Ins. Co. of Am., 2005 UT 37, para. 17, 116 P.3d 342, 346.
Black v. Allstate Ins. Co., 2004 UT 66, para. 28, 100 P.3d 1163, 1170.
Berube v. Fashion Centre, 771 P.2d 1033, 1050 (Utah 1989).
Gardiner v. York, 2006 UT App 496, para. 14, 153 P.3d 791, 795.
Restatement (Second) of Contracts sect. 351 (1981).

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.

Ranch Homes v. Greater Park City Corp., 592 P.2d 620, 624 (Utah 1979).
Skanchy v. Calcados Ortope SA, 952 P.2d 1071, 1078 (Utah 1998).
Restatement (Second) of Contracts sect. 349 (1981).

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.

Restatement (Second) of Contracts sect. 235 (1981).
Smith v. Grand Canyon Expeditions Co., 2003 UT 57, para. 27, 84 P.3d 1154, 1161.

This instruction should be used only in the absence of any defenses.

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].

Commercial Real Estate v. Comcast, 2012 UT 49.
Alexander v. Brown, 646 P.2d 692 (Utah 1982).
Mahmood v. Ross (In re Estate of Ross), 1999 UT 104, para. 31, 990 P.2d 933, 940.
Covey v. Covey, 2003 UT App 380, para. 30, 80 P.3d 553, 561.
Restatement (Second) of Contracts sect. 350 (1981).

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.

Sunridge Development v. RB&G Engineering, 2013 UT App 146, para.para. 13-14 (loss of profits).
Traco Steel Erectors, Inc. v. Comtrol, Inc., 2007 UT App 407, para. 58, 175 P.3d 572, 582.
Sawyers v. FMA Leasing Co., 722 P.2d 773, 774 (Utah 1986).
Winsness v. M.J. Conoco Distributors, Inc., 593 P.2d 1303, 1305 (Utah 1979).
Graham v. Street, 2 Utah 2d 144, 149, 270 P.2d 456, 459 (Utah 1954).
Schwartz v. Adair, 2007 UT App 75 (unpublished opinion).
Restatement (Second) of Contracts sect. 352 (1981).

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.

Bair v. Axiom Design, L.L.C., 2001 UT 20, para. 18. 20 P.3d 388, 392-93 (2001).
Turtle Management v. Haggis Management, 645 P.2d 667, 670 (Utah 1982).
Snyderville Transp. Co. v. Christiansen, 609 P.2d 939, 941-942 (Utah 1980).
Restatement (Second) of Contracts sect. 346 (1981).

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:

(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

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.

Utah Code Sections 11-39-101(10), 11-39-103 and 11-39-107.
Cal Wadsworth Const. v. City of St. George, 898 P.2d 1372, 1375 (Utah 1995).
Rapp v. Salt Lake City, 527 P.2d 651, 654 (Utah 1974).
Thatcher Chem. Co. v. Salt Lake City Corp., 445 P.2d 769, 771 (Utah 1968).
Schulte v. Salt Lake City, 10 P.2d 625, 628 (Utah 1932).

There are statutory exceptions to the general rule expressed in this instruction. Utah Code Section 11-39-104.

CV2203 "Responsive bid" defined.

A bid is "responsive" if it provides all information and documentation required by the invitation to bid.

Utah Code Sections 63G-6-103(25) and 63G-6-401(7)(a).
Cal. Wadsworth Const. v. City of St. George, 898 P.2d 1372 (Utah 1995).
Taylor Bus Service, Inc. v. San Diego Bd. of Education, 195 Cal.App.3d 1331 (Cal. Ct. App. 1987).
Konica Business Machines U.S.A., Inc. v. Regents of Univ. of California, 206 Cal.App.3d 449 (Cal. Ct. App. 1988).

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.

Utah Code Sections 63G-6-103(24) and 63G-6-401(7).
Cal. Wadsworth Const. v. City of St. George, 898 P.2d 1372 (Utah 1995).
Rapp v. Salt Lake City, 527 P.2d 651 (Utah 1974).
Taylor Bus Service, Inc. v. San Diego Bd. of Education, 195 Cal.App.3d 1331 (Cal. Ct. App. 1987).
City of Inglewood-L.A. County Civic Ctr. Auth. v. Superior Court, 500 P.2d 601 (Cal. 1972).

"Good faith" is used in the statutory definition of "responsible bid", but is itself not a defined term.

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;

(3) [name of contractor] communicated the mistake to [name of owner] before the contract was awarded.

Union Tank Car Co. v. Wheat Bros., 387 P.2d 1000 (Utah 1964).
Sulzer v. Bingham Pumps, Inc. v. Lockheed Missiles & Space Co., 947 F.2d 1362 (9th Cir. 1991).
First Baptist Church v. Barber Contracting Co., 377 S.E.2d 717 (Ga. Ct. App. 1989).
M.J. McGough Co. v. Jane Lamb Memorial Hosp., 302 F.Supp. 482 (S.D.Iowa 1969).
ABA Model Instruction 3.03.
Restatement (Second) of Contracts sect. 153 (illustration 1).
Corbin on Contracts sect.609.

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.

Bruner & O'Connor on Construction Law sect. 3:25 (2002).
Guarantee State Bank v. Farm Service Agency, 68 Fed.Appx 134, 137 (10th Cir. 2003).
J.F. Shea Co., Inc. v. U.S., 4 Cl. Ct. 46, 53 (1983).
Welch v. State of California, 139 Cal.App.3d 549, 188 Cal.Rptr. 726 (1983).

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:

(4) the information caused [name of contractor] to perform extra work, which added to [name of contractor]'s [time/costs].

United States v. Spearin, 248 U.S. 132, 39 S. Ct. 59, 63 L.Ed. 166 (1918).
Jack B. Parson Const. Co. v. State, 725 P2d 614 (Utah 1986).
Thorn Const. Co. v. Utah Dept. of Transp., 598 P.2d 365, 368 (Utah 1979).
Hensel Phelps Const. Co., 413 F.2d 704 (10th Cir. 1969).
Wunderlich Contracting Co. v. U.S., 240 F.2d 201, 205 (10th Cir. 1957).
Railroad Waterproofing Corp. v. U.S., 137 F.Supp. 713, 715 (Ct. Cl. 1956).

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:

(3) [name of owner] knew or should have expected that this promise would lead [name of contractor] to act or not act;

Youngsblood v. Auto-Owners Ins. Co., 2007 UT 28.
Tolboe Const. Co. v. Staker Paving & Const. Co., 682 P.2d 843 (Utah 1984).
Union Tank Car Co. v. Wheat Bros., 387 P.2d 1000 (Utah 1964).
Hess v. Johnston, 2007 UT App. 213.
See Instruction CV2114, Promissory estoppel.

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.

United States v. Spearin, 248 U.S. 132, 39 S. Ct. 59, 63 L.Ed. 166 (1918).
SME Industries, Inc. v Thompson, Ventulett, Stainback and Associates, Inc., 2001 UT 54, 28 P.3d 669 (Utah 2001).
R.C. Tolman Constr. Co. v. Myton Water Ass'n, 563 P.2d 780 (Utah 1977).
Jack B. Parsons Constr. Co. v. State, 725 P.2d 614 (Utah 1986).
Thorn Construction Co. v. Utah Dep't of Transportation, 598 P.2d 365 (Utah 1979).

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:

(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.

Jack B. Parson Constr. Co. v. State, 725 P.2d 614 (Utah 1986).
Frontier Foundations, Inc., 818 P.2d 1040, 1041 (Utah App. 1991)Thorn Constr. Co. v. Dept. of Transp., 598 P.2d 365 (Utah 1979).

Prevailing case law holds that general disclaimers do not operate to require a contractor to investigate the truthfulness of the affirmative representations; instead, specific disclaimers are required.

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;

Lester N. Johnson v. City of Spokane, 588 P.2d 1214 (WA App. 1985).
Steven G.M. Stein, Construction Law, 5.03[2][c][ii].

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].

Procon Corp. v. Utah Dep't of Trans., 876 P.2d 890, 894 (Utah Ct. App. 1994).
Bruner & O'Connor on Construction Law, sect. 15:89 (2002).
CJS Contracts sect. 391.

The judge should instruct the jury only on those elements, (2)(a) or (2)(b), for which there is evidence.

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:

(2) [his] failure to perform the work was exclusively because [name of owner] failed to [describe denial of access]; and

Higgins v. City of Filmore, 639 P.2d 192 (Utah 1981).
Burgess Constr. Co. v. M. Morrin & Son Co., Inc., 526 F.2d 108 (10th Cir. 1975).
Steven G.M. Stein, Construction Law, 5.03[2][c][ii].
Bruner & O'Connor on Construction Law, sect. 15:51.

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:

(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];

Highland Const. Co. v. Union Pacific R. Co., 683 P.2d 1042 (Utah 1984).
Thorn Const. Co., Inc. v. Utah Dept. of Transp., 598 P.2d 365 (Utah 1979).
Richards Contracting Co. v. Fullmer Bros., 417 P.2d 755 (Utah 1966).
Campbell Bldg. Co. v. State Road Commission, 70 P.2d 857 (Utah 1937).
Hoth v. White, 799 P.2d 213 (Utah App. 1990).
Brixen & Christopher, Architects v. Elton, 777 P.2d 1039 (Utah App. 1989).

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.

Allen-Howe Specialties Corp. v. U. S. Const., Inc., 611 P.2d 705 (Utah 1980).
Campbell Bldg. Co. v. State Road Commission, 70 P.2d 857 (Utah 1937).
Wilson v. Salt Lake City, 52 Utah 506, 174 P. 847 (Utah 1918).
Salt Lake City v. Smith, 104 F. 457 (C.A.8 Dist. Utah 1900).

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].

Darrell J. Didericksen & Sons, Inc. v. Magna Water and Sewer Imp. Dist., 613 P.2d 1116 (Utah 1980).
Campbell Bldg. Co. v. State Road Commission, 70 P.2d 857 (Utah 1937).
Uhrhahn Const. & Design, Inc. v. Hopkins, 179 P.3d 808 (Utah App. 2008).

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:

The intent to give up a right may be express or implied, and may be determined by considering all relevant circumstances.

United Park City Mines Co. v. Stichting Mayflower Mountain Fonds, 140 P.3d 1200 (Utah 2006).
Soter's Inc. v. Deseret Federal Sav. & Loan Ass'n, 857 P.2d 935 (Utah 1993).

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:

Jack B. Parson Const. Co. v. State, 725 P.2d 614 (Utah 1986).
Thorn Const. Co., Inc. v. Utah Dept. of Transp., 598 P.2d 365 (Utah 1979).
L. A. Young Sons Construction Co. v. County of Tooele, 575 P.2d 1034 (Utah 1978).
Frontier Foundations, Inc. v. Layton Const. Co., Inc., 818 P.2d 1040 (Utah App. 1991).

CV2219 Claim for extra work due to unusual site conditions unknown to the parties. (Type 2 differing site condition).

[Name of contractor] claims additional [time/compensation] for extra work caused by site conditions that were unknown to the parties. To succeed on this claim, [name of contractor] must prove that:

(1) there were important differences between the actual site conditions and those usually encountered; and

Youngdale & Sons Const. Co., Inc. v. U.S., 27 Fed. Cl. 516 (1993).
Servidone Const. Corp. v. U.S., 19 Cl. Ct. 346 (1990).
Bruner and O'Connor On Construction Law sect. 14:53 (2002).

CV2220 Cardinal changes.

[Name of contractor] claims that [he] should be paid more than the contract amount because of a cardinal change(s). A cardinal change is a change that substantially alters the type of work described by the original contract. To succeed on this claim, [name of contractor] must prove that:

(1) the change(s) were substantially different from the work described in the original contract;

Highland Const. Co. v. Union Pacific R. Co., 683 P. 2d 1042 (Utah 1984).
Allen-Howe Specialties Corp. v. U. S. Const., Inc., 611 P.2d 705 (Utah 1980).
Wilson v. Salt Lake City, 174 P. 847 (Utah 1918).
Wunderlich Contracting Co. v. U.S. ex re Reischel & Cottrell, 240 F.2d 201 (C.A.10 Dist. Utah 1957).
Salt Lake City v. Smith, 104 F. 457 (C.A.8 Dist. Utah 1900).
Bruner & O'Connor on Construction Law, sect. 4:13-16.

Because a cardinal change scenario involves abandonment of the contract, contractual remedies are generally inadequate; therefore, the proper remedy for recovery is equitable and would fall under the doctrine of unjust enrichment.

CV2221 Implied contract or unjust enrichment.

[Name of contractor] claims additional [time/compensation] for extra work even though the contract does not provide for it. To succeed on this claim, [name of contractor] must prove that:

(2) [name of contractor] expected additional [time/compensation] for the extra work;

(3) [name of owner] knew or should have known that [name of contractor] expected additional [time/compensation];

(4) [name of contractor] performed the extra work that benefited [name of owner]; and

(5) it would be unjust for [name of owner] to benefit from the extra work without providing [name of contractor] additional [time/compensation].

E&M Sales West, Inc., v. Bechtel Jacobs Company, LLC, 2009 UT App 299
Uhrhahn Const. & Design, Inc. v. Hopkins, 179 P.3d 808 (Utah App. 2008).
Gary Porter Const. v. Fox Const., Inc., 101 P3d 371 (Utah App. 2004).
ProMax Development Corp. v. Mattson, 943 P2d 247 (Utah App. 1997).
Davies v. Olson, 746 P2d 264 (Utah App. 1987).

CV2222 Contractor's claim for time. Delay not caused by the contractor.

[Name of contractor] claims [he] was entitled to more time to perform the work because of an excusable delay. To succeed on this claim, [name of contractor] must prove that the events causing the delay:

(2) were not reasonably foreseeable by [name of contractor] at the time the contract was made; and

Higgins v. City of Fillmore, 639 P.2d 192, 193 (Utah 1981).
Rapp v. Mountain States Telephone and Telegraph Company, 606 P.2d 1189 (Utah 1980).
Steenberg Construction Co. v. Prepakt Concrete Co., 381 F.2d 768 (10th Cir. 1967).
S. Stein, Construction Law sect. 6.09 (1999).
Bruner & O'Connor on Construction Law, sect. 15:42 (2002).
CJS Contracts sect. 391.
CJS Contracts sect. 580.

CV2223 Contractor's claim for damages for delay caused by owner.

[Name of contractor] claims [he] was entitled to additional time and money to perform the work. To succeed on this claim, [name of contractor] must prove that the events resulting in the delay:

(4) required [name of contractor] to incur additional expenses and time to perform the work.

Higgins v. City of Fillmore, 639 P.2d 192, 193 (Utah 1981).
Rapp v. Mountain States Telephone and Telegraph Company, 606 P.2d 1189 (Utah 1980).
Allen-Howe Specialties Corporation v. U.S. Construction, Inc., 611 P.2d 705, 709 (Utah 1980).
Burgess Constr. Co. v. M. Morrin & Son Co., Inc., 526 F.2d 108 (10th Cir. 1975).
Steenberg Construction Co. v. Prepakt Concrete Co., 381 F.2d 768 (10th Cir. 1967).
Corporation of President of Church of Jesus Christ of Latter-Day Saints v. Hartford Accident & Indemnity Co., 95 P.2d 736, 747 (Utah 1939).
S. Stein, Construction Law sect. 6.11 (1999).
Bruner & O'Connor on Construction Law, sect. 15:50 (2002).
CJS Contracts sect. 580

CV2224 Owner's claim for damages for delay caused by contractor.

[Name of owner] claims [he] is entitled to damages caused by [name of contractor]'s delay. To succeed on this claim, [name of owner] must prove that the events resulting in the delay:

Rapp v. Mountain States Telephone and Telegraph Company, 606 P.2d 1189 (Utah 1980).
Corporation of President of Church of Jesus Christ of Latter-Day Saints v. Hartford Accident & Indemnity Co., 95 P.2d 736, 747 (Utah 1939).
Campbell Building Co. v. State Road Commission, 70 P.2nd 857 (Utah1937).
Bruner & O'Connor on Construction Law, sect. 15:30 (2002).

The owner's damages for contractor's delay should be applied if the owner is not making a claim for liquidated damages. See Instruction CV2237, Liquidated damages.

If a liquidated damages clause is not at issue, the owner is required to prove the same items that a contractor is required to prove to be entitled to a claim for delay damages. There are no reported Utah cases dealing with the owner's entitlement to delay damages caused by the contractor where a liquidation clause is not at issue. The cases cited below deal with cases where the contractor's claims for delay damages have been denied, and the owner has been absolved from paying any damages.

CV2225 Concurrent delay.

If you find that both parties contributed to the delay, then neither party is entitled to recover damages as a result of the delay.

Higgins v. City of Fillmore, 639 P.2d 192, 194 n.2 (Utah 1981).
S. Stein, Construction Law sect. 6.10[3] (1999).
Bruner & O'Connor on Construction Law, sect. 15:67 (2002).

CV2226 Damages for delay.

Name of contractor] claims damages for delays. The contract provides that [name of contractor] is entitled to extra time to complete the work but is not entitled to recover damages caused by the delay. However, there are circumstances in which [name of contractor] may recover damages for delay regardless of the contract.

[(1) that [name of owner/owner's agent] caused the delay by direct interference, active interference, or willful interference with [name of contractor]'s work.]

[(2) the delay was not reasonably foreseeable at the time the parties entered into the contract and the delay was excessive and unreasonable.]

Allen-Howe Specialties Corp. v. U.S. Const., Inc., 611 P.2d 705 (Utah 1980).
W. Eng'rs, Inc. v. State By and Through Rd. Comm'n, 437 P.2d 216 (Utah 1968).
Acret, James, Construction Litigation Handbook. sect. 7.8.

The judge should instruct the jury only on those elements, (1) or (2), for which there is evidence.

CV2227 Right to suspend work due to non-payment.

[Name of contractor] claims [he] suspended the work because of non-payment. To succeed on this claim, [name of contractor] must prove that:

(2) [name of owner]'s failure to make the payment(s) was an important breach of the contract; and

Darrell J. Didericksen & Sons v. Magna Water & Sewer Improv. Dist., 613 P.2d 1116, 1119 (Utah 1980).

Instruction can be used as a cause of action or an affirmative defense.

CV2228 Right to suspend work due to interference.

[Name of contractor] claims that [he] suspended the work because of interference by [name of owner]. To succeed on this claim, [name of contractor] must prove that:

(1) [name of owner] or [events within [name of owner's] control] unreasonably interfered with [name of contractor]'s performance of [his] work; and

Bruner & O'Connor Construction Law sect.sect. 15:83-84.

Instruction can be used as a cause of action or an affirmative defense.

CV2229 Contractor's liability for breach of warranty of workmanship and habitability.

[Name of owner] claims that the new residence [he] purchased from [name of builder/developer] is defective and [name of builder/developer] has breached the implied warranty of workmanship and habitability. To succeed on this claim [name of owner] must prove that:

(2) the residence contained a defect that first became noticeable after [name of owner] purchased the residence;

Davencourt v. Davencourt, 2009 UT 65.

This instruction is appropriate only if the owner/buyer has shown privity of contract between the owner/buyer and the developer/builder who sold the new residence. See Davencourt at ¶57.

CV2230 Contractor's liability for defective work.

[Name of owner] claims that [he] was damaged by [name of contractor]'s [defective/incomplete] work. To succeed on this claim, [name of owner] must prove that:

(1) [Name of contractor] did not comply with the [contract requirements] [plans and specifications] [requirements of the building code] [industry standards]; and

(2) [name of contractor]'s [defective/incomplete] work was a cause of [name of owner]'s damages.

Benson v. Ames, 604 P.2d 927 (Utah 1979).
F.C. Stangl, III v. Todd, 554 P.2d 1316 (Utah 1976).
Rex T. Fuhriman, Inc. v. Jarrell, 445 P.2d 136 (Utah 1968).
Trujillo v. Utah Dept. of Transp., 986 P.2d 752 (Utah Ct. App. 1999).

Instruction CV2230 describes the elements of the claim for defective or incomplete work. Instruction CV2231 describes the usual measure of damages. Instruction CV2232 describes the alternative measure of damages, if contractor proves that the usual measure of damages would result in unreasonable economic waste.

CV2231 Damages for contractor's defective work.

If you find that [name of owner] was damaged by [name of contractor]'s [defective/incomplete] work, [name of owner] is entitled to recover as damages the amount of money that will reasonably compensate [name of owner] for the harm resulting from the defective improvements. The measure of damages will be either (1) the cost of repair, or (2) a loss of 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 contract. 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 absent defendant's breach and the fair market value of the improvements as received. 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 [name of contractor]'s [defective/incomplete] work, 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.

Western Land Equities, Inc. v. City of Logan, 617 P.2d 388, 395 (Utah 1980) (holding that economic waste results from expenditures of construction costs without benefit to public or private property owners).
Winsness v. M.J. Conoco Distributors, Inc., 593 P.2d 1303 (Utah 1979).
F.C. Stangl, III v. Todd, 554 P.2d 1316 (Utah 1976).
Rex T. Fuhriman, Inc. v. Jarrell, 445 P.2d 136 (Utah 1968).

It is appropriate to give Instruction CV2010, "Fair market value" defined, with this instruction.

In Stangl, the Supreme Court puts the burden of showing economic waste on the breaching party: "The contract breaker should pay the cost of construction and completion in accordance with his contract, unless he proves, affirmatively and convincingly, such construction and completion would involve unreasonable economic waste." F.C. Stangl, III v. Todd, 554 P.2d 1316,1320, citing 5 Corbin on Contracts, §1089 (Utah 1976). Jurisdictions differ on who has the burden of proof. See Ludington, 41 A.L.R.4th 131, ¶(9).

Although the Stangl case uses the phrase "proves, affirmatively and convincingly," requiring clear and convincing evidence of unreasonable economic waste seems not to be supported by the Restatement, but the court may need to decide the matter.

What is the standard for determining unreasonable economic waste and how unreasonable the economic waste has to be before diminution in price becomes the correct measure of damages is not revealed in Stangl or the Restatement. See Ludington, 41 A.L.R.4th 131, ¶(2)(f).

CV2233 Termination for cause.

[Name of owner] claims [he] had the right to terminate the contract because [name of contractor] breached the contract. To succeed on this claim, [name of owner] must prove that [he]:

(1) gave timely and adequate notice of the claimed breach to [name of contractor];

(2) gave [name of contractor] reasonable time to correct the breach [as required by the contract];

(3) had not breached the contract in any important way at the time of termination; and

S. Stein, Construction Law sect. 4.13 at 4-75, 4-97-98.
ABA Model Jury Instructions: Construction Litigation sect. 6.18.

There is no Utah law on this topic. This instruction reflects the majority rule in the country.

CV2234 Termination for convenience.

[Name of owner] claims [he] had the right to terminate the contract for [his] convenience. I have found that the contract gives [name of owner] the right to terminate the contract for [his] convenience. To succeed on this claim, [name of owner] must further prove that:

(1) [name of owner] did not breach the contract in any important way before [he] gave [name of contractor] notice of the termination for convenience; and

(2) [name of owner] exercised [his] right to terminate the contract for convenience in good faith.

Encon Utah, LLC v. Flour Ames Kraemer, LLC, 210 P.3d 263 (Utah 2009)
Morrison Knudsen Corp. v. Fireman's Fund Insurance Co., 175 F.3d 1221 (10th Cir. 1999)
EDO Corp. v. Beech Aircraft Corp., 911 F.2d 1447, 1453 n. 6 (10th Cir. 1990)
Bruner & O'Connor Construction Law sect.sect. 18:45-47

If the owner is given the unilateral right to terminate the contract for its convenience and not for cause arising from the contractor's breach, there is a perceived concern among the courts that the contract may create an unenforceable and illusory promise lacking consideration due to the absence of mutuality. To address this concern courts throughout the country have determined that the owner's right to terminate the contract for convenience should be done in good faith. The general view is that the owner has an implied duty of good faith and fair dealing when exercising its rights under a termination for convenience clause. See Bruner & O'Connor Construction Law §§ 18:47

CV2235 Damages for termination for convenience.

If you find that [name of owner] terminated the contract for convenience in good faith, [name of contractor] is entitled to the damages defined in the contract. You should award [name of contractor] the following damages:

Encon Utah, LLC v. Flour Ames Kraemer, LLC, 210 P.3d 263 (Utah 2009)
Bruner & O'Connor Construction Law sect.5:272
12 ALR Fed. 2d 551

If the contract expressly excludes any item of damages, do not include it when instructing the jury. If the contract provides for additional damages, include these additional categories when instructing the jury.

CV2236 Damages for owner's breach that prevents contractor's performance.

If you find that [name of owner] breached the contract and that the breach prevented [name of contractor] from completing the project, then you should award as damages the amount that [name of contractor] would have received for finishing the project, minus the reasonable expense [he] would have spent to complete the project.

Flynn v. Schocker Constr, Co., 459 P.2d 433 (Utah 1969).
Flynn v. W.P. Harlin Constr. Co., 509 P.2d 356 (Utah 1973).

CV2237 Liquidated damages.

[Name of owner] seeks to recover the damages stated in the contract for failing to complete the project on time. You must award the damages stated in the contract if you find that, at the time the parties entered into the contract:

(1) the agreed-upon damages was a reasonable forecast of the damages [name of owner] would suffer as a result of a delay, and

(2) the actual damages that would arise from the delay were difficult to estimate accurately.

Reliance Ins. Co. v. Utah Dep't of Transportation, 858 P.2d 1363, 1366-67 (Utah 1993)
Woodhaven Apartments v. Washington, 942 P.2d 918, 921 (Utah 1997)
Allen v. Kingdon, 723 P. 2d 394, 397 (Utah 1986)
Soffe v. Ridd, 659 P.2d 1082, 1084 (Utah 1983)
Restatement of Contracts sect.339 (1932)

CV2238 Accord and satisfaction.

[Name of owner] claims that [he] did not have to perform [describe old contract obligations] because [he] and [name of contractor] had a disagreement about the contract that they resolved by entering into a new contract that replaced the first contract. [Name of owner] claims that the new contract required [describe the new obligation(s)] and that [he] has fully performed or is performing these obligations.

(1) [name of contractor] and [name of owner] had a dispute about the original contract that they resolved by entering into a new contract; and

(2) [name of owner] fully performed or is performing [his] obligations under the new contract.

If you decide that [name of owner] has proved both of these things, then [name of owner] is released from performing [describe obligations] under the original contract.

Cannon v. Stevens School of Business, Inc., 560 P.2d 1383 (Utah 1977).
Stratton v. West States Constr., 440 P.2d 117 (Utah 1968).
Restatement (Second) of Contracts sect. 281(1981).
See Instruction CV2120, Accord and satisfaction.

CV2239 Impossibility.

[Name of contractor] claims that [he] is excused from performing the contract because [insert description of circumstances] made the main purpose of the contract impossible to perform. To succeed on this claim, [name of contractor] must prove that:

(2) [name of contractor] did not create the events that made the main purpose impossible, and they were beyond [his] control; and

(3) the events that made the main purpose impossible were not reasonably foreseeable by either party at the time the contract was made.

Holmgren v. Utah-Idaho Sugar Co., 582 P.2d 856, 861 (Utah 1978).
Quagliana v. Exquisite Home Builders, Inc., 538 P.2d 301, 305-06 (Utah 1975).
Western Properties v. Southern Utah Aviation, Inc., 776 P.2d 656, 658-59 (Utah Ct. App. 1989).
See Instruction CV2125, Impossibility/Impracticability.

CV2240 Frustration of purpose.

[Name of owner] claims that [his] performance under the contract is excused because of the following circumstances:

To determine if [name of owner] is excused from performance under the contract, you must decide:

(2) whether the circumstances just described are a supervening event, unforeseen at the time the contract was entered into;

(4) whether the new circumstances have made the purpose of the contract useless.

Currently there is no Utah law on frustration of purpose in a construction context.
See Instruction CV2126, Frustration of purpose.

CV2241 Mutual mistake.

[Name of contractor] claims that the contract is not enforceable because both parties were mistaken about [describe mutually mistaken important fact].

To succeed on this claim, [name of name of contractor] must prove the following by clear and convincing evidence:

(1) that at the time the contract was entered into both [name of owner] and [name of contractor] were mistaken about these facts, and

(2) that these facts were a basic assumption or an important fact upon which they based their bargain.

Deep Creek Ranch, LLC v. Utah State Armory Bd., 2008 UT 3, para.para.17-18, 178 P.3d 886.
Arnell v. Salt Lake County Bd. of Adjustment, 2005 UT App 165, para.para. 41-42.
Mostrong v. Jackson, 866 P.2d 573, 579-80 (Utah Ct. App. 1993).
Mooney v. BR & Associates, 746 P.2d 1174, 1178 (Utah Ct. App. 1987).
See Instruction CV2129, Mutual mistake.

CV2242 Unilateral mistake.

[Name of contractor] claims the contract is not enforceable because [he] was mistaken about [insert description of unilateral mistake of fact].

To succeed on this claim, [name of contractor] must prove the following by clear and convincing evidence:

(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 owner] can be put back in the same position [he] was in before the contract, losing only the benefit of the bargain.

John Call Engineering, Inc. v. Manti City Corp., 743 P.2d 1205 (Utah 1987).
Mostrong v. Jackson, 866 P.2d 573 (Utah Ct. App. 1993).
Grahn v. Gregory, 800 P.2d 320 (Utah Ct. App. 1990).
See Instruction CV2130, Unilateral mistake.
See Instruction CV2127, Substantive unconscionability.

CV2243 Mitigation of damages.

[Name of contractor] had a duty to mitigate, that is, to minimize or avoid, the damages caused by [the breach of contract]. [Name of contractor] may not recover damages that [he] could have avoided without humiliation or unreasonable risk or burden. Likewise, [name of contractor] may not recover the damages for losses that were caused by or made worse by [his] own action or inaction.

[Name of contractor] has a right to recover damages if [he] has made a reasonable but unsuccessful effort to avoid loss.

[Name of contractor] had no obligation to mitigate [his] damages by taking action which [name of owner] refused to take. If [name of owner] 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 contractor], [name of owner] cannot succeed in a claim that [name of contractor] failed to perform [the act].

Mahmood v. Ross (In re Estate of Ross), 1999 UT 104, para. 31.
Angelos v. First Interstate Bank of Utah, 671 P.2d 772 (Utah 1983).
Restatement (Second) of Contracts sect. 350.
See Instruction CV2139, Mitigation and avoidance.

If dealing with a corporation or other business entity, it may be appropriate to omit "humiliation."

CV2601 Eminent Domain Committee Notes

These instructions are intended to apply when a condemning authority exercises the power of eminent domain pursuant to the Utah Eminent Domain Code, Utah Code Section 78B-6-501 et seq. The instructions are not intended to apply, without substantial modification, to inverse, regulatory or other takings claims under Article I, Section 22 of the Utah Constitution or the Fifth Amendment of the United State Constitution.

The Committee found that there was often no logical progression to the MUJI I instructions. The Committee has attempted to organize these instructions in the order that a jury likely would consider them.

Several MUJI I instructions have been combined with others or eliminated altogether. Of particular note, the Committee eliminated MUJI 16.3 (Comparable Sales) and 16.14 (Reconstruction Cost, Less Depreciation). The Committee considered these instructions to unfairly highlight certain factors in determining fair market value to the exclusion of other factors. The Committee considered that the matters addressed in these instructions should be addressed by the testimony of witnesses and the arguments of counsel.

CV2602 Condemnation proceedings.

[Name of condemnor] has the right to take private property for public use, but must pay just compensation to [name of property owner]. [Describe public improvement] is a public use. You will determine the just compensation to be awarded to [name of property owner].

Utah Const. Article. I, Section 22.
Utah Code Section 78B-6-511.
State v. Ward, 189 P.2d 113 (Utah 1948).

CV2603 Definition of just compensation.

Just compensation is the fair market value of the property taken, on [valuation date].

(2) severance damages, if any, to [name of property owner]'s remaining property caused by the taking.

You should determine these two amounts separately, on [valuation date], and add them together to determine just compensation.

Utah Code Section 78B-6-511.
City of Hildale v. Cooke, 2001 UT 56, 28 P.3d 697.
UDOT v. Jones, 694 P.2d 1031 (Utah 1984).
Utah State Rd. Comm'n v. Friberg, 687 P.2d 821 (Utah 1984).

Alternative 1 should be given when the owner's entire property is taken. Alternative 2 should be given when part of the owner's property is taken and severance damages are in issue. If Alternative 2 is used, the judge should instruct the jury on the definition of "severance damages." See Instruction CV2616, Severance damages.

CV2604 Burden of proof.

[Name of property owner] has the burden to prove the fair market value of the property taken [and the amount of severance damages, if any, to the remaining property].

[[Name of condemnor] has the burden to prove the fair market value of special benefits, if any, to the remaining property.]

Utah Code Section 78B-6-511(4).
City of Hildale v. Cooke, 2001 UT 56, 28 P.3d 697.
Utah State Rd. Comm'n v. Friberg, 687 P.2d 821 (Utah 1984).
Utah State Rd. Comm'n. v. Williams, 452 P.2d 548 (Utah 1969).
Utah State Rd. Comm'n. v. Taggart, 430 P.2d 167 (Utah 1967).
Utah State Rd. Comm'n. v. Hansen, 383 P.2d 917 (Utah 1963).

The bracketed part of the instruction relating to severance damages should be given only in partial taking cases in which severance damages are in issue. The bracketed part of the instruction relating to special benefits should be given only in partial taking cases in which special benefits are in issue. If the condemnor contends that a property owner had a duty to mitigate severance damages, an additional instruction as to that burden of proof may be given. See generally, Utah State Rd. Comm'n. v. Williams, 452 P.2d 548 (Utah 1969).

CV2605 Fair market value.

Fair market value of the property is the highest price that a prudent and willing buyer would pay to a prudent and willing seller in an open market assuming that:

Utah Code Section 78B-6-511.
City of Hildale v. Cooke, 2001 UT 56, 28 P.3d 697.
Redevp. Agency of SLC v. Mitsui Invest., Inc., 522 P.2d 1370 (Utah 1974).
Utah State Rd. Comm'n v. Wood, 452 P.2d 872 (Utah 1969).
State v. Noble, 305 P.2d 495 (Utah 1957).
Sigurd v. State, 142 P.2d 154 (Utah 1943).

CV2606 Fair market value of easement.

[Name of condemnor] has taken the right to use part of [name of property owner]'s property for a specific purpose. That right is called an "easement." After an easement has been taken, [name of property owner] can use the property within the easement for any purpose that does not unreasonably interfere with the easement.

You must determine the fair market value of the easement taken on [valuation date]. In determining fair market value, you must consider how [name of property owner] can use [his] property within the easement.

[You must also determine whether the easement causes severance damages to [name of property owner]'s remaining property, and the amount of those damages, if any.]

City of Hildale v. Cooke, 2001 UT 56, 28 P.3d 697.
Wykoff v. Barton, 646 P.2d 756 (Utah 1982).
Provo City Corp. v. Knudsen, 558 P.2d 1332 (Utah 1977).
North Union Canal Co. v. Newell, 550 P.2d 178 (Utah 1976).

This instruction should be modified, or an additional instruction given, if there is a dispute about the scope of the easement or the uses remaining to the property owner after the easement is taken, to explain the scope and respective uses under the easement. The bracketed part of the instruction relating to severance damages should be given only in partial taking cases in which severance damages are in issue.

This instruction addresses the taking of a permanent easement. This instruction should be modified, or an additional instruction given, if a temporary easement is in issue.

CV2607 Highest and best use.

You must determine fair market value based on the property's highest and best use. Highest and best use is not necessarily the actual use of the property on [valuation date]. The highest and best use includes any potential use that is reasonably probable and that results in the property's highest value. A potential use is reasonably probable if:

(2) the property is legally available for the potential use, or if there is a reasonable probability that any legal restriction or barrier will be removed or modified; and

(3) there is enough demand for the use in the marketplace to influence the fair market value of the property.

City of Hildale v. Cooke, 2001 UT 56, 28 P.3d 697.
Utah State Rd. Comm'n v. Jones, 467 P.2d 420 (Utah 1970).
Utah State Rd. Comm'n v. Jacobs, 397 P.2d 463 (Utah 1964).
State v. Tedesco, 291 P.2d 1028 (Utah 1956).

The Committee modified the former MUJI 16.17 to eliminate the enumeration of seven factors that the jury may consider. The Committee believes that those seven factors may or may not be relevant in any particular case, and that there may be other relevant factors. The jury ought to be free to consider any factor that a willing buyer and a willing seller would take into account in determining highest and best use.

CV2608 Reasonable probability of change in zoning or land use restriction.

In determining the property's highest and best use, you may consider potential changes in zoning [and/or land use] restrictions if you find that, on [valuation date]:

(2) a prudent and willing buyer and seller would consider the probability of a change in agreeing on a purchase price for the property.

You must disregard potential changes in zoning [and/or land use] restrictions that are remote or speculative.

City of Hildale v. Cooke, 2001 UT 56, 28 P.3d 697.
Utah State Rd. Comm'n. v. Jacobs, 397 P.2d 463 (Utah 1964).

CV2609 Verdict based on testimony of witnesses.

You must determine the fair market value of the property taken, [and any severance damages to the remaining property], based solely on the testimony of the witnesses who have given their opinion. You may consider other evidence only to help you understand and weigh the testimony of the witnesses.

If the witnesses disagreed with one another, you should weigh each opinion against the other[s], based upon the reasons given for each opinion, the facts and other things that each witness relied upon, and each witnesses' qualifications.

[[Name of property owner] has given [his] opinion of the fair market value of the property. In weighing this opinion, you may consider [name of property owner]'s self-interest, familiarity with the property, and experience and qualifications to testify about fair market value.]

Your verdict must be within the range of fair market values offered by the witnesses.

City of Hildale v. Cooke, 2001 UT 56, 28 P.3d 697.
UDOT v. Jones, 694 P.2d 1031 (Utah 1984).
Williams v. Oldroyd, 581 P.2d 561 (Utah 1978).
Utah State Rd. Comm'n v. Johnson, 550 P.2d 216 (Utah 1976).
Utah State Rd. Comm'n. v. Steele Ranch, 533 P.2d 888 (Utah 1975).
Utah State Rd. Comm'n. v. Hopkins, 506 P.2d 57 (Utah 1973).
Utah State Rd. Comm'n v. Silliman, 448 P.2d 347 (Utah 1968).
Utah State Rd. Comm'n. v. Taggart, 430 P.2d 167 (Utah 1967).
Weber Basin Water Conserv. Dist. v. Skeen, 328 P.2d 730 (Utah 1958).

The bracketed part of the first paragraph relating to severance damages should be given only in partial taking cases in which severance damages are in issue.

The last paragraph should be given if the Court determines there is a proper foundation for owner testimony about the value or highest and best use. See, e.g., UDOT v. Jones, 649 P.2d 1031 (Utah 1984); Utah State Road Comm'n v. Johnson, 550 P.2d 216 (Utah 1976).

CV2610 Viewing of property.

You may consider your viewing of the property only to help you evaluate the evidence you have seen and heard in the courtroom. Your viewing of the property is not itself evidence of fair market value, and you may use it only to help you gain a better understanding of the testimony.

Weber Basin Water Conservancy Dist. v. Moore, 272 P.2d 176 (Utah 1954).

CV2611 Project influence.

In determining the fair market value of the property, you must disregard any increase or decrease in value before [valuation date] caused by [describe public improvement] or by the likelihood that the property would be acquired for [describe public improvement].

Utah Code Section 57-12-13(3).
United States v. Reynolds, 397 U.S. 14 (1970).
Board of County Comm'rs of Tooele County v. Ferrebee, 844 P.2d 308 (Utah 1992).
Redevelopment Agency v. Grutter, 734 P.2d 434 (Utah 1986).

This instruction should be given when any increase or decrease in value before the taking is caused by the public improvement for which the property is being condemned, is in issue. The instruction should be modified, or an additional instruction given, when an increase or decrease in property value is outside the original "scope of the project." See generally, Redevelopment Agency v. Grutter, 734 P.2d 434 (Utah 1986), United States v. Reynolds, 397 U.S. 14 (1970).

CV2612 Value of undeveloped land.

In determining the fair market value of the property, you may consider whether the property is suitable for development or subdivision, but you must not value the property as if the property had been developed or subdivided.

Torsen v. Johnson, 745 P2d 1243 (Utah 1987).
State v. Tedesco, 291 P.2d 1028 (Utah 1956).

This instruction should be given when the property taken is undeveloped land, suitable for development, but no tangible steps have been taken for development. The propriety of the instruction, and the precise wording of the instruction, may vary when certain steps or actions have been taken to subdivide the property, but subdivision has not been completed. See generally, 4 Nichols on Eminent Domain § 12B.14.

CV2613 Value of improved property.

In determining the fair market value of the property, you must value the land and the improvements as a whole. You must not value the land and improvements separately and then add them together.

Utah State Rd. Comm'n v. Brown, 531 P.2d 1294 (Utah 1975).
Utah State Rd. Comm'n v. Papanikolas, 427 P.2d 749 (Utah 1967).

This instruction should be given when the condemned property is improved.

This instruction may be modified, or an additional instruction given, in a partial taking action, when the loss of improvements is claimed as severance damage.

CV2614 Business injury or loss of profits.

In determining the fair market value of the property, you must disregard any loss of income or profits to the [describe business conducted on the property] caused by the taking. The business is not part of the property, and any loss of business income or profit does not affect the fair market value of the property.

One or more of the witnesses has testified to the fair market value of the property using the [describe income approach to value, or capitalized income valuation method]. You may consider this testimony in determining the fair market value of the property. You may not, however, award [name of property owner] a separate amount for loss of income or profits to the [business conducted on the property] caused by the taking. The business is not part of the property, and any loss of business income or profit does not affect the fair market value of the property.

Utah State Rd. Comm'n. v. Ouzonnian, 491 P.2d 1093 (Utah 1971).
State v. Noble, 305 P.2d 495 (Utah 1957).
State v. Tedesco, 291 P.2d 1028 (Utah 1956).

The Committee believes that these alternative instructions should be given to avoid any confusion when an appraiser determines the fair market value of property by capitalizing income. Alternative 1 should be given when no witness capitalizes income on the property to determine fair market value; Alternative 2 should be given when one or more witnesses capitalize income.

CV2615 Interest and moving expenses.

You must not award any amount for interest, moving expenses or costs of these proceedings. These amounts will be determined separately by me according to the law.

Utah Code Section 78B-6-510(5).
State Road Comm'n v. Brown, 531 P.2d 1294 (Utah 1975).
Redevelopment Agency v. Barrutia, 526 P.2d 47 (Utah 1974).

CV2616 Severance damages.

[Name of condemnor] has taken only part of [name of property owner]'s property. In addition to determining the fair market value of the property taken, you must determine whether there have been any severance damages to the remaining property.

Severance damages means any loss of fair market value to the remaining property caused by the taking [and/or by the proposed construction of [describe public improvement] on the property taken].

The measure of severance damages is the difference between the fair market value of the remaining property before the taking and the fair market value of the remaining property after the taking.

Utah Code Section 78B-6-511(2).
Ivers v. UDOT, 2007 UT 19, 154 P.3d 802.
UDOT v. Harvey Real Estate, 2002 UT 107, 57 P.3d 1088.
City of Hildale v. Cooke, 28 P.3d 697, 2001 UT 56.
Carpet Barn v. State, 786 P.2d 770 (Utah 1990).
UDOT v. D'Ambrosio, 743 P.2d 1220 (Utah 1987).
State v. Williams, 452 P.2d 548 (Utah 1969).

This instruction should be given only if (1) there is a partial taking and (2) the property owner claims severance damages to the remaining property.

Ordinarily, construction has been completed before trial, and the jury considers whether the public improvement as constructed causes severance damage. The word "proposed' in brackets should be included in the instruction in the trial when construction has yet to be completed.

Ordinarily, there is no difference between the amount of severance damages caused by the taking or caused by construction of the improvement. The bracketed part of the instruction should be given in the instance in which there are claimed severance damages caused by construction in addition to those caused by the taking.

This instruction should be modified, or an additional instruction given, if a property owner alleges severance damages caused by construction of the public improvement outside the owner's condemned property. In Ivers v. UDOT, 2007 UT 19, 154 P.3d 802, the Utah Supreme Court held that a property owner could recover severance damages for loss of view caused by construction of the improvement outside the owner's condemned property if "the condemnation and use of the condemned land is essential to the project." 2007 UT 19, ¶ 22. The Committee is uncertain as to whether Ivers applies to any alleged severance damages other than loss of view, and therefore believes that any instruction for severance damages caused by construction of the improvement outside the owner's property should be tailored to the facts and circumstances of a particular case.

As appropriate, this instruction may be modified, or an additional instruction given, to clarify that an owner is not entitled to severance damages from a non-compensable loss, such as a loss of visibility from the public highway. See, e.g., Ivers, supra, ¶ 15.

CV2617 Reasonable cost to restore as measure of severance damages.

Severance damages may be reduced or eliminated by restoring the remaining property.

If you find that restoring the remaining property to its fair market value before the taking will eliminate severance damages, then you must award [name of property owner] the lesser of (1) the reasonable cost to restore the property, or (2) the full amount of severance damages, but not both.

If you find that the remaining property cannot be restored to its fair market value before the taking, you must award [name of property owner] the lesser of (1) the reasonable cost to partially restore the property, plus the remaining severance damages, or (2) the full amount of severance damages, but not both.

[Name of the party asserting that the severance damages should be reduced or eliminated] has the burden to prove that the restoration is feasible and reasonable.

Utah Code Section 78B-6-511.
UDOT v. Rayco Corp., 599 P.2d 481 (Utah 1979).
State v. Fox, 515 P.2d 450 (Utah 1973).
State v. Ward, 189 P.2d 113 (Utah 1948).
Thorsen v. Johnson, 745 P.2d 1243 (Utah 1987).
Pehrson v. Saderup, 498 P.2d 648 (Utah 1972).
Ault v. Dubois, 739 P.2d 1117 (Utah App. 1987).

This instruction should be given if a party contends that severance damages can be reduced or eliminated by restoring the property to its fair market value before the taking. The Committee is unaware of any Utah law holding that the cost to restore is a proper measure, if the severance damages can be reduced but not eliminated through restoration.

CV2618 Access.

[Name of condemnor] may regulate access to and from the public roads to promote the general welfare, but must provide [name of property owner] with reasonable access to [his] property. Access may be reasonable even though it is not the most direct or convenient access. The right of reasonable access does not include a right to access at a specific location on the property, or from a specific road or intersection, or in a specific direction.

If you find that [name of property owner] does not have reasonable access to [his] remaining property after the taking, then you must consider this change in access in determining severance damages. If you find that [name of property owner] has reasonable access after the taking, then you must disregard this change in access in determining severance damages.

Utah Code Section 72-7-103.
State v. Harvey Real Estate, 2002 UT 107, 57 P.3d 1088.
State Rd. Comm'n. v. Utah Sand & Gravel, 454 P.2d 292 (Utah 1969).
State Rd. Comm'n., v. Utah Sugar Co., 448 P.2d 901 (Utah 1968).
Hampton v. State, 445 P.2d 708 (Utah 1968).
Utah Road Comm'n v. Hansen, 383 P.2d 917 (Utah 1963).
Springville Banking Co. v. Burton, 349 P.2d 157 (Utah 1960).

This instruction should be given only when a property owner claims that a partial taking has deprived the owner of reasonable access to the remaining property after the taking, when the access was derived from the fact that the property abutted a public street or right of way. This instruction should be modified when a specific easement, access point, or right of way has been taken or closed in connection with a partial taking. For example, if a property owner has a legally established access point, right of way, or easement, derived from a contract, deed, or prior governmental grant, that access point would be a property right and the taking of that access point must be considered in determining severance damages, whether or not the owner still had reasonable access without the access point. See generally, Hampton v. State, 445 P.2d 708 (Utah 1968).

CV2619 Vested right of access.

[Describe right of access] is a property right. [Name of condemnor] has taken the [identify right of access] for a public use. The [identify right of access] must be considered in determining the fair market value of the property taken, [and severance damages to the remaining property].

CV2620 Special benefits.

If you find that the taking caused severance damages, then you must determine whether the taking and the construction of [describe public improvement] create a special benefit that increases the fair market value of the remaining property.

A benefit is special if it results directly from the taking or the [proposed] construction of the [describe public improvement] on the property taken, and is not shared by the general public.

If you find that special benefits have increased the fair market value of the remaining property, you must subtract the amount of that benefit from any severance damages to the remaining property. If the special benefits are greater than the severance damages, then you must find that there are no severance damages. You cannot subtract the amount of any special benefit from the fair market value of the property taken.

Utah Code Section 78B-6-511(4).
Hempstead v. Salt Lake City, 90 P. 397 (Utah 1907).
Kimball v. Salt Lake City, 90 P. 395 (Utah 1907).

This instruction should be given only if (1) there is a partial taking, (2) the property owner claims severance damages, and (3) the condemnor claims that the taking has created a special benefit to the remaining property.

Ordinarily, construction has been completed before trial, and the jury considers whether the public improvement as constructed creates special benefits. The word "proposed' in brackets should be included in the instruction in the rare trial when construction has yet to be completed.

CV2621 Apportionment of just compensation among multiple interests.

The [identify property owner, lessee, easement owner and any other interest holder] all have an interest in the property and are entitled to just compensation for the taking of their interest.

First you must determine the fair market value of the property taken [and severance damages to the remaining property]. Then you must divide that amount between/among the [property owner, tenant, easement owner and any other interest holder], according to the interest of each. The total amount of the compensation cannot be more than the fair market value of the property taken, [and severance damages to the remaining property].

Utah State Rd. Comm'n. v. Brown, 531 P.2d 1294 (Utah 1975).

CV2622 Apportionment of just compensation between owner and tenant.

After you determine the total amount of the just compensation, you must apportion it between the [name of property owner] and [name of lessee]. [Name of lessee] is entitled to the difference between:

(1) the present value of the total rent that [name of lessee] would have paid under the lease from [insert date when lessee lost possession of the premises] until [insert date that lease expires or end of term] and

(2) the present value of the total fair market rent that a willing and informed lessee would pay to rent the premises between [date that lessees lost possession] and [date that lease expires or end of term] and that a willing and informed owner would accept on the open market.

[Name of property owner] is entitled to the remaining amount of the just compensation.

Utah State Rd. Comm'n. v. Brown, 531 P.2d 1294 (Utah 1975).

This instruction should be given after Instruction CV2621, Apportionment of just compensation among multiple interests.

This instruction does not contemplate that the jury will itself undertake the appraisal of the leasehold by computing its value. Rather, the instruction is intended to guide the jury in assessing and utilizing expert testimony on the issue of leasehold valuation. The purpose of this instruction is therefore similar in purpose to the instruction on just compensation.

Many lease agreements contain provisions addressing the apportionment of compensation in the event of condemnation. This instruction would be appropriate only if the lessee's right to condemnation compensation is not governed by the lease or other agreement.

CV2801 An organization acts through its agents.

[Name of party] is a [corporation, partnership, joint venture, etc.] and acts or fails to act when [name of party]'s officers, employees, or agents act or fail to act within the scope of their duties or authority.

Zions First Nat. Bank v. Clark Clinic Corp., 762 P.2d 1090, 1094-95 (Utah 1988).
Orlob v. Wasatch Management, 2001 UT App 28, para. 18, 33 P.3d 1078.

If the jury must decide whether a party is a corporation, partnership, or joint venture, then this instruction should not be given. Or phrased as "If you find that [name of party] is ...."

CV2802 Actual authority.

[Name of plaintiff] claims that [name of principal] is liable for [describe act or omission] by [name of officer/employee/agent]. To succeed on this claim, [name of plaintiff] must prove that:

(1) [name of principal] granted [name of officer/employee/agent] the authority to [describe actual authority]; or

(2) [name of officer/employee/agent]'s conduct was necessary, usual, proper or incidental to the conduct that [name of principal] actually authorized.

Zions First Nat. Bank v. Clark Clinic Corp., 762 P.2d 1090 (Utah 1988).
Bowen v. Olsen, 576 P.2d 862 (Utah 1978).
B & R Supply Co. v. Bringhurst, 28 Utah 2d 442, 503 P.2d 1216 (1972).
Restatement (Third) of Agency Section 3.01.

The courts have adopted a specific test for cases involving scope of employment. If the relationship between principal and agent is a traditional employment relationship, the court should use Instruction CV2805. Scope of employment. If the relationship is a traditional principal and agent relationship, the court should use this instruction.

CV2803 Apparent authority.

[Name of plaintiff] claims that [name of principal] is liable for [describe act or omission] by [name of officer/employee/agent]. To succeed on this claim, [name of plaintiff] must prove all of the following:

(1) [name of principal] acted in a way that would cause a reasonable person to believe that [name of principal] consented to or knowingly permitted [name of officer/employee/agent]'s conduct; and

(2) at the time of [name of officer/employee/agent]'s conduct, [name of plaintiff] knew of [name of principal]'s acts; and

(3) [name of plaintiff] did in fact believe that [name of officer/employee/agent] had the authority to [describe act or omission].

However, if [name of plaintiff] knew of the real scope of [name of officer/employee/agents]'s authority in time to avoid the harm, then [name of principal] is not liable for [name of officer/employee/agent]'s conduct.

Burdick v. Horner Townsend & Kent, Inc., 2015 UT 8.
City Elec. v. Dean Evans Chrysler-Plymouth, 672 P.2d 89 (Utah 1983).
Bank of Salt Lake v. Corporation of the President of the Church, 534 P.2d 887 (Utah 1975).
Sutton v. Byer Excavating, Inc., 2012 UT App 28.
Restatement (Third) of Agency, Section 2.03, Comment (e). "To establish that an agent acted with apparent authority, it is not necessary for the plaintiff to establish that the principal's manifestation induced the plaintiff to make a detrimental change in position, in contrast to the showing required by the estoppel doctrines.... Establishing that a plaintiff took an action as a result of the principal's manifestation may also help to establish that the person to whom the manifestation was made believed it to be true. Moreover, the underlying substantive cause of action on which the third party sues the principal may require proof that the plaintiff took a specific type of action. For example, if the underlying cause of action is fraud, it is necessary for the plaintiff to establish that the defendant's misrepresentation led to a detrimental change in position."

CV2804 Approval of conduct.

[Name of plaintiff] claims that [name of principal] is liable for [describe act or omission] by [name of third party] because [name of principal] approved of [name of third party]'s conduct after the fact. To succeed on this claim, [name of plaintiff] must prove that [name of principal] knew of [name of third party]'s conduct; and approved of it.

[Name of plaintiff] may prove that [name of principal] approved of [name of third party]'s conduct by any acts, words, or conduct, including silence, which, under the circumstances, indicate approval.

Bradshaw v. McBride, 649 P.2d 74 (Utah 1982).
Bullock v. Utah, Dep't of Transp., 966 P.2d 1215 (Utah Ct.App.1998).
Franklin Credit Mgmt. Corp. v. Hanney, 2011 UT App 213.

CV2805 "Scope of employment" defined.

[Name of plaintiff] claims that [name of employer] is liable for [describe act or omission] by [name of employee]. To succeed on this claim, [name of plaintiff] must prove that [name of employee]'s conduct was within the scope of employment. "Scope of employment" means that the conduct:

(1) was of the general kind [name of employee] was [employed/authorized] to do; and

(2) occurred substantially within working hours and within the normal work area; and

(3) was motivated, at least in part, by the purpose of serving [name of employers]'s interest.

Helf v. Chevron U.S.A., Inc., 2009 UT 11, para. 48, 203 P.3d 962.
Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991).
Birkner v. Salt Lake County, 771 P.2d 1053 (Utah 1989).
Sutton v. Byer Excavating, Inc., 2012 UT App 28.

The courts have adopted a specific test in cases involving scope of employment. If the relationship between principal and agent is a traditional employment relationship, the court should use this instruction. If the relationship is a traditional principal and agent relationship, the court should use Instruction CV2802. Actual authority.

CV2806 Deviation from scope of employment.

If [name of employee] deviates from carrying out [his] employment duties for personal reasons, whether [he] was still acting within the scope of employment depends on the extent of the deviation.

If it was a slight deviation to attend to business other than [name of employer]'s, then the acts are still within the scope of employment.

However, if [name of employee]'s deviation was so substantial that it had no relation to [his] employment or to [name of employer]'s business, then [name of employee]'s acts are not within the scope of employment.

Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1042 (Utah 1991).
Carter v. Bessey, 97 Utah 427, 93 P.2d 490, 492 (1939).
Restatement (Third) of Agency. Section 7.07.

CV2807 Scope of employment; travel to and from work.

Traveling to and from work is usually not within the scope of employment. [Name of plaintiff] claims that, [name of employee]'s [describe act or omission] while traveling to or from work is within the scope of employment. To succeed on this claim, [name of plaintiff] must prove that:

(1) [name of employer] benefited from the travel other than just in [name of employee]'s presence at work; or

(2) [name of employer] had control over [name of employee]'s conduct during [his] travel.

Ahlstrom v. Salt Lake City Corp., 2003 UT 4, para. 6, 73 P.3d 315.
Christensen v Swenson, 874 pd 125 (Utah 1994).
Whitehead v. Variable Annuity Life Ins. Co., 801 P.2d 934 (Utah 1989).
Windsor Ins. Co. v. American States Ins. Co., 22 P.3d 1246, (Utah App.,2001).
27 ALR 5th 174. Employer's liability for negligence of employee in driving his or her own automobile.

Ahlstrom v. Salt Lake City Corp., 2003 UT 4, 73 P.3d 315, includes a thorough discussion of the scope of employment doctrine and of several exceptions to it.

CV2808 Scope of employment; dual purpose.

If [name of employee]'s [describe act or omission] was motivated to benefit [name of employer], then the conduct was within the scope of employment even though [name of employee] was also pursuing some personal interest.

However, if [name of employee]'s primary motivation was personal, then [his] conduct was not within the scope of employment, even though [he] may have also transacted some business or performed some duty related to [his] employment.

[Where [name of employee] is involved in an accident while traveling for [name of employer], you should ask whether the trip was one for which [name of employer] would have had to send another employee to the same destination or to perform the same task if the trip had not been made.]

Ahlstrom v. Salt Lake City Corp., 2003 UT 4, para. 14, 73 P.3d 315.
Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1041 (Utah 1991).
Whitehead v. Variable Annuity Life Ins. Co., 801 P.2d 934 (Utah 1989).

Use the bracketed paragraph only if the case involves the employee's travel.

CV2809 Scope of employment; intentional act.

[Name of employee]'s intentional [describe act or omission] is within the scope of employment if [name of employee]'s conduct:

(2) occurred substantially within the authorized time and space limits of [his] employment; and

However, if [name of employee]'s conduct was unprovoked, highly unusual, and outrageous, then [name of employee]'s conduct was not within the scope of employment.

Clark v. Pangan, 2000 UT 37, 998 P.2d 268.
Birkner v. Salt Lake County, 771 P.2d 1053 (Utah 1989).

CV2810 Joint venture defined.

A joint venture is a relationship voluntarily agreed to by two or more people in which the parties combine their property, money, skill, labor or knowledge and share:

Ellsworth Paulsen Const. Co. v. 51-SPR-L.L.C., 2008 UT 28, 183 P.3d 248 (must be evidence to support each element, 183 P.3d 253, n. 2; "loss-sharing" discussed).
Rogers v. M.O. Bitner Co., 738 P.2d 1029 (Utah 1987) (elements of joint venture).
Basset v. Baker, 530 P.2d 1 (Utah 1974).

CV2811 Liability of [partnership/joint venture] for acts of [partner/joint venturer.

[Name of plaintiff] claims that [name of partnership/joint venture] is liable for [describe act or omission] by [name of partner/joint venturer]. To succeed on this claim, [name of plaintiff] must prove that:

(1) [name of partner/joint venturer]'s conduct was within the ordinary course of [name of partnership/joint venture]'s business; or

(2) [name of partner/joint venturer] acted under the [actual/apparent] authority of the [partnership/joint/venture].

Utah Code Section 48-1b-305.
Utah Code Section 48-1d-305. Effective January 1, 2014.

See also Instruction CV2802 Actual authority, and Instruction CV2803 Apparent authority.

CV2812 Liability of parents or legal guardians for property damage caused by a minor.

[Name of defendant] is the [parent] [legal guardian] of [name of minor]. [Name of defendant] is liable for damage to [name of plaintiff]'s property if you find that:

[(1) [Name of minor] intentionally [damaged, defaced, destroyed, or took] [name of plaintiff]'s property;]

[(2) [Name of minor] recklessly or willfully shot or propelled an object at [name of plaintiff]'s [car, truck, bus, airplane, boat, locomotive, train, railway car, or caboose];] or

[(3) [Name of minor] intentionally and unlawfully tampered with [name of plaintiff]'s property and thereby [recklessly endangered human life] [recklessly caused or threatened a substantial interruption or impairment of any public utility service.]

(2) [made a reasonable effort to restrain [name of minor] if [name of defendant] knew of [name of minor]'s intended acts in advance]

Utah Code Section 78A-6-1113.

The list of vehicles in (2) is a statutory list, and some vehicles are not included. The statute limits the amount of damages; if the damages awarded are greater than allowed, the judge can reduce the amount.

CV2813 Liability of a person who gives a minor permission to drive his vehicle.

[(1) was the owner of the motor vehicle involved in the accident and knowingly permitted [name of minor] to drive the vehicle on a highway, or]

then [name of defendant] is liable for damages caused by the negligence of [name of minor] in driving the vehicle on a highway.

Utah Code Section 53-3-212.
Utah Code Section 53-3-102. Definition of "highway."

This instruction should be given only if the owner of or the person who furnished the motor vehicle did not have security covering the minor's operation of the vehicle in an amount required under Section 31A-22-304.

CV2814 Independent contractor defined.

[Name of defendant] claims that [name of actor] was an independent contractor for whose conduct [he] is not responsible.

An independent contractor is one who has the right to control the manner and means of accomplishing the work and does the work in his or her own way, subject only to minimal direction, and is responsible only for completing the job.

In order to determine whether [name of actor] was an independent contractor, you must decide whether [name of defendant] had the right to control the manner and means of accomplishing the work. If you decide that [name of defendant] had the right of control, then [name of actor] is not an independent contractor. If you decide that [name of defendant] did not have the right of control, then [name of actor] is an independent contractor.

In determining whether [name of defendant] had the right of control, you may consider the following factors and weigh them as you think proper:

Mallory v. Brigham Young University, 2014 UT 27, para. 21.
Utah Home Fire Ins. Co. v. Manning, 1999 UT 77, para. 11, 985 P.2d 243.
Thompson v. Jess, 1999 UT 22, 979 P2d 322 (Utah 1999).
Gourdin By & Through Close v. Sharon's Cultural Educ. Recreational Ass'n (SCERA), 845 P.2d 242 (Utah 1992).
Harry L. Young & Sons v. Ashton, 538 P.2d 316, 318 (Utah 1975).

CV2815 Liability for independent contractor.

If [name of actor] was an independent contractor, then [name of defendant] [usually] is not liable for [name of actor]'s negligent acts or omissions.

[However, even if you decide that [name of actor] is an independent contractor ... [As applicable, follow with:]

Instruction CV2815A. Principal retains control over manner and means of the injury-causing aspect of the work.

Castellanos v. Tommy John, Inc., 2015 UT App 48, 321 P.3d 218.
Berrett v Albertsons, 2012 UT App 371.
Restatement (Second) of Torts, sect. 413.

Include the bracketed "usually" if the jury will be instructed on one of the circumstances in which the principal is liable for an independent contractor's negligence.

CV2815A Principal retains control over manner and means of the injury-causing aspect of the work.

... [name of defendant] is liable for physical harm caused by [name of actor]'s negligence if [name of defendant] exerted so much control over the manner and means of the part of the work performed by [name of actor] which caused the injury that [name of actor] could not carry out that work in [his] own way.

Castellanos v. Tommy John, Inc., 2014 UT App 48, 321 P.3d 218.
Magana v. Dave Roth Constr., 2009 UT 45, para.27,215 P.3d 143.
Begaye v. Big D Constr. Corp., 2008 UT 4, para.para. 9-10, 178 P.3d 343.
Mallory v. Brigham Young University, 2012 UT App 242.

Magana v. Dave Roth Constr., 2009 UT 45, defines "injury-causing aspect of the work" to mean the proximate cause of plaintiff's harm. See Instruction CV209. "Cause" defined.

This instruction focuses on the defendant controlling the manner and means of the injury-causing aspect of the work, rather than on active participation in the injury-causing aspect because the latter may be grounds for defendant's direct, rather than vicarious, liability.

CV2815B Principal may remain liable despite delegating duty.

... [name of defendant] is liable for physical harm caused by [name of actor]'s negligence because I have determined that [the law or contract] imposes liability even though [name of defendant] delegated the duty to perform the part of the work which caused the injury.

Castellanos v. Tommy John, Inc., 2014 UT App 48, 321 P.3d 218.
Gleason v. Salt Lake City, 94 Utah 1, 74 P.2d 1225 (1937).
Price v. Smith's Food and Drug Inc., 252 P3d 365 (Utah App 2001).
Bowen v. Riverton City, 656 P2d 434 (Utah 1982).
Johnson v. Dept of Transportation, 98 P3d 773 (Utah App 2004).

Magana v. Dave Roth Constr., 2009 UT 45, defines "injury-causing aspect of the work" to mean the proximate cause of plaintiff's harm. See Instruction CV209. "Cause" defined.

Normally the jury would not be instructed on a point of law, but this instruction may be helpful if the jury must decide whether the harm was caused by breach of a non-delegable duty or some other cause.

CV2815C Inherently dangerous work.

... [name of defendant] is liable for [name of actor]'s negligence if the work involved a special danger which [name of defendant] knew or had reason to know was inherent in or normal to the work.

You must decide whether the work involved a special danger and whether [name of defendant] knew or had reason to know the special danger was inherent in or normal to the work.

CV99 Introducing a self-represented litigant to the jury.

CV101 General admonitions.

CV101A General admonitions. [self-represented litigant version]

CV101B Further admonition about electronic devices.

CV102 Role of the judge, jury and lawyers.

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

CV103 Nature of the case.

CV104 Order of trial.

CV105 Sequence of instructions not significant.

CV106 Jurors must follow the instructions.

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

CV107A Avoiding Bias.

CV108 Note-taking.

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

CV110 Rules applicable to recesses.

CV111A Definition of "person."

CV111B All persons equal before the law.

CV112 Multiple parties.

CV113 Multiple plaintiffs.

CV114 Multiple defendants.

CV115 Settling parties.

CV116 Discontinuance as to some defendants.

CV117 Preponderance of the evidence.

CV118 Clear and convincing evidence.

CV119 Evidence.

CV119A Evidence. [self-represented litigant version]

CV120 Direct and circumstantial evidence.

CV121 Believability of witnesses.

CV122 Inconsistent statements.

CV123 Effect of willfully false testimony.

CV124 Stipulated facts.

CV125 Judicial notice.

CV126 Depositions.

CV127 Limited purpose evidence.

CV128 Objections and rulings on evidence and procedure.

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

CV129 Statement of opinion.

CV130A Charts and summaries as evidence.

CV130B Charts and summaries of evidence.

CV131 Spoliation.

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

CV132A Remote Testimony.

CV133 Conflicting testimony of experts.

CV134 No record of testimony.

CV135 Time taken for case to arrive at trial.

CV151 Closing roadmap

CV152 Closing arguments

CV153 Legal rulings

CV154 Judicial neutrality

CV155 Foreperson selection and duties and jury deliberations

CV156 Do not resort to chance

CV157 Agreement on special verdict

CV158 Discussing the case after trial

CV201 "Fault" defined.

CV202A "Negligence" defined.

CV202B "Gross negligence" defined.

CV203 "Negligence" defined. Person with disability.

CV204 Care required when children are present.

CV205 Care required by children.

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

CV207 Abnormally dangerous activity.

CV208 Care required in controlling electricity.

CV209 "Cause" defined.

CV210 Superseding cause.

CV211 Allocation of fault.

CV212 Violation of a safety law.

CV299 Verdict Forms

CV301A Medical Malpractice Instruction Notes

CV301B Elements of a medical negligence claim.

CV301C "Standard of care" defined.

CV302 "Standard of care" for nurses defined.

CV303 Care owed by nurse under varying circumstances.

CV304 Duty to disclose material medical information.

CV305 Duty to refer.

CV306 Duty to warn of how to avoid injury.

CV307 Duties of hospital to patients.

CV308 Physicians may assume compliance with orders.

CV309 "Cause" defined.

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

CV311 Elements of an informed consent claim.