No. C02-1016







         Members of the jury, the instructions I gave you at the beginning of the trial remain in effect. I now give you some additional instructions.

         The instructions I am about to give you are in writing and will be available to you in the jury room. All instructions, whenever given and whether in writing or not, must be followed. This is true even though some of the instructions I gave you at the beginning of the trial are not repeated here.

         In considering these instructions, the order in which they are given is not important.



         Do not consider this summary as proof of any claim. Decide the facts from the evidence and apply the law which I will now give you.




This is a civil case which arises from a construction project in Dubuque, Iowa.

The Plaintiff is the City of Dubuque and the Defendant is Yaggy Colby Associates, an engineering firm. The Plaintiff has sued the Defendant claiming that the Defendant was negligent in providing certain services related to the construction project and that the Plaintiff suffered damages as a result. The Defendant denies it was negligent and also denies that its conduct caused the Plaintiff damages.









         Neither in these instructions nor in any ruling, action, or remark that I have made during the course of this trial have I intended to give any opinion or suggestion as to what your verdict should be.



         My duty is to tell you what the law is. Your duty is to accept and apply this law. Your duty is to decide all fact questions. Do not be influenced by any personal likes or dislikes, sympathy, bias, prejudices or emotions.




         Your verdict in this case depends on whether you find certain facts have been proved. The burden of proving a fact is upon the party whose claim depends upon that fact.

         The party with the burden of proof must prove facts by the “greater weight of the evidence.” To prove something “by the greater weight of the evidence” means to prove that it is more likely true than not true. The “greater weight of the evidence” is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, you find that the evidence is equally balanced, then you cannot find that the issue has been proved.

         The “greater weight of the evidence” is not necessarily determined by the greater number of witnesses or exhibits a party has presented. The testimony of a single witness that produces in your mind a belief in the likelihood of truth is sufficient for proof of any fact and would justify a verdict in accordance with such testimony. This is so, even though a number of witnesses may have testified to the contrary, if after consideration of all of the evidence in the case, you hold a greater belief in the accuracy and reliability of that one witness.

         You may have heard of the term “proof beyond a reasonable doubt.” That is a stricter standard which applies in criminal cases. It does not apply in civil cases such as this. You should, therefore, put it out of your minds.





         I have mentioned the word “evidence.” The “evidence” in this case consists of the following: the testimony of the witnesses; the documents and other things received as exhibits; and the facts that have been stipulated – that is, formally agreed to by the parties.

         You may use reason and common sense to draw deductions or conclusions from facts which have been established by the evidence in the case.

         Certain things are not evidence. I shall list those things again for you now:

         1.      Statements, arguments, questions, and comments by the lawyers are not evidence.

         2.      Objections are not evidence. The parties have a right to object when they believe something is improper. You should not be influenced by the objection. If I sustained an objection to a question, you must ignore the question and must not try to guess what the answer might have been.

         3.      Testimony that I struck from the record, or told you to disregard, is not evidence and must not be considered.

         4.      Anything you saw or heard about this case outside the courtroom is not evidence.




         There are two types of evidence from which a jury may properly find the truth as to the facts of a case: direct evidence and circumstantial evidence. Direct evidence is the evidence of the witness to a fact or facts of which they have knowledge by means of their senses. The other is circumstantial evidence – the proof of a chain of circumstances pointing to the existence or nonexistence of certain facts.

         The law makes no distinction between direct and circumstantial evidence. You should give all evidence the weight and value you believe it is entitled to receive.





         In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.

         In deciding what testimony to believe, you may consider the witness’ intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness’ memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe.

         In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You should consider whether a contradiction is an innocent misrecollection or lapse of memory, or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.

         You may hear testimony from persons described as experts. Persons who have become experts in a field because of their education and experience may give their opinion on matters in that field and the reasons for their opinion. Consider expert testimony just like any other testimony. You may accept it or reject it. You may give it as much weight as you think it deserves, considering the witness’ education and experience, the reasons given for the opinion, and all the other evidence in the case.




         There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overruled the objection, the question was answered or the exhibit was received. If I sustained the objection, the question was not answered, and the exhibit was not received. Whenever I sustained an objection to a question, you must ignore that question and must not guess what the answer might have been.



         The Plaintiff and the Defendant have stipulated – that is, they have agreed – that certain facts are as counsel stated during trial. You should, therefore, treat those facts as having been proved.




         You have heard evidence that there was a previous trial involving the construction project in Dubuque, Iowa. Keep in mind, however, that you must decide this case solely on the evidence presented to you in this trial.






         Throughout the trial, you have been permitted to take notes. Your notes should be used only as memory aids, and you should not give your notes precedence over your independent recollection of the evidence.

         In any conflict between your notes, a fellow juror’s notes, and your memory, your memory must prevail. Remember that notes sometimes contain the mental impressions of the note taker and can be used only to help you recollect what the testimony was. At the conclusion of your deliberations, your notes should be delivered to the Court Security Officer for destruction.



         In these instructions I will be using the term “fault.” Fault means one or more acts or omissions towards the person of the actor or of another which constitutes negligence.

         The mere fact that a party was damaged does not mean a party was at fault.






         Damages may be the fault of more than one person. In comparing fault, you should consider all of the surrounding circumstances as shown by the evidence, together with the conduct of the Plaintiff and the Defendant and the extent of the causal relation between their conduct and the damages claimed. You should then determine what percentage, if any, each person's fault contributed to the damages.





         “Negligence” means failure to use ordinary care. Ordinary care is the care which a reasonably careful person would use under similar circumstances. “Negligence” is doing something a reasonably careful person would not do under similar circumstances, or failing to do something a reasonably careful person would do under similar circumstances.




         In the contract with the City of Dubuque, Yaggy Colby Associates, Inc. agreed its engineers had a duty to use the care and skill ordinarily used by members of the engineering profession practicing under similar circumstances at the same time and in the same locality. A violation of this duty is negligence.



         The conduct of a party is a cause of damage when it is a substantial factor in producing damage and when the damage would not have happened except for the conduct. “Substantial” means the party’s conduct has such an effect in producing damage as to lead a reasonable person to regard it as a cause. There can be more than one cause of damage.




         The Plaintiff claims that the Defendant was negligent. (Negligence is defined in Instruction Nos. ___ and ___). In order to establish liability for negligence on the part of the Defendant, the Plaintiff must prove all of the following propositions:

         1.      The Defendant was negligent in failing to adequately address the discrepancy between the estimate and the contractor’s bills in a timely manner.

         2.      The negligence of the Defendant was a cause of the Plaintiff’s damages.

         3.      The extent of the damages.

         If the Plaintiff has failed to prove any of these propositions, the Plaintiff is not entitled to damages. If the Plaintiff has proved all of these propositions, you will consider the defense of comparative fault as explained in Instruction No. ___.




         The Defendant claims the Plaintiff was negligent because the Plaintiff failed to adequately address the discrepancy between the estimate and the contractor’s bills in a timely manner.

         This ground of fault has been explained to you.

         The Defendant must prove both of the following propositions:

         1. The Plaintiff was negligent. (Negligence is defined in Instruction No. ___).

2. The Plaintiff's negligence was a cause of the Plaintiff's damage.

         If the Defendant has failed to prove either of these propositions, the Defendant has not proved its defense. If the Defendant has proved both of these propositions, then you will assign a percentage of fault against the Plaintiff and include the Plaintiff's fault in the total percentage of fault found by you in the appropriate place on the verdict form.





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

         First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.          Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because your verdict must be unanimous.

         Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors.

         Do not be afraid to change your opinions if the discussion persuades you that you should, but do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges - judges of the facts. Your sole interest is to seek the truth from the evidence in the case.

         Third, if you need to communicate with me during your deliberations, you may send a note to me through the Court Security Officer, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone - including me - how your votes stand numerically.

         Fourth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. Nothing I have said or done is intended to suggest what your verdict should be - that is entirely for you to decide.



INSTRUCTION NO.____ (continued)


         Finally, I am giving you a verdict form. A verdict form is simply the written notice of the decision that you reach in this case. Your verdict must be unanimous. You will take the verdict form to the jury room. When you have reached a unanimous verdict, your foreperson must complete one copy of the verdict form and sign and date it. All jurors also shall sign the verdict form indicating that the verdict is unanimous. The foreperson must bring the signed verdict form to the courtroom when it is time to announce your verdict. When you have reached a verdict, the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.


DATED this ____ day of July, 2004.





                                                        LINDA R. READE

                                                        JUDGE, U. S. DISTRICT COURT

                                                        NORTHERN DISTRICT OF IOWA





CITY OF DUBUQUE,                                 )



                  Plaintiff,                                  )        No. C02-1016


vs.                                                             )        

                                                                 )         VERDICT FORM

YAGGY COLBY ASSOCIATES, INC.          )        

d/b/a YAGGY COLBY ASSOCIATES,          ) 


                  Defendant.                               )


We find the following verdict on the questions submitted to us:


Question No. 1: Was the Defendant negligent?

Answer "yes" or "no."

ANSWER: ____________

(If your answer is "no," do not answer any further questions on this verdict form.)


Question No. 2: Was Defendant’s negligence a cause of the Plaintiff’s damages?

Answer "yes" or "no."


(If your answer is "no," do not answer any further questions on this verdict form.)


Question No. 3: Was the Plaintiff negligent?

Answer "yes" or "no."

ANSWER: ____________

(If your answer is "no," go to question 6 on this verdict form.)

Question No. 4: Was the Plaintiff's negligence a cause of its damage?

Answer "yes" or "no."

ANSWER: ___________

(If your answer is "no," do not answer question 5.)


Question No. 5: Using 100% as the total combined fault of the Plaintiff and the Defendant which was a cause of the Plaintiff's damage, what percentage of such combined fault do you assign to the Plaintiff and what percentage of such combined fault do you assign to the Defendant?

ANSWER:  Plaintiff                          __________%

                    Defendant                     __________%

TOTAL 100%


Question No. 6: What is the total amount of damages, if any, sustained by the Plaintiff without taking into consideration any reduction of damages due to the Plaintiff’s negligence, if any?

ANSWER $___________




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Juror, Foreperson Juror


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Juror         Juror


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Juror        Juror


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