IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION



MATTHEW L. COLNON and CLARE H. COLNON,
Plaintiffs,

No. C98-4062-PAZ

vs.

PRELIMINARY INSTRUCTIONS

TO THE JURY

MIDWEST INDUSTRIES, INC.,
Defendant.

____________________

TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - SUMMARY OF THE CASE

NO. 3 -SUMMARY OF CLAIMS

NO. 4 - DUTY OF JURORS

NO. 5 - LIABILITY OF CORPORATIONS

NO. 6 - ORDER OF TRIAL

NO. 7 - BURDEN OF PROOF

NO. 8 - DEFINITION OF EVIDENCE

NO. 9 - CREDIBILITY OF WITNESSES

NO. 10 - OPINION EVIDENCE - EXPERT WITNESS

NO. 11 - STIPULATED FACTS

NO. 12 - ADMISSIONS

NO. 13 - INTERROGATORIES

NO. 14 - DEPOSITIONS

NO. 15 - OBJECTIONS

NO. 16 - BENCH CONFERENCES

NO. 17 - NOTE-TAKING

NO. 18 - ADMONITION



PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS

Members of the jury, these preliminary instructions are to help you better understand the trial and your role in it. Consider these instructions, together with any oral instructions given to you during the trial and the written instructions given at the end of the trial, and apply them as a whole to the facts of the case. In considering these instructions, the order in which they are given is not important.



PRELIMINARY INSTRUCTION NO. 2 - SUMMARY OF THE CASE

The following is a brief summary of the case.

This case is brought by Matthew L. Colnon and Clare H. Colnon, who allege that Mr. Colnon was injured because of the improper design and manufacture of a water craft trailer. Specifically, the plaintiffs allege that on July 20, 1996, Mr. Colnon was using a trailer designed, manufactured, and distributed by the defendant Midwest Industries to load his jet ski when his foot was cut on the license plate on the rear of the trailer, severely injuring Mr. Colnon.

The plaintiffs allege Mr. Colnon's injury was caused by the defendant's negligent design and manufacture of the trailer. They also allege the defendant is liable because the defendant designed, manufactured, sold, and delivered a trailer that was in a defective and unreasonably dangerous condition. Mr. Colnon seeks money damages for his injuries, and Mrs. Colnon seeks money damages for losses she and her children have suffered because of her husband's injury.

The defendant Midwest Industries denies the plaintiffs' allegations and denies that the plaintiffs are entitled to money damages. The defendant also claims Mr. Colnon was at fault for the accident.

This summary is not evidence, but is only a brief description of the factual disputes you will be asked to resolve.



PRELIMINARY INSTRUCTION NO. 3 - SUMMARY OF CLAIMS

To help you follow the evidence, here is a brief summary of what the plaintiffs intend to prove:

Mr. Colnon intends to prove he is entitled to recover damages on a claim that the defendant was negligent. To recover on his claim of negligence, Mr. Colnon must establish each of the following:

1. The defendant was negligent;

2. The defendant's negligence was a proximate cause of Mr. Colnon's injuries; and

3. The amount of Mr. Colnon's damages.

Mr. Colnon also intends to prove he is entitled to recover damages on a claim that the defendant is liable under the legal doctrine of strict liability. To recover on his claim of strict liability, Mr. Colnon must establish each of the following:

1. The defendant designed, manufactured, assembled, or sold the trailer;

2. The defendant was engaged in the business of designing, manufacturing, assembling, or selling trailers;

3. The trailer was defective at the time of sale;

4. The defective condition was unreasonably dangerous to Mr. Colnon;

5. Mr. Colnon used the trailer in the intended manner or in a manner reasonably foreseeable by the defendant;

6. The trailer was expected to and did reach Mr. Colnon without substantial change in its condition;

7. The defect was a proximate cause of Mr. Colnon's damages; and

8. The amount of his damages.

Mrs. Colnon intends to prove she is entitled to recover damages for herself and on behalf of her children for loss of consortium. To recover on her claims for loss of consortium, Mrs. Colnon must establish each of the following:

1. Mr. Colnon has prevailed on one or more of his claims against the defendant;

2. Mrs. Colnon and her children have been deprived of consortium with Mr. Colnon;

3. The injuries Mr. Colnon suffered as a result of the defendant's actions were the proximate cause of Mrs. Colnon's loss and her children's loss; and

4. The amount of her damages and her children's damages.

The defendant denies the plaintiffs' claims, and intends to prove Mr. Colnon was at fault for the accident, and his fault was the proximate cause of the plaintiffs' damages.

This is only a preliminary outline of the case. At the end of the trial, I will give you more detailed written instructions concerning the plaintiffs' claims and the defendant's defenses. You should use those final instructions, and not this summary, to decide the case.



PRELIMINARY INSTRUCTION NO. 4 - DUTY OF JURORS

Your duty as jurors is to listen to the evidence, decide the facts, and then apply those facts to the law as stated in my instructions. You alone are the judges of the facts, but you must follow the law as I give it to you, even if you disagree with the law or do not like it.

Do not allow sympathy or prejudice to influence you in the performance of your duty as jurors. You are to reach a just verdict, unaffected by anything except for the evidence, your common sense, and the instructions.



PRELIMINARY INSTRUCTION NO. 5 - LIABILITY OF CORPORATIONS

The defendant Midwest Industries is a corporation. Although a corporation is often treated under the law as if it were a person, a corporation can only act through its employees, officers, directors, and agents. Therefore, a corporation is held responsible under the law for the acts or omissions of its employees, officers, directors, and agents, performed within the scope of their authority.

Employees, officers, directors, and agents of a corporation are acting "within the scope of their authority" only when they are engaged in the performance of duties expressly or impliedly assigned to them by the corporation. Unless you are instructed otherwise, a corporation is not responsible for the acts or omissions of its employees, officers, directors, or agents, performed outside the scope of their authority.

All parties -- including individuals, regardless of their position in society, and corporations, whether large or small -- stand equal before the law and are entitled to the same fair consideration and treatment by you.



PRELIMINARY INSTRUCTION NO. 6 - ORDER OF TRIAL

The trial will proceed as follows:

After I finish reading these preliminary instructions, the lawyers may make opening statements. An opening statement is not evidence. It is simply a summary of what the lawyers expect the evidence to be.

The plaintiffs then will present evidence. The defendant may cross-examine the plaintiffs' witnesses. Following the plaintiffs' case, the defendant may present evidence. The plaintiffs may cross-examine the defendant's witnesses. Following the defendant's case, the parties may present additional evidence.

After the evidence is concluded, I will give you the final instructions. The lawyers then will make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. Then I will give you some final instructions on deliberations, and you will retire to deliberate on your verdict.



PRELIMINARY INSTRUCTION NO. 7 - BURDEN OF PROOF

Your verdict will depend upon whether or not you find that certain facts have been proved. The obligation to prove a fact, or "the burden of proof," is upon the party whose claim depends upon that fact. The party with the burden of proving a fact must prove the fact by "the greater weight of the evidence," which is proof that the fact is more likely true than not true.

To determine whether a fact has been proved by the greater weight of the evidence, you must consider the evidence in the case, decide which evidence is more believable, and then determine whether the fact is more likely true than not true. If you find a fact is more likely true than not true, then that fact has been proved by the greater weight of the evidence. If you find a fact is more likely not true than true, or you find the evidence on the fact is equally balanced, then that fact has not been proved by the greater weight of the evidence. The greater weight of the evidence is not determined by the number of witnesses or exhibits a party presents, but by your judgment as to the weight of all the evidence.

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 one.



PRELIMINARY INSTRUCTION NO. 8 - DEFINITION OF EVIDENCE

You are to base your verdict on the law I give to you in my instructions and on the evidence placed before you during the trial. "Evidence" is:

1. Testimony in person.



3. Exhibits admitted into evidence by the court.

None of the following is evidence:

1. Statements, arguments, questions, and comments by the lawyers.

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

4. Anything you see or hear about this case outside the courtroom.

5. Pretrial statements, reports, depositions, or other miscellaneous materials that are referred to during the trial but not admitted into evidence.

Evidence may be direct or circumstantial, but you should not be concerned with these terms. The law makes no distinction between the weight to be given to direct evidence and circumstantial evidence. That is for you to decide.

Do not conclude from anything I may do or say during the trial that I have any opinions on the case favoring one side or the other.



PRELIMINARY INSTRUCTION NO. 9 - CREDIBILITY OF WITNESSES

You may believe all of what a witness says, part of it, or none of it. In deciding what testimony to believe, consider the witness's intelligence, memory, motives for testifying a certain way, manner while testifying, whether the witness said something different at an earlier time, the general reasonableness of the testimony, the witness's opportunity to have seen or heard the things about which the witness is testifying, and the extent to which the testimony is consistent with other evidence you believe.

Keep in mind that people sometimes hear or see things differently and sometimes forget things. You should consider whether a witness's mis-recollection has to do with an important fact or only a small detail. You also should consider whether a witness's false or inaccurate testimony is the result of an innocent mis-recollection, a lapse of memory, or an intentional falsehood.

A witness may be discredited, or "impeached," by evidence that is inconsistent with the witness's testimony. This would include evidence that at some earlier time, the witness said or did something, or failed to say or do something, that is inconsistent with the witness's testimony in the trial. It is for you to decide whether or not a witness has been impeached. If you decide that a witness has been impeached, and thus discredited, you may choose to disbelieve all or part of the witness's testimony. On the other hand, you may choose to believe a witness's testimony even though the witness has been impeached.



PRELIMINARY INSTRUCTION NO. 10 - EXPERT WITNESSES

You may hear testimony from witnesses described as experts. "Experts" are persons who may be knowledgeable in a field because of their education, their experience, or both. They are permitted to give their opinions on matters in that field and the reasons for their opinions.

You may accept or reject expert testimony just like any other testimony. After considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case, you may give an expert witness's testimony whatever weight, if any, you think it deserves.

An expert witness may be asked to assume certain facts are true, and to give an opinion based on that assumption. This is called a hypothetical question. When deciding the weight, if any, to give to an expert witness's testimony, if a fact assumed in a hypothetical question has not been proved by the evidence, you should consider the extent to which the falsely assumed fact affects the value of the opinion.



PRELIMINARY INSTRUCTION NO. 11 - STIPULATED FACTS

The parties may agree to certain facts and reduce them to an oral or written agreement or stipulation. During the trial, the court or an attorney for a party may read to you all or a part of such an agreement or stipulation. You should treat stipulated facts as having been proved.

The parties have stipulated to the following facts:

A. The ShoreLand'r Boat Trailer, Series 700KY owned by Matthew Colnon was manufactured by Midwest Industries, Inc. in April of 1994.

B. Matthew Colnon purchased the ShoreLand'r trailer together with a Yamaha WaveRunner III water recreational vehicle on July 9, 1994, from Windjammer Marina, Ogden, Michigan.

C. Windjammer Marina is an authorized dealer of Midwest Industries, Inc.

D. The injury to Matthew Colnon's right foot occurred sometime before 4:15 p.m. on July 20, 1996, in Harbor Springs, Michigan, while he was in the process of loading his Yamaha WaveRunner III onto his ShoreLand'r trailer at the Ford Park Pier.



PRELIMINARY INSTRUCTION NO. 12 - ADMISSIONS

A party may have served on another party a written "request for admission," requesting the other party to admit that certain facts are true. You should treat all facts admitted under this procedure as having been proved.

You also may hear evidence of statements called "admissions," which are statements made by a party before this trial while not under oath. If you find such a statement was made, you may regard it as if it had been made under oath here in court.



PRELIMINARY INSTRUCTION NO. 13 - INTERROGATORIES

During this trial, you may hear the word "interrogatory." An interrogatory is a written question one party can send to the other which the other party must then answer under oath and in writing. Consider interrogatories and the answers to them as if they were questions asked and answered under oath here in court.



PRELIMINARY INSTRUCTION NO. 14 - DEPOSITIONS

A deposition is testimony taken under oath before the trial and preserved in writing or on videotape. Testimony from a deposition may be read into evidence or replayed on videotape. Consider that testimony as if it had been given under oath here in court.



PRELIMINARY INSTRUCTION NO. 15 - OBJECTIONS

During the trial, the lawyers may make objections or motions. You should not hold it against the lawyers or their clients when they do this. A lawyer has a duty to object when a party offers testimony or other evidence the lawyer believes is not properly admissible. If I sustain an objection to a question, you should not pay any attention to the question itself. Also, when I rule or comment on an objection or motion, you should not think I have any opinions on the case favoring one side or the other.



PRELIMINARY INSTRUCTION NO. 16 - BENCH CONFERENCES

During the trial, it may be necessary for me to talk with the lawyers out of your hearing, either by having a bench conference here, while you are present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, and to avoid wasting your time. We will do what we can to keep the number and length of these conferences to a minimum.



PRELIMINARY INSTRUCTION NO. 17 - NOTE TAKING

You may take notes during the trial, if you wish. The Court Security Officer will give you note pads and pens for this purpose after the attorneys' opening statements.

If you choose to take notes, be sure that it does not interfere with your ability to listen to the evidence. It is the responsibility of all jurors to listen carefully to the evidence. You cannot give this responsibility to another juror who may be taking notes. We depend on all members of the jury to remember and consider the evidence.

A juror's notes are not evidence. They are no more reliable than the memory of a juror who chooses to listen carefully to the evidence without taking notes.

Do not discuss your notes with anyone until you begin your deliberations, and do not take your notes with you when you leave the courtroom. Leave them on your chair in the courtroom, and the Court Security Officer will safeguard them for you. Your notes will remain confidential throughout the trial, and will be destroyed when the trial is over.

You will notice that we have an official court reporter making a record of the trial. However, we will not have a typewritten transcript of the record available for your use in reaching your decision.



PRELIMINARY INSTRUCTION NO. 18 - ADMONITION

You will not be required to remain together while court is in recess. However, to ensure fairness, you must obey the following rules:

First, do not talk among yourselves about this case until you go to the jury room at the end of the case to decide on your verdict.

Second, do not talk with anyone else about the case until the trial is over and your verdict has been accepted by me. If you overhear someone talking about the case or if someone tries to talk to you about the case, report it to me immediately.

Third, during the trial, you should not talk with any of the lawyers, parties, or witnesses about anything - you should not even pass the time of day with them. This is because it is important not only that you do justice in this case, but also that you give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side - even if it is simply to pass the time of day - a suspicion about your fairness might arise. When a lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the like, they are not being discourteous; they are only following the rules. They are not supposed to talk with you.

Fourth, do not read any news stories or articles or listen to any radio or television reports about the case.

Fifth, do not do any research or make any investigation into the case on your own.

Sixth, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

DATED this 31st day of July, 2000.



_____________________________

PAUL A. ZOSS

MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT

Colnon-Court's Final Instructions

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





MATTHEW L. COLNON and CLARE H. COLNON,
Plaintiffs,

No. C98-4062-PAZ

vs.

FINAL INSTRUCTIONS

TO THE JURY

MIDWEST INDUSTRIES, INC.,
Defendant.

____________________

TABLE OF CONTENTS

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - FAULT DEFINED

NO. 3 - NEGLIGENCE

NO. 4 - PROXIMATE CAUSE

NO. 5 - STRICT LIABILITY

NO. 6 - LOSS OF PARENTAL CONSORTIUM

NO. 7 - LOSS OF SPOUSAL CONSORTIUM

NO. 8 - UNREASONABLE FAILURE TO AVOID AN INJURY

NO. 9 - COMPARATIVE FAULT

NO. 10 - MATTHEW COLNON - DAMAGES

NO. 11 - PARENTAL CONSORTIUM - DAMAGES

NO. 12 - CLARE H. COLNON - DAMAGES

NO. 13 - CALCULATING DAMAGES

NO. 14 - DELIBERATIONS





FINAL INSTRUCTION NO. 1 - INTRODUCTION

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

The instructions I am about to give you, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. These final instructions are no more important than the preliminary ones, nor are written instructions more important than oral ones. All instructions, whenever given and whether in writing or not, must be followed.

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



FINAL INSTRUCTION NO. 2 - FAULT DEFINED

"Fault" means one or more acts or omissions towards a person or property that are in any measure negligent or that subject a party to liability under the legal doctrine of "strict tort liability." "Negligence" and "strict liability" are defined for you in Final Instructions Nos. 3 and 5. Matthew and Clare Colnon claim Midwest Industries was at fault due to its negligence and because of strict liability. Midwest Industries claims Matthew Colnon was at fault because of his negligence.

The mere fact that an accident occurred or someone was injured does not mean anyone was at fault or negligent or that anyone is subject to strict liability.



FINAL INSTRUCTION NO. 3 - NEGLIGENCE

"Negligence" means the failure to use ordinary care. Ordinary care is the care that a reasonably careful person would use under similar circumstances. A party fails to use ordinary care, and therefore is negligent, if the party does something a reasonably careful person would not do under similar circumstances, or fails to do something a reasonably careful person would do under similar circumstances.

Matthew Colnon claims Midwest Industries was negligent. For Matthew Colnon to recover on his claim of negligence, all of the following three propositions must be proved by the greater weight of the evidence:

First, Midwest Industries was at fault in one or more of the following four ways:

a. Improperly designing the trailer, and especially, improperly locating the license plate;

b. Failing to use a safe, alternate design for the location of the license plate on the trailer;

c. Failing to enclose or otherwise eliminate sharp surfaces on the trailer that were likely to cause injuries; or

d. Failing to warn persons, such as Matthew Colnon, of the dangers associated with the location of the license plate on the trailer when Midwest Industries knew or should have known of those dangers.

A manufacturer of a product has a duty to warn the user of the product if:



With respect to its duty to warn, a manufacturer is charged with superior knowledge of any reasonably foreseeable danger arising from the reasonable use of its products, and has a duty to exercise reasonable care to inform users of its products of such dangers.

Second, Midwest Industries' fault was a proximate cause of Matthew Colnon's damages.

Third, the amount of damages, if any.

If any of these propositions has not been proved, then Matthew Colnon is not entitled to damages on his negligence claim. If all of these propositions have been proved, then you are to consider Midwest Industries' claim that Matthew Colnon unreasonably failed to avoid an injury, as explained in Final Instruction No. 8.



FINAL INSTRUCTION NO. 4 - PROXIMATE CAUSE

The conduct of a party is a proximate cause of damage when it is a substantial factor in producing the damage and when the damage would not have happened except for the conduct. A factor is a "substantial factor" in producing damage when it has such an effect in producing the damage that a reasonable person would regard it as a cause. There can be more than one proximate cause of an injury or damage.



FINAL INSTRUCTION NO. 5 - STRICT LIABILITY

In addition to his negligence claim, Matthew Colnon claims Midwest Industries is liable under a theory called strict tort liability. For Matthew Colnon to recover on his claim of strict liability, all of the following eight propositions must be proved by the greater weight of the evidence:

First, Midwest Industries designed and manufactured the jet ski trailer.

Second, Midwest Industries was engaged in the business of designing and manufacturing jet ski trailers.

Third, the jet ski trailer was in a defective condition at the time it left Midwest Industries' control in one or both of the following two ways:

a. Midwest Industries did not employ a safe design for the location of the license plate on the trailer; or

b. Midwest Industries did not enclose or otherwise eliminate sharp surfaces that were likely to cause injuries.

A product is defective if does not perform reasonably, adequately, and safely:

(1) In the normal or specified use intended by Midwest Industries; or

(2) When it is used in a reasonably foreseeable manner.

Fourth, the defective condition was unreasonably dangerous to Matthew Colnon. A defective product is unreasonably dangerous if:

a. The danger is greater than an ordinary consumer with knowledge of the product's characteristics would expect it to be;

b. The danger outweighs the utility of the product; or

c. The benefits of the design do not outweigh the risks.

In deciding this issue, you may consider:

a. The seriousness of the harm posed by the design.

b. The likelihood that such danger would occur.

c. The mechanical feasibility of a safer alternate design.

d. The cost of an improved design.

e. The adverse consequences to the product and the user that would result from an alternate design.

f. Any other facts or circumstances shown by evidence having a bearing on the issue.

Fifth, Matthew Colnon used the jet ski trailer in the intended manner or in a manner reasonably foreseeable by Midwest Industries.

Sixth, the jet ski trailer was expected to and did reach Matthew Colnon without a substantial change in its condition.

The requirement that a product be free from defects at the time it left Midwest Industries' control includes the requirement that there be precautions to keep the product free from defects for a normal length of time when handled in a normal manner. However, the seller is not responsible if the product is delivered free from defects and later mishandling, changes, or other causes beyond Midwest Industries' control make the product defective, unless mishandling or other cause beyond Midwest Industries' control was reasonably foreseeable by Midwest Industries.

Seventh, the defect was a proximate cause of Matthew Colnon's damages.

Eighth, the amount of damages, if any.

If any of these propositions has not been proved, then Matthew Colnon is not entitled to damages on his strict liability claim. If all of these propositions have been proved, then you are to consider Midwest Industries' claim that Matthew Colnon unreasonably failed to avoid an injury, as explained in Final Instruction No. 8.



FINAL INSTRUCTION NO. 6 - LOSS OF PARENTAL CONSORTIUM

Clare Colnon brings a claim on behalf of each of the Colnons' three minor children for loss of parental consortium. "Parental consortium" is the companionship, comfort, guidance, affection, and aid that a parent gives to a child as a part of their parent-child relationship. It also includes the general usefulness, industry, and attention of the parent within the family. It does not include any loss of financial support from the injured parent, or mental anguish caused by the parent's injury.

For Clare Colnon to establish her claim of loss of parental consortium, Matthew Colnon first must prevail on one or more of his claims against Midwest Industries, and then each of the following two propositions must be proved by the greater weight of the evidence:

1. One or more of the Colnons' children has been deprived of parental consortium with Matthew Colnon; and

2. The injuries Matthew Colnon suffered as a result of Midwest Industries' actions were a proximate cause of the loss of parental consortium.

If Matthew Conlon does not prevail on one or more of his claims against Midwest Industries, or if either of these two propositions has not been proved, then Clare Colnon is not entitled to damages on her claim for loss of parental consortium. If Matthew Colnon prevails on one or more of his claims against Midwest Industries, and if both of these two propositions have been proved, then you are to consider Midwest Industries' claim that Matthew Colnon unreasonably failed to avoid an injury, as explained in Final Instruction No. 8.



FINAL INSTRUCTION NO. 7 - LOSS OF SPOUSAL CONSORTIUM

Clare Colnon also brings a claim for loss of spousal consortium. "Spousal consortium" is the fellowship of a husband and wife, including the company, cooperation, affection, and aid they give to each other as a part of their marital relationship. It also includes the general usefulness, industry, and attention of a spouse within the home and family. It does not include any loss of financial support from the injured spouse, or mental anguish caused by the spouse's injury.

To establish the claim of loss of spousal consortium, Matthew Colnon first must prevail on one or more of his claims against Midwest Industries, and then each of the following two propositions must be proved by the greater weight of the evidence:

1. Clare Colnon has been deprived of consortium with Matthew Colnon; and

2. The injuries Matthew Colnon suffered as a result of Midwest Industries' actions were a proximate cause of Clare Colnon's loss.

If Matthew Conlon does not prevail on one or more of his claims against Midwest Industries, or if either of these two propositions has not been proved, then Clare Colnon is not entitled to damages on her claim for loss of spousal consortium. If Matthew Colnon prevails on one or more of his claims against Midwest Industries, and if both of these two propositions have been proved, then you are to consider Midwest Industries' claim that Matthew Colnon unreasonably failed to avoid an injury, as explained in Final Instruction No. 8.



FINAL INSTRUCTION NO. 8 - UNREASONABLE FAILURE TO AVOID AN INJURY

Midwest Industries claims Matthew Colnon was negligent because his actions at the time of the accident constituted an unreasonable failure to avoid an injury. For Midwest Industries to establish this defense, both of the following two propositions must be proved by the greater weight of the evidence:

First, Matthew Colnon was at fault in one or more of the two following ways:

a. Failing to keep a proper lookout.

"Proper lookout" is the lookout a reasonable person would keep in the same or similar situation. It means more than looking and seeing. It includes being aware of obstacles and potential harm around the person, and what the person saw or should have seen.

b. Failing to use reasonable care in dismounting the jet ski in one or more of the following ways:

(1) In jumping off the jet ski instead of carefully stepping off the jet ski into the water;

(2) In failing to wear footwear while using the jet ski.

Parties are required to exercise reasonable care for their own safety. This means that if, in the exercise of ordinary care under the circumstances, a party reasonably could have taken some particular action to avoid an injury, then the party is under a duty to take such action.

Second, Matthew Colnon's fault was a proximate cause of the his damages.

If either of these propositions has not been proved, then Midwest Industries has not proved this defense of comparative fault. If both of these propositions have been proved, then you will assign a percentage of fault to Matthew Colnon in answering the special verdicts.



FINAL INSTRUCTION NO. 9 - COMPARATIVE FAULT

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

After you have compared the conduct of all parties, if you find Matthew Colnon was at fault and his fault was more than 50% of the total fault, the Colnons cannot recover damages. However, if you find Matthew Colnon was at fault and his fault was 50% or less of the total fault, then I will reduce the total damages awarded to each plaintiff by the percentage of Matthew Colnon's fault.



FINAL INSTRUCTION NO. 10 - MATTHEW COLNON - DAMAGES

If you find in favor of Matthew Colnon, then you must award him the amount you find by the greater weight of the evidence will fairly and justly compensate him for any damages he sustained as a proximate result of Midwest Industries' acts or omissions. Matthew Colnon's claim for damages includes eight distinct types of damages, which you must consider separately.

First, you must determine the reasonable value of necessary hospital charges, doctor charges, prescriptions, and other medical services provided to Matthew Colnon in the past.

Second, you must determine the present value of reasonable and necessary hospital charges, doctor charges, prescriptions, and other medical services that he will incur in the future.

Third, you must determine the reasonable value of lost wages and other employment income from the date of the injury to the present time.

Fourth, you must determine the present value of lost future earning capacity. Loss of future earning capacity is the reduction in the ability to work and earn money generally, rather than in a particular job.

Fifth, you must determine the reasonable value of loss of function of mind or body, or both, from the date of injury to the present time. Loss of function of mind or body is the inability of a particular part of the mind or body to function in a normal manner.

Sixth, you must determine the present value of future loss of function of mind or body, or both.

Seventh, you must determine the amount of damages for any physical and mental pain suffered from the date of the injury to the present time.

Physical pain and suffering may include, but is not limited to, bodily suffering or discomfort.

Mental pain and suffering may include, but is not limited to, mental anguish or loss of enjoyment of life.

Eighth, you must determine the present value of damages for any physical and mental pain he will sustain in the future.

The amounts, if any, you find for each of the above items will be used to answer the special verdicts.



FINAL INSTRUCTION NO. 11 - PARENTAL CONSORTIUM - DAMAGES

If you find Clare Colnon, as parent and next friend of the Colnon children, is entitled to recover parental consortium damages on behalf of any of the Colnon children, then for each such child you must award Clare Colnon, on behalf of that child, the amount you find by the greater weight of the evidence will fairly and justly compensate the child for the loss of Matthew Colnon's parental consortium. In doing so, for each such child you shall determine the following:



A child is entitled to recover only those parental consortium damages you find were sustained as a proximate result of Midwest Industries' acts or omissions. A child is not entitled to recover damages for loss of parental consortium unless the injury to the parent has caused a significant disruption or diminution of the parent-child relationship. Damages for loss of parental consortium are limited in time to the shorter of the child's or the parent's normal life expectancy.

In determining the value for loss of parental consortium, you may consider:



The amount you assess for any item of damage must not exceed the amount caused by Midwest Industries as proved by the evidence.



FINAL INSTRUCTION NO. 12 - CLARE H. COLNON - DAMAGES

If you find Clare H. Colnon is entitled to recover damages for loss of spousal consortium, then you must award her the amount you find by the greater weight of the evidence will fairly and justly compensate her for any spousal consortium damages she sustained as a proximate result of Midwest Industries' acts or omissions. In doing so, you shall determine the following:

1. The reasonable value of the loss to Clare Colnon of Matthew Colnon's spousal consortium from the date of his injury until the present time.

2. The present value of the loss to Clare Colnon of Matthew Colnon's spousal consortium in the future.

Damages for loss of spousal consortium are limited in time to the shorter of the spouses' normal life expectancies.

In determining the value for loss of spousal consortium, you may consider:

The amount you assess for any item of damage must not exceed the amount caused by Midwest Industries as proved by the evidence.



FINAL INSTRUCTION NO. 13 - CALCULATING DAMAGES

You do not have to determine damages by any exact or mathematical standard, but you should not use guesswork or speculation. You should simply use your sound judgment based upon an impartial consideration of the evidence. Also, you must not act arbitrarily or out of sympathy or prejudice toward a party.

Matthew Colnon had a duty under the law to "mitigate" damages - that is, to exercise reasonable diligence under the circumstances to minimize his damages. If you find by the greater weight of the evidence that he failed to seek out or take advantage of an opportunity that was reasonably available to him to minimize his damages, then you must reduce his damages by the amount he reasonably could have avoided if he had sought out or taken advantage of such an opportunity.

Future damages must be reduced to present value. "Present value" is a sum of money paid now which, together with interest earned at a reasonable rate of return, would compensate a party for future economic losses.

A party cannot recover duplicate damages. Do not allow amounts awarded under one item of damage to be included in any amount awarded under another item of damage. Similarly, damages awarded to one party should not be included in any amount awarded to another party.

In arriving at an item of damage, you cannot establish a figure by taking down the estimate of each juror as to that item of damage and agreeing in advance that the average of those estimates will be your award of damage for that item.

Though I have instructed you on the proper measure of damages, you should not consider that as an indication of my view as to which party is entitled to your verdict in this case. I have instructed you as to the measure of damages only for your guidance in case you find that a plaintiff is entitled to damages.



FINAL INSTRUCTION NO. 14 - DELIBERATIONS

In conducting your deliberations and returning your verdict, you must follow these rules:

First, when you go to the jury room, you must select a foreperson to preside over your discussions and to 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 your individual judgment. Do not be afraid to change your opinion 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. 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 their views. Remember at all times, you are not partisans, but judges - judges of the facts. Your only interest in this case is to seek the truth from the evidence.

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. If you are brought into open court, you should not tell anyone - including me - how your vote stands numerically, unless I specifically ask you for this information.

Fourth, your verdict must be based solely on the evidence and on the law 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.

Fifth, your verdict must be unanimous.

Finally, I am giving you the verdict form. A verdict form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room, and when each of you has agreed on the verdict, your foreperson is to fill in the form and date it, and all jurors are to sign it. The foreperson then should advise the Court Security Officer that you are ready to return to the courtroom.

DATED this ______ day of August, 2000.



_____________________________

PAUL A. ZOSS

MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT