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3.5-7 Apportionment - One Defendant
(With Special Defense of Comparative Negligence) and One
Non-Defendant Apportionment Respondent
Revised to January 1, 2008
Note:
This charge is designed to be used when there is one plaintiff and one defendant
who has filed both a special defense of comparative negligence and a notice of
apportionment concerning a respondent who is not a party in the case. It is
designed to be given immediately following Comparative
Negligence General, Instruction 3.5-1.
In addition to the defendant's claim
that the plaintiff contributed to (her/his) own injuries through (her/his) own
negligence, the defendant makes a claim regarding the negligence of another
person/driver,<insert name of apportionment respondent, hereafter "AR">,
who has not been sued in this case. Because the plaintiff has not sued AR, AR
is not liable to pay money damages to the plaintiff, but the conduct of AR has
been put in issue by the defendant. The defendant claims that AR was also
negligent and that, if the plaintiff suffered injury, it was AR's negligence
that legally caused injury to the plaintiff. Here are the defendant's claims
concerning AR's conduct:
<Charge on the specifications of
negligence against AR.>
I have previously explained to you
how to analyze claims of negligence and causation. The same analysis applies
with respect to the defendant's claim against AR; and, as with the defendant's
claim of comparative negligence against the plaintiff, the defendant bears the
burden of proof.
As to this claim that AR's negligence
was a cause of injury to the plaintiff, unless you first determine that there
will be a verdict in favor of the plaintiff, you need not evaluate the claim of
the defendant about AR's conduct. That is because a finding that AR was
negligent and that AR's negligence caused injury to the plaintiff serves only to
reduce any damages to the plaintiff from the defendant and not to relieve the
defendant of liability.
If you find that the plaintiff has
proved the claims against the defendant so that there will be a verdict in
plaintiff's favor and that the defendant has proved one or more of (his/her)
claims against the plaintiff or AR, or as to both the plaintiff and AR, you will
have to apportion the percentage of negligence attributable to the defendant and
that attributable to the plaintiff or to AR, or to both the plaintiff and AR,
with the total amount of negligence equaling 100%.
As I explained in my comparative
negligence instruction, you must then reduce the amount of damages to be awarded
to the plaintiff from the defendant by any percentage not attributable to the
defendant but rather attributable to the plaintiff or to AR or both. I will
give you two examples to illustrate these concepts.
EXAMPLE #1 A finding that
both the defendant and AR were at fault
For example, assume you find that the
plaintiff has proved negligence and causation against the defendant and that the
defendant has proved NO negligence and causation against the plaintiff that
is, no comparative fault on the plaintiff. You must still determine if the
defendant has proved negligence and causation against AR. If so, you determine
what percentage of negligence is attributable to the defendant and what
percentage is attributable to AR. If the defendant has proved that AR's
negligence caused injury to the plaintiff and that AR's negligence constituted
25% of all proven negligence that caused plaintiff's injury, you would then
reduce your award to the plaintiff by that percentage 25% that was
attributable to AR. If you determined that the plaintiff was entitled to
damages in the amount of $100, then you would reduce the damages by 25% and your
award to the plaintiff against the defendant would be $75. If you were to find
that all of the plaintiff's injuries 100% were the fault of AR, then that
would mean you have found that the defendant is not liable at all and your
verdict must be in favor of the defendant.
EXAMPLE #2 A finding that
the defendant and AR and the plaintiff were all at fault
Assume that you find another set of
facts. Assume you find that the defendant and AR and the plaintiff were all
negligent to some degree in causing the plaintiff's injury. The rule still
remains that if the plaintiff is more than 50% negligent, the plaintiff cannot
recover any damages from the defendant regardless of the relative fault of AR.
Therefore, the analysis I am now describing only comes into play if you
determine that the plaintiff is 50% or less at fault and that AR's negligence
also caused injury to the plaintiff. You determine what the percentage of
negligence is for each, and you "apportion" damages against the defendant by
reducing the damages to which the plaintiff is entitled by the percentages that
are not attributable to the defendant.
Assume, for example, that the
defendant has proved that the plaintiff's negligence was 25% and that AR's
negligence was 50% of the negligence that caused injury to the plaintiff. If
your finding of damages were $100, you subtract $25 for the plaintiff's own
negligence and subtract $50 for AR's negligence, and the plaintiff is entitled
to an award of damages of $25 from the defendant. The verdict form I give to
you will provide a guide for you with spaces to fill in the blanks so that you
can report your findings.
Notes
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