AMI 104 Jury—Personal Observations and Experiences

Do not use this instruction when the bracketed paragraph of AMI 1501 or 1512 is given.

The Notes on Use to AMI 1501 and 1512 have been modified to clarify the distinction between expert opinions on issues of professional negligence and matters that may be considered within common knowledge based on Duke v. Lovell, 262 Ark. 290, 556 S.W.2d 416 (1977).

In a medical malpractice case, when the second paragraph of AMI 1501 was not given, it was error not to give this instruction “for it assures the jury that they may use common sense in considering whether the defendant was negligent.” Haney v. DeSandre, 286 Ark. 258, 260, 692 S.W.2d 214, 215 (1985).

Arkansas cases have long acknowledged the role a juror's common knowledge and experience play in determining the outcome of a trial. See Rogers v. Stillman, 223 Ark. 779, 781, 268 S.W.2d 614, 616 (1954) (jury's “common sense and experience in the everyday affairs of life” could be used in determining extent of loss caused by cattle); Kroger Grocery & Baking Co. v. Woods, 205 Ark. 131, 167 S.W.2d 869 (1943) (it is within common knowledge of jury that mold is caused by dampness and that mold is unfit for consumption). But see Taylor v. Riddell, 320 Ark. 394, 896 S.W.2d 891 (1995) (within jury's comprehension to consider a surgeon's failure to sterilize instruments or to remove a sponge before closing an incision but expert testimony was required to aid the jury when considering a vesicovaginal fistula).