Appendix E. Illustrative Sets of Instruction

Section 1: Introduction

Section 2: Illustrative Set of Instructions Involving Single Pedestrian and Motor Vehicle (No Affirmative Defense/ No “Empty Chairs”)

Section 3: Illustrative Set of Instructions Involving Right Angle Automobile Collision at Uncontrolled Intersection (Single Plaintiff and Corporate Defendant With Contributory Negligence Defense)

Section 4: Illustrative Sequence of Instructions for Workers' Compensation Cases

Hard-pressed trial courts and attorneys frequently follow the path of least resistance when faced with the necessity of instructing a jury on the issues of the case. It is not uncommon for the important introductory instruction to be a series of quotations from the pleadings. Although it is not error to follow this procedure, see Murray v. Mossman, 52 Wn.2d 885, 329 P.2d 1089 (1958), and while the pressure of trial may make the apparent short-cut attractive, it should be avoided.

The instruction on issues is important. A juror's ability to understand and to properly apply all other instructions stems from an understanding of the issues. While it takes less time and thought to quote at length from the pleadings, the result is seldom conducive to the brevity and clarity necessary for a jury to understand the essential issues of the case. Thus, both court and counsel should endeavor to draft an instruction that is as concise and meaningful as possible by limiting it to the absolute essentials as suggested in WPI Chapter 20, Issues in the Case. The use of WPI pattern instructions is preferred, but not mandatory. Sutton v. Shufelberger, 31 Wn.App. 579, 643 P.2d 920 (1982); see also CR 51(d)(1).

A party is entitled to have his or her theory of the case presented to the jury by proper instructions if there is substantial evidence to support such instructions. Stiley v. Block, 130 Wn.2d 486, 925 P.2d 194 (1996). The instructions on a party's theory of the case are sufficient if they afford counsel ample opportunity to argue the theory of the case to the jury. Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 840 P.2d 860 (1992). The court may properly refuse to give a proposed instruction when it is adequately covered in other instructions. Havens v. C & D Plastics, Inc., 124 Wn.2d 158, 876 P.2d 435 (1994); Herring v. Dep't of Soc. Hlth. Svcs., 81 Wn.App. 1, 914 P.2d 67 (1996).

It is within the trial court's discretion to determine how many instructions are necessary to present fairly each litigant's theory of the case. Young v. Key Pharmaceuticals, Inc., 130 Wn.2d 160, 922 P.2d 59 (1996); Havens v. C & D Plastics, Inc., 124 Wn.2d 158, 876 P.2d 435 (1994). The trial court has considerable discretion in wording instructions. If they are readily understandable and not misleading to the ordinary mind, and if counsel may satisfactorily argue his or her theory to the jury, the instructions are sufficient. Young v. Key Pharmaceuticals, Inc., 130 Wn.2d 160; Havens v. C & D Plastics, Inc., 124 Wn.2d 158.

The trial court should refuse to give proposed instructions that are argumentative or slanted. Watson v. Hockett, 107 Wn.2d 158, 727 P.2d 669 (1986). The trial court has no obligation to buttress jury arguments with supporting instructions. Short v. Hoge, 58 Wn.2d 50, 360 P.2d 565 (1961). A trial judge may exercise discretion in determining whether words used in instructions require definition. State v. Guloy, 104 Wn.2d 412, 705 P.2d 1182 (1985); State v. Schimmelpfennig, 92 Wn.2d 95, 594 P.2d 442 (1979).

An attorney who desires to have an instruction given to the jury or to have an instruction adapted to a particular view or to meet a situation that the attorney wants to have covered, has the burden of submitting it to the court in writing. CR 51(c) and (d); Cole v. McGhie, 59 Wn.2d 436, 361 P.2d 938 (1961). It is not error for the court to refuse to give requested instruction if it is not in writing. Cole v. McGhie, 59 Wn.2d 436; CR 51(e).

Proposed instructions that incorrectly state the law are properly refused. Kastanis v. Educational Employees Credit Union, 122 Wn.2d 483, 859 P.2d 26 (1993), 865 P.2d 507 (1994). Instructions must be considered together, as a whole, when determining whether they properly state the law. Cox v. Spangler, 141 Wn.2d 431, 5 P.3d 1265 (2000); Oregon Mut. Ins. Co. v. Barton, 109 Wn.App. 405, 36 P.3d 1065 (2001). It is not incumbent upon the trial court to rewrite an incorrect statement of the law contained in a requested instruction. Harris v. Groth, 99 Wn.2d 438, 663 P.2d 113 (1983); Krogh v. Pemble, 50 Wn.2d 250, 310 P.2d 1069 (1957). Misleading instructions may likewise be rejected. McCluskey v. Handorff-Sherman, 68 Wn.App. 96, 841 P.2d 1300 (1992).

A trial court may properly refuse to give a proposed instruction if there is no evidence to support it. Christensen v. Munsen, 123 Wn.2d 234, 867 P.2d 626 (1994); Stiley v. Block, 130 Wn.2d 486, 925 P.2d 194 (1996). Care must be used to insure that the jury is instructed on a theory supported by the evidence, Lofgren v. Western Washington Corp. of Seventh Day Adventists, 65 Wn.2d 144, 396 P.2d 139 (1964), and not only by the pleadings.

A verdict may be reversed and a new trial granted only if the instructional error is prejudicial. Furfaro v. Seattle, 144 Wn.2d 363, 27 P.3d 1160 (2001); Stiley v. Block, 130 Wn.2d 486, 925 P.2d 194 (1996). The instructional error is prejudicial if the reviewing court has substantial doubt that the jury was fairly guided in its deliberations, Furfaro v. Seattle, 144 Wn.2d 363, or if the trial outcome would have been different without the error. Stiley v. Block, 130 Wn.2d 486; Caruso v. Local Union 690, 107 Wn.2d 524, 730 P.2d 1299 (1987).

Prior to submitting the case to the jury, the judge is required to give all counsel copies of the proposed instructions. CR 51(f). This is to afford counsel a timely opportunity to call the court's attention to any mistakes. Burlingham-Meeker Co. v. Thomas, 58 Wn.2d 79, 360 P.2d 1033 (1961).

Counsel's objections to the proposed instruction must indicate the specific points objected to. CR 51(f); Falk v. Keene Corp., 113 Wn.2d 645, 782 P.2d 974 (1989). Mere general objections are insufficient. Couch v. Mine Safety Appliances, 107 Wn.2d 232, 728 P.2d 585 (1986); Burlingham-Meeker Co. v. Thomas, 58 Wn.2d 79. The purpose of requiring that exceptions be sufficiently definite is to apprise the trial judge of the points of law or questions of fact in dispute so that mistakes may be corrected. Falk v. Keene Corp., 113 Wn.2d 645.

An instruction to which no proper objection is taken becomes the law of the case. Caruso v. Local Union 690, 107 Wn.2d 524, 730 P.2d 1299 (1987); Wright v. City of Kennewick, 62 Wn.2d 163, 381 P.2d 620 (1963).

Finally, there has been a tendency for some lawyers to propose lengthy, involved, and argumentative instructions although the needs of the jury are best served when the number and length of instructions are held to a minimum. In such cases the trial judge should take the initiative in selecting the instructions which should be given. This book will make it practicable, in most cases, for the judge to undertake the task of providing the jury with fewer instructions and a fairer statement of the law applicable to the case.

Following are a group of hypothetical cases with a suggested set of instructions for each case. Also included is a recommended sequence for instructions in a workers' compensation case.

Typical factual situation: The plaintiff was injured while crossing a street from east to west in the north crosswalk at a city street intersection. The crosswalk was marked. Plaintiff was struck by an automobile being driven in a northerly direction by the defendant. Plaintiff's leg was broken, and as a result of this injury, plaintiff was hospitalized for two weeks and missed two weeks' work without pay. There were no permanent injuries. The defendant denies liability and disputes the extent of plaintiff's injuries.

A checklist of suggested instructions in recommended sequences is as follows:

The text of the suggested instructions listed in their recommended sequence is as follows:

The plaintiff claims that the defendant was negligent in one or more of the following respects:

The plaintiff claims that one or more of these acts was a proximate cause of injuries and damage to the plaintiff. The defendant denies these claims. The defendant further denies the nature and extent of the claimed injuries and damage.

The foregoing is merely a summary of the claims of the parties. You are not to consider the summary as proof of the matters claimed and you are to consider only those matters that are established by the evidence. These claims have been outlined solely to aid you in understanding the issues.

The plaintiff has the burden of proving each of the following propositions:

If you find from your consideration of all the evidence that each of these propositions has been proved, your verdict should be for the plaintiff. On the other hand, if any of these propositions has not been proved, your verdict should be for the defendant.

When it is said that a party has the burden of proof on any proposition, or that any proposition must be proved by a preponderance of the evidence, or the expression “if you find” is used, it means that you must be persuaded, considering all the evidence in the case, that the proposition on which that party has the burden of proof is more probably true than not true.

The term “proximate cause” means a cause which in a direct sequence, unbroken by any new independent cause, produces the injury complained of and without which such injury would not have happened.

Negligence is the failure to exercise ordinary care. It is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do some act that a reasonably careful person would have done under the same or similar circumstances.

Ordinary care means the care a reasonably careful person would exercise under the same or similar circumstances.

It is the duty of every person using a public street or highway to exercise ordinary care to avoid placing others in danger and to exercise ordinary care to avoid a collision.

A statute provides:

This right of way, however, is not absolute but relative, and the duty to exercise ordinary care to avoid collisions rests upon both parties. The primary duty, however, rests upon the party not having the right of way.

The violation, if any, of a statute is not necessarily negligence, but may be considered by you as evidence in determining negligence.

It is the duty of the court to instruct you as to the measure of damages. By instructing you on damages the court does not mean to suggest for which party your verdict should be rendered.

If your verdict is for the plaintiff, then you must determine the amount of money that will reasonably and fairly compensate the plaintiff for such damages as you find were proximately caused by the negligence of the defendant.

You should consider the following past economic damages elements:

In addition you should consider the following noneconomic damages elements:

The burden of proving damages rests upon the plaintiff. It is for you to determine, based upon the evidence, whether any particular element has been proved by a preponderance of the evidence.

Your award must be based upon evidence and not upon speculation, guess, or conjecture.

The law has not furnished us with any fixed standards by which to measure noneconomic damages. With reference to these matters you must be governed by your own judgment, by the evidence in the case, and by these instructions.

Use WPI 1.08, filling in the blank with the WPI 1.09's directions for using verdict forms.

Use two verdict forms, A and B, as they appear in WPI 45.20.

Typical factual situation: The plaintiff, an employed woman, was driving her automobile in an easterly direction approaching an uncontrolled intersection. A delivery truck being driven by an employee of a corporation was proceeding in a southerly direction approaching the same intersection. The truck prominently displayed the corporation's sign. At the time of the collision, the truck was approximately one mile from its regular route having been forced to detour by road construction.

The plaintiff sued only the corporation contending that the driver was in the course of employment. The defendant corporation admits its driver's agency but denies that the driver was in the course of employment.

Plaintiff's automobile was a total loss. Plaintiff was severely injured and required medical attention and hospitalization. These will also be required in the future. The injuries will be permanent. Defendant denies the nature and extent of plaintiff's injuries.

A check list of suggested instructions in recommended sequence is as follows:

The text of the suggested instruction listed in their recommended sequence is as follows:

Use WPI 1.02.

The plaintiff claims that the defendant is liable because the defendant's driver was negligent in one or more of the following respects:

The plaintiff claims that one or more of these acts was a proximate cause of injuries and damages to plaintiff. The defendant denies these claims.

The plaintiff also claims that at the time of the collision the defendant's driver was defendant's agent acting within the scope of employment. The defendant admits that the driver was defendant's agent, but denies that the driver was acting within the scope of employment.

In addition, the defendant claims as an affirmative defense, that the plaintiff was contributorily negligent in one or more of the following respects:

The defendant claims that one or more of these acts was a proximate cause of plaintiff's own injuries and damage. The plaintiff denies these claims.

The defendant further denies the nature and extent of the claimed injuries and damages.

The foregoing is merely a summary of the claims of the parties. You are not to consider the summary as proof of the matters claimed and you are to consider only those matters that are established by the evidence. These claims have been outlined solely to aid you in understanding the issues.

The plaintiff has the burden of proving each of the following propositions:

The defendant has the burden of proving both of the following propositions:

When it is said that a party has the burden of proof on any proposition, or that any proposition must be proved by a preponderance of the evidence, or the expression “if you find” is used, it means that you must be persuaded, considering all the evidence in the case, that the proposition on which that party has the burden of proof is more probably true than not true.

The term “proximate cause” means a cause which in a direct sequence, unbroken by any new independent cause, produces the injury complained of and without which such injury would not have happened.

Negligence is the failure to exercise ordinary care. It is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do some act that a reasonably careful person would have done under the same or similar circumstances.

Ordinary care means the care a reasonably careful person would exercise under the same or similar circumstances.

Contributory negligence is negligence on the part of a person claiming injury or damage that is a proximate cause of the injury or damage complained of. If you find contributory negligence, you must determine the degree of negligence, expressed as a percentage, attributable to the person claiming injury or damage. The court will furnish you a special verdict form for this purpose. Your answers to the questions in the special verdict form will furnish the basis by which the court will apportion damages, if any.

It is the duty of every person using a public street or highway to exercise ordinary care to avoid placing others in danger and to exercise ordinary care to avoid a collision.

Every person using a public street or highway has the right to assume that other persons thereon will use ordinary care and will obey the rules of the road and has a right to proceed on such assumption until he or she knows, or in the exercise of ordinary care should know, to the contrary.

A statute provides that when two vehicles approach or enter an intersection from different streets or roadways at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. This right of way, however, is not absolute but relative, and the duty to exercise ordinary care to avoid collisions at intersections rests upon both drivers. The primary duty, however, rests upon the driver on the left, which duty must be performed with reasonable regard to the maintenance of a fair margin of safety at all times. The violation, if any, of a statute is not necessarily negligence, but may be considered by you as evidence in determining negligence.

An agent is a person employed under an express or implied agreement to perform services for another, called the principal, and who is subject to the principal's control or right to control the manner and means of performing the services.

Any act or omission of an agent within the scope of authority is the act or omission of the principal.

An agent is acting within the scope of authority if the agent is performing duties that were expressly or impliedly assigned to the agent by the principal or which were expressly or impliedly required by the contract of employment. Likewise, an agent is acting within the scope of authority if the agent is engaged in the furtherance of the principal's interests.

It is the duty of the court to instruct you as to the measure of damages. By instructing you on damages the court does not mean to suggest for which party your verdict should be rendered.

If your verdict is for the plaintiff, then you must first determine the amount of money required to reasonably and fairly compensate the plaintiff for the total amount of such damages as you find were proximately caused by the negligence of the defendant, apart from any consideration of contributory negligence.

You should consider the following past economic damages elements:

In addition you should consider the following future economic damages elements:

In addition you should consider the following noneconomic damages elements:

The burden of proving damages rests upon the plaintiff. It is for you to determine, based upon the evidence, whether any particular element has been proved by a preponderance of the evidence.

Your award must be based upon evidence and not upon speculation, guess, or conjecture.

The law has not furnished us with any fixed standards by which to measure noneconomic damages. With reference to these matters you must be governed by your own judgment, by the evidence in the case, and by these instructions.

According to mortality tables, the average expectancy of life of a woman aged years is years. This one factor is not controlling, but should be considered in connection with all the other evidence bearing on the same question, such as that pertaining to the health, habits, and activity of the person whose life expectancy is in question.

Use WPI 1.11.

Use WPI 45.22.

The special set of instructions for workers' compensation cases, Part XI, WPI Chapter 155, does not represent a comprehensive set of instructions. Nor should a practitioner expect to give all the instructions listed unless relevant in a given case, including such common instructions as WPI 155.13, Weighing Medical and Lay Testimony, or WPI 155.09, Extent of Disability or Aggravation—Basis of Medical Opinion. The practitioner should also consult other sections of the WPI for pertinent instructions of more general applicability.

In addition, the practitioner should recognize that the order and sequence of instructions may be a matter of preference, or may depend upon a particular case.

With these considerations in mind, below is a recommended sequence of pattern instructions for typical types of workers' compensation cases.