WPI 165.03.02 Duty to Disclose—Mixed Issues of Fact and Law—Special Verdict Form

Use WPI 165.03.01 (Duty to Disclose—Mixed Issues of Fact and Law) with this special verdict form. This verdict form and the instruction apply only in the unusual circumstances discussed in the Note on Use and Comment to WPI 165.03.01 (Duty to Disclose—Mixed Issues of Fact and Law). The claims in the case will determine how practitioners tailor further directions to the jury about how to proceed.

When plaintiff's burden of proof is something other than a preponderance of the evidence, practitioners should specify the burden in the special verdict form. In this special verdict form the jury is asked whether the plaintiff has proven the necessary facts by clear, cogent, and convincing evidence.

The questions to include in this verdict form will depend on the factual dispute involved in the particular case. Practitioners will need to insure that the answer to the factual question posed to the jury is dispositive of the duty issue. In other words, the question needs to be phrased so that if the fact has been proved, a duty exists, whereas if the fact is not proved there is no duty. The special verdict form can then be tailored to guide the jurors as to what further questions, if any, follow from the resolution of the duty issue.

For example, in a case involving an alleged relationship of trust and confidence (see WPI 165.04 (Negligent Misrepresentation—Failure To Disclose Information—Fiduciary Relationship—Relationship of Trust And Confidence—Definitions)), the following question can be used if a “yes” answer would mean that the defendant had a duty to disclose and a “no” answer would mean that no duty existed:

A similar approach for addressing mixed questions of law and fact relating to the existence of a duty is found in the chapter on legal malpractice. See WPI 107.02 (Duty to Non-Client) and WPI 107.03 (Duty to Non-Client—Special Verdict Form).