IN RE ADOPTION OF THE 2008 REVISIONS TO OKLA. JURY INSTR. CIV

Supreme Court of OklahomaOct 14, 2008
2008 OK 93 (Okla. 2008)

No. SCAD-2008-77

Decided: October 14, 2008


¶ 1 The Court has reviewed the report and recommendations of the Oklahoma Supreme Court Committee for Uniform Civil Jury Instructions for adoption of the proposed revisions. The Court accepts that report and finds the revisions should be ordered adopted.

¶ 2 It is therefore ordered, adjudged and decreed that the revisions shall be available for access via the internet from the Court website at http://www.oscn.net/ and provided to West Publishing Company for publication. The Administrative Office of the Courts is requested to duplicate and provide copies of the revisions to the judges of the District Courts and the District Courts of the State of Oklahoma are directed to implement the utilization of these revisions effective 30 days from the date of this order.

¶ 3 It is therefore ordered, adjudged and decreed the amendments to existing OUJI-C 2d instructions, and the adoption of new instructions, as set out in the following designated instructions and attached to this order, are adopted to wit:

1.4, 1.8A, 1.20, 1.21, 2.5, 4.14, 4.16, 5.5, 5.9, 6.16, 9.8A, 9.8B, 9.8C, Preface to Comparative Negligence Instructions, 12.12, 26.1, 26.2, 26.3, 26.4, 26.5, 27.1, 27.2

¶ 4 The Court also accepts and authorizes the updated committee comments to be published, together with the above styled revisions and each amended page in the revisions to be noted at the bottom as follows (2008 Supp.)

¶ 5 As it did so previously, the Court today declines to relinquish its constitutional or statutory authority to review the legal correctness of these authorized instructions when it is called upon to afford corrective relief in any adjudicative context.

These rules will take effect 30 days from the date this order is filed.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 9 TH DAY OF OCTOBER, 2008.

/s/Vice Chief Justice

ALL JUSTICES CONCUR

Chapter One General Instructions List Of Contents

Instruction No. 1.8A Closing Instruction-to Be Given after the Evidence ....................................... 10 Instruction No. 1.20 Statute of Limitations — Affirmative Defense ............................................. 11 Instruction No. 1.21 Statute of Limitations — Exception ....................................................... 11

Instruction No. 1.1 Explanation To Jury Panel Of Voir Dire ..................................................... 3 Instruction No. 1.2 Oath On Voir Dire .......................................................................... 3 Instruction No. 1.3 Oath Administered To Jury .................................................................. 4 Instruction No. 1.4 Jury's Duties — Cautionary Instructions — To Be Given After Jury Is Sworn ................ 5 Instruction No. 1.5 Jury's Duties — Cautionary Instructions — Bias On Account Of Race, Religion, Etc ......... 7 Instruction No. 1.6 Jury's Duties — Cautionary Instructions — Corporation As Party ........................................................................................... 8 Instruction No. 1.7 Cautionary Instruction — Note Taking By Jurors ............................................ 8 Instruction No. 1.8 Jury's Duties — Introduction To Instructions — To Be Given After The Evidence ............. 9 Instruction No. 1.9 Jury's Duties — To Be Given Prior to Deliberation ........................................ 10 Instruction No. 1.10 Note Taking By Jurors — To Be Given Prior to Deliberation .................................................................................................. 11 Instruction No. 1.11 Mandatory Instruction Upon Discharge ..................................................... 11

OUJI No. 1.4 JURY'S DUTIES — CAUTIONARY INSTRUCTIONS — TO BE GIVEN AFTER JURY IS SWORN

Members of the Jury: I will now explain to you your duties as jurors. It is vital to the administration of justice that you fully understand and faithfully perform these duties.

It is my duty to determine all of the law applicable to this case and to inform you of that law by these instructions and by the instructions that I will give you after all evidence has been received. It is your duty to accept and follow all of these instructions as a whole, not accepting one or more of these instructions and disregarding the others.

It is your duty to determine the facts of this case from the evidence produced in open court. You should consider only the evidence introduced while the court is in session. It is then your duty to apply the law, as determined by the court, to the facts as determined by you, and thus render a verdict. You should not allow sympathy or prejudice to influence your decision. Your decision should be based upon probabilities, and not possibilities. It may not be based upon speculation or guesswork.

The evidence which you are to consider consists of the testimony of the witnesses; the exhibits, if any, admitted into evidence; any facts admitted or agreed to by the attorneys; and any facts which I instruct you to accept as true. The term "witness" means anyone who testifies in person, or by deposition, including the parties.

In addition, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified when considered with the aid of the knowledge which you each possess in common with other persons. You may make deductions and reach conclusions which reason and common sense lead you to draw from the facts which you find to have been established by the testimony and evidence in the case.

The production of evidence in court is governed by rules of law. From time to time it may be the duty of the attorneys to object to the production of evidence and my duty to rule on these objections. If I say the objection is sustained, you must not consider the testimony or exhibit covered by the objection. If I say the objection is overruled, you may consider the testimony or exhibit covered by the objection. The attorney's objections, and my rulings upon these objections, together with the reasons for these objections and rulings are not evidence and should not be considered by you.

The statements, remarks and arguments of the attorneys are intended to help you in understanding the evidence and applying the law, but are not evidence. If any statement, remark or argument of an attorney has no basis in the evidence, then you should disregard it.

You are the sole judges of the believability of each witness and the value to be given the testimony of each. You should take into consideration the witness's means of knowledge, strength of memory and opportunities of observation. Also consider the reasonableness, consistency or inconsistency of the testimony. You should also consider the bias, prejudice or interest, if any, the witness may have in the outcome of the trial, the conduct of the witness upon the witness stand and all other facts and circumstances that affect the believability of the witness.

My rulings and remarks made during the course of this trial are not intended to indicate my opinion as to the facts. During all recesses and adjournments, while this case is in progress, you must not discuss this case, or anything about this case, with anyone, and you must not allow anyone to discuss it with you. This rule applies not only to court employees, the attorneys involved in this case, and others you may meet in the courthouse, but also to your husband and wife, other members of your family, your friends and anyone else you may meet. If during the trial anyone talks to you or tries to talk to you about this case, you must immediately report it to me, or the [(clerk of the court)/bailiff], who will report to me.

Do not, before this case is finally submitted to you for a decision, talk to your fellow jurors about this case, or anything about this case, or form or express any opinion about it.

[Do not read newspaper reports about this trial, and do not watch or listen to television or radio reports about it.] Do not read newspaper reports or obtain information from the internet about this trial or the issues, parties or witnesses involved in this case, and do not watch or listen to television or radio reports about it. Do not attempt to visit the scene or investigate this case on your own.

The reasons for these rules are that it is essential that you should keep your minds free and open at all times throughout this trial and that you should not be influenced by anything except the evidence you hear and see in the courtroom.

From now on, at the beginning of each recess or adjournment, I will refer to these instructions as "my instructions" or "my usual instructions," but whether or not this is done, you will carefully observe these rules at all times.

Notes on Use

Unless the case has attracted or is likely to attract the attention of the media, the bracketed paragraph concerning newspaper reports and the like should not be given to the jury.

Before excusing the jurors for recesses and adjournments, the judge should remind them not to discuss the case. The following Instruction is suggested:

At this time, let me remind you not to discuss this case, or anything about this case, with anyone [ (during the recess)/(while court is adjourned)], and do not allow anyone to discuss it with you. If anyone talks to you or tries to talk to you about this case, you are instructed to report it immediately either to me or to the [ (clerk of the court)/bailiff].

OUJI NO. 1.8A CLOSING INSTRUCTION — TO BE GIVEN AFTER THE EVIDENCE

The Court has made rulings during this trial. In ruling, the Court has not in any way suggested to you the weight or credit to be given any evidence or testimony received during the trial, nor intimated in any way what you should decide in this case.

You are the judges of the facts. The importance and worth of the evidence and testimony is for you to decide. From all the testimony heard and evidence seen by you during the trial, and using the reasoning which you each have, you will make your decision. You should perform your duties as jurors impartially and faithfully, under your oath.

The law provides that you should now listen to and consider the arguments of counsel, which are a proper part of this case.

Notes on Use

This Instruction should be given at the conclusion of the jury instructions, immediately before the closing arguments of counsel.

OUJI No. 1.20 STATUTE OF LIMITATIONS — AFFIRMATIVE DEFENSE

[ Defendant] has raised the statute of limitations as an affirmative defense to the claim of [ Plaintiff] for [ Specify Type of Claim]. [ Defendant] has the burden of proving by the greater weight of the evidence that the claim was barred by the statute of limitations. A statute of limitations is a law that a case is barred if a plaintiff does not file the case within a specified period of time. The statute of limitations for the claim for [ Specify Type of Claim] is [ Specify Limitation Period], and the date that [ Plaintiff] filed this case was [ Date]. In this case, the statute of limitations required [ Plaintiff] to file this case within [ Specify Limitation Period] from [ Specify Applicable Time for Accrual of Claim, e.g. , the date of breach of the contract, the date of injury, the date when [ Plaintiff] knew or reasonably should have known of the injury and its cause].

Notes on Use

This Instruction should be used in cases where a statute of limitations defense presents a jury question. In many cases, a statute of limitations defense will be subject to the court's ruling as a matter of law, because there are no material factual issues in dispute. Where there are material factual issues in dispute, a jury question will be presented. See Harper-Turner Oil Co. v. Bridge, 1957 OK 124, 311 P.2d 947 (accrual of cause of action for damages to water well was a question of fact that was properly presented to a jury); Moses v. Miller, 1950 OK 14, 216 P.2d 979, 202 Okla. 605 (whether action was barred by the statute of limitations was a question of fact for the jury).

Committee Comments

In general, the date of accrual of a claim is when the owner of the claim first acquires the right to bring an action on it. Samuel Roberts Noble Foundation, Inc. v. Vick, 1992 OK 140, ¶ 8, 840 P.2d 619, 622. This will occur as soon as each element of the claim has been satisfied. Thus, a contract claim will generally accrue on the date of the breach, and a tort claim will generally accrue on the date of the injury. In cases of fraud or professional malpractice, the date of accrual is subject to the discovery rule, under which the date of accrual is when the plaintiff knew or should have known of the injury. Id. ¶ 22, 840 P.2d at 624 ("The discovery rule provides that the limitations period does not begin to run until the date the plaintiff knew or should have known of the injury."). See also Reynolds v. Porter, 1988 OK 88, ¶ 6 n. 8, 760 P.2d 816, 820 n. 8 ("The `discovery rule' allows limitations in tort cases to be tolled until the injured party knows or, in the exercise of reasonable diligence, should have known of the injury."); Funnell v. Jones, 1985 OK 73, ¶ 6, 737 P.2d 105, 107 ("In Oklahoma, an action for malpractice, whether medical or legal, though based on a contract of employment, is an action in tort and is governed by the two-year statute of limitations [which] begins to run from the date the negligent act occurred or from the date the plaintiff should have known of the act complained of. "); Matter of Woodward, 1976 OK 55, ¶ 10, 549 P.2d 1207, 1209 ("Where means of discovering fraud are in hands of party defrauded and defrauding party has not covered up his fraud to extent it would be difficult or impossible to discover, party defrauded will be deemed to have had notice of fraud from date means of discovering such fraud came into his hands and fraud will be deemed to have been discovered upon that date.").

OUJI No. 1.21 STATUTE OF LIMITATIONS — EXCEPTION

There is an exception to a statute of limitations defense if ([ Plaintiff] was unable to file the case because [ Specify Ground for Exception, e.g., [ Plaintiff] was Under a Legal Disability], [ Defendant] misled [ Plaintiff] by concealing the [ Specify Type of Claim] from him/her, etc.].

[ Plaintiff] has the burden of proving by the greater weight of the evidence that this requirement is satisfied. If you find by the greater weight of the evidence that [ Specify Ground for Exception], then you must find that the claim for [ Specify Type of Claim] is not barred by the statute of limitations.

Committee Comments

Tolling of the statute of limitations occurs if the plaintiff is subject to a legal disability or the defendant fraudulently conceals the claim from the plaintiff. Alexander v. Oklahoma, 382 F.3d 1206, 1217 (10th Cir. 2004) (discussing Oklahoma law). Tolling may also occur for other reasons as well. See, e.g., Resolution Trust Corp. v. Grant, 1995 OK 68, ¶ 23, 901 P.2d 807, 817 (doctrine of adverse domination may toll statute of limitations against directors and officers); Armco, Inc. v. Holcomb, 1985 OK 5, ¶ 8, 694 P.2d 937, 940 (workers' compensation claim tolled by statutory provision).

Generally, the party seeking to avoid a statute of limitations defense has the burden of proving the facts in support of the avoidance. 54 C.J.S. Limitations of Actions ¶ 370 (2007). See Armco, Inc. v. Holcomb, 1985 OK 5, ¶ 5, 694 P.2d 937, 938 ("The burden of proof therefore devolved upon Claimant to adduce essential facts which would operate to arrest, suspend, toll or waive the statute of limitations, pursuant to 85 O.S. ¶ 8, to establish his right to recovery beyond the prescribed period."). But see Resolution Trust Corp. v. Grant, 1995 OK 68, ¶ 23, 901 P.2d 807, 817 (burden of proof regarding tolling under doctrine of adverse domination was placed on defendants to rebut presumption of control of corporation by officers and directors).

Chapter Two Statement Of Issues List Of Contents

Instruction No. 2.1 The Issues In the Case — No Counterclaim ........................ 13 Instruction No. 2.2 The Issues In The Case — Counterclaim ........................... 14 Instruction No. 2.3 The Issues In The Case — Admitted Liability ..................... 16 Instruction No. 2.4 The Issues In The Case — Uninsured Motorists Coverage ........... 16 Instruction No. 2.5 The Issues In The Case — Cautionary Instruction ................. 16

OUJI No. 2.5 THE ISSUES IN THE CASE-CAUTIONARY INSTRUCTION

This statement of the case simply defines the issues to be tried by you in this case, and the allegations or claims made therein do not constitute any evidence, nor do the statements or arguments of counsel, but you will only consider as evidence the testimony heard from the witness stand by the witness under oath, any exhibits which have been introduced and any stipulations made by counsel, and you will consider that evidence under the following instructions.

Notes on Use

This Instruction should be given along with the statement of the case instruction.

Chapter Four Injury To Person Or Property List Of Contents

(Moved to Instruction No. 27.2)

Instruction No. 4.1 Personal Injuries — Adults ...................................................... 35 Instruction No. 4.2 Personal Injuries — Minor Child ................................................. 36 Instruction No. 4.3 Personal Injuries — Minor Child — Measure Of Parent's Or Guardian's Damages ..... 37 Instruction No. 4.4 Personal Injuries — Minor Child — Loss Of Earnings .............................. 38 Instruction No. 4.5 Loss Of Spousal Consortium — Elements Of Liability. ............................. 39 Instruction No. 4.6 Measure Of Damages — Loss Of Spousal Consortium ................................. 40 Instruction No. 4.7 Loss Of Parental Consortium — Elements Of Liability.............................. 41 Instruction No. 4.8 Measure Of Damages — Loss Of Parental Consortium ................................ 42 Instruction No. 4.9 Measure Of Damages — Injury To Spouse ........................................... 43 Instruction No. 4.10 Measure Of Damages — Aggravations Of Pre-Existing Conditions ................... 44 Instruction No. 4.11 Measure Of Damages — Medical Malpractice — Loss Of Chance ...................... 44 Instruction No. 4.12 Personal Property — Market Value — Not Repairable .............................. 46 Instruction No. 4.13 Personal Property — No Market Value ............................................ 47 Instruction No. 4.14 Personal Property — Cost Of Repairs — Loss Of Use .............................. 48 Instruction No. 4.15 Personal Property — Loss Of Use ................................................ 49 Instruction No. 4.16 Personal Property — Conversion ................. 50 Instruction No. 4.17 Effect Of Income Tax On Award Of Damages ....................................... 50 Instruction No. 4.18 Fair Market Value — Definition ................................................. 51

OUJI No. 4.14 PERSONAL PROPERTY — COST OF REPAIRS — LOSS OF USE

If you decide for [ Plaintiff] on the question of liability, you must then determine the amount of money that will reasonably and fairly compensate him for the injury to the [ insert description of property]. That amount is:

1. The reasonable cost of repairing the [ insert description of the property], plus depreciation, if any, to the [ insert description of the property]; ("Depreciation" means the difference between the market value of the property immediately before being injured and its market value after repairs have been or would be made.) and,

2. The reasonable cost of renting a similar [ insert description of the property] during the time reasonably required to make the necessary repairs of the injury caused by [ Defendant].

Notes on Use

Paragraphs one and two may be used together. Coe v. Esau, 377 P.2d 815, 820 (Okla. 1963). However, actual expense must be shown by evidence to have been incurred before the plaintiff is entitled to recover for loss of use. Stapleton Motor Sales Co. v. Coley, 107 Okla. 269, 272, 232 P. 28, 31 (1925). Eliminate reference to "depreciation" in absence of evidence thereof.

Committee Comments

The Oklahoma Supreme Court decided in Brennan v. Aston , 2003 OK 91, ¶ 84 P.3d 99, 102, that this Instruction correctly stated the law of Oklahoma insofar as it permitted recovery for the diminution in value of damaged property.

OUJI No. 4.16 PERSONAL PROPERTY — CONVERSION MOVED TO INSTRUCTION NO. 27.2

If you decide for [ Plaintiff ] on the question of liability, you must then determine the amount of money that will reasonably and fairly compensate [ him/her ] for the conversion of the [ insert description of property ]. That amount is: 1. The value of the property at the time of the conversion with interest from that time;

or

2. The highest market value of the property at any time between the time of the conversion and your verdict; and a fair compensation for the time and money properly expended by [Plaintiff] in pursuit of the property.

Comments

23 O.S. 1991 ¶ 64 confers upon the owner of wrongfully converted personal property a choice between the traditional measure of damages of value at the time of conversion and the time of the verdict. To elect to recover the highest market value the suit must be prosecuted with due diligence-this is a question of law for the court. Hamco Oil Drilling Co. v. Ervin , 354 P.2d 442, 445-46 (Okla. 1960); Champlin Ref. Co. v. Aladdin Petroleum Corp. , 205 Okla. 524, 527, 238 P.2d 827 , 830 (1951); McKinnon v. Monarch Loan Co. , 111 Okla. 213, 215-16, 239 P. 170 , 172 (1925).

Chapter Five Damages List Of Contents

Instruction No. 5.1 Damages Not To Be Inferred ........................................................ 55 Instruction No. 5.2 Uncertainty As To Amount Of Damage ................................................ 55 Instruction No. 5.3 Duty To Mitigate Damages — Personal Injury ...................................... 55 Instruction No. 5.4 Duty To Mitigate Damages — Property ............................................. 56 Instruction No. 5.5 Exemplary Or Punitive Damages (Prior Law) (Deleted) ............................... 56 Instruction No. 5.6 Exemplary Or Punitive Damages — First Stage ..................................... 60 Instruction No. 5.7 Verdict Form, For Plaintiff, Punitive Damages (First Stage) ....................... 65 Instruction No. 5.8 Verdict Form, For Defendant (First Stage) ......................................... 67 Instruction No. 5.9 Exemplary Or Punitive Damages — Second Stage .................................... 68 Instruction No. 5.10 Verdict Form, For Plaintiff, Punitive Damages (Second Stage) ..................... 71 Instruction No. 5.11 Verdict Form, For Defendant (Second Stage) ....................................... 73 Instruction No. 5.12 Mortality Tables — Explanation ................................................. 74

OUJI No. 5.5 Exemplary Or Punitive Damages (Prior Law) INSTRUCTION DELETED INSTRUCTION DELETED

If you find in favor of [ Plaintiff ], and grant [ him/her ] actual damages, and if you find the conduct of [ Defendant ], was [ or amounted to ]: Fraud; Oppression; Malice; or Wanton or reckless disregard of another's rights; then you may, in addition to actual damages, grant [ Plaintiff ] punitive damages in such sum as you reasonably believe will punish [ Defendant ], and be an example to others. [The conduct of [ Defendant ] involves fraud if [state the grounds for fraud that are appropriate in this case ]]. [Oppression involves an act [ or failure to act ] that is done in a manner which injures another person with unnecessary harshness [ or severity ], by [state the means of oppression , e.g. , misuse or abuse of authority or power, or by taking advantage of some weakness, disability, or misfortune of another person]]. [Malice involves either hatred, spite, or ill-will, or else the doing of a wrongful act intentionally without just cause or excuse.] [The conduct of [ Defendant ] was in wanton or reckless disregard of another's rights if [ Defendant ] was either aware, or did not care, that there was a substantial and unnecessary risk that [ his/her/its ] conduct would cause serious injury to others. In order for the conduct to be in wanton or reckless disregard of another's rights, it must have been unreasonable under the circumstances, and also there must have been a high probability that the conduct would cause serious harm to another person.] Punitive damages are not to be considered as compensation to [ Plaintiff ], but as punishment to [ Defendant ], and as an example to others to deter them from like conduct. The law does not require you to award punitive damages, and if you do so, you must use sound reason in setting the amount. You should be aware that the purpose of punitive damages is to punish, and not destroy, a defendant. In determining the amount of punitive damages, you may consider the following factors: 1. The harm that [ Defendant's ] conduct has already caused and is likely to cause; 2. The degree of wrongfulness of [ Defendant's ] conduct; 3. How long the conduct lasted and whether it is likely to continue; 4. Whether there was other similar conduct, and if so, how often it occurred; 5. How aware [ Defendant ] was of the conduct and its consequences, and whether there were attempts to conceal the conduct; 6. Whether [ Defendant ] benefited from the conduct, and if so, whether that benefit should be taken away; 7. The need to discourage others from similar conduct; and 8. The financial resources of [ Defendant ]. In no event should the punitive damages exceed the amount of actual damages awarded.

Notes on Use

This Instruction is for use in actions filed before August 25, 1995. For actions filed on or after then, see Instruction Nos. 5.6 and 5.7, supra.

This Instruction should only be given if there has been a showing of fraud, oppression, malice, or wanton or reckless disregard of another's rights by the defendant. Moreover, the court should include in the Instruction only that type of conduct by the defendant (e.g. fraud, malice, etc.) that has been shown. The bracketed definitions should also be given as is appropriate.

For example, in a fraud case an appropriate instruction might read:

The conduct of [Defendant] involves fraud if [Defendant] made a statement to [Plaintiff] that [he/she] either knew was untrue or had no idea whether it was true or not, and [Defendant] made the statement with the intention of inducing [Plaintiff] to rely on the statement to [Plaintiff]'s injury.

In instructing the jury on how to determine the amount of punitive damages, the court should list only those factors that are appropriate to the case. In particular cases, there may be other factors that should be included in the Instruction. See, e.g., Instruction No. 12.11 (punitive damages in products liability cases); Pacific Mut. Life Ins. Co. v. Haslip, 111 S. Ct. 1032, 1045 (1991) (existence of other awards or criminal penalties may be considered in mitigation if the court allows evidence on those matters to be admitted).

The last sentence of the Instruction should be deleted if the trial court has found that there is clear and convincing evidence of fraud, malice, etc.

Comments

This Instruction was drafted to conform to Okla. Stat. tit. 23, § 9 (1991), which, as amended in 1986, provides:

A. In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant, in an amount not exceeding the amount of actual damages awarded. Provided, however, if at the conclusion of the evidence and prior to the submission of the case to the jury, the court shall find, on the record and out of the presence of the jury, that there is clear and convincing evidence that the defendant is guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed, then the jury may give damages for the sake of example, and by way of punishing the defendant, and the percentage limitation on such damages set forth in this section shall not apply.

B. The provisions of this section shall be strictly construed.

The prior version of this statute did not have a cap limiting punitive damages to an amount not greater than actual damages, and also it did not include "conduct evincing a wanton or reckless disregard for the rights of another" as one of the grounds for awarding punitive damages. See 22 O.S. 1991 § 9[ 22-9] (amended 1986). A number of Oklahoma cases decided before the 1986 amendment had stated that punitive damages were allowed for gross negligence, but only for that kind of gross negligence that evinced a wanton or reckless disregard of another's rights. See, e.g., Morgan v. Bates , 390 P.2d 486 , 488 (Okla. 1964); Wootan v. Shaw , 205 Okla. 283, 284, 237 P.2d 442 , 444 (1951). See also Silkwood v. Kerr-McGee Corp. , 769 F.2d 1451, 1455 (10th Cir. 1985) ("The requisite malice [under 23 O.S. 1991 § 9] may be inferred from gross negligence that indicates a conscious indifference to the consequences of one's acts, [citation omitted], or a reckless disregard for the safety of others."), cert. denied , 476 U.S. 1104 (1990). Consequently, this Instruction includes wanton or reckless disregard as a ground for allowing punitive damages, but it does not include gross negligence as a separate ground.

The definition of oppression follows closely the one used in 3 E. Devitt, C. Blackmar, M. Wolff, Federal Jury Practice and Instructions: Civil ¶ 85.19 (4th ed. 1987). The definition of malice is based on that found in Malik v. Apex Int'l Alloys, Inc ., 762 F.2d 77, 80 (10th Cir. 1985) ("Malice is defined as a wrongful act done intentionally without just cause or excuse."), and Bennett v. City Nat'l Bank Trust Co. , 549 P.2d 393 , 397 (Okla.Ct.App. 1975) ("Malice is defined as the intentional doing of a wrongful act without justification or excuse.").

This Instruction includes a listing of factors for the jury to consider in determining the amount of punitive damages. Most of these are based on the standards for punitive damages that were discussed in Pacific Mut. Life Ins. Co. v. Haslip , 111 S. Ct. 1032, 1044-45 (1991), in which the United States Supreme Court relied on a number of Alabama's procedural protections, including the trial court's jury instructions, in rejecting a due process challenge to a punitive damage award. See also Mattison v. Dallas Carrier Corp ., 947 F.2d 95, 110 (4th Cir. 1991) (requiring trial court to give jury instruction incorporating the factors from the Haslip case). In Buzzard v. Farmers Ins. Co., Inc. , 824 P.2d 1105 , 1115 (Okla. 1991), the Oklahoma Supreme Court noted that "the amount in actual controversy" was a factor that a court may consider in determining the correctness of a punitive award.

OUJI No. 5.9 EXEMPLARY OR PUNITIVE DAMAGES — SECOND STAGE

Ladies and Gentlemen of the jury, you have found in favor of the plaintiff and granted him/her actual damages, and you have also found by a separate verdict that the defendant ( was guilty of acted with reckless disregard of the rights of others) (and/or) (acted intentionally and with malice towards others).

You may now, in addition to actual damages, grant the plaintiff punitive damages in such sum as you reasonably believe will punish defendant and be an example to others.

Punitive damages are not to be considered as compensation to [Plaintiff], but as punishment to [Defendant], and as an example to others to deter them from like conduct. The law does not require you to award punitive damages, and if you do so, you must use sound reason in setting the amount. You should be aware that the purpose of punitive damages is to punish and not destroy a defendant.

[You may consider evidence of actual harm to others in determining the seriousness of the hazard to the public and thus whether the conduct that harmed the plaintiff was particularly reprehensible or bad. Conduct that risks harm to many may be more reprehensible than conduct that risks harm to only a few. However, you may not use punitive damages to punish [Defendant] directly on account of harms that [Defendant] may have caused to others.]

In determining the amount of punitive damages, you may consider the following factors:

1. The seriousness of the hazard to the public arising from [Defendant]'s misconduct;

2. The profitability of the misconduct to [Defendant];

3. How long the conduct lasted and whether it is likely to continue;

4. Whether there were attempts to conceal the misconduct;

5. How aware [Defendant] was of the conduct and its consequences and how aware [Defendant] was of the hazard and of its excessiveness;

6. The attitude and conduct of [Defendant] upon finding out about the misconduct/hazard;

7. The financial condition of [Defendant];

8. (If the defendant is a corporation or other entity) The number and level of employees involved in causing or concealing the misconduct.

In no event should the punitive damages exceed the greater of: (Select One)

[$100,000.00 or the amount of actual damages you have previously awarded].

OR

[$500,000.00, or twice the amount of actual damages you have previously awarded, or the increased financial benefit derived by the defendant as a direct result of the conduct causing the injury to the plaintiff and other persons or entities].

Notes on Use

This Instruction is based on Okla. Stat. tit. 23, § 9.1 (C)(2) (2001). The Verdict Forms in Instruction Nos. 5.10 and 5.11 should accompany this Instruction.

The bracketed paragraph of this Instruction that comes before the list of factors for punitive damages is based on the United States Supreme Court's decision in Phillip Morris USA v. Williams , 127 S. Ct. 1057 (2007). It should be given upon request of a party if there is a significant risk of a misunderstanding by the jury that it should impose punitive damages for harm to nonparties, either because of the evidence presented at trial or argument of counsel. Id. at 1065. The Supreme Court's opinion stated that "conduct that risks harm to many is likely more reprehensible." The Committee discussed the use of "may be" rather than "is likely", and decided that the "may be" language was more appropriate for jury instruction, because reprehensibility is a jury issue.

The last paragraph of this instruction is to be determined as follows:

If the defendant has been found guilty of acting with reckless disregard for the rights of others, then the punitive damages award should not exceed the greater of $100,000.00 or the amount of actual damages. If the defendant has been found guilty of acting intentionally and with malice towards others, the award should not exceed the greater of $500,000.00, or twice the amount of actual damages awarded, or the increased financial benefit derived by the defendant as a direct result of the conduct causing the injury to the plaintiff and other persons or entities. If the punitive damages award is higher than the greater of $500,000 or twice the amount of actual damages, the trial judge is required to reduce that portion of the punitive damages award that exceeds the greater of $500,000 or twice the amount of actual damages by the amount that the defendant has previously paid for punitive damages awarded in Oklahoma state court actions for the same conduct.

Okla. Stat. tit. 23, § 9.1 (C)(2) (Supp. 1995).

If the trial court has found beyond a reasonable doubt that the defendant acted intentionally and with malice and engaged in conduct that was life-threatening to humans, and also the jury has found that the defendant acted intentionally and with malice towards others, there is no limit on the amount of punitive damages and the last paragraph of this instruction should be omitted.

Committee Comments

(Approved by Committee on August 6, 2004)

The United States Supreme Court has ruled in a line of cases that due process "prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor." State Farm Mutual Auto. Ins. Co. v. Campbell , 538 U.S. 408 , 416 (2003). Striking down a large punitive damage award in the State Farm case, the Supreme Court declared:

Lawful out-of-state conduct may be probative when it demonstrates the deliberateness and culpability of the defendant's action in the State where it is tortious, but that conduct must have a nexus to the specific harm suffered by the plaintiff. A jury must be instructed, furthermore, that it may not use evidence of out-of-state conduct to punish a defendant for action that was lawful in the jurisdiction where it occurred.

Id. at 422.

Chapter Six Legal Relationships List Of Contents

Instruction No. 6.16 Employer Liability — Substantial Certainty Test .................................. 85

Instruction No. 6.1 Minor — Defined — Right To Sue Or Defend ...................................... 77 Instruction No. 6.2 Agency — Defined ................................................................ 77 Instruction No. 6.3 Disclosed, Partially Disclosed Or Undisclosed Principal — Defined ............... 78 Instruction No. 6.4 Employer And Employee — Defined ................................................. 78 Instruction No. 6.5 Loaned Employee ................................................................... 79 Instruction No. 6.6 Loaned Employee — Determination Of .............................................. 79 Instruction No. 6.7 Scope Of Employment ............................................................... 80 Instruction No. 6.8 Scope Of Authority — Defined .................................................... 80 Instruction No. 6.9 Incidental Of Implied Authority — Defined ....................................... 81 Instruction No. 6.10 Implied Authority Based On Business Usage ........................................ 81 Instruction No. 6.11 Apparent Authority [Agency By Estoppel] ---Definition And Effect ................. 82 Instruction No. 6.12 Scope Of Authority Or Employment — Departure ................................... 83 Instruction No. 6.13 Ratification — Definition And Effect ........................................... 83 Instruction No. 6.14 Knowledge Of Agent Imputable To Principal ........................................ 84 Instruction No. 6.15 Termination Of Agent's Authority ................................................. 85

OUJI No. 6.16 EMPLOYER LIABILITY — SUBSTANTIAL CERTAINTY TEST

For [ Plaintiff] to recover from [ Defendant] for his/her injury, [ Plaintiff] must prove by the greater weight of the evidence:

1. The conduct of [ Defendant] was intentional;

2. [ Defendant]'s conduct caused injury to [ Plaintiff];

3. [ Defendant] desired to bring about the injury; or

4. [ Defendant] knew that injury to [ Plaintiff] was substantially certain, and not merely likely, to occur.

You may infer the knowledge of [ Defendant] from the conduct of [ Defendant] and all the surrounding circumstances.

Committee Comments

This Instruction is based on Parret v. Unico Serv. Co., 2005 OK 54, ¶ 24, 127 P.3d 572, 579:

In order for an employer's conduct to amount to an intentional tort, the employer must have (1) desired to bring about the worker's injury or (2) acted with the knowledge that such injury was substantially certain to result from the employer's conduct. Under the second part of this standard, the employer must have intended the act that caused the injury with knowledge that the injury was substantially certain to follow. The issue is not merely whether injury was substantially certain to occur, but whether the employer knew it was substantially certain to occur. The employer's subjective appreciation of the substantial certainty of injury must be demonstrated. In most cases, however, it will be necessary to demonstrate the employer's subjective realization by circumstantial evidence. Thus, an employer's knowledge may be inferred from the employer's conduct and all the surrounding circumstances.

CHAPTER NINE Negligence — Comparative Negligence List Of Contents

Instruction No. 9.8A Liability for Additional Injuries by Other Persons ....................... 111 Instruction No. 9.8B Liability for Increased Harm — Products Liability ........................ 111 Instruction No. 9.8C Intervening Cause — Definition .......................................... 111

Instruction No. 9.1 Negligence — Elements Of Liability ....................................... 105 Instruction No. 9.2 Negligence — Defined ..................................................... 105 Instruction No. 9.3 Ordinary Care — Defined .................................................. 106 Instruction No. 9.4 Child's Capacity For Negligence ........................................... 107 Instruction No. 9.4A Children — Standard Of Care ............................................. 109 Instruction No. 9.5 Volunteer — Duty Of Care ................................................. 110 Instruction No. 9.6 Direct Cause — Definition ................................................ 110 Instruction No. 9.7 Concurrent Causes ......................................................... 111 Instruction No. 9.8 Intervening Cause — Definition ........................................... 111 Instruction No. 9.9 Rescue Doctrine............................................................ 112 Instruction No. 9.10 Negligence Per Se — Violation Of Statute Or Ordinance ................... 113 Instruction No. 9.11 Conduct In Compliance With Statute Or Ordinance .......................... 113 Instruction No. 9.12 Unknowing Violation Of Statute Or Ordinance .............................. 114 Instruction No. 9.13 Res Ipsa Loquitur — Inference Of Negligence ............................. 114 Instruction No. 9.14 Assumption Of Risk ....................................................... 115 Instruction No. 9.15 Negligence Of Driver Not Imputable To Passenger .......................... 117 Instruction No. 9.16 Negligence Of Parent Not Imputable To Children ........................... 117 Preface To The Comparative Negligence Instructions ............................................ 118 Instruction No. 9.17 Comparative Negligence Not A Defense To Willful And Wanton Or Intentional Conduct ............................................................. 120 Instruction No. 9.18 Comparative Negligence: One Defendant — Definition .................................................................................... 121 Instruction No. 9.19 Comparative Negligence: Multiple Defendants — Definition ................ 122 Instruction No. 9.20 Comparative Negligence: Counterclaim Plead — Definition ................. 124 Instruction No. 9.21 Comparative Negligence: Non-Party Involved — Definition ................. 126 Instruction No. 9.22 Advice Concerning Color-Coded Verdict Forms .............................. 128 Instruction No. 9.23 Blue Verdict Form, For Plaintiffs — Directions .......................... 128 Instruction No. 9.24 Blue Verdict Form, For Plaintiffs — Multiple Defendants — Directions ... 129 Instruction No. 9.25 Blue Verdict Form, For Plaintiff: Counterclaim Plead — Directions ........................................................................... 129 Instruction No. 9.26 Blue Verdict Form, For Plaintiff: Non-Party Involved — Directions ........................................................................ 130 Instruction No. 9.27 Pink Verdict Form, For One Defendant — Directions .................................................................................... 130 Instruction No. 9.28 Pink Verdict Form, For Multiple Defendants — Directions ................. 130 Instruction No. 9.29 Pink Verdict Form, For Defendant: Non-Party Involved — Directions ....... 131 Instruction No. 9.30 Pink Verdict Form, For Defendant on Counterclaim — Directions .................................................................... 131 Instruction No. 9.31 Green Verdict Form, For Neither Plaintiff Nor Defendant — Counterclaim — Directions ................................................................. 133 Instruction No. 9.32 White Verdict Form, Comparative, One Defendant — Directions ....................................................................... 133 Instruction No. 9.33 White Verdict Form, Comparative, Two Defendants — Directions ...................................................................... 134 Instruction No. 9.34 White Verdict Form, Comparative, Multiple Defendants — Directions ....... 135 Instruction No. 9.35 White Verdict Form, Comparative, Counterclaim — Directions .............. 136 Instruction No. 9.36 White Verdict Form, Comparative, Non-Party — Directions ................. 138 Instruction No. 9.37 Blue Verdict Form, For Plaintiff ......................................... 139 Instruction No. 9.38 Blue Verdict Form, For Plaintiff; Counterclaim Involved .................. 140 Instruction No. 9.39 Blue Verdict Form — For Plaintiff — Multiple Defendants ................ 141 Instruction No. 9.40 Pink Verdict Form, For One Defendant ..................................... 142 Instruction No. 9.41 Pink Verdict Form, For Multiple Defendants ............................... 143 Instruction No. 9.42 Pink Verdict Form, For Defendant on Counterclaim .................................................................................. 144 Instruction No. 9.43 Green Verdict Form, For Neither Plaintiff nor Defendant .................. 145 Instruction No. 9.44 White Verdict Form, Comparative, One Defendant ........................... 146 Instruction No. 9.45 White Verdict Form, Comparative, Two Defendants .......................... 148 Instruction No. 9.46 White Verdict Form, Comparative, Multiple Defendants ..................... 150 Instruction No. 9.47 White Verdict Form, Comparative, Counterclaim ............................ 152 Instruction No. 9.48 White Verdict Form, Comparative, Non-Party Involved ...................................................................................... 154 Instruction No. 9.49 White Verdict Form, Medical Malpractice, Loss Of Chance ................. 156 Instruction No. 9.50 Comparative Negligence — One Defendant — Directions .................... 158 Instruction No. 9.51 Willful and Wanton Conduct — Definition ................................. 158

OUJI No. 9.8A LIABILITY FOR ADDITIONAL INJURIES BY OTHER PERSONS

If you find by the greater weight of the evidence that [ Defendant] is liable to [ Plaintiff], then [ Defendant] is also liable for any additional injuries caused by the normal efforts of [ Specify Provider of Medical or Other Care] in providing aid/treatment that [ Plaintiff] reasonably required [even if the aid itself was provided in a negligent manner].

OR

If you find by the greater weight of the evidence, that [ Defendant] is liable to [ Plaintiff], then [ Defendant] is also liable for any additional injury from a second accident that would not have happened except for the original injury and also was a normal consequence of the original injury.

Notes on Use

The first alternative in this Instruction should be used in cases such as Atherton v. Devine, 1979 OK 132, 602 P.2d 634, where the plaintiff received additional injuries when the ambulance in which he was being transported from the original accident was involved in another accident, or where a plaintiff suffers additional injuries while being treated in a hospital, see Shadden v. Valley View Hosp., 1996 OK 140, 915 P.2d 364. The bracketed clause at the end of the first alternative should be used only if there is evidence of any negligence by the provider of medical or other care.

The second alternative should be used if the plaintiff suffered additional injuries from a second accident that was a consequence of the original accident.

Committee Comments

This Instruction is based on Restatement (Second) of Torts §§ 457, 460 (1965), and the Oklahoma Supreme Court's holding in Atherton v. Devine, 1979 OK 132, ¶ 7, 602 P.2d 634, 637, imposing liability "against the original tortfeasor for efforts of third persons in rendering aid which resulted in additional injury to the victim."

OUJI No. 9.8B LIABILITY FOR INCREASED HARM — PRODUCTS LIABILITY

If you find by the greater weight of the evidence that the [ Specify Product] was defective and that the defect was a contributing factor in increasing the harm to [ Plaintiff] beyond what was due to other causes, then [ Defendant] is liable for the increased harm.

If you are able to separate the harm that was due to the other causes from the increased harm from the defect, [ Defendant] is liable only for the increased harm from the defect.

But if you are not able to separate the harm that was due to the other causes from the increased harm from the defect, [ Defendant] is liable for all the harm to [ Plaintiff].

[ Defendant] has the burden of proving by the greater weight of the evidence, that the increased harm from the defect can be separated from the harm due to the other causes.

Notes on Use

This Instruction to be used for second impact cases, such as Lee v. Volkswagen of Am., Inc., 1984 OK 48, 688 P.2d 1283. It should only be used where there is an issue whether the plaintiff's injury is separable into multiple injuries with different causes or not, and it is not needed for cases where it is clear that there is only a single injury to the plaintiff. See Johnson v. Ford Motor Co., 2002 OK 24, 15-17, 45 P.3d 86, 92-93 (omission of instruction that defendant was liable only for enhanced injuries due to defect was not reversible error where the plaintiff's claim was that the defect caused his injuries, rather than that the defect enhanced his injuries, and therefore instructions on causation were adequate).

Committee Comments

This Instruction is based on Restatement (Third) of Torts: Products Liability § 16 (1998).

OUJI No. 9.8C LIABILITY FOR INCREASED HARM — NEGLIGENCE

If you find by the greater weight of the evidence that [ Defendant] was negligent and that [ Defendant]'s negligence was a contributing factor in increasing the harm to [ Plaintiff] beyond what was due to other causes, then [ Defendant] is liable for the increased harm.

If you are able to separate the harm that was due to the other causes from the increased harm from [ Defendant]'s negligence, [ Defendant] is liable only for the increased harm from [ Defendant]'s negligence.

But if you are not able to separate the harm that was due to the other causes from the increased harm from [ Defendant]'s negligence, [ Defendant] is liable for all the harm to [ Plaintiff].

[ Defendant] has the burden of proving by the greater weight of the evidence, that the increased harm from [ Defendant]'s negligence can be separated from the harm due to the other causes.

Notes on Use

This Instruction should be used for cases where the liability for increased harm is based on negligence, rather than products liability. Like the preceding Instruction, this Instruction should only be used where there is an issue whether the plaintiff's injury is separable into multiple injuries with different causes or not, and it is not needed for cases where it is clear that there is only a single injury to the plaintiff. See Johnson v. Ford Motor Co., 2002 OK ¶¶ 24, 15-17, 45 P.3d 86, 92-93 (omission of instruction that defendant was liable only for enhanced injuries due to defect was not reversible error where the plaintiff's claim was that the defect caused his injuries, rather than that the defect enhanced his injuries, and therefore instructions on causation were adequate).

Committee Comments

This Instruction is derived from Restatement (Third) of Torts: Products Liability § 16 (1998).

PREFACE TO THE COMPARATIVE NEGLIGENCE INSTRUCTIONS

The following uniform instructions reflect the status of the comparative negligence law at the time the Uniform Committee released its work for publication as of November 1, 2004. This area of the law, in particular, has been the subject of a number of recent developments and is likely to may be subject to additional changes in thenear future.

Accordingly, this preface is designed to provide a brief overview of the basic stages of the development of comparative negligence law in Oklahoma.

1. From statehood until 1973 the Doctrine of Contributory Negligence controlled in Oklahoma. That doctrine provided that any negligence on the part of the plaintiff which contributed to his injuries operated as a complete bar to his recovery from any other negligent parties.

2. The Oklahoma legislature replaced the contributory negligence doctrine in 1973 by adoption of a new comparative negligence statute. Under the comparative negligence statute a plaintiff was no longer completely barred from recovery if his negligence was found to be less than fifty percent of the negligence causing his injuries.

23 O.S. 1991 ¶ 13. Comparative negligence is a statutory substitute for the common-law concept of contributory negligence to which reference is made in Okla. Const. art. 23, ¶ 6. The concept calls for a comparison of Plaintiffs fault vis-a-vis that of the "other side" (defendant or defendants). Comparative negligence does not mean comparing or apportioning the negligence among multiple defendants.

In 1979 the Comparative Negligence Act was amended to allow a plaintiff to recover if his negligence was fifty percent or less of the negligence causing his injuries.

3. In Laubach v. Morgan, 588 P.2d 1071, 1074 (Okla. 1978), the Oklahoma Supreme Court abolished the joint and several liability rule in multiple tortfeasor situations and adopted in its stead a rule of several liability only. Under Laubach, each defendant's liability to the plaintiff is was limited to that amount which his proportionate percentage of negligence bears to the plaintiff's total damages.

4. The Oklahoma legislature enacted in 1978 a statute providing for contribution among joint tortfeasors. Prior to this legislation, Oklahoma did not afford to any joint tortfeasor the right of recovery against another joint tortfeasor when the first joint tortfeasor was required to pay more than his pro rata share of plaintiff's damages.

12 O.S. 1991 ¶ 832.

5. Boyles v. Oklahoma Natural Gas. Co., 619 P.2d 613 (Okla. 1980) was a negligence action brought against multiple defendants, but not involving an allegation of contributory negligence on the part of the plaintiff. On appeal it was urged that the trial court erred in refusing to instruct the jury to apportion the several defendants' liability under the rule of Laubach. The Oklahoma Supreme Court responded to that contention by stating:

There is absolutely nothing in Laubach to negate the continued force of the common law rule of joint and several liability in those negligent torts which fall completely outside the purview of our comparative negligence legislation.

619 P.2d at 616. The Court in Boyles made clear that it intended to abolish the joint and several liability rule only in comparative negligence actions, and not other negligent torts.

6. Berry v. Empire Indem. Ins. Co. , 634 P.2d 718 (Okla. 1981), was a negligence action involving an allegation of contributory negligence on the part of the Plaintiff. The jury found the Plaintiff free of negligence. The Oklahoma Supreme Court held that Boyles controlled and "Oklahoma's comparative negligence statute (23 O.S. Supp. 1979 § 13) has no application," because the Plaintiff was free of negligence. 634 P.2d at 710. In 2004, the Oklahoma Legislature adopted 23 O.S. § 15[ 23-15], which provides for several liability in all actions based on fault and not arising out of contract, except that a defendant is subject to joint and several liability if that defendant's percentage of negligence is greater than 50%. The statute does not apply, however, to actions brought by the state or a political subdivision of the state. Also, the statute does not apply if the plaintiff's percentage of negligence is 0%. Therefore, if the plaintiff's percentage of negligence is 0%, then Boyles v. Oklahoma Natural Gas. Co. , 1980 OK 163, 619 P.2d 613, would still apply.

CHAPTER TWELVE Products Liability List Of Contents

Instruction No. 12.1 Manufacturers' Products Liability — Elements ............................... 189 Instruction No. 12.2 Defective — Defined......................................................... 190 Instruction No. 12.3 Unreasonably Dangerous — Defined ........................................... 190 Instruction No. 12.4 Direct Cause — Definition .................................................. 191 Instruction No. 12.5 Product Defective If No Warning Given ....................................... 192 Instruction No. 12.6 Adequacy Of Warnings ........................................................ 193 Instruction No. 12.7 Liability For Injury From Food Or Beverage .................................. 194 Instruction No. 12.8 Definition Of Substance Which Could Be Reasonably Expected To Be Present In A Food Or Beverage ..................................................... 195 Instruction No. 12.9 Affirmative Defense Of Misuse Of Product .................................... 195 Instruction No. 12.10 Affirmative Defense Of Voluntary Assumption Of The Risk Of A Known Defect .................................................................... 196 Instruction No. 12.11 Affirmative Defense Of Unavoidably Unsafe Product ................................................................................... 198 Instruction No. 12.12 Products Liability — Punitive Damages (Deleted) ........................... 199

OUJI No. 12.12 Products Liability — Punitive Damages INSTRUCTION DELETED

If you award [ Plaintiff ] actual damages, and if you find that [ Defendant ] showed a reckless disregard for the public safety, then you may also grant [ Plaintiff ] punitive damages in such sum as you reasonably believe will punish [ Defendant ], and be an example to others. A reckless disregard of the public safety means that a [ manufacturer/seller/lessor ] either knew, or else did not care, that there was a substantial and unnecessary risk of injury, and also, that the [ manufacturer/seller/lessor ] failed to either determine the seriousness of the danger or reduce the risk to an acceptable minimal level. The purpose of punitive damages is not to compensate an individual consumer, but instead to benefit society by punishing a [ manufacturer/seller/lessor ] who [ makes/sells/leases ] defective products thereby encouraging other [ manufacturers/sellers/lessors ] to maintain safety standards for the benefit of consumers generally.

In deciding whether to award punitive damages, and the amount of the award, if any, you should consider the following factors:

1. How serious was the risk of harm to the public that resulted from the defect in the [ description of product ];

2. Whether [ Defendant ] was aware of the existence and seriousness of the defect;

3. Whether [ Defendant ] has corrected the defect [ or reduced the danger ], and if so, what [ he/she/it ] did and how long that took;

4. The amount it cost [ or would have cost ] to correct the defect [or reduce the danger ];

5. The amount of profits that [ Defendant ] received from other sales [ or leases ] of the defective [ description of product ];

6. Whether [ Defendant ] attempted to conceal the defect or deceive the public about the safety of the [ description of product ]; and

7. The financial resources of [ Defendant ].

You should be aware that the purpose of punitive damages is to punish, and not destroy, a [ manufacturer/seller/lessor ]. In no event should the punitive damages exceed the amount of actual damages awarded.

Notes on Use

This Instruction is for use in actions filed before August 25, 1995. For actions filed on or after then, see Instruction Nos. 5.6 through 5.11, supra.

In a products liability action the trial court should give the appropriate Instructions from Chapter 4 on compensatory damages for injuries to person or property. This Instruction should also be given where, besides offering proof on each of the elements in Instruction No. 12.1, the plaintiff also has made a showing that the defendant was highly blameworthy for manufacturing or selling a defective product.

CHAPTER TWENTY SIX BREACH OF FIDUCIARY DUTY LIST OF CONTENTS

Instruction No. 26.1 Breach of Fiduciary Duty — Elements of Liability ............................... 1 Instruction No. 26.2 Breach of Fiduciary Duty — Existence of Fiduciary Relationship ................. 2 Instruction No. 26.3 Breach of Fiduciary Duty — Fiduciary Duty Owed ................................. 4 Instruction No. 26.4 Breach of Fiduciary Duty — Breach Defined ...................................... 1 Instruction No. 26.5 Breach of Fiduciary Duty — Damages ............................................. 1

OUJI No. 26.1 BREACH OF FIDUCIARY DUTY — ELEMENTS OF LIABILITY

In order for [ Plaintiff] to recover from [ Defendant] on [ his/her] claim for breach of fiduciary duty, you must find that all of the following have been established:

1. A fiduciary relationship existed between [ Plaintiff] and [ Defendant] that created (a fiduciary duty)/(fiduciary duties) that [ Defendant] owed to [ Plaintiff];

2. [ Defendant] breached the fiduciary duty/duties to [ Plaintiff]; and

3. The breach of the fiduciary duty/duties was the direct cause of damages to [ Plaintiff].

Notes on Use

Instructions 26.2 to 26.5, infra, should be used with this Instruction.

Committee Comments

This instructions is based on the following statement in FDIC v. Grant, 8 F. SupP.2d 1275, 1299 (N.D. Okla. 1998):

From a review of the authorities in Oklahoma, it appears that the four elements of an actionable breach of fiduciary duty claim are: (1) the existence of a fiduciary relationship, (2) a duty arising out of the fiduciary relationship, (3) a breach of the duty, and (4) damages proximately caused by the breach of duty.

The Instruction combines the first and second elements from the Grant case, because the existence of a fiduciary relationship will create one or more fiduciary duties as a matter of law.

OUJI No. 26.2 BREACH OF FIDUCIARY DUTY — EXISTENCE OF FIDUCIARY RELATIONSHIP

You are instructed that a fiduciary relationship existed in this case between [ Plaintiff] and [ Defendant].

OR

You are instructed that if you determine that [ Specify Grounds for Fiduciary Relationship, e.g., [ Defendant] was the [ guardian, employee, partner, attorney, accountant, banker, physician, etc.] of [ Plaintiff]], then a fiduciary relationship existed in this case between [ Plaintiff] and [ Defendant].

OR

You must determine whether a fiduciary relationship existed in this case between [ Plaintiff] and [ Defendant] based upon their relationship and the other circumstances in this case. A fiduciary relationship exists whenever trust and confidence are reasonably placed by one person in the integrity and loyalty of another, and the other person knowingly accepts that trust and confidence and then undertakes to act on behalf of the person.

Notes on Use

The first alternative should be used where the existence of a fiduciary relationship may be determined as a matter of law. Examples include relationship such as guardian and ward, attorney and client, principal and agent, and where a fiduciary relationship is created by statute. See Lowrance v. Patton, 1985 OK 95, ¶ 17, 710 P.2d 108, 111.

The second alternative should be used where the existence of a fiduciary relationship depends on a disputed factual issue. The trial court may need to modify this alternative to explain the disputed factual issue- e.g., by defining the requirements for a guardianship.

The third alternative should be used where the existence of a fiduciary relationship is a jury question and the fiduciary relationship does not fit into a well-defined category, such as the relationship of a guardian and ward.

Committee Comments

The criteria for a fiduciary relationship in the third alternative are taken from Lowrance v. Patton, 1985 OK 95, 17-18, 710 P.2d 108, 111-12; Sellers v. Sellers, 1967 OK 34, 21-22, 428 P.2d 230, 236; and Robertson v. Painewebber, Inc., 2000 OK CIV APP 17, 10-11, 998 P.2d 193, 198-99.

OUJI No. 26.3 BREACH OF FIDUCIARY DUTY — FIDUCIARY DUTY OWED

You are instructed that [ Defendant] owed the following duty/duties to [ Plaintiff]:

[ Describe the fiduciary duty or duties]

OR

If you find that a fiduciary relationship existed in this case between [ Plaintiff] and [ Defendant], then you are instructed that [ Defendant] owed the following duty/duties to [ Plaintiff]:

[ Describe the fiduciary duty or duties]

Committee Comments

For examples of duties of an agent to a principal, see Restatement (Third) of Agency §§ 8.01-8.12 (2006). The Restatement sets out the fiduciary duties of an agent to a principal under the headings of duties of loyalty and duties of performance, but it would be helpful for the trial judge to provide more guidance by specifying the fiduciary duty that is applicable to the case, such as the duty to maintain confidences, to refrain from self-dealing, or the duty to provide information to the principal.

OUJI No. 26.4 BREACH OF FIDUCIARY DUTY — BREACH DEFINED

[ Defendant] breached a fiduciary duty in this case if [ Defendant] did not act in accordance with [ Specify the Fiduciary Duty or Duties Owed].

[ Plaintiff] claims that [ Defendant] breached the fiduciary duty/duties that [ Defendant] owed to [ Plaintiff] in the following manner:

[ Specify alleged breach of fiduciary duty or duties]

OUJI No. 26.5 BREACH OF FIDUCIARY DUTY — DAMAGES

A person who breaches a fiduciary duty owed to another person is liable for the harm that was directly caused by the breach. If you decide that [ Defendant] breached a fiduciary duty to [ Plaintiff] and [ Plaintiff] has suffered harm as a direct result, you must then fix the amount of [ his/her] damages. This is the amount of money that will reasonably and fairly compensate [ him/her] for the harm directly caused by [ Defendant].

In fixing the amount you will award [ him/her] you may consider the following:

[ Specify elements of damages, e.g. , lost profits, emotional distress, etc.]

Chapter twenty Seven Conversion List Of Contents

Instruction No. 27.1 Conversion — Elements .......................................................... 382 Instruction No. 27.2 Conversion — Damages ........................................................... 384

OUJI No. 27.1 CONVERSION — ELEMENTS

Conversion is an unauthorized assumption and exercise of the right of ownership over the personal property of another person that is inconsistent with the rights of the owner. [ Plaintiff] is required to prove by the greater weight of the evidence the following in order to recover on the claim for conversion against [ Defendant]:

1. [ Plaintiff] ( was the owner of)/possessed/(had the right to possess) the [ Specify Property];

2. [ Defendant] intentionally (took possession of)/(prevented [Plaintiff] from having access to)/destroyed the [ Specify Property];

3. [ Plaintiff] did not consent; and

4. [ Plaintiff] was harmed as a result of the conduct of [ Defendant].

Notes on Use

OUJI 27.2 (formerly OUJI 4.16) provides an instruction on damages, and it should accompany this Instruction.

Committee Comments

For definitions of conversion, see Welty v. Martinaire of Oklahoma, Inc., 1994 OK 10, ¶ 6, 867 P.2d 1273, 1274 ("Black defines conversion as "an unauthorized assumption and exercise of the right of ownership over goods or personal chattels of another."); Steenbergen v. First Fed. Sav. Loan of Chickasha, 1987 OK 122, ¶ 9, 753 P.2d 1330, 1332 ("Conversion is any act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein.).

OUJI No. 4.16 27.2 PERSONAL PROPERTY — CONVERSION — DAMAGES

If you decide for [ Plaintiff] on the question of liability, you must then determine the amount of money that will reasonably and fairly compensate [ him/her] for the conversion of the [ insert description of property]. That amount is:

1. The value of the property at the time of the conversion with interest from that time;

or

2. The highest market value of the property at any time between the time of the conversion and your verdict;

and a fair compensation for the time and money properly expended by [ Plaintiff] in pursuit of the property.

Comments

23 O.S. 1991 § 64[ 23-64] confers upon the owner of wrongfully converted personal property a choice between the traditional measure of damages of value at the time of conversion and the time of the verdict. To elect to recover the highest market value the suit must be prosecuted with due diligence-this is a question of law for the court. Hamco Oil Drilling Co. v. Ervin, 1960 OK 94, ¶ 15, 354 P.2d 442, 445-46 (Okla. 1960); Champlin Ref. Co. v. Aladdin Petroleum Corp., 1951 OK 207, ¶ 14, 205 Okla. 524, 527, 238 P.2d 827, 830 (1951); McKinnon v. Monarch Loan Co., 1925 OK 482, ¶ 18, 111 Okla. 213, 215-16, 239 P. 170, 172 (1925).