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Proposed Civil Jury Instructions And Update On SB1096

The 53rd Arizona Legislature Recently, the Civil Jury Instructions Committee of the State Bar of Arizona drafted new proposed jury instructions. The first set of proposed jury instructions apply to cases where fault is not an issue. The second set of proposed instructions apply to invasion of privacy cases. The Committee is collecting feedback from Arizona attorneys about the drafted instructions before finalizing and presenting to the State Bar Board of Governors for approval.

Personal Injury – Fault Not at Issue Instructions

These proposed instructions would apply to cases where neither fault nor comparative fault are at issue. The purpose of these instructions is to avoid confusing or misleading jurors with instructions about fault and liability-related concepts. The Superior Court Judges requested the Civil Jury Instructions Committee to draft these proposed instructions.

In a case where liability is not an issue, the Committee suggest using the Recommended Arizona Jury Instructions (RAJI) Preliminary 1-13 and 15-16, as applicable. The Committee modified Preliminary 14 to give a clear, simple picture of the sole issue the jury will be asked to decide, damages. The instruction states the jury member’s only issue is to decide the amount of damages that shall be awarded to plaintiff.

When providing Final Instructions, the instructions will only consist of: (A) Personal Injury – Fault Not at Issue 1, Causation; (B) Personal Injury – Fault Not at Issue 2, Burden of Proof (More Probably True); (C) Damages; (D) Standard Instructions; and (E) Closing.

The Cause Instruction informs the jury “An event causes an injury or damage if it helps produce the injury or damage and if the injury or damage would not have happened without the event.” The Burden of Proof Instruction explains to the jury member that he or she must have been persuaded by the evidence that the claim is more probably true than not true. The Damages Instruction will depend on the evidence in the case and type of case. For example, if the case is about property damage, and there are no medical expenses, then the instruction about reasonable medical expenses would be inapplicable. As for the Closing Instruction, the Committee simplified it and the jury is given one form of verdict.

As for the Standard Instructions, depending on specific issues, evidence or witnesses in the case, parts of the RAJI Standard 1, 4, and/or 9 may be appropriate. The Committee instructs to use only the Standard Instructions that apply in view of witnesses and evidence presented, parties and pertinent burdens of proof. Because liability has been admitted, Standard 5, Respondeat Superior Liability will most likely not be used.

Invasion Of Privacy Instructions

The RAJI Committee drafted recommended instructions for Intrusion Claims, Public Disclosure of Private Fact Claims, and False Light Claims along with related defense. These proposed instructions were spurred by the Restatement of Torts including the four separate torts in the classification of the Right to Privacy: (1) intrusion on the plaintiff’s seclusion or private affairs, (2) public disclosure of private facts, (3) publicly placing the plaintiff in a false light, and (4) appropriation of the plaintiff’s name or likeness. Restatement (SECOND) OF TORTS § 652 (1977). In Arizona, three out of the four privacy torts have been recognized except for misappropriation.

Privacy Instructions 1-3 are for claims alleging intrusion on the plaintiff’s seclusion or private affairs. The first Instruction explains the elements. Instruction 2 defines intentional intrusion, and Instruction 3 explains the meaning of highly offensive to a reasonable person.

Privacy Instructions 4-8 are meant for claims alleging public discourse of private facts about the plaintiff. Instruction 4 presents the elements of the claim. The remaining instructions define public disclosure, about the plaintiff, private facts, and highly offensive to a reasonable person.

Lastly, Privacy Instructions 9-10 apply to claims alleging publications which place plaintiff in a false light. Instruction 9 is broken up into 9(A), the elements for when actual malice is required, and 9(B), the elements for the negligence standard. Instruction 10 defines highly offensive to a reasonable person.
The common source for all the instructions that define terms is the RESTATEMENT (SECOND) OF TORTS §652D and comments thereto. The Committee left Instruction 11 blank because there has been no Arizona appellate case recognizing invasion of privacy by appropriation of plaintiff’s name or likeness. Instruction 12, causation, and Instruction 13, damages, would apply to all of the privacy claims. The affirmative defenses, Instruction 14, qualified privilege, and Instruction 15, consent, also apply to all privacy claims.

Update on Proposed Arizona Senate Bill to Repeal UCATA

In our February 2017 article, we wrote about Arizona Senate Bill 1096, which was introduced and proposed to repeal the Uniform Contribution Amongst Tortfeasors Act (UCATA). Since then, the bill was not heard in the Senate Judiciary Committee and is effectively dead for the session. This is great news because the repeal of the UCATA would have been detrimental to defendants as it would have essentially reinstated joint and several liability among tortfeasors.

ABOUT THE AUTHOR: Sitar Bhatt is an associate in Tyson & Mendes’ Phoenix, AZ office. Mr. Bhatt specializes in insurance defense, personal injury, professional liability, and general civil litigation. Contact him at (602)385-5656 or sbhatt@tysonmendes.com.