New Iowa “Scope of Liability”/ Proximate Cause Jury Instructions!

As most practicing Iowa lawyers should know, the Iowa Supreme Court did away with the old doctrine of Proximate Cause last year (with some clarification in the Royal Indemnity case earlier this month) and replacing it with “Scope of Liability.”

The big headache for judges and trial lawyers is what the new jury instructions will look like.

Well, you’re in luck. I’m on the Iowa Jury Instructions Committee, and we approved two new jury instructions to replace the old proximate cause instruction – one on “factual cause” (ie did defendant’s conduct cause plaintiff’s damages) and another one on “scope of liability” (to be used only in rare cases – this is usually a question for the court)

Both instructions, after the jump.

(Before I provide these instructions, keep in mind that they aren’t official until they are approved by the Board of Governors. But you lucky readers are going to be insiders – you’ll have the scoop before anyone else).

700.3   Cause – Defined.  The conduct of a party is a  cause of damage when the damage would not have happened except for the conduct. 

Authority 

Thompson v. Kaczinski, 774 N.W.2d 829, 836-39 (Iowa 2009)

Royal Indemnity Co. v. Factory Mut. Ins. Co., ___ N.W.2d ___, ___, No. 07-1324 slip. op. at 19 (Iowa June 11, 2010)Restatement (Third) of Torts:  Liability for Physical and Emotional Harm, § 26 

Comment 

Note:  In a case where the evidence may show more than one cause contributed to the injury or damages, the following sentence should be added:  “There can be more than one cause of an injury or damage.” 

Note:  A separate instruction must be given where the evidence may show “multiple sufficient causes.”  See Thompson, 774 N.W.2d at 837 n. 3 

Note:  Consider appropriateness of giving this instruction in addition to Iowa Civil Jury Instruction 220.34 Previous Infirm Condition where “Eggshell Plaintiff Rule” applies.

700.3A                        Scope of Liability – Defined.  You must decide whether the claimed harm to plaintiff is within the scope of defendant’s liability.  The plaintiff’s claimed harm is within the scope of a defendant’s liability if that harm arises from the same general types of danger that the defendant should have taken reasonable steps [or other tort obligation] to avoid. 

Consider whether repetition of defendant’s conduct makes it more likely harm of the type plaintiff claims to have suffered would happen to another.  If not, the harm is not within the scope of liability. 

Authority 

Thompson v. Kaczinski, 774 N.W.2d 829, 839 (Iowa 2009)

Royal Indemnity Co. v. Factory Mut. Ins. Co., ___ N.W.2d ___, ___, No. 07-1324 slip. op. at 18-20 (Iowa June 11, 2010)

Restatement (Third) of Torts:  Liability for Physical and Emotional Harm,  §§ 29, 30 & model instruction No. 2 (modified, at page 517).

 Comment 

In most cases, scope of liability will not be in dispute or will be adjudicated by the court on a dispositive motion.  This instruction should be given only if under the facts of the particular case scope of liability is a question for the jury.

Keep in mind that the verdict forms, marshalling instructions, etc have to change too. We’ve approved new verdict forms. Use this as an example:

300.4  Verdict – Single Plaintiff – Single Defendant – Cases Governed By Chapter 668. 

[Use caption of case if desired]

 VERDICT NO._______

 We find the following verdict on the questions submitted to us:

 Question No. 1:  Was the defendant at fault?

Answer “yes” or “no.”

ANSWER:    

 [If your answer is “no,” do not answer any further questions.]

 Question No. 2:  Was the fault of the defendant a cause of any item of damage to the plaintiff?

Answer “yes” or “no.”

ANSWER:    

 [If your answer is “no”, do not answer any further questions.]

 Question No. 3: Was any item of damage to the plaintiff within the scope of defendant’s liability?

Answer “yes” or “no.”

ANSWER

 [If your answer is “no”, do not answer any further questions.]

 Question No. 4:  Was the plaintiff at fault?

Answer “yes” or “no.”

ANSWER:    

 [If your answer is “no,” do not answer Questions No. 5 or 6.]

 Question No. 5:  Was the plaintiff’s fault a cause of any damage to the plaintiff?

Answer “yes” or “no.”

ANSWER:    

 [If your answer is “no,” do not answer Question No. 6.]

 Question No. 6: Was any item of damage to the plaintiff within the scope of plaintiff’s liability?

Answer “yes” or “no.”

ANSWER

 [If your answer is “no,” do not answer Question No. 7.]

 Question No. 7:  Using 100% as the total combined fault of plaintiff and defendant which was a cause of plaintiff’s damage [and within the scope of liability], what percentage of such combined fault do you assign to the plaintiff and what percentage of such combined fault do you assign to the defendant?

ANSWER:  Plaintiff ____________%

                   Defendant _________%

                   TOTAL                   100%

 [If you find plaintiff to be more than 50% at fault, do not answer Question No. 8.]

 Question No. 8:  State the amount of damages sustained by the plaintiff by defendant’s fault [and within the scope of defendant’s liability] as to each of the following items of damage.  Do not take into consideration any reduction of damages due to plaintiff’s fault.  If the plaintiff has failed to prove any item of damage, or has failed to prove that any item of damage was caused by defendant’s fault [or within the scope of defendant’s liability], enter 0 for that item.

   *1.  Past medical expenses                                  $ _______

   2.  Future medical expenses                               $ _______

   3.  Past pain and suffering                                   $ _______

   4.  Future pain and suffering                                $ _______

  TOTAL (add the separate items of damage)        $ _______

 Authority

 Iowa Code section 668.3(8)

Johnson v. Knoxville Comm. Sch. Dist., 570 NW2d 633, 644 (Iowa 1997)

 Note:  *The above list is merely an example of format.  The list of items should be consistent with the damage marshaling instruction.

6/98

 Note:  Question No. 3 above should only be given where Defendant’s scope of liability is at issue and Instruction No. 700.3A is given.

 Note: If the fault of a party or parties other than the defendant is not at issue, do not submit questions 4, 5, 6 and 7.

 Note: Question No. 7 should only be given where Plaintiff’s scope of liability is at issue and Instruction No. 700.3A is given.

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