Jury Instructions

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 411-448

JURY INSTRUCTIONS

32-1

CHAPTER 32

JURY INSTRUCTIONS

I. PREPARATION OF JURY INSTRUCTIONS

A. Basic Requirement

§32:01 Points on Which Court Instructs Jury

§32:02 Instructions Must Incorporate Parties’ Factual Contentions

§32:03 Charging Statutory Violations

§32:04 Instructions Must State Law Accurately

§32:05 Charge Is Considered as a Whole

B. Dismissed Parties and Claims

§32:10 Dismissed Parties

§32:11 Dismissed Claims

§32:12 Claims against Settled Defendants or Non-parties

C. Which Claims and Theories to Charge on

§32:20 Charge on All Theories

§32:21 Unpleaded Theories

§32:22 Issues Not Supported by Evidence Should Not Be Charged

§32:23 Charging Statutory Causes of Action

§32:24 Redundant Theories Should Not Be Charged

§32:25 Charge on Pain and Suffering

D. Pattern and Non-Pattern Instructions

§32:30 Pattern Jury Instructions

§32:31 “Non” Pattern Jury Instructions

II. CHARGE CONFERENCE

§32:40 General Rule

§32:41 On or off the Record?

§32:42 Handling the Conference

§32:43 Requesting Instructions

§32:44 Burden Is on Party Seeking Charge to Request It

§32:45 Other Issues

§32:46 Court’s Decision on Submitted Requests to Charge

III. OBJECTING TO THE CHARGE

§32:60 Objection Required to Preserve Error

§32:61 Absent Objection, Charge Is Law of Case

§32:62 Object Outside Jur y’s Hearing

§32:63 Objection Must Be Specif‌ic

§32:64 Fundamental Error in the Charge

§32:65 Timing of Objections

§32:66 Objecting at the Charge Conference

JURY INSTRUCTIONS

New York Trial Notebook 32-2

IV. CHARGING THE JURY

A. Before Deliberations Begin

§32:80 Delivery of Charge

§32:81 Provision of Charge to Jury in Writing

B. During Deliberations

1. When and How Supplemental Charges Should Be Given

§32:90 Court’s Duty to Give Supplemental Charge

§32:91 Procedure

§32:92 Correcting Erroneous Charge

§32:93 Supplying Missing Charge

§32:94 “Allen Charge”

§32:95 Recharge After First Verdict Rejected

2. Objecting to Supplemental Charges

§32:100 Objection to Supplemental Charge Ordinarily Required

§32:101 If Court Overrules Objection

§32:102 Objection to Re-Reading Original Charge Ordinarily Required

V. MARSHALING EVIDENCE

§32:110 General Rule

§32:111 Whether to Marshal or Not

§32:112 May the Court “Partial Marshal”?

§32:113 Marshaling Must Be Balanced

§32:114 Instructions as to Matters of Fact

§32:115 Marshaling Must Be Accurate

FORMS

Form 32:10 Proposed Jury Instruction: Liability of Third Party Defendant

Form 32:20 Proposed Jury Instruction: Negligence Is Necessarily

Subsumed Within Reckless or Wanton Conduct

Form 32:30 Proposed Jury Instruction: Compliance With Safety Standard

Form 32:40 Proposed Jury Instruction: All Persons Equal Before the Law—Organizations

Form 32:50 Proposed Jury Instruction: Defendant Manufacturer/Distributor Not Insurer

Form 32:60 Proposed Jury Instruction: Occurrence of Accident Not Inference of Defect

Form 32:70 Proposed Jury Instruction: State of the Art

Form 32:80 Proposed Jury Instruction: Defect at Time of Possession

Form 32:90 Proposed Jury Instruction: Intervening Causes

Form 32:100 Proposed Jury Instruction: Inherently Improbable Testimony

Form 32:110 Proposed Jury Instruction: Negligence, Proximate Cause:

Specif‌ic Application to Plaintiff’s Decedent

Form 32:120 Proposed Jury Instruction: Comparative Fault of Plaintiff’s Decedent—Proximate Cause of Crash

Form 32:130 Proposed Jury Instruction: Comparative Fault of Plaintiff’s Decedent—

Negligence per se of Intoxicated Persons

JURY INSTRUCTIONS

32-3 Jury Instructions §32:02

I. PREPARATION OF JURY INSTRUCTIONS

A. Basic Requirement

§32:01 Points on Which Court Instructs Jury

After closing arguments, the judge instructs (or charges) the jurors about:

• The issues in the case;

• The principles of law the jurors will need to apply to decide those issues;

• The process they should follow to decide the issues; and

• How they should go about reaching a verdict.

The jury is given a verdict sheet, which may contain instructions as to how to respond to certain questions.

[See Ch 33.]

Even after the jury has begun deliberations, the court has the discretionary power to recall a jury to issue

additional instructions. Phillips v. New York Central and Hudson River Railroad Co., 127 NY 657, 27 NE 978

(1891). However, in Barreto v. Calderon, 31 AD2d 896, 897, 297 NYS2d 799, 800 (1st Dept 1969), in a motor



   

has broad discretion to recall the jury and give further instructions either on its own initiative or at the request

of a party, here, after so many hours of deliberation, and where in neither pleadings, bill of particulars, proof nor

  

into the case of an entirely new legal principle was detrimental to the administration of even-handed justice (there

was a dissent, citing Phillips).

§32:02 Instructions Must Incorporate Parties’ Factual Contentions

A jury charge must incorporate the factual contentions of the parties in respect of the legal principles charged.

The trial court’s instructions should state the law as applicable to the particular facts in issue that the evidence in

the case tends to prove. Mere abstract propositions of law applicable to any case, or mere statements of law in

general terms, even though correct, should not be given unless they are made applicable to the issues in the case

at bar. For example, in negligence actions, abstract rules applicable to any negligence case, or a mere statement

of the law of negligence in general terms, even though correct, should not be given unless made applicable to the

issues in the case at bar. [Green v. Downs, 27 NY2d 205, 208, 316 NYS2d 221, 223 (1970).]

The court must state and separately outline the disputed issues of fact. [Green, 27 NY2d at 208-09, 316 NYS2d



was negligence [citing Green v. Downs

it must state and outline separately the disputed issues of fact as the nature of the case and the evidence require.”

[Altamirano v. Door Automation Corp., 76 AD3d 401, 402, 907 NYS2d 164, 165 (1st Dept 2010).]

CASE EXAMPLES:

• Green v. Downs, 27 NY2d 205, 207–208, 316 NYS2d 221, 222–3 (1970). The Court of Appeals reversed the

   

   



1211(a) (The driver of a vehicle shall not back the same unless such movement can be made with safety and



fair substitute for the imperative ‘shall not back’ appearing in the statute quoted.” The error was compounded



evidence and to relate to it the principles of law that were charged, and to apply to each party’s version the

pertinent statutory and decisional law.

• Johnson v. Artkraft Strauss Sign Corp., 45 AD2d 482, 484, 359 NYS2d 773, 774-5 (1st Dept 1974). In a per-

sonal injury negligence case, the charge “was most general in nature, totally failed to advise the jury of the