Jury Instructions
| Author | Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen |
| Pages | 399-444 |
JURY INSTRUCTIONS
CHAPTER 32
JURY INSTRUCTIONS
A. New York Trial Notebook 32-2
JURY INSTRUCTIONS
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
Calderon, 31 AD2d 896, 897, 297 NYS2d 799, 800
(1st Dept 1969), in a motor vehicle accident case,
after 23 hours of deliberation and at the request of
plaintiff, the court instructed the jury at length on
the emergency doctrine, and 30 minutes later, the
jury returned a verdict for plaintiff. While the court
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 requests to charge, had any
party claimed that plaintiff had been confronted
with an emergency, the importation 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 at 223-4.] “The court is required
to clearly define for the jury what it must find in
order to determine whether there was negligence
[citing Green v. Downs]. A charge must be precise,
specifically related to the claim of liability, and 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 Appellate Division’s
affirmance of a verdict for the defendant and
ordered a new trial. Plaintiff was injured
when struck by defendant’s automobile as it
was backing up. Defendant said he did not
see plaintiff before the collision. The Court
of Appeals said it was “substantial error” to
refuse to charge Vehicle and Traffic Law
1211(a) (The driver of a vehicle shall not
back the same unless such movement can
be made with safety and without interfering
with other traffic). Recital of the driver’s
general duty to keep a vigilant lookout “was
no fair substitute for the imperative ‘shall
not back’ appearing in the statute quoted.”
The error was compounded by an almost
complete lack of specificity in the overall
charge; and in particular, by the failure to
discuss the 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 personal injury negligence
32-3 Jury Instructions §32:03
JURY INSTRUCTIONS
case, the charge “was most general in
nature, totally failed to advise the jury of
the relations of the various parties in this
litigation to each other, with particular
reference to which legal consequences
flowed from such relations. In other words,
it failed completely to come to grips with
the particular legal principles involved and
the jurors were left in the dark as to what
law applied in the case.”
• Rosas v. Ishack, 219 AD2d 633, 631
NYS2d 417 (2d Dept 1995). The charge
failed to incorporate the contentions of
the parties or otherwise relate the facts of
the case to the applicable law; thus, the
trial court’s setting aside the verdict (on a
different ground) was upheld.
• Pederson v. Balzan, 117 AD2d 933, 934,
499 NYS2d 239, 241 (3d Dept 1986). In a
car versus bicycle accident, the trial court’s
rejection of a clearly warranted “proper
lookout” charge in favor of a general
negligence charge rendered the instructions
inadequate; “no effort was made to apply
the law in the context of the facts,” and a
new trial was required.
• Altimirano v. Door Automation Corp., 76
AD3d 401, 907 NYS2d 164 (1st Dept
2010). A security guard was operating
a large motorized door when part of the
mechanism for opening the door broke
off and hit him in the head. Defendant, a
contractor who had repaired the door for
the property owner, had earlier been found
potentially liable under an exception to the
rule normally precluding contractual third
party liability (48 AD3d 308, 851 NYS2d
508 (1st Dept 2008). The charge to the jury
repeated several times the words “launched
a force or instrument of harm,” which the
First Department held “confused and misled
the jury, precluding its fair consideration of
the facts.” 76 AD3d at 402, 907 NYS2d at
165. “Here the court’s instructions did not
concisely explain, in fact-specific terms,
what the jury needed to find in order
to determine [defendant’s] liability for
allegedly negligent repair work. Instead,
it was both misleading and confusing,
because the charge included instructions
regarding third party contractor’s tort
liability.” Id. at 402, 907 NYS2d at 164.
A verdict for defendant was set aside and
the case remanded for a new trial. A two-
judge dissent thought the charge as given
was clear and accurate. [The majority had
found objectionable the repeated use of the
phrase “launched a force or instrumentality
of harm,” noting the language was from
a Court of Appeals case decided in 1928.
Although not explicitly stated, perhaps the
majority felt that the phrase suggested to
the jury that some sort of positive action on
defendant’s part to cause the accident was
required. Interestingly, those very words
had been used by the First Department in
its 2008 decision.]
NOTE:
The charge to the jury must not ask the
jury to decide any issue which should be
determined as a matter of law. [See, e.g.,
Charles v. Broad Street Development, LLC,
89 AD3d 885, 932 NYS2d 537 (2d Dept 2011)
(The trial court erred in submitting to the jury
the issue of whether plaintiff was a special
employee of defendant building owner—and
so barred from recovery by the Workers
Compensation Law—where the evidence
in the record demonstrated that plaintiff
was not a special employee as a matter of
law. Presumably, if the jury had found that
plaintiff was not a special employee, the error
would have been harmless, but the jury’s
contrary finding led to a new trial as to the
building owner.).]
§32:03 Charging Statutory Violations
Often, a statute may arguably define a standard
of care, and failure to comply with the statute may
be evidence of negligence. To find liability, the
violation of the statute must be a proximate cause of
the accident or the injury. [Ortiz v. Kinoshita & Co.,
Ltd., 30 AD2d 334, 335, 292 NYS2d 48, 50 (1st
Dept 1968), Finn v. Department of Mental Hygiene,
49 AD2d 995, 374 NYS2d 394 (3d Dept 1975).]
Conversely, if there is no reasonable view under
which a statutory violation could be viewed as a
proximate cause of the accident, it is error to charge
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