It Is Time to Revise Jifu
| Jurisdiction | Utah,United States |
| Citation | Vol. 2 No. 2 Pg. 10 |
| Pages | 10 |
| Publication year | 1989 |
Gary L. Johnson, J.
For the last 30 years, attorneys in Utah preparing jury instructions for trial have relied upon a book titled Jury Instruction Forms for Utah ("JIFU"). In the office of almost every trial lawyer in our state, one can find a dog-eared, well-worn copy of JIFU. Today, however, there is a serious question as to the utility and reliability of JIFU.
The inaccuracies in JIFU are now legion. One can find instructions which completely misstate current law, instructions which are incomplete statements of current law and a total lack of instructions on many modern areas of civil practice. A brief overview of those problem areas should suffice to convert the reader into an adherent of this author's position: a new edition of JIFU is needed.
MISSTATEMENTS OF LAW
JIFU 17.1 is titled "Assumption of Risk Doctrine Defined." The instruction sets forth a definition of assumption of the risk, and in the last paragraph provides that one who thus assumes a risk "is not entitled to recover for damage. . .which results from the dangerous condition or conduct to which [he] thus exposed [himself]." That statement is no longer an accurate reflection of Utah law. A finding by a jury that a plaintiff has assumed a risk is not a complete bar to recovery.
In Jacobsen Constr. v. Structo-Lite Eng'g, 619 P.2d 306 (Utah 1980), the Utah Supreme Court held that under our comparative negligence statute, the phrase "assumption of the risk" was no longer appropriate to describe the concepts embodied in that doctrine and assumption of the risk had to be treated as a form of contributory negligence. 619 P.2d at 312. What Utah lawyers practicing today need is an instruction that accurately reflects the holding of Jacobsen Constr. and its progeny.
JIFU 17.20 is a "last clear chance" instruction. In Utah there is no longer a distinct doctrine of last clear chance. See Dixon v. Stewart, 658 P.2d 591 (Utah 1982). Last clear chance, like assumption of the risk, is now considered a form of comparative negligence and may be argued by an attorney in closing arguments, but it cannot be articulated in a separate jury instruction.
Chapter 34 of JIFU contains 10 separate instructions concerning the Utah Guest Statute, Utah Code Ann. Sect. 41-9-1 et seq. (repealed 1988). Although the author is certain that every practicing attorney in our state is aware that the Utah Supreme Court...
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