DELORES CAPUANO AND		:  NUMBER:  492,494, “B”
MICHAEL CAPUANO, 
INDIVIDUALLY AND ON 
BEHALF OF THEIR MINOR 
CHILD SADIE CAPUANO

VERSUS					:  FIRST JUDICIAL DISTRICT COURT

TARA STEWART, STATE 
FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, JAMES
MARKS, AND UNITRIN 
PREFERRED INSURANCE
COMPANY					:  CADDO PARISH, LOUISIANA

AND

DELORES CAPUANO AND		:  NUMBER:  503,589, “C”
MICHAEL CAPUANO

VERSUS					:  FIRST JUDICIAL DISTRICT COURT

ABC AUTO PARTS LTD., ET AL	:  CADDO PARISH, LOUISIANA

CIVIL JURY INSTRUCTIONS

PRELIMINARY

	Members of the jury, you have heard the testimony and arguments of counsel.  It now becomes my duty to charge you as to the law in the case and it will be your duty to take the law as I instruct you and apply it to the facts.  It is your duty as jurors to follow the law as stated to you in my instructions, and to apply these rules of law to the facts as you find them from the evidence before you.
Your determination of the facts must be based upon all the testimony that you hear and the other evidence that is submitted.  Anything you may have seen or heard outside the courtroom is not evidence and should be disregarded.  You should decide this case solely on the evidence presented here in the courtroom.  You are not permitted to consider any facts that have not been proved by the 

evidence at trial.  You are bound to accept the rules of law that the Court gives you in these instructions whether you agree with them or not.
	You are the exclusive judges of the evidence and credibility of the witnesses.  The Court is not permitted to comment either upon what has or has not been proven, or upon which witnesses you should believe or not believe.  Statements made by the lawyers are not evidence.
The fact that the plaintiffs have brought this lawsuit and is in Court seeking damages creates no inference or presumption that they are entitled to a judgment for any amount at all.  The fact of filing suit for damages by itself in no way tends to establish the claim.  Damages or injuries are not to be presumed from the mere filing of a suit.  They must be proved by a reasonable preponderance of the evidence.  A mere possibility is insufficient.
You must deliberate on this case without regard to sympathy, prejudice, or passion for or against any party to this suit.  This means that the case should be considered and decided as an action between persons of equal standing in the community.  A business entity or limited liability company is entitled to the same fair trial at your hands as a private individual.  All persons stand equal before the law, and are to be dealt with as equals in our courts.
	It is your duty to determine the credibility of the witnesses, and it is your duty to determine how much weight you should give the testimony of the witnesses.  In this respect, you may take into consideration the probability or improbability of the statements of the witnesses, their opportunities for knowledge of the facts to which they testify, their reliability in noting and remembering facts, their demeanor on the witness stand, the interest or lack of interest they may have in the case, their relationship with either the plaintiffs or defendants and every circumstance surrounding the giving of their testimony which may aid in weighing their statements.  If you believe that any witness in the case has willfully and deliberately testified falsely to any material fact for the purpose of deceiving you, then you are justified in disregarding the entire testimony of such witness as proving nothing, and as not worthy of belief.  You have the right to accept as true, or reject as false, the testimony of any witness, in whole or in part, as you are impressed with his or her veracity.
If the testimony of a witness here in court is inconsistent with a prior statement he or she has made, it is your duty to determine if the testimony of the witness here in court should be discredited.  If you decide that the testimony of the witness has been discredited, then you are to decide what weight, if any, to give to the testimony of the witness.  If you should find that a witness has testified falsely as to a material fact, then you have the right to reject the entire testimony of the witness or to reject only part of the testimony, based upon how you are impressed with the truthfulness of the witness.
	Experts are persons who are learned in a particular science or in technical matters and they are permitted to express their opinion upon scientific or technical matters in issue.  But such experts are not called into Court for the purpose of deciding the case.  You, the jurors, are the ones who, in law, must bear the responsibility of deciding the case.  The experts are merely witnesses and you have the right to either accept or reject their testimony and opinions in the same manner and for the same reasons for which you may accept or reject the testimony of other witnesses in the case.
RE:  BURDEN OF PROOF
	In criminal cases, the State must prove the guilt of the accused beyond a reasonable doubt.  In a civil case, such as this, the rule is different.  The burden is upon the plaintiffs to prove their case, including the amount due them by a preponderance of the evidence.
	A preponderance of the evidence does not mean that either side must have a greater number of witnesses.  It is sufficient if, after you have analyzed all the evidence offered by both sides, giving due consideration to all of the facts in the case, the weight of it is in favor of the plaintiffs or in favor of the defendants, that is to say, more probable than not.  Proof by a preponderance of the evidence simply means that taking the evidence as a whole, such proof shows that the fact or cause sought to be proven is more probable than not.  No judgment should be based on mere conjecture or possibility.
The parties may meet their burden of proof by the use of direct or circumstantial evidence.  Proof by direct or circumstantial evidence is sufficient to constitute a preponderance of the evidence when, taking the evidence as a whole, such proof shows the fact or causation to be proved is more probable than not.  
RE:  NEGLIGENCE:
	All suits of this character are based upon Article 2315 of our Civil Code which, in part, reads as follows:
	"Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it."
	
	Article 23l6 provides:
	
"Every person is responsible for the damage he occasions not merely by his acts, but by his negligence, his imprudence, or his want of skill."

	Fault includes negligence, which is defined as the failure to do something which it would be the legal duty of a prudent and reasonable person to do, or the doing of something which would be the legal duty of a prudent and reasonable person not to do; such act or omission being one that in ordinary natural sequence results in the injury complained of.  Negligence or fault is not presumed; the burden of proving it rests upon the party asserting or charging it.
	In light of these articles, 2315 and 2316, please consider the following rules and laws regarding proper control of a vehicle:
Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules shall apply.  A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.  A change of lanes by the driver must be indicated by a turn signal and made with reasonable safety.  A motorist who attempts to change traffic lanes on a multiple-lane highway must ascertain before doing so that the maneuver can be made safely without endangering normal overtaking or oncoming traffic.  
When there is a change of lanes by a motorist immediately preceding an accident, the burden of proof is on the motorist changing lanes to show that he first ascertained that his movement could be made safely.  
The law places a greater burden of care on a motorist changing lanes than on a motorist proceeding at a lawful rate on a straight line in a marked lane.
The following motorist in a rear-end collision is presumed to be at fault.  The general rule of law is that when a rear-end accident occurs, the driver of the following vehicle is reasonably presumed negligent.  
When this presumption is applied, it effectively shifts the burden of proof to the driver of the following vehicle to prove that she was not negligent.  
To rebut the presumption and avoid liability, the following motorist must prove that she had her vehicle under control, she closely observed the lead vehicle, and she followed it at a safe distance under the circumstances.  
Anyone who finds herself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or the best means to adopt in order to avoid an impending danger, is not guilty of negligence if she fails to adopt what subsequently and upon reflection may appear to be the better method, unless the emergency is brought about by her own negligence.
Drivers of automobiles are under a never ceasing duty to maintain a proper lookout and to see what should be seen.  Additionally, under Louisiana traffic laws, a motorist is required to maintain reasonable vigilance, to see that which she should have seen, and to exercise reasonable care under the circumstances.  	
A motorist vehicle driver has the duty of exercising ordinary care of having his car under control and operating it at a reasonable and proper rate of speed while approaching an intersection and crossing it.
It is the duty of a driver approaching an intersection to operate his/her car at a rate of speed which is lawful and reasonable under the circumstances, and to have it under such control so that she may stop it to avoid obstructions or objects crossing her path.
RE:  EMPLOYER/EMPLOYEE RELATIONSHIP
	An employer is liable for the damages caused by the fault of his employee, if the incident occurs while the employee is exercising the functions for which she was employed.  Sometimes we shorten this principle to the statement that the employee must have been in the course and scope of her employment.
RE: BURDEN OF PROOF- CAUSATION
In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the accident and the complained - of injuries.  The test for determining the causal relationship between the accident and subsequent injuries is whether the plaintiff proved, through medical testimony, that it was more probable than not that the subsequent injuries were caused by the trauma suffered in the accident.  Where multiple accidents and defendants are involved, each defendant is liable only for the direct and proximate results of his wrongful act.  In such situations, the plaintiff is required to prove a causal connection between the damages claimed and each accident by a reasonable preponderance of the evidence.  
RE: COMPARATIVE FAULT
	Regarding the first accident of March 17, 2004, if you find that more than one party was at fault, then your function is to determine responsibility for the accident between defendants and award such damages as you believe have been proven.  The total fault assessed must equal 100 percent.
RE: PROOF; DAMAGES 
	If, after considering the evidence in the case as controlled by the law instructed herein, you should find for the plaintiffs, the next question is the quantum or amount of damages.
	The fact that I instruct you on the law of damages, as well as on other matters, is not to imply or suggest that the Court intends to express any opinion as to whether or not they should be allowed.  Whether or not the plaintiffs are entitled to recover and whether or not any damages are due is for you, the jury, to decide.
	The general law is that the compensation should be equal to the injury received.  Punitive damages are not to be awarded, nor should sympathy or prejudice enter into your judgment.
	If you should find that the plaintiff is entitled to a verdict in this case, you should allow such sums as will fairly compensate the plaintiff for the damages 
sustained.  No one may recover more for any item of damage than the amount proven.
RE: PROOF; GENERAL & SPECIAL DAMAGES
	Under the law, there are two kinds of damages usually involved in cases of this kind, namely, special damages and general damages.  
By special damages, we mean such items as are susceptible of reasonably exact proof, such as medical and hospital expenses, such matters of that kind that can be reasonably calculated.  
	By general damages, we mean such things as pain and suffering, anguish, inconvenience, disability and loss of enjoyment of life.  These items of damage are difficult to measure in dollars and cents.  You must carefully weigh the evidence and determine the amount of such items according to your very best judgment and experience.  One who has suffered damage should not be denied recovery simply because the damage cannot be measured with exactitude.  
In calculating the damages which the plaintiff may have sustained as a result of this accident, you should consider evidence bearing upon her future suffering and disability, as well as past suffering and disability.
By the term “suffering” is included both physical and mental suffering, including worry and feelings of economic insecurity by reason of disability, together with nervousness or tension due to being unable to lead a normal life because of this disability.
Moreover, if you find that such suffering will be permanent, you will be justified in calculating the damages which would be fair over the rest of her life.
The primary considerations in the assessment of damages in a personal injury action are the severity and duration of the injury.
Under Louisiana law a tort victim may recover past (from injury to trial) and future (post trial) medical expenses caused by tortious conduct.  A plaintiff shows the probability of future medical expenses with supporting medical testimony and estimations of their probable cost.   The proper standard for determining whether a plaintiff is entitled to future medical expenses is proof by a preponderance of the evidence the future medical expenses will be medically necessary.  It is well acknowledged an award for future medical expenses is in great measure highly speculative and not susceptible to calculation with mathematical certainty. 
Damages for loss of enjoyment of life may be awarded in addition to other general damages.  An award of damages for loss of enjoyment of life is not duplicative of an award for pain and suffering. A plaintiff is entitled to recover damages for loss of enjoyment of life if he proves that his lifestyle was detrimentally altered or if he was forced to give up activities because of his injury.  
The same injuries may affect people differently and you should fairly consider evidence bearing on the claim for loss of enjoyment of life. 

Scarring and disfigurement is a proper basis for an award in addition to pain and suffering for the injury that caused the scarring and disfigurement.
RE: PROOF; PRE-EXISTING INJURIES
	In your consideration of the items of damage you should bear in mind that under the law the one liable or responsible for an accident must take the injured person as he or she finds him, and is responsible for all the natural and probable consequences of his/her wrong, even though the consequences are more serious or harmful by reason of a pre-existing condition, physical defect or weakness of the injured person.  If the accident results in aggravation of a previous condition of disability or of pain of the injured person, the one responsible is liable both for the aggravation of the pre-existing condition and for any new injuries resulting from the accident.
	However, plaintiff must prove (1) the prior existing condition and (2) the extent of the aggravation.  If you find that plaintiff would have faced this aggravation of her condition whether this incident happened or not, then plaintiff is not entitled to damages or that portion of her claim, since the defendants are not responsible for the normal and natural results of plaintiff’s prior condition.	
 RE: PROOF
	 In a suit for personal injuries, the test for determining the causal relationship between an accident and later injuries is whether the plaintiff proved, through medical testimony, that it was more probable than not that the later injuries were caused by trauma suffered in the accident.  The degree of force of a collision is not necessarily determinative of the existence or the extent of those injuries.

	The determination of damages is solely your function, and must be based on competent evidence.
RE:  LOSS OF CONSORTIUM
	A claim has also been made in this case by Delores Capuano’s husband, Michael Capuano, for his damages from plaintiff’s injuries, due to the loss of “consortium, service and society” previously enjoyed with his wife, Delores Capuano.
	This term needs some further definition.  “Loss of Consortium” is the term which the law uses to describe the loss of love, companionship, comfort and services which a family member might have provided if she had not been injured.  You may consider the following factors in making this determination: loss of love and affection, loss of companionship and moral support, decreased sexual 
relations, plaintiff’s decreased ability to perform household services, and decreased aid and assistance from plaintiff in the family unit.
	You are not required to make an award in this case to Michael Capuano for loss of consortium merely because his wife Delores Capuano was injured.  You should award damages to her only if you determine that she has proven that there has been a loss of consortium, as I have described it to you, resulting from the injury.
RE: DUTIES OF THE JURY
	You were told at the beginning of the trial that you were not to discuss the case among yourselves.  That restriction is now removed.  It is now your duty to consult with one another and to deliberate, with a view toward reaching agreement, if you can do so without violence to your individual judgment.  You each must decide the case for yourself, but you should do so only after a consideration of the case with your fellow jurors, and you should not hesitate to change an opinion when you are convinced that you are wrong.
	You will elect one of you as foreperson of the jury.  The duty of the foreperson is to conduct your deliberations, and after you have arrived at verdicts, 
to write those verdicts on the forms provided, sign the verdicts as foreperson, and speak for you when you return to the open courtroom.
	Nine of the twelve of you must agree in order to return verdicts in this case; it is immaterial whether the same nine vote identically on each question on each verdict form, and it is immaterial whether your foreperson is one of the concurring nine or not.  In other words, the same nine jurors do not need to agree on each question on the jury verdict form.  It is the duty of the foreperson to write the verdicts, sign the verdicts as foreperson, and speak for you.
	You will be handed verdict forms that are responsive in this case, and when you arrive at the verdicts, the foreperson shall sign and date the verdicts.
	The case is now yours to decide.
							____________________________
 May 27, 2010      					      SCOTT J. CRICHTON
 							         DISTRICT JUDGE  
ATTORNEYS AND REPRESENTATIONS:

Sam Gregorio, Counsel for Delores Capuano and Michael Capuano 
Jim Gregory, Counsel for Delores Capuano and Michael Capuano
Julie Johnson, Counsel for Delores Capuano and Michael Capuano
Mark Young, Counsel for James Marks and Unitrin Preferred Insurance Company
Andrew Plauche`, Counsel for James Marks and Unitrin Preferred Insurance Company
Dan Keele, Counsel for Tara Stewart and State Farm Mutual Automobile Insurance Company
Anna Maria Keele, Counsel for Tara Stewart and State Farm Mutual Automobile Insurance Company
Frank Carroll, Counsel for Pamela Perkins and ABC Auto Parts, Ltd.