Free Objection - District Court of Connecticut - Connecticut

Case 3:01-cv-02402-AWT

Document 175

Filed 04/05/2008

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT PETER D. MAINS and LORI M. MAINS Plaintiffs, v. SEA RAY BOATS, INC. Defendant. : CASE NO. 3:01cv2402 (AWT) : : : : : : APRIL 5, 2008

DEFENDANT SEA RAY'S OBJECTIONS TO PROPOSED JURY INSTRUCTIONS Pursuant to the Court's Request, Defendant Sea Ray submits herewith its comments on the Court's proposed jury charge: 1. Page 17: Duty to Warn Sea Ray submits that the Court should not give an instruction regarding failure to warn because there is no evidence that supports an instruction regarding failure to warn for Count 1, the Product Liability Count. In addition, Sea Ray submits that the instruction should not be given because there was no reference to the failure to warn claim in the Trial Memorandum submitted in May 2007. If the Court gives such an instruction, Sea Ray submits that: a) the first sentence of the instruction should state at the end, after the word

"instructions," the language "regarding the boat's allegedly unreasonably dangerous propensities." Sharp v. Wyatt, 31 Conn. App. 824, 833 (1993), aff'd, 230 Conn. 12 (1994); Gajewski v. Pavelo, 36 Conn. App. 601, 604 n. 2 (1994), aff'd, 236 Conn. 27 (1994). b) the instruction should include the statement that "Sea Ray only a duty to warn of

dangers of which it knew or should have known." Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 235 (1980).

Case 3:01-cv-02402-AWT

Document 175

Filed 04/05/2008

Page 2 of 3

c)

The proposed third paragraph of the failure to warn charge relates to causation

and should be addressed as part of the Court's charge on Proximate Cause beginning on page 24. Sea Ray submits that plaintiffs must establish both cause in fact and proximate cause with respect to all of their claims. With respect to the failure to warn claim, the statutory language in Conn. Gen. Stat. 52-572q(c) constitutes the "proximate" portion of the test, but the general the "cause in fact" element still must be met. d) case. 2. Page 19-20: Comparative Responsibility In the second sentence after the word "liability" and before the comma, the word "and the damages resulting therefrom" should be added. This is consistent with the Court's instruction regarding Comparative Negligence. 3. Pages 22 and 24: Revocation On page 22, in the first sentence, Sea Ray submits that the instruction should be that the plaintiffs claim to have revoked their contract for purchase of the boat, not that they are seeking to do so in this lawsuit. On page 24, the instruction should include language on what constitutes a revocation. Sea Ray submits the following: "A revocation is an "an annulment, cancellation, or reversal. Revocation requires more than notifying the alleged seller that the goods are in breach of the purchase agreement. The notice of revocation must unequivocally notify the seller that the buyer is canceling his acceptance of the goods, and that the buyer is asserting a legal right to return the goods, and not merely requesting or recommending that the goods be returned or exchanged." The final paragraph of the proposed instruction is not relevant to the issues in this

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Case 3:01-cv-02402-AWT

Document 175

Filed 04/05/2008

Page 3 of 3

4.

Page 25: Damages: The instruction should indicate that the plaintiffs have the burden of proving their claims

of damages. Sir Speedy, Inc. v. L & P Graphics, 957 F.2d 1033, 1038 (2d Cir. 1992)

Respectfully submitted, DEFENDANT, SEA RAY BOATS, INC.

By

/s/ Daniel J. Foster James H. Rotondo (ct05173) Daniel J. Foster (ct 24975) Day Pitney LLP 242 Trumbull Street Hartford, Connecticut 06103-1212 Phone: (860) 275-0100 Fax: (860) 275-0343 Its Attorney

CERTIFICATION I hereby certify that on this date a copy of foregoing Defendant's Objections to Jury Instructions was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CM/ECF System. /s/ Daniel J. Foster Daniel J. Foster (ct24975)

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