Free Proposed Jury Instructions - District Court of Arizona - Arizona

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Plaintiff's Proposed Jurv Instruction No. 14
Defendants have the burden to establish the validity of Affrmative Defenses
alleged, such as defenses of modifications, alterations, and/or misuse of the chassis

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by Plaintiffs. Defendants must then prove by a preponderance of the evidence that
any of Plaintiffs' damages were caused by those alleged modifications, alterations,
and/or misuse of the chassis. Lastly, Defendants must prove that any alleged

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modifications, alterations, and misuses were not reasonably foreseeable to
Defendants.

9 Authority: 15 U.S.C. 2304(a)(4), Fed. R. Civ. P. 8, Affirmative Defenses in

10 Answers to Amended Complaint; Jones v. Taber, 648 F.2d 1201 at 1203 (9th Cir.
11 1981 )("(b)urden is always on the party advancing an affrmative defense to establish

12 its validity"); Continental Airlines, Inc., v. Intra Brokers, Inc., 24 F.3d 1099 (9th Cir.
13 1994 )("estoppel is an affirmative defense, for which the defendant bears the burden

14 of proof')
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16 - Accepted
17 - Rejected

18 Modified
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Defendant objects to this instruction because it is redundant and

duplicative of Ninth Circuit Model Instruction No. 1.13. There is no claim that

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there was any modification or alteration and foreseeabilty is not the correct

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standard.

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Plaintiff's Proposed Jurv Instruction No. 15

4 If you find that Defendant has breached its written warranty the standard

5 measure of damages is the difference at the time and place of acceptance between
6 the value of the Motor Home warranted and the value the Motor Home would have

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had if it had been as warranted, unless special circumstances show proximate

damages of a greater amount. The value of the Motor Home as warranted is the

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sales price. In addition, Plaintiff may be entitled to incidental and consequential
damages.
Authority: Brown v. Lindsay, 228 P.2d 262 (Nev., 1951) (Generally, rule against

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recovery of uncertain damages is directed against uncertainty as to existence or
cause of damage rather than as to measure or extent); Knier v. Azores Con

st. Co.,

368 P.2d 673 (Nev. 1962); Fireman's Fund Ins. Co. v. Shawcross, 442 P.2d 907
(Nev., 1968); Central Bit Supply, Inc. v. Waldrop Driling & Pump, Inc. 717 P.2d 35,
§104.2714(2); 15 U.S.C. 231 0(d)(1); 15 U.S.C. 2311 (b)(1); N.R.S. 104.2715 (1) (2).

102 Nev. 139 (Nev.1986); Lyon v. Shelter Resources Corp., 253 S.E.2d 277 (N.C. 1979); Smith v. Chrysler Motors Corporation, 1990 WL 65700 (E.D.Pa. 1990); N.R.S.

- Accepted 18 - Rejected

19 Modified
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Defendant objects to this instruction for a number of reasons. First, the
proper measure of damages is not the "value of the motor home," but the cost

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23 to repair any alleged chassis defects to bring into conformity with the limited
24 warranty. See Defendant's Trial Memorandum re Various Issues, p. 3:10-4:14;
25 Hyundai Motor America, Inc. v. Goodin, 822 N.E. 2d 947, 951 (Ind. 2005); Jones
26 v. Abriani, 350 N.E. 2d 635, 646, (Ind. 1976); Vallev Transportation System v.

27 Reinart, 67 Ariz. 380, 197 P .2d 269 (1948). Further, the instruction tells the jury 28 that the value of the motor home as warranted is the "sales price." However,

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this is Plaintiffs burden to prove, and should not be presumed in an
instruction. Additionally, Plaintiff attempts to make Defendant responsible for

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the value of the entire motor home. Defendant was the manufacturer and
warrantor of the chassis and had no role in any other part of the vehicle, and

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therefore, its liabilty should be limited the value of the product it supplied.
Finally, Defendant objects because it has properly excluded incidental and
consequential damages and Plaintiff is not entitled to recovery of excluded by

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Defendant's limited written warranty. Cippolone v. Liaaett Group, Inc., 505 U.S.
504, 525 (1992); Nairan Co. for General Contractina and Tradina v. Fleetwood

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Enterprises, 659 F. Supp. 1081, 1100 (S.D. Ga. 1986). See also Defendant's
Motion To Preclude Reference To Damages Excluded By Workhorse's Limited

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Warranty.
As an alternative instruction, please see Defendant's Proposed
Instructions Nos. 7 and 9.

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Plaintiffs Proposed JUry Instruction No. 16
In his suit for breach of warranty, Plaintiff is competent to testify to the subject

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Motor Home's value at the time of delivery even if Plaintiff has "no expertise" in
appraising value of Motor Homes.

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Authority: Story Parchment Paper Co. v. Paterson Parchment Paper Co., 282 6 U.S. 555 (1931); Waddell v. L. V.R. V. Inc. 125 P.3d 1160 (Nev. 2006.) (The test for determining whether a nonconformity of goods substantially impairs its value to the

7 buyer such that acceptance of the goods may be revoked is in two parts: (1) a
8 subjective determination as to the value of conforming goods to the individual

plaintiff, as opposed to the average buyer, and (2) an objective inquiry as to whether 9 the nonconformity substantially impairs that value); Lucini-Parish Ins., v. Buck 108

10 Nev. 617 (Nev. 1992); F.R.E. 701; Ricker v. Hopkins Chevrolet, Inc:., 147 Ga. App. 358 (1978); Burch v. Lawrencei 150 Ga. App. 351, 258 S.E.2d 35 (1979) (weight and

11 credibilty of lay person opinion testimony is for the jury to decide); A.R.E. 602 Cmt.
12 5; F.R.E. 701; Lyon v Shelter Resources Corp., 253 S.E.2d 277 (N.C. 1979; Carlson

v Rysavy, 262 N.W.2d 27 (S.D. 1978); W&W Livestock Ent. v. Dennler, 179 N.W.2d

13 756 (Iowa 1970) (same).

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15 - Accepted
16 - Rejected
17 - Modified
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Defendant objects to this instruction because Plaintiff must have some
foundational basis to testify as to the value of the motor home in its allegedly
defective condition. Monroe v. Hvundai Motor America, 606 S.E.2d 894, 897

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(Ga.App. 2004); Kim v. Mercedes-Benz USA, 818 N.E.2d 713, 724 (II. App. 2004);

Further, Plaintiff is not qualified under Fed. R. Evid. 702 to offer testimony
about the value of the motor home. See Defendant's Motion To Exclude

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Valuation Testimony By Plaintiff. As an alternative instruction, please see
Defendant's Proposed Instructions Nos. 7 and 8.

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Plaintiffs Proposed JUry Instruction No. 17
Mathematical certainty as to the amount of damages suffered by Plaintiff is not

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required in determining an award. Rather, you need only find that Plaintiff has
suffered some harm as the result of Defendant's breach of warranty(ies). Plaintiff

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need only introduce evidence suffcient to allow a reasonable estimate of the
damages suffered. Once this burden is met, it is incumbent upon you as the finder of

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fact to determine a monetary award that wil adequately compensate Plaintiff. The
rule that precludes the recovery of speculative damages applies only where the fact
of damages is uncertain, not where the amount of damages is uncertain.

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Authority: Smith v. Chrysler Motors Corporation, 1990 WL 65700 (D.D.Pa
1990); Story Parchment Paper Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (1931); Mort Wallin v. Commercial Cabinet, 105 Nev. 855 (Nev. 1989); A. Corbin, Corbin on Contracts § 1004, 38-39 (1964); Carlson v. Rysavy, 262 N.W.2d. 27 (S.D:: 1978); Nelson v. Cail, 583 P.2d 1384 (Ariz.App.,1978); Broadway Realty & Trust, Inc. v. Gould, 665 P.2d 580 (Ariz.App.,1983); Great West Food Packers, Inc. v. Longmont Foods Co., 636 P.2d 1331, 1333 (Colo.App.) (1981).

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16 - Accepted
17 - Rejected
18 - Modified
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20 Defendant objects to this instruction because it invites the jury to award
21 speculative damages if Plaintiff is able to show a breach of the limited written

22 warranty. The jury is not entitled to speculate as to Plaintiff's damages and
23 any damages awarded must be reasonable. Walter v. Simmons, 169 Ariz. 229,
24 221, 818 P .2d 214, 236 (App. 1991); Nelson v. Cail, 120 Ariz. 64, 67, 583 P .2d

25 1384, 1387; (App. 1978). Additionally, it is Plaintiff's burden to prove that his 26 damages are a proximate result of the alleged breach of Defendant's limited

27 written warranty. Lowe v. Sporcidin Int'l, 47 F.3d 124, 132 (4th Cir. 1995); 28 Lindemann v. Eli Lilly & Co., 816 F.2d 199, 202 (5th Cir. 1987); Coahlan v.
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AQuasport Marine Corp. 73 F.Supp.2d 769, 771 (S.D. Tex. 1999) ("Suing under

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the (the Act) does not change the rudimentary fact that liabilty does not exist in a vacuum; there must be a showing of some damage, which may lead to
further issues of quantum."); Valentini v. Mitsubishi Motor Sales of America,
773 N.E.2d 1199, 1203 ("Damages are an element of a breach of warranty claim.

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Without damages, there can be no recovery..").
As to an alternate instruction, please see Defendant's Proposed

Instruction nos. 7 and 8.

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Plaintiffs Proposed JUry Instruction No. 18

2 Although one party to a warranty may limit a remedy for breach (here, the

3 remedy is repair or replacement of defective parts), that remedy is not exclusive
4 where it fails of its essential purpose. The term "failure of essential purpose" refers to
5 the essential purpose of a "repair-or-replace" remedy offered by a warrantor in a
6 written warranty:

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Authority: N.R.S. 104.2719(b); Muller v. Winnebago, 318 F. Supp. 2d 844 (D. Ariz. 2004); Goelz v Winnebago and Freightlner, CV-03-1290-PHX-SRB; Jones & 8 McKnight Corp. v. Birdsboro Corporation, 320 F.Supp. 39 (N.D.1I1.1970)(This Court

9 would be in an untenable position if it allowed the defendant to shelter itself behind one segment of the warranty when it has allegedly repudiated and ignored it very 10 limited obligations under another segment of the same warranty, which alleged
11 repudiation has caused the very need for relief which the defendant is attempting to

12 aggrieved party to expectation damages most of the time, but specific performance

avoid..."; 2 E. Farnsworth, Farnsworth on Contracts ch. 12 (a breach entitles the

13 only rarely); Norfolk and Western Ry. Co. v. American Train, 499 U.S. 117 (1991);
'requirement...imposed under State law' (rather) common state law, is not 'imposed' 15 by the State, but rather is 'imposed' by the contracting party upon itself); Feinstein v.

Cippollone v. Liggett Group, Inc., 505 U.S. 504 (1992)(a common-law remedy for a 14 contractual commitment voluntarily undertaken should not be regarded as a

16 Firestone Tire & Rubber Co., 535 F. Supp. 595, 606 (S.D.N.Y. 1982) (in the absence

of vertical privity "like the yeastless souffé, the warranty does not 'arise'''); Braucher,
17 Contract Versus Contractarianism: The Regulatory Role of Contract Law, 47 Wash.

18 & Lee L.Rev. 697, 699 (1990) ("Mediating between private ordering and social
20 use in the enforcement of contracts, not whether social norms will be used at all");

concerns, contract is a socioeconomic institution that requires an array of normative
Farnsworth §§ 7.15-7 .17 (courts supply "reasonable" terms to fill "gaps" in incomplete

19 choices... The questions addressed by contract law concern what social norms to

21 contracts).
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23 - Accepted 24 - Rej'ected 25 - Modified
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Defendant objects to this instruction because it has disclaimed incidental

and consequential damages in the limited written warranty. Kruaer v. Subaru
of America, Inc., 996 F. Supp. 451, 458 (E.D. Pa. 1998) (dismissing

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consequential damages claim under Magnuson-Moss Warranty Act in light of

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warranty disclaimer); Nairan Co. for General Contractina and Tradina v.
Fleetwood Enterprises, 659 F. Supp. 1081, 1100 (S.D. Ga. 1986) (holding that
consequential damages disclaimers are permitted under Magnuson-Moss

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Warranty Act).

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Defendant also objects to this instruction because the "failure of the
essential purpose" test is not applicable to invalidate a disclaimer on

incidental or consequential damages. A damages disclaimer can only be
invalidated if Plaintiff shows that it is unconscionable, which is a question of
law for the Court to determine, and not for the jury. S.M. Wilson & Co. v. Smith

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Intern'llnc., 587 F.2d 1363 (9th Cir. 1978) (holding that the failure of the limited
repair remedy to serve its essential purpose did not require that recovery of
consequential damages be permitted); Burch v. Second Judicial Dist. Court of
Washoe, 118 Nev. 438, 443, 49 P.3d 647, 650 (Nev., 2002).

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14 §§ate ex rel. County of

15 See also Defendant's Motion To Preclude Reference To Damages Excluded By

16 Workhorse's Limited Warranty.
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Plaintiff's Proposed JUry Instruction No. 19
If you find that Defendant breached a written warranty or that the limited repair

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or replace remedy failed of its essential purpose, you may also award Plaintiff
incidental and consequential damages.

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Incidental and consequential damages include expenses incurred in
inspection, receipt, transportation, care and custody of goods rightfully rejected, any

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commercially reasonable charges, expenses or commissions in connection with
effecting cover or any other reasonable expenses incident to the breach of warranty.

Consequential damages are damages which result from the breach of warranty

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and include any loss resulting from general or particular requirements and needs of

which the seller at the time of sale had reason to know and which could not
reasonably have been prevented.

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The incidental and consequential damages Plaintiff seeks to recover here are

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cost of cover, aggravation and inconvenience and loss of use.
Authority: 15 U.S.C. § 2310 (d); 15 U.S.C. §2311; Line R. Co. v. Fruehauf
Corp., 547 F.2d 1365. (8th Cir. 1977) ("The buyer is not limited to repair costs when repair does not completely restore the goods to the value which they would have had

if built in conformity with the contract; remaining diminution in value may also be recovered. . . In formulating the diminution in fair market value of the cars, (Plaintiffs
expert) properly placed reliance on the necessity for present and future repairs and

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the fact that even a rebuilt patched railcar would be worth less than a correctly
constructed one") (citations omitted); Hartzell v. Justus Co., Inc., 693 F.2d 770,773,

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(8th Cir. 1982) (proper measure of damages is cost of repairs plus decrease in
Corp. v. Birdsboro Corporation, 320 F.Supp. 39 (N.D.111.1970); Muller v. Winnebago,

market value stil existing after all repairs have been completed). Jones & McKnight
318 F. Supp. 2d 844 (D. Ariz. 2004); Fiorito Bros., Inc., v. Fruehauf Corp., 747 F.2d 1309, 1315 (9th Cir. 1984); Arabian Agriculture Services Co. v. Chief Industries, Inc., 309 F.3d 479, 486 (8th Cir. 2002); Trinity v. McKinnon Bridge, 77 S.W.3d 159, 170 (Tenn.App. 2001); TRGO v. Chrysler Corp., 34 F. Supp.2d 581, 590 (N.D. Ohio 1998); Bishop Logging Co. v. John Deere Indus. Equipment Co., 317 S.C. 520,455 S.E.2d 183, 191 (S.C. App. 1995).

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1 - Accepted
2 - Rejected
3 - Modified
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Defendant objects to this instruction because it has disclaimed

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incidental and consequential damages in the limited written warranty. Kruaer v. Subaru of America, Inc., 996 F. Supp. 451, 458 (E.D. Pa. 1998) (dismissing
consequential damages claim under Magnuson-Moss Warranty Act in light of

warranty disclaimer); Nairan Co. for General Contractina and Tradina v.
Fleetwood Enterprises, 659 F. Supp. 1081, 1100 (S.D. Ga. 1986) (holding that
consequential damages disclaimers are permitted under Magnuson-Moss

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Warranty Act).

Defendant also objects to this instruction because the "failure of the
essential purpose" test is not applicable to invalidate a disclaimer on

incidental or consequential damages. A damages disclaimer can only be
invalidated if Plaintiff shows that it is unconscionable, which is a question of
law for the Court to determine, and not for the jury. S.M. Wilson & Co. v. Smith

Intern'llnc., 587 F.2d 1363 (9th Cir. 1978) (holding that the failure of the limited

19 repair remedy to serve its essential purpose did not require that recovery of
20 consequential damages be permitted); Burch v. Second Judicial Dist. Court of
21 State ex re!. County of

Washoe, 118 Nev. 438, 443, 49 P.3d 647, 650 (Nev., 2002).

22 See also Defendant's Motion To Preclude Reference To Damages Excluded By

23 Workhorse's Limited Warranty.
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