Free Proposed Jury Instructions - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Rachel Love Halvorson, Bar #019881 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Telephone No.: (602) 263-1700 Facsimile No.: (602) 263-1784 E-Mail: [email protected]; [email protected] Attorneys for Defendants Corrections Corporation of America and Stolc Brett Duke, Esq. L AW O FFICES OF B RETT D UKE 4157 Rio Bravo El Paso, Texas 79902 and Leon Schydlower, Esq L AW O FFICE O F L EON S CHYDLOWER 210 North Campbell Street El Paso, Texas 79901 Attorneys for Plaintiff Cheryl Allred

IN THE UNITED STATES DISTRICT COURT 15 DISTRICT OF ARIZONA 16 Cheryl Allred 17 Plaintiff, 18 19 20 Defendants. 21 22 23 24 25 26 Defendants Corrections Corporation of America ("CCA") and Warden Stolc, with Plaintiff Cheryl Allred, through their respective counsel, hereby submit the following Jury Instructions for consideration by the Court as follows: v. Corrections Corporation of America, Inc.; Bruno Stolc AMENDED JOINT PROPOSED JURY INSTRUCTIONS NO. CIV 03-2343 PHX-DGC

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I.

2001 NINTH CIRCUIT MODEL CIVIL JURY INSTRUCTIONS A. ST ST ST ST ST ST ST ST ST ST DF ST ST B. ST ST DF ST DF DF Preliminary § 1.1 § 1.2 § 1.3 § 1.4 § 1.5 § 1.6 § 1.7 § 1.8 § 1.9 § 1.10 § 1.11 § 1.12 § 1.13 Duty Of Jury Claims and Defenses What Is Evidence1 What Is Not Evidence Evidence For Limited Purpose Direct And Circumstantial Evidence Rulings On Objections Credibility Of Witnesses Conduct Of The Jury No Transcript Available To The Jury Taking Notes Outline Of Trial Burden Of Proof - Preponderance Of The Evidence

Instructions During Trial § 2.1 § 2.2 § 2.3 § 2.6 § 2.11 § 2.13 Cautionary Instruction-First Recess Bench Conferences And Recesses Stipulated Testimony Deposition As Substantive Evidence Impeachment By Conviction Of Crime Use Of Interrogatories Of A Party

Plaintiff stipulates to this instruction as long as the bracket language of affirmative defenses is used both times in the instruction. 2

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C. ST ST ST ST ST ST ST ST ST DF D. ST DF ST ST ST E. ST

Instructions At End of Case § 3.1 § 3.2 § 3.3 § 3.5 § 3.6 § 3.7 § 3.9 § 3.10 § 3.11 § 3.12 Duties Of Jury To Find Facts And Follow Law What Is Evidence What Is Not Evidence Direct And Circumstantial Evidence Credibility Of Witnesses Opinion Evidence, Expert Witnesses Charts and Summaries Not Received in Evidence Charts And Summaries In Evidence Two Or More Parties - Different Legal Rights Impeachment Of Evidence - Witnesses2

Concluding Instructions-Jury Deliberations § 4.1 § 4.2 § 4.3 § 4.4 § 4.5 Duty To Deliberate Use Of Notes Communication With Court Return of Verdict Additional Instructions of Law

Burden of Proof § 5.1 Burden of Proof - Preponderance of the Evidence 3

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§ 6.2 Liability of Corporations - Scope of Authority Not In Issue

Bracketed language to be inserted "Plaintiff has been convicted of a felony."

Plaintiff stipulates to this instruction as long as the bracket language of affirmative defenses is used both times in the instruction. 3

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F. ST PL DF DF

Damages § 7.1 § 7.2 § 7.2 § 7.3 Damages - Proof Measure of Type of Damages4 Measure of Types of Damages 5 Damages - Mitigation

STIPULATED NON-MODEL JURY INSTRUCTIONS None.

The types of damages to be considered are: 1. The nature and extent of the injuries; 2. The disability, disfigurement, and loss of enjoyment of life experienced and which with reasonable probability will be experienced in the future; 3. The mental, physical, and emotional pain and suffering experienced and which with reasonable probability will be experienced in the future; 4. The reasonable value of necessary medical care, treatment, and services received to the present time; 5. The reasonable value of necessary medical care, treatment, and services which with reasonable probability will be required in the future; 6. The reasonable value of necessary household help, services other than medical and expenses required to the present time; 7. The reasonable value of necessary household help, services other than medical and expenses which with reasonable probability will be required in the future; The types of damages to be considered are: 1. The nature, extent, and duration of the injury. 2. The pain, discomfort, suffering and anxiety already experienced. 3. Loss of enjoyment of life, that is, the participation in life's activities to the quality and extent normally enjoyed before the injury. 4
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III.

NON-MODEL PLAINTIFF

JURY

INSTRUCTIONS

REQUESTED

BY

The following instructions proposed by Plaintiff are Arizona Jury Instructions (Civil) Fourth Edition, as modified where indicated and are attached hereto as Exhibit 1. 1. Statement of Claim; Definition of Fault; Definition of

5 Negligence (No Comparative Fault). 6 Defendants' Objection: 7 instruction as Defendants have properly alleged that the unknown and 8 unidentified inmates who allegedly raped Plaintiff are at fault for Plaintiff's 9 claimed injuries. The only remaining claim in this case is Plaintiff's negligence 10 claim asserted under Arizona state law. Defendants filed a timely Notice of Non11 Party at Fault, pursuant to A.R.S. § 25-2606, on April 1, 2004. The Notice 12 specifically set forth, in compliance with A.R.S. § 25-2606, that the inmate or 13 inmates who Plaintiff alleges raped her are at fault for damages sought in this 14 action. Defendants contend that the alleged rape did not occur. Plaintiff has 15 never identified her alleged rapists. What is not in dispute is that Plaintiff alleges 16 that an inmate or inmates raped her. Consequently, that neither Plaintiff nor 17 Defendants are able to identify the unknown alleged rapists by name does not 18 defeat Defendants' appropriate and timely Notice of Non Party at Fault. 19 Therefore, the comparative fault instructions proposed by Plaintiff are 20 appropriate here. See Jim enez v. Sears, Roebuck and Co., 183 Ariz. 399, 404, 904 21 P.2d 861, 866 (1995) ("W e have recognized that the general goal of the present 22 version of the UCATA is to make each tortfeasor responsible for only its hare of 23 fault."); Natesway v. City of Tempe, 184 Ariz. 374, 376, 909 P.2d 441, 443 (App. 24 1995) (stating comparative fault principles apply regardless of the relationship 25 between the parties and the nature of the duty ow ed); Thomas v. First Interstate 26 5 Case 2:03-cv-02343-DGC Document 152 Filed 01/05/2006 Page 5 of 12 Defendants object to this

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Bank, 187 Ariz. 488, 930 P.2d 1002 (App. 1996) (stating that even willful, wanton and intentional tortfeasors, who may be essentially judgment proof, may be non parties at fault and finding bank guard's murderer in a wrongful death action may be named as a non-party at fault); McKillip v. Smitty's Super Value, Inc., 190 Ariz. 61, 945 P.2d 372 (App. 1997) (finding fault could be allocated to unidentified customer who may have left a piece of waxed tissue paper on the store floor, causing the plaintiff to slip and fall); Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 433-34, 937 P.2d 353, 355-56 (App. 1996) (finding jury may apportion fault under A.R.S. § 12-2506, to unidentified attackers involved in a bar fight); Smith v. Johnson, 183 Ariz. 38, 44, 899 P.2d 199, 206 (App. 1995) (finding jury may consider allocating fault to an unidentified driver of a red Mercedes Benz who might have flagged another motorist into the subject accident). 2. Definition of Causation (No Comparative Fault) Defendants' Objection: Defendants object to this

instruction as Defendants have properly alleged that the unknown and unidentified inmates w ho allegedly raped Plaintiff are at fault for Plaintiff's claimed injuries. The only remaining claim in this case is Plaintiff's negligence claim asserted under Arizona state law. Defendants filed a timely Notice of NonParty at Fault, pursuant to A.R.S. § 25-2606, on April 1, 2004. The Notice specifically set forth, in compliance with A.R.S. § 25-2606, that the inmate or inmates who Plaintiff alleges raped her are at fault for damages sought in this action. Defendants contend that the alleged rape did not occur. Plaintiff has never identified her alleged rapists. What is not in dispute is that Plaintiff alleges that an inmate or inmates raped her. Consequently, that neither Plaintiff nor Defendants are able to identify the unknown alleged rapists by name does not

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defeat Defendants' appropriate and timely Notice of Non Party at Fault. Therefore, the comparative fault instructions proposed by Plaintiff are appropriate here. See Jim enez v. Sears, Roebuck and Co., 183 Ariz. 399, 404, 904 P.2d 861, 866 (1995) ("We have recognized that the general goal of the present version of the UCATA is to make each tortfeasor responsible for only its hare of fault."); Natesway v. City of Tempe, 184 Ariz. 374, 376, 909 P.2d 441, 443 (App. 1995) (stating comparative fault principles apply regardless of the relationship between the parties and the nature of the duty ow ed); Thomas v. First Interstate Bank, 187 Ariz. 488, 930 P.2d 1002 (App. 1996) (stating that even willful, wanton and intentional tortfeasors, who may be essentially judgment proof, may be non parties at fault and finding bank guard's murderer in a wrongful death action may be named as a non-party at fault); McKillip v. Smitty's Super Value, Inc., 190 Ariz. 61, 945 P.2d 372 (App. 1997) (finding fault could be allocated to unidentified customer who may have left a piece of waxed tissue paper on the store floor, causing the plaintiff to slip and fall); Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 433-34, 937 P.2d 353, 355-56 (App. 1996) (finding jury may apportion fault under A.R.S. § 12-2506, to unidentified attackers involved in a bar fight); Smith v. Johnson, 183 Ariz. 38, 44, 899 P.2d 199, 206 (App. 1995) (finding jury may consider allocating fault to an unidentified driver of a red Mercedes Benz who might have flagged another motorist into the subject accident). 3. Statement of Liability Issues (No Comparative Fault) Defendants' Objection: Defendants' Objection:

Defendants object to this instruction as Defendants have properly alleged that the unknown and unidentified inmates w ho allegedly raped Plaintiff are at fault for Plaintiff's claimed injuries. The only remaining claim in this case is Plaintiff's

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negligence claim asserted under Arizona state law. Defendants filed a timely Notice of Non-Party at Fault, pursuant to A.R.S. § 25-2606, on April 1, 2004. The Notice specifically set forth, in compliance w ith A.R.S. § 25-2606, that the inmate or inmates w ho Plaintiff alleges raped her are at fault for damages sought in this action. Defendants contend that the alleged rape did not occur. Plaintiff has never identified her alleged rapists. What is not in dispute is that Plaintiff alleges that an inmate or inmates raped her. Consequently, that neither Plaintiff nor Defendants are able to identify the unknown alleged rapists by name does not defeat Defendants' appropriate and timely Notice of Non Party at Fault. Therefore, the comparative fault instructions proposed by Plaintiff are appropriate here. See Jimenez v. Sears, Roebuck and Co., 183 Ariz. 399, 404, 904 P.2d 861, 866 (1995) ("W e have recognized that the general goal of the present version of the UCATA is to make each tortfeasor responsible for only its hare of fault."); Natesway v. City of Tempe, 184 Ariz. 374, 376, 909 P.2d 441, 443 (App. 1995) (stating comparative fault principles apply regardless of the relationship between the parties and the nature of the duty owed); Thom as v. First Interstate Bank, 187 Ariz. 488, 930 P.2d 1002 (App. 1996) (stating that even willful, wanton and intentional tortfeasors, who may be essentially judgment proof, may be non parties at fault and finding bank guard's murderer in a wrongful death action may be named as a non-party at fault); McKillip v. Smitty's Super Value, Inc., 190 Ariz. 61, 945 P.2d 372 (App. 1997) (finding fault could be allocated to unidentified customer who may have left a piece of waxed tissue paper on the store floor, causing the plaintiff to slip and fall); Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 433-34, 937 P.2d 353, 355-56 (App. 1996) (finding jury may apportion fault under A.R.S. § 12-2506, to unidentified attackers involved in a bar fight); Smith v. Johnson, 183 Ariz. 38, 44, 899

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P.2d 199, 206 (App. 1995) (finding jury may consider allocating fault to an unidentified driver of a red Mercedes Benz who might have flagged another motorist into the subject accident). IV. NON-MODEL JURY DEFENDANTS INSTRUCTIONS REQUESTED BY

The following instructions proposed by Defendants are Arizona Jury Instructions (Civil) Fourth Edition, as modified where indicated. Defendants' proposed non-model jury instructions are attached hereto as Exhibit 2. 1. RAJI Standard 4 (Civil) 4 th , Corporate Party, as modified Plaintiff's Objection: Plaintiff objects to this instruction because Section 6.2 Liability of a Corporations - Scope of Authority Not an Issue of the Ninth Circuit M odel Civil Jury Instructions contains such sought instruction. 2. RAJI Standard 5 (Civil) 4 th , Respondeat Superior Liability, as modified Plaintiff's Objection: Plaintiff objects to this instruction because Section 6.2 Liability of a Corporations - Scope of Authority Not an Issue of the Ninth Circuit Model Civil Jury Instructions contains such sought instruction. 3. RAJI Fault 5 (Civil) 4 th , Statement of Claim; Definition of Fault; Definition of Negligence (Comparative Fault), as modified Plaintiff's Objection: Plaintiff objects to this instruction,

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and the remaining sought non-model instructions for the defendants' failure to 24 specifically identify any alleged non-party at fault. As indicated in the use notes 25 of RAJI (Civil) 3d Fault "[i]f the liability or any nonparty is a comparative fault 26 9 Case 2:03-cv-02343-DGC Document 152 Filed 01/05/2006 Page 9 of 12

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issue, that nonparty will have been specifically disclosed by the defendant making the claim. See Comment, infra. The specific identify of that nonparty should therefore be inserted into the instruction. 4. RAJI Fault 6 (Civil) 4 th , Definition of Causation (Comparative Fault), as modified Plaintiff's Objection: Plaintiff objects to this instruction, and the remaining sought non-model instructions for the defendants' failure to specifically identify any alleged non-party at fault. As indicated in the use notes of RAJI (Civil) 3d Fault "[i]f the liability or any nonparty is a comparative fault issue, that nonparty will have been specifically disclosed by the defendant making the claim. See Comment, infra. The specific identify of that nonparty should therefore be inserted into the instruction. 5. RAJI Fault 7 (Civil) 4th , Burden of Proof (All Parties) (Comparative Fault), as modified Plaintiff's Objection: Plaintiff objects to this instruction, and the remaining sought non-model instructions for the defendants' failure to specifically identify any alleged non-party at fault. As indicated in the use notes of RAJI (Civil) 3d Fault "[i]f the liability or any nonparty is a comparative fault issue, that nonparty w ill have been specifically disclosed by the defendant making the claim. See Comment, infra. The specific identify of that nonparty should therefore be inserted into the instruction. Additionally, the defendants grossly modify this jury instruction to remove the burden of proof of the defendants and specifically instruct that CCA must prove that a specifically identified non-party was at fault.

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6.

RAJI Fault 8 (Civil) 4th , Statement of Liability Issues (Comparative Fault), as modified Plaintiff's Objection: Plaintiff objects to this instruction,

3 and the remaining sought non-model instructions for the defendants' failure to 4 specifically identify any alleged non-party at fault. As indicated in the use notes 5 of RAJI (Civil) 3d Fault "[i]f the liability or any nonparty is a comparative fault 6 issue, that nonparty will have been specifically disclosed by the defendant making 7 the claim. See Comment, infra. The specific identify of that nonparty should 8 therefore be inserted into the instruction. 9 10 11 Plaintiff's Objection: Plaintiff objects to this instruction, 12 and the remaining sought non-model instructions for the defendants' failure to 13 specifically identify any alleged non-party at fault. As indicated in the use notes 14 of RAJI (Civil) 3d Fault "[i]f the liability or any nonparty is a comparative fault 15 issue, that nonparty will have been specifically disclosed by the defendant making 16 the claim. See Comment, infra. The specific identify of that nonparty should 17 therefore be inserted into the instruction. 18 19 20 Plaintiff's Objection: Plaintiff did not have, nor have 21 defendants demonstrated, any preexisting condition that the gang rape 22 aggravated. 23 24 25 26 11 Case 2:03-cv-02343-DGC Document 152 Filed 01/05/2006 Page 11 of 12 8. RAJI Personal Injury Damages 2 (Civil) 4th , Pre-Existing Condition, Unusually Susceptible Plaintiff, as modified 7. RAJI Fault 11 (Civil) 4th , Determining Relative Degrees of Fault (Comparative Fault), as modified

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1573396_1

DATED this 5th day of January, 2006. JONES, SKELTON & HOCHULI, P.L.C.

By /s/ Rachel Love Halvorson Daniel P. Struck 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Corrections Correction of America and Stolc Original of the foregoing e-filed with the Court and a copy e-served this 5th day of January 2006, to Leon Schydlower, Esq L AW O FFICE O F L EON S CHYDLOWER 210 North Campbell Street El Paso, Texas 79901 Brett Duke, Esq. L AW O FFICES OF B RETT D UKE 5970 Silver Springs Suite 700 El Paso, Texas 79912 Attorneys for Plaintiff Cheryl Allred s/Francine Gatto

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