Free Proposed Jury Instructions - District Court of Arizona - Arizona

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John T. Masterson, Bar #007447 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7846 [email protected] [email protected] Attorneys for Defendants Brad Weekley, Penny Dahlberg, Guy Gorman and Dave Boatwright David F. Gaona, Esq. Nicole Cantelme, Esq. Gaona Law Firm 3101 North Central Avenue Suite 720 Phoenix, AZ 85012 Attorneys for Co-Defendants APS, Doug McDonald and Don Wilson James. W. Field PO Box 248 Salome, Arizona 85348 Plaintiff Pro Per UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA James W. Field, Plaintiff, v. County of La Paz, et al., Defendants. JOINT PROPOSED JURY INSTRUCTIONS CV 03-2214-PHX SRB

Plaintiff pro per and counsel for APS Defendants and La Paz County Defendants, propose the following model and non-uniform jury instructions to be given in

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the trial of this matter. Plaintiff and Defendants have noted their objections on any uniform instructions below. Plaintiff's objections to La Paz County Defendants' nonuniform jury instructions are also listed below. Plaintiff's proposed jury instructions are attached as Exhibit 1. Plaintiff provided this information to the Defendants at 12:30 pm on May 23, 2006.1 Due to time constraints the parties have been unable to prepare Joint Proposed Jury Instructions. The parties will continue to work together to develop a joint document prior to the scheduling conference on May 30, 2006. The Defendants reserve the right to comment on any objections stated without basis. I. 2001 Ninth Circuit Model Civil Jury Instructions A. Preliminary 1.1 1.2 1.3 1.4 1.5 Duty of Jury Claims and Defenses What is Evidence What is Not Evidence Evidence for Limited Purpose (Plaintiff Objects) 1.6 1.7 1.8 1.9 1.10 1.11
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Direct and Circumstantial Evidence Rulings on Objections Credibility of Witnesses Conduct of the Jury No Transcript Available to the Jury Taking Notes

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La Paz County Defendants object to all of Plaintiff's proposed jury instructions as irrelevant to the issues remaining in this case and unsupported by the law. In addition APS Defendants note their objection to all of Plaintiff's non-standard jury instructions because these non-standard instructions are not accurate statements of the law.
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1.12 1.13

Outline of Trial Burden of Proof - Preponderance of the Evidence

B.

Instructions During Trial 2.1 2.2 2.4 Cautionary Instruction-First Recess Bench Conferences and Recesses Stipulations of Fact

2.5 Judicial Notice (La Paz County and APS Defendants Object as Plaintiff has Failed to Identify what he wishes the Court to Take Judicial Notice about.) General Instructions After Close Of Evidence: Consideration Of Evidence 3.1 3.2 3.3 3.5 3.6 3.7 Duties of Jury What Is Evidence What Is Not Evidence Direct And Circumstantial Evidence Credibility Of Witnesses Opinion Evidence, Expert Witnesses (Plaintiff Objects) D. Concluding Instructions-Jury Deliberations 4.1 4.2 4.3 4.4 E. Duty to Deliberate Use of Notes Communication With Court Return of Verdict

Burdens of Proof

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5.1 F.

Burden of Proof ­ Preponderance of the Evidence

Vicarious Liability ­ Independent Contractors 6.2 6.4 6.5 6.6 Liability of Corporations ­ Scope of Authority Not in Issue Agent and Principal ­ Definition Agent ­ Scope of Authority Defined Act of agent is Act of Principal ­ Scope of Authority Not in Issue (La Paz County and APS Defendants Object to Jury Instructions 6.2, 6.4, 6.5 and 6.6 as proposed by Plaintiff as they are irrelevant to the issues remaining in this case, i.e., they are not relevant to the issue of § 1983 liability).

G.

Additional Model Jury Instructions 7.1 7.2 Damages ­ Proof Measures of Types of Damages

(La Paz County and APS Defendants Object to Jury Instruction 7.2 as proposed by Plaintiff as not appropriate and as further outlined in their respective Motions in Limine Regarding Damages). 7.3 7.4 Damages ­ Mitigation Damages Arising In the Future ­ Discount to Present Cash Value

(La Paz County and APS Defendants Object to Jury Instruction 7.4 as proposed by Plaintiff as outlined in their Motion in Limine Regarding Damages. The APS and La Paz County Defendants further object as Plaintiff has no permanent injury

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or claim, and there has been no relevant evidence disclosed or listed to support this instruction). 7.5 Punitive Damages

(La Paz County and APS Defendants Object to Jury Instruction 7.5 as proposed by Plaintiff as the Court dismissed Plaintiff's punitive damages claim in her April 27, 2006 Court Order). 11.1 Violations of Federal Civil Rights ­ Elements and Burden

(APS Defendants request a modification to the standard instruction to indicate that the Defendants conduct must not only be intentional, but under the law, it must also be wrongful. APS request this modification in the enumerated list, #1, at the end. (i.e., "...were intentional and wrongful;"). La Paz County has no objection. 11.2 II. Under Color of Law Defined

Proposed Non-Standard Post-Trial Jury Instructions Attached hereto as Exhibit 1. Plaintiff's objections are as follows: 1. LA PAZ COUNTY DEFENDANTS' REQUESTED JURY INSTRUCTION NO. 1

Objection, if they find la paz county did not provide plaintiff with information about what allegedly needed to be repaired on the property before terminating power you must find defendants did violate plaintiffs rights under 42 usc 1983. LA PAZ COUNTY DEFENDANTS' REQUESTED JURY INSTRUCTION NO. 2

2.

Objection if you find that the electrical service on plaintiffs property was NOT the cause of either a fire or electrocution within the last 15 years you must find defendants violated

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plaintiffs rights under 1983. 3. LA PAZ COUNTY DEFENDANTS' REQUESTED JURY INSTRUCTION NO. 3

If you find the la paz county defendants contacted aps to have them terminate electrical power on November 12, 2002 you must find defendants aps & county violated plaintiffs rights under 1983.

4.

LA PAZ COUNTY DEFENDANTS' REQUESTED JURY INSTRUCTION NO. 4

Objection If you find that after the electric was terminated & the defendants agreed to restore power to property APS was going to charge a deposit of 2100.00 on top of the current bill owed you must find the defendants caused damages to plaintiff because he would not of had to provide such deposit on like terms had power not been terminated, thus defendants are liable for all damages suffered.

5.

LA PAZ COUNTY DEFENDANTS' REQUESTED JURY INSTRUCTION NO. 5

OBJECTION Damages must provide plaintiff with compensation for every type of injury, or suffering that somehow results from the actions of defendants. plaintiff should be awarded consist of all actual damages, consequential damages, direct damages, continuing damages, exemplary damages, future damages.

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DATED this 23rd day of May, 2006. JONES, SKELTON & HOCHULI, P.L.C.

BY s/Jennifer L. Holsman John T. Masterson Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants, La Paz County, Brad Weekley, Penny Dahlberg, Guy Gorman and Dave Boatwright

The foregoing filed ELECTRONICALLY this 23rd day of May, 2006. COPY of the foregoing mailed even date to: James. W. Field PO Box 248 Salome, Arizona 85348 Plaintiff Pro Per s/ Carol S. Madden Via Certified Mail

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LA PAZ COUNTY DEFENDANTS' REQUESTED JURY INSTRUCTION NO. 1 If you find that La Paz County provided Plaintiff with information about conditions that needed to be repaired on Plaintiff's property to re-establish electrical service, you must find that Defendants did not violate Plaintiff's rights under 42 U.S.C.§ 1983.

Source: Parratt v. Taylor, 451 U.S. 527, 544 (1981); Hudson v. Palmer, 468 U.S. 517 (1984); 42 U.S.C. § 1983.

GIVEN REFUSED MODIFIED GIVEN AS MODIFIED

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LA PAZ COUNTY DEFENDANTS' REQUESTED JURY INSTRUCTION NO. 2 If you find that the electrical conditions on Plaintiff's property posed a health and safety hazard to the public, you must find that Defendants did not violate Plaintiff's rights under 42 U.S.C. § 1983.

Source: Patel v. Midland Memorial Hospital and Medical Center, 298 F.3d 333 (5th Cir. 2002)(en banc); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997); Caine v. Hardy, 943 F.2d 1406, (5th Cir. 1991). GIVEN REFUSED MODIFIED GIVEN AS MODIFIED

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LA PAZ COUNTY DEFENDANTS' REQUESTED JURY INSTRUCTION NO. 3 If the La Paz County Defendants had reasonable grounds to believe that there were health and safety hazards on Plaintiff's property due to the electrical conditions, Defendants were not legally required to provide Plaintiff with notice before termination of electrical service. Accordingly, Defendants cannot be liable for a violation of Plaintiff's rights under 42 U.S.C. 1983.

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Source: Patel v. Midland Memorial Hospital and Medical Center, 298 F.3d 333 (5th Cir. 2002)(en banc); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997); Caine v. Hardy, 943 F.2d 1406, (5th Cir. 1991). GIVEN REFUSED MODIFIED GIVEN AS MODIFIED

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LA PAZ COUNTY DEFENDANTS' REQUESTED JURY INSTRUCTION NO. 4 Liability For Violation of Civil Rights

To impose liability under 42 U.S.C. § 1983 for a violation of plaintiff's civil rights, plaintiff must prove an affirmative link between the conduct of the defendant and the harm alleged. Thus, the plaintiff must establish that the specific conduct, of a particular defendant, caused the plaintiff specific injury.

Source: See Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 604 (1976); Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (plaintiff must establish causal connection between the defendants' actions and the harm allegedly suffered). GIVEN REFUSED MODIFIED GIVEN AS MODIFIED

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LA PAZ COUNTY DEFENDANTS' REQUESTED JURY INSTRUCTION NO. 5 Damages must be reasonable. If you should find that Plaintiff is entitled to a verdict, you may award him only such damages as you find, from a preponderance of the evidence in the case, that they have sustained as a proximate result of the incident.

Source: Rancho Pescado, Inc. v. Northwestern Mutual Life Insurance Co., 140 Ariz. 174, 680 P.2d 1235 (App. 1984); Coury Brothers Ranches, Inc. v. Ellsworth, Devitt, Blackmar and Wolff, Federal Jury Practice And Instructions § 85.14 (4th ed. 1987). GIVEN REFUSED MODIFIED GIVEN AS MODIFIED

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DEFENDANTS' JURY INSTRUCTION NO. 6 42 U.S.C. § 1983/APS, Doug McDonald and Donald Wilson In this case, the Plaintiff claims that APS and individual Defendants, Doug McDonald and Donald Wilson are responsible under 42 U.S.C. § 1983 for terminating his electric service without notice, thus constituting a deprivation of procedural rights. Generally, APS, a public corporation, and APS employees, private employees, are not liable under § 1983 because they are public entity public employees. Consequently, in order for these Defendants to be responsible, the Plaintiff must show, by a preponderance

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of evidence, that these Defendants were acting under color of state law. If so, the Plaintiff must then show, by a preponderance of the evidence, that these Defendants' decision to terminate electrical services to Plaintiff's property was not consistent with Arizona law because the Plaintiff's property did not possess, at the time of the decision, conditions indicating a reasonable belief that an immediate electrical safety and health hazard existed. Finally, the Plaintiff must show by a preponderance of the evidence that a causal link exists between the decision to terminate service and actual damages. Source: GIVEN REFUSED MODIFIED WITHDRAWN 42 U.S.C. § 1983 ____________ ____________ ____________ ____________

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DEFENDANTS' JURY INSTRUCTION NO. 7 State Action/APS, Doug McDonald and Donald Wilson APS is a private corporation, not a governmental entity; its employees are not State employees. In order to consider 42 U.S.C. § 1983 liability or not, you must first find that APS and its employees engaged in State action. To show that APS and its employees engaged in State action, Plaintiff must first prove that APS was compelled by La Paz County to terminate Plaintiff's electrical service, and that APS terminated electric service due solely to that compulsion/order. If you find that the APS Defendants were not compelled to act by La Paz County, then you must find no State action by the APS Defendants. If you find that APS was compelled by La Paz County to terminate Plaintiff's electrical service, then Plaintiff must also prove that a sufficiently close nexus existed between La Paz County and APS, so that the action in terminating Plaintiff's electric service by APS can be treated as if La Paz County had terminated Plaintiff's power itself.

SOURCE: Sutton v. Providence St. Joseph Medical Ctr., 192 F.3d 826, 838-840 (9th Cir. 1999); Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974).

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DEFENDANTS' JURY INSTRUCTION NO. 8 Qualified Immunity NOTE: APS and La Paz County reserves their right to submit, at the appropriate time, an appropriate instruction relating to questions of fact that may exist concerning the issue of qualified immunity. The issue of qualified immunity is reserved for the Court as it is a question of law, subject only to factual determinations that may be necessary for a jury to make for the Court to apply the issue of law.

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DEFENDANTS' JURY INSTRUCTION NO. 9 APS is Governed by the Arizona Corporation Commission APS is governed by the Arizona Corporation Commission through regulations as well as published schedules setting forth terms and conditions pertaining to its relationship with its customers. Pursuant to those regulations and published terms and conditions, Arizona Public Service Company may disconnect service, without liability, injury or

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damage, to any customer without advance notice upon identification of the existence of an obvious hazard to the health or safety of citizens or property. If you find that APS determined there to be an obvious hazard to the health and

property, APS is not liable to the Plaintiff.

SOURCE: Schedule No. 1, Terms and Conditions for Standard Offer and Direct Access Services between APS and its Customers, ACC No. 5610; A.A.C. R.14-2-211.B.1. GIVEN REFUSED MODIFIED WITHDRAWN

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