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England v. Costa11/10/2005
g of an erroneous jury instruction, we will not require an appellant to demonstrate prejudice. See Skinner, supra. Further, we have held that when an erroneous instruction has been given and a jury has rendered a general verdict from which prejudice due to the error cannot be ascertained, we must reverse. See Dillard Department Stores, Inc. v. Adams, 315 Ark. 303, 867 S.W.2d 442 (1993). Accordingly, because it is impossible to determine the degree to which the improper instruction tainted the jury's consideration of Dr. Costa's negligence, we must reverse and remand this case.
Gunter, J., not participating.
Imber, J., concurs.
Annabelle Clinton Imber, Justice, concurring.
AMI Civ. 4th 602 may properly be given when a plaintiff is attempting to show that the defendant in a case was negligent, or when the defendant is trying to show that the plaintiff was contributorily negligent. In this case, the instruction was given to allow the defendant, Dr. Costa, to "shift the blame" to another defendant party and not to the plaintiff. Thus, the circuit court erred in giving the instruction. AMI Civ. 4th 602 may only be used between parties who are aligned against each other as a plaintiff and a defendant. In other words, AMI Civ. 4th 602 should not be given in a case with a completely innocent plaintiff because there would be no blame for the defendant to "shift" to the innocent plaintiff. Consequently, the circuit court here erred in giving the instruction in a case involving an allegedly negligent defendant, Dr. Costa, and free-from-negligence plaintiffs, the Englands.
Although I agree with the majority's conclusion that the instruction was improperly given, I must respectfully disagree with the majority's statement that the phrase "every person" as used in AMI Civ. 4th 602 is "intended to refer to the plaintiff." AMI Civ. 602 4th states that "every person" has the right to assume "every other person" is exercising ordinary care. This instruction can be used for the benefit of either a plaintiff or a defendant in a lawsuit. The instruction is not limited to plaintiffs alleging negligence against defendants. See St. Louis Southwestern Railway Co. v. Evans, 254 Ark. 762, 497 S.W.2d 692 (1973) (defendant-railroad had the right to assume plaintiff-motorist would exercise ordinary care in approaching a railroad-crossing and defendant-railroad was entitled to the benefit of the AMI Civ. 602 instruction); Haynes v. Bee-Line Trucking Co., 80 F.3d 1235 (8th Cir. 1995) (" t is just as likely that the jury interpreted [AMI Civ. 4th 602's] reference to `every person using ordinary care' to apply equally" to the plaintiff and the defendant).
AMI Civ. 4th 602's "every person" may refer to either a plaintiff or a defendant. The instruction is not intended to only be used for the benefit of the plaintiff. I understand that the majority was "generalizing" in their statement that AMI Civ. 4th 602 is "intended to refer to the plaintiff." However, it is important to note that the language of the instruction and our case law interpreting the instruction allows AMI Civ. 4th 602 to be used for the benefit of either the plaintiff or the defendant.
For the above-stated reasons, I concur.
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