Best of Philadelphia: Personal Injury Points for Charge
In every jury trial you will need points of charge. Here is a sample I have used for cases against the City of Philadelphia.
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EVAN K. AIDMAN, ESQUIRE ATTORNEY FOR PLAINTIFFS
Identification Number 38746
1420 Walnut Street
Philadelphia, PA 19102
JOHN SMITH COURT OF COMMON PLEAS
JANE DOE CIVIL DIVISION
CITY OF PHILADELPHIA PHILADELPHIA COUNTY
POINTS FOR CHARGE
1. Upon consideration of all of the evidence and the law applicable to this case, I hereby direct you to return a verdict in favor of plaintiffs, John Smith and Jane Doe, and against defendant, City of Philadelphia.
DUTY OF CARE
2. Defendant’s duty of protection and care to plaintiffs, John Smith and Jane Doe on April 30, 1994 was the highest duty required by the law since the plaintiffs were invited visitors of the defendant’s at the time of this accident. Treadway v. Ebert Motor Company, 463 A. 2d 994, 998 (Pa. Super. 1981).
Defendant was under an affirmative duty on April 30, 1994 to protect the plaintiffs not only against danger which its employees knew about, but also against those which with reasonable care one or more of its employees might have discovered. Treadway v. Ebert Motor Company, 463 A. 2d 994, 998 (Pa. Super. 1981).
Plaintiffs entered the PhiladelphiaCity Hall on April 30, 1994 with the City of Philadelphia’s implied assurance of preparation and reasonable care for her protection and safety while she was there. Treadway v. Ebert Motor Company, 463 A. 2d 994, 998 (Pa. Super. 1981).
Plaintiffs entered the Philadelphia City Hall on April 30, 1994 with the City of Philadelphia’s implied assurance of preparation and reasonable care for their protection and safety while they were there. Treadway v. Ebert Motor Company, 463 A. 2d 994, 998 (Pa. Super. 1981).
DUTY TO WARN
3. Defendant had an affirmative duty to warn the plaintiffs of any defects on the floor surface, which were either known to the City of Philadelphia or its employees or which were discoverable by reasonable inspection. Greco v. 7-Up Bottling Co., 165 A. 2d 5 (Pa. 1960).
Defendant had an affirmative duty to warn the plaintiffs of any failure to maintain the school premises in a reasonably safe condition and the plaintiffs were entitled to rely on the City’s performance of this duty. Bersa v. Great Atlantic & Pacific Tea Company, 215 A. 2d 289, 292 (Pa. Super. 1965).
4. The legal term negligence, otherwise known as carelessness, is the absence of ordinary care that a reasonably prudent person would exercise in the circumstances here presented. Negligent conduct may consist either of an act or an omission to act when there is a duty to do so. In other words, negligence is the failure to do something that a reasonably careful person would do, or the doing of something that a reasonably careful person would not do, in light of all the surrounding circumstances established by the evidence in this case. It is for you to determine how a reasonably careful person would act in those circumstances. Pa. S.S.J.I. (Civ.) 3.01.
5. The defendant, City of Philadelphia, as an employer, is liable for any negligent acts or failures to act of its employees. Pa. S.S.J.I. (Civ.) 4.04. I instruct you that William Anderson and Donna Johnson are employees of the defendant and, as such, the defendant is legally responsible for any of their negligent acts or failures to act.
6. You must find that the defendant was negligent if you believe that the evidence has shown that the defendant, in the exercise of reasonable care, ought to have known of the existence of the water before the accident. Moultrey v. Great Atlantic & Pacific Tea Company, 422 A. 2d 593, 596 (Pa. Super. 1980).
Defendant is chargeable with constructive notice of a defective condition that exists for such a period of time that in the normal course of events, this condition would have come to its attention. Green v. Prise, 404 Pa. 71, 170 A. 2d 318 (1991).
PROOF OF NOTICE
7. The Plaintiffs can establish that defendant ought to have known of the existence of the water either by direct or circumstantial evidence. Moultrey v. Great Atlantic and Pacific Tea Company, 422 A.2d 593, 594 (Pa. Super. 1980).
8. Circumstantial evidence consists of proof of facts, or circumstances, from which it is reasonable to infer the existence of another fact. You may consider circumstantial evidence and you should give it whatever weight you believe it deserves. Pa. S.S.J.I. (Civ.) 5.07.
9. Plaintiff need not exclude every reasonable possibility that could have caused the accident; it is not necessary that every fact or circumstance point to liability, but it is enough that there be sufficient facts for you to say that by a preponderance of the evidence, liability is favored. Swartz v. General Electric Co.,Pa. Super. 474 A.2d 1172 (1984).
PRECISION OF PROOF
10. The Plaintiffs are not required to prove the precise manner in which the water came to be on the floor, nor is she required to prove with mathematical exactness that the accident could only happen in one manner to the exclusion of all other possibilities. Finney v. G.C. Murphy Co., 178 A.2d 719 (Pa. 1902).
ASSUMPTION OF RISK
11. You may not find that the plaintiffs assumed the risk of their injuries unless you find that with appreciation and knowledge of an obvious danger, they purposely elected to abandon a position of relative safety and chose to move to a place of obvious danger and by reason of the repositioning were injured. McIntyre v. Cusick, 372 A.2d 864, 866 (Pa. Super. 1977).
You may not find the plaintiffs assumed this risk unless you also find that they were subjectively aware of the facts which created the danger and that they appreciated the danger itself and the nature, character and extent which made it unreasonable. Crance v. Sohanic, 496 2d 1230, 1232 (Pa. Super. 1985).
You may not find that the plaintiffs assumed the risk unless you also find that they fully understood the risks involved in walking over water and that they voluntarily chose to encounter these risks under circumstances manifesting a willingness to accept the risk. Fish v. Gosnell, 463 A.2d 1042, 1048 (Pa. Super. 1983).
Since the evidence has shown that the plaintiffs were not aware of the danger presented by the water, I instruct you to find that they did not assume the risk of their injuries.
CONFLICT OF TESTIMONY
12. You may find inconsistencies in the evidence. Even actual contradictions in the testimony of witnesses do not necessarily mean that any witness has been willfully false. Poor memory is not uncommon. Sometimes a witness forgets; sometimes he remembers incorrectly. It is also true that two persons witnessing an incident may see or hear it differently.
If different parts of the testimony of any witness or witnesses appear to be inconsistent, you the jury, should try to reconcile the conflicting statements, whether of the same or different witnesses, and you should do so if it can be done fairly and satisfactorily.
If, however, you decide that there is a genuine and irreconcilable conflict of testimony, it is your function and duty to determine which, if any of the contradictory statements you will believe. Pa. S.S.J.I. (Civ.) 5.04.
REAL PROPERTY EXCEPTION TO THE P.S.T.C.A.
13. You may return a verdict in favor of the plaintiffs and against the defendant if you find that the accident involves the care, custody or control of real property of the City of Philadelphia. 42 P. S. Section 8542 (b)(3). I instruct you to return such a finding if you conclude that the defendant failed to provide sufficient matting protection to ensure safe entrance into the PhiladelphiaCity Hall. Singer v. City of Philadelphia, 513 A.2d 1108, 1109-10(Pa. Cmwlth. 1986).
14. If you find that the defendant is liable to plaintiffs, you must then find an amount of money damages that you believe will fairly and adequately compensate each of them for all physical and financial injuries they each sustained as a result of the accident. The amount that you award today must compensate them completely for damage sustained in the past, as well as damage they will sustain in the future. Pa. S.S.J.I. (Civ.) 6.00.
PERMANENT LOSS OF A BODILY FUNCTION
15. In order for Jane Doe to be entitled to recover for her pain and suffering, you must find that she has suffered a permanent loss of a bodily function. You may rely on her testimony and that of the doctors who testified in reaching this finding. If you find that Jane Doe has suffered a permanent loss of range of motion of 20% or more in her lower back as a result of this accident, you must find that she has suffered a permanent loss of a bodily function and that she is entitled to be compensated for her past and future pain and suffering. Walsh v. City of Philadelphia, 585 A.2d 445, 451 (Pa. 1991). Or, if you find that she is permanently unable to do or perform a bodily act or acts which she was able to do or perform prior to the accident, you must find that she is entitled to be so compensated. Id.
PAST PAIN AND SUFFERING
16. If you find that she has suffered a permanent loss of a bodily function, Jane Doe is entitled to be fairly and adequately compensated for such physical pain, mental anguish, discomfort, inconvenience and distress as you find she has endured from the time of the accident until today. Pa. S.S.J.I. (Civ.) 6.01E.
FUTURE PAIN AND SUFFERING
17. If you find that she has suffered a permanent loss of a bodily function, Jane Doe is further entitled to be fairly and adequately compensated for such physical pain, mental anguish, discomfort, inconvenience and distress as you believe she will endure in the future as a result of her injuries. Pa. S.S.J.I. (Civ.) 6.01F.
LOSS OF EARNINGS AND EARNING CAPACITY
18. Jane Doe is entitled to be fairly and adequately compensated for the past, present and future loss of her earnings and earning capacity. This aspect of damages is awardable whether or not you find that she has suffered a permanent loss of a bodily function. 42 P. S. Section 8553 (c)(1).
19. Jane Doe is entitled to be fairly and adequately compensated for all outstanding costs of the medical diagnosis, treatment and care required by the injuries suffered in this accident, and she is also entitled to compensation for all such future costs which may be incurred because of those injuries. Pa. S.S.J.I. (Civ.) 6.01A. You do not need to find that she has suffered a permanent loss of a bodily function in order for her to recover her past and future medical costs. Those costs are recoverable without regard to the permanency of the injury she suffered. 42 P.S. Section 8553 (c)(3). The only item of damages that depends upon a finding of permanency is for Jane Doe’s pain and suffering. Each of the other elements of damage is recoverable whether she suffered a permanent injury or not.
PROOF OF DAMAGES
20. The fact that the precise amount of damages that Jane Doe has suffered or will suffer may be difficult to ascertain does not affect her right to recover those damages or your right to award them. Although you may not render a verdict based upon mere speculation or guess work, the law allows Jane Doe reasonable leeway in their method and proof of damages, so long as there is a reasonable basis in the evidence for you to estimate what her damages have been and likely will be. Starlings v. Ski Round Top Corporation, 493 F. Supp. 507 (M.D. Pa. 1980); Weinglass v. Gibson, 304 Pa. 203, 207 (1931).
EVAN K. AIDMAN, ESQUIRE
Attorney for Plaintiffs
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