35.19 [1998 Revision] Illustrations(Punitive Damages(Bifurcated Trial Under ( 510.263(No Comparative Fault(Two Defendants(Apportionment of Fault Between Defendants

Instruction No 1 35.19 [1998 Revision] IllustrationsCPunitive DamagesCBifurcated Trial Under ' 510.263CNo Comparative FaultCTwo DefendantsCApportionment of Fault Between Defendants Non-employee plaintiff Hurt was injured on a construction site (not a public highway) when Acme road grader backed over him. The road grader was manufactured by Acme without a back up warning device. At the time of the sale of the road grader Acme had notice of thirty incidents of individuals being backed over by this product. The claim against Acme is for design defect and for punitive damages. Defendant Driver is sued for failure to keep a careful lookout for compensatory damages only. Driver and Acme have filed cross-claims against each other for apportionment of fault. There is no comparative fault. Acme has requested a bifurcated trial under ' 510.263, RSMo. Instruction Number 1 (Same as MAI 2.01) Instruction Number 2 (See MAI 2.03 (1980 New)) As you remember, the court gave you a general instruction before the presentation of any evidence in this case. The court will not repeat that instruction at this time. However, that instruction and the additional instructions, to be given to you now, constitute the law of this case and each such instruction is equally binding upon you. You should consider each instruction in light of and in harmony with the other instructions, and you should apply the instructions as a whole to the evidence. The order in which the instructions are given is no indication of their relative importance. All of the instructions are in writing and will be available to you in the jury room. Instruction Number 3 (See MAI 2.02 (1980 Revision)) In returning your verdicts you will form beliefs as to the facts. The court does not mean to assume as true any fact referred to in these instructions but leaves it to you to determine what the facts are. Instruction No. 4 (See MAI 3.01 (1998 Revision)) In these instructions, you are told that your verdict depends on whether or not you believe certain propositions of fact submitted to you. The burden is upon plaintiff to cause you to believe that the evidence has clearly and convincingly established the propositions of fact required for the recovery of punitive damages. However, on all other propositions of fact, the burden is upon the party who relies upon any such proposition to cause you to believe that such proposition is more likely to be true than not true. In determining whether or not you believe any proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. If the evidence in the case does not cause you to believe a particular proposition submitted, then you can not return a verdict requiring belief of that proposition. Instruction Number 5 (See MAI 2.04 (1981 Revision)) There are two claims submitted to you and each of them contains a separate verdict form. The verdict forms included in these instructions contain directions for completion and will allow you to return the permissible verdicts in this case. Nine or more of you must agree in order to return any verdict. A verdict must be signed by each juror who agrees to it. ****** Instruction Number 6 (See MAI 2.05 (1980 New), Modified) Instructions 6 through 14 and general instructions 1 through 5 apply to the claim of plaintiff Hurt for compensatory damages for personal injury and to the determination of the liability of defendant Acme for punitive damages. Use Verdict A to return your verdict on these issues. Instruction Number 7 (See MAI 25.04 (1978 Revision), Modified, MAI 19.01 (1986 Revision)) On the claim of plaintiff Hurt for compensatory damages for personal injury against defendant Acme, your verdict must be for plaintiff Hurt if you believe %g1%g: First, defendant Acme sold the road grader in the course of defendant's business, and Second, the road grader was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and Third, the road grader was used in a manner reasonably anticipated, and Fourth, such defective condition as existed when the road grader was sold directly caused or directly contributed to cause damage to plaintiff. Instruction Number 8 (Converse Omitted) Instruction Number 9 (See MAI 17.01 (1980 Revision), MAI 17.05 (1965 New), MAI 19.01 (1986 Revision)) On the claim of plaintiff Hurt for compensatory damages for personal injury against defendant Driver, your verdict must be for plaintiff Hurt if you believe %g1%g: First, defendant Driver failed to keep a careful lookout, and Second, defendant Driver was thereby negligent, and Third, such negligence directly caused or directly contributed to cause damage to plaintiff Hurt. Instruction Number 10 (Converse Omitted) Instruction Number 11 (See MAI 11.07 (1996 Revision)) The term "negligent" or "negligence" as used in these instructions means the failure to use ordinary care. The phrase "ordinary care" means that degree of care that an ordinarily careful person would use under the same or similar circumstances. Instruction Number 12 (See MAI 4.01 (1980 Revision), Modified) If you find in favor of plaintiff and against one or more defendants, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe he sustained and is reasonably certain to sustain in the future that the occurrence mentioned in the evidence directly caused or directly contributed to cause. Instruction Number 13 (See MAI 10.04 (1983 New), Modified) If you find in favor of plaintiff Hurt and against defendant Acme under Instruction Number 7 %g2%g, and if you believe that: First, at the time defendant Acme sold the road grader, defendant knew of the defective condition and danger submitted in Instruction Number 7, and Second, defendant Acme thereby showed complete indifference to or conscious disregard for the safety of others, If you find that defendant Acme is liable for punitive damages in this stage of the trial, you will be given further instructions for assessing the amount of punitive damages in the second stage of the trial. Instruction Number 14 (Converse Omitted, See MAI 33.16 (1991 New)) Verdict A (See MAI 36.11 (1980 Revision), Modified) Note: Complete this form as required by your verdict. On the claim of plaintiff Hurt for compensatory damages for personal injury against defendant Acme, we, the undersigned jurors, find in favor of: Plaintiff Hurt OR Defendant Acme On the claim of