NOTICE TO COUNSEL AND JUDGES: As provided in the Court's Order accepting the proposed jury instructions for a period of working review, the Court's provisional approval "is for the purpose of refining and testing the application and accuracy of the pattern instructions and does not ensure error-free trials, and their use does not carry a no-reversal guarantee. It is not intended that this provisional acceptance is a final approval of the content of any instruction and each judge may use or refuse any instruction as he or she sees fit[,]" according to law. (emphasis added).


Members of the Jury:

Now that you have heard all of the evidence, it becomes my responsibility to instruct, or charge you, concerning the law that applies to this case. It is the Judge's duty to consider, determine and explain the rules of law that apply in a particular case. It is the Juryís responsibility and duty to consider and determine the facts of the case, that is, what the Jury believes to be the true facts from among all of the evidence in the case. I have no right to tell you which facts are established by the testimony and any exhibits. You, and only you, are the judges of the facts.



It is your duty as jurors to accept and follow the law as contained in these instructions, and to apply that law to the facts that you believe have been proved from all of the evidence in the case. Each instruction is as important as any other. You are not to single out one statement or instruction alone as stating the law and ignore the other instructions or parts of instructions. You are to consider and apply these instructions together as a whole and you are to regard each instruction in the light of all others. Any personal opinion which you, or any of you, may have as to facts not established by the evidence in this case cannot properly be considered by you as a basis for your verdict. As individuals you may believe that certain facts existed, but as jurors sworn to try this case and to render a true verdict on the law and the evidence, you can act only upon the evidence which has been properly introduced to you at this trial. You cannot speculate as to what may have happened in the absence of evidence on a given point. If you have any personal opinion as to what the law is, or ought to be, you must put that opinion aside and accept and apply the law as it is.


In performing your duties as jurors you must not permit yourself to be influenced or swayed by sympathy, bias, prejudice or favor as to any party. All parties expect that you will carefully and impartially consider all of the evidence, accept and follow the law as contained in these instructions, and reach a just verdict, regardless of the consequences.



You should consider and decide this case as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. A corporation is entitled to the same fair trial at your hands as a private individual. All persons, including corporations, stand equal before the law, and are to be dealt with as equals in a court of justice.


You are to determine the facts of this case from the evidence alone. The "evidence" in the case always consists of the sworn testimony of all the witnesses, whether the witness appeared in person or by deposition regardless of who may have called the witness; and all exhibits received in evidence, regardless of who may have produced them. Accordingly, during your deliberations you should carefully consider the testimony of each and every witness and all exhibits.



There are, generally speaking, two types of evidence from which a Jury may properly find the truth as to the facts of the case. One is direct evidence---such as the testimony of an eyewitness. The other is indirect or circumstantial evidence---the proof of a chain of circumstances pointing to the existence or non-existence of certain facts. As a general rule, the law makes no distinction between direct and circumstantial evidence, but simply requires that the Jury find the facts in accordance with all of the evidence in this case, both direct and circumstantial.


You are to consider only the evidence presented, and you may not guess or speculate as to the existence of any facts in this case. But in your consideration of the evidence, you are not limited to the bald statements of the witnesses. On the contrary, you are permitted to draw reasonable inferences that seem justified in the light of your own experiences from the facts you find have been proved. Inferences are deductions or conclusion which reason and common sense lead the Jury to draw from facts that have been established by the evidence in the case.


Nothing that I have said or done at any time during this trial shall be considered by you as evidence of any fact, or as an indication that I have any opinion concerning any fact, the credibility of the witnesses, or the weight of the evidence.

You should entirely disregard questions and exhibits to which an objection was sustained, or answers or exhibits that I have ordered stricken from the evidence. It is not the Juryís job to determine the admissibility or validity of an exhibit or other testimony. Do not draw any conclusions or speculations about why certain testimony or other evidence was excluded or admitted.

Nothing said or done by the attorneys is to be considered by you as evidence of fact. Opening statements and final arguments are intended to help you to understand the evidence and apply the law, but they are not evidence.

Anything you may have seen or heard outside the courtroom is not evidence, and must be entirely disregarded.


Now, in saying that you must consider all of the evidence, I do not mean that you must accept all of the evidence as true or accurate. You, as jurors, are the sole judges of the "credibility of the witnesses" and the "weight of the evidence." The "credibility of a witness" means the truthfulness or lack of truthfulness of the witness. The "weight of the evidence" means the extent to which you are, or are not, convinced by the evidence. You should carefully scrutinize the testimony given, the circumstances under which the witness has testified and every matter in evidence which tends to indicate whether the witness is worthy of belief.

Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of differing witnesses, should be considered by you, and may or may not cause you to discredit such testimony. Two or more persons witnessing an incident may see or hear it differently, and innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing their effect, you should consider whether the inconsistencies or discrepancies pertain to a matter of importance, or an unimportant detail, and whether the discrepancy or inconsistency results from innocent error or wilful falsehood.

The number of witnesses testifying on one side or the other of an issue is not alone the test of the "credibility of the witnesses" and the "weight of the evidence." If warranted by the evidence, you may believe one witness against a number of witnesses testifying differently. The tests are: How truthful is the witness, and how convincing is his or her evidence, and which witnesses and which evidence appeals to your minds as being most accurate and otherwise trustworthy in the light of all the evidence and circumstances shown.

In determining the credit and weight you will give to the testimony of any witness who has testified before you, you may consider if found by you from the evidence:

(1) His or her good memory, or lack of memory;

(2) The witnessí interest, or lack of interest in the outcome of the trial;

(3) The witnessí relationship to any of the parties, or other witnesses;

(4) His or her demeanor and manner of testifying;

(5) His or her opportunity and means, or lack of opportunity and means to know the things about which he or she testified;

(6) The reasonableness, or unreasonableness of his or her testimony;

(7) His or her apparent fairness, or lack of fairness;

(8) The intelligence, or lack of intelligence of the witness;

(9) The bias, prejudice, hostility, friendliness or unfriendliness of the witness for or against any of the parties;

(10) Contradictory statements of any witness, if you believe the witness made any statements contradictory of his or her testimony. Understand, however, that you may not use statements you determine to be contradictory to establish the truth of such statements, unless the statements are made under oath in the court room.

(11) Witnessí acts that you believe contradict their testimony;

From these considerations, and all other conditions and circumstances appearing from the evidence, you may give to the testimony of the witness such credit and weight as you believe it is entitled to receive.

If you believe that any witness in this case has knowingly testified falsely as to any material fact, after considering and weighing the testimony of such witness, you may disregard the whole of the testimony of the witness, or give it whatever weight and credit you believe the testimony is entitled to receive.


Ordinarily, witnesses are not permitted to testify as to opinions or conclusions. However, the rules of evidence provide that if scientific, technical, or other specialized knowledge might assist the Jury in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify and state his opinion concerning such matters, and may state the reasons for the opinion. You should consider each expert opinion received in evidence in this case, and the reasons given in support of the opinion, and give it whatever weight you think it deserves. In determining the weight to be given to the opinion of an expert, you should consider the education, training and experience of the expert, the basis for the opinion, the confidence of the witness, the reasons and reasoning stated by the witness, the opinions of other similar witnesses on the same matters, and the rules generally applicable to other witnesses in this case. If you should decide that the opinion of an expert witness is not based upon sufficient education and/or experience, or if you should conclude that the reasons given in support of the opinion are not sound, or merely speculative, or that the opinion is outweighed by other evidence, then you may disregard the opinion entirely, or give it such weight as you find it deserves.


The burden of proof is on the plaintiff in a civil action such as this to prove each and every essential element of his or her claim by a preponderance of the evidence. If the proof should fail to establish any element of plaintiffís claim by a preponderance of the evidence in the case, or if the defendantís evidence outweighs the plaintiffís, or if the evidence is evenly balanced in the case, the Jury should find for the defendant as to that claim.

To "establish by a preponderance of the evidence" means to prove that something is more likely so than not so. In other words, a preponderance of the evidence means a body of evidence that has more convincing force than the evidence that opposed it, and evidence that produces a belief in your mind that what a party is trying to prove is more likely true than not true.

While the burden is on the plaintiff to prove his claim by a preponderance of the evidence, this rule does not require proof to an absolute certainty, since proof to an absolute certainty is seldom possible in any case. In a civil case, as opposed to criminal cases, it is proper to find that the plaintiff has succeeded in carrying the burden of proof if you believe that the evidence of the plaintiff outweighs that of the defendant even in the slightest degree, after considering all the evidence in the case.


A witness may be discredited or "impeached" by contradictory evidence, by showing that he or she testified falsely concerning a material matter, or by evidence that at some other time a witness has said or done something, or has failed to say or do something, that is inconsistent with the witnessesís present testimony.

If you believe that any person testifying in this case has knowingly testified falsely to any material fact, you may believe such parts of their testimony as you believe to be true and reject such parts as you believe to be false, or you may refuse to believe any part of such testimony. It is for you to determine, from all the testimony taken and all the circumstances surrounding this case, which witnesses have testified truthfully and which ones, if any, have testified falsely.


During the trial of this case, certain testimony has been presented to you by way of a deposition on a video recording played on a television set which consisted of sworn recorded answers to questions asked of the witness in advance of this trial by one or more of the attorneys for the parties in this case. The testimony of a witness who for some reason cannot be present to testify in person from the witness stand may be presented under oath on a video recording played on a television set. Such testimony is entitled to the same consideration, credibility, and weight by the Jury as if the witness had been present and had testified from the witness stand.


In determining the primary question before you, it will be necessary to know and understand what is meant by negligence, contributory negligence, and proximate cause.

Negligence is the failure to exercise ordinary care, and ordinary care is that kind and degree of care or caution which an ordinary prudent and careful person would exercise under the same or similar circumstances.

Negligence is doing something a reasonably prudent person would not do in the same or similar circumstances, or the failing or refusing to do something a reasonably prudent persons would have done in the same, or similar circumstance. Negligence cannot be presumed, but must be proven.

Contributory negligence means negligence of the plaintiff, which together with negligence of the defendant, proximately caused the accident. Where contributory negligence is charged by a party, the contributory negligence that is charged must be proven by the party asserting it by a preponderance of the evidence.

The proximate cause of an event is the negligent act contributing to the accident, without which the accident would not have occurred. The proximate cause of an event is that cause which in actual sequence, unbroken by any independent cause, produces an event, and without which, the event would not have occurred.

Assumption of risk means that the plaintiff, knowing full well the hazards involved, failed to take precautions to protect himself from those known or reasonably to be expected hazards.


Under the law of comparative negligence as adopted by West Virginia, a plaintiff is barred from recovery if his negligence equals or exceeds 50 percent of the total negligence of all parties to the accident, which total negligence our law sets at 100 percent.

If you find from a preponderance of the evidence that the defendant was guilty of negligence that proximately contributed to the damages incurred by the plaintiff, and you further find from a preponderance of the evidence that the plaintiff was guilty of negligence which proximately caused his damages, but that his negligence was not greater than 50 percent of the total negligence, then you will determine the percentage of the plaintiffís negligence compared to the total negligence of all parties, which our law expresses at 100 percent. You will then also determine total damages of the plaintiff without regard to his percentage or degree of negligence.



Your part in the administration of justice is exceedingly important. The parties in this case have come into this court for a trial on issues that have developed and exist between them. It is our duty--mine as judge, and yours as jurors--to see that all parties get a full and fair trial. You have been chosen and sworn as jurors to try the issues of fact presented in this case. You are to perform this duty without bias or prejudice to any party. The law does not permit jurors to be governed by conjecture, surmise, speculation, prejudice, or public opinion in these cases. The parties to this action rightfully expect that you will carefully and impartially consider all the evidence in the case and that you will carefully follow the law as stated to you by the Court.

Remember at all times, you are not partisans. You are judges--judges of fact. Your sole interest is to seek the truth from the evidence of the case.

You are to answer the questions on the jury verdict form solely upon the evidence received at this trial. You are to be guided by the Courtís instructions and your own sound judgment in considering the evidence in this case and in answering these questions.

After the closing arguments, this case is ready to be submitted to you for your serious deliberations. You will consider the case fairly, honestly, impartially, and in light of reason and common sense, and you will give each question on the verdict form your careful and conscientious consideration. Let your verdict speak the truth, whatever that truth may be.


This case will now be submitted to you with a verdict form, which is a series of questions. Your duty will be discharged by responding to the ones you deem appropriate based on the evidence and the Courtís instructions. You will complete your work when you return the verdict form to the Court. It thereupon becomes the Courtís duty to direct judgment according to law and according to the facts as you have found them.

Upon retiring to your jury room, you should first select one of your number to act as a Foreperson who will preside over your deliberations and will be your spokesperson here in Court.

You will take the verdict form to your jury room, and when you have reached unanimous agreement as to the verdict, you will have your Foreperson fill it in, date and sign it, and return to the courtroom.

Your verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree to it. In other words, your verdict must be unanimous.

If you should desire to communicate with the Court during the deliberations, please reduce your message to writing signed by the Foreperson and pass the note to the bailiff, who will bring it to my attention. I will then respond as promptly as possible, either in writing or by having you returned to the courtroom so that I can address you orally. I caution you, however, that any message or question you might send should never state or specify how the Jury stands, numerically or otherwise.

You will now hear argument of the attorneys.