401.23 BURDEN OF PROOF ON DEFENSE ISSUES

If the greater weight of the evidence does not support (defendant’s) defense[s] and the greater weight of the evidence does support (claimant’s) claim, then [your verdict should be for (claimant) in the total amount of [his] [her] damages] *[you should decide and write on the verdict form what percentage of the total negligence of [both] [all] defendants you apportion to each defendant whose negligence you find was a legal cause of loss, injury, or damage to (claimant)].

*Use second bracketed alternative above when there is more than one defendant.

If, however, the greater weight of the evidence shows that both (claimant) and [(defendant)] [one or more of (defendants)] were negligent and that the negligence of each contributed as a legal cause of [loss] [injury] [or] [damage] sustained by (claimant), you should decide and write on the verdict form what percentage of the total negligence of [both] [all] parties to this action you apportion to each of them.

Use the following instruction in cases with a comparative negligence defense and an apportionment of a non-party defense:

If, however, the greater weight of the evidence shows that (claimant) and [(defendant)] [one or more of (defendants)] and (identify additional person(s) or entit(y)(ies)) were negligent and that the negligence of each contributed as a legal cause of [loss] [injury] [or] [damage] sustained by (claimant), you should decide and write on the verdict form what percentage of the total negligence of [both] [all] parties to this action and (identify additional person(s) or entit(y)(ies)) you apportion to each of them.

Use the following instruction in cases without a comparative negligence defense but with an apportionment of a non-party defense:

If, however, the greater weight of the evidence shows that [(defendant)] [one or more of (defendants)] and (identify additional person(s) or entit(y)(ies)) were negligent and that the negligence of each contributed as a legal cause of [loss] [injury] [or] [damage] sustained by (claimant), you should decide and write on the verdict form what percentage of the total negligence of [(defendant)] and (identify additional person(s) or entit(y)(ies)) you apportion to each of them.

NOTES ON USE FOR 401.23

1. Preemptive instructions on defense issues. If a preemptive instruction for claimant is appropriate on a defense issue, as when comparative negligence or assumption of risk has been brought to the jury’s attention on voir dire or by opening statements or argument and is now to be withdrawn, an instruction in the form of instruction 401.13 should be given immediately following instruction 401.21. If a preemptive instruction for defendant is required on some aspect of a defense, as when, for example, the court holds that any comparative negligence of the driver will reduce claimant’s recovery, a preemptive instruction announcing the ruling should be given immediately after framing the defense issues (instruction 401.22a).

2. Instructions on issues raised by replies to affirmative defenses. Plaintiff bears the burden of proof on issues raised by any replies to affirmative defenses, and instruction 401.23 should be modified as appropriate for those issues.

(Revised February 1, 2018)