On May 17, 2012, The Supreme Court of Florida issued its opinion concerning proposed new Standard Jury Instructions for product liability cases. The Court preliminarily approved several of the proposed instructions, but rejected a number of instructions and directed the Committee to revise the proposed instructions. Among the rejected proposed instructions were an instruction covering strict which eliminated the differences between design and manufacturing defects and eliminated the risk utility test; an instruction on inferences of defect; and an instruction on crashworthiness.

On February 1, 2013, the Committee submitted revised proposed instructions for comment. The comment period ended on March 1, 2013. The changes contained in the revised instructions are far less drastic than the initial proposed revisions. The strict liability instruction essentially mirrors current instruction PL 5 and maintains a distinction between design defects and manufacturing defects.  The revised proposed instruction also continues to list both the consumer expectations and risk/benefit tests. However, the Committee notes explain that pending further development in the law, the Committee has not taken a position on whether the risk/benefit test and consumer expectation test should be given together or in the alternative. The Committee also did not take a position on whether the risk/benefit test is a standard for proving a defect or an affirmative defense. Accordingly, the proposed instructions include the risk/benefit test in the instruction for design defect as well as in a separate defense instruction. The proposed instructions make clear that the jury should not be instructed on the risk/benefit test both as a defect standard and a defense.

Another change included in the revised proposed instructions is a specific set of negligence based product liability instructions. Under the existing product liability instructions, the parties were forced to shoehorn products liability concepts into the standard instructions for general negligence.

Further, due to the Legislature’s statutory overruling of D’Amario v. Ford Motor Co., 806 So.2d 424 (Fla. 2001), the Committee scrapped the very wordy and unbalanced crashworthiness instruction. The revised proposed instructions now only include a short statement of crashworthiness in the summary of claims and explain that the no special product liability instructions should be given. Rather, the Committee Notes for the instruction explain that the standard instructions applicable in other cases should be given in crashworthiness cases.

The Committee will be submitting the revised proposed rule to the Florida Supreme Court. The Court will then open a period for additional comment on the proposed rules before issuing its opinion on the proposal.

Check back with us for updates.