Proposed Jury Instructions for Civil Environmental and Land Use Cases

    TRESPASS

    To recover damages for trespass, plaintiff must show by the greater weight to the evidence that:

             

            1. Defendant interfered with plaintiff’s lawful possession or ownership of real property, by entering upon plaintiff’s property, or starting a chain of events the natural result of which is to cause an object to enter plaintiff’s property;

             

            2. Defendant intended to perform the act that resulted in the interference with plaintiff’s right of possession and did not have permission, authority, or the right to do so; and

             

            3. Defendant’s actions directly and foreseeably caused damage to plaintiff or plaintiff’s property.

               

    Authority: Halifax Drainage Dist. v. Gleaton, 188 So. 374 (Fla. 1939); Guin v. City of Riviera Beach, 388 So. 2d 604 (Fla. 4th DCA 1980); Okaloosa County Gas District v. Enzor; 101 So.2d 406 (Fla. 1st DCA 1958).

     

    STRICT LIABILITY/ULTRA-HAZARDOUS ACTIVITY

     

    To recover damages for strict liability as a result of an ultra-hazardous activity, plaintiff must show by the greater weight of the evidence that defendant [authorized or permitted another to carry on] [or] [knowingly assisted or participated in carrying on], upon premises owned or possessed by defendant, an activity that defendant knew or should have known was ultra-hazardous and which caused injury to plaintiff or damage to plaintiff’s property.

     

    In determining whether defendant’s conduct was ultra-hazardous, the following factors should be considered:

    a. existence of a high degree of risk of some harm to the person, land or chattels of others;

    b. likelihood that the harm that results from it will be great;

    c. inability to eliminate the risk by the exercise of reasonable care;

    d. extent to which the activity is not a matter of common usage;

    e. inappropriateness of the activity to the place where it is carried on; and

    f. extent to which its value to the community is outweighed by the dangerous attributes.

     

    Authority: Great Lakes Dredging and Dock Co. v. Sea Gull Operating Corp., 460 So.2d 510 (Fla. 3d DCA 1984); Bunyak v. Clyde J. Yancey & Sons Dairy, Inc., 438 So.2d 891 (Fla. 2d DCA 1983); Cities Service Co. v. State, 312 So.2d 799 (Fla. 2d DCA 1975).

     

    Comment: Florida courts have not addressed the issue of whether the court or the jury should make the determination that a particular activity is ultra-hazardous. The majority of jurisdictions have followed Restatement (Second) of Torts § 520, comment 1, and held that it is a question of law for the court. See e.g., Caporale v. C.W. Blakeslee & Sons, Inc., 175 A.2d 561 (Conn. 1961); Matomco Oil Co., Inc. v. Arctic Mechanical, Inc., 796 P.2d 1336 (Alaska 1990); McLane v. Northwest Natural Gas Co., 467 P.2d 635 (Ore. 1970); Funk v. General Motors, 220 N.W.2d 641 (Mich. App. 1974); but see, Ravan v. Greenville County, 434 S.E. 296 (So.Car. App. 1993); Harper v. Regency Development Co., 399 So.2d 248 (Ala. 1981); Zero Wholesale Gas Co. v. Stroud, 571 S.W. 2d 74 (Ark. 1978).

     

    COMMON LAW PUBLIC NUISANCE

     

    To recover damages for public nuisance, plaintiff must show by the greater weight of the evidence that:

     

    1. Defendant [authorized] [permitted another to carry on] [or] [knowingly assisted or participated in carrying on] conduct that causes injury to the public health, safety, or welfare, or which unreasonably interferes with [a right] [privilege] [or] [property] of the public in general; and

     

    2. As a result of defendant’s conduct, plaintiff has suffered a special injury, such as personal injury, or property damages, or pecuniary losses, different in kind and degree from that suffered by members of the public in general.

     

     

    Authority: Orlando Sports Stadium, Inc. v. Powell, 262 So.2d 881 (Fla. 1972); Page v. Niagara Chem. Div. of Food Machinery & Chem. Corp., 68 So.2d 382 (Fla. 1953); Gardner v. Sailboat Key, Inc., 295 So.2d 658 (Fla. 4th DCA 1974); Town of Surfside v. County Line Land Co., 340 So.2d 1287 (Fla. 3d DCA 1977); Prosser, Private Action for Public Nuisance, 52 Va.L.Rev. 997 (1966)

     

    PRIVATE NUISANCE

    To recover damages for private nuisance, plaintiff must show by the greater weight of evidence that

     

    1. Defendant [authorized or used] [permitted another to carry on conduct] [or] [allowed a condition to exist] on defendant’s real property that substantially interfered with plaintiff’s possession, use, or enjoyment of plaintiff’s property;

     

    2. Plaintiff [owned] [had a possessory interest in] the real property; and

     

    3. That the interference with plaintiff’s use, possession, or enjoyment of plaintiff’s property was a proximate and foreseeable result of defendant’s unreasonable use of defendant’s property.

     

    In determining whether defendant’s use of defendant’s property is reasonable, you may consider the character and uses of the surrounding property.

     

     

    Authority: Jones v. Trawick, 75 So.2d 785 (Fla. 1954); Durrance v. Sanders, 329 So.2d 26 (Fla. 1st DCA 1976); Nitram Chemicals, Inc. v. Parker, 200 So. 2d 220 (Fla. 2d DCA 1967); Lee v. Fla. Public Util. Co., 145 So.2d 299 (Fla. 1st DCA 1962).

     

    MEASURE OF DAMAGES FOR INJURY TO PROPERTY

        1. If you find for the plaintiff, you should award an amount of money that the greater weight of the evidence shows will fairly and adequately compensate plaintiff for damage to plaintiff’s property.

         

        In determining damages, you shall consider the following elements:

     

    a. If you find the injury to plaintiff’s property is permanent, plaintiff is entitled to the lesser of either: (1) the diminution in the market value of plaintiff’s property, or (2) the reasonable cost of rehabilitation or restoration of the property. The diminution in market value is the difference between the fair market value of the property immediately before and immediately after the damage caused by the defendant.

     

    In addition to the foregoing, you should also take into consideration any loss sustained by the plaintiff for the temporary loss of use of plaintiff’s property during the period of time reasonably required for its restoration or replacement.

     

    b. If you find that the injury to plaintiff’s property is temporary, plaintiff is entitled to the reasonable costs [to abate the damage] [restore the property] plus the value of the loss of use of plaintiff’s property for the duration of the damage.

     

    2. Property damage is temporary if it is feasible to repair or restore the property to its previous condition immediately prior to the damage at a reasonable expense, and if the cost of repair or restoration can be established with reasonable certainty. However, if the cost of repair or restoration is unreasonable or exceeds the value of the property immediately before the injury occurred, then the damage will be considered permanent.

     

    Authority: Davey Compressor Co. v. Delray Beach, 613 So.2d 60 (Fla. 4th DCA), aff’d, 639 So. 2d 595 (Fla. 1994); but compare, Standard Oil Co. v. Dunagan, 171 So.2d 622 (Fla. 3d DCA 1965) and Crown Cork & Seal Co. v. Vroom, 480 So.2d 108 (Fla. 2d DCA 1985); see also, Nitram Chemicals, Inc. v. Parker, 200 So.2d 220 (Fla. 2d DCA 1967); Exxon Corp. of U.S.A. v. Dunn, 474 So.2d 1269 (Fla. 1st DCA 1985), Clark v. J.W. Conner & Sons, Inc., 441 So.2d 674 (Fla. 2d DCA 1983); Antun Inv. Corp. v. Ergas, 549 So.2d 706 (Fla. 3d DCA 1989).

     

    Comment: As held in Davey Compressor Co. v. Delray Beach, 639 So. 2d 595 (Fla. 1994), exceptions to the general measure of damages exist, such as when the plaintiff is a municipality responsible for supplying potable water to its residents. See Restatement (Second) of Torts, § 929.