Additional Resources to Consult and Consider

As mentioned above, Utah very recently issued a model set of jury instructions, including those specifically dealing with many construction issues encountered in that state. There were a number of charges identified with specific reference to Utah case law discussing these principles. It is notable that the Utah instructions also make reference to surrounding jurisdictions' case law as well as recognized treatises in this area., e.g., Bruner and O'Connor on Construction Law, C.J.S. Contracts, and even the ABA Model Jury Instructions: Construction Litigation publication mentioned above. Several of these specific instructions are set forth below.

CV2209 Defective Plans and Specifications

If [name of contractor] proves that [he] acted reasonably in following [describe plans and specifications] provided by [name of owner], then [name of contractor] can recover from [name of owner] the costs caused by reasonable reliance on the plans and specifications.

Also, included in the Utah instructions is CV2216, dealing with waiver of written change notice requirement. CV2216 states as follows:

The contract requires that change notices be made in writing. [Name of contractor] claims that [name of owner] waived the right to require written notice of contract changes. To succeed on this claim, [name of contractor] must prove that [name of owner], by words or by conduct:

  1. understood that the work performed by [name of contractor] was extra work; and
  2. agreed or acknowledged that this extra work would require a change to the contract [time/compensation].

Waiver is then specifically addressed in CV2217 as follows:

"Waiver" means intentionally giving up a known right. To decide whether a party has waived a contract right, you must determine that all of the following have been proved:

  1. a party has a contract right;
  2. the party knew of that right; and
  3. the party intended to give up that right.

The intent to give up a right may be expressed or implied, and may be determined by considering all relevant circumstances.

The final instruction example comes in the area of cardinal changes. Here, the Model Utah Jury Instructions, 2d Ed., contains the following:

CV2220 Cardinal Changes

[Name of contractor] claims that [he] should be paid more than the contract amount because of a cardinal change(s). A cardinal change is a change that substantially alters the type of work described by the original contract. To succeed on this claim, [name of contractor] must prove that:

  1. the change(s) were substantially different from the work described in the original contract;
  2. the change(s), were not anticipated under the contract; and
  3. the parties acted as if the original contract no longer applied.

All of these model instructions are available through the Utah court's website, www.utcourts.gov/resources/muji The Utah instructions are also notable for two specific reasons; one, a set of instructions can be built utilizing the web-based format, see http://www.utcourts.gov/resources/muji/BuildInstructions.asp. Another useful resource is a set of guidelines for drafting plain-language jury instructions. Indeed, after reviewing some of the basic principles, including those of "Be clear"; "Be brief"; "Remember who your audience is (lay people, with varying degrees of education and language skills)"; etc., the guidelines generally provide notable suggestions on which to not only use and consult the standard-form instructions provided, but also to craft and create one's own case-specific instruction. These guidelines can be found at http://www.utcourts.gov/committees/muji/guideline%20summary.pdf. These guidelines are not only useful tools—it appears that they guided the drafting of the Model Utah Jury Instructions themselves; insofar as the examples above show, the instructions are precise and direct explanations of the principles discussed, along with the jury's role in deciding that particular issue.

As noted above, another resource is available for Florida construction law attorneys, in the form of the Florida Forms of Jury Instructions. Included within those forms is an entire section (Chapter 42) devoted to construction contracts. The first of two examples is the Florida version of the notice of claim requirement under a contract, found at §42.60. This provides as follows:

INSTRUCTION NOTICE OF CLAIM UNDER CONTRACT

[PLAINTIFF/ DEFENDANT]'S PROPOSED INSTRUCTION NO. _____

The [contract/subcontract] between Plaintiff and Defendant provides __________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
[quote or paraphrase the contract provisions that require notice of claim]

The [first/next] issue for your determination is whether Plaintiff gave Defendant notice of claim as required by the [contract/subcontract]. If you find that such notice was not given, then your verdict should be for Defendant.

[OPTIONAL (see Use of Instruction):]

However, if you determine that Defendant waived or excused Plaintiff's compliance with the notice of claim requirement or that Defendant either agreed or by [his/her/its] course of conduct did not require such notice, and you also determined that Defendant breached the [contract/subcontract], then your verdict should be for Plaintiff.

Another example is a construction-unique instruction dealing with measures of damages for expenditures by contractor due to delays, inefficiencies or acceleration. This charge, found at §42.95 includes the following language:

If your verdict is for Plaintiff on [his/her/its] claim against Defendant, you should also award the Plaintiff the amounts expended by Plaintiff for labor, services, equipment, or materials, which Plaintiff would not otherwise have made but for ___________ [describe delays in the work or inefficiencies in the work or acceleration of the work] caused by Defendant's breach of the contract. This includes expenditures for additional labor, services, equipment, and materials, and for increases in the amount that otherwise would have been paid for the labor, services, equipment, and materials already required. [Optional (see Use of Instruction): This also includes the Plaintiff's overhead and the profit Plaintiff could otherwise have earned from its expenditures for additional labor, services, equipment, materials and for increases in the cost of those items already required under the contract.]

Much the same as in the Model Jury Instructions: Construction Litigation publication from the ABA Section of Litigation and the Model Utah Jury Instruction, there are specific references to the use of the instruction as well as case law and/or treatise authority supporting the suggested charge language. Therefore, not only is the publication a resource on jury instructions, but it also serves as a direct resource link for the underlying supporting authority for key construction-law concepts.

It may be additionally beneficial to construction litigators that more resources are becoming available that might be of assistance on certain types of construction disputes. Such additional resources for potential jury instructions in construction litigation can be found in the West publications on Model Jury Instructions. These publications are meant for use with the Federal Jury Practice and Instructions, Fifth Edition, publication of West. The model instructions are broken down by circuit and cover many issues often presented in federal court litigation. In the Ninth Circuit Manual of Model Jury Instructions—Civil (West 2007), the following charges are found and could be directly appropriate in construction jury cases in that circuit:

2.11 Expert Opinion

Some witnesses, because of education or experience, are permitted to state opinions and the reasons for those opinions.

Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness' education and experience, the reasons given for the opinion, and all the other evidence in the case.

See Ninth Circuit Manual of Model Jury Instructions—Civil at p. 42.

Section 2.12 deals with Charts and Summaries Not Received in Evidence:

Certain charts and summaries not received in evidence [may be] [have been] shown to you in order to help explain the contents of books, records, documents, or other evidence in the case. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the underlying evidence.

Id. at 43.

The unique technological issues associated with presentation of evidence in electronic format are recognized and embraced in Section 2.14's charge on Evidence in Electronic Format:

Those exhibits capable of being displayed electronically will be provided to you in that form, and you will be able to view them in the jury room. A computer, projector, printer and accessory equipment will be available to you in the jury room.

A court technician will show you how to operate the computer and other equipment; how to locate and view the exhibits on the computer; and how to print the exhibits. You will also be provided with a paper list of all exhibits received in evidence. (Alternatively, you may request a paper copy of an exhibit received in evidence by sending a note through the [clerk] [bailiff].) If you need additional equipment or supplies, you may make a request by sending a note.

In the event of any technical problem, or if you have questions about how to operate the computer or other equipment, you may send a note to the [clerk] [bailiff], signed by your foreperson or by one or more members of the jury. Be as brief as possible in describing the problem and do not refer to or discuss any exhibit you were attempting to view.

If a technical problem or question requires hands-on maintenance or instruction, a court technician may enter the jury room [with [the clerk] [the bailiff] [me] present for the sole purpose of assuring that the only matter that is discussed is the technical problem.] When the court technician or any non-juror is in the jury room, the jury shall not deliberate. No juror may say anything to the court technician or any non-juror other than to describe the technical problem or to seek information about operation of equipment. Do not discuss any exhibit or any aspect of the case.

The sole purpose of providing the computer in the jury room is to enable jurors to view the exhibits received in evidence in this case. You may not use the computer for any other purpose. At my direction, technicians have taken steps to make sure that the computer does not permit access to the Internet or to any "outside" website, database, directory, game, or other material. Do not attempt to alter the computer to obtain access to such materials. If you discover that the computer provides or allows access to such materials, you must inform me immediately and refrain from viewing such materials. Do not remove the computer or any electronic data [disk] from the jury room, and do not copy any such data.

Id. at p. 45-46.

Another growing area of the law impacting construction projects pursued on the public level are claims under the False Claims Act. As noted in the Federal Jury Practice and Instructions, Fifth Edition, publication, cited above:

Originally enacted in 1863, the False Claims Act [31 U.S.C.A. §§ 3729-3733] (FCA) imposes civil liability upon any person who, among other things, knowingly presents or causes to be presented to an officer or employee of the United States Government a false or fraudulent claim for payment or approval. [footnote omitted] The defendant is liable for up to treble damages and a civil penalty of up to $10,000 per claim.

The publication goes on to note:

The FCA imposes civil liability upon '[a]ny person' who, among other things 'knowingly presents, or causes to be presented, to an officer or employee of the United States Government ... a false or fraudulent claim for payment or approval.'

Federal Jury Practice and Instructions, Fifth Edition, Volume 3C at pp. 746–47, citing 31 U.S.C.A. § 3729(a).

It is also in this publication where a resource on False Claims Act jury instructions can be found. Several of these False Claims Act specific instructions follow:

§ 178.01 Nature of the Action

Plaintiff ____________ alleges that on or about [date], defendant __________ presented a claim against [the United States] [a program funded in whole or in part by the United States] by [filing a claim] [causing a claim to be filed] with [name], an officer or employer of [the United States] [government contractor] [government grantee] when defendant __________ knew that the defendant's claim was false or fraudulent.

Defendant __________ denies these allegations and [set forth any appropriate affirmative defenses].

* * * *

§ 178.10 Nature of the Action

Under the False Claims Act, any person, including a corporation, who knowingly presents, or causes to be presented, to an officer or employee of the United States Government a false or fraudulent claim for payment or approval or who knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the United States Government, or who conspires to defraud the Government by getting a false or fraudulent claim allowed or paid, or who knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid or decrease an obligation to pay or transmit money or property to the Government is liable to the United States Government for a civil penalty plus damages sustained by the Government.

[The False Claims Act is to be read broadly, and its reach is beyond "claims" that might be legally enforced to all fraudulent attempts to cause the Government to pay out sums of money.]

[The False Claims Act is violated, not only by a person who makes a false statement or a false record to get the Government to pay a claim, but also by one who engages in a fraudulent course of conduct that causes the Government to pay a claim for money.]

* * * *

C. ESSENTIAL ELEMENTS OF PLAINTIFF'S CLAIM

§ 178.20 Generally

In order to sustain plaintiff's burden of proof for the charge of knowingly submitting a false or fraudulent claim to the United States, plaintiff __________ must prove the following four essential elements by a preponderance of the evidence:

One: Defendant __________ presented [caused to be presented] to [name] a claim against the United States;

Two: At the time that the claim was presented [caused to be presented], [name] was an officer or employee of the [United States Government] [a member of the Armed Forces of the United States] [government contractor] [government grantee];

Three: The claim presented was [false] [fraudulent] in that [describe allegedly false or fraudulent nature of the claim]; and

Four: Defendant __________ knew that the claim was [false] [fraudulent].

[The False Claims Act reaches beyond "claims" that might be legally enforced to all fraudulent attempts to cause the Government to pay out sums of money. Thus, the False Claims Act is violated, not only by a person who makes a false statement or a false record to cause the Government to pay a claim, but also by one who engages in a fraudulent course of conduct that causes the Government to pay a claim for money.]

* * * *

D. DEFINITIONS

§ 178.30 False

A claim is "false" if it is an assertion that is untrue when made or when used.

* * * *

§ 178.31 Fraudulent

A claim is "fraudulent" if it is an assertion that is known to be untrue.

* * * *

§ 178.32 Knowing and Knowingly

The terms "knowing" and "knowingly" mean that a person (a) has actual knowledge of the true information, or (b) acts with deliberate ignorance of the truth or falsity of the information, or (c) acts in reckless disregard of the truth or falsity of the information.

It is not necessary, however, for plaintiff __________ to prove that defendant __________ acted with an intent to defraud anyone.

* * * *

E. CAUSATION

§ 178.40 Generally

Plaintiff __________ has the burden of proving each and every element of plaintiff's claim by a preponderance of the evidence. If you find that plaintiff ____________ has not proved any one of the elements by a preponderance of the evidence, you must return a verdict for the defendant __________.

[Defendant __________ has the burden of proving each element of defendant's affirmative defenses by a preponderance of the evidence.]

Again, these same instructions cannot be adopted wholesale as a part of the instructions preparation efforts in every case, without appropriate tailoring and modification. Nevertheless, they are key tools because they provide a starting point for crafting the charge, provide support and wider recognition for the proposed charge structure and give further underlying analysis for the charge language used.

Crafting a New Charge Without Published Resources to Reference

Unfortunately, beyond some of these more generally applicable resources for the federal court jury instructions, no charges in these particular publications deal specifically with construction litigation matters. While there are a number of charges related to the Americans with Disabilities Act ("ADA") (see Ninth Circuit Manual of Model Jury Instructions—Civil at p. 277, et seq.), these charges appear to be more directly related to Subchapter I of the ADA that cover claims made by employees or applicants for discriminatory treatment as opposed to Subchapters II and III that cover public services and public accommodations for persons with disabilities. The Third Circuit Model Jury Instructions—Civil (West 2010) acknowledges that the suggested charges contained therein are limited to "Title I" ADA claims and do not address "Titles II and III" described above. See Third Circuit Model Jury Instructions—Civil at p. 560. That publication notes "for a discussion and application of the standards governing actions under Titles II and III of the ADA, see Bowers v. National Collegiate Athletic Assoc., 475 F.3d 524 (3d Cir. 2007)." While that referenced case discussed Title II of the ADA, it dealt more with issues pertaining to an athlete's alleged drug abuse, rather than issues tied to construction of accessible facilities. See Bowers, 475 F.3d at 555–56.

Nevertheless, the possibility of ADA-based liability in construction matters has been recognized in a number of cases: Paralyzed Veterans of Am. v. D.C. Arena L.P., 326 U.S. App. D.C. 25, 117 F.3d 579 (D.C. Cir. 1997); U.S. v. AMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008). As such, without specific form charges addressing claims under Subchapter III of that statute, when faced with a claim on public-accommodation aspects of construction under the ADA, it may become necessary to prepare instructions dealing with fact issues arising in those cases. A starting point in crafting the charge in this area would be a review of the statute and/or cases establishing those issues considered to be ones of fact for determination in the case at issue. One way of approaching the preparation of such a charge can follow the format discussed above in relation to the negligent misrepresentation claim available in Pennsylvania after the decision in Bilt-Rite.

The key element of potential construction liability under the ADA appears in §12183, dealing with "New construction and alterations in public accommodations in commercial facilities." This section states, in pertinent part, the following:

(a) Application of Term

Except as provided in subsection (b) of this section [dealing with elevators], as applied to public accommodations and commercial facilities, discrimination for purposes of section 12182(a) of this title includes—

(1) a failure to design and construct facilities for first occupancy later than 30 months after July 26, 1990, that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection in accordance with the standards set forth or incorporated by reference in regulations issued under this subchapter; and

(2) with respect to a facility or part thereof that is altered by, on behalf of, or for the use of an establishment in a manner that affects or could affect the usability of the facility or part thereof, a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. Where the entity was undertaking an alteration that affects or could affect usability of or access to an area of the facility containing a primary function, the entity shall also make the alteration in such a manner that, to the maximum extent feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities where such alterations to the path of travel or the bathrooms, telephones and drinking fountains serving the altered area are not disproportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorney General).

42 U.S.C.A. § 12183(a).

The statute provides a detailed recitation of what is to be construed as acceptable conduct when performing original construction or alterations of an existing structure. Also of assistance could be the decision in Head v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir. 2005). While that case involved a claim associated with aspects of the ADA other than Title III, the court nevertheless made the observation that in an ADA case, "'[o]nce at the trial stage, the plaintiff is required to put forward evidence of discrimination 'because of' a protected characteristic. After hearing both parties' evidence, the district court must decide what legal conclusions the evidence could reasonably support and instruct the jury accordingly.'" Head, 413 F.3d at 1065, citing Costa v. Desert Palace, Inc., 299 F.3d 838, 856 (9th Cir. 2002), aff'd, 539 U.S. 90 (2003). However, the court went on to conclude the Costa approach actually endorsed having to show that an "ADA plaintiff need not show more than that impermissible motives were a 'motivating factor' in any adverse action. The approach also reflects the fact that the evidence in a particular case may not suggest more than one possible reason for the challenged action." Head, 413 F.3d at 1065–66.

Then, the instruction crafting counselor could review what were discussed as factual issues precluding the entry of summary judgment in the case of Mass. v. E*Trade Access, Inc., 464 F.Supp 2d 52 (D. Mass. 2006). There, the court summarized one of the presented issues as follows:

The Plaintiffs move for summary judgment on the grounds that blind persons do not have access to and cannot independently use Cardtronics-owned ATMs constructed or installed after January 26, 1993, and seek an injunction specifying that the ATMs be brought into compliance with the ADA Accessibility Guidelines ("ADAAG") ....

Cardtronics responds that: (1) the Plaintiffs request an impermissibly vague and unenforceable "obey the law" injunction; and (2) the Plaintiffs present no factual basis justifying summary judgment on approximately 25,000 ATMs nationwide. Moreover, the Defendants submit that summary judgment should be granted in their favor on Count V because § 12183(a)(1) does not apply to ATMs. According to the Defendants, § 12183(a)(1) encompasses only the construction of facilities for occupancy, not devices that might later be affixed to such facilities.

The Plaintiffs' motion for summary judgment on Count V is DENIED, because genuine issues of material fact remain. While the Plaintiffs present evidence demonstrating that approximately one dozen tested ATMs fail to provide appropriate accommodations and instructions for use by blind individuals, they have made no systematic showing that the entire fleet of Cardtronics-owned ATMs is not accessible to and independently usable by the blind. Although it would be unreasonable and unnecessary to require the Plaintiffs to test every post-January 26, 1993, Cardtronics ATM in order to demonstrate noncompliance with § 12183(a)(1), at the least the Plaintiffs must present a more comprehensive showing that documents the specific types of accessibility problems or design defects encountered in a larger sample of ATMs nationwide, and that explains why and how it is appropriate to conclude that those documented problems pervade the entire Cardtronics fleet. Indeed, it may be that the information necessary to reach such a conclusion may be secured by the relatively simple devices of requests for admissions or interrogatories addressed to the Defendants. However, the Court cannot grant summary judgment as to 25,000 ATMs based only on an extrapolation from the extremely limited data of record. Accordingly, summary judgment for the Plaintiffs is DENIED without prejudice to renewal on the basis of a more substantial factual showing.

E*Trade, 464 F. Supp 2d at 55–56.

Even though this guidance could be viewed as somewhat limited, the necessity of the charge may require a best-efforts approach, tracking the statutory structure as follows:

At issue in this case is whether there was an alteration that affects or could affect the usability of this facility, in this case being a auditorium which has been determined by this Court to be a public accommodation covered by the ADA as a matter of law.

Therefore, should you find that the plaintiff has proven by a preponderance of the evidence that alterations were in fact made to this auditorium that affects the usability of the facility under the standards of the Attorney General as I have delivered them to you regarding wheelchair patrons, then you must then also decide whether those alterations were performed in a manner that to the maximum extent feasible did not alter the pathway of the area where food concessions were provided and the bathrooms were located in the altered area.

Should you then determine that the plaintiff has proven by a preponderance of the evidence the alterations were not made in a manner to make the path of travel in the altered area readily accessible to and usable by individuals with wheelchairs such as the plaintiff, you must then proceed to determine whether the costs of constructing the altered area to maintain the same wheelchair pathways would not have been disproportionate to the overall alterations in terms of cost and scope.

If you should find the plaintiff has proven by a preponderance of the evidence that the costs of constructing the altered area to maintain the same wheelchair pathways would not have been disproportionate to the overall alterations in terms of cost and scope, then your verdict should be for the plaintiff and against the defendants for the design and construction of this auditorium facility under the ADA, because such characteristics have been determined as a matter of law to be discriminatory under the ADA.

However, should you find the plaintiff has failed to meet its burden of proving by a preponderance of the evidence that (1) the facility was altered, (2) was altered in such a manner that did affect accessibility to the concessions and restrooms, or (3) the alterations were prepared in a manner which were not feasible to the maximum extent or the feasibility of that accessibility was not proportionally cost effective, then your verdict should be for the defendants under the requirements of the ADA.

A recent search could not locate a jury instruction specifically dealing with Section 12183 issues under the ADA. However, it is important to note that the regulations adopted by the U.S. Department of Justice regarding design standards are set to change in March 2011 and also in March 2012. See http://www.ada.gov/regs2010/ADAregs2010.htm. Without decisional authority to directly support the interpretation of such an instruction, it may place the practitioner in uncertain territory in certain respects, especially considering the changing design standards. However, given the close approximation of the statutory requirements, coupled with decisional case law that has interpreted the jury instruction standards under the ADA (albeit in the context of different provisions thereunder), the instruction-crafting attorney can at least argue for acceptance of the charge based upon these supportive elements that were the basis of the instruction's creation in the first instance.

Conclusion

There are likely to be matters arising on construction projects that may be best suited for presentation to fact finders other than an empanelled jury. Where a jury is chosen as the fact finder in the matter at issue, care must be taken in selecting and preparing instructions that will be reviewed by the court and ultimately delivered to the jury. Difficult concepts that may take some construction practitioners years to embrace should be presented in a plain-speaking fashion so that the juries and the courts providing those instructions can readily appreciate the significance of the issue in connection with the dispute at hand. Consultation of available resources, including the ABA's Model Jury Instructions: Construction Litigation, are an essential first step in this process. Nevertheless, that review should not be an ending point because tailoring the charge for the specific case remains essential to maximizing the opportunity to prevail with the ultimate verdict.

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets.