The plaintiff, [name of plaintiff], claims that while [he] [she] was employed by the defendant, [name of defendant], a railroad, [he] [she] suffered an injury caused by the negligence of the defendant.  The defendant denies the plaintiff’s claim.  To help you understand the evidence while it is being presented, I will now explain some of the legal terms you will hear during this trial. 

            Negligence is the failure to use reasonable care.  Reasonable care is the degree of care that a reasonably prudent person would use under like circumstances.  Someone can be negligent by doing something that a reasonably prudent person would not have done, or by failing to do something that a reasonably prudent person would have done. 

            It is not enough, however, that someone be negligent, because to be held responsible for an injury the person’s negligence must also have been a cause of the injury.  To be a cause of an injury, the negligence must have played some part, no matter how small, in bringing that injury about. 

            The plaintiff claims that the defendant should be required to pay damages because its negligence was a cause of an injury suffered by the plaintiff.  It is the plaintiff’s burden to prove that by a preponderance of the evidence.  The defendant, on the other hand, claims that the plaintiff was negligent and that the plaintiff’s own negligence was a cause of the claimed injury.  The defendant has the burden of proving that by a preponderance of the evidence. 

            Should you determine that negligence of both the plaintiff and the defendant were causes of an injury, then you will determine the percentage of fault attributable to the plaintiff. 

Comment 

            This preliminary instruction may be given at the beginning of trial.  The judge should be certain that the jury understands that after the jury calculates any percentage of fault attributable to the plaintiff, the court will deduct that percentage from any award of damages.  See Instruction 6.7 (Plaintiff’s Negligence—Reduction of Damages (45 U.S.C. § 53)). 

            The right to sue under FELA is limited to employees of a railroad common carrier engaged in interstate commerce.  Forrester v. Am. Dieselectric, Inc., 255 F.3d 1205, 1210 n.2 (9th Cir. 2001).  No claim for relief is available under FELA against individuals.  Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d 1074, 1081 (9th Cir. 2003).

            [On the plaintiff’s [specify type of claim] claim,] the plaintiff has the burden of proving both of the following elements by a preponderance of the evidence: 

            First, the defendant was negligent; and  

            Second, the defendant’s negligence was a cause of an injury to the plaintiff.

            If you find that the plaintiff has proved both of these elements, your verdict should be for the plaintiff.  If, on the other hand, the plaintiff has failed to prove either of these elements, your verdict should be for the defendant. 

            The defendant has the burden of proving both of the following elements by a preponderance of the evidence: 

            First, the plaintiff was negligent; and 

            Second, the plaintiff’s negligence was a cause of the plaintiff’s own injury.

            If you find that the defendant has proved both of these elements, you must reduce the percentage of fault attributable to the defendant. 

Comment 

            This instruction assumes the usual situation where the parties have stipulated that the defendant is a common carrier covered by the FELA and that the plaintiff was injured in the scope and course of employment with the defendant.  If these issues are in dispute, the instruction must be modified accordingly. 

            Use the second half of this instruction in conjunction with Instruction 6.7 (FELA—Plaintiff’s Negligence—Reduction of Damages).

Revised March 2025

            Negligence is the failure to use reasonable care.  Reasonable care is the degree of care that reasonably prudent persons would use under like circumstances to avoid injury to themselves or others.  Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under like circumstances.

            Negligence is a cause of an injury if it played any part, no matter how slight, in bringing about the injury or damage, even if the negligence operated in combination with the acts of another, or in combination with some other cause. 

Comment  

            The Supreme Court approved a similar instruction in CSX Transportation, Inc. v. McBride, 564 U.S. 685 (2011) (holding that in FELA case, railroad employee need only establish that railroad’s negligence played part, no matter how small, in bringing about injury in order to satisfy causation element).

            The plaintiff is not negligent simply because the plaintiff, upon the request or direction of the defendant, worked at a dangerous job, or in a dangerous place, or under dangerous conditions.

Comment

            See Instructions 5.1 (Damages—Proof), 5.2 (Measures of Types of Damages), 5.3 (Damages—Mitigation), and 5.4 (Damages Arising in the Future—Discount to Present Cash Value).

            In those cases under FELA where damages are recoverable arising out of the fear of contracting cancer, the Supreme Court has held that it is reversible error to refuse an instruction that such fear must be "genuine and serious." CSX Transportation, Inc. v. Thurston Hensley, 556 U.S. 838, 839 (2009).

           If you decide that the plaintiff was negligent, and that the plaintiff’s negligence was a cause of [his] [her] injury you must then decide to what extent [his] [her] injury was caused by the plaintiff’s negligence.  This should be fixed as a percentage—for example, 10%, 50%, 90%.  The percentage of the plaintiff’s negligence, if any, is for you to decide.  You must then write that percentage on the appropriate place on the verdict form.  Do not make any reduction in the amount of damages that you award to the plaintiff.  I will reduce the damages that you award by the percentage of negligence that you assign to the plaintiff. 

Comment 

              Under FELA, the same standard of causation applies to a plaintiff’s comparative negligence as to defendant’s negligence.  Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 171 (2007). 

            For a discussion applying the FELA comparative negligence doctrine in a Jones Act case, see Kopczynski v. The Jacqueline, 742 F.2d 555, 558 (9th Cir. 1984). 

            The traditional defense of assumption of risk is barred under FELA and cannot be revived in the form of comparative negligence.  See Taylor v. Burlington N. R.R. Co., 787 F.2d 1309, 1316-17 (9th Cir. 1986). 

            For an example of a verdict form for use in FELA cases, see below: 

SUGGESTED VERDICT FORM

1.         Do you find that the plaintiff has proved by a preponderance of the evidence: 

A.        That the defendant was negligent? 

                        Answer YES or NO              

            If you answered NO to Question No. 1.A., do not answer the remaining questions. Sign and date the verdict form and notify the bailiff.  If you answered YES to Question No. 1.A., proceed to Question No. 1.B. 

B.        That the defendant’s negligence was a cause of injury or damage to the plaintiff? 

                        Answer YES or NO          

            If you answered NO to Question No. 1.B., do not answer the remaining questions.  Sign and date the verdict form and notify the bailiff. If you answered YES to Question No. 1.B., proceed to Question No. 2.

2.         Do you find that the defendant has proved by a preponderance of the evidence: 

A.        That the plaintiff was also negligent? 

                        Answer YES or NO          

            If you answered NO to Question No. 2.A., proceed to Question No. 4.  If you answered YES to Question No. 2.A., proceed to Question No. 2.B. 

B.        That the plaintiff’s own negligence was a cause of the plaintiff’s injury or damage? 

                        Answer YES or NO         

            If you answered NO to Question No. 2.B., proceed to Question No. 4.  If you answered YES to Question No. 2.B., proceed to Question No. 3. 

3.         What proportion or percentage of the plaintiff’s injury or damage do you find by a preponderance of the evidence to have been caused by the negligence of the respective parties? 

                        Answer in Terms of Percentages 

                        The defendant          %

                        The plaintiff           %

                        Note: The total of the percentages given in your answer should equal 100%.

                        Proceed to Question No. 4. 

4.         If you answered YES to Question Nos. 1.A and 1.B, what sum of money do you find from a preponderance of the evidence to be the total amount of the plaintiff’s damages (do not reduce any amount by percentages found in Question No. 3)? 

(a)        Lost wages and benefits to date of trial          $       

(b)       Lost wages and benefits in the future [reduced to present value]         $       

(c)        Medical and hospital expenses incurred in the past      $       

(d)       Medical and hospital expenses likely to be incurred in the future [reduced to present value]            $       

(e)        Mental and emotional humiliation or pain and anguish            $       

(f)        Physical pain and suffering    $       

DATED:                                                                                                 

                                                                        PRESIDING JUROR