NON-STANDARD INSTRUCTION ON ASSAULT AND BATTERY
In this case the next claim for you to consider is the plaintiff’s claim for assault and battery.
In order to prevail on this claim, the plaintiff must prove by a preponderance of the evidence that one for whose actions Defendant Redacted is legally responsible committed an assault and battery on Plaintiff.
A battery consists of the intentional infliction of a harmful or offensive contact upon the person of another.
An assault is an intentional, unlawful offer of corporal injury to another by force, or exertion of force directed toward another under such circumstances as to create a reasonable fear of imminent peril.
Sullivan v. Atlantic Federal, 454 So. 2d 52 (Fla. 4th DCA 1984).
With regard to battery, the element of personal indignity involved always has been given considerable weight. Consequently, the defendant is liable not only for contact which does actual harm, but also for those relatively trivial ones which are merely offensive and insulting.
Proof of the technical invasion of the integrity of the plaintiff’s person by even an entirely harmless, but offensive contact entitles the plaintiff to vindication of the legal right by an award of nominal damages, and the establishment of the tort cause of action entitles the plaintiff also to compensation for the resulting mental disturbance, such as fright, revulsion or humiliation.
Paul v. Holbrook, 696 So. 2d 1311(Fla. 5th DCA 1997)
3.6 ISSUES AS TO LEGAL (PROXIMATE) CAUSE AND DAMAGE
(AS TO ASSAULT AND BATTERY)
With respect to damages for assault and battery, you must
determine whether such wrongful act was a legal cause of loss, injury or
damage sustained by the plaintiff, Rachelle Zammit.
Fla. Std. Jury Instruction 3.6
Granted _____ Denied _____
PLAINTIFF’S REQUESTED INSTRUCTION
– FLORIDA’S WHISTLEBLOWER ACT
In Count II of his Complaint, Plaintiff claims that she was terminated because Plaintiff objected to, or refused to participate in, certain practices of Defendant that Plaintiff reasonably and in good faith believed were in violation of a law, rule and/or regulation. Plaintiff’s claim under Count II is in brought pursuant to Florida Statutes §448.102(3), Florida’s Whistleblower Act.
In order to establish a claim for violation of Florida’s Whistleblower Act, Plaintiff must prove by a preponderance of the evidence:
First: that she objected to, or refused to participate in, certain activities or practices of Defendant that Plaintiff reasonably and in good faith believed were in violation of a law, rule, and/or regulation;
Second: that an adverse employment action then occurred;
Third: that the adverse employment action was causally related to the Plaintiff’s statutorily protected activities; and
Fourth: that the Plaintiff suffered damages as a proximate or legal result of such adverse employment action.
For an adverse employment action to be “causally related” to statutorily protected activities it must be shown that the protected activity by the Plaintiff was a substantial, motivating cause and made a difference in the Defendant’s decision. If the preponderance of the evidence does not support the Plaintiff’s claim under Florida’s Whistleblower Act, then your verdict on Count II should be for the Defendant.
Florida Statutes §§448.101(4), 448.102(3); Padron v. BellSouth Telecomm., Inc., 196 F. Supp. 2d 1250 (S.D. Fla. 2002); Sierminski v. Transouth Financial Corp., 216 F.3d 945 (11th Cir. 2000); Golf Channel v. Jenkins, 752 So.2d 561 (Fla. 2000).
PLAINTIFF’S REQUESTED INSTRUCTION –
BURDEN SHIFTING ANALSYSIS APPLICABLE TO
PLAINTIFF’S CLAIM UNDER FLORIDA’S WHISTLEBLOWER ACT
With respect to the Plaintiff’s claims in Count II under Florida’s Whistleblower Act, the Plaintiff has the initial burden of proving that she was a member of a class of people entitled to the protection of the Florida Whistleblower Act, that she was qualified for his job and that she was terminated from his employment by Defendant. If you find that the Plaintiff has met his burden on these issues, you must then consider if the Defendant has presented evidence of legitimate, nondiscriminatory reasons for the Plaintiff’s termination. If you find that the Defendant has presented evidence of legitimate, nondiscriminatory reasons for its termination of Plaintiff, Plaintiff will then have the burden to rebut the Defendant’s case and show that the reasons given by the Defendant were a pretext, meaning that the fact that the Plaintiff objected to, or refused to participate in, activities or practices of Defendant that the Plaintiff believed were in violation of a law, rule, or regulation was nonetheless a motivating factor in Defendant’s decision to terminate his employment.
Florida Statutes §448.103(1)(c); 70.01 Devitt, Blackmar & Wolff, Federal Jury Practice & Instructions (4th Ed. 1987); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Padron v. BellSouth Telecomm., Inc., 196 F. Supp. 2d 1250 (S.D. Fla. 2002); Sierminski v. Transouth Financial Corp., 216 F.3d 945 (11th Cir. 2000).
PLAINTIFF’S REQUESTED INSTRUCTION –
DAMAGES UNDER FLORIDA’S WHISTLEBOWER ACT
If the Plaintiff proves by a preponderance of the evidence that the Defendant violated Florida’s Whistleblower Act when it terminated the Plaintiff’s employment, then you must determine the amount of damages the Plaintiff has sustained as a result of the Defendant’s unlawful conduct.
In determining damages, you may award the Plaintiff back pay. That means you are to award the Plaintiff an amount equal to the pay and fringe benefits that she would have received from Defendant had its unlawful termination not taken place, minus the amount of earnings and benefits received by the Plaintiff from other employment after his termination by Defendant. As part of an award of back pay and fringe benefits, Plaintiff is entitled to interest on those amounts.
If the Plaintiff proves by a preponderance of the evidence that the Defendant has violated the Florida Civil Rights Act, the Court may also award him damages for future lost wages, sometimes called front pay. An award of damages for future lost wages should only be made if you determine that these damages were caused by the Defendant’s termination of the Plaintiff.
If you determine that the Plaintiff is entitled to future lost wages, you must consider the following factors in arriving at an amount: you must look to the Plaintiff’s prospects for another similar job; the length of time that it should take the Plaintiff to get such a job; and the number of years remaining before the Plaintiff would most probably retire.
Furthermore, the Plaintiff has alleged that as a result of the Defendant’s discrimination in violation of Florida’s Whistleblower Act, she has suffered compensatory damages in the form of emotional pain, suffering, humiliation, inconvenience, mental anguish, and loss of enjoyment of life. The Plaintiff has the burden of proving any compensatory damages by a preponderance of the evidence. If the Plaintiff does not establish that she has experienced emotional pain, suffering, humiliation, inconvenience, mental anguish and/or loss of enjoyment of life because of the Defendant’s conduct, then she cannot recover compensatory damages. If you determine that the Plaintiff has proven by a preponderance of the evidence that she has experienced emotional pain, suffering, humiliation, inconvenience, mental anguish, and/or loss of enjoyment of life because of the Defendant’s conduct, you may award him damages for those injuries. No evidence of the monetary value of such intangible things as pain and suffering has been, or needs to be, introduced into evidence. No exact standard exists for fixing the compensation to be awarded for these elements of damages. The damages that you award must be fair compensation — no more and no less.
When considering the amount of monetary damages to which the Plaintiff may be entitled, you should consider the nature, character, and seriousness of any emotional pain, suffering, humiliation, inconvenience, mental anguish, and/or loss of enjoyment of life the Plaintiff felt. You must also consider its extent or duration, as any award you make must cover the damages endured by the Plaintiff since the wrongdoing, to the present time, and even into the future if you find as fact that the proof presented justifies the conclusion that the Plaintiff’s emotional stress and its consequences have continued to the present time or can reasonably be expected to continue in the future.
Florida Statutes §448.103(2); Olmstead v. Taco Bell Corp., 141 F.3d 1457 (11th Cir. 1998); Hearn v. General Electric Co., 927 F. Supp 1486, 1500 (M.D. Ala. 1996); Scott v. Otis Elevator Co., 572 So. 2d 902 (Fla. 1990).