CV201 "Fault" defined.

Your goal as jurors is to decide whether [name of plaintiff] was harmed and, if so, whether anyone is at fault for that harm. If you decide that more than one person is at fault, you must then allocate fault among them.

Fault means any wrongful act or failure to act. The wrongful act or failure to act alleged in this case is [negligence, etc.]

Your answers to the questions on the verdict form will determine whether anyone is at fault. We will review the verdict form in a few minutes.

References

Utah Code Sections 78B-5-817(2); 78B-5-818; 78B-5-820.
Bishop v. GenTec, 2002 UT 36.
Haase v. Ashley Valley Medical Center, 2003 UT App 260.
Biswell v. Duncan, 742 P.2d 80, (Utah App. 1987).

MUJI 1st Instruction

3.1.

Committee Notes

Fault under the Comparative Negligence Act includes negligence in all its degrees, comparative negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability, and misuse, modification, or abuse of a product.

This instruction should be followed by those defining the specific duty (for example, negligence), the instruction on cause, and the instruction on allocating fault.

The court and counsel must set forth the appropriate alleged act or failure to act that is claimed to constitute a breach of legal duty.


CV202A "Negligence" defined.

You must decide whether [names of persons on the verdict form] were negligent.

Negligence means that a person did not use reasonable care. We all have a duty to use reasonable care to avoid injuring others. Reasonable care is simply what a reasonably careful person would do in a similar situation. A person may be negligent in acting or in failing to act.

The amount of care that is reasonable depends upon the situation. Ordinary circumstances do not require extraordinary caution. But some situations require more care because a reasonably careful person would understand that more danger is involved.

To establish negligence, [name of plaintiff] has the burden of proving that:

(1) [name of defendant] was negligent; and

(2) this negligence was a cause of [name of plaintiff]’s harm.

In this action, [name of plaintiff] alleges that [name of defendant] was negligent in the following respects:

(1)

(2)

(3)

If you find that the [name of defendant] was negligent in any of these respects, then you must determine whether that negligence was a cause of [name of plaintiff]’s harm.

[[Name of defendant] claims that [name of plaintiff] was negligent in causing [his] own harm. To establish [name of plaintiff]’s negligence, [name of defendant] has the burden of proving that:

(1) [name of plaintiff] was negligent; and

(2) this negligence was a cause of [name of plaintiff]’s harm.

In this action, [name of defendant] alleges that [name of plaintiff] was negligent in the following respects:

(1)

(2)

(3)

If you find that the [name of plaintiff] was negligent in any of these respects, then you must determine whether that negligence was a cause of [his] harm.]

References

Dwiggins v. Morgan Jewelers, 811 P.2d 182 (Utah 1991).
Mitchell v. Pearson Enterprises, 697 P.2d 240 (Utah 1985).
Meese v. BYU, 639 P.2d 720 (Utah 1981).

MUJI 1st Instruction

3.2; 3.5; 3.6.

CV202B "Gross negligence" defined.

You must decide whether [names of persons on the verdict form] were grossly negligent. Gross negligence means a failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences.

References

Penunuri v. Sundance Partners, 2016 UT App 154, ¶16
Daniels v. Gamma West, 2009 UT 66, ¶43
Pearce v. Utah Athletic Foundation, 2008 UT 13, ¶24, 179 P.3d 760
Berry v. Greater Park City Co., 2007 UT 87, ¶26, 171 P.3d 442
Atkin Wright & Miles v. Mountain State Tel. & Tel. Co., 709 P.2d 330, 335 (Utah 1985)

CV203 "Negligence" defined. Person with disability.

You must decide whether [names of persons on the verdict form] were negligent.

Negligence means that a person did not use reasonable care. We all have a duty to use reasonable care to avoid injuring others. Reasonable care is simply what a reasonably careful person would do in a similar situation. A person may be negligent in acting or in failing to act.

[Name of person] has a physical disability. A person with a physical disability is held to the same standard of care as a person without that disability. However, you may consider [name of person]'s disability among all of the other circumstances when deciding whether [his] conduct was reasonable. In other words, a physically disabled person must use the care that a reasonable person with a similar disability would use in a similar situation.

The amount of care that is reasonable depends upon the situation. Ordinary circumstances do not require extraordinary caution. But some situations require more care because a reasonably careful person would understand that more danger is involved.

References

Mitchell v. Pearson Enters., 697 P.2d 240 (Utah 1985).
Meese v. BYU, 639 P.2d 720 (Utah 1981).

MUJI 1st Instruction

3.2; 3.5; 3.6.

Committee Notes

The standard of care for the physically disabled should be distinguished from the standard for the mentally disabled. Under Restatement 2d Torts § 283C "[i]f the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under the disability." This is not necessarily a diminished standard, but is subjective in that a party's circumstances, i.e. their physical disability, must be considered in determining whether the actor breached the standard of care.

However, a different approach exists for the mentally disabled. Under Restatement 2d Torts § 283B "[u]nless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances." Cited in Birkner v. Salt Lake County, et al., 771 P.2d 1053 (Utah 1989). While Birkner also appears to create a distinction in cases involving either "primary" or comparatively negligent mentally impaired actors, the distinction is factually specific and appears limited to the narrow context of conduct between a therapist and a patient with limited mental impairment. Id. at 1060.


CV204 Care required when children are present.

An adult must anticipate the ordinary behavior of children. An adult must be more careful when children are present than when only adults are present.

References

Kilpack v. Wignall, 604 P.2d 462 (Utah 1979).
Vitale v. Belmont Springs, 916 P2d 359 (Utah App. 1996). (It is improper to give this instruction if the child is older than fourteen.)

MUJI 1st Instruction

3.7.

Committee Notes

This instruction should be used where there is evidence that a person knew or should have known that young children would be present. It is not intended to create a new duty to anticipate the presence of children.


CV205 Care required by children.

You must decide whether a child aged ______ was negligent. A child is not judged by the adult standard. Rather, a child is negligent if [he] does not use the amount of care that is ordinarily used by children of similar age, intelligence, knowledge or experience in similar circumstances.

References

Donohue v. Rolando, 16 Utah 2d 294, 296-297, 400 P.2d 12,14 (1965).
Restatement 2d Torts § 283A (1965).
Restatement 3d Torts § 8 (1999).

Committee Notes

This instruction should not be given if the child is engaged in an 'adult' activity. See Summerill v. Shipley, 890 P.2d 1042, 1044 (Utah Ct. App. 1995).

It is unclear whether this instruction should be given if the child is less than seven years old. In S.H. By and Through Robinson v. Bistryski, the Utah Supreme Court states that children under the age of seven are legally incapable of negligence. 923 P.2d 1376, 1382 (Utah 1996)(citing Nelson v. Arrowhead Freight Lines Ltd., 104 P.2d 225, 228 (Utah 1940)). However, given the backdrop of additional Utah case law (such as Donohue v. Rolando, in which the minor was less that seven) that is not addressed by Bistryski, combined with its factually-specific nature, it is unclear whether a presumption that children under seven years old are wholly incapable of negligence exists in Utah.


CV206 Care required for a child participating in an adult activity.

A child participating in an adult activity, such as operating a motor vehicle, is held to the same standard of care as an adult.

References

Summerill v. Shipley, 890 P.2d 1042, 1044 (Utah App. 1995).

Committee Notes

Before giving this instruction the judge should make the preliminary decision whether an activity is an adult activity.


CV207 Abnormally dangerous activity.

I have determined that [name of defendant]'s activity was abnormally dangerous. One who carries on an abnormally dangerous activity is liable for harm caused by that activity whether or not [he] exercised reasonable care.

References

Walker Drug Co., Inc. v. La Sal Oil Co., 902 P.2d 1229, 1233 (Utah 1995).
Branch v. Western Petroleum, 657 P.2d 267, 273 (Utah 1982).
Robison v. Robison, 394 P.2d 87, 877 (Utah 1964).
Restatement 2d Torts §520 (1976).
Restatement 3d Torts §20 (Tentative Draft No. 1).

MUJI 1st Instruction

3.8.

Committee Notes

Comment "l" to Section 520 of the First and Second Restatements indicates that the determination of whether an activity qualifies as "abnormally" dangerous is for the court, not the jury. However, there are courts that allow the jurors to weigh the factors and make the decision for themselves. See cases cited in Comment "l" to Restatement 3d Torts §20.

In Walker Drug Co., Inc. v. La Sal Oil Co., supra, the Utah Supreme Court adopted the factors set forth in the Second Restatement:

(a) existence of a high degree of risk of some harm to the person or property 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 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 its dangerous attributes.


CV208 Care required in controlling electricity.

Power companies and others who control power lines and power stations must use extra care to prevent people and their equipment from coming in contact with high-voltage electricity. The greater the danger, the greater the care that must be used.

References

Lish v. Utah Power & Light Co., 493 P.2d 611 (Utah 1972).
Brigham v. Moon Lake Elec. Ass’n, 470 P.2d 393 (Utah 1970).
See also, Burningham v. Utah Power & Light, 76 F. Supp. 2d 1243 (D. Utah 1999) (no duty owed to trespasser on power pole.)

MUJI 1st Instruction

3.9.

CV209 "Cause" defined.

I've instructed you before that fault is a wrongful act or failure to act. You must also determine whether a person’s fault caused the harm.

As used in the law, the word "cause" has a special meaning, and you must use this meaning whenever you apply the word. "Cause" means that:

(1) the person's act or failure to act produced the harm directly or set in motion events that produced the harm in a natural and continuous sequence;

and

(2) the person's act or failure to act could be foreseen by a reasonable person to produce a harm of the same general nature.

There may be more than one cause of the same harm.

References

Pinney v. Carrera, 2019 UT App 12, ¶¶ 37-40.
State v. Oliver, 2018 UT App 101, ¶ 21, 427 P.3d 495, 501
True v. Utah Dep't of Transportation, 2018 UT App 86, ¶ 69, 427 P.3d 338, 355.
Lane v. Provo Rehab. & Nursing, 2018 UT App 10, ¶ 43, 414 P.3d 991, 1001, cert. denied, 421 P.3d 441 (Utah 2018)
Larsen v. Davis Cty. Sch. Dist., 2017 UT App 221, ¶ 18, 409 P.3d 114, 118, cert. denied, 421 P.3d 441. (Utah 2018)
Nebeker v. Summit Cty., 2014 UT App 244, 338 P.3d 203 (foreseeability element).
Raab v. Utah Railway Company, 2009 UT 61, 221 P3d 219.
Steffensen v. Smith's Management Corp., 862 P.2d 1342 (Utah 1993).
Proctor v. Costco Wholesale Corp., 2013 UT App 226, ¶¶ 9-17, 311 P.3d 564 (foreseeability element).
McCorvey v UDOT, 868 P.2d 41, 45 (Utah 1993) ("there can be more than one proximate cause or, more specifically, substantial causative factor, of an injury").
Mitchell v. Pearson Enterprises, 697 P2d 240 (Utah 1985).
Rees v. Albertson's, Inc., 587 P.2d 130 (Utah 1978).
Dee v. Johnson, 2012 UT App 237.
Holmstrom v. C.R. England, Inc., 2000 UT App 239, 8 P3d 281.

MUJI 1st Instruction

3.13; 3.14; 3.15.

Committee Notes

The term "proximate" cause should be avoided. While its meaning may be understood by lawyers, the lay juror may be unavoidably confused by the similarity of "proximate" to "approximate." The committee also rejected "legal cause" because jurors, looking for fault, may look only for "illegal" causes. Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions (1979) 79 Colum. L. Rev. 1306.

The Utah Code includes "proximate" cause in its definition of "fault" in Section 78B-5-817, but did not define the term. We intend to simplify the description of the traditional definition, but not change the meaning.

In Mitchell v. Gonzales, 819 P.2d 872 (Cal. 1991), the supreme court of California held that use of the so-called "proximate cause" instruction, which contained the "but for" test of cause in fact, constituted reversible error and should not be given in California negligence actions. The court determined, using a variety of scientific studies, that this instruction may improperly lead jurors to focus on a cause that is spatially or temporally closest to the harm and should be rejected in favor of the so-called "legal cause" instruction, which employs the "substantial factor" test of cause in fact. CACI 430 reflects this adjustment in the law; embracing the "substantial factor" test and abandoning the term "proximate cause."

Recognizing additional studies of the confusion surrounding "legal cause," the court also recommended that "the term 'legal cause' not be used in jury instructions; instead, the simple term 'cause' should be used, with the explanation that the law defines 'cause' in its own particular way." Id., at 879 (citation omitted). These recommendations have since been integrated into the California jury instructions.

Foreseeability relates both to the issue of duty and to the issue of proximate cause. Duty is a legal issue for the court to decide. See Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶¶ 17-18, 215 P.3d 152. It is not clear how foreseeability differs when it goes to the issue of duty from when it goes to the issue of proximate cause. Compare id. ¶ 18 (the “specific mechanism” of injury “is more properly an issue of proximate cause than one of duty”) & ¶ 20 (“Foreseeability as a factor in determining duty does not relate to the specifics of the alleged tortious conduct but rather to the general relationship between the alleged tortfeasor and the victim.”), with Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1346 (while “foreseeability is required to meet the test of negligence and proximate cause,” the defendant’s “precise action” does not have to be foreseeable; all that has to be foreseeable is “a likelihood of an occurrence of the same general nature”) (emphasis in original) (quoting Rees v. Albertson’s, Inc., 587 P.2d 130, 133 (Utah 1978)). Compare also, e.g., McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla. 1992) (“The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others. The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.”) (citations omitted), with Yonce v. SmithKline Beecham Clinical Labs., Inc., 680 A.2d 569, 579 (Md. Ct. Spec. App.) (“foreseeability is an element in the determination of a duty and in the determination of proximate cause and is defined the same in each,” namely, “whether the general type of harm sustained was foreseeable”), cert. denied, 685 A.2d 452 (Md. 1996). Some committee members thought that, if the court submits the question of negligence to the jury, it has already determined that the defendant’s conduct could reasonably be foreseen to produce a harm of the same general nature as the plaintiff suffered and that the jury should not be asked to decide this issue again, at the risk of reaching a contrary conclusion.

Utah appellate courts sometimes define “proximate cause” in terms of “that cause which, in natural and continuous sequence, produces the injury and without which the injury would not have occurred” or “one which sets in operation the factors that accomplish the injury,” see, e.g., Mahmood v. Ross, 1999 UT 104, ¶ 22, 990 P.2d 933 (citations omitted), and sometimes in terms of a cause that is a “substantial factor” or plays a “substantial role” in causing the injury, see, e.g., Holmstrom v. C.R. England, Inc., 2000 UT App 239, ¶ 45, 8 P.3d 281. It is not clear whether courts intend any difference by their choice of definition. Cf., e.g., Doe v. Garcia, 961 P.2d 1181, 1185 (Idaho 1998) (a “substantial factor” is “one that ‘in natural or probable sequence, produced the damage complained of’ or one ‘concurring with some other cause acting at the same time, which in combination with it, causes the damage’”) (citation omitted).

The “substantial factor” test has been criticized as unhelpful to juries. See, e.g., 1 Dan B. Dobbs, The Law of Torts § 171, at 416 (2001) (“The substantial factor test is not so much a test as an incantation. It points neither to any reasoning nor to any facts that will assist courts or lawyers in resolving the question of causation. . . . It invites the jury’s intuition.”) (footnotes omitted).

The committee considered the “substantial factor” alternative of MUJI 3.14 and rejected it on the grounds that, under the Utah Liability Reform Act, Utah Code Ann. §§ 78B-5-817 through -823, the extent to which a defendant’s conduct contributed to an injury is properly considered under allocation of fault (CV211) and not causation.

Although Holmstrom v. C.R. England, Inc., 2000 UT App 239, 8 P3d 281, uses the term “substantial factor,” it treats the term as, essentially, the “but for” test of causation. It suggests that there can be no liability in the very circumstances that the “substantial factor” test was intended to cover--two tortfeasors whose acts independently were sufficient to cause the harm. See id. ¶ 46 (citations omitted). See also 1 Dobbs, supra, § 171, at 416 (“such cases represent the single most justified use for the substantial factor test”) (footnote omitted).

This instruction cannot cover every circumstance. See Jury Instruction Forms: Utah 15.6 note, at 50 (1957) (“Most of the difficulty with proximate cause seems to arise from trying to state a definition which will be of universal application in various hypothetical situations.”). Counsel and judges may need to modify this instruction or use the phrase “substantial factor” or some other definition in unusual cases, such as the case of two tortfeasors either of whose negligence would have been sufficient to cause the harm, or cases in which the actor’s fault consists of failing to prevent harm caused by a third party.


CV210 Superseding cause.

[Name of defendant] claims that [he] is not liable for [name of plaintiff]’s harm because of the later fault of [name of third party]. To avoid liability for the harm, [name of defendant] must prove all of the following:

(1) that [name of third party]’s conduct occurred after [name of defendant]’s conduct;

(2) that a reasonable person would consider [name of third party]’s conduct extraordinary;

(3) that [name of defendant] could not foresee that [name of third party] would act in

[Alternative A: an intentional]

[Alternative B: a negligent]

manner; and

(4) that the harm resulting from [name of third party]’s conduct was different from the kind of harm that could have been reasonably expected from [name of defendant]’s conduct.

References

Nebeker v. Summit Cnty., 2014 UT App 137, ¶¶ 41-43, --- P.3d ---.
Mitchell v. Pearson Enterprises, 697 P.2d 240 (Utah 1985).
Harris v. Utah Transit Auth., 671 P.2d 217 (Utah 1983).
Gardner v. SPX Corporation, 2012 UT App 45.
Bansanine v. Bodell, 927 P.2d 675 (Utah App. 1996).
Steffensen v. Smith's Management Corp., 820 P.2d 482, 488 (Utah App. 1991), aff’d, 862 P.2d 1342 (Utah 1993).
Restatement 2d Torts §442B (1965).
Restatement 2d Torts § 447 (1965).

MUJI 1st Instruction

3.16.

Committee Notes

The Committee drafted paragraph (3) in the alternative because parts of the law on superseding cause are unclear. What is well established is that for a subsequent act to break the chain of causation and be a superseding cause, the subsequent act must be unforeseeable. Further, to cut off the defendant’s liability, the harm must be outside the scope of the risk created by the defendant’s conduct. If the “general nature” of the harm is foreseeable, the defendant remains liable. Steffensen v. Smith's Management Corp., 862 P.2d 1342, 1346 (Utah 1993) As a concurrent contributing factor, the third person’s acts would be analyzed under the Liability Reform Act, Utah Code Section 78B-5-817, et seq.

What is not as clear is whether the third person’s act must be an intentional act or whether negligence is sufficient. Bansanine v. Bodell, 927 P.2d 675, 677 (Utah App. 1996) adopts the Restatement position, and this is reflected in the first alternative. To relieve the defendant of liability, the third person must not only act intentionally, the actor’s intent must be to harm the plaintiff. This position is supported by reasoning that the doctrine of superseding cause has no role after the Liability Reform Act, at least for analyzing unintentional acts. If the cause of action is based on an unintentional act, the LRA operates to allocate fault. In an appropriate case, the jury might find that a subsequent actor bears 100% of the fault. The applicability of the LRA to intentional acts is an open question. See Jedrziewski v. Smith, 2005 UT 85.

In cases preceding the LRA, the court states that a negligent act, if it meets the other requirements, can be found to be a superseding cause of plaintiff’s harm, thereby cutting off the defendant’s liability. See Godesky v. Provo City Corp., 690 P.2d 541, 544 (Utah 1984), Jensen v. Mountain States Telephone & Telegraph Co., 611 P.2d 363, 365 (Utah 1980), and, subsequent to the LRA, Steffensen v. Smith's Management Corp., 820 P.2d 482, 488 (Utah Ct. App. 1991) aff'd, 862 P.2d 1342 (Utah 1993). The continued validity of this principle is an open question.


CV211 Allocation of fault.

[Name of party] claims that more than one person’s fault was a cause of the harm. If you decide that more than one person is at fault, you must decide each person's percentage of fault that caused the harm. This allocation must total 100%.

You may also decide to allocate a percentage to the plaintiff. [Name of plaintiff]'s total recovery will be reduced by the percentage that you attribute to [him]. If you decide that [name of plaintiff]'s percentage is 50% or greater, [name of plaintiff] will recover nothing.

When you answer the questions on damages, do not reduce the award by [name of plaintiff]'s percentage. I will make that calculation later.

References

Utah Code Sections 78B-5-817(2); 78B-5-818; 78B-5-820.
Bishop v. GenTec, 2002 UT 36.
Haase v. Ashley Valley Medical Center, 2003 UT App 260.
Biswell v. Duncan, 742 P.2d 80, (Utah App. 1987).

MUJI 1st Instruction

3.1; 3.17; 3.19.

Committee Notes

“Fault” under the Comparative Negligence Act includes negligence in all its degrees, comparative negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability, and misuse, modification, or abuse of a product. This applies to intentional torts as well. Graves v. North Eastern Services, Inc., 2015 UT 28.

The judge should ensure that the verdict form is written so that fault is allocated only among those parties for whom the jury finds both breach of duty and cause.


CV212 Violation of a safety law.

Violation of a safety law is evidence of negligence unless the violation is excused. [name of plaintiff] claims that [name of defendant] violated a safety law that says:

[Summarize or quote the statute, ordinance or rule.]

If you decide that [name of defendant] violated this safety law, you must decide whether the violation is excused.

[Name of defendant] claims the violation is excused because:

[(1) Obeying the law would have created an even greater risk of harm.]

[(2) [He] could not obey the law because [he] faced an emergency that [he] did not create.]

[(3) [He] was unable to obey the law despite a reasonable effort to do so.]

[(4) [He] was incapable of obeying the law.]

[(5) [He] was incapable of understanding what the law required.]

If you decide that [name of defendant] violated the safety law and that the violation was not excused, you may consider the violation as evidence of negligence. If you decide that [name of defendant] did not violate the safety law or that the violation should be excused, you must disregard the violation and decide whether [name of defendant] acted with reasonable care under the circumstances.

References

Child v. Gonda, 972 P.2d 425 (Utah 1998).
Hall v. Warren, 692 P.2d 737 (Utah 1984).
Intermountain Farmers Ass’n v. Fitzgerald, 574 P.2d 1162 (Utah 1978).
Thompson v. Ford Motor Co., 16 Utah 2d 30; 395 P.2d 62 (1964).
Gaw v. State ex rel. Dep't of Transp., 798 P.2d 1130 (Utah App. 1990).
Jorgensen v. Issa, 739 P.2d 80 (Utah App. 1987).

MUJI 1st Instruction

3.11.

Committee Notes

Before giving this instruction, the judge should decide whether the safety law applies. The safety law applies if:

(1) the plaintiff belongs to a class of people that the law is intended to protect; and

(2) the law is intended to protect against the type of harm that occurred as a result of the violation.

The judge should include the instruction on excused violations only if there is evidence to support an excuse and include only those grounds for which there is evidence.


CV299 Verdict Forms

Personal Injury (Word file)

Wrongful Death (Word file)

Committee Notes

These verdict forms must be tailored to fit the circumstances of the case. The templates include questions of fault about two defendants, a third party and plaintiff/decedent. Add or remove sections about parties and other actors as needed. Similarly, in the section on comparative fault, add or remove lines as needed to account for different actors. In the Wrongful Death Verdict Form, the section on damages for survival claims and wrongful death claims, add or remove lines as needed to describe the damages of each heir and of each decedent. Some damages for the estate may be authorized only if the decedent survived for a time after injury.

After editing the form to account for all of the parties and other actors, renumber the questions and the references to the questions accordingly, remembering to do so also in the “next set of instructions.”

Regarding the question on damages, there must be some evidence to support each item of damages listed on the verdict form. The court should delete or add items as needed to conform to the evidence.