IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

DELOISE PRICE, | 

 | 

 PLAINTIFF | 

 | 

VS. | CASE NO. 2:06-CV-721 

 | 

WAL-MART STORES, INC., | 

et al., | 

 | 

 DEFENDANTS | 

DEFENDANTS’ REQUESTED JURY INSTRUCTIONS

 Come now the Defendants and submit the attached jury instructions. 

 /s/ Dennis R. Bailey

 Dennis R. Bailey 

 Attorney for Defendant 

Of counsel: 

RUSHTON, STAKELY, JOHNSTON & GARRETT, P.A. 

184 Commerce Street 

Post Office Box 270 

Montgomery, Alabama 36101-0270 

(334) 206-3234 (phone) 

(334) 481-0031 (fax) 

drb@rsjg.com (e-mail) 

Case 2:06-cv-00721-MHT-TFM Document 38 Filed 11/09/2007 Page 1 of 9
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CERTIFICATE OF SERVICE

 I hereby certify that I have filed the foregoing pleading through the ECMF 

system on this the 9th day of November, 2007, which will forward same to: 

 Jock M. Smith 

 Brian P. Strength 

 Valerie Rucker Russell 

 Cochran, Cherry, Givens, Smith, Lane & Taylor 

 Post Office Box 830419 

 Tuskegee, Alabama 36083 

 /s/ Dennis R. Bailey

 Of counsel 

Case 2:06-cv-00721-MHT-TFM Document 38 Filed 11/09/2007 Page 2 of 9
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APJI 21.01 Plaintiff's Negligence Claim--General Denial 

 The plaintiff claims the defendants were negligent as set out in the complaint 

and that their negligence combined and concurred to proximately cause certain 

injuries and damages suffered by the plaintiff. 

 The defendants in answer to plaintiff's complaint deny those allegations. 

 This presents for your determination the following: 

 Were the defendants, or either of them, negligent as claimed by the plaintiff? 

If so, was such negligence of either defendant the proximate cause of any injury 

and damages sustained by the plaintiff as claimed? 

 If you find both of the above issues in favor of the plaintiff and against (the 

defendants or either of them, what sum of money will fairly and reasonably 

compensate her for the injury and damages so sustained? 

 If either of the above elements are not proven to your reasonable satisfaction 

as to the defendants or either of them, then your verdict should be in favor of such 

defendants. 

GIVEN__________ REFUSED__________ 

Case 2:06-cv-00721-MHT-TFM Document 38 Filed 11/09/2007 Page 3 of 9
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APJI 21.03 Plaintiff's Negligence Claim--Defense of Contributory Negligence 

 The defendants have also interposed a defense of contributory negligence. 

By this defense the defendants claim that at the time and place specified the 

plaintiff herself was negligent in and about the operation of her exercise equipment 

and that the plaintiff's own negligence proximately caused or proximately 

contributed to cause the injuries and damages claimed by her. 

 If you are reasonably satisfied from the evidence that the defendants were 

guilty of negligence which proximately caused injury and damages to the plaintiff 

and the plaintiff was not guilty of contributory negligence as claimed by the 

defendants, then you will determine what sum of money will fairly and reasonably 

compensate her for the injury and damages so sustained. 

 If you are reasonably satisfied from the evidence that the plaintiff was guilty 

of contributory negligence as claimed by the defendants, the plaintiff would not be 

entitled to recover. 

GIVEN__________ REFUSED__________ 

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APJI 30.00 Definition 

 Contributory negligence is negligence on the part of the plaintiff that 

proximately contributed to the alleged injury and damages. 

GIVEN__________ REFUSED__________ 

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APJI 30.02 Effect of Contributory Negligence on Simple Negligence 

 If you are reasonably satisfied from the evidence that the plaintiff was guilty 

of contributory negligence, the plaintiff cannot recover for any initial simple 

negligence of the defendants. 

GIVEN__________ REFUSED__________ 

Case 2:06-cv-00721-MHT-TFM Document 38 Filed 11/09/2007 Page 6 of 9
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APJI 30.05 Assumption of Risk--Elements 

 The three elements essential to assumption of risk (or contributory 

negligence) in cases of this kind are that the party charged with assumption of risk 

(or contributory negligence) (1) had knowledge of the existence of the dangerous 

condition and (2) with appreciation of such danger (3) failed to exercise care for 

her own safety by putting herself in the way of such known danger. 

GIVEN__________ REFUSED__________ 

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APJI 32.03 Suit for Property Damage Based on an Implied Warranty of 

Merchantability--Elements of Proof 

 Plaintiff must reasonably satisfy you from the evidence that the following 

facts and conditions combined and concurred to produce the damage claimed by 

the plaintiff: 

 1. That defendant was a merchant with respect to goods of the same kind 

as the product or article in question, in this case, the exercise equipment; 

 2. That defendant sold the exercise equipment in question to the 

plaintiff; 

 3. That the exercise equipment in question was used for the ordinary 

purposes for which such products are used; 

 4. That the exercise equipment in question was defective, or 

unmerchantable, that is, not fit for the ordinary purposes for which such products 

are used; 

 5. That the defect in the exercise equipment proximately caused damage 

to the plaintiff; 

 6. That plaintiff gave notice to defendants within a reasonable time after 

she discovered or should have discovered the alleged breach of warranty. 

GIVEN__________ REFUSED__________ 

Case 2:06-cv-00721-MHT-TFM Document 38 Filed 11/09/2007 Page 8 of 9
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APJI 32.18 Assumption of Risk Defense--When the Product Is Defective 

 The defendants claim that the consumer assumed the risk of injury. The 

defendants’ answer raising assumption of risk is an affirmative defense. Therefore, 

the burden is upon the defendants to reasonably satisfy you from the evidence that 

the consumer was aware of the defect, was aware of the danger, and nevertheless 

voluntarily proceeded unreasonably to make use of the product and as a proximate 

result was injured by the product. 

GIVEN__________ REFUSED__________ 

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