60-251.
Jury instructions; objections; erroneous instructions.
(a)
Requests.
(1)
Before or at the close of the evidence.
At the close of the evidence or at any earlier reasonable time that the court orders, a party may file and furnish to every other party written requests for the jury instructions it wants the court to give.
(2)
After the close of the evidence.
After the close of the evidence, a party may:
(A) File requests for instructions on issues that could not reasonably have been anticipated by an earlier time that the court set for requests; and
(B) with the court's permission, file untimely requests for instructions on any issue.
(b)
Instructions.
The court:
(1) Must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments;
(2) must give the parties an opportunity to object on the record and out of the jury's hearing before the instructions and arguments are delivered;
(3) must instruct the jury at the close of evidence, before argument; and
(4) may instruct the jury at any time before the jury is discharged.
(c)
Objections.
(1)
How to make.
A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection.
(2)
When to make.
An objection is timely if:
(A) A party objects at the opportunity provided under subsection (b)(2); or
(B) a party was not informed of an instruction or action on a request before that opportunity to object, and the party objects promptly after learning that the instruction or request will be, or has been, given or refused.
(d)
Assigning error; clearly erroneous.
(1)
Assigning error.
A party may assign as error:
(A) An error in an instruction actually given, if that party properly objected; or
(B) a failure to give an instruction, if that party properly requested it and, unless the court rejected the request in a definitive ruling on the record, also properly objected.
(2)
Clearly erroneous instruction.
A court may consider an error in the instructions that has not been preserved as required by subsection (d)(1) if the giving or failure to give an instruction is clearly erroneous and the error affects substantial rights.
History:
L. 1963, ch. 303, 60-251; L. 2010, ch. 135, § 122; July 1.
Notes of Decisions
Cited in
76
cases (
2 in the last 5 years), 1969–2022 · leading case:
Biglow v. Eidenberg, 424 P.3d 515 (Kan. 2018).
Biglow v. Eidenberg, 424 P.3d 515 (Kan. 2018).
· cites it 3× “) Biglow essentially asks us to speculate that he specifically objected on his definition theory during the informal conference.”
Leiker Ex Rel. Leiker v. Gafford, 778 P.2d 823 (Kan. 1989).
· cites it 6× “at 467; K.S.A. 60-251. Instruction No. 11 was not fatally flawed for failing to specify that Gafford would be held to the duties of an anesthesiologist rather than those of a physician or surgeon generally.”
Evergreen Recycle, L.L.C. v. Indiana Lumbermens Mut. Ins. Co., 350 P.3d 1091 (Kan. Ct. App. 2015).
· cites it 4× “Specifically, Lumbermens points to the fact that the court instructed the jury that “Evergreen fulfilled all conditions precedent.” Lumbermens did not object to the district court’s preliminary comments at trial, and there should be no reversal unless the comments amount to…”
Kiser v. Gilmore, 587 P.2d 911 (Kan. Ct. App. 1978).
· cites it 6× “The record does not contain a copy of the proposed instruction, nor does it show that the defendant made an objection, specifically stating the grounds for it, to the court's failure to include the proposed instruction before the jury retired to consider its verdict.”
State v. Fleming, 423 P.3d 506 (Kan. 2018).
“303, § 60-251 (Code of Civil Procedure). For example, in Graham , a deliberating jury asked a question before it returned its verdict.”
State v. Williams, 286 P.3d 195 (Kan. 2012).
“22-3414(3), in the Code of Criminal Procedure, which closely followed the provision regarding waiver of jury instructions found at K.S.A. 60-251(b) in the Code of Civil Procedure.”
Wentling v. Med. Anesthesia Servs., 701 P.2d 939 (Kan. 1985).
· cites it 2× “At the outset, plaintiff contends defendant's present challenge to instruction No. 9 was not raised below in a timely manner and therefore may not now be entertained on appeal unless the instruction is clearly erroneous under K.”
In re Care & Treatment of Thomas, 348 P.3d 576 (Kan. 2015).
· cites it 2× “60-261 (harmless error). In Thomas’ case, it is agreed the instruction challenge was not preserved, so the clearly erroneous standard applies.”
Puckett v. Mt. Carmel Reg'l Med. Ctr., 228 P.3d 1048 (Kan. 2010).
“The next question is: What standard applies when an appellate court reviews the trial court’s determination? The first consideration is whether there was an objection to the giving or failure to give an instruction.”
Allman Ex Rel. Watters v. Holleman, 667 P.2d 296 (Kan. 1983).
· cites it 2× “In doing so the majority relies in part on the rationale that the trial court erred in failing to differentiate in giving the comparative negligence instructions between the wrongful death action and the claim for conscious pain and suffering, as there was no causal connection…”
City of Neodesha v. BP Corp. North Am., Inc., 334 P.3d 830 (Kan. Ct. App. 2014).
· cites it 2× “K.S.A. 2012 Supp. 60-251(d)(2). An appellate court will use a two-step process in determining whether the challenged jury instruction is clearly erroneous.”
— K.S.A. § 60-251(a) — 4 cases
Kiser v. Gilmore, 587 P.2d 911 (Kan. Ct. App. 1978).
“The record does not contain a copy of the proposed instruction, nor does it show that the defendant made an objection, specifically stating the grounds for it, to the court's failure to include the proposed instruction before the jury retired to consider its verdict.”
— K.S.A. § 60-251(b) — 40 cases
Leiker Ex Rel. Leiker v. Gafford, 778 P.2d 823 (Kan. 1989).
“at 467; K.S.A. 60-251. Instruction No. 11 was not fatally flawed for failing to specify that Gafford would be held to the duties of an anesthesiologist rather than those of a physician or surgeon generally.”
State v. Williams, 286 P.3d 195 (Kan. 2012).
“22-3414(3), in the Code of Criminal Procedure, which closely followed the provision regarding waiver of jury instructions found at K.S.A. 60-251(b) in the Code of Civil Procedure.”
Wentling v. Med. Anesthesia Servs., 701 P.2d 939 (Kan. 1985).
“At the outset, plaintiff contends defendant's present challenge to instruction No. 9 was not raised below in a timely manner and therefore may not now be entertained on appeal unless the instruction is clearly erroneous under K.”
Puckett v. Mt. Carmel Reg'l Med. Ctr., 228 P.3d 1048 (Kan. 2010).
“The next question is: What standard applies when an appellate court reviews the trial court’s determination? The first consideration is whether there was an objection to the giving or failure to give an instruction.”
— K.S.A. § 60-251(b)(4) — 1 case
Evergreen Recycle, L.L.C. v. Indiana Lumbermens Mut. Ins. Co., 350 P.3d 1091 (Kan. Ct. App. 2015).
“Specifically, Lumbermens points to the fact that the court instructed the jury that “Evergreen fulfilled all conditions precedent.” Lumbermens did not object to the district court’s preliminary comments at trial, and there should be no reversal unless the comments amount to…”
— K.S.A. § 60-251(c) — 4 cases
Biglow v. Eidenberg, 424 P.3d 515 (Kan. 2018).
“) Biglow essentially asks us to speculate that he specifically objected on his definition theory during the informal conference.”
Evergreen Recycle, L.L.C. v. Indiana Lumbermens Mut. Ins. Co., 350 P.3d 1091 (Kan. Ct. App. 2015).
“Specifically, Lumbermens points to the fact that the court instructed the jury that “Evergreen fulfilled all conditions precedent.” Lumbermens did not object to the district court’s preliminary comments at trial, and there should be no reversal unless the comments amount to…”
City of Neodesha v. BP Corp. North Am., Inc., 334 P.3d 830 (Kan. Ct. App. 2014).
“K.S.A. 2012 Supp. 60-251(d)(2). An appellate court will use a two-step process in determining whether the challenged jury instruction is clearly erroneous.”
— K.S.A. § 60-251(c)(1) — 2 cases
— K.S.A. § 60-251(c)(2) — 1 case
Biglow v. Eidenberg, 424 P.3d 515 (Kan. 2018).
“) Biglow essentially asks us to speculate that he specifically objected on his definition theory during the informal conference.”
— K.S.A. § 60-251(c)(l) — 1 case
— K.S.A. § 60-251(d) — 1 case
— K.S.A. § 60-251(d)(2) — 5 cases
Biglow v. Eidenberg, 424 P.3d 515 (Kan. 2018).
“) Biglow essentially asks us to speculate that he specifically objected on his definition theory during the informal conference.”
In re Care & Treatment of Thomas, 348 P.3d 576 (Kan. 2015).
“60-261 (harmless error). In Thomas’ case, it is agreed the instruction challenge was not preserved, so the clearly erroneous standard applies.”
Evergreen Recycle, L.L.C. v. Indiana Lumbermens Mut. Ins. Co., 350 P.3d 1091 (Kan. Ct. App. 2015).
“Specifically, Lumbermens points to the fact that the court instructed the jury that “Evergreen fulfilled all conditions precedent.” Lumbermens did not object to the district court’s preliminary comments at trial, and there should be no reversal unless the comments amount to…”
City of Neodesha v. BP Corp. North Am., Inc., 334 P.3d 830 (Kan. Ct. App. 2014).
“K.S.A. 2012 Supp. 60-251(d)(2). An appellate court will use a two-step process in determining whether the challenged jury instruction is clearly erroneous.”
— K.S.A. § 60-251(d)(2)(l) — 1 case
— K.S.A. § 60-251(fc) — 1 case
Allman Ex Rel. Watters v. Holleman, 667 P.2d 296 (Kan. 1983).
“In doing so the majority relies in part on the rationale that the trial court erred in failing to differentiate in giving the comparative negligence instructions between the wrongful death action and the claim for conscious pain and suffering, as there was no causal connection…”
— K.S.A. § 60-251(fe) — 1 case
— K.S.A. § 60-251(fo) — 1 case
— K.S.A. § 60-251(h) — 4 cases
— K.S.A. § 60-251(o) — 1 case
Kiser v. Gilmore, 587 P.2d 911 (Kan. Ct. App. 1978).
“The record does not contain a copy of the proposed instruction, nor does it show that the defendant made an objection, specifically stating the grounds for it, to the court's failure to include the proposed instruction before the jury retired to consider its verdict.”
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