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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Tuesday, December 23, 2014

Jury Charge Objection Made with Less than Usual Formality Causes Reversal and Remand

Longshoreman Quinton Henderson slips, falls and is injured on the deck of a ship.It is loading a powdery, dusty solid-- petroleum coke. The day the work was done was wet, and solid petroleum is slippery in the best of circumstances. The ship is owned by Prosperity Management S.A. and managed by Irika Shipping S.A. Henderson sues both for negligence. The trial jury finds that all three parties are negligent and awards Henderson $1,734,943.00 in damages. Prosperity and Irika appeal together raising three issues:

  1. the trial court erred in denying the defendants a directed verdict,
  2. the evidence is legally and factually insufficient to support the verdict, and 
  3. the trial court erred in omitting requested language in the charge and in the issue submitted to the jury.
The defendants had three specific complaints about omitted jury charge and issue language. Justice Leanne Johnson, also writing for Justices Charles Kreger and Hollis Horton, held that the defendants were not entitled to judgment as a matter of law in issue one, and that sufficient evidence existed to support the verdict in issue two.

The jury charge in this case was taken from the Federal Fifth Circuit Pattern Jury Instructions. It  appears that the employer of a worker-plaintiff has the primary duty to provide the worker with a safe place to work, but working conditions can get so obviously dangerous that ship's personnel would have a duty to intervene to protect the worker. The trial judge left out a part of the pattern jury instruction that commented on this point of law, so the appeals court reversed and remanded.

In this case defense counsel failed to follow Texas Rule of Civil Procedure 276. "When an instruction, question, or definition is requested and the provisions of the law have been complied with and the trial judge refuses the same, the judge shall endorse thereon 'Refused,' and sign the same officially." The appellate court refused the complaints about the first two instances of omitted language on the ground that defendants waived error by failing to follow Tex. R. Civ. P. 276. However, the appeals court held that the defendants so clearly complained about the third omission that they would take cognizance of it, and reverse and remand on the basis of it.

In the appeals court's defense, the defendants basically said, "Put that employer/shipowner responsibility sentence that's in the pattern jury charge in the jury charge.  The writers of the pattern jury charge thought it was needed for the benefit of the jury to make a proper decision," Even to me, that seems an unambiguous complaint.

I have one practice tip, one personal note and one observation. The practice tip is that when you are following a pattern jury charge, it is rarely a good idea to get the trial judge to leave out a part unfavorable to you even when you can. Appeals court justices who see a part of a pattern jury charge omitted which clearly favors one side over the other presume that that part was left out unfairly. Unless you can show comparable changes that help the other side or an elaborate explanation why under statute or case law that part of the pattern jury charge is grossly wrong, they will assume that the omission is a cheat.

The personal note is that Justice Johnson's prose style is a pleasure to read-- first rate. I look forward to years of clear reading of this court's opinions in the years ahead.

The observation is that I have no radical objection to the process used to come to this decision. The informality was allowed when a stevedore won a damage award of more than one million dollars against a ship and its manager. I have a concern that the informalities are much less likely to be overlooked when it is a personal injury plaintiff who needs it or a criminal defendant or a respondent in a sexually violent predator civil-commitment case.

Irika Shipping S.A. v. Henderson, No. 09-13-100237-CV, (Tex. App.--Beaumont Dec. 18, 2014, no pet. h.) (mem. op.) available at  http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=56e3dc6f-a22a-4689-bf45-806b8c5e2bac&coa=coa09&DT=Opinion&MediaID=53ca95bf-7d0c-4c9a-8c3d-193e6b9fd17f

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