*1 COMPANY, H.E. BUTT GROCERY
Petitioner, BILOTTO, Respondent.
Vinnie
No. 96-0995.
Supreme Court of Texas.
Argued March 1998. July
Decided Jefferson, Shelton, B. B.
Wade Wallace Jansma, Antonio, Sunny J. San for Petition- er. Poole, Mendelsohn, Ricky J. San Anto-
Les nio, Respondent. for SPECTOR, Justice, opinion delivered the Court, PHILLIPS, Chief which ABBOTT, Justices, Justice, GONZALEZ and THOMAS, (Assigned),1 and LINDA Justice joined. whether a
The issue this cause is predicating instruction fifty percent question on a or less comparative negligence violates Rule 277 of the Texas Rules of Civil Procedure. trial court submitted las, sitting special appointment under Tex of the Court Chief Justice Thomas, Justice Linda Appeals Code 22.005. the Fifth of Texas at Dal- Gov’t District § *2 Question to assess objection jury found three then asked over HEB’s and the reasonably any, damages, if that would fifty percent HEB each and Bilotto compensate Bilotto. negligent. appeals The court of affirmed. judg- 197. We now affirm the S.W.2d objected the instruction after HEB appeals. ment of the court of impermissibly informed the question two answer. The effect of its injuries Vinnie Bilotto suffered back when objection then trial court overruled slipped Grocery in an Butt he and fell H.E. jury. jury found that The instructed (HEB) Company HEB for store. He sued fifty percent HEB and Bilotto were each gross negligence. negligence and The case damages. negligent Bilotto and awarded jury.
was tried to a
Before the trial court
resolve is whether the
The issue we must
objected
charged
jury,
pro-
HEB
to a
submitting
jury in-
trial
erred in
court
posed
given
jury question
instruction
after
struction.
Question
two.
one read as follows:
number
given
The trial court is
vide latitude
negligence,
any,
persons
Did the
of the
explanatory
propriety
to determine the
proximately cause the
named below
occur-
Mobil
instructions
and definitions. See
question?
rence in
(Tex.
Bell,
Chem. Co.
S.W.2d
Answer “YES” or “NO” for each of the
1974).
We hold that the trial court did
following:
giving
err in
this instruction.
(a) H.E. BUTT GROCERY COMPA-
adopted
Rule 277
We
Tex.R.
Civ.
—
(3
(1940)).
time,
NY
At the
P. 277
Tex. B.J. 566
required
courts were
statute to
Texas
(b) VINNIE
BILOT-
jury charge using special issues.
submit the
—
TO
Broad-Form,
Dorsaneo, III,
See William V.
The
HEB
answered ‘YES” for both
Questions
Jury
and the Stan-
Submission of
Question
jury:
Bilotto.
two then asked the
Review,
dard
46 SMU
L.Rev.
(1992).
however,
years,
Over the
became
percentage
negligence
What
apparent
special-issue approach had
that this
question
you
caused the
occurrence
do
find
“granulated
overloaded the
with
is-
to be attributable to each of those found
to more and more rever-
sues” and had led
you,
your
Question
answer to
No.
appeal.
sals on
Id. at 607-08. As
result
negligent?
have been
problems, in 1973 we amended Rule
these
(a) H.E. BUTT GROCERY COMPA-
permit
the broad-form submission of
—
NY
(493-494
jury questions. Tex.R.
P.
Civ.
(b) VINNIE
BILOT-
(Tex.Cases)
xxxii-xxxiii).
xxxi,
—
TO
277 and
again
In
amended Rule
we
made the broad-form submission of the
fifty
HEB
found both
and Bilotto
mandatory.
importantly
More
for
percent negligent. The instruction that fol-
case,
indicating
language
this
we also added
two,
question
nearly
lowed
which is
identical
may
damage
predicate the
court
“[t]he
80.1,2
Jury Charge
to Texas Pattern
read:
question
questions upon
or
affirmative find-
If,
Question
1, you
in answer to
No.
have
liability.”
This
ings of
Tex.R. Civ. P. 277.
BILOTTO,
answered
“NO”
VINNIE
language determines the outcome of this dis-
if,
Question
you
or
in answer to
No.
pute.
percent
negli-
found that 50
or less of the
one,
gence
response
question
that caused the occurrence
attrib-
In
BILOTTO,
proxi
HEB
Bilotto
to VINNIE
then answer
determined that both
utable
Otherwise,
injuries.
question
Question
mately
No. 3.
do not answer
caused Bilotto’s
two,
fifty
Question
party
No. 3.
found that each
Jury
Products PJC 80.1
State
Comm,
Tex.,
Charges,
on Pattern
Bar of
Malpractice,
&
Charges
Texas Pattern
Premises
—
percent negligent.
question in
Because the
found
to answer each
order
for the
only fifty percent negligent,
light
prevail.
Pope
Bilotto
defendant
&
law,
Lowerre,
Special
comparative negligence
our
the effect of
State
Verdict—
question
answer
two was to
11 St. MARY’S L.J.
PJC
liability. The
establish HEB’s
80.1 does
inform
question
predicated
followed
two
merely
effect of its
but
directs
*3
damages question
finding
on the affirmative
jury
damages question
the
to answer
the
liability
in question
of HEB’s
found
two.
only if certain
conditions
are
satisfied.
expressly
The 1987 amendment
to Rule 277
Therefore,
merely incidentally in
PJC 80.1
authorizes
a conditional
such
submission.
jury
legal
forms the
of the
effect of its an
Therefore,
instruction is ex
because this
swers.
277,
pressly
authorized
Rule
the court did
that our decision in Grasso v.
argues
HEB
the instruction. See Bor
giving
not err in
Lines,
Freight
Cannon Ball Motor
125 Tex.
den,
Price,
247,
(Tex.
Inc.
939 S.W.2d
254
154,
(Tex.Com.App.1935),
To be comment such is that the rule now allows instructions evidence, weight of the the issue submitted as the one at issue Grasso in this case. suggest trial must to the court’s First, specifically authorizes courts the Rule opinion on the matter. See Southmark Man Vick, an affir- damage question agement to condition Corp. Next, liability. this instruc- mative (Tex.App. writ [1st Dist.] — Houston n.r.e.). incidentally jury of the only informs the Similarly, directly tion refd advise Therefore, inis effect of its answers. jury of the effect of its with current Rule 277. must instruct how line issue submitted Pattern
ommendations of the Texas
assess
Charges
instructs the
today
We do not overrule
the decades
negli
plaintiffs
if it finds the
damages
Texas
law that holds that Texas
case
gence
fifty percent or less. Our Court
legal effect
cannot be
informed of the
similarly-structured con
long ago held that a
hold, however,
do
of their answers. We
tributory negligence
contravened
conditional
because
instruc-
against informing
rule in Texas
common-law
expressly permit-
are
tions such as PJC 80.1
answers.
the effect of its
about
ted
Rule
the trial court did not err
Lines,
Freight
Ball Motor
Grasso v. Cannon
result,
giving the instruction. As a
this
(Tex.Com.
permissible
Rule 277 of the
charge is
under
1935)
App.
(holding that
which condi
According-
Texas Rules of Civil Procedure.
damage issue on the
an
tioned the
ly,
judgment
we affirm the
of the court of
contributory negligence
was a
swers to
issues
appeals.
*4
general charge and erroneous because it told
jury
findings
necessary to
the
what
GONZALEZ, Justice,
concurring
filed a
recovery).
majority and dis
allow
Both the
opinion.
recognize
charge in
senting opinions
that the
HECHT, Justice,
dissenting
a
filed
jury
the
about the effect of
this case advised
OWEN, Justice,
opinion,
joined.
in which
majority opinion
its answers. The
holds
only
proper
incidental to a
BAKER, Justice,
such advice was
dissenting
a
filed
dissenting opinion thinks it was
charge; the
OWEN,
opinion, in which
ENOCH
majority opin
agree
direct.
I
with the
Justices, joined.
While
ion, I
that we have not articu
am concerned
HANKINSON, Justice.,
participate
did not
lated a
standard so that the bench and
clear
in the decision.
charge
distinguish
in
can
bar
future cases
jury
GONZALEZ, Justice,
tells the
the effect of its
concurring.
incidentally
only
does
answers from one
Comí;
agree
charge
I
with the
that the
in
probably
so.
a standard is
Because such
permissible
this case is
because it
inci-
impossible and does not serve the search for
dentally
jury
informed the
of the effect of its
truth,
justice and
we should reexamine
However,
answers.
I think it
time to
is
trying
keep
the
from know
whether
try
reconsider whether it makes sense to
charge
ing
legal
effect of its
answers is
juries
keep
in the dark
of
about the effect
not,
objective.
I conclude it is
worthwhile
their
in
answers
these cases. When we
to Rule 277.
and call for an amendment
special
practice
moved from
issue
to broad-
submissions,
dramatically
form
we
reduced
Texas,
In
should
the doctrine that
jury might
of
number
cases which the
not be informed about the effect of their
know
sure the effect of its answers.
special
developed in tandem with
answers
remaining
In the
few
cases which the
practice.
generally James G. Den-
issue
might
not know the
an-
effect of its
ton, Informing
Legal
of
of
Effect
swers, question
I
whether it serves the cause
(1970).
Answers, 2
1
As
its
L.J.
Mary’s
St.
justice
blindfolding
jury.
of
to continue
put
concept
it in
“The
Justice Denton
1970:
join
growing
number of states that
informed
should not be
allow the
to know the
effect of its
one that
effect of its answers is
answers.
jurisdictions
spe
peculiar to those
that utilize
interrogatories.”
currently
special
that a
cial
or
Id.
Rule 277
directs
court
issues
1913,
had discretion to
“shall
... advise the
of the effect of 1. Prior to
courts
answers,”
by special
general
proper
but an otherwise
submit a case
issues
4;
incidentally
Id. at
see Mitchell v. Western
charge that
advises the
is verdict.
262,
Co., Tex.Civ.App.
33
P.
Tel.
12
S.W.
not erroneous.
Crv.
277. Un- Union
Tex.R.
441,
1016,
(1896),
doubtedly,
ref'd,
writ
89 Tex.
this case told the
(1896).
1913,
However,
4,
compara-
the effect of its answers to the
S.W.
required
negligence questions.
Legislature
It
enacted a statute which
tive
follows the rec-
by special
upon
request
spirit
issue
of the rule is violated
submission
29, 1913,
any party.
knowledge.
Act of March
33rd
which assumes such
R.S.,
59,
1,§
Leg.,
ch.
1913 Tex. Laws 113
85,
Grieger Vega,
(successor
(repealed)
at Tex.R.
rule
P.
Civ.
277).
1970s,
practice
By
special
issue
had
gotten
fragmentation
out
hand. The
adopted
against
the rule
in
Our Court
special
plagued
practice with
issues
Texas
necessary
forming
to effectuate
as
“conflicts, confusion, delays, waste of trial
legislative
special
intent behind the
issue
time, reversals,
appellate
metaphysics,
opinion
statute.
In the
of McFaddin v. He
unique system
developéd
and the
that had
bert,
(Tex.Com.
27 first, principal criticisms of this rule: to their own two tions and tailor answers justice an- jurors generally will cause mischief whether know the effect of their sense of they fully second, the effect of them an- anyway; understand the fear that a swers Blindfolding juiy or not. such a adds swers jury may if it knows the alter an answer accuracy findings. to its randomness but concept inconsistent with the effect is impartial jury system). a fair and experience of other states seems to limited effectiveness of blind- bear out the were ex The reasons for this about-face 1970, folding jury. virtually Before ev- Sep pressed by Supreme the Idaho ery jurisdiction pre- that considered the issue 186, 683, pi Betty, v. Idaho 579 P.2d advising juries then- cluded of the effect of (1978): comparative negligence questions. answers to incredibly naive to It would be believe Miller, Price Ainsworth & Mike C. Re- See jurors, having after listened attentive- moving Verdicts and General Blindfold: testimony parade ly parties and a Letting Know the Effects of having of witnesses and after heard the Answers, 233, 29 S. L.Rev. counsel, ques- arguments of will answer notes, however, As the Court there seems to giving any thought tions ... without letting be a trend toward know the par- effect those answers will have on jurisdictions of their answers. Most effect ties and to whether their answers will ef- in the addressed the issue last in accord with their fectuate result own twenty-five years away have moved from the lay justice. respect to most sense of With against informing rule questions, have to be ex- Loup-Miller effect of its answers. v. guess tremely dullwitted not to able to Inc., Mountain, Assocs.-Rocky Brauer & parties. which answers favor which (1977) Colo.App. (citing 572 P.2d where the effect of those instances 13-21-111(4)); § Kaeo v. Colo.Rev.Stat. obvious, not so them answers is Davis, (1986); 68 Haw. P.2d speculate, nonetheless often incorrect- will Seppi Betty, 99 Idaho P.2d judicial ly, thus subvert the whole (1978); *6 Thomas Board Town- process. Trustees, 539, 271, ship 224 Kan. 582 P.2d (1978); Co., Inc., 280 Dilaveris v. W.T. Rich juries speculat- problem, It is this latter 9, 562, (1996); 424 Mass. 673 N.E.2d 566 ing their on the effect of Photo, Inc., Krengel v. Midwest Automatic unique danger the creates a when issues 200, 841, (1973); 295 Minn. 203 N.W.2d 848 comparative negligence in Idaho are case Dep’t Highways, DeCelles v. State 243 jury.... to a submitted 422, 419, (1990); Mont. 795 P.2d 420-21 Ro- Further, “jurors are concerned about the Mitchell, 336, 322, man v. 82 N.J. 413 A.2d ultimate out- effect of their verdicts the (1980); Hampton Bays 327 Schabe v. Union special come of the case and the use of Dist., 418, Free Sch. 103 A.D.2d 480 N.Y.S.2d interrogatories special verdict or does not (N.Y.A.D. 328, Gizzi, 1984); 336-37 v. Smith magically trait of eliminate that well known (Okla.1977) (Oklahoma 1009, 564 P.2d juries.” American Id. at 689. verdicts); general utilizes Peair v. Home Trying the the real- to blindfold belies 751, Legion Ass’n Enola No. 287 Pa.Su- trying proce- ities of a case under modern 665, 400, (1981); per. A.2d McIn- theory lawyers develop a of the (Tenn. dure. Good Balentine, tyre v. 833 S.W.2d they hope pick case and a few themes will Stewart, 1992); Dixon 658 P.2d jury. They try to advance (Utah 1982); Whitten, resonate with Adkins v. 171 W.Va. theory every opportunity, beginning them See also S.E.2d (“To- through opening pleadings, state- Miller, with supra, Ainsworth & at 237-38 itself, dire, during trial trend, ment and voir all day, among there is a clear the com- concluding and final and with parative negligence states that have consid- issues, aim this permit summation. The whole exercise ered the to to know percentage appeal to to the conscious and subcon- the ultimate effect of its find- is Denton, (enunciating jury. would not be ings.”); supra, at 6 scious mind of Jurors give thought history provision suggests they human if did not some to text or of that bring comparative the effect of their answers. Jurors whether a determination of re- right wrong own sense of to the sponsibility either or not an affirmative is is However, ju- keep rule intended task. finding liability. argue One can whether justice seeking rors from their own vision of permit Rule 277 should an instruction like work, even if it were desirable. The will case, rewriting the one in this but without jurors trust the ef- criminal courts know rule, argue one cannot does. cases, penalty of their in death fect answers hand, argue On the other one can society’s most critical determination. holding in Court should not follow its Grasso reposit responsibility It is time to similar Freight Ball Motor Lines1 that a Cannon cases, because we either civil may not be of the effect of advised trust them or we do not. I would not adhere plaintiff contributorily negligent. that holds that to “the decades of Texas law Gmsso, predicate instruction to Under Texas cannot be informed of damages questions present case effect of their answers” as the improper. on the Grasso was based says today. it does To general principle that a should be case, necessary present I the extent effect of its factual find- advised would overrule Grasso v. Cannon Ball Motor findings merely ings, otherwise it could make Lines, Freight principle That to achieve a desired result. (Tex.Com.App.1935), and call for the English-speaking debatable. For centuries Furthermore, Rule 277. I amendment of jurisdictions struggled over whether the fifty- would not tell the about the strictly jury’s in civil role cases should percent statutory trebling and the one rule resolving disputes factual limited to damages, but I also eliminate the col- have a hand in whether should short, lateral source rule. it is time to deciding of a the actual outcome case bring clarity take the blinders off order to hence, Today’s matters of law. decision is honesty truth. to our search for the part struggle. is this: of that The real issue reasons, For I concur. these recovery allow should the decision whether to fifty percent than who is more HECHT, Justice, OWEN, joined by injuries responsible be made for his own Justice, dissenting. jury. I Legislature or the conclude that ordinary jury, an- instructed not to deciding legal generally issues is not within damages questions swer it finds that more Thus, respectfully province. dis- fifty percent negligence than sent. plaintiffs injuries caused is attributable *7 himself, plaintiff likely correctly the will and any plaintiff infer that a cannot recover legal us though Even the issue before injuries they damages at all for his unless one, the factu- appropriate it is to summarize fifty percent by were caused no more than dispute briefly put al the issue question in this negligence. his own The had years context. For nine Vinnie Bilotto improp- an instruction case is whether such Flying professional wrestling as done some jury erly the of the effect of its informs Valentino, relatively small but he was Vinnie assignment percentages responsibility (6’, lb.), he and the most income ever plaintiff so that it can ad- and defendant $16,000. support year was To made just assignment to achieve a desired that himself, managed real es- he also made and view, Contrary to the result. Court’s investments, years port- his tate and over by ten-year question old is not answered $100,000. While amounted to more than folio provision 277 of the Texas Rules of of Rule very late shopping grocery in an HEB store permits a trial court to Civil Procedure Bilotto, Saturday age night, then jury’s damage findings affir- one predicate a on spilled had liability. Nothing slipped root beer that findings of some mative (Tex.Com. App.1935). 1. 125 Tex. disapproved an instruction to the and fell on his left elbow. He did which
the floor
(he was,
not think he was hurt at the time
damages if it found the
not to find
all,
falling
rather hard in
after
accustomed
contributorily negligent.6 The dissent fur
ring)
reported
and
the incident to the
by
argued
not altered
ther
that Grasso was
only
manager
urging
at the
of another cus-
the Texas
later amendments to Rule
tomer who saw him fall. But four hours
Procedure.7 Justice Rickhoff
Rules of Civil
room,
emergency
later he went to the
where
dissented,
arguing that the
should
also
Although
and
he was treated
released.
his
it
the effect of its
but that
be told
again,
him
doctors soon released
to wrestle
Court,
ap
up
not the court of
was
to this
persistent pain
he found that
in his elbow peals, make that decision.8
impossible.
and back made it
granted
application for
This Court
HEB’s
Co.,
Grocery
Bilotto sued H.E. Butt
and
argument.
heard
Be-
writ of error9 and
oral
trial,
week-long
after a
found Bilotto
decided, however,
fore the case could be
Jus-
equally
HEB
at fault. The
court
district
CorNyn resigned and
HaNkin-
tice
Justice
jury, in
with
instructed the
accordance
appointed
place.
son was
his
Justice
Jury Charges,2
Texas Pattern
not to find
herself,
recused
and the Chief
HaNiunson
damages unless it assessed Bilotto’s share of
Governor,
certified that fact to the
Justice
responsibility
fifty percent
for the accident at
thereupon
who
commissioned Chief Justice
instruction,
Following
or less.
this
Appeals
Linda Thomas of the Court of
for
$17,000
damages
found Bilotto’s
to be
for
the Fifth District of Texas at Dallas to hear
$80,000
past
expenses,
medical
for future
and decide the case.10 The Court scheduled
$50,000
expenses,
past
medical
for loss of
argument
a second oral
at which Chief Jus-
$35,000
earning capacity,
fu-
for loss of
participated.
tice Thomas
earning
capacity.
ture
The
failed to
grossly negligent.
find HEB
The trial court
II
$91,000—
judgment
rendered
for Bilotto for
damages
by
Hebert,11
jury plus
half the
found
we held that it
McFaddin
—
$40,346.73prejudgment interest.
trial
was reversible error
court
counsel to inform the
effect
appealed, arguing
predicate
HEB
that the
are such that
its answers “when
issues
damages question improp
instruction to the
ordinary
presumed to
men are not
know
erly
advised
that Bilotto would not
years
effect of the answers”.12 A few
fifty
recover if he was found to be more than
applied
principle
later we
in Grasso v.
percent
appeals,
at fault. The court of
sit
Freight
Cannon Ball Motor
Lines to hold
banc,
ting
judgment
en
affirmed the
a 4-3
instructing
to find
majority
vote.3
held that
the district
contributory negligence
not find
it did
court did not abuse
its discretion because
contributory negli
informed
Jury Charges4
the Texas
followed
Pattern
Duncan,
Green,
gence
complete
recovery
joined by
was a
bar to
Justice
Justice
dis
sented, arguing
predicate
rule of
thus violated the
McFaddin13
Grasso,5
prohibited
holding
wrote:
(June 12, 1997).
Jury
Sup.Ct.
J. 628
40 Comm,
State
Charges,
on Pattern
Bar of
Malpractice,
Tex.,
Charges
Texas Pattern
Prem-
—
*8
Products PJC 80.1
&
ises
Code
22.005.
10. Tex.
Gov’t
§
3.
197.
(Tex.Com.App.
11.
15. 153 Tex. juror ordinary party, shall submit an issue intelligence know one the court any, fifty inquiring percentage, of the plaintiff percent more than what who is ordinary juror negligence that caused the occurrence at fault cannot recover. An par- of the likely question is attributable to each at least as to think that a will negligent, to and shall portion was ties found have been recover whatever Thus, damage instruct to answer caused the defendant. under Grasso, any reduction because of Grieger and the instruction in the issues without injured.21 any, person present negligence, if case was error. argues But Bilotto that these cases have required the trial court rule thus damage been overruled amendments to Rule 277 to answer issues instruct the responsibility of the Texas Rules of Civil Procedure. Gras- regard comparative without amendments, years Commenting so was decided six before the Texas findings. on the jurors’ Rules of Civil Procedure became effective. Pope Justice wrote that “the Jack 277,17 statutory predeces- New Rule like its achieving particular concern is not that of sor,18 expressly prohibit advising result”, years did not citing Grieger.22 later Several later, of the effect of its Years answers. we reiterated in Coast State Bank Gulf decided, Grieger when there was still no Emenhiser: “The concern is to find prohibition prohibi- facts, such the rules. The disputed par- rather than achieve a entirely tion remained a creature of decision. ticular result.”23 In Rule 277 was amended to include compelling But the most evidence that the following language for the first time: modify 1973 amendments did not Grasso or Grieger is that subcommittee of the The court shall not com- Supreme Advisory recom- Committee directly weight ment on the of the evidence following add- mended sentences be or advise the of the effect of their ed to Rule 277: but the court’s shall not objectionable ground on the that it inci- Upon party, request of either the court dentally constitutes a comment on the shall instruct the as to the effect weight of the evidence or advises the interrogatories upon answers will of the effect of their answers where it is judgment to be entered in the case. properly part explanatory anof instruc- predicate damage The court shall also tion or definition.19 interrogatories upon findings affirmative liability.24 Although predicate the Court states that the present proper ease was permitted If the 1973 amendments had
because “it does not instruct the predicate pres- instruction like the one in the about the effect of its answers” but case, ent the first sentence would have been “merely incidentally informs the unnecessary. Transcripts of the Committee answers”,20 effect of its Bilotto does not proposal, in the on this submitted debates argument, good make this and with reason. us, record before show that mem- Committee The 1973 amendments also added the follow- that an instruction bers were all of view ing provision: suggested effect of its comparative responsibility findings case in which are raised would be issues concerning negligence improper existing of more than under the rule. (Oct.1941); 4 Tex. J. 529 3 Tex. Bar J. 566- 21. 493-494 S.W.2d xxxiii. Bar (Dec.1940). Lowerre, Pope 22. Jack & William G. Revised Special System Verdict Rule 277 —A Better 27, 1913, R.S., Leg., 18. Act of March ch. 33rd Texas, 27 Sw. L.J. Gen. Laws 113. (Tex. 1978). 23. 562 S.W.2d (Texas Cases) xxxiii to Justice James P. 24. Letter from Franklin Jones (Feb. 21, 1986) (on Su- Wallace file with the Texas). preme 20. Ante at 24. Court of *10 rejected proposed history simply The Committee lan The text and of Rule 277 do adding only support argument guage and instead recommended Bilotto’s following may sentence: “The court Court intended to overrule Grasso and damage question upon Grieger. predicate the affirma findings liability.” transcript of tive of Ill proposal meeting at which this was available, adopted been, is not and thus there is no Grieger and have not and Grasso be, record of the reasons for the Committee’s should not overruled. To tell the rejection language proposed by by Legisla- policy determined subcommittee and recommendation findings ture and allow the to make language substituted instead. Minutes of the policy achieve a desired result avoid and meeting Pope opposed reflect that Justice gives a role it should not have and recommendation, the subcommittee’s and usurps province Legislature. unanimously rejected that the Committee it. A these alone cannot establish that
While facts against modifying the the Committee decided jurors in Debate over the role of determin- Grieger, nothing rule of Grasso and there is ing legal as well as factual issues is centuries suggest at all to that the Committee believed England, old. Lord Coke authored by rejecting proposal the subcommittee and maxim, questionem respondent “ad faeti non adopting provision it a substitute was recom judices juris respon- questionem ... ad non mending that the Court overrule those cases juratores”.26 explained dent Blaekstone Moreover, rule. the Committee thusly: rationale for the rule Court, and no makes recommendations to the power judicature placed at [I]f the extant record indicates the Court’s intention multitude, random in hands of the adopting recommended Committee’s capricious, and and decisions would be wild change to Rule 277. day every rule would be a new of action wisely established in our courts. It is Despite the evidence of intent to dearth of ordered, principles therefore Grieger the 1985 overrule and Grasso law, general proposi- axioms of which are amendment, attempts argue the Court reason, tions, flowing from abstracted permits expressly that the rule answers to men, not accommodated to times or to damage questions predicated to be on com- deposited in the breasts of the should be responsibility findings parative because such judges, occasionally applied to be to such liability” findings findings are “affirmative properly facts as come ascertained before meaning But the within the of the rule. them.27 a it deter- must find defendant liable before dichotomy questions comparative responsibility. Rule 277 But the between fact mines legal questions sharply requires comparative responsibility finding cannot be Moreover, in criminal cases persons found to have been drawn.28 for “each traditionally guilt, If defendant determined which culpable.” finds that was com- compar- application an of law to the facts. One negligent, it need not determine jury’s power “the responsibility compara- mentator has stated that ative at all. Since (as fact) well as responsibility finding presumes liability decide issues law tive tradition that ... had historical roots finding, the former cannot be said to be a British Magna dating to the Carta.”29 liability finding. back Comm., Advisory Supreme 27. 3 William 25. Minutes of Commentaries *379-80. Blackstone, 7-8, (Mar. 1986) (on Supreme at 4—5 file with Texas). Court of Jury Thayer, Fact" in 28. James B. "Law and Trials, (1890). 4 Harv. L.Rev. 26. 1 Edward Coke, First Part of the Institutes (Garland 155(b) § England of the Laws Jury, Developmentsin the Law—The Civil Inc.1979) (1832), Douglas Publishing, Smith, G. cited in Smith, supra Contexts The Historical and Constitutional Harv. L.Rev. Reform, note at 415 n. 138 25 Hofstra L.Rev. *11 jurisdictions, given changes government many early In no American pow- foreign sharp developed produced. distinction between had When Revolution judges colonies, to and the er of decide issues indeed power ruled the it was power juries disputed to facts. of resolve juries they could to tell democratic Early juries authorized American were often law if ignore judicial instructions on the one of the few trials to decide both. However, indepen- after they so chose. Court, Supreme before the Chief Justice dence, demo- product were the of statutes jurors Jay charged the John legislatures, the com- cratically elected and fact, questions province that on of it is the American, the creation of not mon law was law, jury, questions on of it is the Thus, British, judges. control over province of the court to decide. But it in a sense antidemocrat- issues of law was law ... must be observed that the same ic.32 you jury] right [the have nevertheless to jury’s au- for the Whatever reasons both, upon yourselves judge to and take law, early that au- thority under American to determine the law as well as the fact uniformly thority steadily and diminished in controversy.30 century. jury, which was the nineteenth why early American law often al- Reasons initially protective “a be- viewed as barrier jurors authority lowed broad to determine potentially tyrannous, tween the citizen and vary. factual as well as issues One state”, as “an corrupt came to be viewed suggests commentator that the American le- the fair efficient adminis- instrument for and gal system’s willingness jurors to allow justice.”33 tration of At the close of the pass per- on issues of law from the resulted century, nineteenth United States Su- parity legal knowledge ceived between or- duty preme that “it is the Court observed dinary professional lawyers and citizens juries ... the law from the court and to take judges. legal knowledge possessed As the time, apply they find them by legal professionals that law to the facts as increased over respecting legal role matters de- from rea- be the evidence.”34 Another creased.31 commentator ascribes soned that “the functions of court and juries allowing different reasons for disregarded to decide ... cannot confounded or legal issues: endangering stability public without
Post-Revolutionary justice, security private accepted as well as the Americans juries personal rights.”35 Only the British deference to on issues of in criminal cases law because of the belief that defer- authority this has the retained the decide protect tyran- ence outcome, served to citizens from its au- the ultimate but even then government. gen- nical In addition to this thority jurisdictions is often limited —in other custom, eral several constitutions of determining guilt, pun- than Texas —to expressly provided states ishment. fact, arbiters both law and and well into century judges in- the nineteenth issued B jury’s right acknowledging structions to determine the Texas, law. jurors’ Historically in in civil eases however, resolving disputes factual has been
Ultimately,
role
the American
power
paramount,36
jurors
precluded
have been
questions
lost most of its
to decide
law,
achieving
particular
development
an understandable
from
result based
States,
51, 102,
(1
1, 4,
Dall.)
Georgia Brailsford,
Sparf v.
34.
United
156 U.S.
30.
3 U.S.
(1794).
(1895).
L.Ed. 483
S.Ct.
39 L.Ed.
Smith,
supra
31.
note
at 449-450.
35.
Consistent with this
the Court
the law
v. Hebert38 held that it was re
Legislature’s power
legislate
McFaddin
as
but the
for counsel or the court to
provided
versible error
predicate
well.42 The
effect of their
inform
with information it could use to
*12
the issues are such that ordi
answers “when
legislative
Having
ad-
policy.
been
thwart
nary
presumed
are not
to know the
men
deny
to
a
policy
of Texas is
vised
has
effect
answers”.39
fifty percent
plaintiff who is more than
re-
consistently held to the view that a trial court
injury recovery from a
sponsible for his own
if
commits error
its conditional submission
tortfeasor,
permitted
defendant
legal consequence
informs the
of some
reject
policy.
legislative
this
for the conditional
that it would not know but
ju-
jurisdictions vary
Other
over whether
Where the effect of an answer
submission.40
told,
either
or indi-
rors should be
juror’s
any
is so obvious as to fall within
rectly,
plaintiff
found to be more than
that
knowledge,
ordinary
no reversible error ex
percentage at fault will be barred
a certain
ists.
rule,
recovery.43
my
from all
The better
by
pre-
The rule established
these cases
view, is the one to
Texas has adhered
which
jurors
engaging in
vents
from
outcome-ori-
today.
until
decisionmaking. Conveying
ented
informa-
jury concerning
tion to the
effect of
C
adversely
comparative
findings
affects
fault
jurors
be told the
Whether
should
jury’s fact-finding
informa-
role. Such
comparative responsibility
effect of their
jury manipulate
answers
tion allows a
finding
merely
be
an ad hoc deci-
should not
appropriate.
to reach a result it deems
sion; rather,
princi-
on a
it should be based
jurors stray
process,
from their role as
pled
proper,
role of the
determination
objective triers of fact and become lawmak-
jurors
jury in civil
If
should be told
cases.
not
on a
ers. Decisions are rendered
based
findings,
they can
the effect of their
so that
comparative negli-
judge’s application of our
“
only
disputes but the
the factual
decide
statute,
gence
‘according to what the
but
ease,
ultimate outcome of the
then
law
opinion suppose
in their own
is
”
only
know not
the effect of their
should
ought
For
particular
to be’
case.41
comparative responsibility finding
of oth-
but
present
may
example, the
in the
case
told,
They
findings as well.
should be
for
er
proportionate
that Bilotto’s
have believed
example,
knew or
50%,
opted
but nevertheless
fault exceeded
injury
should have known of
before a certain
adjust
findings
Bilotto
their fault
to allow
recovery. They should be told
date will bar
our
to recover based on their conclusion that
recovering compensation
plaintiff is
unjust. whether
negligence
comparative
statute is
injuries
from collateral sources so
his
possibility
outcome oriented deci-
of this
only
awarded
receive not
the amounts
sion-making
with Rule 277’s he will
is inconsistent
They
other benefits as well.
as triers of fact.
but
mandate that
act
154,
482,
Emenhiser,
Lines,
487
Freight
Tex.
81 S.W.2d
562
125
37.
Coast State Bank v.
Gulf
449,
("The
(Tex.1978)
jury’s concern
facts,
disputed
to achieve a
is
rather than
to find
Lowerre,
result.");
supra
particular
Pope and
see
Co.,
F.2d
O.R.
41. Skidmore v. Baltimore &
22,
note
at 589.
omitted).
( Cir.1948) (citation
2d
(Tex.Com.App.
38. 118 Tex.
should be told unnecessary joint liability among you’re going require defen- retri- and several me find They Why told that dam- al. not let the dants. should be some liability, ages multiplied by judge wrong statute. If the doesn’t award will be hands, than placed jury’s damages, you then can render rather judgment is to be truth, judges they A number of trial have then should be told the entire remand.”44 case, just an amicus curiae brief this part of it. filed damage findings on arguing predicating today’s I doubt that the Court will follow comparative responsibility finding favorable far, principled but I see no decision this plaintiff may delibera- shorten holding examples reason for back. In all the is, course, true, That but whether tions. mentioned, policy determined efficiency A works real is more difficult. Legislature ignored or the courts as could *13 jury case which must be retried because the jury making findings. in A unfair a its damage findings immense made no is an jury might applicable the limita- believe that inefficiency. short, period long that a tions is too or too damages plaintiff should not be awarded that Moreover, the holds that a trial Court sources, overlap from benefits collateral predicate to court has the discretion whether only be hable for its each defendant should damages findings comparative responsi- aon causing injury, in role that a defendant plaintiff, bility finding favorable to the but jointly damages all de- should be liable for the Court does not describe the factors role, spite recovery its minor or that the total I can weigh in that exercise of discretion. should be limited to certain amount after only discern two. The trial court’s decision view, any statutory multipliers. my In these predicate damages findings on a whether to policies Legislature are for the and the responsibility finding comparative favorable courts to determine a matter A as of law. plaintiff may uncertain to turn on how the jury permitted ignore should not to such comparative responsibility court believes the policies any ignore more than can the the finding to be. If the court believes that negligence definition of or other instruc- jury certainly comparative find is almost to charge. in tion the responsibility unfavorably plaintiff, to the Today’s holding permits jury just may to do the trial court wish to condition then jury that. A that believes the com- comparative responsi- State’s damage findings on a parative responsibility policy to be unfair can bility finding plaintiff in favorable to the simply adjust comparative responsibility jury necessity delib- spare order to the damages findings particular If, hand, to ensure erating damages. on the other on issue, policy result. Neither this nor other believes that will find court issues, subject should be to nullification favorably comparative responsibility to in civil cases. plaintiff, may the court omit the instruction case, unnecessary. In as a close when
IV comparative responsibility doubt, practical problems weighing factor on the court’s At least two also inhere deciding make allow- exercise of discretion the Court’s decision. One is findings ing damage findings damage to omit without conditional is whether by giving responsibility finding plaintiff comparative favorable court wishes assist necessity about the plaintiff, the trial court risks the an instruction warns findings, the defen- complete liability findings trial if effect of its or to assist of a new ap- by refusing give such an to the are reversed on dant adverse occasion, my peal. Supreme This is the first One senior member of the instruction. knowledge, in allows trial Advisory during which the Court Court Committee observed discussions, charge the viewpoint of to decide how to the 1985 “from the courts Texas). Transcript Supreme Advisory Supreme Court of Comm. (Nov. 1985) (on Mtg., p. with Vol. file I, Emenhiser, 562 at 453. The trial based on which side of the case the court See S.W.2d charge need not and should not bur help. be much court’s wants to The Court would surplus instructions. See ground require prohibit or den with firmer either to Corp., Acord v. General Motors 669 S.W.2d predicate like the one in this case. instruction (Tex.1984). though politicizes This is so even Allowing the trial courts discretion may an be a correct statement of jury charge unprecedented degree. instruction to an Acord, at 116. This law. See 669 S.W.2d surplus to the Court has treated instructions charge impermissible that tilt as comments reasons, For these I would hold that the nudge way one or the other. See predicate case revers- this (Tex. Montez, Lemos respectfully Accordingly, ible error. dis- Acord, 116; 1984); at Emenhis S.W.2d sent. er, BAKER, Justice, joined by ENOCH and approved conditioning We first instructions Justices, OWEN, dissenting. damages findings liability on an affirmative
A trial court must submit instruc Grieger Vega, finding in compliance with Rule 277. See tions Grieger, S.W.2d 85 278; P. see also Coast State instructed the to answer the Tex.R. Civ. Gulf Emenhiser, Bank v. question only if it found the defendant’s con- *14 (Tex.1978). may predicate “The trial court wrongful. Grieger, duct 271 S.W.2d at See upon damage question questions or affir that this did 86. The Court held instruction findings liability.” Tex. R. Crv. P. mative of longstanding against in- not violate the rule Today lan 277. the Court asserts that this jury forming the effect of their guage from Rule 277 the outcome determines juror answers. The Court observed that that, Having of this case. the Court said ordinary intelligence would know that a of headlong preordained conclu rushes to its plaintiff damages does not owe a defendant expressly authorizes the sion that Rule 277 plain- unless the defendant is liable for gave the trial court in this case. injuries. Grieger, at 87. tiffs See Accordingly, the holds the trial court Court 277 to In 1988 the Court amended Rule giving instruction. 985 did not err conditioning expressly permit instructions 22. S.W.2d damages liability finding. on a See Tex.R. 277. Civ. P. wrong I believe the Court focuses on the part Rule 277. The rule also states: of However, permit Rule 277 does not condi comment
The Court shall not its tioning damages finding a certain on a of weight on the of the evidence or negligence. A percentage comparative of jury their an- advise the of the effect of comparative negligence to the answer swers, not be but the Court’s shall “finding liability” under question is not a of objectionable ground it inci- Instead, on the that finding comparative of Rule dently constitutes a comment on the finding negligence greater than 50% is a of jury weight or advises the liability. of the evidence See an affirmative defense of their answers when it is 94; of the effect P. Lawson v. Estate Mc R. Civ. properly part Donald, of an instruction or defini- (Tex.Civ.App.— 355 S.W.2d n.r.e.). tion. held Waco writ refd We conditioning damages nega on á Grasso prohibi- By ignoring P. 277. Tex.R. Civ. imper- finding contributory negligence tive jury against advising the of the effect tion missibly effect of their tells the erroneously concludes Ball Motor See Grasso v. Cannon answers. charge in does not violate this case Lines, 154, 81 S.W.2d Freight 125 Tex. Accordingly, I dissent. Rule 277. Although Grasso (Tex.Com.App.1935). I. INSTRUCTIONS JURY contributory negligence as an abso involved facts, recovery plaintiffs instead of disputed lute bar to a jury’s concern is to find bar, reasoning ap- particular the current 51% Grasso’s result. rather than achieve why plies contributory negli policy There are reasons the trial here. The law also damage findings court condition gence ordinary realm of an should not is not within the finding no more than juror’s on a that a is knowledge. Grieger, See negligent. recovery 50% That bar is conditioning (approving damages at 87 aon part legislative comprehensive one of a com- finding liability distinguishing Gras- parative ques- negligence Without scheme. so); Cigar Campbell, Finch v.Co. tion, provides such an instruction S.W.2d they leg- use to with information can thwart (Tex.Com.App.1939)(approving conditioning policy. Clearly, islative the trial court liability on a and distin comparative instructs the on how Grasso). guishing This is true whether the system operates, fault can ad- then recovery bar to at or 51% and is 1% whether just accordingly. its answers This instruc- “contributory negligence,” it is called “com surplus tion to the is a instruction that parative “comparative negligence,” responsi impermissible is an tilts or comment bility,” “proportionate responsibility.” or In Lemos, nudges way. one structing effect of a Acord, 801; 669 S.W.2d at S.W.2d plaintiffs percentage responsibility reasons, more For impermissibly than “incidental” —it al these hold that the by overruling trial lows court abused its discretion plaintiffs to determine the objection H.E.B.’s 51% bar recovery instruction. judg ultimate in the trial court’s Packer, See Walker v. ment. (Tex.1992)(stating the trial clear court’s analyze apply correctly failure law II. ANALYSIS discretion). is an abuse of The trial court’s Here, instruction informed the submitting reliance on PJC 80.01 in the 51% damages, they for Bilotto to recover had bar instruction not make the instruction does responsible to find him 50% or less for his proper. Charges Texas Pattern are not injuries. essentially This instruction told the *15 Co., law. Kroger See Keetch v. jury what it do needed to to ensure Bilotto’s 276, 1990), (Tex.App. aff'd, 845 — Dallas recovery. (Tex.1992). S.W.2d 262 The Court logi- concedes PJC 80.1 is I the trial would also hold that court’s cally indistinguishable from the instruction harmful, abuse of discretion was and there impermissible Court found in Grasso. Tex.R.App. fore, 61.1(a). P. reversible. See However, the Court asserts the instruction parties hotly The record shows con does not violate Rule 277. The Court at- comparative responsibility. tested their tempts to discount Grasso because it was deliberations, During asked the trial decided before the 1988 amendments. How- “please clarify court to situation at iff ever, the additions to Rule 277 do not affect Question the end of The trial 2.” court then primary reasoning. Grasso’s The 1988 specific asked the more be language amendments did remove inquiry. reply The did not to the trial prohibiting jury informing instructions from jury’s request response. court’s for an about the effect their answers. explanation of the bar instruction and 51% argue The Court average does not subsequent 10-2 verdict Bilotto juror rule, rightfully knows the 50% so negligent suggest and H.E.B. each 50% argument seriously because that cannot heavily the instruction influenced the view, my made. is clear that the in- Young, deliberations. See Reinhart something struction this case told the (Tex.1995)(recognizingthat a S.W.2d they did riot findings they superfluous know about the likely be more instruction would making. clearly prohibits jury improperly Grasso such influence the a close ease). Therefore, an instruction. Grasso is still good supports proposition law and III. CONCLUSION juiy in this ease did more incidentally
than the'jury inform the about the allowed 51% bar instruction legal effect of their answers. to decide whether Bilotto or H.E.B. should much. The in-
“win” the case how reasonably
struction was calculated to cause .probably did cause the rendition an Tex.R.App. judgment.
improper P. Reinkart,
61.1(a); at 473. respectfully dissent. ASSOCIATION,
MacGREGOR MEDICAL
Petitioner, Individually
Margaret CAMPBELL, A.
and as Executrix Estate of
Danny Campbell, Respondent. M.
No. 97-0638.
Supreme Court of Texas.
Oct.
Rehearing Overruled March