Thomas Carnival, Inc. and Paul Atkins v. Robert Lutkins ( 1993 )

Carnival v. Lutkins IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-91-573-CV





THOMAS CARNIVAL, INC. AND PAUL ATKINS,

APPELLANTS

vs.





ROBERT LUTKINS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 479,006, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

Robert Lutkins, appellee, sued Thomas Carnival, Inc. ("Carnival") and Paul Atkins, appellants, for personal injuries he sustained while on an amusement-park slide owned by Atkins and located in an amusement park operated by Carnival. After a jury trial, the trial court rendered judgment on the verdict, awarding Lutkins $170,000 in damages. Both Carnival and Atkins appeal from this judgment. Carnival raises six points of error and Atkins raises four complaining of the trial court's jury charge and the legal and factual sufficiency of the evidence. ⁽¹⁾ We will affirm.

BACKGROUND

On April 2, 1989, Lutkins, his daughter, Mary Helen, and a friend, James David Phillips, attended a traveling carnival. While there, Lutkins and his daughter rode one of the amusement rides, the "Super Slide." The slide, owned and operated by Atkins, is a large yellow fiberglass structure consisting of sections that are assembled and disassembled periodically. Carnival was the occupier of the premises, and Carnival and Atkins had agreed that Carnival patrons could purchase tickets for use at Atkins's slide.

Lutkins purchased a ticket for the Super Slide. While descending the slide with his daughter, Lutkins injured his hand and wrist; that injury formed the basis of this lawsuit. In answer to a general negligence charge, the jury found that Carnival and Atkins had been negligent, which negligence had proximately caused Lutkins's injuries; that the negligence attributable to Carnival and Atkins was fifty percent each; and that Lutkins had sustained $170,000 in damages. The trial court rendered judgment in accordance with the verdict.

DISCUSSION

Both appellants complain in their first points of error that the trial court erred in submitting the case to the jury under a general negligence charge instead of a premises-liability charge. Neither argues that the charge was improper for a general negligence claim. Rather, they assert that the charge was improper because Lutkins's claim was a premises-liability claim and that the court erred in submitting the case as if it were a general negligence claim.

We will assume arguendo that Lutkins's claim was in fact a premises-liability claim. ⁽²⁾ The first question submitted to the jury asked:

Did the negligence, if any, of those named below proximately cause the occurrence in question?

Answer "Yes" or "No" for each of the following:

(a) Thomas Carnival Inc.

(b) Paul Atkins

(c) Robert Lutkins

Both appellants argue that this broad-form general negligence submission was inappropriate in the context of a premises-liability claim. They contend that the trial court should have submitted separate issues to the jury based on the four elements required by the Texas Supreme Court in Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983), to establish a premises-liability claim: "(1) that [the defendant] had actual or constructive knowledge of some condition on the premises; (2) that the condition posed an unreasonable risk of harm to [the plaintiff]; (3) that [the defendant] did not exercise reasonable care to reduce or eliminate the risk; and (4) that [the defendant's] failure to use such care proximately caused [the plaintiff's] personal injuries." Id. at 296.

In Keetch v. The Kroger Company, 36 Tex. Sup. Ct. J. 273, 276 (Dec. 2, 1992), the supreme court specifically identified the appropriate jury charge in the context of a premises-liability claim. The court stated that a general negligence question such as Pattern Jury Charge 66.04 "is a correct broad form premises liability question." See also 3 State Bar of Texas, Texas Pattern Jury Charges PJC 66.04 (1990). The court stressed, however, that "appropriate instructions in a premises liability case must incorporate the four Corbin elements." Keetch, 36 Tex. Sup. Ct. J. at 276 (emphasis added). In the present case, jury question one tracked Pattern Jury Charge 66.04 exactly. However, no instructions were submitted incorporating the four Corbin elements. Accordingly, the charge was improper for a premises-liability claim.

The complained-of error was the failure to include necessary instructions. In order to preserve error on appeal, appellants must, of course, comply with the relevant Texas Rules of Civil Procedure. Where a court has omitted an instruction from the charge, Rule 278 requires that, in order to preserve the error for appellate review, the complaining party must request the desired instruction in writing and in substantially correct form. Tex. R. Civ. P. 278; see also Woods v. Crane Carrier Co., 693 S.W.2d 377, 379 (Tex. 1985) (interpreting substantially similar language formerly included in Tex. R. Civ. P. 279); Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 809 S.W.2d 514, 521 (Tex. App.--San Antonio 1991), rev'd on other grounds, 36 Tex. Sup. Ct. J. 13 (October 7, 1992). In addition, Rule 273 requires that a party present such request "within a reasonable time after the charge is given to the parties or their attorneys for examination." Tex. R. Civ. P. 273.

Neither appellant complied with these rules. Atkins never requested the desired instructions in writing, as required by Rule 278. Accordingly, he waived the right to complain about this error on appeal. Carnival did not submit to the trial court a written request for instructions until after the charge was read to the jury. Accordingly, we conclude that Carnival, too, waived the right to complain about this error on appeal. See Governing Bd. v. Pannill, 659 S.W.2d 670, 681 (Tex. App.--Beaumont 1983, writ ref'd n.r.e.). ⁽³⁾

Appellants argue that their objections prior to submission to the jury were sufficient to preserve error. We disagree. Error can be preserved by objection alone where an instruction is submitted but is defective. See Moulton v. Alamo Ambulance Serv., Inc., 414 S.W.2d 444, 449-50 (Tex. 1967). Under the facts of the present case, however, a defective instruction was not submitted to the jury; rather, no instruction whatsoever was submitted. Accordingly, the well-established rule regarding omitted instructions applies: a party must request the desired instruction in writing and in substantially correct form or the complaint is waived. Tex. R. Civ. P. 278.

Appellants also rely on State Department of Highways & Public Transportation v. Payne, 838 S.W.2d 235 (Tex. 1992), for the proposition that an objection is sufficient to preserve error. The Payne case, however, is distinguishable. There, the court was addressing the proper method for preserving error regarding an omitted question in the jury charge. The court noted that the rules for preserving error with respect to omitted questions are often confusing and contradictory and, as a result, even an experienced trial attorney may be confused as to whether the proper procedure is to object to the omission or request the question in substantially correct form. The court's criticism was appropriate.

The issue in the present case, however, is the proper method for preserving error regarding an omitted instruction. Unlike the rule for omitted questions, the rule for preserving error as to omitted instructions is clear: "Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment." Tex. R. Civ. P. 278 (emphasis added). Rule 278 requires that the party complaining of an omitted instruction make the trial court aware of the omission by requesting such instruction in writing and in substantially correct form. This rule does not give a party the option to object or request depending on which party has responsibility for submission of an issue, as is the case with omitted questions; rather, the plain language of Rule 278 requires a party to request an instruction in writing and in substantially correct form in all circumstances. See generally C.R. Watson, Jr., The Court's Charge, in State Bar of Texas, Advanced Civil Appellate Practice Course B-7 (1992). Accordingly, because procedural rules are not revised by opinion, we conclude that a party must request an instruction in writing and in substantially correct form in order to preserve error on appeal. Because neither appellant timely complied with that aspect of Rule 278 in the present case, they did not preserve their complaint in this regard. We overrule appellants' first points of error.

In their second points of error, both appellants complain that the trial court erred in granting judgment for Lutkins because there were no jury findings on the four Corbin elements. However, as we concluded above, appellants failed to preserve error as to the trial court's failure to include the Corbin elements in the instructions of the charge. The case was submitted under a general negligence theory, and the jury found that appellants were negligent. We overrule appellants' second points of error.

Carnival complains in its third and fourth points of error that the evidence is legally and factually insufficient to support a jury finding that it was negligent under a premises liability theory. Again, however, Carnival failed to preserve its complaint that the trial court erred in submitting the case under a general negligence theory rather than a premises-liability theory. Accordingly, we overrule Carnival's third and fourth points of error.

Carnival complains in its fifth and sixth points of error that, even under a general negligence theory, the evidence is legally and factually insufficient to support the jury's findings that Carnival was negligent and that such negligence was the proximate cause of Lutkins's injuries. Similarly, Atkins complains in his third and fourth points of error that the evidence is factually insufficient to support a general negligence finding. We disagree.

In deciding a legal sufficiency point, we must consider only the evidence and inferences tending to support the findings of the trier of fact and disregard all evidence and inferences to the contrary. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex. 1986), cert. denied, 111 S. Ct. 135 (1990); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). In deciding a factual sufficiency point, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951).

Under the common-law doctrine of negligence, three elements must be established: "1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately resulting from the breach." Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). The existence of a legal duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Id. Appellants do not deny that they owed a duty of care to Lutkins. Atkins owed a duty to exercise ordinary care as the owner and operator of the slide; Carnival owed the same duty of care because of its status as owner or occupier of the land. See Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex. 1985); Scroggins v. City of Harlingen, 112 S.W.2d 1035, 1041 (Tex. 1938); Lewis v. Great Southwest Corp., 473 S.W.2d 228, 230 (Tex. Civ. App.Ft. Worth 1971, writ ref'd n.r.e.); see also 4 Am. Jur. 2d Amusements and Exhibitions § 64 (1962).

With respect to the issue of breach of duty, the evidence was legally and factually sufficient to establish negligence. Phillips, Lutkins's friend, testified at trial that the slide "didn't look like it fit right. . . . It looked like [the sections of the slide] had a buckle where one overlapped the other in the wrong direction." In addition, at trial Lutkins introduced several pictures of the slide that showed cracks, crevices, and an unpadded, unprotected metal structural brace on the surface of the slide; he testified that all the pictures introduced accurately reflected the appearance of the slide at the time of his injury. Neither appellant introduced evidence to contradict this testimony. Failure either to properly assemble the slide or to maintain the slide in a safe condition constitutes some evidence demonstrating a breach of duty. We conclude that the evidence presented at trial was legally sufficient to establish negligence. Further, after reviewing all the evidence, we conclude that the jury's finding of negligence was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

In addition, the evidence presented was legally and factually sufficient to establish that appellants' negligence was the proximate cause of Lutkins's injuries. Proximate cause consists of two elements: foreseeability and cause-in-fact. Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex. 1988). Foreseeability means that a person of ordinary intelligence would have anticipated the danger of such act; however, the actor need not foresee the particular injury that in fact occurs. Id. The uncontradicted testimony at trial suggested that the slide was improperly assembled and was not maintained in a safe condition. A person of ordinary intelligence would have anticipated danger from the existence of either circumstance. We conclude that the evidence is legally sufficient to establish the foreseeability element of proximate cause.

Cause-in-fact means that the negligent act at issue was a substantial factor in producing the injury and that no harm would have resulted without such negligence. Id. Lutkins testified that he had a conscious recollection of his finger getting caught "in some crack somewhere" on the slide. This testimony constitutes some evidence that the defect in the slide was a substantial factor in producing Lutkins's injury; we conclude, therefore, that such evidence is legally sufficient to establish the cause-in-fact element of proximate cause.

Further, after reviewing all the evidence, we conclude that the jury's finding of proximate cause was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Accordingly, we overrule Carnival's fifth and sixth points of error and Atkins's third and fourth points of error.

We affirm the judgment of the trial court.

J. Woodfin Jones, Justice

[Before Chief Justice Carroll, Justices Jones and B. A. Smith]

Affirmed

Filed: January 13, 1993

[Do Not Publish]

1. Atkins raised a fifth point of error in his brief to this Court asserting that Lutkins's claims were barred by limitations. However, this point was subsequently withdrawn by letter dated March 11, 1992.

2. Because we decide this point of error on procedural grounds, we find it unnecessary to determine under which of the two theories the case should have been submitted.

3. However, even if Rule 273 allows a request to be presented after the charge is read to the jury, such request must still be submitted within a "reasonable time" after it is given to the parties or their attorneys for examination. Carnival did submit requested instructions in writing to the trial court; however, its request was submitted at least six days after the charge was given to Carnival for examination.

Although the record is unclear exactly when the parties were provided with the charge for examination, all parties clearly had the opportunity to review the charge by the morning of Wednesday, August 28, 1991. The jury rendered its verdict on Thursday, August 29. Carnival did not submit its requested instruction until Tuesday, September 3. We conclude, as a matter of law, that this time span exceeded the "reasonable time" allowed by Rule 273.