Although it has been twelve years since the Supreme Court decided Crown Life Ins. Co. v. Casteel, lower courts and litigants still struggle with its application in some circumstances. Today, the Court held that Casteel's presumed harm analysis does not apply to a single-liability-theory question that also includes an answer blank for contributory negligence and inferential rebuttal instructions. The Court's opinion in Thota v. Young, No. 09-0079, is available here.
In this medical malpractice case, the trial court submitted a single liability question that asked the jury whether either the doctor or the patient was negligent. The question also included inferential rebuttal instructions on unavoidable accident and new-and-independent cause. The plaintiff objected to the submission of contributory negligence and the inferential rebuttal instructions. The jury found that the doctor was not negligent and that the patient was negligent.
The court of appeals held that the trial court abused its discretion by including the question on contributory negligence and the instruction on new and independent cause. The court of appeals then held that harm should be presumed under Casteel, distinguishing the case from Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753 (2006) (holding that Casteel's presumed harm analysis does not apply to inferential rebuttal instructions). The court of appeals reasoned that the difficulty in this case arose from the combination of the improper instruction and the improper submission of contributory negligence.
The Supreme Court first held that Casteel error can be preserved without specifically mentioning Casteel or complaining about broad-form submission. Because the plaintiff's complaint was that the contributory-negligence question and the inferential-rebuttal questions should not have been submitted at all, "Young did not have to cite or reference Casteel specifically to preserve the right for the appellate court to apply the presumed harm analysis, if applicable, to the disputed charge issues."
But the Supreme Court then found that the court of appeals should not have applied the presumed harm analysis at all. The Court first noted that there was no Casteel-type difficulty created by the submission of the contributory-negligence question because there were two answer blanks in the question. In other words, it is clear what the jury found on both liability theories because they had to answer each theory separately. The Court then reaffirmed its holding in Urista that inferential-rebuttal instructions are not subject to Casteel because the solution to Casteel error is to granulate the submission, but inferential rebuttals cannot be submitted as separate questions. Finally, the court rejected the argument that the combination of the question and the instruction implicated the concerns present in Casteel.
-- Rich Phillips, Thompson & Knight
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