H.E. Butt Grocery Company, Petitioner

Vinnie Bilotto, Respondent

Justice Baker, joined by Justice Enoch and Justice Owen, dissenting.

A trial court must submit charge instructions in compliance with Rule 277. See Tex. R. Civ. P. 278; see also Gulf Coast State Bank v. Emenhiser , 562 S.W.2d 449, 452-53 (Tex. 1978). "The trial court may predicate the damage question or questions upon affirmative findings of liability." Tex. R. Civ. P. 277. Today the Court asserts that this language from Rule 277 determines the outcome of this case. Having said that, the Court rushes headlong to its preordained conclusion that Rule 277 expressly authorizes the instruction the trial court gave in this case. Accordingly, the Court holds the trial court did not err in giving the instruction. ___ S.W.2d ___.

I believe the Court focuses on the wrong part of Rule 277. The rule also states:

The Court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers, but the Court's charge shall not be objectionable on the ground that it incidently constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers when it is properly a part of an instruction or definition.

Tex. R. Civ. P. 277. By ignoring the prohibition against advising the jury of the effect of its answers, the Court erroneously concludes that the charge in this case does not violate Rule 277. Accordingly, I dissent.

I. JURY INSTRUCTIONS

The jury's concern is to find disputed facts, rather than to achieve a particular result. See Emenhiser , 562 S.W.2d at 453. The trial court's charge need not and should not burden the jury with surplus instructions. See Acord v. General Motors Corp. , 669 S.W.2d 111, 116 (Tex. 1984). This is so even though an instruction may be a correct statement of law. See Acord , 669 S.W.2d at 116. This Court has treated surplus instructions to the charge as impermissible comments that tilt or nudge the jury one way or the other. See Lemos v. Montez , 680 S.W.2d 798, 801 (Tex. 1984); Acord , 669 S.W.2d at 116; Emenhiser , 562 S.W.2d at 453.

We first approved instructions conditioning damages findings on an affirmative liability finding in Grieger v. Vega, 271 S.W.2d 85 (Tex. 1954). In Grieger , the charge instructed the jury to answer the damages question only if it found the defendant's conduct wrongful. See Grieger , 271 S.W.2d at 86. The Court held that this instruction did not violate the longstanding rule against informing the jury of the legal effect of their answers. The Court observed that any juror of ordinary intelligence would know that a defendant does not owe a plaintiff damages unless the defendant is liable for the plaintiff's injuries. See Grieger , 271 S.W.2d at 87. In 1988 the Court amended Rule 277 to expressly permit instructions conditioning damages on a liability finding. See Tex. R. Civ. P. 277.

However, Rule 277 does not permit conditioning damages on a finding of a certain percentage of comparative negligence. A jury's answer to the comparative negligence question is not a "finding of liability" under Rule 277. Instead, a finding of comparative negligence greater than 50% is a finding of an affirmative defense to liability. See Tex. R. Civ. P. 94; Lawson v. Estate of McDonald, 524 S.W.2d 351, 355 (Tex. Civ. App.--Waco 1975, writ ref'd n.r.e.). We held in Grasso that conditioning damages on a negative finding of contributory negligence impermissibly tells the jury the legal effect of their answers. See Grasso v. Cannon Ball Motor Freight Lines , 81 S.W.2d 482, 487 (Tex. 1935). Although Grasso involved contributory negligence as an absolute bar to a plaintiff's recovery instead of the current 51% bar, Grasso's reasoning applies here. The law of contributory negligence is not within the realm of an ordinary juror's knowledge. See Grieger, 271 S.W.2d at 87 (approving conditioning damages on a finding of liability and distinguishing Grasso); Finck Cigar Co. v. Campbell, 133 S.W.2d 759, 760 (Tex. 1939)(approving conditioning damages on a finding of liability and distinguishing Grasso). This is true whether the bar to recovery is at 1% or 51% and whether it is called "contributory negligence," "comparative negligence," "comparative responsibility," or "proportionate responsibility." Instructing the jury on the legal effect of a plaintiff's percentage of responsibility is more than "incidental"--it impermissibly allows the jury to determine the plaintiff's ultimate recovery in the trial court's judgment.

II. ANALYSIS

Here, the instruction informed the jury that for Bilotto to recover damages, they had to find him 50% or less responsible for his injuries. This instruction essentially told the jury what it needed to do to ensure Bilotto's recovery.

The Court concedes that PJC 80.1 is logically indistinguishable from the instruction the Court found impermissible in Grasso . However, the Court asserts the instruction does not violate Rule 277. The Court attempts to discount Grasso because it was decided before the 1988 amendments. However, the additions to Rule 277 do not affect Grasso 's primary reasoning. The 1988 amendments did not remove the language prohibiting jury instructions from informing jurors about the legal effect of their answers. The Court does not argue that the average juror knows the 50% rule, and rightfully so because that argument cannot seriously be made. In my view, it is clear that the instruction in this case told the jury something they did not know about the findings they were making. Grasso clearly prohibits such an instruction. Therefore, Grasso is still good law and supports the proposition that the jury instruction in this case did more than incidentally inform the jury about the legal effect of their answers.

There are also policy reasons why the trial court should not condition damage findings on a finding that a plaintiff is no more than 50% negligent. That bar to recovery is only one part of a comprehensive legislative comparative negligence scheme. Without question, such an instruction provides the jury with information they can use to thwart legislative policy. Clearly, if the trial court instructs the jury on how the comparative fault system operates, then the jury can adjust its answers accordingly. This instruction to the jury is a surplus instruction that is an impermissible comment that tilts or nudges the jury one way. See Lemos , 680 S.W.2d at 801; Acord , 669 S.W.2d at 116.

For these reasons, I would hold that the trial court abused its discretion by overruling H.E.B.'s objection to the 51% bar instruction. See Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992)(stating that the trial court's clear failure to analyze or apply the law correctly is an abuse of discretion). The trial court's reliance on PJC 80.01 in submitting the 51% bar instruction does not make the instruction proper. Texas Pattern Jury Charges are not law. See Keetch v. Kroger Co., 845 S.W.2d 276, 281 (Tex. App.--Dallas 1990), aff'd , 845 S.W.2d 262 (Tex. 1992).

I would also hold that the trial court's abuse of discretion was harmful, and therefore, reversible. See Tex. R. App. P. 61.1(a). The record shows that the parties hotly contested their comparative responsibility. During deliberations, the jury asked the trial court to "please clarify the if/or situation at the end of Question 2." The trial court then asked the jury to be more specific in its inquiry. The jury did not reply to the trial court's response. The jury's request for an explanation of the 51% bar instruction and their subsequent 10-2 verdict finding Bilotto and H.E.B. each 50% negligent suggest that the instruction heavily influenced the jury's deliberations. See Reinhart v. Young , 906 S.W.2d 471, 473 (Tex. 1995)(recognizing that a superfluous instruction would be more likely to influence the jury improperly in a close case).

III. CONCLUSION

The 51% bar instruction allowed the jury to decide whether Bilotto or H.E.B. should "win" the case and by how much. The instruction was reasonably calculated to cause and probably did cause the rendition of an improper judgment. See Tex. R. App. P. 61.1(a); Reinhart , 906 S.W.2d at 473.

I respectfully dissent.

____________________________

James A. Baker,

Justice

OPINION DELIVERED: July 14, 1998