No Harm, No Foul

No Harm, No Foul: Error will not be presumed in a single-theory-of-liability jury charge including an improper theory of contributory negligence and an improper inferential rebuttal instruction.

Generally, an appellate court will not reverse because of error in the charge unless it probably caused the rendition of an improper judgment. But reversible error is presumed when a broad-form question submitted to the jury:

includes multiple theories of liability, one or more of which is invalid, Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 398 (Tex. 2000); or commingles valid and invalid elements of damages for which there is no evidence. Harris County v. Smith, 96 S.W.3d 230, 233-34 (Tex. 2002). This is so because an appellate court cannot determine whether the improperly submitted theories or damages form the sole basis of the jury's findings thereby depriving the complaining party of meaningful appellate review. The cure is to granulate the submission.

Conversely, though, because an inferential rebuttal issue cannot be submitted as a separate question and instead must be presented by instruction, when an erroneous inferential rebuttal instruction is submitted, error cannot be presumed. Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753 (2006).

So what happens when a single broad-form issue contains both an improper theory of liability and an improper inferential rebuttal issue? Is error presumed or does the court apply the traditional harmful error analysis?

That was the issue in Thota v. Young, 55 Tex. Sup. Ct. J. 671 (May 11, 2012). There, a patient's widow sued a doctor for malpractice when an artery torn during a catheterization resulted in her husband's death. The doctor alleged that the patient's injuries resulted from the patient's own negligence or a new and independent cause and counterclaimed for contribution due to the patient's failure to mitigate.

The charge included one broad-form question as to a single theory of liability:

"Did the negligence, if any, of those named below proximately cause the injury in question?" Answer "Yes" or "No". Doctor Patient

Accompanying the question were definitions of ordinary care, proximate cause and new and independent cause.

The jury answered "No" as to the doctor and "Yes" as to the patient. The trial court entered judgment that the widow take nothing.

The court of appeals reversed. In its view, it was error to submit an issue as to the patient's contributory negligence because the patient's...