Objection to Form: Compound Jury Interrogatory Voids Jury Verdicts and Results in Case Being Decided by Appellate Court
In Bourque v. Essex Insurance Company, Patricia Bourque brought a negligence suit against a contractor who remodeled her home, alleging that she was injured by a light fixture that fell from the ceiling onto her head, neck, low back, and shoulder. The contractor, Donald Lack, had installed the fixture approximately four months prior to the accident. Ms. Bourque claimed that Mr. Lack installed the fixture incorrectly and that this incorrect installation caused her accident and resulting injuries. There were two jury trials, and both juries only answered the following interrogatory:
“Do you find, by a preponderance of the evidence, that an accident occurred on or about August 19, 2002, injuring the plaintiff, Patricia Bourque?”
Both juries selected the answer “no.”
On appeal, the Louisiana Third Circuit found that this interrogatory asked the jurors two questions at once: whether an accident occurred at all, and if so, whether Ms. Bourque was injured in that accident. The court found that the answer “no” could have indicated the jury’s finding that an accident occurred but did not injure Ms. Bourque, or that no accident occurred at all. This made it impossible for the court to determine whether nine jurors concurred on any finding of fact, and thus whether either jury actually reached a verdict. The court found that this jury instruction was “plain and fundamental error,” and it decided to conduct a de novo review and render judgment on the record instead of remanding the case for a third jury trial.
The court made two preliminary findings of fact: First, that Ms. Bourque had carried her burden to prove that an accident occurred; and second, a finding regarding the way in which Mr. Lack installed the light fixture. Regarding the first finding, the court reasoned that the record showed that Bourque’s testimony was credible and that her witnesses were not interested parties to the litigation. With respect to the second finding of fact, Mr. Lack offered uncorroborated testimony that the spring-loaded toggle bolts he used to install the fixture snapped into place properly upon installation. Despite this testimony, the court reasoned that both the plaintiff’s pictures, and the expert testimony about the type of holes the falling fixture left behind, proved otherwise. For that reason, the court found that the toggle bolts did not snap into place properly when Mr. Lack installed the fixture.
To determine whether to impose liability against Mr. Lack, the Third Circuit analyzed four elements as part of a duty-risk analysis: (1) Whether Mr. Lack’s conduct was a cause-in-fact (a substantial factor) in bringing about the harm to Ms. Bourque; (2) Whether Mr. Lack owed a duty to Ms. Bourque; (3) Whether Mr. Lack breached that duty; and (4) Whether the risk and the harm caused were within the scope of the protection afforded by the duty breached.
With respect to the first element, it was undisputed that the toggle bolts not snapping into place was a cause-in-fact of the fixture falling and of Ms. Bourque’s injuries, if any injuries occurred. Regarding the second element, the court reasoned that pursuant to Article 2769 (pdf) of the Louisiana Civil Code, Mr. Lack, as a contractor, had a duty to Ms. Bourque to properly install the fixture. With respect to the third element, the court found, based on all expert and lay testimony, that Mr. Lack had employed an improper installation method for the toggle bolts and that this constituted a breach of his duty to Ms. Bourque. Regarding the fourth element, the court noted that according to the record, the purpose of toggle bolts is to keep a fixture affixed to the ceiling. Therefore, the court found that Ms. Bourque’s injuries from a falling fixture were within the scope of Mr. Lack’s duty to properly install the fixture.
The court then sought to determine what injuries Ms. Bourque proved were caused by the falling fixture. Based on the evidence in the record, the court found that Ms. Bourque had established that the accident caused severe and constant headaches, neck pain and one associated surgery, low back pain and two associated surgeries, and shoulder pain and one associated surgery. The court also found that Ms. Bourque was entitled to recover for the cost of her medical bills, her inability to work, her past and future wages and benefits, future medical costs, pain and suffering, and loss of enjoyment of life. While Ms. Bourque suffered from preexisting degenerative disc disease, the court found that she was asymptomatic prior to the accident, and so she could recover for any aggravation of her preexisting condition that the accident caused. The total of these damage awards amounted to $1,202,689.78.
Two dissenting judges found that the court should not have conducted a de novo review because the jury interrogatory was not so confusing as to constitute “plain and fundamental error” that prevented the court from understanding the juries’ intentions. Additionally, the dissenting judges expressed concern that the plaintiff never objected to the interrogatory in either trial and did not include the interrogatory in her assignments of error in her appellant’s brief. In fact, it appeared that the plaintiff may have submitted the interrogatory herself.
Take-Away: Attorneys should ensure that jury interrogatories are clear and unambiguous so that they don’t form the basis of a reversal on appeal and potentially result in an appellate court, not a jury, deciding the case.
This article was co-authored by Mirais Holden, a summer associate at Irwin Fritchie Urquhart & Moore LLC.