Cobb v. Hansen

• Decision Date: 18 August 2022
• Docket Number: 05-19-01327-CV
• Parties: JOSEPH COBB, Appellant v. RONALD HANSEN AND LISA HANSEN, Appellees
• Court: Texas Court of Appeals

JOSEPH COBB, Appellant
v.
RONALD HANSEN AND LISA HANSEN, Appellees

No. 05-19-01327-CV

Court of Appeals of Texas, Fifth District, Dallas

August 18, 2022

On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-06461

Before Justices Molberg, Reichek, and Nowell

MEMORANDUM OPINION

KEN MOLBERG, JUSTICE

Appellant Joseph Cobb appeals a take-nothing judgment entered after a jury trial on his claims for personal injuries he sustained when appellees Ronald and Lisa Hansen's gas pizza oven exploded as Cobb lit it at Lisa Hansen's request. On appeal, Cobb argues the trial court erred by refusing to submit to the jury a requested broad-form general negligence question. For the reasons below, we reverse the judgment in part and remand for a new trial on Cobb's negligent activity claim based on Lisa Hansen's request that he light the oven, and on his claims the Hansens were negligent

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in failing to render aid to him following his injuries. As to all other claims, we affirm the judgment in this memorandum opinion. See Tex. R. App. P. 47.4.

I. BACKGROUND

On May 30, 2014, appellant Joseph Cobb was burned while lighting a natural gas pizza oven at the home of appellees Ronald and Lisa Hansen. Cobb sued the Hansens and others in connection with this event. Cobb later non-suited his claims against the others, and his claims against the Hansens were tried to a jury.

At the time of trial, Cobb's live pleading asserted the Hansens were negligent under theories of premises liability and general negligence involving what Cobb characterizes as a negligent activity claim involving Lisa Hansen's request that he light the pizza oven, and a claim against Ronald and Lisa Hansen for failure to render aid in the face of injuries he sustained when lighting the oven.

For premises liability, Cobb asserted the oven on the Hansens' premises posed an unreasonable risk of harm that the Hansens knew or reasonably should have known of; the Hansens had a duty to ensure the premises did not present a danger to him, an invitee; the Hansens breached that duty by failing to disclose their fear of the oven's gas system, failing to warn him that the oven was dangerous, and/or failing to instruct or fully instruct him in the manner to safely turn on the gas and light the oven; and their breaches of that duty directly and proximately caused his injuries.

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For negligent activity, Cobb alleged his injury was the direct and proximate result of the Hansens' ongoing action, not a premises condition-specifically, their decision to continue using the pizza oven and to ask him to light it. For general negligence, Cobb alleged the Hansens owed him a duty of reasonable care and disclosure; should have properly installed the oven, equipped it with safety features, explained its operation, instructed him in how to light it, and warned him of any dangers in lighting or operating it; and their breaches of that duty directly and proximately caused his injuries. The claim also encompassed the allegation that the Hansens were negligent in failing to render aid.

Both sides filed proposed jury instructions which, although not identical, included many of the same or similar questions, definitions, and instructions. As to the proposed liability questions included in the parties' filings, Cobb's filing contained a premises liability question based on an invitee status, while the Hansens' filing included a broad-form negligence question from PJC 4.1 and several definitions and instructions, including one defining negligence in terms of the Hansens' status as premises owners and another defining negligence for Cobb and Lisa Hansen in terms of general negligence.^[1]

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In addition to those filings, the record also reveals that during trial, Cobb provided the trial court with a written request for a broad-form negligence question under Texas Pattern Jury Charge (PJC) 4.1,^[2] but he did not file it before the charge was submitted to the jury. During the charge conference, the parties' counsel argued their respective positions on Cobb's request for a broad-form general negligence question under PJC 4.1., and over Cobb's objection, the trial court refused to provide the question.

Instead, as to liability, the trial court submitted to the jury only the premises liability question for a licensee under Texas Pattern Jury Charge 66.5.^[3] Thus, the jury was asked, and answered, as follows:

QUESTION 1

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

With respect to the condition of the premises, RONALD HANSEN or LISA HANSEN was negligent if -

1.the condition of the pizza oven gas pipe posed an unreasonable risk of harm, and

2.RONALD HANSEN or LISA HANSEN had actual knowledge of the danger, and

3.JOSEPH COBB did not have actual knowledge of the danger; and

4.RONALD HANSEN or LISA HANSEN failed to exercise ordinary care to protect JOSEPH COBB from the danger, by both failing to adequately warn JOSEPH COBB of the condition and failing to make that condition reasonably safe.

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

RONALD HANSEN NO

LISA HANSEN NO

JOSEPH COBB NO

Based on the jury's responses, the court entered a take-nothing judgment on August 2, 2019. Cobb filed various post-trial motions, including a motion for a new trial. In his motion for new trial, he argued, in part, that the trial court erred in denying his request for a general negligence instruction as requested because evidence was presented at trial proving Cobb's injury occurred as a result of the Hansens' negligent activity at the time of the injury and because evidence was presented proving the Hansens were negligent when they failed to reasonably render aid once they had caused the injury.

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The trial court denied Cobb's motion for new trial, and Cobb timely appealed. On appeal, he argues the trial court erred by refusing to submit to the jury his requested broad-form negligence question under PJC 4.1, and he asks that we reverse the judgment and remand for a new trial on his general negligence claims against the Hansens, which include his claims of active negligence in requesting him to light the pizza oven and failure to render aid.

II. APPLICABLE LAW

A trial court must, when feasible, submit a cause to the jury by broad-form questions. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 855 (Tex. 2009) (citing Tex.R.Civ.P. 277). It may not be feasible to submit a single broad-form liability question that incorporates wholly separate theories of liability. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000). If the trial court is unsure whether to submit a particular liability theory, separating liability theories "best serves the policy of judicial economy underlying Rule 277 by avoiding the need for a new trial when the basis for liability cannot be determined." Id.

We review alleged error in the court's charge for abuse of discretion. Hawley, 284 S.W.3d at 856. One way a trial court abuses its discretion is by failing to follow guiding rules and principles. Id. (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998)).

If matters are timely raised and properly requested for a trial court's charge to the jury, a judgment "cannot be permitted to stand when a party is denied proper

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submission of a valid theory of recovery or a vital defensive issue raised by the pleadings and evidence." Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex. 1992) (per curiam) (citations omitted).

Under civil procedure rule 278, "The court shall submit the questions, instructions, and definitions . . . which are raised by the written pleadings and the evidence." See Tex. R. Civ. P. 278. This is a "substantive, non-discretionary directive to trial courts requiring them to submit requested questions to the jury if the pleadings and any evidence support them." Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992) ("trial court may refuse to submit an issue only if no evidence exists to warrant its submission") (citing Brown v. Goldstein, 685 S.W.2d 640, 641 (Tex.1985)).

To determine whether legally sufficient evidence supported submission of a question that was not submitted, we "must examine the record for evidence supporting the question and ignore all evidence to the contrary." See id. (citations omitted). Relying on Elbaor, one of our sister courts explained the applicable review standards in this manner:

The trial court is obligated to submit a question on a controlling issue if evidence to support the submission amounts to more than a scintilla. Elbaor, 845 S.W.2d at 243. To determine if a trial court erred in refusing to submit requested questions, we must view the evidence as if the trial court had instructed a verdict against the party seeking the submission. Id.; Phillips Pipeline Co. v. Richardson, 680 S.W.2d 43, 48 (Tex. App.-El Paso 1984, no writ). We consider the evidence in the light most favorable to the party whose questions were refused; if

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there is conflicting probative evidence in the record, the questions are for determination by the jury. Elbaor, 845 S.W.2d at 243.

Cunningham v. Haroona, 382 S.W.3d 492, 506-07 (Tex. App.-Fort Worth 2012, pet denied).

A party objecting to a charge "must point out distinctly the objectionable matter and the grounds for the objection." Tex.R.Civ.P. 274; Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007). Any complaint as to a question on account of any defect, omission, or fault in pleading is waived unless specifically included in the objections. Tex.R.Civ.P. 274.

Under rule 278, we will not reverse a judgment for failure to submit a question "unless its submission, in substantially correct wording,^[4] has been requested in writing and tendered by the party complaining of the judgment; provided,...