Pearson v. Tippmann Pneumatics, Inc.

• Citation: 642 S.E.2d 691,281 Ga. 740
• Decision Date: 19 March 2007
• Docket Number: No. S06G1139.,S06G1139.
• Parties: PEARSON et al. v. TIPPMANN PNEUMATICS, INC.
• Court: Supreme Court of Georgia

281 Ga. 740

642 S.E.2d 691

PEARSON et al. v. TIPPMANN PNEUMATICS, INC.

No. S06G1139.

Supreme Court of Georgia.

March 19, 2007.

Michael J. Warshauer, Steven Randall Thornton, Warshauer Thomas Thornton & Rogers PC, Atlanta, for appellant.

Jonathan R. Friedman, McLendon West Garrett, McKenna Long & Aldridge, LLP, Atlanta, Mark J. Hill, Philadelphia, PA, for appellee.

THOMPSON, Justice.

We granted certiorari to the Court of Appeals in Pearson v. Tippmann Pneumatics, 277 Ga.App. 722, 627 S.E.2d 431 (2006), to determine whether that court properly applied induced error in its analysis of appellants' claim of substantial error in the jury charge. See OCGA § 5-5-24(c). For the reasons that follow, we reverse.

Appellants Cody Pearson and his parents, Tamara and Andrew Pearson, filed a civil action against appellee Tippmann Pneumatics, Inc. and 16-year-old Ashton Ballesteros seeking damages for personal injuries Cody received in a shooting accident. Cody was injured when Ballesteros, mistakenly believing the safety mechanism was engaged pointed a paint ball gun at Cody and pulled the trigger, striking Cody in the eye. Appellants alleged in their complaint that the paint ball gun manufactured by Tippmann was defective and unreasonably dangerous because the gun's safety mechanism was not properly marked to indicate whether the gun was in the "safe" or "fire" position and that both Tippmann and Ballesteros had been negligent. During trial, appellants negotiated a settlement with Ballesteros, and the case went to the jury solely on the issue of Tippmann's liability.

While deliberating, the jury submitted a written question asking the court to explain proximate cause in "layman's terms" because they were "confused as to how a natural [and] continuous sequence, unbroken by other causes, is to be constru[ed]."¹ The jury attached to the note the court's original charge on proximate cause, underlining language in the charge that distinguished proximate cause from "remote" by defining proximate cause as "that which stands last in causation; not necessarily in time or place but in causal connection."

Both parties submitted proposals for a recharge, with appellants offering an instruction containing specific examples of how the actions of multiple wrongdoers both can be deemed the proximate cause of an injury. The court rejected appellants' proposed recharge, choosing instead to recharge the jury on the principles of proximate cause and joint and concurrent negligence and adding the following language:

The requirement of proximate cause constitutes a limit on legal liability. It is a policy decision that for a variety of reasons the defendant's conduct and the plaintiff's injury are too remote for the law to allow recovery. Although many legal scholars have attempted to lay down a single standard to determine proximate causation, no satisfactory universal formula has emerged. Instead proximate cause is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy, and precedent.

With that said, you've asked the Court to explain how "a natural and continuous sequence, unbroken by other causes, is to be construed by us." If subsequently to an original wrongful or negligent act a new cause has intervened of itself sufficient to stand as the sole cause of the misfortune, the original act must be considered as too remote. If the cause is too remote, it was not the proximate cause.

The jury returned a special verdict finding Tippmann was negligent but that its negligence was not the proximate cause of Cody's injuries.

On appeal, appellants argued, inter alia, that the trial court erred by failing to accurately recharge the jury on the legal issues of proximate cause and foreseeabilty of an intervening act. The Court of Appeals did not address this enumeration of error on the merits. Instead, that court held that appellants waived the issue for appeal by failing to object to the court's recharge on this ground and that appellate review under OCGA § 5-5-24(c) was not required because any alleged error was invited by appellants' failure to object. See OCGA § 5-5-24(a) (no party may complain of giving or failure to give instruction unless he objects thereto before jury returns its verdict); OCGA § 5-5-24(c) (appellate courts shall "review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made").

1. Appellants first argue that the Court of Appeals erred by holding that they waived their OCGA § 5-5-24(c) challenge to the trial court's recharge under the doctrine of induced error. A party in a civil case generally must present written requests for jury instructions and complain of the giving or failure to give an instruction before the jury returns its verdict in order to preserve the issue for appeal. OCGA § 5-5-24(a), (b). Notwithstanding subsections (a) and (b), OCGA § 5-5-24(c) creates a substantial error exception and provides that even where there has been no objection to the charge as given, an appellate court may reverse a case because of an erroneous charge that is harmful as a matter of law.

The Court of Appeals in this case determined that appellants waived their objection to the trial court's recharge on proximate cause and intervening acts by failing to except to the recharge. The Court of Appeals also declined to reach the merits of appellants' argument that the trial court's incomplete charge fell within the rare exception to which OCGA § 5-5-24(c) applies, holding instead that appellants induced the error by failing to object. As correctly recognized by the Court of Appeals, induced error based on a charge specifically requested by counsel or the acquiescence of counsel in the giving of a charge provides no ground for reversal under OCGA § 5-5-24(c). See Moody v. Dykes, 269 Ga. 217, 496 S.E.2d 907 (1998); Thomas v. State, 245 Ga. 688(6), 266 S.E.2d 499 (1980). In this case, however, the "induced error" consisted solely of appellants' alleged failure to request specific language which would have made the recharge accurate and to object to the absence of an...