The Fort Worth Court of Appeals issued a couple of opinions in Young v. Thota addressing an alleged jury charge error.  In this medical negligence case, the alleged charge error relates to whether the trial court should have submitted an issue asking whether the plaintiff was contributorily negligent or whether the plaintiff’s acts raised mitigation of damages questions.  The majority concludes that it was error to submit the plaintiff’s contributory negligence, while the dissent argues that it was proper to submit the question.  This discussion in itself may merit further review.

Perhaps the more interesting disagreement between the majority and the dissent relates to the analysis of harmful error.  The majority concludes that harm occurred because of the submission of an improper contributory negligence question along with an improper inferential rebuttal instruction on new and independent cause.  The dissent argues that it is clear that if any error occurred, it was not harmful.  The dissent points to the negligence question in which the negligence of Dr. Thota and Ronnie Young were submitted in the same question, but with two separate answers.  Because the jury found no negligence attributable to Dr. Thota and found Young negligent, the dissent concludes there was no commingling so as to trigger a presumed harm analysis.  The Court’s opinions may be found at this link