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Oliveaux v. St. Francis Medical Center12/15/2004
whole, the jury charge presented the issues in such an unclear and unbalanced fashion that de novo review is required. Bujol v. Entergy Services Inc., 2003-0492 (La. 5/25/04), ___ So. 2d ___, rehearing granted (La. 10/29/04). He concedes that he made no contemporaneous objection to errors (A) and (B), but urges that under the circumstances, he had no opportunity to object. Smith v. Tiblier, 374 So. 2d 685 (La. App. 4 Cir.), writ denied, 375 So. 2d 646 (1979). He also argues that contemporaneous objection is not strictly required "when jury instructions or interrogatories contain a 'plain and fundamental' error." Chatelain v. Rabalais, 04-28 (La. App. 3 Cir. 7/7/04), 877 So. 2d 324.
St. Francis submits that Oliveaux failed to object to errors (A) and (B); Dr. Perkins urges that he also failed to object to error (D); thus they argue these issues are waived. La. C.C.P. art. 1793 C; Kose v. Cablevision of Shreveport, 32,855 (La. App. 2 Cir. 4/5/00), 755 So. 2d 1039, writ denied, 2000-1177 (La. 6/16/00), 764 So. 2d 964. St. Francis further argues that even without waiver, the jury charge adequately and fairly addressed the issues and provided the correct principles of law for the jury's consideration. Smart v. Kansas City Southern R., 36,404 (La. App. 2 Cir. 11/6/02), 830 So. 2d 581, and citations therein.
On this record, we find no waiver. Before trial, Oliveaux filed a brief on the issue of damages recoverable in a wrongful death and survival case.
On the final day of jury selection, December 11, he filed requested jury charges which included the allocation of fault between negligent and intentional tortfeasors. After the parties rested on December 17, the court held an off-the-record 41/2 -hour charge conference. It is not clear what objections were raised in the conference or when the court gave its final charge to counsel. The next morning, December 18, the parties gave closing arguments and the court charged the jury. After the jury retired, the court allowed counsel to state objections for the record. Because of Oliveaux's timely written motions and the lack of a transcript of the charge conference, we are satisfied that counsel preserved all the assigned errors for appeal.
(A) Allocation of fault. Oliveaux contends the district court refused to specifically instruct the jury that fault can be apportioned between negligent and intentional tortfeasors. Without citation of authority, he submits that this omission, in and of itself, constitutes reversible error.
The court charged the jury as follows:
In a negligence action, the plaintiff must also show that the defendant's conduct caused or was a substantial factor in her injury . Plaintiff need not show that defendant's conduct was the only cause of the harm. Nor must he negate all other possibilities. Rather, he must show by a preponderance of the evidence, or more probably than not, that he suffered the injury because of the defendant's conduct.
Under the law, you must decide whether any other person or entity, even if not a party to this lawsuit, was at fault, and if so, whether such fault was a legal cause of plaintiff's damages.
If such fault was a cause of plaintiff's damages, you must determine the degree of such fault, expressed as a percentage. Although this charge does not explicitly direct the jury to apportion fault between negligent and intentional tortfeasors, it expresses the basic concept of La. C.C. art. 2323 A:
In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the
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