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Paulos v. Covenant Transport2/20/2004
ll parties are entitled to have their theories of the case submitted to the jury in the court's instructions, provided there is competent evidence to support them.").
We will not address Paulos's objection to instruction twenty-three because Paulos has not preserved this issue for appeal. In fact, far from preserving his objection to this instruction, Paulos actually requested that this instruction be given to the jury. Paulos also argues that the trial court erred in giving both instructions twenty-three and twenty-six because they were duplicative and unfairly emphasized a standard of conduct Covenant was entitled to expect. Once again, however, Paulos requested that instruction twenty-six, in addition to instruction twenty-three, be given to the jury.
IV. Special Verdict Form Caption
As with instructions twenty-three and twenty-six, Paulos did not preserve this issue for appeal. When the court addressed the special verdict form caption with the parties, the court noted that the purpose of the caption was to "capture the heading as set forth in the complaint." After some dialogue, counsel for Paulos agreed that the complaint was the dispositive document. The complaint, obviously submitted by Paulos, contains the Muchas in the caption; thus, it was proper for the verdict to also contain the Muchas.
Paulos admits that he did not preserve his objections to instructions twenty-three, twenty-six, and the verdict form caption; however, he insists that the trial court plainly erred in using the instructions and caption he offered. Where Paulos submitted the instructions and invited the error (if an error does exist), the doctrine of plain error cannot be relied upon. See State v. Perdue, 813 P.2d 1201, 1206 (Utah Ct. App. 1991). "The doctrine of invited error prohibits a party from setting up an error at trial and then complaining of it on appeal." Miller v. Martineau & Co., Certified Pub. Accountants, 1999 UT App 216, , 983 P.2d 1107 (quotations and citations omitted). We therefore decline to address this argument further. See id.
V. Evidence of Paulos's Contributory Negligence
Finally, Paulos contends that the question of Paulos's contributory negligence should not have been submitted to the jury. This contention is without merit. The question of contributory negligence was properly submitted to the jury, based on the evidence that Paulos followed the vehicle ahead of him too closely. Paulos's own expert testified that, with more time, Paulos could have avoided the accident. In any event, given the verdict that Covenant was not negligent, the jury did not even reach the question of Paulos's fault.
VI. Cumulative Error
"Although [Paulos] asserts that a number of errors were committed at trial, we find none, and therefore there is no cumulative error." State v. Medina-Juarez, 2001 UT 79, , 34 P.3d 187.
CONCLUSION
For the foregoing reasons, we affirm the jury's verdict in favor of Covenant.
Russell W. Bench, Associate Presiding Judge
WE CONCUR:
James Z. Davis, Judge
Norman H. Jackson, Judge
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