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Setliff v. Littleton12/15/2003
ule codified at OCGA § 5-5-24 (c). We disagree. OCGA § 5-5-24 (a) mandates that litigants in civil trials must distinctly state their grounds for objecting to the trial court's giving or refusing to give a jury charge. Subsection (c) of OCGA § 5-5-24 authorizes an exception to this rule of law only "where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not." To avoid emasculating the rule that civil litigants must distinctly state their grounds for objection, this Court has held that OCGA § 5-5-24 (c) "must be strictly construed" and that instances in which subsection (c) applies are "rare." Gray v. Elias. "To constitute harmful error within the meaning of this subsection, an erroneous charge or failure to charge must result in a gross injustice, such as to raise a question as to whether the appellant has been deprived of a fair trial." (Punctuation omitted.) Moore v. Sinclair. After considering the relative weakness of the defense's case, we cannot say that these charges created such a "gross injustice" as to deprive Setliff of a fair trial. See id.
3. Setliff contends that the trial court erred in charging the jury as to an "egg shell plaintiff" and by charging aggravation. He argues that the charges "unduly emphasized particular matters by singling them out and giving them undue prominence of Plaintiff's position over Defendant's." Setliff further claims that the charges may have confused the jury because " here was no evidence in the record to show Plaintiff/Appellee Kelly Littleton was an `egg shell' plaintiff."
The record belies these claims. Having read the charge as a whole, we find no undue emphasis on the two instructions. Among other charges, the trial court properly instructed the jury as to the plaintiff's burden of proof, the general principles of negligence, direct and proximate causation, and damages. Moreover, the defense apparently tried to attribute Littleton's knee problems to an origin other than the auto accident and to a combination of pre-existing conditions and degenerative problems. Joseph C. Tatum, M.D., the board certified orthopedic surgeon who testified for the defense and read her initial MRI as not showing a tear, testified that he saw "an abnormal signal in that meniscus" and "a little area of degeneration," but no tear. Dr. Tatum also testified that "a tear in the medial meniscus near the lateral horn" could be caused by sports activities including tennis or by a pivoting or twisting type of motion. And, Dr. Branch had conceded that " t is also possible that she has a genetic tendency to get problems with her knees." Since a charge may be given when there is slight evidence to sustain it, and here there is evidence to support both charges, we find no error. See King v. Turner.
Judgment affirmed. Ellington and Phipps, JJ., concur.
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