by JoAnn Storey
A defendant is not required to object to a plaintiff’s omission of an independent theory of recovery in the jury charge. United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 481 (Tex. 2017).
But, the broad proclamation in United Scaffolding that a defendant is not required to object that the charge is not “supported by the plaintiff’s pleadings or the evidence adduced at trial,” id., must be kept in context.
In Scott v. Atchison, T. & S. F. Ry., 572 S.W.2d 273, 277 (Tex.1978), the defendant objected that the broadly-submitted negligence question:
“[P]ermits the Jury to… hold the Defendant liable upon some basis neither pled nor proved by Plaintiff… Such Issue should be limited to the acts or omissions pled by Plaintiff to constitute negligence and concerning which there is some proof to support the submission of an issue.”
The court observed that it was “the first time that such two-fold objection to a broad and unlimited submission of negligence has been clearly presented to this Court since the 1973 amendment” to the rules allowing broad-form submission. Id.
The court held that “when one or more plead edacts or omissions are unsupported by evidence and the record contains evidence of other possible negligent acts or omissions which were not pleaded, failure to limit the broad ultimate fact issue to acts or omissions which were raised by both pleadings and proof violates Rule 277 and is error.” Id.
In reaching its holding, the court made the following important observations:
- The pleadings of the parties still furnish the blueprint for the charge.
- In the absence of trial by consent, a judgment not supported by the pleadings is erroneous.
Under Scott’s lesson, the cautious practitioner will object to a broad-form question that is so broad that it allows the jury to find against a defendant on a theory that is not pleaded and is not supported by the evidence.