T.J. CHARTNEY and STEPHANIE CHARTNEY, Individually and as Husband and Wife, T.J. CHARTNEY and STEPHANIE CHARTNEY, as Natural Parents and Next Friend of BRILEY CHEYENNE CHARTNEY, a Minor, Plaintiffs/Appellees,
THE CITY OF CHOCTAW, Defendant/Appellant.
Mandate Issued: 05/15/2019
FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
HONORABLE ROGER H. STUART, TRIAL JUDGE.
Buxton, BUXTON LAW GROUP, Oklahoma City, Oklahoma, for
Stephen L. Geries, COLLINS ZORN & WAGNER, P.C., Oklahoma
City, Oklahoma, for Defendant/Appellant.
JACK GOREE, CHIEF JUDGE.
The City of Choctaw (Defendant/Appellant) appeals the Journal
Entry of Judgment entered in favor of T.J. Chartney,
Stephanie Chartney, and Briley Chartney
(Plaintiffs/Appellees) on the basis that the trial court
committed reversible error in giving certain jury
instructions, allowing the presentation of irrelevant or
prejudicial evidence, and granting attorney's fees. We
reverse because the negligence per se instruction was
erroneous and there was a probable miscarriage of justice.
Defendant owns and operates the City's sewer system.
After filing a Notice of Tort Claim (Notice) pursuant to the
Oklahoma Governmental Tort Claims Act, Plaintiffs filed their
action in district court for negligence and nuisance. In the
Notice, Plaintiffs asserted a backup caused sewage to flood
their home on October 13, 2014. The claim alleged the City
operated and maintained its sewer system in a manner that
damaged their real property and caused annoyance, discomfort,
and inconvenience from the diminished use and enjoyment of
Following the trial, the court submitted a negligence per se
instruction and an instruction notifying the jury of the
OGTCA damages cap. After deliberating, the jury returned a
verdict in favor of Plaintiffs awarding $18, 200 in property
damages and $70, 000 per person for nuisance damages, for a
total award of $228, 200. The court entered judgment in favor
of the Plaintiffs and against Defendant and reserved the
issue of attorney fees.
Defendant appeals and raises three propositions of error:
first, the jury was misled by improper jury instructions;
second, the evidence of other backups should have been
excluded; and third, attorney fees should not have been
The test upon review of an instruction improperly given or
refused is whether there is a probability that the jurors
were misled and thereby reached a different result than they
would have reached but for the error. Woodall v. Chandler
Material Co., 1986 OK 4, ¶13, 716 P.2d 652.
Moreover, 20 O.S. §3001.1  provides that a judgment
will not be set aside unless the appellate court finds the
error probably resulted in a miscarriage of justice or
constituted a substantial violation of a constitutional or
statutory right. See Messler v. Simmons Gun Specialties,
Inc., 1984 OK 35, ¶25, 687 P.2d 121. Similarly, 12
O.S. §78 requires appellate courts to disregard harmless
error in the giving of jury instructions which does not
affect the substantial rights of a party. 12 O.S. §78.
See also Sunray DX Oil Co. v. Brown, 1970 OK 183,
¶21, 477 P.2d 67.
Negligence Per Se Instruction
Instruction No. 14 advised the jury that a violation of 27A
O.S. §2-6-105 or 40 C.F.R. §122.41(e) would make
the City negligent if the jury determined the violation was
the direct cause of the injury. Appellant argues the
instruction was not applicable and likely misled the jury
causing it to return a different verdict than it would have
without the instruction. Appellees respond that the
negligence per se instruction was applicable, and even if it
was not, it did not mislead the jury. 
The negligence per se instruction informed the jury that if
it found "that a party violated any one of the Statutes,
Ordinances or Regulations and the violation was the direct
cause of the injury, then such violation in and of itself
would make such party ...