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Chartney v. City of Choctaw

Court of Appeals of Oklahoma, Division I

April 18, 2019

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,
v.
THE CITY OF CHOCTAW, Defendant/Appellant.

          Mandate Issued: 05/15/2019

          APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE ROGER H. STUART, TRIAL JUDGE.

          Jim Buxton, BUXTON LAW GROUP, Oklahoma City, Oklahoma, for Plaintiffs/Appellees,

          Stephen L. Geries, COLLINS ZORN & WAGNER, P.C., Oklahoma City, Oklahoma, for Defendant/Appellant.

          BRIAN JACK GOREE, CHIEF JUDGE.

         ¶1 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.

         ¶2 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 their home.

         ¶3 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.

         ¶4 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 awarded.

         I.

         Standard of Review

         ¶5 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 [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.

         II.

         The Negligence Per Se Instruction

         ¶6 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. [2]

         ¶7 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 ...


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