H.E. BUTT GROCERY COMPANY, Petitioner, v. Vinnie BILOTTO, Respondent, 985 S.W.2d 22

SPECTOR, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, GONZALEZ and ABBOTT, Justices, and LINDA THOMAS, Justice (Assigned), joined. The issue in this cause is whether a jury charge instruction predicating a damages question on a finding of fifty percent or less comparative negligence violates Rule 277 of the Texas Rules of Civil Procedure. The trial court submitted the jury instruction over HEB’s objection and the jury found HEB and Bilotto each were fifty percent negligent. The court of appeals affirmed. 928 S.W.2d 197. We now affirm the judgment of the court of appeals.

Vinnie Bilotto suffered back injuries when he slipped and fell in an H.E. Butt Grocery Company (HEB) store. He sued HEB for negligence and gross negligence. The case was tried to a jury. Before the trial court charged the jury, HEB objected to a proposed instruction given after jury question number two. Question one read as follows: Did the negligence, if any, of the persons named below proximately cause the occurrence in question? Answer “YES” or “NO” for each of the following: (

a) H.E. BUTT GROCERY COMPANY — (

b) VINNIE BILOT-TO — The jury answered ‘YES” for both HEB and Bilotto. Question two then asked the jury: What percentage of the negligence that caused the occurrence in question do you find to be attributable to each of those found by you, in your answer to Question No. 1, to have been negligent? (

a) H.E. BUTT GROCERY COMPANY — (

b) VINNIE BILOT-TO — The jury found both HEB and Bilotto fifty percent negligent. The instruction that followed question two, which is nearly identical to Texas Pattern Jury Charge 80.1, read: If, in answer to Question No. 1, you have answered “NO” for VINNIE BILOTTO, or if, in answer to Question No. 2 you have found that 50 percent or less of the negligence that caused the occurrence is attributable to VINNIE BILOTTO, then answer Question No. 3. Otherwise, do not answer Question No. 3. Question three then asked the jury to assess the damages, if any, that would reasonably compensate Bilotto.

HEB objected that the instruction after question two impermissibly informed the jury of the legal effect of its answer. The trial court overruled the objection and then instructed the jury. The jury found that HEB and Bilotto were each fifty percent negligent and awarded Bilotto damages. The issue we must resolve is whether the trial court erred in submitting the jury instruction. The trial court is given vide latitude to determine the propriety of explanatory instructions and

definitions. See Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 256 (Tex.1974). We hold that the trial court did not err in giving this instruction. We adopted Rule 277 in 1941. Tex.R. Civ. P. 277 (3 Tex. B.J. 566 (1940)). At the time, Texas courts were required by statute to submit the jury charge using special issues. See William V. Dorsaneo, III, Broad-Form, Submission of Jury Questions and the Standard of Review, 46 SMU L.Rev. 601, 606-07 (1992).

Over the years, however, it became apparent that this special-issue approach had overloaded the charge with “granulated issues” and had led to more and more reversals on appeal. Id. at 607-08. As a result of these problems, in 1973 we amended Rule 277 to permit the broad-form submission of jury questions. Tex.R. Civ. P. 277 (493-494 S.W.2d (Tex.Cases) xxxi, xxxii-xxxiii). In 1987, we again amended Rule 277 and made the broad-form submission of the jury charge mandatory.

More importantly for this case, we also added language indicating that “[t]he court may predicate the damage question or questions upon affirmative findings of liability.” Tex.R. Civ. P. 277. This language determines the outcome of this dispute. In response to question one, the jury determined that both HEB and Bilotto proximately caused Bilotto’s injuries. In question two, the jury found that each party was fifty percent negligent.

Because the jury found Bilotto only fifty percent negligent, in light of our comparative negligence law, the effect of the jury’s answer to question two was to establish HEB’s liability. The instruction that followed question two predicated the damages question on the affirmative finding of HEB’s liability found in question two. The 1987 amendment to Rule 277 expressly authorizes such a conditional submission. Therefore, because this instruction is expressly authorized by Rule 277, the court did not err in giving the instruction. See Borden, Inc. v.

Price, 939 S.W.2d 247, 254 (Tex.App.—Amarillo 1997, writ denied). HEB nevertheless contends that the instruction was improper because it informed the jury of the legal effect of its answers. However, Rule 277 states that “[t]he court’s charge shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers when it is properly a part of an instruction or definition.” Id. (emphasis added).

Thus, following the Rule, the court’s charge was not objectionable on the grounds HEB asserts if it only incidentally informed the jury of the legal effect of its answers. Initially, we note that the clear trend among states that have considered the issue is to permit the jury to know the ultimate effect of its answers. See Wheeler v. Bagley, 254 Neb. 232, 575 N.W.2d 616, 619 (1998) (discussing and collecting cases on the “strong, if not overwhelming, recent trend” toward informing the jury).

Nevertheless, .when an instruction merely directs the jury to answer a damages question only if some condition or conditions have been met, it does not directly instruct the jury about the legal effect of its answers. See Borden, 939 S.W.2d at 254. To be a direct comment on the weight of the evidence, the issue submitted must suggest to the jury the trial court’s opinion on the matter. See Southmark Management Corp. v. Vick, 692 S.W.2d 157, 160 (Tex.App.—Houston [1st Dist.] 1985, writ refd n.r.e.).

Similarly, to directly advise the jury of the legal effect of its answers, the issue submitted must instruct the jury how to answer each question in order for the plaintiff or defendant to prevail. See Pope & Lowerre, The State of the Special Verdict— 1979, 11 St. MARY’S L.J. 1, 43 (1979). PJC 80.1 does not directly inform the jury of the legal effect of its answers, but merely directs the jury to answer the damages question only if certain conditions are satisfied. Therefore, PJC 80.1 merely incidentally informs the jury of the legal effect of its answers. HEB argues that our decision in Grasso v.

Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S.W.2d 482 (Tex.Com.App.1935), controls the outcome of this ease. In Grasso, the trial court instructed the jury: If, in response to the foregoing question, you have answered that the defendant’s truck was operated in a negligent manner, and that such negligence, if any, caused the injury to the plaintiff, and if you have also answered that the plaintiff was not guilty of negligence, contributing to the accident, then you will answer the following question; otherwise, you need not answer the following question. Id. at 487.

We held that this instruction impermissibly told the jury “that they must find the defendant guilty of negligence, and the plaintiff not guilty of contributory negligence, in order for the plaintiff to recover.” Id. We held that “[s]uch a charge is undoubtedly in violation of our special issue statutes.” Id. PJC 80.1, albeit logically indistinguishable from the instruction we found impermissible in Grasso, does not violate Rule 277. The reason PJC 80.1 is permissible where the Grasso instruction was not is that Grasso predated the amendments to Rule 277. See Borden, 939 S.W.2d at 254.

The effect of our amendments to Rule 277 is that the rule now allows instructions such as the one at issue in Grasso and in this case. First, the Rule specifically authorizes courts to condition a damage question on an affirmative finding of liability. Next, this instruction only incidentally informs the jury of the legal effect of its answers. Therefore, it is in line with current Rule 277. We do not overrule today the decades of Texas case law that holds that Texas juries cannot be directly informed of the legal effect of their answers.

We do hold, however, that because conditional damages jury instructions such as PJC 80.1 are expressly permitted by Rule 277, the trial court did not err in giving the instruction. As a result, this charge is permissible under Rule 277 of the Texas Rules of Civil Procedure. Accordingly, we affirm the judgment of the court of appeals. GONZALEZ, Justice, filed a concurring opinion. HECHT, Justice, filed a dissenting opinion, in which OWEN, Justice, joined. BAKER, Justice, filed a dissenting opinion, in which ENOCH and OWEN, Justices, joined. HANKINSON, Justice., did not participate in the decision. .

Comm, on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges — Malpractice, Premises & Products PJC 80.1 (1997).