The Importance of Non-Pattern Jury Instructions
Maryland’s appellate courts strongly encourage lawyers and trial judges to rely on pattern jury instructions, observing that pattern instructions “have been put together by a group of distinguished judges and lawyers who almost amount to a ‘Who’s Who of the Maryland Bench and Bar.” Green v. State, 127 Md. App. 758, 771 (1999).
Thus, “generally the pattern jury instructions suffice and trial judges usually may rely on them.” Bayne v. State, 98 Md. App. 149, 160 (1993). But lawyers should not be complacent and simply rely on pattern instructions without thinking whether other non-pattern instructions could buttress their cause. In an opinion by Judge Stuart Berger, writing for a panel that included Judge Kevin Arthur and Senior Judge Robert Zarnoch, the Court of Special Appeals reversed a judgment where the trial judge refused to give requested non-pattern jury instructions that correctly stated the law, were supported by the evidence, and were not fairly covered by instructions the court actually gave. Six Flags America, L.P. v. Gonzalez-Perdomo, Case No. 1620, Sept. Term 2019 (Dec. 16, 2020).
On a July day in 2015, 10-year-old Daniel Gonzalez-Perdomo visited the Six Flags amusement park in Upper Marlboro. While walking on a wooden pedestrian bridge near the Shipwreck Falls ride, he fell and injured his leg. His mother sued on his behalf, claiming the bridge was wet, and that the amusement park allowed water from the ride to splash and accumulate on the bridge, thus creating a dangerous hazard. The park asserted that the bridge’s wet and slippery condition was “open and obvious,” and that the park therefore owed no duty to cure the condition or warn of it. The circuit court denied the park’s motion for summary judgment, and likewise denied the park’s motions for judgment, made at the close of the plaintiff’s case and the close of all the evidence. The jury returned a verdict in the plaintiff’s favor and the park appealed.
The Court of Special Appeals rejected the park’s contention that the trial court erred in denying the motion for judgment and motions for judgment. In those motions, the park argued that the bridge’s dangerous condition was “open and obvious” as a matter of law. While the appellate court agreed “that the evidence overwhelmingly established that the bridge was openly and obviously wet,” the court concluded that the danger presented by that wet bridge was not “so clearly open and obvious as to permit no reasonable factfinder to conclude otherwise.” Thus, whether the bridge presented an open and obvious danger was not a question of law for the court to decide, but was a question of fact properly submitted to the jury for its determination.
When it submitted that issue to the jury, the trial judge gave the pattern instructions on negligence, proximate cause, contributory negligence, assumption of risk, invitee status, and premises liability. The trial judge, however, refused to give four non-pattern instructions the park had requested. That refusal led the Court of Special Appeals to reverse the judgment entered in the plaintiff’s favor and to remand the case for a new trial.
A trial court’s decision to give or deny a requested jury instruction is reviewed for an abuse of discretion, and in conducting that review, the appellate court considers (1) whether the instruction correctly stated the law; (2) whether it was applicable under the facts; and (3) whether it was fairly covered by other instructions that were actually given.
One of the instructions requested by the park said there “is no obligation to protect an invitee against conditions or dangers which are known or which are so obvious and apparent that one may reasonably be expected to discover them.” As that instruction was nearly a verbatim quote from the decision of the Court of Special Appeals in Tennat v. Shoppers Food Warehouse Md. Corp., 115 Md. App. 381 (1997), it correctly stated the law. The second request said there is no duty “to warn an invitee of an open, obvious, and present danger,” and it was nearly a verbatim quote from the decision of the Court of Appeals in Casper v. Chas. F. Smith & Son, Inc., 316 Md. 573 (1989), where the Court first adopted the “open and dangerous danger rationale.” That instruction was thus also a correct statement of law.
The park’s other two requested instructions, however, did not fare as well. While neither instruction was incorrect, they were not obvious or fully accurate statements of law, and thus the trial court did not abuse its discretion in failing to give them.
The Court of Special Appeal then concluded that the two correct instructions, “both of which advised the jury that there is no obligation to warn of or protect against an open and obvious condition, were generated by the evidence presented at trial.” Indeed, as the Court said: “The obviousness of the wet and potentially slippery condition of the bridge was hotly debated at trial, and witnesses for both sides presented testimony regarding whether they were able to perceive the wet condition of the bridge.” And neither instruction was fairly covered by any of the instructions that the trial court actually gave. To the contrary, the Court of Special Appeals found the pattern jury instruction regarding the duty owed an invitee incomplete and encouraged the Standing Committee on Pattern Jury Instructions to address that lack of clarity.
This case provides a good lesson to trial lawyers. Pattern jury instructions are important and very useful, and they will generally provide most, if not all, of the instructions needed in any given case. But while lawyers should start with the pattern instructions, they should not stop there. Although pattern instructions are intended to be correct statements of the law, they are not the only correct statements of the law.
Ask yourself, does your case have gaps not covered by those instructions? That was true in the Six Flags case, and it’s true in other cases as well. Did you rely on a case or series of cases in moving for summary judgment? Are the principles established by those cases fully reflected in the pattern instructions? Does your case involve an area of the law that’s not adequately covered by the pattern instructions? Examine the pattern instructions closely and be ready to draft and advocate for non-pattern instructions—and if you do, be sure to cite the cases or authorities that support your request.
Brad McCullough represents businesses and individuals in a wide variety of cases in federal and state trial and appellate courts, as well as before arbitration panels and in mediation proceedings. For more information, contact him at 301-657-0734 or [email protected].