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Davila v. Nickell10/26/2005
the employer of Barraza and Davila, and that the attempted correction did not cure the error. The Louies maintain that " nstead of reading the wrong instruction for a second time, the court should have pin-pointed the error with surgical precision and expressly corrected it." The argument is unavailing.
First, the court's corrected instruction was appropriate and properly clarified to the jury that the issue of whether Barraza and Davila were Joadd's employees was a factual issue for the jury's determination. Although the court could have stated this point in more direct terms, the court's rereading of the incorrect instruction and reading of the correct instruction adequately conveyed to the jurors that the issue of the employer's identity was a disputed one. If the Louies' counsel had believed it necessary to additionally instruct the jury on this issue, he had full opportunity to request this instruction. He did not do so. A party must object and seek an appropriate and timely curative instruction to preserve his or her right to raise an issue on appeal. (See Saret-Cook v. Gilbert, Kelly, Crowley & Jennett (1999) 74 Cal.App.4th 1211, 1230.)
The Louies alternatively argue the court should have additionally instructed that the jury should "go back and begin deliberations . . . anew, in light of the corrected instruction." However, counsel never requested this additional instruction and thus waived the Louies' right to assert on appeal that this instruction should have been given. In re Melvin's Estate (1927) 85 Cal.App. 691, relied upon by the Louies, is factually distinguishable. In In re Melvin's Estate, the court held there was no wavier because there was no indication the appellant's counsel was present when the court improperly answered a juror's question. (Id. at p. 684.) Here, counsel had full opportunity to object and request the additional instruction that appellate counsel now says should have been given.
Moreover, the Louies' argument that the jury disregarded the corrected instruction is unsupported. The Louies assert the jury must have already made a decision on the employer issue (Question No. 1) before the court corrected the record because the jury had previously asked a question about joint venture (an issue in Question No. 9).
Absent contrary evidence, a jury is presumed to follow the court's instructions. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.) The fact the jury asked a question about Question No. 9 does not necessarily lead to the conclusion that it had already answered Question No. 1. It is equally likely that the jurors did not make any final decisions on any issue before discussing the entire verdict form. This is supported by the jury's specific request to review various additional exhibits, showing that deliberations were ongoing on many issues. Further, even if the jury had already made a decision on the employer-employee question based on the court's first instruction, we presume the jury would have understood that it was necessary to redetermine the issue as a factual question in response to the court's corrective instruction. The fact that the jury returned a verdict shortly after the court's corrected instruction was likely the result of the strength of plaintiffs' evidence, and not the court's initial reading of Special Instruction No. 10.
The court properly corrected its instructional error, and there is no basis for reversal of the judgment.
C. OSHA Instructions
The Louies contend the court erred in instructing the jury on applicable Cal-OSHA regulations.
Cal-OSHA standards are admissible to establish the standard of care in a negligence or wrongful death a
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