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22. Is the court likely to direct the jury as requested?
The painter requested that the court instruct the jury that if it found the homeowner negligent in pulling the ladder away from the house, the jury should award a judgment in favor of the painter and against the homeowner for a total of $55,000.
A homeowner sued a painter for breach of contract in federal court in State A. The painter's answer raised impossibility of performance as an affirmative defense. Evidence introduced at trial tended to prove that the painter failed to finish painting a house for the homeowner due to injuries that the painter sustained. The painter also proved that he sustained his injuries when he fell on the job when the homeowner pulled the ladder away from the home and failed to notice that the painter was just beginning to descend. Finally, the painter further proved, without objection by the homeowner, that as a result of his fall, he suffered $55,000 in damages.
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Under FRCP 51(c), a party who objects to an instruction or the failure to give an instruction must state on the record the objection, stating distinctly the matter objected to and grounds for the objection.
An issue may be tried by consent under FRCP 15(b)(2), which states: «When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move—at any time, even after judgment—to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.»
A is correct. Because the homeowner did not object to the painter's evidence of his injuries and how he sustained those injuries, the homeowner consented to trying the issue of whether his negligence proximately caused harm to the painter. Moreover, the facts of the question state that the homeowner did not object to the jury instructions proposed by the painter.
B is incorrect. This answer reaches the correct conclusion under the wrong reasoning. The reason the painter's instructions will be given is that the homeowner consented to try the issue. The painter raised the impossibility of performance as an affirmative defense, not the issue of damages.
C is incorrect. Even though the painter did not file a counterclaim, in this case, FRCP 15(b)(2) states that issues tried by consent are treated as if they were raised in the pleadings. As such, a party may move to amend the pleadings to conform the pleadings to the evidence and raise a previously unpleaded issue. Therefore, the painter's failure to amend the pleadings, in this case, does not affect the result of the trial of that issue.
D is incorrect. When parties have a Seventh Amendment right to a jury trial, the judge is responsible for deciding questions of law, and the jury's job is to resolve questions of fact. Negligence is not usually a question of law but is instead a question for the trier of fact. Nothing presented here indicates that the jury cannot hear the painter's request.