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Air Products and Chemicals, Inc. v. Seachem

Under certain circumstances, a trial court has the discretion to conclude that a mid-trial attempt to seek a formal trial amendment on the issue of negligence per se, as a means for subsequently requesting a specific negligence per se jury instruction tracking specific regulations, could result in the reshaping of litigation such that it would prejudice and surprise a defendant. Houston's 1st Court of Appeals, No. 01-08-00591-CV, 08-27-2009.

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OPINION

Appellant, Air Products & Chemicals, Inc. (“AP”), challenges the trial court’s judgment entered in favor of appellees, Odfjell Seachem A/S, Odfjell Asia II Pte. Ltd., and Odfjell Singapore Pte. Ltd. (collectively “Seachem”), after a jury trial, in AP’s suit against Seachem for Seachem’s alleged negligence in discharging hazardous chemicals from its vessel, the Bow Favour, into a storage tank in which AP stored other product. In four issues, AP contends that the trial court erred in denying its motion to amend its pleadings “with respect to the issue of negligence per se,” not instructing the jury on negligence per se, not rendering a judgment notwithstanding the verdict in favor of AP on negligence per se, admitting the hearsay testimony of the first officer of the Bow Favour “concerning what he was told by another crewman,” and instructing the jury to apportion liability between Seachem and a defendant with which AP had settled prior to trial.

We affirm.

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