Invited Error Doctrine — Impermissible to Complain About Instruction Substantially Identical to One Proposed - Joseph Hage Aaronson

Commercial Litigation and Arbitration

Commercial Litigation and Arbitration

Invited Error Doctrine — Impermissible to Complain About Instruction Substantially Identical to One Proposed

From Burton v. General Motors Corp., 2008 U.S. Dist. LEXIS 62758 (S.D. Ind. Aug. 15, 2008):

General Motors' instruction [on promissory estoppel] is almost identical to the instruction the court gave to the jury. The elements appear in a different order, and there are small changes to the wording of some of the elements. The only other difference is that the court's instruction required the plaintiffs to prove that they suffered a financial loss because General Motors broke the promise, an award for which was necessary to prevent injustice. General Motors' proposed instruction did not include a separate element of an "unjust and unconscionable injury" independent from the benefit of the bargain, nor did General Motors object to the court's final instruction based on the absence of such an element [this formed the basis of GM’s new trial motion]. A party cannot complain that the court gave an instruction that was substantially similar to the instruction proposed by that party. See Susan Wakeen Doll Co. v. Aston Drake Galleries, 272 F.3d 441, 455 (7th Cir. 2001) (party could not object on appeal to special verdict question that party had drafted); McVeigh v. McGurren, 117 F. 2d 672, 680 (7th Cir. 1940) (where defendant did not object to instructions given, assignment of error on appeal would not be considered). Even if the court's instruction was an error (and the court does not believe it was), it was an error invited by General Motors itself.

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