Lead Opinion
Opinion
In this personal injury action, the jury returned special verdicts that there was no design defect in plaintiff’s Volkswagen automobile, and that there was a manufacturing defect, but that the defect was not a substantial factor in bringing about the plaintiff’s injuries. A poll of the jury revealed that all jurors agreed there was no design defect, that nine of the twelve found a manufacturing defect, but that ten of the twelve found that the defect was not a substantial factor in causing plaintiff’s injuries.
We have concluded that when a case is submitted to a jury for special verdicts, all jurors may participate in each special verdict and that the jurors who dissented from the special verdict on mechanical defect could properly vote on the special verdict determining that the defect was not a substantial factor in causing plaintiff’s injuries.
Our state Constitution and statute provide that in civil cases three-fourths of the jury may render a verdict. (Art. I, § 16; Code Civ. Proc., § 618.) Section 618 provides: “When the jury, or three-fourths of them, have agreed upon a verdict, they must be conducted into court and the verdict rendered by their foreman. . . . Either party may require the jury to be polled, which is done by the court or clerk, asking each juror if it is his
Code of Civil Procedure section 624 provides: “The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant; a special verdict is that by which the jury finds the facts only, leaving the judgment to the Court. ...” Section 625 permits the court also to direct the jury, if they render a general verdict, to find upon particular questions of fact.
Prior to the recent decisions in Juarez v. Superior Court (1982)
Because all twelve jurors could continue to participate in deliberations after a finding in favor of one party on one of the issues (Schoenbach v. Key System Transit Lines, supra,
It should be pointed out that under the decisions prior to Juarez and United Farm Workers of America the trial court judgment in the instant case
United Farm Workers of America and Juarez, which involved comparative negligence, rejected the rule that nine identical jurors had to agree on all elements of the ultimate verdict. The jury poll in United Farm Workers of America revealed that nine identical jurors did not find both plaintiff and defendant negligent and that only eight of the jurors agreeing to the allocation of liability had found plaintiff to be negligent. Relying on authorities from other jurisdictions, the court stated that, while to find liability the same nine jurors must find negligence and proximate cause, it was not required that nine identical jurors find both plaintiff and defendant negligent. The court pointed out that in California the parties initially are entitled to twelve jurors deliberating on each issue and that unless verdicts such as that returned were upheld, there would be substantial burdens on the administration of justice. (United Farm Workers of America v. Superior Court, supra, 111 Cal.App.3d at pp. 1018-1020.)
In Juarez, nine identical jurors agreed plaintiff, defendant and plaintiff’s employer were negligent, and their negligence proximately caused plaintiff’s injuries. The same nine also agreed on the total damages suffered by plaintiff, and although nine jurors agreed on the apportionment of damages, they were not the same nine who agreed on the other issues.
In concluding that the trial court should have entered judgment on the special verdicts, we reasoned: “As the New Mexico Court of Appeal stated in interpreting a statute similar to section 618: ‘We believe that our holding that any ten jurors in New Mexico may agree on any issue in support of a verdict best assures attainment of the purpose of less-than-unanimous verdicts, namely, overcoming minor disagreements that resulted in “hung” juries under the unanimity requirement. [Citation.] At the same time one can hardly argue that the result is less fair since twelve jurors must still participate. [Citation.] Thus, without sacrificing the traditional notion of justice, our interpretation of the less than unanimity rule ensures less waste of judicial time.’ (Naumburg v. Wagner (1970)
We rejected a claim that a vote by a juror against liability of a party is rationally inconsistent with a vote by the same juror apportioning liability to that party, stating that there was no reason why a dissenting juror could not accept the finding of three-fourths of the jurors that a party was negligent and participate in apportioning liability in accordance with that premise. We also rejected a claim that a juror who has voted against liability will be reluctant to assign fault to a party whom he has voted to be free of negligence resulting in a compromise or otherwise inappropriate verdict. It was pointed out that absent contrary evidence it cannot be assumed a juror will ignore his sworn duties, and that the proper assumption is that having been outvoted on an issue the juror will accept the outcome and “ ‘continue to deliberate with the other jurors honestly and conscientiously to decide the remaining issues.’ [Citations.]” (Id., at p. 768.)
Juarez was followed in Phelps v. Superior Court (1982)
Plaintiff relies upon Collin v. Connecticut Valley Arms, Inc. (1982)
Collin also pointed out that Juarez cited United Farm Workers of America with approval and in setting forth its holding (
In both Juarez and United Farm Workers of America there were special verdicts finding negligence and proximate cause by nine identical jurors, and thus the courts were not directly concerned with the question whether to hold a party liable nine identical jurors had to agree on both negligence and proximate cause. In addition, the language of Juarez does not require such agreement.
Most importantly, the reasoning of Juarez requires the conclusion that a juror who dissented from a special verdict finding negligence should not be disqualified from fully participating in the jury’s further deliberations, including the determination of proximate cause. The jury is to determine all questions submitted to it, and when the jury is composed of twelve persons, each should participate as to each verdict submitted to it. To hold that a juror may be disqualified by a special verdict on negligence from participation in the next special verdict would deny the parties of “the right to a jury of 12 persons deliberating on all issues.” (
In addition, Code of Civil Procedure section 618 provides that the jury returning a verdict shall be sent back for further deliberations only when more than “one-fourth of the jurors disagree thereto”; there is no provision requiring the jury to deliberate further when one-fourth or less disagree with a special verdict.
Collin v. Connecticut Valley Arms, Inc., supra,
The same reasons that persuade us that jurors who did not vote for the negligence special verdict may vote on the proximate cause special verdict require the conclusion that jurors who did not vote for a special verdict finding a defect may vote on the special verdict as to whether the defect
The judgment is affirmed.
Mosk, J., Kaus, J., Reynoso, J., Grodin, J., and Lucas, J., concurred.
Notes
Pursuant to a stipulation entered before the verdicts, plaintiff recovered a judgment for $15,000 from the driver of another car. That amount represents the available insurance of the driver.
The special verdicts were returned as follows: “We the jury in the above entitled case, find the following Special Verdict on the issues submitted to us:. . .
“Issue No. I. Was the defendant Shipps negligent?
“Answer ‘Yes’ or ‘No’.
“Answer: Yes.
“If the answer to Issue No. 1 is ‘No’, go to Issue No. 3.
“If the answer to Issue No. 1 is ‘Yes’, answer the next issue.
“Issue No. 2. Was the defendant Shipps’ negligence a proximate cause of the plaintiff’s injury?
“Answer ‘Yes’ or ‘No’.
“Answer: Yes.
“Issue No. 3. Was there a design defect in the 1967 Volkswagen automobile?
“Answer ‘Yes’ or ‘No’.
“Answer: No.
“Also answer Issue No. 4.
“Issue No. 4. Was there a manufacturing defect in the 1967 Volkswagen automobile?
“Answer: ‘Yes’ or ‘No’.
“Answer: Yes.
“If you have answered either Issue No. 3 or Issue No. 4 ‘Yes’, answer the next issue.
“Issue No. 5. Was the defect a substantial factor in bringing about the plaintiff’s injuries?
“Answer ‘Yes’ or ‘No’.
“Answer: No.
“If you have answered ‘Yes’ to Issue No. 2 and/or Issue No. 5, answer the next issue.
“Issue No. 6. What is the amount of damages you award to the plaintiff?
“Answer: $4,200,000.”
Dissenting Opinion
I respectfully dissent. Justice Gene McClosky of the Second Appellate District wrote a most persuasive decision which I reprint and adopt as my own:
“Plaintiff’s sole contention on appeal is that the verdict for V.W. was invalid because it did not represent the verdict of nine jurors voting identically on the issues of manufacturing defect and causation.3
In Collin v. Connecticut Valley Arms, Inc. (1982)
By a vote of 11 to 1, the jury found that there was no defect and thus found that CVA was not strictly liable. On the issues of CVA’s negligence and causation, 10 out of 12 jurors found that CVA was negligent, but 9 out of 12 jurors found that CVA’s negligence was not a proximate cause of Collin’s injuries. Only seven jurors, however, voted in an identical pattern on the issues of negligence and causation (i.e., ‘yes-no’ respectively). The voting pattern of the Collin jury in relevant part was as follows:
*684 Special Verdict Issue Juror Number (Y=yes; N=no)
123456789 10 11 12
11. Were any of the defendants neg- YYYYNNYYYYYY ligent? CVA?
12. Was the negligence of such de-NYNNNNYNNNYN fendant(s) a proximate cause of injury to plaintiff? CVA?
Judgment was entered against plaintiff Collin in favor of defendant CVA, and Collin appealed. He contended that no verdict had been reached since nine identical jurors did not agree on the negligence and causation answers as required by BAJI No. 15.51,
Relying on Juarez v. Superior Court (1982)
Unlike Collin or the case at bench, Juarez and United Farm Workers were comparative negligence cases. As we noted in Phelps v. Superior Court (1982)
The holdings in Juarez and United Farm Workers contain a general principle applicable in all personal injury cases wherein a special verdict is utilized and only three-fourths of the jury need concur to reach a verdict. (Cal. Const., art. I, § 16; Code Civ. Proc., § 618.)
V.W. asks us to reject our reasoning in Collin. It contends that we ‘misinterpreted prior case law holding that in order to establish liability, the same nine jurors must concur in special verdicts to support a judgment in favor of the plaintiff. ’ It urges that: ‘These cases do not require the same result in the context of a defense verdict, and to blindly apply the language of prior case holdings without regard to the differing burdens of proof was error. While rational consistency may require the concurrence of nine identical jurors in order to hold a party liable, the same principles clearly do not apply where a defendant bears no burden of proof on the dispositive issue and the jury finds in the defendant’s favor because the plaintiff has failed to establish all the elements of his cause of action.’
If nine jurors find negligence or defect, and a different combination of nine jurors find causation, Earl and Juarez require us to conclude that a
The determination of which party has the burden of proof as to certain issues is of vital importance in the jury’s determination of those issues. Once they have been determined, however, which party has the burden of proof is no longer of any moment for the purpose of determining whether the jury has reached a verdict. The only question then remaining is whether the answers to the questions posed amount to a rationally consistent vote of nine identical jurors on the questions of negligence or defect and causation. If they do, they result in a special verdict, otherwise, as here, they do not.
In the case at bench as only seven jurors answered identically to the necessary element or issue questions, we conclude that the jury did not reach the single requisite special verdict complete as to the liability issues. We therefore conclude that the trial court erroneously denied plaintiff’s motion for a mistrial.
There is some appeal to the proposition that since 10 jurors voted that there was no causation, and since causation is 1 of the elements requisite to a finding of liability, it logically follows that the special verdict reached here logically required the entry of a judgment for the defendant.
The answer to that proposition is that given by Justice Oliver Wendell Holmes, Jr., in The Common Law (1881) that ‘The life of the law has not been logic: it has been experience.’ Earl, Juarez, Collin, article I, section 16 of the California Constitution, and section 618 of the Code of Civil Procedure, however, compel the result we reach here. If that law is to be changed, it is for the Legislature to do so, not this court.”
We reject as meritless V.W.’s contention that plaintiff waived any objection to the verdict by her failure to request a specific jury instruction that nine or more jurors had to vote identically on the issues of defect and causation to return a verdict for defendants and by her failure to object to the instruction given that in order to return a verdict for plaintiff the same nine jurors would have to concur as to each issue necessary to establish liability. (On this latter point, see Code Civ. Proc., § 647.)
We also reject as meritless, V.W.’s contention that Collin is distinguishable and, therefore, inapplicable. We find no meaningful distinction between Collin and the present case. Nor do we consider the Supreme Court’s denial of Collin’s petition for a hearing to be a positive approval of the Collin decision. (See People v. Triggs (1973)
At those times BAJI No. 15.51 was entitled ‘Concluding Instruction—Special Verdict’ and in pertinent part provided: ‘As soon as 9 or more identical jurors have agreed upon each answer required by such directions on the special verdict form, so that each of those 9 or more may be able to state truthfully that every answer is his or hers, you shall have such verdict signed and dated by your foreman and you shall return with it to this room. ’
Article I, section 16 of the California Constitution in pertinent part provides that ‘[t]rial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. . . . ’
Code of Civil Procedure section 618 provides: ‘When the jury, or three-fourths of them, have agreed upon a verdict, they must be conducted into court and the verdict rendered by their foreman. . . .’