103 A.D.2d 418 | N.Y. App. Div. | 1984
Directly before us at last is the “identical five” issue — whether in a special verdict all answers approved by a five-sixths vote must have the concurrence of the identical five jurors. The appeal also presents the related question of whether a juror who has dissented from the answer to a special verdict question is bound by the answer as further questions are considered. Finally, we must decide whether it was error for the trial court to respond to the jury’s inquiry during damage assessment by explaining how the award would be affected by their earlier apportionment of liability.
I
The action has its genesis in an injury suffered by Jennifer Schabe, a 12-year-old junior high school student who was struck by a school bus while running across the driveway of the Hampton Bays Jr.-Sr. High School. Although the ensuing lawsuit named the Hampton Bays Union Free School District, the Hampton Bays Jr.-Sr. High School, the East End Student Transportation Corp. and the bus driver as defendants, the plaintiffs subsequently settled their action against the bus company and the driver, leaving the school district and the school as the sole defendants. Despite the bus company’s absence from the trial, its negligence remained at issue because section 15-108 of the General Obligations Law provides that the settling tortfeasor’s settlement will serve to reduce the remaining tortfeasor’s liability to the extent of the monetary settlement or the settling tort-feasor’s proportion of fault, whichever is greater. The bus company’s proportion of fault, if any, thus became a matter for resolution by the jury.
The trial revealed that upon dismissal of their classes on November 5,1976, some of the junior high school students congregated at the front of the school in anticipation of boarding buses then parked in the school driveway. Although additional supervision of the departure process had been furnished on other days, on November 5 only one teacher was assigned to that task. Jennifer was standing near a small shuttle bus parked behind the other buses when yet another bus approached from the rear and was
The liability issues were submitted to the jury in the form of a special verdict containing seven written questions, the first six of which dealt separately with the issues of negligence and proximate causation relating to the conduct of the school district, the bus company and Jennifer. The seventh question asked the jury to apportion fault between these three named participants in the events at issue. In its charge, the trial court declared that at least five jurors would have to agree before any question could be answered but it was unnecessary that the same five agree on each answer. The jury was soon back with a request for guidance because different questions were drawing different dissenting jurors. After repeating its earlier instruction — that the law did not require that each answer be approved by the same five jurors — the court added that the dissenting juror “has to abide by the decision of the other five under our system”, that the dissenter “has to go along with what the others do because five of the others are in accord” and that “once you decide one question on a five-sixths basis, the other dissenting juror must regard that as having been determined since five out of the six have spoken”. This additional instruction drew a prompt exception from the defendants which argued that under the instruction a juror who disagreed as to the negligence of one of the participants in the events of November 5 would be unable to apportion liability between that participant and the others. The court denied the defendants’ further request that the jury be told that in dealing with the separate questions of negligence and proximate causation as to any particular participant it was necessary that the same five jurors agree on both answers.
Upon return of the liability verdict, polling disclosed that on four questions answered by five-sixths vote, the majorities had not been comprised of the identical five jurors. In its answer to question 1, the jury unanimously found the school district negligent, but in answering question 2, juror number 2 abstained from his colleagues’ finding that there was proximate causation. Responding to
After the trial proceeded through its damage phase, the jury was instructed to arrive at “a one hundred percent [dollar amount] and allow the Court to apply the necessary mathematics”. Following brief deliberation, the jury inquired: “Is the dollar amount we agreed upon the exact amount Jennifer Schabe will be awarded or only a percentage?”. Replying that the figure arrived at would be multiplied by 59%, the court reiterated its exhortation that the jurors find a “.one hundred per cent valuation”. The defendants then requested that the jury be instructed not to concern themselves with “any computations” in order to erase any feeling that the verdict should be adjusted to compensate for Jennifer’s 41% responsibility for her injury. The request was denied. Still confused, the jury was soon back with its foreman informing the court that: “The concern of the jury was, sir, that the forty-one percent that’s attributed to the Plaintiff in negligence would be subtracted from the fifty-nine percent”. The court explained that Jennifer would receive 59% of the verdict and denied the defendants’ request to charge that she would receive the entire amount awarded by the jury.
The jury subsequently returned a unanimous verdict of $750,000, from which the court deducted $225,000 (the value of the bus company’s structured settlement), multiplied the remainder by 59%, and entered a judgment of $309,750 in favor of the infant plaintiff. Although the formula applied seems to be erroneous, it remains unchallenged on this appeal by the defendants, for they focus entirely on the significant issues we now discuss.
II
The Court of Appeals has never decided whether every nonunanimous answer in a special verdict must be ap
Majority verdicts and special verdicts are hardly novel to the judicial process, but these days their joinder complicates a litigation scene in which the issues are complex enough without additional problems stemming from the identity of the majorities who voted in favor of certain answers (see Comment, Vote Distribution in Non-Unanimous Jury Verdicts, 27 Wash & Lee L Rev 360). Since the requirement for unanimity in civil cases was abandoned in this State in 1937 (see former Civ Prac Act, § 463-a, added by L 1937, ch 120; NY Const, art I, § 2; Note, 37 Col L Rev 1235) and special verdicts have been with us since early common law, it is remarkable that the identity issue has never received final resolution in New York. CPLR 4113 (subd [a]) tells us that “[a] verdict may be rendered by not less than five-sixths of the jurors constituting a jury” and CPLR 4111 (subd [b]), authorizing special verdicts, also is barren of any hint that might help resolve the issue. It would seem apparent that the drafters of the two sections were oblivious to the problems that confront us now. In the
One such device of universal acceptance is the rule that statutes be interpreted in light of the legislative reasons that brought about their enactment and that they be given meanings that serve rather than defeat those reasons (see Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818, 820; Lincoln First Bank v Rupert, 60 AD2d 193, 197; McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 95, 96). The policy considerations underlying the abolition of the unanimity requirement are not difficult to discern. Nonunanimous verdicts decrease the number of mistrials and retrials and thus reduce court congestion, delay and the cost of maintaining the judicial system. They also reduce the number of unjust verdicts deriving from juror obstinacy or dishonesty and discourage compromise verdicts (Winters, Majority Verdicts in the United States, 26 J Amer Judicature Soc 87; Note, Civil Juries: Recent Legislation Allowing Nonunanimous Verdicts, 18 Washburn LJ 269; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4113.02).
The policy imperatives advanced by the abolition of the unanimity requirement are also furthered when special verdict questions can be answered by any five jurors rather than the same five that have approved all other answers. The “any five” principle reduces the number of mistrials and retrials while diminishing confusion for both court and jurors and it does not interfere with the operation of the jury or sacrifice fairness (Juarez v Superior Ct., 31 Cal 3d 759, supra). There is no reason why a juror in an “any five” jurisdiction cannot decide a case just as conscientiously and well as a juror required to abide by an “identical five” mandate (Ward v Weekes, 107 NJ Super 351, supra). The identical five rule has been characterized as “mechanistic” and as not assuring additional fairness while substantially increasing the risk of hung juries and seriously undermining the usefulness and viability of laws that authorize majority and special verdicts (see Tillman v Thomas, 99 Idaho 569, 572, supra).
Although the arguments most often proffered to support the any five concept remain the strong public policy factors
Adherents of the identical five principle argue, however, that a verdict, whether general or special, is a nonfragmentable totality representing one ultimate finding, and jurors cannot be permitted to agree with only one part of the dispositions essential to the verdict (see Earl v Times-Mirror Co., 185 Cal 165; Clark v Strain, 212 Ore 357, supra; Comment, Vote Distribution in Non-Unanimous Jury Verdicts, 27 Wash & Lee L Rev 360, 363-364). They illustrate by noting that if two answers draw different dissenters, only four jurors have agreed on the ultimate conclusion (see Dick v Heisler, 184 Wis 77; Note, 3 Wis L Rev 51). Under this theory, a juror who dissents as to any of the answers cannot be counted in favor of the verdict and the fact that its form is that of a special verdict is immaterial (see Plaster v Akron Union Passenger Depot Co., 101 Ohio App 27, supra).
Although application of the any five rule to verdicts that contain interrogatories is rooted in strong public policy considerations that transcend the origin of special verdicts, the historic basis for treating general and special verdicts differently still retains significance. Special verdicts were introduced to the judicial process early in common law by
While a general verdict is the “merger into a single indivisible residuum of all matters, however numerous, whether of law or fact” and is “incapable of being broken up into its constituent parts” (Sunderland, Verdicts, General and Special, 29 Yale LJ 253, 258), a special verdict is separated into distinct parts (Sunderland, Verdicts, General and Special, 29 Yale LJ 253; Comment, 18 U of Chi L Rev 321), each of which can be treated as a separate and distinct issue (Tillman v Thomas, 99 Idaho 569, supra). The courts have thus been free to set aside unsound portions of special verdicts while saving others (see, e.g., Kojic v City of New York, 76 AD2d 828; Gannon Personnel Agency v City of New York, 57 AD2d 538; see, also, Davis v Caldwell, 54 NY2d 176). Each issue to be decided in a special verdict requires the concurrence of at least five jurors as the Legislature has mandated, but nothing in statute or public policy so thrusts a special verdict jury toward outcome resolution that the same analysis that applies to the validity of a general verdict must apply to a special verdict (see Note, 37 Col L Rev 1235). Special verdicts do not exist to test the accuracy of a hypothetical general verdict (see Gibbons, Rule 49: Special Verdicts and
We also reject the defendants’ final challenge to the any five concept — that it permits jurors to vote inconsistently. Neither statute, common law nor even public policy requires that the vote of individual jurors be scrutinized to assure consistency. The validity of a special verdict may depend on the jury’s answers being consistent enough for the entry of judgment (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 518, n 5; Pfeil v Elkcom Co., 51 AD2d 553; 8 Carmody-Wait 2d, NY Prac, § 58:10) but it does not depend upon the consistency of individual juror voting patterns. A requirement that individual jurors vote consistently would sharply minimize the usefulness of special verdicts (Aiello v Wenke, 118 Misc 2d 1068, supra) by increasing the number of mistrials and retrials. It would also create an absurd necessity for counsel and the court to conduct a consistency review of each juror’s votes before the jury was discharged in order to avoid waiver of the issue (see People v Satloff, 56 NY2d 745; Resch v Volkswagen of Amer.,_ Cal 3d_ [Aug. 27, 1984]). Although some courts have theorized that an apparently inconsistent vote by a juror might not actually reflect inconsistency because the juror might have decided to abide by his colleagues’ determination on earlier questions (see Aiello v Wenke, 118 Misc 2d 1068, supra; Forde v Ames, 93 Misc 2d 723, supra; Resch v Volkswagen of Amer.,_Cal 3d_, supra; Juarez v Superior Ct., 31 Cal 3d 759, supra), our conclusion does not depend on such a rationalization. Although any number of variables may impel a juror to cast a vote that appears to be inconsistent, nothing in our law mandates consistency in the votes of individual jurors, and we see no purpose in imposing such a requirement that would reduce juror flexibility in voting in order to achieve some greater symmetry in individual juror voting patterns.
While our analysis of the identical five issue has focused some attention upon the historic roots of special verdicts, it is important to emphasize that the purpose of verdicts that
Ill
The second issue concerns the rights and obligations of a dissenting juror once he has been outvoted. The jury was told that when any answer was approved by five persons, the dissenter was bound by it in considering further questions. The instruction can be correct only if special verdicts alter the traditional rights and obligations of jurors.
A juror who disagrees with his colleagues on a general verdict disagrees with the entire verdict, and the result is either a dissenting vote if unanimity is not required or a hung jury if it is. The freedom to disagree derives from the respect that must be accorded to a minority juror and the valid role the hung jury plays in our system (Kalven & Zeisel, The American Jury, p 453). Whether in accord or disaccord with their colleagues, all jurors are entitled to participate fully in deliberations by attempting to alter their colleagues’ votes at any time before the verdict is finalized and by rendering their own decisions in accordance with their honest convictions (Mendelson, Beyond Allen: from Dynamite to Nukes, 54 NY St Bar J 91; Note, 47 NYU L Rev 296). The paramount importance of maintaining the independence and intellectual integrity of each
The fact that each element of a special verdict represents a separate determination in no sense implies that dissenters must abandon their intellectual or factual perceptions as the jury proceeds from question to question. It is bedrock in our system of jurisprudence that no juror can be required to surrender honest convictions solely to accommodate the opinions of fellow jurors or merely to force a verdict (see ABA Standards Relating to Trial by Jury, § 5.4 [a] [v]). A special verdict juror is entitled to no less respect than his general verdict counterpart (see Juarez v Superior Ct., 31 Cal 3d 759, supra; Ward v Weekes, 107 NJ Super 351, supra) and a verdict based on an instruction that requires dissenting jurors to be bound by a factual conclusion with which they disagreed is fatally deficient because some jurors may have been impelled to vote contrary to their own judgment in order to adhere to the decisions of others with whom they disagreed (see Comment, 36 Tenn L Rev 749; Note, 22 Loyola L Rev 667). While the public policy considerations that underlie the acceptance of non-unanimous verdicts and the adoption of the any five rule are compelling indeed, they are not powerful enough to require any juror to surrender intellectual integrity in the interest of expeditious dispute resolution. An instruction that each answer arrived at is conclusive on all the jurors gives inordinate importance to the order in which the questions
Because the incorrect instruction may have limited the ability of some jurors to dissent, the current verdict may not represent the free and untrammelled will of the jury. Juror number 4 voted that the bus company was negligent and yet apportioned negligence solely between the school district and plaintiffs. Juror number 1 found Jennifer free of fault but later voted that she was 41% at fault. Although we have already determined that consistency in individual juror voting patterns is not requisite to a valid verdict, the votes we have mentioned may have been compelled by the instruction that the jurors were bound by answers with which they disagreed.
We hasten to note, however, that once liability has been decided in a bifurcated trial, the determination binds the jury as well as the parties, and we see no obstacle to the same jury assessing damages. A jury in such a trial is instructed that the defendant is liable as a matter of law (see PJI 1:2B) and that the damage issues must be decided based on the premise of liability (see Comment, Vote Distribution in Non-Unanimous Jury Verdicts, 27 Wash & Lee L Rev 360). Since a liability verdict has sufficient force of law to warrant the entry of judgment on it (see Matter of Parker Constr. Corp. v Williams, 35 AD2d 839; Hacker v City of New York, 25 AD2d 35), there is nothing coercive about a charge that tells the jury that liability has been determined as a matter of law, and we see no reason why a juror who has voted against liability will be unable to assess damages fairly if properly instructed (see 22 NYCRR 699.14).
IV
Finally, we conclude that no error was committed when, in response to the jury’s inquiry, the court told the jurors how their liability apportionment affected the damage verdict under consideration. Whether a special verdict jury should be told how the outcome of the case will be affected by its answers remains a matter of controversy (see Wicker, Special Interrogatories to Juries in Civil Cases, 35 Yale LJ 296, 303; Note, 58 Minn L Rev 903; Note, 43 Minn L Rev 823; Note, 61 Mich L Rev 1165; Smith,
Although the use of outcome instructions in comparative negligence actions has been rejected in some States (see, e.g., Argo v Blackshear, 242 Ark 817; McGowan v Story, 70 Wis 2d 189; see Ann., 90 ALR2d 1040), an increasing number of jurisdictions now permit such instructions either by statute (see, e.g., Col Rev Stats, § 13-21-111, subd [4]; Conn Gen Stats, § 52-572h, subd [b]; Minn Rules Civ Pro, rule 49.01; ND Cent Code, § 9-10-07; Tex Rules Civ Pro, § 277; Wyo Stats Ann, § 1-1-109, subd [b], par [iii]) or judicial holding (see, e.g., Seppi v Betty, 99 Idaho 186; Scales v St. Louis-San Francisco Ry. Co., 2 Kan App 2d 491; Porche v Gulf Miss. Mar. Corp., 390 F Supp 624;
Here, the instruction followed an inquiry from the jury that strongly implied confusion and speculation. Absent the information provided in response to the inquiry, speculation along erroneous lines might have led to an erroneous verdict (see Smith, Comparative Negligence Problems with the Special Verdict: Informing the Jury of the Legal Effects of Their Answers, 10 Land & Water L Rev 199, 226). Since we decline to assume that the jury disregarded its instructions, we cannot agree with the defendants’ contentions that the jury adjusted the verdict to compensate for the reduction caused by Jennifer’s degree of fault. The real danger was that an uninformed jury might have reduced the damage award to compensate for Jennifer’s fault and thus created the potential for an erroneous double reduction when the Judge reduced it again (see Nixon, The Actual “Legislative Intent” Behind New Hampshire’s Comparative Negligence Statute, 12 NH Bar J 17, 29). While some information obviously must be kept from a jury (see PJI 2:275.2), there was no prejudice in the court’s effort to eliminate speculation by telling the jury that the total amount of damages would be reduced by the degree of Jennifer’s fault.
Although a new liability trial is necessary, there is no need for a new damage trial. In the past, most partial retrials have been limited to damages and have occurred where liability and damages were “neither intertwined nor the result of a trade-off of a finding of liability in return for a compromise on damages” (Figliomeni v Board of Educ., 38 NY2d 178, 182; see, also, Hogue v Wilson, 51 AD2d 424; Mercado v City of New York, 25 AD2d 75). Recently, however, the Court of Appeals has permitted damage verdicts to stand while ordering that the liability issues be retried (see, e.g., Trimarco v Klein, 56 NY2d 98, 105; Ferrer v Harris, 55 NY2d 285, 295, mod 56 NY2d 737). Liability
Accordingly, the judgment should be reversed insofar as appealed from and a new trial of the first cause of action asserted in the complaint as against the appellants should be granted, limited to the issue of liability only, with costs to abide the event. The jury’s finding on the issue of damages should be affirmed.
Gibbons, Weinstein and Boyers, JJ., concur.
Judgment of the Supreme Court, Suffolk County, entered June 28, 1982, reversed insofar as appealed from, on the law, and new trial granted as to the first cause of action asserted in the complaint as against appellants, limited to the issue of liability only, with costs to abide the event. The jury’s finding on the issue of damages is affirmed.
