Aiello v. Wenke
| Decision Date | 22 March 1983 |
| Citation | 118 Misc.2d 1068,462 N.Y.S.2d 949 |
| Court | New York Supreme Court |
| Parties | William J. AIELLO & Patricia Aiello, Plaintiffs, v. Jennifer J. WENKE, Defendant. |
The issues arising in an automobile negligence case were submitted to the Jury by way of a special verdict following a three day trial at a term of Supreme Court, Cattaraugus County, on February 18, 1983.
The findings of 5/6ths of the Jury was that the plaintiff, William Aiello, did sustain a serious injury within the meaning of Section 673 Ins. Law on two separate counts viz: a significant limitation of use of a bodily function and disability for at least 90 out of the 180 days immediately following the injury. Juror number 6 dissented to both findings.
On the issues of negligence and contributory negligence, 5/6ths of the Jurors found the defendant negligent, juror number 3 dissenting. On the issue of contributory negligence 5/6ths of the Jury found the plaintiff contributorily negligent, Juror number 4 dissenting.
The percentage of the defendant's negligence was determined to be 35% by 5/6ths of the Jury, with Juror number 3 dissenting. The percentage of the plaintiffs negligence was determined to be 65% again with Juror number 3 dissenting.
The total amount of damages of the plaintiff, William Aiello, without consideration of fault was determined to be $2,500.00, Juror number 6 dissenting.
The answer to the interrogatory of whether or not the plaintiff, Patricia Aiello, sustained any damage on her derivative cause of action for loss of her husband's services, was a unanimous "no" on the part of all 6 Jurors.
On the finding of the Jury, the Court directed the entry of a judgment in favor of the plaintiff, William Aiello, for $875.00 and further directed the entry of a judgment of no cause of action in favor of the defendant on the action of Patricia Aiello.
Wholly dissatisfied with the results, the Attorney for the plaintiffs moved to set the special verdict of the jury aside as to the plaintiffs contributory negligence as being "incredible", against the weight of evidence and inconsistent. Plaintiff further moved to set the findings of damages for the plaintiff, William Aiello, aside as inadequate. Finally, plaintiff moved to set the findings of no damages to the plaintiff's wife, Patricia Aiello, aside as being incredible as a matter of law, inconsistent and inadequate. The Court reserved decision.
Plaintiffs then in accordance with the provisions of CPLR 4404-4406 brought on the matters urged orally by a written notice of motion.
While plaintiffs charge several errors their principal attack is directed to the voting pattern of Juror number 4. That Juror did not join the other five jurors in their finding that the plaintiff was negligent. Yet that Juror, number 4, was one of the five Jurors who participated in the determination of comparative negligence and found the defendant 35% negligent and the plaintiff 65% negligent.
The principal contention of the plaintiff is that the inconsistent voting pattern of Juror number 4 requires the verdict to be set aside and a new trial ordered.
Necessary to a proper consideration of the plaintiffs' arguments on this motion are the following foundational facts.
First, the case was submitted to the jury for a special verdict. If one considers a verdict as a declaration by a jury of a finding in favor or against a party, the term special verdict is a misnomer. This is for the reason that "a special verdict is one in which the jury finds the facts only, leaving the court to determine which party is entitled to judgment thereon". See definition in CPLR, Sec. 4111, Subd. (a).
While the submission of a case to a jury for a special or general verdict lies within the discretion of the trial judge under the provisions of CPLR, Sec. 4111, Subd. (a), in the instance in question, the case was submitted for a special verdict with the concurrent agreement of both the attorneys for the plaintiffs and the defendant. All interrogatories submitted by the court to the jury were reviewed by the attorneys in a conference with the court in advance of the court's charge. With a minor revision to one of the interrogatories they were then approved by the attorneys. There was no exception or objection ever made to a special verdict submission, nor to the interrogatories that formed that submission. Upon the return of the jury the court directed the completed interrogatories to be marked as exhibits of the court and preserved as a part of the record.
The reason which prompted the court to submit the case to the jury for a special verdict was attempted compliance with the direction made in Noga v. Monroe Medi-Trans, 78 A.D.2d 988, 433 N.Y.S.2d 927 (1980). There the Fourth Department, Appellate Division, after acknowledging the discretion granted the trial court under CPLR, Sec. 4111, Subd. (a) stated, nonetheless, that in an action in which comparative negligence was involved "trial courts should direct the jury to return either a special verdict (CPLR, 4111 Subd. (b)), or a general verdict accompanied by answers to interrogatories (CPLR 4111, Subd. (c)) to permit more precise appellate review". The instant motion points up one of the hazards which can flow from special verdicts or general verdicts with interrogatories.
Secondly, there is no legal inconsistency in the answers which the jury collectively made to the interrogatories. In the opinion of the court, nothing is more important to note than that any inconsistency in the special verdict in issue lies in the inconsistent vote of one juror and not in the collective vote of 5/6ths of the jury membership on the questions submitted. It is this feature which makes the case for decision unique and one of first impression.
Here, five of the six jurors were in agreement on all issues submitted, except one. As to that one, which related to the derivative action of the plaintiff-wife, all six jurors were unanimous in awarding her no damages.
We note again for emphasis, there was no internal legal inconsistency in the answers given by the jury to the interrogatories submitted. Those answers formed a perfect pattern for the entry of judgment by the court in favor of the plaintiff, William Aiello, for $875. Such judgment was premised on the jury's determination that his injury was a serious injury within the meaning of Section 673 of the Insurance Law. The defendant was found negligent. The plaintiff was found contributorily negligent. The determined percentage of negligence was 65% on the part of the plaintiff and 35% on the part of the defendant. The total damages of the plaintiff, without consideration of fault were determined by the jury to be $2500. As a consequence, the court directed entry of a judgment in favor of the plaintiff, William Aiello and against the defendant for $875.
Similarly, in connection with the derivative action of the plaintiff-wife, Patricia Aiello, the jury's answers to the interrogatories were consistent. The jury's determination that she sustained no damages formed a consistent legal pattern for the entry by the court of a judgment by the court in favor of the defendant and against the plaintiff of no cause of action.
The brief submitted by the attorney for the plaintiffs was comprehensive and helpful. Between the authorities cited in that brief and others discovered by the court in its research, the court is reasonably satisfied that the applicable decisional law of New York has been reviewed.
Of the several cases reviewed, this court has found only two that involve a submission to the jury by way of a special verdict. All of the other cases cited or discovered involve a submission to the jury for a general verdict or a submission to the jury for a general verdict with accompanying interrogatories.
The first case involving a special verdict submission to a jury was Orens v. Secofsky, 60 A.D.2d 866, 401 N.Y.S.2d 259 (Second Dept., 1978). There, as in the case at bar, the issues were presented to the jury as a special verdict with requirement only that the jury answer and sign written interrogatories. There too, as in the instant case, a different juror dissented on the questions presented. The court noted that 5/6ths of the jurors had answered in the affirmative to a question of whether one defendant was negligent, but had answered in the negative a question of whether that defendant's negligence was a proximate cause of the accident. Stating that the inconsistency was a "disquieting factor", the court determined that the special verdict would, nonetheless, stand as given by the jury. In doing so, the court observed that the parties had stipulated to the submission of written interrogatories and thus, the court stated, they had "chartered their own course".
For the purpose of the motion at hand, it is important to note that Orens v. Secofsky, stands four square for the proposition that a special verdict by the jury is to stand, not only despite inconsistent answer on the part of an individual juror, but more particularly, it is to stand despite internal legally inconsistent answers given to the interrogatories by 5/6ths of the jurors.
The second case that involved a special verdict submission was Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451 (1980). This case was decided by the Court of Appeals two years after the decision of the Second Department in Orens v. Secofsky. The case affords insight to the problem at hand. It turned on a legally internal inconsistency in the answers which the jury made to the interrogatories submitted. The inconsistency was that the jury had found that there was no foreseeability, but had also found that the defendant's negligence was the proximate...
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