Coleman v. Hermann
| Decision Date | 21 July 1983 |
| Docket Number | No. 82-740,82-740 |
| Citation | 72 Ill.Dec. 367,452 N.E.2d 620,116 Ill.App.3d 448 |
| Parties | , 72 Ill.Dec. 367 Chris A. COLEMAN, Plaintiff-Appellant, v. David J. HERMANN, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Abbamonto, Szura & Binder, Woodstock, Gail A. Moreland, for plaintiff-appellant.
Myron J. Hall, Ltd., Carolyn A. Brown, Waukegan, for defendant-appellee.
The principal issue in this appeal is whether the failure to submit a general verdict form to the jury in a comparative negligence case invalidates its verdict. Plaintiff additionally urges that the verdict is against the manifest weight of the evidence and claims error in the direction of a verdict for the defendant on a count of willful and wanton misconduct.
The plaintiff tendered Illinois IPI general verdict forms (Illinois Pattern Jury Instructions, Civil, No. A45.09 (2d ed. 1981 Supp.)) (hereinafter cited as IPI Civil). The court refused these verdict forms and over a general objection by the plaintiff gave the following non-IPI verdict form tendered by the defendant:
"We, the Jury, find the following special
verdict on the issues submitted to us:
Issue No. 1. Was the Defendant negligent?
------------
Answer "yes" or "no" by placing a mark in the
appropriate box.
Answer: [ ] Yes [ ] No
If you have answered Issue 1 "yes", then
answer the next issue.
Answer "yes" or "no" by placing a mark in the
appropriate box.
Answer: [ ] Yes [ ] No
If you have answered both Issue No. 1 and
Issue No. 2 "yes", also answer the next issue.
Issue No. 3. Was the Plaintiff negligent?
------------
Answer "yes" or "no" by placing a mark in the
appropriate box.
Answer: [ ] Yes [ ] No
If you have answered Issue No. 3 "yes", then
answer the next issue.
Answer "yes" or "no" by placing a mark in the
appropriate box.
Answer: [ ] Yes [ ] No
If you have answered both Issue No. 1 and
Issue No. 2 "yes", then answer the next issue.
Issue No. 5. Without taking into consideration
------------
the question of reduction of damages due to
the negligence of the Plaintiff, if any, what is
the total amount of damages suffered by the
Plaintiff as a proximate result of the occurrence
in question? Answer: $ _______________
If you have answered Issues 1, 2, 3 and 4
"yes", then answer the next issue.
Issue No. 6. Assuming that 100% represents
------------
the total combined negligence of the Plaintiff
and of the Defendant whose negligence contributed
as a proximate cause to Plaintiff's injury, what
proportion of such combined negligence is
attributable to the Plaintiff on the one hand and
what proportion is attributable to the Defendant on
the other hand?
Answer: To Plaintiff (0% to 100%) __________%
To Defendant (0% to 100%) __________%"
(Signatures) The jury answered "No" to the first question and the trial court entered judgment for the defendant. It appears from the legend on the copy of the instruction in the record that it had been adapted from Michigan and California Pattern Jury Forms.
Section 2-1108 of the Code of Civil Procedure, formerly section 65 of the Civil Practice Act, provides that "[u]nless the nature of the case requires otherwise, the jury shall render a general verdict." Ill.Rev.Stat.1981, ch. 110, par. 2-1108.
Plaintiff argues that the form submitted to the jury was a special verdict, that this violated section 2-1108, and thus that the court's entry of judgment on this verdict cannot stand. We agree that the form employed was a special verdict form. In rendering a general verdict the jury determines the ultimate result of the case. (Smith v. Gizzi, 564 P.2d 1009, 1013 (Okl.1977); Thorne v. Thorne, 350 S.W.2d 754, 757 (Mo.1961).) By a special verdict, the jury, instead of finding for either party, finds and states all the facts at issue, and concludes conditionally that if, upon the whole matter thus found the court should be of the opinion that the plaintiff has a good cause of action, it then finds for the plaintiff and assesses damages, thus limiting itself to finding ultimate facts and leaving the law to the court. (Crooks v. Sayles, 39 Ill.App.2d 22, 28, 187 N.E.2d 742 (1963); C. & N.W. Ry. Co. v. Dunleavy, 129 Ill. 132, 142, 22 N.E. 15 (1889).) The verdict form here consists of a series of questions and ultimate fact issues without any opportunity for the jury to declare a holding one way or the other and thus at least in form the jury rendered a special and not a general verdict. Plaintiff contends, however, that the language "unless the nature of the case requires otherwise," applies to comparative negligence cases because by their nature they require juries to estimate the relative negligence of the parties and reduce plaintiff's damages accordingly, thus necessitating a special verdict.
It appears that the quoted language was added to the former section 65 because the provision in the Civil Practice Act of 1907 for a special verdict was deleted from the 1933 Civil Practice Act. This was viewed as having abolished the special verdict in Illinois. (Ill.Ann.Stat., ch. 110, par. 65, Committee Comments, at 251-52 (Smith-Hurd 1968).) The argument that the qualifying language, which was added in 1955, applies to all comparative negligence cases where plaintiff's negligence is in issue has been rejected by several recent appellate court opinions which found no error in the submission of a general verdict (IPI Civil No. A45.09) or a modified general verdict (IPI Civil Nos. A45.07, A45.08). See, Hazelwood v. Illinois Central Gulf R.R., 114 Ill.App.3d 703, 709, 71 Ill.Dec. 320, 450 N.E.2d 1199 (1983); Stromquist v. Burlington Northern, Inc., 112 Ill.App.3d 37, 45, 67 Ill.Dec. 629 444 N.E.2d 1113 (1983); Hunter v. Sukkar, 111 Ill.App.3d 169, 177, 66 Ill.Dec. 848, 443 N.E.2d 774 (1982).
We have found no Illinois cases, however, which decide the issue before us: whether the refusal to submit a general verdict or a modified general verdict form in a comparative negligence case is error. Nor have we found any Illinois case explaining the import of the language "[u]nless the nature of the case requires otherwise."
The defendant argues that Alvis v. Ribar, 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886 (1981) impliedly fit comparative negligence within the qualifying language of section 2-1108 when it stated that "the use of special verdicts and special interrogatories will serve as a guide to assist the jury in its deliberations." (85 Ill.2d 1, 28, 52 Ill.Dec. 23, 421 N.E.2d 886.) The court in Alvis, in our view, was merely responding to the arguments that the doctrine of comparative negligence was unworkable because juries are incapable of apportioning fault scientifically. It is not authority that comparative negligence requires dispensing with otherwise mandatory general verdicts. Generally, the availability of special interrogatories and modified general verdicts would appear to sufficiently supplement the use of a general verdict in a comparative negligence case, without dispensing with the general verdict. Any ambiguity in the jury's apportionment of fault and consequential reduction of damage can be avoided by the submission of special interrogatories and/or the modified general verdict form. (See e.g., Hunter v. Sukkar, 111 Ill.App.3d 176, 178, 66 Ill.Dec. 848, 443 N.E.2d 774.) Moreover, the supreme court in Alvis, if it had intended to require special verdicts in comparative negligence cases, presumably would have said so directly as it had before it the examples of opinions in Michigan and Florida to follow in which the form of verdict was provided in the opinion. See Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511, 520 (1979); Hoffman v. Jones, 280 So.2d 431, 439 (Fla.1973).
We would agree that the qualifying language of section 2-1108 must be given some meaning and does not entirely rule out special verdicts if the nature of the particular case, whether sounding in comparative negligence or otherwise, requires something other than a general verdict to achieve just results.
The qualifying language appears to be unique to Illinois. Other jurisdictions, however, have dealt with the general problem of verdicts in unusually complicated cases. Essentially, cases from jurisdictions which allow special verdicts explain that special verdicts are preferable, although not necessarily mandatory, in cases that are unusually complex factually or require application of difficult or especially subtle legal principles to the facts. Under such circumstances a general verdict might well amount to an invitation to an arbitrary or unsoundly based decision because the jury would simply have too much to handle. Thus, in a case involving complex principles of indemnity law as well as negligence of various sorts, a Federal district court gave a special verdict form to the jury, rather than go through a long series of involved instructions on the applicable legal principles which it would have had to do if it had submitted a general verdict. On post-trial review this procedure was upheld, the court commenting:
"Faced with all these principles which would have to be explained to the jury, were general verdicts to be asked of them in both these cases, the court concluded that any such complex general charge would inevitably give the jurors such an attack of intellectual indigestion that their verdicts could not possibly be based understandingly on the principles of law involved, and that injustice was accordingly only too apt to result." Flusk v. Erie R. Co., 110 F.Supp. 118, 121 (D.N.J.1953).
(See also Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843, 850 (1978); Harless v. First Nat. Bank in Fairmont, 289 S.E.2d 692, 698 (W.Va.1982); Envirex, Inc. v....
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