Dixon v. Stewart

• Decision Date: 30 December 1982
• Docket Number: No. 17307,17307
• Citation: 658 P.2d 591
• Parties: Darrell E. DIXON and Nada Dixon, Plaintiffs and Appellants, v. Kathy STEWART, Defendant and Respondent.
• Court: Utah Supreme Court

Page 591

658 P.2d 591

Darrell E. DIXON and Nada Dixon, Plaintiffs and Appellants, v. Kathy STEWART, Defendant and Respondent.

No. 17307.

Supreme Court of Utah.

Dec. 30, 1982.

James R. Hasenyager, Ogden, for plaintiffs and appellants.

Gary B. Ferguson, Salt Lake City, for defendant and respondent.

DURHAM, Justice:

This is an appeal from a no cause of action judgment where the jury found the pedestrian (plaintiffs' decedent) 60% negligent and the driver of the car that hit and fatally injured him 40% negligent. The accident occurred at about 1:22 a.m. on January 1, 1979, in front of a house where a New Year's Eve party was going on. The posted speed limit along the street was 35 miles per hour. The plaintiffs' decedent, Dixon, who had been smoking marijuana, left the truck in which he had been sitting with a friend on the far side of the street away from the house and jaywalked across the street. About three feet from the curb, he faltered and was struck by the defendant, Kathy Stewart. She was traveling at approximately 40 miles per hour, had been drinking and, by the time she was tested, had a blood alcohol count of .09%. The defendant said that she saw Dixon crossing the street but when he faltered she was unable to avoid hitting him. On February 2, 1979, the defendant pled guilty to a criminal charge of "negligent homicide."

During this jury trial, the judge admitted the testimony of defendant's expert, a physician, who testified as to the general effects of marijuana usage. The admission of his testimony was based on evidence that the decedent had been smoking marijuana just prior to the accident. There was no evidence showing the exact amount of marijuana smoked by Dixon. The trial judge refused to permit the introduction into evidence of the defendant's plea of guilty to the criminal charge of negligent homicide. The court also refused to give three jury instructions requested by the plaintiffs, which are set forth hereafter. The plaintiffs claim error by the trial judge as follows:

1. Error in not instructing the jury as to the consequences of their apportionment of negligence between the parties.

2. Error in admitting the physician's testimony on the effects of marijuana usage.

3. Error in not giving a "last clear chance" instruction.

4. Error in not admitting the evidence of defendant's guilty plea in the criminal case.

5. Error in restricting the case to simple negligence.

I.

Plaintiffs' first point, which asserts that the plaintiffs were entitled to a jury instruction informing the jury of the legal consequences of its apportionment of negligence, asks this Court to overrule its decision in McGinn v. Utah Power & Light Co., Utah, 529 P.2d 423 (1974). In that opinion, this Court held that "it is prejudicial error if, in a comparative negligence case, the court instructs the jury as to the effect or impact its fact-finding answers, in a special verdict, will have on the outcome of the case." Id. at 424. A review of the context in which McGinn was decided demonstrates that it is now appropriate to reconsider that decision.

U.C.A., 1953, § 78-27-37 is Utah's comparative negligence statute permitting a negligent plaintiff to recover damages from a negligent defendant so long as the defendant's negligence is greater than the plaintiff's. U.C.A., 1953, § 78-27-38 provides that the court must, upon request of a party, direct the jury to find special verdicts determining (1) the total amount of damages suffered and (2) the percentage of negligence attributable to each party. After the jury returns its findings, the court must reduce the amount of damages in proportion to the amount of negligence found by the jury. The Utah Comparative Negligence Act, of which these two sections are a part, was enacted by the Utah legislature in March of 1973, and became effective as law in May of that year. It is nearly identical to the Idaho Comparative Negligence Act, enacted in Idaho in 1971. Like many other states, Idaho modeled its act after the Wisconsin Comparative Negligence Act.

Section 78-27-38, as noted above, makes special verdicts available at the request of a party. There is nothing in the language of the statute itself that suggests that the jury is to be kept in ignorance of § 78-27-37. Neither is there any indication in the language of either § 78-27-37 or § 78-27-38 of any legislative intent to make changes in trial procedure, or to restrict, alter or affect jury functions.

Nevertheless, the enactment of § 78-27-38 together with the McGinn decision limits the use of Rule 49 of the Utah Rules of Civil Procedure which makes special verdicts available at the discretion of the court. Rule 49(a) states that the court may require the jury to return only a special verdict and makes several suggestions as to the method of submission to the jury, concluding with the statement that the court "may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate." Subsection (b) provides that the court may submit to the jury both written interrogatories on one or more issues of fact and the appropriate forms for a general verdict. In considering the issue before us, it is important to note the following statement found in Rule 49(a), and also found in similar language in Rule 49(b): "The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue." This rule clearly vests the trial court with broad discretion in the selection of the form of verdict and the method of submission to the jury. It is doubtful that the legislature, by the enactment of § 78-27-38, intended to strip the trial court of this discretion. Professor Thode, in a 1973 Utah Law Review article, argued that the trial court could retain its discretion and make use of either Rule 49(a) or (b) and still comply with the provisions of § 78-27-38. ¹ However, if Rule 49(b), the general verdict with interrogatories, is available to the trial court and if it were used in comparative negligence actions, the law of comparative negligence and the consequences of the allocation of negligence to each party would have to be explained to the jury in order for the jury to return a general verdict.

It should be noted that there is nothing about the use of special verdicts per se that mandates keeping the jury in the dark about the effects of its findings. The issue of the "blindfolded jury" is part of a more general debate about the function of juries. ² Commentators who view the jurors as ignorant and emotional anachronisms in modern courts are naturally in favor of a strict separation between the fact-finding function of the jury and the application of the law by the court. These commentators contend that the less information jurors have about the law, the more likely they are to confine their deliberations to the finding of facts. Accordingly, the judge can then apply the law with informed accuracy to the impartial factual findings of the jury.

Commentators at the other end of the spectrum view special verdicts as something approaching unconstitutional attempts to pervert the jury system. This point of view considers the jury to be the hand of the community that tailors the strict rule of law to fit the individual case. Naturally, these commentators, when faced with the necessity of using special verdicts, argue that the jury should always be informed of the consequences of its findings. A third and more moderate point of view regards special verdicts and interrogatories as useful tools that assist jurors in making step-by-step findings in complex cases, rather than as methods by which the function of jurors may be restricted. ³ Modern studies, such as the University of Chicago's Jury Project, ⁴ as well as the experience of many trial judges and lawyers, indicate that jurors are concerned about the effects of their findings, and therefore, attempt to adjust their findings in order to bring about the result they desire. It was against this background of debate that this Court considered the case of McGinn v. Utah Power & Light Co., supra, in 1974.

In McGinn, the plaintiff received severe burns when the aluminum mast on a sailboat he was helping to carry came in contact with a hot wire on one of the defendant's transmission poles. The jury returned a special verdict concluding that the plaintiff was 60% negligent and the defendant 40% negligent which, under the provisions of the law, precluded recovery by the plaintiff. After trial, the plaintiff interviewed the jurors and discovered that the jurors had concluded that the plaintiff deserved judgment in his favor but that he should have received only 40% of the damages he asked for. Based on this information, the plaintiff moved for a new trial. The trial court granted the plaintiffs' motion on the grounds that the court had failed to instruct the jury as to the results of their percentage findings and that the jurors were not sufficiently instructed as to the relationship or lack thereof between the percentage findings and the damages. The defendant, Utah Power & Light, appealed the order granting a new trial. On appeal, the Utah Supreme Court reversed and remanded, stating that "it is prejudicial error if, in a comparative negligence case, the court instructs the jury as to the effect or impact its fact-finding answers, in a special verdict, will have on the outcome of the case." 529 P.2d at 424.

In reaching its decision this Court cited six jurisdictions with similar comparative negligence law where there was a similar prohibition against informing the jury of the effects of its negligence allocation. Particular weight was given to the decision of the Supreme Court of Idaho in Holland v. Peterson, 95 Idaho 728, 518 P.2d 1190 (1974), a case decided shortly before McGinn. McGinn itself was decided under the provisions of...