Russo v. Jess R. Rifkin, D.D.S., P.C.

• Decision Date: 30 December 1985
• Citation: 113 A.D.2d 570,497 N.Y.S.2d 41
• Parties: Mattia RUSSO, Jr., Respondent, v. Jess R. RIFKIN, D.D.S., P.C., Defendant, Bruce Cuttler, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 41

497 N.Y.S.2d 41

113 A.D.2d 570

Mattia RUSSO, Jr., Respondent, v. Jess R. RIFKIN, D.D.S., P.C., Defendant, Bruce Cuttler, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 30, 1985.

Nathan Cyperstein, New York City (Arthur N. Seiff, of counsel), for appellant.

Orseck, Orseck & Greenberg, Liberty (Gerald Orseck, of counsel), for respondent.

Before LAZER, J.P., and GIBBONS, BROWN and O'CONNOR, JJ.

LAZER, Justice Presiding.

The question here is whether in an action involving comparative fault there must be a new trial because the appellant's request for a special verdict was rejected by the trial court with the result that a general verdict simply stating a sum of money was rendered in favor of the plaintiff. Additionally, if the form of the verdict was fatally defective, we must determine whether the verdict could be resuscitated by juror affidavits explaining the thought processes that brought it about.

In this dental malpractice action, the plaintiff is a young man with a history of rheumatic fever with complications. He alleged that he sustained serious injuries due to an infection that followed the extraction of a tooth without appropriate special precautions by appellant, who was not aware of plaintiff's medical problems. Liability was premised on appellant's purported failure to take a proper medical history, and resolution of this issue turned upon several disputed questions involving the circumstances under which a medical history form was completed. The case presented a clear issue of comparative negligence in which the jury was required to consider both the alleged inadequacies of the procedure followed by appellant dentist and the plaintiff's failure to inform the dentist of his past medical problems.

The court properly instructed the jury on the comparative negligence issue, but denied appellant's request that the jury be instructed to return a special verdict specifying the comparative percentages of negligence if any, attributable to either party and the total amount of damages before any reduction was made on the basis of comparative negligence. The court based its decision on two grounds: (1) a stipulation the parties had entered into which the court interpreted as authorizing a general verdict, and (2) the belief that a special verdict was necessary only in bifurcated trials, which this was not. The jury was instructed to return a general verdict, and, in accordance with this instruction, it rendered a verdict of $1,055,700 for plaintiff by a vote of five to one. Plaintiff then moved that the jury be asked what their comparative negligence findings were, but the motion was denied. Appellant subsequently moved to set the verdict aside on a variety of grounds, of which the only one requiring a discussion was the denial of the request for a special verdict. Responding to the motion to set aside, plaintiff submitted a joint affidavit by five jurors, four of whom had voted for the verdict and one of whom had opposed it, declaring that the jury had found that the total damages suffered by plaintiff were $1,173,000, that plaintiff was responsible for 10% of his injuries, and that they had accordingly deducted 10% from that amount to arrive at their verdict. The motion to set aside was denied and the appeal is from the judgment subsequently entered on the verdict. We conclude that the refusal to submit the issues in the form of a special verdict constituted an abuse of discretion fatal to the verdict and that juror affidavits are not available to cure a defect of that nature.

General verdicts have been described as being "as inscrutable and essentially mysterious as the judgment which issued from the ancient oracle of Delphi" (Sunderland, Verdicts, General and Special, 29 Yale L J 253, 258). Whatever the acceptability of such determinations in less complicated times, in this era of complex issues and comparative fault, the necessity that appellate bodies be provided with some illumination of the jury's rationale has been rendered quite acute. In providing that illumination, the special verdict has the advantage of offering a more precise definition of the jury's finding (see, Lipscomb, Special Verdicts Under the Federal Rules, 25 Washington U L Q 185, 213-214), and it is for that reason that the appellate judiciary and legal commentators have repeatedly suggested that special verdicts or general verdicts with interrogatories be utilized in comparative fault cases (see, Collins v. Weinberg, 88 A.D.2d 1037, 453 N.Y.S.2d 49; Radtke v. Yokose, 87 A.D.2d 220, 453 N.Y.S.2d 43; Noga v. Monroe Medi-Trans, 78 A.D.2d 988, 433 N.Y.S.2d 927, appeal dismissed 53 N.Y.2d 916, 440 N.Y.S.2d 634, 423 N.E.2d 57; 1 PJI 2:36, p 76 [1984 Supp]; see, Siegel NY Prac § 299, at p 522; Prosser, Comparative Negligence, 51 Mich L Rev 465; Timmons and Silvis, Pure Comparative Negligence in Florida, 28 U Miami L Rev 737; Note, Judicial Adoption of a Comparative Negligence Rule in Illinois, 1967 U Ill L F 351). Indeed, in some jurisdictions, the requirement is statutory (see, e.g., Kan Stat Ann § 60-258a [b]; NJ Stat Ann § 2A:15-5.2) or by court rule-making (see, NM Supreme Court Order No. 8000, Misc [March 30, 1981] ), but judicial gloss has achieved the same result in a number of other jurisdictions (see, Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511; Lawrence v. Florida East Coast Ry Co., 346 So.2d 1012 [Fla] ).

Our own attitude toward verdicts unsusceptible to intelligent review was quite recently reflected in Mertsaris v. 73rd Corp., 105 A.D.2d 67, 88, 482 N.Y.S.2d 792, where we "call[ed] to the attention of the trial bench the clear necessity for requiring special findings by the jury * * * in cases such as this * * * where the basis of the jury's determination cannot otherwise be determined and disclosure of the correct basis will be necessary for adequate appellate review". Our current holding was also foreordained in Davis v. Caldwell, 54 N.Y.2d 176, 445 N.Y.S.2d 63, 429 N.E.2d 741, where the Court of Appeals dealt with a somewhat similarly mystifying general verdict. There, the jury rendered a general verdict in a case where the plaintiff relied on five separate theories of liability and the record supported the sufficiency of only three of them. The Davis court concluded that it was not possible to determine on appellate review whether the jury's verdict was based on one of the insufficient theories and a new trial was granted. A special verdict asking the jury's judgment on each of plaintiff's theories would have avoided the necessity for the retrial in...