Schabe v. Hampton Bays Union Free School Dist.

• Decision Date: 01 October 1984
• Citation: 480 N.Y.S.2d 328,103 A.D.2d 418
• Parties: , 20 Ed. Law Rep. 929 Jennifer SCHABE, an infant, etc., et al., Respondents, v. HAMPTON BAYS UNION FREE SCHOOL DISTRICT, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 328

480 N.Y.S.2d 328

103 A.D.2d 418, 20 Ed. Law Rep. 929

Jennifer SCHABE, an infant, etc., et al., Respondents, v. HAMPTON BAYS UNION FREE SCHOOL DISTRICT, et al., Appellants et al., Defendants.

Supreme Court, Appellate Division Second Department.

Oct. 1, 1984.

O'Brien, McGarry, Murtagh & Mayr, Rockville Centre (James M. O'Brien and Kevin J. Murtagh, Rockville Centre, of counsel), for appellants.

Cordes & Tonetti, Hauppauge (John F. Cordes, Jr., of counsel), for respondents.

Before LAZER, J.P., and GIBBONS, WEINSTEIN and BOYERS, JJ.

LAZER, Justice Presiding.

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 tort-feasor's settlement will serve to reduce the remaining tort-feasor'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 5th 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 waved on by the shuttle bus driver. At that point, Jennifer ran into the driveway, slipped while trying to avoid the oncoming bus, and was pinned beneath its right front wheel.

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 5th 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 question 3, the jury found the bus company free of negligence, with juror number 4 dissenting; the next question relative to proximate causation was skipped because of this finding. By their fifth and sixth answers, the jury found Jennifer's conduct negligent and a proximate cause of the injury, but juror number 1 dissented. In their last answer, the jury apportioned 59% of the negligence to the school district and 41% to Jennifer, with juror number 2 dissenting.

After the trial proceeded through its damage phase, the jury was instructed to arrive at "a one hundred percent 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 approved by the identical five jurors. The Appellate Division, First Department, has held that any five jurors can answer questions in a general verdict accompanied by interrogatories (CPLR 4111, subd. ), but even that issue was not before the Court of Appeals when it affirmed the judgment in that case (see Bichler v. Lilly & Co., 79 A.D.2d 317, 436 N.Y.S.2d 625, affd. 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182). The trial courts have divided on the question (compare Aiello v. Wenke, 118 Misc.2d 1068, 462 N.Y.S.2d 949; Forde v. Ames, 93 Misc.2d 723, 401 N.Y.S.2d 965; Reed v. Cook, 103 N.Y.S.2d 539; PJI 1:96, 1:97 with Cohen v. Levin, 110 Misc.2d 464, 442 N.Y.S.2d 851; Murphy v. Sherman Transfer Co., 62 Misc.2d 960, 310 N.Y.S.2d 891 ) as have jurisdictions across the country (compare McChristian v. Hooten, 245 Ark. 1045, 436 S.W.2d 844; Juarez v. Superior Court of Los Angeles County, 31 Cal.3d 759, 183 Cal.Rptr. 852, 647 P.2d 128; Tillman v. Thomas, 99 Idaho 569, 585 P.2d 1280; Ward v. Weekes, 107 N.J.Super. 351, 258 A.2d 379; Naumburg v. Wagner, 81 N.M. 242, 465 P.2d 521; Bullock v. Yakima Valley Transp. Co., 108 Wash. 413, 184 P. 641 with Baxter v. Tankersley, 416 S.W.2d 737 Ferguson v. Northern States Power Co., 307 Minn. 26, 239 N.W.2d 190; Plaster v. Akron Union Passenger Depot Co., 101 Ohio App. 27, 137 N.E.2d 624; Clark v. Strain, 212 Or. 357, 319 P.2d 940; McCauley v. International Trading Co., 268 Wis. 62, 66 N.W.2d 633 ).

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; N.Y. 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. Subdivision (a) of CPLR 4113 tells us that "verdict may be rendered by not less than five-sixths of the jurors constituting a jury" and subdivision (b) of CPLR 4111, 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 absence of indications of intent in the statute relevant to the current issues, we are left to divine legislative purpose through the use of other construction devices.

One such device of...