Sharrow v. Dick Corp.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: SIMONS; KAYE
• Citation: Sharrow v. Dick Corp., 86 N.Y.2d 54, 629 N.Y.S.2d 980, 653 N.E.2d 1150 (N.Y. 1995)
• Decision Date: 14 June 1995
• Parties: , 653 N.E.2d 1150 Lyndon P. SHARROW, Respondent, v. DICK CORPORATION et al., Defendants and Third-Party Plaintiffs-Respondents; G & H Steel Service, Inc., Third-Party Defendant-Appellant.

Page 980

629 N.Y.S.2d 980

86 N.Y.2d 54, 653 N.E.2d 1150

Lyndon P. SHARROW, Respondent, v. DICK CORPORATION et al., Defendants and Third-Party Plaintiffs-Respondents; G & H Steel Service Inc., Third-Party Defendant-Appellant.

Court of Appeals of New York June 14, 1995.

[86 N.Y.2d 55] Hurwitz & Fine, P.C., Buffalo (Theodore J. Burns, of counsel), for appellant.

Kevin J. Bauer, Brown & Kelly and O'Shea, Reynolds & Cummings, Buffalo, for defendants and third-party plaintiffs-respondents.

[86 N.Y.2d 56] Walsh, Roberts & Grace, Buffalo (Gerald Grace, Jr., of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

The dispositive issue in this appeal is whether the trial court erred in refusing to conduct a limited inquiry to determine whether six jurors participated in the deliberations on all the issues submitted to the jury. Because one juror's responses during the poll of the jury suggested she may not have participated in all of the jury's deliberations, we conclude that the order of the Appellate Division must be reversed, the judgment vacated, and a new trial ordered.

Plaintiff Lyndon Sharrow, an iron worker employed by third-party defendant G & H Steel, was injured while using a Genie hoist to move a metal lockbox during construction of the Southport Correctional Facility. He brought this action against defendant Dick Corporation, the general contractor, and defendant Southern Steel Corporation, the subcontractor for the project, alleging common-law negligence and violations of sections 200, 240(1) and 241(6) of the Labor Law. Defendants in turn brought a third-party action for contribution and indemnification against G & H Steel, plaintiff's employer. Prior to trial, Dick and Southern successfully moved for summary judgment against G & H Steel for common-law and contractual indemnification. At trial, plaintiff withdrew all his claims except that for violation of Labor Law § 241(6) and the action proceeded on that claim alone.

At the conclusion of the jury's deliberations, the foreperson announced that five members of the jury had agreed to a verdict finding defendants' violation of the statute the proximate cause of plaintiff's injuries and awarding him damages in the amount of $430,000. Counsel for G & H Steel requested that the jury be polled. Departing from the usual procedure, the court clerk conducted the poll by reading each question on the verdict sheet and then asking each juror in turn his or her verdict on the question. ¹ When the first question was asked--whether there was a violation of the Labor Law for which defendants were liable--juror No. 5 stated that her answer was "No." The clerk then read the second question--whether the Labor Law violation was a proximate cause of plaintiff's injuries--and again asked each juror "[w]hat is your verdict?" The transcript reflects juror No. 5's reply:

"juror number five: I had no--

"the clerk: Your verdict is no?

the court: Well, she didn't make a determination because she didn't move on [sic]."

When the poll on the third question--concerning the total amount of damages necessary to compensate plaintiff--reached juror No. 5, she apparently did not immediately answer. The transcript contains this exchange:

"the clerk: Number 5? No response?

"juror number five: No."

To the remaining three questions, involving specific items of damages and of plaintiff's possible negligence, juror No. 5 replied "No response."

At the conclusion of the polling and before the jury was discharged, counsel for G & H Steel asked to approach the Bench and the court temporarily excused the jury. Counsel identified what he believed to be an inconsistency in the damage amounts stated by the foreperson. He also raised the separate question whether juror No. 5's answers indicated that she had not voted on any of the questions after the first and may not have participated in the deliberations on any issue other than that of liability. Contending that G & H may have been deprived of a trial by a full jury of six members, counsel requested that the trial court conduct a "very limited questioning of this juror" to determine the extent of her participation in the deliberations. After discussion with all counsel, the trial court denied the request, and judgment was subsequently entered for plaintiff.

The Appellate Division, with two Justices dissenting, modified, by ordering a new trial on the question of damages for pain and suffering, unless defendants stipulated to an additur increasing the amount of that component of the award from $13,000 to $150,000 (204 A.D.2d 966, 612 N.Y.S.2d 537). The majority of the court rejected the contention that defendants and third-party defendant G & H Steel had been deprived of the constitutional right to trial by six jurors, contending there was no evidence that juror No. 5 had refused to participate, or been prevented from participating, in the deliberations. In addition, the majority declined to review as unpreserved the argument that plaintiff's allegations of a Labor Law § 241(6) violation were insufficient to meet the standard laid down in Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82, decided by this Court after plaintiff's trial but before the appeal came on to be heard. Third-party defendant G & H Steel and defendant Southern appealed on the basis of the two-Justice dissent at the Appellate Division. Because defendants Dick and Southern had stipulated to the additur, we granted plaintiff's motion to dismiss Southern's appeal on the basis of nonaggrievement (84 N.Y.2d 976, 622 N.Y.S.2d 905, 647 N.E.2d 110). Defendant Dick took no appeal. Thus, G & H Steel is the sole appellant before the Court.

We agree with the Appellate Division dissenters that the trial court erred in refusing to conduct a limited inquiry to determine whether juror No. 5 participated in the verdict process, an error that implicates the constitutional right to a trial by a six-member jury and mandates a new trial.

The common law required a jury of 12 members, and a unanimous verdict (see, Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854; Cancemi v. People, 18 N.Y. 128). In 1935, however, article I, § 2 of the New York Constitution was amended to authorize a legislative enactment permitting five-sixths jury verdicts in civil cases. The right to a jury trial was constitutionalized in its present form in 1938, and by then the Legislature had already enacted former Civil Practice Act 463-a (now CPLR 4113[a], authorizing the five-sixths verdict (see generally, 4 Weinstein-Korn-Miller, N.Y.Civ.Prac. p 4113.01 et seq.). When the Legislature subsequently provided, in 1972, that a civil jury "shall be composed of six persons" (see, CPLR 4104), the question arose whether a unanimous verdict rendered by five jurors was as valid as a verdict rendered by five-sixths of a six-member jury. The intermediate appellate courts addressing the question were uniformly of the view that, absent the express consent of the parties, CPLR 4104 did not diminish a party's right to a jury of six sworn to try the issues, and that all six jurors must participate in the deliberations leading to the verdict (see, Schabe v. Hampton Bays Union Free School Dist., 103 A.D.2d 418, 480 N.Y.S.2d 328; see also, Waldman v. Cohen, 125 A.D.2d 116, 512 N.Y.S.2d 205; Measeck v. Noble, 9 A.D.2d 19, 189 N.Y.S.2d 748).

In Arizmendi v. City of New York, 56 N.Y.2d 753, 452 N.Y.S.2d 15, 437 N.E.2d 274 we suggested our agreement with the view that the constitutional right to a jury trial contemplates that all six jurors participate in the deliberative process. ² Because we determined that the defendants had waived their objection to a juror's nonparticipation by failing to raise it before the trial court, we did not directly address the issue then, but today we confirm that view and hold that where the parties to a civil case have not agreed to a trial by fewer than six jurors, a valid verdict requires that all six jurors participate in the underlying deliberations. The parties are entitled to a process in which each juror deliberates on all issues and attempts to influence with his or her individual judgment and persuasion the reasoning of the other five (see, Schabe v. Hampton Bays Union Free School Dist., 103 A.D.2d 418, 427-428, 480 N.Y.S.2d 328, supra ). A juror, having disagreed with the remaining five on liability, must still participate in the deliberations. Otherwise, the jury becomes in essence one of five members only, less than the required number, and no valid verdict results from the deliberative process.

Plaintiff urges that there is "no evidence" here that juror No. 5 did not participate in all the deliberations in this case. That, however, is precisely the reason that the trial court should have conducted the limited inquiry requested, to resolve the doubts engendered by her answers during the poll. The court had the power to inquire into an "imperfect or incomplete" verdict before discharge of the jury (see, Porret v. City of New York, 252 N.Y. 208, 211, 169 N.E. 280) or if there was substantial confusion or ambiguity in the verdict (see, Pogo Holding Corp. v. New York Prop. Ins. Underwriting Assn., 97 A.D.2d 503, 505, 467 N.Y.S.2d 872, affd. 62 N.Y.2d 969, 479 N.Y.S.2d 336, 468 N.E.2d 291) and it should have done so. A contemporaneous inquiry would have provided it with the opportunity to remediate the problem, or, if necessary, to order a new trial if no other permissible remedy was available (see, Barry v. Manglass, 55 N.Y.2d 803, 806, 447 N.Y.S.2d 423, 432 N.E.2d 125).

An inquiry to clarify a verdict before discharging a...