Williams v. James, SHOP-RITE

• Decision Date: 30 January 1989
• Docket Number: SHOP-RITE
• Citation: 113 N.J. 619,552 A.2d 153
• Parties: , 57 USLW 2471 Linda WILLIAMS, Plaintiff, v. Vicki C. JAMES, Jesse B. James, and Cynthia A. Henry, Defendants and Third- Party Plaintiffs, v. COUNTY OF UNION and City of Plainfield, Third-Party Defendants. Cynthia HENRY, Plaintiff-Appellant, v.OF WATCHUNG, Defendant-Respondent, and Village Supermarket, Inc., Vicki James, Jesse James, Jade Isle Restaurant, Jade Isle, Inc., and XYZ Corp. (name being fictitious), Defendants.
• Court: New Jersey Supreme Court

Page 619

113 N.J. 619

552 A.2d 153, 57 USLW 2471

Linda WILLIAMS, Plaintiff, v. Vicki C. JAMES, Jesse B. James, and Cynthia A. Henry, Defendants and Third- Party Plaintiffs, v. COUNTY OF UNION and City of Plainfield, Third-Party Defendants.

Cynthia HENRY, Plaintiff-Appellant, v. SHOP-RITE OF WATCHUNG, Defendant-Respondent, and Village Supermarket, Inc., Vicki James, Jesse James, Jade

Isle Restaurant, Jade Isle, Inc., and XYZ Corp.

(name being fictitious), Defendants.

Supreme Court of New Jersey.

Argued Oct. 25, 1988.

Decided Jan. 30, 1989.

Herbert J. Kessler, for plaintiff-appellant (Kessler & DiGiovanni, attorneys; Vincent Jesuele, on the brief).

Stanley P. Fishman, for defendant-respondent (Greenberg, Margolis, Ziegler, Schwartz, Dratch, Fishman, Franzblau & Falkin, attorneys; Stanley P. Fishman and Thomas Hendrickson, on the brief).

The opinion of the Court was delivered by

HANDLER, J.

This appeal involves a personal injury-negligence case tried before a six-member jury, which by a vote of five to one returned a verdict of no-cause for action against the plaintiff. The Court is asked to decide whether a juror who voted that neither party was at fault and thus disagreed with the majority of jurors on the issue of negligence could nevertheless subsequently deliberate and vote on the issue of how to allocate percentages of fault between the parties for purposes of apportioning damages.

The case was initiated by an action brought by the plaintiff, Cynthia Henry, against defendants, Shop-Rite of Watchung, Vicki James, and Jesse James. The claims against Shop-Rite stem from a fall on the store's premises in July 1984 and the claims against Vicki and Jesse James arose from an automobile accident in June 1985. The trial court severed the claims and ordered that the action against Shop-Rite be tried first. The liability and damages issues were then bifurcated and the initial trial was limited to the issue of liability. At the conclusion of the trial, the court submitted a form to the jury to guide its deliberations and record its verdict. It contained the following questions:

1. Was the defendant, Shop-Rite, negligent, which negligence was the proximate cause of the injuries sustained by the plaintiff?

Yes __ No __

Vote __

2. Was the plaintiff, Cynthia Henry, negligent, which negligence was the proximate cause of her injuries?

Yes __ No __

Vote __

3. What percentage of fault do you attribute to:

A. Shop-Rite________________________________________ __

B. Cynthia Henry____________________________________ __

Vote __

In its instructions to the jury, the trial court charged the jurors that they could vote inconsistently on the three questions contained in the verdict form. The court stated:

By the way, you can vote inconsistently no matter which way you voted in Question No. 2. You can vote anyway. Each question is a separate issue. Don't think you're bound because you've voted one way in a previous question and you can't vote on the next one, or you must vote consistently.

The jury returned a verdict answering questions one and two in the affirmative and then, in answer to question three, apportioned fault by attributing forty-nine percent of fault to the defendant Shop-Rite and fifty-one percent to the plaintiff. All three answers were agreed on by a five-one vote. The apportionment of more than fifty percent of fault to the plaintiff barred her recovery against the defendant.

The jury was polled pursuant to Rule 1:8-10. The poll revealed that Juror Number Two, Lisa Joyner, cast the negative vote on the first two questions concerning negligence and Juror Number Six, Henry Pastor, cast the dissenting vote on the apportionment of fault question. Joyner thus voted that neither the plaintiff nor the defendant was negligent, yet voted to attribute fifty-one percent of the fault to the plaintiff.

In a motion for a new trial, plaintiff claimed that the jury verdict was inconsistent because Joyner's vote on apportionment of fault contradicted her votes on the negligence issues. Because of this inconsistency, plaintiff alleged Joyner's vote on apportionment should have been disregarded, the effect of which would have been to reduce the jury's apportionment of fault vote to a margin of four-to-one. This would invalidate the comparative fault determination because jury verdicts cannot constitutionally be returned by less than a five-sixths vote. N.J. Const. of 1947 art. I, para. 9. The trial court denied plaintiff's motion. On appeal, the Appellate Division affirmed. This Court granted certification. Henry v. Shop-Rite of Watchung, 111 N.J. 569, 546 A.2d 498 (1988).

I.

Plaintiff contends that in this case a juror's determination that neither plaintiff nor defendant was negligent is logically inconsistent with the same juror's subsequent determination to apportion fault between the parties attributing forty-nine percent and fifty-one percent of fault to the defendant and plaintiff respectively. According to the plaintiff, once the juror determined that neither party was at fault and voted against a finding of negligence for both parties, she should have been precluded from thereafter deliberating and voting on the apportionment-of-fault issue. Had she been disqualified, this would have left only five jurors to consider the question of the apportionment of fault and, since only four other jurors agreed on the allocation of fault between the parties, the final verdict was invalid, because it was based on a vote of less than five-sixths of the jurors.

In addressing this contention, both the trial court and the Appellate Division placed considerable emphasis on Ward v. Weekes, 107 N.J.Super. 351, 258 A.2d 379 (App.Div.1969). In that case, the plaintiff sued the defendants for personal injuries. The jury rendered a verdict in his favor. However, when polled, two jurors stated that they agreed with the verdicts on liability, but not on the amount of damages awarded; two different jurors disagreed with the verdicts on liability yet agreed with the damages awards. The verdicts were therefore supported by a ten-two vote, yet the same ten jurors were not in agreement on all of the issues. The Appellate Division there held that the final verdict satisfied the constitutional five-sixths vote standard and was not invalid. It reasoned that there was nothing in the New Jersey Constitution, statutes, or rules requiring that all issues in a case be decided by the same jurors, noting that "[w]e must assume that the framers of the 1947 Constitution, the Legislature and the Supreme Court realized that 'a verdict' is a single final decision of a jury on all the factual issues submitted to it by a court for determination." Id. at 353, 258 A.2d 379 (citing Andres v. United States, 333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055 (1948)). The Ward court also believed that its determination was consistent with the policies advanced in the enactments that dispensed with the unanimity requirement in civil verdicts, namely, to overcome unjust results caused by obdurate jurors and to increase the economies of litigation by the elimination of avoidable mistrials and the reduction of court congestion and trial delays. Id, 107 N.J.Super. at 356, 258 A.2d 379.

The Ward decision did not then represent the majority approach on the issue of the validity of a non-unanimous verdict in which a juror had taken apparently inconsistent positions involving subsidiary issues. The approach then followed by most courts generally required that the same jurors had to agree on all issues or the resultant verdict was invalid. See Case Comment, "Vote Distribution in Non-Unanimous Jury Verdicts," XXVII Wash. & Lee L. Rev. 360, 362 n. 14, 363 (1970) (hereinafter Case Comment) (approach was known as the "Wisconsin rule" since Wisconsin statutorily required the same jurors to agree on all issues). The Wisconsin rule is premised on the historic common-law requirement of unanimity in jury verdicts. Id. at 363, 258 A.2d 379. This philosophy of unanimity assumed that a verdict is a "non-fragmentable totality," incompatible with the notion that different fractional groups can differ on essential issues that make up an overall verdict. Id. Such a verdict was "the expression of the concurrence of individual judgments, rather than the product of mixed thoughts." Id. (citing State v. Bybee, 17 Kan. 462, 467 (1877)). The traditional principle of unanimity was perceived to be applicable not only to the final verdict, but also to the determinations of essential facts underlying the final verdict. Id, 107 N.J.Super. at 364, 258 A.2d 379. However, even courts that adhered to the Wisconsin rule permitted non-essential issues to be determined by different fractional groups of jurors. Id. at 364 nn. 24-26, 258 A.2d 379.

The Wisconsin approach was seen as "an attempt to maintain the semblance of unanimity after the requirement of unanimity ceases to exist." Naumberg v. Wagner, 81 N.M. 242, 465 P.2d 521, 524 (N.M.Ct.App.1970). The Ward approach reflects a different philosophical underpinning that regards juror unanimity as dispensable. It gained acceptance in several jurisdictions, particularly in response to legislative enactments that dispensed with the common-law requirement of unanimity. See, e.g., Naumberg v. Wagner, supra, 81 N.M. at 247, 465 P.2d at 524 (in contributory negligence case any ten jurors could agree on any issue; a juror who found both parties negligent could not be barred from participating in the assessment of damages); Forde v. Ames, 93 Misc.2d 723, 401 N.Y.S.2d 965 (N.Y.Sup.Ct.1978) (same five jurors did not have to agree on the issues of liability and damages); Fields v. Volkswagen of America, Inc., 555 P.2d 48 (Okla.1976) (in bifurcated trial, the same ten jurors did not have to return a verdict on liability and damages).

The Ward approach assumes that juror consistency, to the extent it may be a corollary of unanimity, is not an indispensable condition in...