Defense Digest

Does The Majority Always Rule?

No, this is not a story of Red States, Blue States and the Electoral College. Nor is it a plea for a playoff system in college football. Rather, this is a story about a recent Pennsylvania Supreme Court case that reviewed what constituted a majority on a civil jury.

Amazingly, it took until the year 2006 for the Supreme Court of Pennsylvania to decide when a majority was actually a majority in regard to counting the votes of jurors in a civil matter.

In the case of Darla Fritz and Gordon Fritz v. Hazel Wright, et al, 907 A.2d 1083; 2006 Pa.LEXIS 2026, the Supreme Court of Pennsylvania, on October 18, 2006, decided that when ten jurors agree on a specific interrogatory, they form a majority as to the overall verdict, even when different jurors in the same group vote differently on separate questions on the jury interrogatories sheet.

The underlying facts are that the plaintiff was injured on November 17, 1998, when he slipped and fell on the defendant's driveway. He alleged soft tissue injuries and allegedly was out of work for over a year.

The subsequent lawsuit was filed in November of 2000, alleging negligence with respect to the maintenance and design of the defendant's driveway.

On February 3, 2003, trial began before a twelve-member jury.

After a three-day trial, the jury returned a verdict in the amount of $51,300 in favor of the plaintiff. At the request of the plaintiff's counsel, the jury was polled, twice.

At that point, the judge reached a conclusion that the jury had not reached a proper verdict, as ten out of the twelve jurors did not agree on the amount of damages awarded to the plaintiff. During the polling, it was determined that only nine out of the twelve jurors believed that the appellant should be awarded $51,300.

It is important to note that in this case, as in a lot of civil cases, special interrogatories were used for the jury. Those interrogatories were as follows:

The court then ordered further deliberations. Again, the jury came back in favor of the plaintiff with an award of $51,300. The court again polled the jury.

The jury responded that they were unanimous that the defendants were negligent, in response to question 1; that defendants' negligence was a substantial factor in causing the plaintiff's harm, in response to question number 2; and in response to question number 3, that the plaintiff was contributorily negligent.

As to question 4, regarding the plaintiff's contributory negligence being a substantial factor, ten jurors agreed that it was not, while juror number 4 and juror number 8 stated that the plaintiff's contributory negligence was a substantial factor in bringing about his harm.

On question number 6, regarding the amount of damages, while ten jurors believed that the plaintiff should be awarded $51,300 in damages, jurors number 4 and 9 stated that the plaintiff should only receive an award of $6,300. As summarized by the court at page 2 of the Opinion, "Thus, while ten jurors agreed on each individual interrogatory, the identities of the dissenters as to questions 4 and 6 were not consistent, and therefore, the same ten jurors did not agree as to all of the questions material to the verdict and award."

At this point, defendants' counsel moved for a mistrial, stating that the jury was obviously confused and had not reached a proper verdict as the same ten jurors did not agree on each question.

The trial court denied this request and concluded that the jury had reached a proper verdict as at least ten out of twelve jurors agreed on every question on the verdict slip.

The trial court summarized by stating that it was understandable that some jurors reached different conclusions about how to justly compensate the plaintiff in light of the evidence that was presented regarding damages in the same way that they differed regarding the evidence presented as to the plaintiff's contributory negligence. The trial court denied the defense motion for a mistrial.

Thereafter, the defendants appealed to the Superior Court, urging it to overturn the verdict as only nine jurors were unanimous with "the verdict." Thereafter, a divided panel of the Appellate Court agree with the defendants and vacated the judgment and remanded for a new trial. The appeal to the Supreme Court followed.

Not surprisingly, the Supreme Court looked to the Pennsylvania Constitution for guidance.

In 1971, the Pennsylvania Legislature changed the Pennsylvania Constitution to replace the traditional requirement of an unanimous jury verdict with a 5/6 Rule in civil cases. The Legislature stated, "A verdict rendered by at least 5/6 of the jury shall be the verdict of the jury and shall have the same effect as an unanimous verdict of the jury." 42 Pa.C.S.§5104(b).

In an attempt to narrow the issue, the Supreme Court had granted allocatur to determine if the Pennsylvania Constitution required that the same ten jurors vote unanimously on each question listed on the verdict sheet.

Looking at the language from §5104(b) that "at least 5/6 of the jury shall be the verdict of the jury," the Supreme Court went on to determine the meaning of the word "verdict" as used in the Amendment to the Constitution.

The Superior Court determined that the word "verdict" meant that the jurors must agree with all of the interrogatory questions.

In disagreeing with that interpretation, the Supreme Court went on to examine the difference between general verdicts and the use of verdicts with special interrogatories. It should be noted that special interrogatories are not a matter of right but are left to the discretion of the trial court.

The Supreme Court looked to the overall effect of what the jury was trying to say in the totality of answering the special interrogatories. Thus, they found that when special interrogatories are used in connection with a general verdict, "the jury's decision is the general verdict, not the answers to the individual interrogatories."

How does this decision affect the cases that you elect to try?

The first point is to note that special interrogatories, although frequently used, must be proposed by counsel if they are not part of the trial court's usual protocol.

Significant time and effort should be put into the interrogatories, and there will have to be give-and-take with plaintiff's counsel or other defense counsel, especially when cross claims and/or counterclaims have been asserted.

The decision makers for the defendants and the insureds should have input into these discussions, and a record must be made so that it can be protected if an adverse ruling is rendered by the court and/or jury.

It is also important for defense counsel to remember this rule in voir dire, opening statements and closing arguments.

It is amazing that it took so long for this so-called problem to reach the Supreme Court. However, it is important for all participants in the trial process to realize that the majority actually does rule. I believe that much discussion can be made about this holding, especially in product liability cases where there would be both strict liability defendants and/or negligence defendants. Again, consideration should be made in that last month or so leading up to trial when considering and submitting special interrogatories for the court's review.

* Dave is a shareholder in the King of Prussia, Pennsylvania, office. He can be reached at (610) 354-8262 or dfwhite@mdwcg.com.