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Shoup v. Wal-Mart Stores12/13/2000
question, was the defendant negligent in one or more of the ways claimed? And then if yes, or no, they can move on to the next questions."
The following colloquy ensued:
"[PLAINTIFF'S COUNSEL]: If I may, your Honor, the purpose of having the two questions is really just so if there is any appeal issue as to your rulings * * * on the directed verdict motion issues * * * that we will know what the jury based their decision on * * * *. We could dissect what the jury had decided, for purposes of appeal. That's really the only reason to separate them.
"[DEFENSE COUNSEL]: Well, I don't know that that's reason to separate out items on the verdict form. And I'm trying to think if there's any cases on that. But if all of the allegations that the plaintiff makes -- if they're satisfied those are appropriate allegations under the law, I don't know that we need to list them out specifically on the verdict form.
"And I think, furthermore, it creates prejudice in the way that this is set up to have the jury, in effect, considering the negligence question twice. It unfairly emphasizes that portion of the case.
"[PLAINTIFF'S COUNSEL]: I don't actually -- I feel strongly in that I -- in preserving the appeal issues, but frankly, I mean, it might actually assist the defense more in the appeals issues. I am satisfied with the claims as they exist, and if there is an objection to this form it might create error, I would withdraw the request, and therefore agree to [defendant's] form.
"THE COURT: I'll give [defendant's] form * * *."
Plaintiff points to that sequence and argues that it was defendant who requested the generalized verdict form used here; that plaintiff's proposed form would have allowed us to determine which specification of negligence was the basis of the jury's decision; and that defendant is responsible for the fact that that more detailed form was not submitted to the jury because defendant objected to the use of that form. Plaintiff thus reasons that defendant created the situation by which "we can't tell" which specification the jury relied upon and, consequently, defendant cannot now invoke Whinston to upset the verdict.
We reject those arguments for two related reasons. First, those arguments misapprehend the parties' respective roles vis-à-vis the "we can't tell" principle. Second, defense counsel's conduct before the trial court neither prospectively waived invocation of the "we can't tell" principle nor invited any erroneous judicial ruling.
We emphasize, at the outset, the singular nature of the "we can't tell" doctrine and of the functional "burdens" it implicitly assigns to litigants. Under that doctrine, as formulated in Whinston, a defendant is entitled to a new trial if: (1) multiple specifications of negligence are submitted to the jury; (2) at least one of those specifications is legally or factually deficient; and (3) the jury returns a general verdict. The defendant is not obligated to prove that the jury's verdict was, in fact, based on that deficient specification. Rather, the defendant must only "have taken some action at trial to remove the unsupported allegation from the jury's purview." Whinston, 309 Or at 359. Nothing more.
Conversely, a plaintiff can avoid the doctrine by persuading the trial court to undertake measures that permit the reviewing court to determine whether the jury's verdict was based on a sufficient specification--i.e., that the erroneous denial of the directed verdict motion and the submission of the flawed specification was truly harmless error. As the court explained in Whinston:
"In the future, a careful practitioner may wish
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