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Shoup v. Wal-Mart Stores12/13/2000
to guard against an untoward outcome * * *. Through the use of a special verdict, or by the use of a general verdict accompanied by answers to interrogatories, the trial and appellate courts would be able to determine if the jury verdict were based on an allegation supported by the evidence." 309 Or at 359 n 10 (citations omitted). See, e.g., Graham, 160 Or App at 3, 7.
Thus, under Whinston, once the defendant/appellant demonstrates error, the plaintiff/respondent bears the burden of demonstrating that the error was harmless. If there is a general verdict, without refinement or amplification, the plaintiff cannot sustain that burden. Consequently, it is incumbent upon a plaintiff at trial to take the steps necessary to ensure that a reviewing court can determine whether error was, in fact, harmless.
Here, plaintiff failed in that burden. Although plaintiff's counsel initially tendered the special verdict form, heeding Whinston's advice for the "careful practitioner," 309 Or at 359 n 10, plaintiff's counsel then withdrew the special verdict form in the face of defense counsel's opposition. Consequently, we can't tell whether the erroneous submission of paragraph 5(b) to the jury was harmless. The issue thus narrows to whether defendant's opposition to the proposed special verdict form somehow excuses or relieves plaintiff of the burden of proving the harmlessness of the error.
Plaintiff first styles defendant's opposition as embodying a species of "invited error." That argument fails because the "invited error" principle necessarily assumes that there was a ruling by the trial court. Without a ruling, there can be no error. See, e.g., Kentner v. Gulf Ins. Co., 298 Or 69, 73, 689 P2d 955 (1984) (trial court's admission of evidence is not reversible when party assigning error introduced the evidence in question at trial). Here, there was no ruling as to the propriety of a special verdict because plaintiff withdrew her proposed form before the court made any ruling.
Nor can the trial court's submission of the general verdict form to the jury be cast as the operative "ruling" for "invited error" purposes. Even assuming that plaintiff might have been entitled, upon request, to have an appropriate special verdict form submitted to the jury, see Whinston, 309 Or at 359 n 10, once plaintiff withdrew her proposed verdict form and explicitly acquiesced in the submission of defendant's form, the court did not, and could not, err in submitting the general form to the jury. "Invited error" is inapposite.
We proceed, then, to waiver. Waiver is the "voluntary relinquishment of a known right." Alderman v. Davidson, 326 Or 508, 513, 954 P2d 779 (1998). In Waterway Terminals Co. v. P. S. Lord Mechanical Contractors, 242 Or 1, 406 P2d 556 (1965), the court described the rigorous requisites of a waiver of a legal right:
"In the absence of an express agreement a waiver will not be presumed or implied contrary to the intention of the party whose rights would be injuriously affected thereby, unless by his conduct the opposite party has been misled, to his prejudice, into the honest belief that such waiver was intended or consented to. To make out a case of waiver of a legal right there must be a clear, unequivocal, and decisive act of the party showing such a purpose or acts amounting to an estoppel on his part." Id. at 26 (emphasis added; citations omitted).
As noted, ___ Or App ___ (slip op at 11-13), the "we can't tell" rule operates to place the burden of proving harmlessness of error on a prevailing plaintiff. Consequently, plaintiff's argument, as we understand it, is that defendant, through its counsel's remarks in opposing the special verdict
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