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Shoup v. Wal-Mart Stores12/13/2000
form, disavowed or forwent the benefit of that burden-allocating principle. That, in turn, would effectively impose on defendant the burden of proving the harmfulness of submitting the flawed specification to the jury. That shift in "burdens," coupled with the general verdict, would, in turn, compel affirmance.
The question is whether defense counsel's remarks in opposing the special verdict form either evinced or effectuated such a "waiver." That is, did counsel's remarks constitute a "clear, unequivocal, and decisive" disavowal of Whinston's burden-allocating benefits or so mislead opposing counsel as to estop defendant from enjoying Whinston's benefit on appeal? See Waterway Terminals, 242 Or at 26.
Defense counsel's comments concerning the special verdict form fell into three categories:
(1) The proposed form was defective in that it unfairly "highlighted" the issue of negligence and presented the claims in confusing fashion;
(2) Avoiding a potential "we can't tell" problem on appellate review might not be a sufficient reason to use a special verdict form; and
(3) In all events, if all the submitted specifications were, in fact, legally and factually sufficient, there was no need for the special verdict form.
The first and third responses are most easily disposed of. An objection to a special verdict form as being erroneously or confusingly drafted speaks solely to the content of the form itself. Defense counsel's objection in that regard implicitly assumed that an appropriate special verdict form could be submitted to the jury and merely asserted that this form was flawed. Nothing more.
Defense counsel's third response, was, essentially a "Put up or shut up" or "If you had the 'courage of your convictions'" response. That is, if the negligence specification in paragraph 5(b) truly was legally and factually sufficient, there was no need for a special verdict. That statement was true, albeit tautological. It is also true that plaintiff's counsel's proper response should have been "So what?" That is, given plaintiff's burden of proving harmlessness, plaintiff, as a precautionary matter, still needed a special verdict. Instead, plaintiff's counsel responded:
"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." (Emphasis added.)
The more difficult question is whether defense counsel's second response, either by itself or in conjunction with counsel's other remarks, evinced or effected a waiver. To again place that matter in context, after defense counsel initially objected to the proposed special verdict form, plaintiff's counsel responded:
" he purpose of having the two questions is really just so if there is any appeal issue as to your rulings as to eliminating or not eliminating on the directed verdict motion issues, certain allegations as they were set forth, that we will know what the jury based their decision on, what portion of the -- what allegation, as to whether it therefore would be or wouldn't be an appeal issue. We could dissect what the jury had decided, for purposes of appeal. That's really the only reason to separate them."
Defense counsel then replied:
"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."
One could understand defense counsel's re
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