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Shoup v. Wal-Mart Stores12/13/2000
sponse literally--i.e., that counsel really didn't know if case law compelled the giving of a special verdict in a potential "we can't tell" situation. One could also view that response as at least implying that a special verdict was unnecessary to obviate the potential "we can't tell" problem. The former would be consistent with the sort of "thinking out loud" that often occurs in colloquy, particularly concerning novel or unanticipated matters; the latter would smack of the sort of disingenuous "mouse-trapping" that could, in turn, preclude defendant from taking an inconsistent position on appeal.
We conclude that those remarks did not waive future reliance on the "we can't tell" principle for three reasons. First, a review of the entire colloquy between court and counsel does not support a "mouse-trapping" or "sand-bagging" characterization. Rather, defense counsel's primary and repeated objection to the special verdict form pertained to its form and content. The reference to whether there was sufficient "reason to separate out items on the verdict form" was brief, incidental to defendant's principal concern, and expressed in a qualified, almost musing manner: "I don't know * * * *. And I'm trying to think if there's any cases on that." Those remarks were hardly "clear, unequivocal, and decisive." Waterway Terminals, 242 Or at 26.
Second, any ambiguity in defense counsel's remarks does not assist plaintiff. As we have emphasized, under Whinston the prevailing plaintiff bears the burden of developing a record (most often through a special verdict) sufficient to establish the harmlessness of the error of submitting a defective specification to the jury. That is the plaintiff's obligation; the defendant need not do anything. Thus, if there is any uncertainty as to whether a defendant will invoke Whinston on appeal, it is incumbent upon the plaintiff to ensure that the record is sufficiently "clean" to support an affirmance.
Third, in this case, plaintiff's counsel's own remarks demonstrate that counsel was not "mouse-trapped" by any suggestion, however ambiguous, that a special verdict was not necessary to address plaintiff's obligations under the "we can't tell" rule. Before withdrawing the proposed special verdict form, plaintiff's counsel expressed the view--irreconcilable with Whinston's allocation of proof--that such a verdict "might actually assist the defense more in the appeals issues." (Emphasis added.) Counsel proceeded to express "satisf[action] with the claims as they exist" and then concluded that, because "if there is an objection to this form it might create error," plaintiff was withdrawing her request for a special verdict. Thus, plaintiff did not withdraw the special verdict because counsel had been misled into believing that it was unnecessary under Whinston--indeed, she thought it would "actually assist the defense more." The decision to withdraw resulted from concerns that "if there is any objection to this form"--i.e., defendant's objection to the design and content of the proposed verdict form--that "might create error." In short, plaintiff chose to withdraw the requested form, without seeking to revise that form or to obtain a ruling on its propriety, to forestall an appellate challenge to the content of that form. There was no "waiver" by defendant.
In summary, we conclude that the trial court erroneously submitted plaintiff's direct negligence specification, paragraph 5(b), to the jury. We further conclude that defendant was not precluded from invoking Whinston's "we can't tell" principle. Because we cannot determine whether the jury's verdict was based on the erroneously submitted specification, we must reverse and remand for a new trial.
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