 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Lamanna v. Proformance Insurance Company12/5/2003
old N.J.S.A. 2B:23-17 unconstitutional to that extent.
In my view, the partial invalidity of N.J.S.A. 2B:23-17 is demonstrated by Morin v. Becker, 6 N.J. 457, 464 (1951), where the constitutionality of N.J.S.A. 2A:80-2 was considered. The Court held N.J.S.A. 2A:80-2 constitutional because, unlike N.J.S.A. 2B:23-17, its illegitimate successor, N.J.S.A. 2A:80-2 perfectly mirrored the authority granted by the people of this State in Article I, paragraph 9 of the New Jersey Constitution. In so holding, Morin unmistakably concluded that what constitutes a valid jury verdict must come from the constitution and may not be further diminished or eroded by legislative action. In speaking for the Court, Chief Justice Vanderbilt quoted the decision of another state's highest court:
courts have uniformly held that any legislation authorizing a verdict by less than the whole number of jurors in any case where a jury trial is a matter of right is unconstitutional unless such legislation is expressly authorized by a constitutional provision.
[Id. at 464 (emphasis added), quoting Minnequa Cooperage Co. v. Hendricks, 197 S.W. 280, 282 (Ark. 1917).]
Because the trial judge accepted a verdict based upon the agreement of only three-fourths of the deliberating jurors, I would conclude that this verdict was constitutionally infirm and reverse.
II.
I also respectfully disagree with the majority's application of R. 2:10-2. In choosing not to disturb this judgment, the majority predominantly relies upon Walder, Sondak, Berkeley & Brogan v. Lipari, 300 N.J. Super. 67 (App. Div.), certif. denied, 151 N.J. 77 (1997).
Walder is essentially identical to the case at hand (except in one highly relevant respect). In Walder we held that appellant's failure to object to the trial judge's jury instruction that a verdict could be based upon a three-fourths majority required the following R. 2:10-2 analysis:
Under these circumstances, we do not agree with defendants' belated objection. To do so would condone a tactic of inducing error, awaiting the outcome, and then raising the issue on appeal when the outcome is unfavorable. We find no plain error to justify reversal.
[Id. at 82.]
My colleagues have concluded that the"reasoning of Walder is sound," and that the trial judge's instruction that the agreement of three-fourths of the jury would be sufficient was not capable of producing an unjust result.
First, I believe the application of R. 2:10-2 militates in favor of reversal. This rule permits our disregarding of an"error or omission" unless it is"of such a nature as to have been clearly capable of producing an unjust result." There is no doubt that the trial judge's authorization of a three-fourths majority for a verdict was erroneous; no one suggests otherwise. In addition, this error was not only"clearly capable of producing an unjust result," it in fact demonstrably produced an unjust result because it produced a verdict on the agreement of less than five-sixths of the jury -- a verdict wholly inconsistent with the constitution's requirement for a civil jury verdict. Indeed, the verdict is inconsistent with the requirement of N.J.S.A. 2B:23-17 that a verdict of less than five-sixths requires the stipulation of the parties -- a condition which unquestionably was not met here.
By stating that this error did not clearly have the capacity to produce an unjust result, the majority would appear to assume that the same verdict would have been rendered by seven of the eight jurors if they had been properly instructed. I am not prepared to make that leap of faith. We have no way of knowing wh
Page 1 2 3 4 5 6 7 New Jersey Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|