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In a 5-4 decision, the Alabama Supreme Court recently affirmed a jury verdict awarding the plaintiff an admittedly inconsistent verdict for negligence and wantonness based on the same conduct. How could this be? While accepting that the verdict was substantively inconsistent, a slim majority of the Court reasoned that a pre-deliberation objection was required to preserve the error, and the colloquy with the court was not a sufficient objection.
The case stemmed from a wreck where the plaintiff, Williams, was rear-ended by a truck driven by Morse, an employee of Brown Heating & Cooling. Williams sued for negligence and wantonness. The evidence showed that Williams was decelerating while approaching a red or yellow light, Morse was behind Williams, saw the light, and accelerated to make it through the light. He rear-ended Williams’ car and was on his cell phone at the time.
The defendants requested and received an additional blank line on the verdict form to allow the jury to award compensatory or nominal damages with respect to the wantonness claim. This line was right before the line for an award of punitive damages. Defense counsel and the trial judge had an on-the-record exchange where counsel expressed concern with the inconsistency of the instruction, but counsel did not object when the court read the verdict form to the jury.
The jury returned a verdict in favor of Williams, awarding $500,000 in compensatory damages for negligence, $250,000 in compensatory damages for wantonness, and $750,000 in punitive damages for wantonness. Defense counsel moved for judgment as a matter of law and for a new trial based on insufficiency of evidence of wantonness and the inconsistent verdict. The trial court denied the motions.
On appeal, the Alabama Supreme Court acknowledged the longstanding precedent that negligence and wantonness claims are mutually exclusive, and that such verdicts generally require a new trial because the mental state required for wantonness is incompatible with negligence. However, the court found that the defendants failed to adequately object to the jury charge under Rule 51. Specifically, defense counsel stated,“[I]t’s just clarification so that [the jurors] don’t go back there and make any mistakes. … I just want to make sure that they have to do a negligence verdict or a wantonness verdict and that they can’t come back with negligence and wantonness. … I just want to make sure that I’ve got it on the record I will have an objection if they return both a negligence and a wantonness verdict.” The Supreme Court found that neither of these statements was sufficiently clear in its intent to qualify as an objection.
The court further found that, even though a substantive inconsistency in a verdict generally can be raised for the first time in a motion for a new trial, here the jury had followed the trial judge’s erroneous instructions as they were “bound to do” and the defendant did not object at trial. In other words, the court held that this was not a case where the inconsistent verdict was unanticipated, and thus could be raised in a motion for a new trial for the first time. Rather, the inconsistency was contemplated before the jury deliberated, the verdict form invited that inconsistency, and thus, the defendants “bore a duty” to prevent such a foreseeable inconsistency by objecting in a timely manner.
The dissent, authored by Justice Parker, disagreed with the majority’s opinion, noting that (1) no “magic language” is required for an objection, so long as it adequately informs the trial court of its error and affords an opportunity to cure it; (2) that both plaintiff’s counsel and the trial court understood this as an objection to a potentially inconsistent verdict; and (3) that defense counsel’s request for “clarification” was a request that the court give the jury instruction about mutual exclusivity of negligence and wantonness, not a clarification to the court.
In a footnote, the majority suggested that the Alabama Pattern Jury Instructions might be modified to include an instruction on mutual exclusivity to avoid this issue in the future.