On certification to the Superior Court, Appellate Division.
For reversal and remand -- Chief Justice Wilentz and Justices Pollock, O'Hern, Garibaldi and Stein. For affirmance -- Justice Clifford. The opinion of the Court was delivered by Handler, J. Clifford, J., dissenting.
This appeal involves a personal injury-negligence case tried before a six-member jury, which by a vote of five to one returned a verdict of no-cause for action against the plaintiff. The Court is asked to decide whether a juror who voted that neither party was at fault and thus disagreed with the majority of jurors on the issue of negligence could nevertheless subsequently deliberate and vote on the issue of how to allocate percentages of fault between the parties for purposes of apportioning damages.
The case was initiated by an action brought by the plaintiff, Cynthia Henry, against defendants, Shop-Rite of Watchung, Vicki James, and Jesse James. The claims against Shop-Rite stem from a fall on the store's premises in July 1984 and the claims against Vicki and Jesse James arose from an automobile accident in June 1985. The trial court severed the claims and ordered that the action against Shop-Rite be tried first. The liability and damages issues were then bifurcated and the initial trial was limited to the issue of liability. At the conclusion of the trial, the court submitted a form to the jury to guide its deliberations and record its verdict. It contained the following questions:
1. Was the defendant, Shop-Rite, negligent, which negligence was the proximate cause of the injuries sustained by the plaintiff?
2. Was the plaintiff, Cynthia Henry, negligent, which negligence was the proximate cause of her injuries?
3. What percentage of fault do you attribute to:
In its instructions to the jury, the trial court charged the jurors that they could vote inconsistently on the three questions contained in the verdict form. The court stated:
By the way, you can vote inconsistently no matter which way you voted in Question No. 2. You can vote anyway. Each question is a separate issue. Don't think you're bound because you've voted one way in a previous question and you can't vote on the next one, or you must vote consistently.
The jury returned a verdict answering questions one and two in the affirmative and then, in answer to question three, apportioned fault by attributing forty-nine percent of fault to the defendant Shop-Rite and fifty-one percent to the plaintiff. All three answers were agreed on by a five-one vote. The apportionment of more than fifty percent of fault to the plaintiff barred her recovery against the defendant.
The jury was polled pursuant to Rule 1:8-10. The poll revealed that Juror Number Two, Lisa Joyner, cast the negative vote on the first two questions concerning negligence and Juror Number Six, Henry Pastor, cast the dissenting vote on the apportionment of fault question. Joyner thus voted that neither the plaintiff nor the defendant was negligent, yet voted to attribute fifty-one percent of the fault to the plaintiff.
In a motion for a new trial, plaintiff claimed that the jury verdict was inconsistent because Joyner's ...