On appeal from the Superior Court, Law Division, Passaic County.
Michels, Long and Keefe. The opinion of the court was delivered by Keefe, J.s.c. (temporarily assigned).
Defendant Donald Hughes appeals from the denial of his motion for a new trial, contending that the jury verdict entered against him must be set aside because the jury used the "quotient method" of assessing liability. We disagree and affirm the judgment under review.
Plaintiff Hector Cavallo brought suit against the defendant alleging that defendant was negligent in failing to properly maintain the premises where plaintiff's accident occurred. The case was tried to a jury who found the defendant 58% negligent and the plaintiff 42% negligent. The foreman of the jury announced that the vote with regard to the apportionment of negligence was unanimous. However, when the jury was polled on that question, the following colloquy took place between the court and juror number three:
Juror No. 3: May I ask a question?
The court: All we want to know is whether you agree with the decision as given by your foreman or disagree.
The record reflects that all jurors agreed with the foreman's report on the question except juror number three. After the jury was polled on the remaining questions on the verdict sheet, there was further colloquy between the court and juror number three as follows:
The court: Before we record the verdict, [juror no. 3], you indicated that you had a question to ask me with respect to question number five, the division of the percentage. Now, what is the question?
Juror No. 3: The percentage is like -- was it right for us to each one take a vote on what the percentages should be and then we take an average?
The court: Whatever the final agreement of the Jury was, that's the verdict. Do you agree that 58 and 42 was the final agreement?
The jury awarded plaintiff $2,643.00 for medical expenses and $1,550.00 for loss wages, as well as $80,000.00 for pain and suffering. The trial judge had instructed the jury that the maximum they could award for medical expenses was $4,557.00 and $2,674.00 for lost earnings. Thus, the jury verdict for medical expenses and lost wages was 42% less than ...