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Shankman v. State

July 13, 2005

STEPHEN SHANKMAN, PLAINTIFF-CROSS-RESPONDENT,
v.
STATE OF NEW JERSEY, ITS AGENTS, SERVANTS AND EMPLOYEES, NEW JERSEY DEPARTMENT OF TRANSPORTATION, ITS AGENTS, SERVANTS AND EMPLOYEES, SALVATORE J. MAVURO, JR., JOHN DOES 1-5, (SAID NAMES BEING FICTITIOUS), ABC CORPORATION 1-5 (SAID NAMES BEING FICTITIOUS), AND ABC PUBLIC ENTITIES 1-5 (SAID NAMES BEING FICTITIOUS), DEFENDANTS, AND CONTI ENTERPRISES, ITS AGENTS, SERVANTS AND EMPLOYEES, DEFENDANT-CROSS-APPELLANT.
DORA SHANKMAN, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
STATE OF NEW JERSEY, ITS AGENTS, SERVANTS AND EMPLOYEES, NEW JERSEY DEPARTMENT OF TRANSPORTATION, ITS AGENTS, SERVANTS AND EMPLOYEES, SALVATORE J. MAVURO, JR., STEPHEN SHANKMAN, JOHN DOES 1-5, (SAID NAMES BEING FICTITIOUS), ABC CORPORATION 1-5 (SAID NAMES BEING FICTITIOUS), AND ABC PUBLIC ENTITIES 1-5 (SAID NAMES BEING FICTITIOUS), DEFENDANTS, AND CONTI ENTERPRISES, ITS AGENTS, SERVANTS AND EMPLOYEES, DEFENDANT-RESPONDENT AND CROSS-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The chief issue in this case is whether an illegal "quotient verdict" was rendered by the jury.

Late in the evening of December 16, 1996, Stephen and Dora Shankman were involved in an automobile accident. Stephen was driving southbound on Route 287 when, without warning, near the intersection between Route 287 and Route 78, a large Caterpillar backhoe driven by Salvatore J. Mavuro pulled out in front of the Shankmans' car. The vehicles collided, causing catastrophic injuries to the Shankmans.

Dora and Stephen filed complaints alleging personal injury claims arising from the accident. Dora's suit named Stephen, Conti, Mavuro and the State as defendants. Stephen's suit named Conti, Mavuro and the State.

Dora's complaint alleged that Stephen had been traveling at a high rate of speed at the time the accident occurred. The claim against Stephen was settled by his automobile liability insurer for $400,000 prior to trial. Dora later testified that she had not believed her husband to be negligent and had not wanted to file against him, but was advised by her original attorney that it was typical to name as defendants all who were involved in the accident. Dora's claims against the remaining defendants proceeded to trial, along with Stephen's claims. At trial, the attorneys for both Dora and Stephen unsuccessfully moved to bar any evidence of the settlement. Throughout the trial, the defense was permitted to make references to the complaint's allegations of negligence on Stephen's part and to the fact of the pre-trial settlement.

At the conclusion of the trial, the court instructed the jury that they were not to speculate as to the reasons why Dora and Stephen settled their dispute. In respect of Dora's complaint and the allegations that it contained against Stephen, the jury was told it was permitted to consider the speeding charges as evidence of fault against Stephen. In respect of Stephen's claims, the jury found no cause of action. In respect of Dora's claims, the jury found that the State had committed no negligence; however, it concluded that Conti, Dora, and Stephen all had been negligent. It further found that although Conti's negligence and Stephen's negligence were proximate causes of the accident, Dora's was not. The jury assessed forty-two percent of the responsibility for the accident to Conti and fifty-eight percent to Stephen. It awarded damages in the amount of $1,644,000.00.

Dora's attorney asked that the jury be polled in respect of the allocations of fault. After the jury was polled, Dora's counsel requested a side bar and voiced his concern that the jury may have reached their verdict improperly by taking an average of their individual calculations of percentages. Counsel requested that the court question the jurors to determine if that was the way they had calculated the damages. The trial court declined counsel's request. Dora and Stephen appealed. The Appellate Division reversed and remanded for a retrial on the question of liability in respect of Dora's claims.

Dora petitioned for certification, contending that she was entitled to a new trial on both liability and damages. Conti Enterprises filed a cross-petition. This Court granted both the petition and cross-petition.

HELD: It was reversible error for the trial court not to have engaged in further inquiry with the jurors on the quotient verdict issue, as it arose on this record, in respect of both liability and damages, when requested by counsel to do so. It was error for the trial court to have permitted the jury to consider Dora's pleading in the count against Stephen as evidence of fault against Stephen for whatever measure of significance and weight the jury deemed appropriate. The defense's use of the settlement evidence strayed into prohibited terrain. That misuse was triggered by the erroneous ruling that admitted the allegations of Dora's complaint against Stephen and was compounded when the court instructed the jury that Dora's allegations could be considered evidence of fault. On retrial, the allegations of the complaint may not be used in that manner.

1. A "quotient verdict" is commonly defined as having occurred when there is a preliminary agreement or understanding among the jurors that each will select a figure as representing his opinion of value or damage and that the sum of said amounts divided by the number of jurors will be accepted by each as his or her verdict, and is in fact so accepted. As a general matter, there is nothing intrinsically wrong with a jury's use of an averaging methodology to determine its award. Use of averaged figures for purposes of discussion and deliberation is not improper; rather, it is the advance agreement to be bound to the averaged amount, whatever it may be, that renders a "quotient verdict" objectionable. The general consensus among the courts that have considered them is that quotient verdicts agreed to in advance conflict with the jury's function. The decisional law of this State is in accord with that condemnation. (pp. 15-18)

2. In Cavallo v. Hughes, the Appellate Division recommended that whenever the issue of a quotient verdict arises, the trial judge should specifically inquire whether there was a prior agreement. Cavallo instructs the trial courts not to begin and end an inquiry into an allegation that an illegal quotient verdict occurred with a myopic focus on whether there exists any evidence that the jurors agreed to average their views. Proof of such averaging is, alone, insufficient to have unearthed an illegal quotient verdict. We agree with Cavallo's added measure of instruction. Prompt follow-up questioning should be requested by counsel and provided by the trial court when there may be reason to question whether the verdict is the product of a prior agreement to be bound, instead of being the product of the jury's collective appraisal. (pp. 19-21)

3. Enough was uncovered in the exchange that took place between the trial court and jurors to raise the specter of a prior agreement among the jurors and to raise an uneasy uncertainty about whether the liability percentages, which admittedly were derived by averaging, reflected each juror's acceptance of those percentages as his or her final appraisal on that issue. The trial court committed error in declining to inquire further to resolve those uncertainties when asked to do so by counsel. Having been confronted by a specific request from counsel to inquire further, the trial court was duty bound to engage in further inquiry and to remove doubt about an illegal quotient verdict from the record for a reviewing court. (pp. 21-23)

4. Quotient verdicts are impermissible when jurors have agreed in advance to be bound by an average amount of damages or of liability percentages, without preserving the right and duty to assent finally and comfortably to the number derived from the average. Our present model jury charges emphasize to jurors that each must maintain his or her individual judgment when deliberating. The Appellate Division panel below got this exactly right when it concluded that it could not tell for certain that averaging and an advance agreement to be bound thereby had occurred but that, because the suggestion of a prior agreement was there and because counsel made the precise request that he was required to make to protect his client's interest, the trial court's failure to inquire further constituted reversible error. (pp. 23-25)

5. Because the issue of damages was so closely intertwined with the liability determination, the failure to have engaged in the inquiry that counsel requested necessitates a new trial on both damages and liability. We have no confidence that damages were not tainted by the ambiguity about the jurors' methodology. Counsel's request that the jurors be questioned about their methodology was stated broadly to encompass both liability and damages and was rejected at the outset by the trial court. It was reversible error for the trial court not to have engaged in further inquiry with the jurors on the quotient verdict issue, as it arose on this record, in respect of both liability and damages, when requested by counsel to do so. (pp. 25-26)

6. Against the backdrop of our liberal joinder practice that sanctions pleading in the alternative, it would be entirely discordant were we to permit factual assertions, which have been made by a pleader in one count against one party, to be used as an "admission" against that pleader in an issue in another alternative or inconsistent count in the same cause of action. Dora was asleep at the time of the accident and did not know what the facts would show at trial in respect of her claims against Stephen, Conti Enterprises, and the State of New Jersey. That her complaint alleged facts in support of a negligence claim against Stephen (based on driving in excess of the speed limit) was not an admission by her. We agree with the Appellate Division's finding of error in the trial court's instruction permitting the jury to consider Dora's pleading in the count against Stephen as evidence of fault against Stephen for whatever measure of significance and weight, the jury deemed appropriate. (pp. 27-29)

7. Under our Rules of Evidence, parties may not introduce evidence of a settlement in order to show liability. However, evidence of a prior settlement is admissible when it is offered for a different purpose. The defense's use of the evidence in this case strayed into prohibited terrain. That misuse was triggered by the erroneous evidential ruling that admitted the allegations of Dora's complaint against Stephen and was compounded when the court instructed the jury that Dora's allegations could be considered evidence of fault. On retrial, the allegations of the complaint may not be used in that manner. If the fact of the settlement with Stephen is advanced as being relevant, the prejudicial effect of any mention of that settlement should be weighed against any probative value that is asserted. When the probative value of an asserted bias by a plaintiff wife against her husband's co-defendants is minimal and cumulative, and the prejudicial value of the settlement is as great as it appeared to be in the initial trial of this matter, then the settlement should not be admitted. (pp. 30-31)

Judgment of the Appellate Division is AFFIRMED as MODIFIED by this opinion and these matters are REMANDED to the Law Division for retrial on liability and damages.

CHIEF JUSTICE PORITZ and JUSTICES ZAZZALI, ALBIN, WALLACE and RIVERA-SOTO join in JUSTICE LaVECCHIA's opinion. JUSTICE LONG did not participate.

The opinion of the court was delivered by: Justice LaVECCHIA

Argued March 28, 2005

This is a consolidated personal injury case involving claims by a husband and wife against multiple defendants. The posture of the appeal is influenced by the fact that the wife's claims included a count of negligence against her husband, the driver of the vehicle in which she was injured, that was settled prior to trial.

Chief among the issues raised before us is an allegation that an illegal "quotient verdict" was rendered by the jury. In their appeal to the Appellate Division, plaintiffs Dora and Stephen Shankman contended that the jury appeared to have used a quotient method in reaching its verdict, and that the trial court had a duty to inquire further of the jury to determine whether an illegal "quotient verdict" had occurred when the court was asked directly to do so by Dora's counsel. The Appellate Division agreed that the trial court erred in declining to inquire of the jurors under the circumstances, and set aside the jury's verdict on liability apportionment. Dora has petitioned for certification, contending that she is entitled to a new trial on both liability and damages.

Defendant Conti Enterprises primarily asserts that the jury verdict was proper and should be restored. Conti also filed a cross-petition concerning certain evidential issues. Specifically, it contends that it should be permitted to inform the jury that Dora sued her husband and that she alleged in her pleading that he was speeding at the time of the accident. Further, Conti contends that the trial court correctly allowed the jury to hear that Stephen's insurance company had settled with Dora.

We granted the petition, 182 N.J. 427 (2005) and cross-petition, 182 N.J. 428 (2005), and now hold that a new trial on both liability and damages must occur. We further hold that the Appellate Division correctly restricted on retrial what the jury may be told in respect of Dora's pleadings and the fact that Stephen's insurer had settled.

I.

Late in the evening of December 16, 1996, Stephen and Dora were involved in the automobile accident that is the subject of this civil action. Following a dinner with friends at a restaurant in Oakland, New Jersey, the Shankmans left at about 11 p.m. to return to their home in Maple Glen, Pennsylvania. During their journey Dora began to doze. She was asleep in the passenger seat at the time the accident occurred. Stephen was driving southbound on Route 287 when, without warning, at milepost 21.3 near the intersection between Route 287 and Route 78, a large Caterpillar backhoe driven by Salvatore J. Mavuro pulled out in front of the Shankmans' car. The vehicles collided causing catastrophic injuries to the Shankmans.

At the time of the accident, Conti Enterprises was performing a road-widening project under a contract with the State. The roadwork necessitated right lane closures and was being performed at night to minimize disruption to highway traffic flow. The State's contract with Conti Enterprises established safety procedures that Conti was duty-bound to follow. Specifically, Conti was required to use a "chase vehicle" to escort slow-moving construction equipment and to employ a police-engineered slow down of oncoming traffic before construction equipment was permitted to enter a lane of travel.

Mavuro was aware of those safety procedures; however, he testified that when the site superintendent ordered him to move the backhoe he believed that the request was urgent. Therefore, he moved the equipment immediately, without waiting for an escort or for a slow down. Defendants, Conti Enterprises and the State of New Jersey, did not dispute that Mavuro deviated from safety standards in moving the vehicle into a live lane of traffic. Mavuro pulled into the left lane at an estimated speed of ten miles per hour and was struck from behind by the Shankmans' vehicle ten to fifteen seconds later. Because neither Stephen nor Dora has any recollection of the accident, the only direct testimony about the accident came from Mavuro.

Dora suffered severe pelvic fractures, severe comminuted fractures of her right femur and tibia and multiple fractures of her right forearm, her right foot, and her right clavicle. The injury to Dora's foot was extensive. Ultimately, she lost a significant portion of her foot causing her shoe size to shrink from a size eight and one-half to a size four and one-half, leaving her with a pronounced limp and an inability to stand or walk for any extended period of time. Stephen was seriously injured also. He experienced pulmonary swelling, a concussion, a liver hematoma, pelvic fractures, sternum fractures, right tibia fractures, fibula and ulna fractures, a lacerated tongue, and broken teeth.

The police issued summonses to both Stephen and Mavuro. Mavuro was cited for obstructing the passage of a vehicle and Stephen was cited for careless driving. Accompanied by his attorney, Stephen pled guilty to a reduced charge of obstructing the passage of a vehicle, with the reservation that the plea could not be used as evidence in any civil proceeding. Uncounseled, Mavuro also pled guilty to obstructing the passage of a vehicle and there was no civil reservation.

Both Dora and Stephen filed complaints, later consolidated by the Superior Court, alleging personal injury claims arising from the accident. Dora's suit named Stephen, Conti, Mavuro, and the State as defendants. Stephen's named only Conti, Mavuro, and the State.

Dora's complaint alleged, among other things, that Stephen had been traveling at a high rate of speed at the time the accident occurred. Although the claim against Stephen was settled by his automobile liability insurer prior to trial, Dora later testified that she had not believed her husband to be negligent and had not wanted to file against him, but was advised by her original attorney that it was typical to name as defendants all who were involved in the accident. To prepare a defense, Stephen's automobile insurer hired accident reconstructionist, William Martin. Martin produced an analysis of the accident that estimated that Stephen had been driving between 42 and 54 miles per hour in an area where the posted speed limit was 45 miles per hour. After receiving that report, Stephen's insurer negotiated a settlement for $400,000 in exchange for a stipulation of dismissal as to him. Dora's claims against the remaining defendants proceeded to trial, along with Stephen's claims against the same defendants.

At trial a number of issues arose. We mention those that factor into the allegations of error advanced before us. One concerned use of the settlement in respect of Stephen. The attorneys for both Dora and Stephen moved in limine to bar any evidence of the settlement pursuant to N.J.R.E. 408. The trial court disagreed, finding Model Charge 1.17 (informing jurors about absent settling defendants) to be informative on the question of admissibility notwithstanding Stephen and Dora's argument that Stephen was not an absent settling defendant; rather, he was a present and participating party, whose liability was directly in issue. Nonetheless, the trial judge ruled that evidence of the settlement was admissible and, thereafter, throughout the trial the defense was permitted to make references to the complaint's allegations of negligence on Stephen's part and to the fact of the pre-trial settlement.

The defendants focused on Stephen at trial, choosing as a matter of strategy not to contest Mavuro's negligent operation of the machinery or the Shankmans' injuries. Instead, the defendants sought to convince the jury that Stephen also had been negligent, either because he was traveling at an excessive rate of speed or because he had fallen asleep behind the wheel. As for Dora, the defendants contended that she too was negligent for not staying awake and helping her husband by "co-piloting" as the two drove home late at night.

To counter the allegation of speeding, the Shankmans inexplicably retained as their trial expert the same accident reconstructionist previously hired by Stephen's insurer. Martin conducted a second analysis, described as more thorough than his first, and concluded that the Shankman car was traveling at a rate of speed between 40 and 45 miles per hour and therefore was within the posted speed limit. Not surprisingly, Conti attacked Martin's credibility and produced an expert who testified that the Shankman car must have been traveling at over 60 miles per hour and that Stephen would have been able to stop in time had he had been driving at only 45 miles per hour.

At the conclusion of the trial, the court instructed the jury on its use of the settlement evidence.

Now, you have heard that Stephen Shankman was originally named as a defendant in this case. Before the case started he settled and that means that he resolved his differences in regards to this lawsuit.

You are not to speculate as to the reasons why the plaintiff and defendant settled their dispute in regard to this lawsuit. You should not be concerned about the amount, if any, that may have been paid to resolve the claim against Mr. Shankman.

In respect of Dora's complaint and the allegations that it contained against Stephen, the jury was told:

There was some discussion about pleadings in this case which is a concept that may be new to many of you. And you have heard that Dora Shankman and her complaint in this case charged Steven [sic] Shankman with driving their vehicle at a high rate of speed and with negligence proximately causing her injuries in her complaint.

You may consider those charges of Dora Shankman as evidence of fault against Steven [sic] Shankman and you may give that evidence whatever significance and whatever weight you deem appropriate.

The jury began deliberations on a Friday and continued late into the afternoon. Eventually, the court and counsel conferred on whether the jury should be excused for the weekend. They also discussed the fact that the court clerk, who normally operated the courtroom video-recording system, could not stay later than 5:20 p.m. that afternoon, but that the trial court could wait until 6:00 p.m. for the jury's return. It was decided that the court clerk would instruct the judge on how to operate the video-recording system for the interval in which the clerk would not be present, thereby solving that problem, and that the jurors would be brought back into the courtroom to inform them about the arrangements ...


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