Appellate review of multi-claim general verdicts: the life and premature death of the Baldwin principle.

• Author: Phair, Ryan Patrick

1. INTRODUCTION

   Consider the following scenario. A law student slips and falls in a dark hallway after hours. He brings a tort action against the law school alleging that it was negligent because (1) it failed to provide adequate lighting in the hallways at night and (2) it failed to provide sufficient notice that the floors had just been waxed. The judge instructs the jury to return a general verdict. After deliberating, the jury finds the law school liable. The law school feels wronged and appeals the case. On appeal, the circuit court finds that there was insufficient evidence to find the law school liable on the second theory of liability. Indeed, a sign had been posted in the hallway to the effect that the floors had just been waxed, but the law student was too tired and dazed to notice. The law school argues that the general verdict must be vacated and the case remanded to the trial court for a new trial because, they argue, there is no way to know if the jury based its general verdict on the improper theory of liability. In response, the law student argues that the focus of the entire case had been on the failure to provide lighting. It was emphasized at closing argument, and almost all of the evidence related to this point. He thus urges the circuit court to exercise its discretion and find that the error was harmless. How should the circuit court dispose of this case?

   In the early part of this century, the Supreme Court developed a general principle--the Baldwin (1) principle--that mandated the result urged by the law school. Essentially, the court vacated the verdict and granted a new trial due to the ambiguity in the jury's verdict. However, in the 1970s and 1980s, the federal circuit courts began to move towards the law student's position by distinguishing the Baldwin principle in myriad ways. In response, however, a handful of dissenting judges sharply criticized the movement away from the Baldwin principle as a direct contravention of binding United States Supreme Court authority. The appellate court in the law school case is therefore faced with a difficult situation. Should it adhere to possibly outdated Supreme Court precedent? Or should it embrace the modern analysis and its controversial methods of distinguishing the Court's early precedents? What happens if the federal rule, whatever it may be, conflicts with the rule of the state where the law student brought suit? This article endeavors to answer those questions.

   Part II describes the genesis of the Baldwin principle and the early Supreme Court precedents that nurtured it. It also examines the circuit courts' initial endorsement of the Baldwin principle. Part III moves on to the modern era. It traces the development of discretionary rules, such as the Ninth Circuit's Traver (2) rule and the harmless error exception embraced in other circuits, from the 1970s and 1980s to the present day, and notes the circuit courts' increased receptiveness to discretionary arguments in the past six years. Part III also delineates the arguments advanced by the circuit courts to rationalize their departure from the Baldwin principle, as well as the objections of those old-fashioned judges who refused to ride the wave. Next, in Part IV, a detailed analysis is presented of the various arguments made by the modern circuit courts. After rebutting each of the arguments advanced, Part IV concludes that, contrary to the picture painted by the modern circuit courts, the Baldwin principle is alive and well. Finally, in Part V, a policy-based defense of the Baldwin principle is presented. After examining the requirement of a unanimous jury verdict in federal civil cases, Part V asserts that the appellate courts advocating harmless error analysis greatly overestimate their ability to ascertain when an error is in fact harmless. In addition, because a harmless error rule presents a severe danger of abrogating the unanimity requirement ex post, Part V maintains that it can not be justified when there are less blunt methods, such as a waiver rule, that achieve the same result at less potential cost.

2. AN OVERVIEW OF THE BALDWIN PRINCIPLE IN THE EARLY YEARS

   1. The Development of the Baldwin Principle in the Supreme Court

      While there has been a long debate over the proper appellate disposition of multi-faceted general verdicts where an error is found to lie in one facet, the issue has become highly controversial in recent years. Yet, up until the mid-1970s, the Supreme Court had enunciated and adhered to a general principle that required the appellate court to vacate the verdict and remand the case to the district court for a new trial. In response, the federal circuit courts respected the Court's decision and routinely applied the general principle to vacate and remand such cases.

      The genesis of the principle can be traced all the way back to a Supreme Court case decided by Justice Field in 1884. In Maryland v. Baldwin, (3) a young man named Markley sued the administrator of what he alleged to be his father's estate for the one-fourth inheritance to which he claimed to be entitled under law. As part of their defense, the defendants--the administrators of the deceased's estate--asserted claims that included the following: (1) Markley was not one of the heirs of the deceased because his mother was not married to the deceased; and (2) they had executed a $3,500 accord with Markley. At trial, Markley asserted that his mother was married to the deceased, even though he could not produce a marriage certificate or a witness who attended the wedding. The star witness was a good friend of the deceased named Cross. Cross testified that the deceased had admitted to him that he was legally married to Markley's mother and explained his reasons for concealing the marriage. The defendants objected to this testimony as hearsay. The thai court overruled the objection, but permitted one of the defendants to testify as to conversations he had with the deceased about Cross's dishonesty.

      At the close of evidence, the trial court submitted the case to the jury on a general verdict, (4) and the jury found in favor of the defendants. On appeal, the Supreme Court held that it was error to admit the defendant's testimony about what the deceased had told him about Cross as it was mere hearsay. (5) The question then was the proper disposition of the case. The Court noted that there was evidence introduced at trial bearing on all of the issues that the defendants asserted, and that "if any one of the pleas was, in the opinion of the jury, sustained, their verdict was properly rendered." (6) Yet, the Court went on to formulate what has become known as the Baldwin principle:

      [The] generality [of the verdict] prevents us from perceiving upon which [issue] [the jury] found. If, therefore, upon any one issue error was committed, either in the admission of evidence, or in the charge of the court, the verdict cannot be upheld, for it may be that by that evidence the jury were controlled under the instructions given. (7) As a result of this principle, the Court vacated the general verdict and ordered a new trial for Markley. (8)

      The Baldwin decision arose in the context of a single theory of liability to which there were multiple defenses, one of which was in error. It thus applied when a plaintiff sought to attack on appeal a general verdict for the defendant.

      The courts soon extended the logic of the Baldwin principle to the realm of multiple theories of liability. In the 1907 case of Wilmington Star Mining Co. v. Fulton, (9) Samuel Fulton, a trackman and mine laborer in a mine operated by the Wilmington Star Mining Company, was killed by an explosion of mine gas. Fulton's widow subsequently brought a wrongful death claim against Wilmington and alleged eight specific theories of negligence. The Court, however, found there to be insufficient evidence to support one of the theories, and since "it [was] impossible ... to say upon which of the counts ... the [general] verdict was based," the judgment was vacated. (10) The conclusion, the Court believed, flowed naturally from the Baldwin decision. (11)

      Forty years later, in the 1959 case of United New York & New Jersey Sandy Hook Pilots Association v. Halecki, (12) the Court once again affirmed the applicability of the Baldwin principle in this context. An electrician named Halecki died of carbon tetrachloride fume inhalation after spraying the pilot boat New Jersey with the chemical as part of a generator repair job that the ship's owners had sub-contracted to Halecki's employer. The administratrix of Halecki's estate brought a wrongful death action, and the court issued jury instructions that allowed Halecki's estate to recover on two separate theories of liability--negligence or the unseaworthiness doctrine. The jury returned a general verdict in favor of Halecki's estate. (13) On appeal, the Supreme Court held that it was error to submit the case to the jury on the unseaworthiness claim because Halecki was not a member of the ship's crew, and so the ship did not owe him a special duty. (14) The negligence claim, however, was proper. (15) Echoing (but not citing) the language of Baldwin, the Court then ordered a new trial because there was "no way to know that the invalid claim of unseaworthiness was not the sole basis for the verdict." (16) Three years later, in Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., (17) the Court yet again affirmed the rationale of the Baldwin principle in an antitrust case in which the court submitted multiple theories of liability to the jury and a general verdict was returned. (18)

      The Supreme Court was thus quite clear that the Baldwin principle forced a federal appellate court to vacate a general verdict based on multiple defenses, as in Baldwin, or multiple theories of liability, as in Halecki and Sunkist Growers, wherever one of the defenses or theories, respectively, was in error as a matter...