§49.6 Analysis

• Jurisdiction: Washington

§49.6ANALYSIS

This section provides an analysis of CR 49 and FED. R. CIV. P. 49.

(1)The general verdict

CR 49(-) defines "general verdict" as one "by which the jury pronounces generally upon all or any of the issues in favor of either the plaintiff or defendant." In a general verdict, the jury finds for the plaintiff or defendant without explanation or detail. For example, a general verdict form may simply state, "We the jury find for the plaintiff in the sum of $_________" or "We the jury find for the defendant." Interrogatories to the jury that resolve "ultimate questions" have been found to constitute general verdicts. Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 918, 32 P.3d 250 (2001).

There are advantages and disadvantages to each verdict format. For example, the general verdict format eliminates the potential for error that may arise with a special verdict. Further, a general verdict eliminates the possibility of inconsistent answers on a special verdict and allows the jury to reach a verdict without having to reveal to the court and parties the steps it took to arrive at the verdict.

A significant disadvantage of general verdicts, however, is that they can create appealable issues. General verdicts limit the opportunity on appeal to correct errors by the jury before the verdict is filed or to correct errors made by the judge, thereby eliminating the need for a new trial or, if a new trial is required, narrowing the issues to be retried.

For example, in Lahmann v. Sisters of St. Francis of Philadelphia, 55 Wn.App. 716, 780 P.2d 868 (1989), the jury responded affirmatively on the question of the defendant's negligence but was deadlocked on the issue of proximate cause and damages. The Court of Appeals found that it could not resolve the question of proximate cause without reference to the hospital's negligent acts. Because the first jury did not indicate which of the seven alleged acts of the defendant it found to be negligent, the court concluded that a second jury would have to make that determination. See also Davis v. Microsoft Corp., 149 Wn.2d 521, 539-40, 70 P.3d 126 (2003) ("[W]here a general verdict is rendered in a multitheory case and one of the theories is later invalidated, remand must be granted if the defendant proposed a clarifying special verdict form."). A more detailed special verdict form might have permitted the plaintiff to avoid relitigating the issue of negligence upon retrial.

In contrast, a special verdict form narrowed the issues for retrial in Mina v. Boise Cascade Corp., 104 Wn.2d 696, 710 P.2d 184 (1985). The jury in Mina found for the plaintiff but reduced recovery by 85 percent due to a finding of comparative negligence. Because counsel had used a special verdict form, the court remanded the case for retrial on the issue of liability but did not disturb the jury's determination of damages.

Comment: The trend is towards using special verdict forms. As a practical matter, general verdict forms work best in simple cases involving a single defendant. Special verdict forms should be used when there are multiple defendants or the defendant claims that fault should be allocated to a nonparty entity ("an empty chair"). See WPI 45.23, 45.27. Similarly, use special verdict forms in cases involving

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