Verdicts and Verdict Sheets

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 445-490

VERDICTS,

VERDICT SHEETS

CHAPTER 33

VERDICTS

AND VERDICT SHEETS

§33:01 New York Trial Notebook 33-2

VERDICTS,

VERDICT SHEETS

I. TYPES OF VERDICTS

A. GENERAL POINTS

§33:01 Form of Verdict

A verdict deciding liability may take one of

three forms:

• General verdict.

• Special verdicts.

• General verdict with interrogatories.

[CPLR 4111 (a)-(c).]

§33:02 General Verdict Defined

A general verdict is one in which the jury finds

in favor of one or more parties. [CPLR 4111(a).] A

general verdict merges all matters of law and fact

together, however numerous, and cannot be broken

up into its constituent parts. [Schabe v. Hampton

Bays Union Free School District, 103 AD2d 418,

425, 480 NYS2d 328, 334 (2d Dept 1984).] In very

simple cases, a general verdict may be all that is

needed. [See, e.g., Lukas v. Trump, 281 AD2d 400,

721 NYS2d 394 (2d Dept 2001) (since plaintiff

had only one theory of liability, trial court correctly

provided the jury with a general verdict sheet).]

However, general verdicts may present difficulties

to a reviewing court. [See §33:40 ff.]

§33:03 Special Verdicts Defined

The court may have the jury return special

verdicts as to specific issues of fact, by submitting

to the jury specific questions (or interrogatories)

for the jury to answer. [CPLR 4111(b).] The

court will then determine the outcome of the trial

based on those answers and enter judgment for the

appropriate parties. Accordingly, the jury decides

specific issues, but does not decide which side

“wins”; rather, the court decides who “wins” based

on the jury’s answers to the special verdicts.

Special verdicts sometimes ask the most

basic questions, e.g., in a personal injury matter,

“was defendant negligent?” However, special

interrogatories can be used for the jury to decide

virtually any factual issue relevant to the outcome

of the case over which there is a legitimate dispute.

[See, e.g., Banque Indosuez v. Sopwith Holdings

Corp., 257 AD2d 519, 684 NYS2d 531 (1st Dept

1999) (special verdicts that asked whether there

were any unauthorized trades were proper, leaving

to the court to determine the legal consequences

of the answers; finding of no unauthorized trades

disposed of claims of breach of fiduciary duty,

negligent misrepresentation, commercial bad faith

and fraud); Simone v. McNamara, 59 AD3d 349,

873 NYS2d 621 (1st Dept 2009) (the trial court

within its discretion properly included a special

interrogatory asking whether plaintiff fell on ice

in a grassy area, or in the gravel courtyard/parking

area, as the court felt that this would help the jury

focus on the foreseeability and reasonableness

elements that followed in the next interrogatory).]

§33:04 General Verdict With

Interrogatories Defined

Under CPLR 4111(c), the trial court may

require the jury to answer interrogatories as to

issues of fact, as well as to return a general verdict.

A general verdict with interrogatories is in essence

a combination of the general and special verdicts.

A general verdict with interrogatories is not favored

due to the potential for inconsistencies between the

interrogatory answers and the general verdict. [See

§33:100 ff.]

§33:05 Type of Verdict Is Within

Court’s Discretion

Whether to submit a general or special verdict

to the jury is within the discretion of the trial judge.

[Johnson v. Artkraft Strauss Sign Corp., 45 AD2d

482, 359 NYS2d 773 (1st Dept 1974).] However,

it may be an abuse of discretion to submit a case

on a general verdict when a general verdict would

hide errors in the jury’s application of the law to the

facts and thus preclude effective appellate review.

[For situations in which a general verdict is not

appropriate, see §33:40.] The propriety of special

interrogatories is examined within the context

of the court’s charge, and is within the court’s

discretion. [Simone v. McNamara, 59 AD3d 349,

873 NYS2d 621 (1st Dept 2009).]

§33:06 Objections to Form of Verdict

When a simple general verdict is not appropriate,

counsel must protect the record for appeal by

33-3 Verdicts and Verdict Sheets §33:20

VERDICTS,

VERDICT SHEETS

requesting special verdicts or a general verdict with

interrogatories and objecting to submission of the

case to the jury on a general verdict. Failure to do so

waives the issue on appeal. [Suria v. Shiffman, 67

NY2d 87, 97, 499 NYS2d 913, 917 (1986) (“absent

a proper request for the interrogatory the omission

of which is now claimed to be error, no question of

law is presented for [the Court’s] review,” so the

jury’s “general verdict” that defendant was guilty

of some unspecified negligence was allowed to

stand); see also Kahl v. Loffredo, 221 AD2d 679,

633 NYS2d 612 (3d Dept 1995) (if the trial court

erred in submitting three theories of liability to

the jury where there was only evidence to support

two theories, defendant should have objected and

requested a special interrogatory); Bowne of New

York, Inc. v. International 800 Telecom Corp.,

178 AD2d 138, 576 NYS2d 573 (1st Dept 1991)

(while general verdict on breach of contract was

inappropriate as the case was submitted to the jury

on theories of both express and implied contract,

which were mutually exclusive, the error was

waived as no objection was made to that part

of the contract charge); Collins v. Weinberg, 88

AD2d 1037, 453 NYS2d 49 (3d Dept 1982) (where

both plaintiff and defendant were found negligent,

defendant’s failure to request special verdicts or

general verdict with interrogatories waived any

objection to the simple general verdict found

by the jury); Goldberg v. Union Hardware Co.,

162 AD2d 658, 557 NYS2d 104 (2d Dept 1990)

(plaintiff’s claim with regard to the form of the

verdict sheet was not raised before the trial court,

and so was not preserved for appellate review);

Allen v. Uh, 82 AD3d 1025, 919 NYS2d 179

(2d Dept 2011) (plaintiff did not take exception

to the trial court’s failure to include detailed

and separate interrogatories as to each alleged

departure from the standard of care, so that issue

was not preserved for appellate review); Vittorio

v. U-Haul Co., 77 AD3d 917, 909 NYS2d 650 (2d

Dept 2010) (plaintiff’s contention that the verdict

sheet interrogatories failed to state the appropriate

standard in determining representatives’ liability

was unpreserved for appellate review); Jiang v.

Dollar Rent a Car, Inc., 91 AD3d 603, 938 NYS2d

90 (2d Dept 2012) (defendants’ challenges to the

jury charge and verdict sheet were unpreserved

because they had consented to the jury charge and

verdict sheet as given to the jury).]; Tart v. New

York Bronx Pediatric Medicine, P.C., 116 AD3d

515, 516, 984 NYS2d 19, 21 (1st Dept 2014) (in

a medical malpractice case a general verdict is

usually inappropriate, but in that case, defendants

did not object and there was no prejudice); Kutza v.

Bovis Lend Lease LMB, Inc., 131 AD3d 838, 839,

16 NYS3d 58, 59 (1st Dept 2015) (plaintiff failed

to raise an argument about the verdict sheet before

it was submitted to the jury, so the objection was

not preserved).]

NOTE:

In Suria, the Court of Appeals pointedly

noted that in Davis v. Caldwell, 54 NY2d

176, 178, 445 NYS2d 63, 64 (1981), it had

held that “the defendant had ‘preserved [her]

rights’ by moving to dismiss the causes of

action alleged not to have been proven at

trial.” [Suria at 96, 490 N.E.2d at 836, 499

NYS2d at 917.] Accordingly, (in Davis) it

was not necessary to object to the charge on

those issues, since the defendant had already

made it clear she objected to those causes of

action.

[§§33:07–33:19 Reserved]

B. SPECIAL VERDICTS

§33:20 Benefit of Special Verdicts

The use of special verdicts often eliminates

the need for complicated instructions to the jury.

[Johnson v. Artkraft Straus Sign Corp., 45 AD2d

482, 483, 359 NYS2d 773, 774 (1st Dept 1974).]

Sometimes the trial court may direct the jury to

decide certain issues, and depending on how those

issues are determined, direct the jury to consider

additional issues. [See, e.g., Lunn v. County of

Nassau, 115 AD2d 457, 495 NYS2d 693 (2d Dept

1985) (when counsel requested an apportionment

question, the trial court stated it would submit

such an interrogatory only if the jury found more

than one party liable. Far from being an abuse of

discretion, this format had the highly desirable

effect of avoiding jury confusion. 115 AD2d at 458,

495 NYS2d at 695.) But see Collazo v. Cooper, 264

AD2d 378, 694 NYS2d 418 (2d Dept 1999) (auto

accident where plaintiff-passenger sued both the

driver of the car she was in and the other driver; it