Published July / August 2015
By: Ted Babbitt
In Florida failure to object to an inconsistent verdict before discharge of the jury so that the jury can resolve the inconsistency results in a waiver of the inconsistency. Cocca v. Smith, 821 So. 2d 328 (Fla. 2d DCA 2002), Gup v. Cook, 549 So. 2d 1081 (Fla. 1st DCA 1989).
Notwithstanding this general law, the Third District in Tricam Industries, Inc. v. Coba, 100 So. 3d 105 (Fla. 3d DCA 2012) and the Fourth District in Nissan Motor Co. v. Alvarez, 891 So. 2d 4 (Fla. 4th DCA 2004) as well as the Fifth District in North American Catamaran Racing Ass’n v. McCollister, 480 So. 2d 669 (Fla. 5th DCA 1985) all applied what was termed the “fundamental nature” exception in product liability cases when the jury found both that there was negligence on the part of the defendant concerning the design of a product but also found the lack of a design defect.
In Coba v. Tricam Industries, Inc., 40 Fla. L. Weekly S257 (Fla. May 14, 2015), the Supreme Court reversed the Third District and disapproved the other cases upholding the “fundamental nature” exception and concluded that failure to object to an inconsistent verdict prior to the jury’s discharge was, indeed, a waiver of the inconsistency regardless of the content of the verdict or the nature of the case.
Coba v. Tricam, supra, was a wrongful death case in which plaintiff’s decedent fell from a ladder which collapsed and the plaintiff sued the ladder manufacturer. The jury entered an interrogatory verdict in which it found that Tricam did not place the ladder on the market with a design defect that was the legal cause of death but that there was negligence on the defendants’ part which was the legal cause of the death. Neither party objected to the verdict and the jury was discharged and the defendant subsequently filed a motion to set aside the verdict asserting fundamental inconsistency in the verdict. The trial court refused to set aside the verdict and the Third District found that the jury’s inconsistent verdict was of a “fundamental nature” and returned the case to the trial court instructing it to enter a verdict in favor of the defendants.
The whole idea of requiring a party to object to an inconsistent verdict is to prevent that party from denying the jury the option of curing the inconsistency and allowing the jury to reconcile the inconsistency rather than having an appellate court do so on conflicting evidence.
The reasoning of the district courts seems to flow from Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000) in which the Supreme Court held that a party’s failure to object to improper argument could be excused if the argument consisted of fundamental error. However, in that case the Supreme Court explained that the fundamental error must implicate a constitutional right or be so significant that requiring a new trial is essential to maintain the public trust in the jury system. This would include arguments about race or religion as examples.
An example as to why carving out a “fundamental nature” exception in product liability cases is illogical is the Third District’s decision that the verdict had to be construed in favor of the defendant. As pointed out by Judge Schwartz in his dissent allowing such an exception to the general rule is illogical because
“there is no fundamental nature” exception to the inconsistent verdict law in a civil case that applies only to product liability cases, because there is no conceptual or reasonable basis for the distinction and no cognizable way to apply it.” Tricam Industries, 100 So. 3d at 115.
At 261, the Supreme Court holds:
For all these reasons, we hold that a timely objection is
required to an inconsistent verdict in a civil case and
disapprove the use of the “fundamental nature”
exception to the general law pertaining to inconsistent
verdicts as has been carved out for products liability
cases. In circumstances involving an inconsistent
verdict, a party is still obligated to object prior to the time
that the jury is discharged so the parties and the trial
court can consider whether the jury’s confusion can
be rectified through additional jury instructions or a
new verdict form. If a party fails to timely object to
an inconsistent verdict, that party waives the objection
and unless there is no evidence to support one
finding, the trial court may properly enter judgment
pursuant to that verdict.
Our reaffirmation of the requirements of an objection
serves numerous important policy concerns. First, the
requirement of a timely objection discourages
gamesmanship by precluding objections that a party
sat on, in an effort to obtain a calculated benefit by
raising it later. Second, our ruling enhances the
efficiency of judicial proceedings, requiring the error to
be raised immediately so that it can be rectified
as soon as possible without increasing the likelihood
that a new trial will be required. Third, the requirement
of a timely objection promotes the sanctity of the jury
verdict and permits a jury to correct a clearly
erroneous verdict that may be based on some
underlying confusion brought on by the parties, the
court, or the jury instructions.
Failure to raise an objection to an inconsistent verdict in Florida waives the inconsistency in every case.
NOTE: BECAUSE A NUMBER OF PEOPLE HAVE REQUESTED COPIES OF PAST ARTICLES, A COMPILATION OF THESE ARTICLES IS NOW AVAILABLE TO MEMBERS OF THE PALM BEACH COUNTY BAR ASSOCIATION, FREE OF CHARGE, BY CALLING (561) 684-2500.