Keegan, Keegan & Strutt, PLLC. represented a plaintiff/carpenter who lost his hand in a "chop saw" accident.  He was making a miter cut on a piece of crown molding, the last cut of the day, when he accidentally cut off his hand. We prosecuted the case under a common law negligence and a product liability theory arguing that the saw was unreasonably dangerous because it had not been shipped with the appropriate guard. The jury found the plaintiff 48 % liable for the accident, and the defendant-manufacturer Makita, Inc., 52 % responsible.

At the damage portion of the trial, the jury reported back a verdict in the approximate amount of a million dollars. We thought the verdict might be low based upon all the evidence--especially since the jury had found the manufacturer 52% liable; but you never know what jurors do with the evidence behind closed doors. The jury was dismissed, and the verdict that was ultimately "entered" or committed to paper was further reduced by the court by 48% because the same jury had previously found the plaintiff 48% liable for the accident.

As we were leaving the courtroom, one of the jurors approached our client's wife in the hallway explaining that she had wanted to give more money for pain and suffering, but the jurors had settled collectively on a million dollars, a figure that they had intended her husband actually receive. Our plaintiff's wife casually stated, well you know that the million dollars will be reduced by almost half, and my husband will receive less than half a million dollars as a final damage award. The juror replied in substance: "Oh no. We already reduced the damage award based upon your husband's comparative negligence, and we performed that calculation to the penny because one of the jurors had a calculator." An hour or so later our office received a phone call from a juror confirming that the jury had indeed reduced the amount awarded based upon the plaintiff's comparative negligence and that it was actually his calculator that had been used. We set about assembling juror affidavits, confirming what had happened, and made a motion for a new trial before the trial court, and then, after that motion was denied, we appealed the verdict to the appellate division on various grounds.

Although under New York law, one can not use jurors' affidavits to impeach their own verdict, we also scoured the transcript of the trial proceedings to see what, if anything,  may have gone awry in the jury charge or on the verdict sheet. As it turned out, we found that the trial judge had never told the jurors during the damage portion of the trial that they should disregard the percentages of "liability" they had assigned to the plaintiff and award "full damages" without regard to the apportionment based upon plaintiff's own negligence. Usually, that charge is included when there is a bifurcated (separate) liability and damage trial. But because of the nature of the injury, the liability and damage trials were tried at the same time. In other words. there was one long charge, which should have clearly spelled out that the jury should ignore the percentages, if any, it had assigned to plaintiff's comparative fault, and award full damages without regard to that liability apportionment.

The usual practice in the Second Department, which includes Westchester County, is that liability and damages are tried separately at two different trials. The members of the jury are usually the same for both liability trial and the damage trial. However,  the jurors hear separate jury charges in each trial: explaining first how to apportion liability; and then, after liability is determined and apportioned, they hear a different set of charges at the end of the damage trial instructing them on how to go about apportioning damages.

For example, in apportioning liability for an accident, a jury is charged that it may find that the accident was caused not only by the defendant(s) but by the plaintiff as well. The jury is charged that it must, based upon the evidence, apportion the percentage of fault to each responsible party, with the sum equaling 100%. So, for example, a plaintiff could ultimately be found to be 50% responsible for the accident; defendant "A" could also be found 30% responsible and defendant "B," 20% responsible.

But what about damages? How does the apportionment of liability affect the jury's subsequent  role in finding the proper amount of damages that should be awarded?

This reduction of damages based upon the percentage of comparative fault assigned by the jury is a calculation that is supposed to be carried about by the court, not by the jurors. The jurors are supposed to award "full" damages, disregarding what percentages they have assigned to the plaintiff for comparative fault.

However, in our case, immediately after the court had finished reviewing comparative negligence in its charge to the jury it announced:  "Now, I'm going to charge you on the law of damages." In describing the areas in which a damage award could be made, the court failed to instruct the jury that its award should not be reduced by the plaintiff's comparative fault.

We argued on appeal that in the absence of a clear instruction and a clear verdict sheet explaining to the jury that it "must not consider the percentages of negligence but must simply report the total amount of plaintiff's damages" (and especially where the verdict sheet did not provide analogous guidance), the jury cannot be presumed to have fixed damage figures without reducing it by appellant's comparative fault. See PJI 2:36. I. Indeed, in the absence of the essential instruction, the jury may well have "intended" that the damage sum reported be the exact amount ultimately received by the plaintiff; i.e., without any further reduction for comparative negligence because the jurors had reasoned that they should reduce it by the plaintiff's negligence.

We further argued that contrary to the defendant-respondent's suggestion, under the facts and circumstances of our case, the "subjective intent" of the jury did become legally relevant and highly problematic, since juror confusion in framing and reporting damages is likely to occur. Accordingly, even where the courts have held that the closed-door details of how the jurors actually arrived at their verdict must remain ultimately unknowable for policy reasons, they have not hesitated to order a new trial on damages where through a deficiency in the damage charge and/or a facially ambiguous verdict sheet, juror confusion is likely.

We argued strenuously that in the absence of an appropriate instruction, there can be no question that the verdict sheet standing alone did not supply sufficient guidance as to whether the amount awarded for all or some of the enumerated items should be reduced by appellant's comparative fault.  We concluded that the instruction set forth at PJI 2:36.1 or a similar instruction avoids the acknowledged problem of telescoping "the questions of plaintiff's percentage of fault and the monetary award." See generally comments PJI 2:36.1 at p.255 (N.Y. Civil PJI, Vol. 1A 3rd Ed. 1998).

We pointed out that although the comments to PJI 2:36.1 suggested implicitly that the change should be given in the damages stage of a bifurcated trial, there appeared to be no reason why a jury does not need parallel guidance in a non-bifurcated trial. The point of the charge is to instruct the jury that when it awards damages it should not reduce the damages by the percentage of the plaintiff's fault. We pointed out that the concern and error noted in the case law example then referenced in the PJI was by happenstance a bifurcated trial, and that the very same concern and error obviously can occur, and we argued that it did occur, in our case: a unitary (non-bifurcated) trial. The transition from the comparative negligence charge regarding liability to the damage charge clearly did not avoid the problem of telescoping "the questions of plaintiff's percentage of fault and the monetary award."

We stressed that the charge error was compounded because the jury's special verdict sheet used the word award to indicate what amount of damages the plaintiff-appellant was entitled to receive, and did not indicate that the jury should not reduce its reported award by the plaintiff- appellant's fault. Indeed, the jury had been firmly instructed in the general comparative fault charge that the law of the state was to minimize damages it might otherwise award in proportion to the amount of appellant's negligence; that is, the charge indicated that it was the jury's duty to actually calculate and reduce the award reported in proportion to appellant's fault.  Such an instruction, we contended, was erroneous as a matter of law because the jury's duty is to award full damages without performing any mathematical reduction for the percentage of comparative fault.

Taken together, the instruction with respect to fixing and reducing damages in proportion to appellant's comparative fault as cobbled together and emphasized by the trial court, constituted a damage charge that was not only overbroad, incomplete and misleading, but erroneous as a matter of law because it was inaccurate. In essence, it told, or at least strongly suggested to the jury that it is the law of the state for the jury to perform the court's mathematics. We stressed further that the error could not be considered harmless, and a new trial was necessary.

In sum, whether the trial is unitary or bifurcated, where the jury is not instructed to disregard the liability verdict, that is, the percentages assigned for fault and comparative fault, in calculating damages, a fundamental error results since a jury cannot be presumed to have figured out the right way to assess damages without clear, explicit instructions. The Appellate Division agreed with our argument that the trial judge's charge and the verdict sheet were not clear enough on that point and it ordered a new trial on the issue of damages only.  

Thereafter a supplemental PJI 2:36.2 charge, relied upon by the courts of New York and practicing attorneys, specifically referenced our case, Heath v. Makita,  in the notes to the supplemental instruction, essentially clarifying the Pattern Jury Charge to make clear what needed to be said by the trial court when charging "comparative fault" whether the trial is a unified or bifurcated trial. The supplemental instruction on comparative fault is now proceeded by notes making clear that the supplemental charge requires the jury to be instructed not to use the percentages of fault assigned in calculating damages, and that the supplemental instruction and is part of the Pattern Jury Charge 2:36.2 regarding comparative fault.  The notes and charge now read:

"In the damages stage of the bifurcated trial, before the same jury which decided liability, the following charge should be given before instructing the jury on damages." (emphasis added).

PJI 2:36.2 Comparative Fault [Supplemental Instruction]

"You must now decide from the evidence before you the total amount of damages suffered by the plaintiff in dollars in accordance with the rules that I am about to explain to you. In arriving at the total, you must not consider the percentages of fault but must simply report the total amount of the plaintiff's damages."

Likewise, and just as important,  the notes proceeding the preparing of the Special Verdict form are also a part of the important Pattern Jury Instructions and read as follows:

Mode of Trial (Bifurcated or Full)

"If a bifurcated trial is held, liability and relative degrees of fault should be decided in the first stage of the trial; damages in the second...."

When the special verdict form is prepared for use, signature lines should be included after each question, see Comment, PJI 1:95. The completed special verdict form should be marked as a Court exhibit.


Where liability and damages are tried together, the court should not combine the questions of plaintiff's percentage of fault and the monetary award to be made to plaintiff. By asking the jury in a special verdict to fix plaintiff's percentage of fault and then requesting that the jury state "the total amount of damages you award to Plaintiff for his injury and conscious pain and suffering," the jury may become confused and reduce plaintiff's recovery twice....

The better practice, followed in the special verdict form below, is to separate the two questions and to ask the jury to fix the percentage of fault and to answer appropriate damage interrogatories, see PJI 2:151A(1), 2:151A(2), 2:229A, 2:301; see Heath v Makita Corp., 255 AD2d 419, 681 NYS2d 289 (2d Dept 1998) (citing PJI). In this fashion, the prospect of jury confusion is avoided and the court may make the appropriate calculations. . . .

N.Y. Pattern Jury Instr.--Civil 2:36 (emphasis added).

Keegan, Keegan & Strutt. PLLC. is proud to have played a significant role in clarifying this important rule regarding comparative fault and the awarding of "full" damages ensuring that the jury does not inadvertently report a "net" rather than "gross" damage award, resulting in a double reduction for a plaintiff's comparative fault.

Indeed, this significant clarification has stood the test of time and remains unchanged almost two decades later. Heath v. Makita Corp., 255 A.D.2d 419, 420 (2d Dep't 1998) has been often cited in Practice Treatises and scholarly journals for this same important principle. In addition to the New York Pattern Jury Instructions—Civil (Negligence) previously cited; see also,  New York Jurisprudence, Second Edition, 105 N.Y. Jur. 2d Trial § 403; Carmody-Wait 2d New York Practice—with Forms, 13 8A Carmody-Wait 2d § 57:20.