refusal to submit a special interrogatory is reversible error where the error is not harmless
How later courts described this case
- refusal to submit a special interrogatory is reversible error where the error is not harmless
- purpose is to “sharpen the jury’s consideration of the questions presented by the case, to ascertain the jury’s finding on an ultimate issue of material fact, and to serve as a check upon the jury’s deliberations by testing the jury’s general verdict against its determination on the material fact at issue”
- a special interrogatory that contained all the elements necessary to a finding of guilt would be more likely to confuse the jury and less likely to clarify and sharpen the jury’s consideration of the questions presented by the case
- rulings on jury instructions will only be reversed if the record shows an abuse of discretion
Written by the judges who cited it.
The opinion
JUSTICE GARMAN, dissenting:
I respectfully dissent. While I agree with the majority analysis that section 2 — 1108 of the Code requires submission of a properly drafted special interrogatory, I disagree with the conclusion of the majority that this proposed special interrogatory meets the appropriate test. The interrogatory was not in proper form and could have confused the jury as worded.
The court must, if any party so requests, require the jury "to find specially upon any material question or questions of fact submitted to the jury in writing.” 735 ILCS 5/2 — 1108 (West 1992). However, if a special interrogatory has the potential to confuse or mislead the jury, it is proper to refuse it. Lundquist, 238 Ill. App. 3d at 434, 605 N.E.2d at 1390. Several appellate courts have held that special interrogatories on negligence must include all relevant factors— negligence, proximate cause, and injury — to be in proper form. See Lundquist, 238 Ill. App. 3d at 435, 605 N.E.2d at 1390 ("In order to be in proper form, a special interrogatory must include all of the elements of negligence, proximate cause, and injuries resulting therefrom. Absent adequate reference to these elements, a special interrogatory is not in proper form and should be refused”); Noel, 177 Ill. App. 3d at 784, 532 N.E.2d at 1057 ("It is clear, then, that for a special interrogatory relating to the contributory negligence of a plaintiff to be proper in form and address the ultimate issue of fact, it must contain both the elements of negligence and proximate cause”); Snow, 121 Ill. App. 2d at 46, 257 N.E.2d at 158.
The interrogatory at issue in this case read in full: "On the date of the accident and at the time and place of the accident in question in this case, was the driving conduct of the plaintiff, Norma Snyder, the sole proximate cause of the accident?” It did not mention negligence. This omission could have made the interrogatory misleading or confusing to the jury, especially in light of the verdict form, which read in relevant part:
"Second: Assuming that 100% represents the total combined negligence of all persons whose negligence proximately contributed to the plaintiff’s injuries, including Norma Snyder and Cur-ran Township, we find that the percentage of such negligence attributable solely to Norma Snyder is_percent (%).”
Had the interrogatory been given, the jury could easily have been confused about the role Snyder’s negligence (or lack thereof) was to play in its response. It would have been entirely logical for the jury to conclude that the interrogatory referred to Snyder’s "driving conduct,” whether it was negligent or not. We must not lose sight of the fact that Norma Snyder was injured because she drove off the road. While the jury found that negligent placement of the sign affected her "driving conduct” (which finding we today affirm as not against the manifest weight of the evidence (281 Ill. App. 3d at 66)), it was still Norma’s driving conduct which caused the accident. Had the jury believed Norma was totally blameless, it could still have answered this interrogatory in the affirmative because of its failure to mention negligence.
The fact that Norma was the only "actor” distinguishes this case from those relied upon by the majority for its conclusion that the interrogatory was in proper form. Here, the negligence of defendant, as alleged by Norma, only had the potential to cause an accident through its effect on Norma’s actions, her "driving conduct.” There is no dispute that her injuries arose from the accident (compare Costa, 268 Ill. App. 3d at 11, 642 N.E.2d at 905, and Chavez, 161 Ill. App. 3d at 674, 515 N.E.2d at 153), and there is no dispute she was driving.
The majority writes (281 Ill. App. 3d at 62) that the trial court’s instructions to the jury would have cured any potential ambiguity. In my opinion, they would rather have exacerbated any confusion. The jury was instructed at length about the ways Norma was alleged to have been negligent. The defendant alleged she "negligently drove” at an unsafe speed considering she was approaching a hill; "negligently drove” at an unsafe speed considering she was rounding a curve; "negligently drove” at an unsafe speed considering she was traveling on a winding highway; "negligently” failed to keep a proper lookout; and "negligently” failed to observe a posted sign and react appropriately thereto. The jury was further informed that if Norma had been negligent and that negligence had been over 50% of the cause of the accident it was to find for defendant. Certainly, the jury was fully informed of the role Norma’s negligence was to play in its verdict. This interrogatory was not a verdict form; it was a question.
I believe it is an unwarranted conclusion that the jury would have inferred it was to consider negligence in the answer to the interrogatory when the interrogatory does not in any way refer to negligence. The proposed interrogatory had the potential to confuse the jury and is not an appropriate test of the jury’s general verdict. Therefore, I believe the trial court was correct in refusing this interrogatory, and I would affirm.