Petition for Writ of Certiorari — Toro Co. v. Jones

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No. ———— | JOSEPH F. BPANIOL, JR,

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

THE TORO COMPANY,

Petitioner

Vv.

WHIPPLE VAN NESS JONES, JR., and

MARYANN CASSEAUX JONES, HIS WIFE

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BARBARA E. ETKIND *

SANDRA LORD

Ross, DIXON & MASBACK

555 Thirteenth Street, N.W.

Suite 1300 East

Washington, D.C. 20004-1109

(202) 662-2000

JAMES E. OLDS

RONALD D. ALLEY

JAMES E. OLDs, LTD.

10800 Lyndale Avenue South

Minneapolis, Minnesota 55420

(612) 881-1601

* Counsel of Record

SORES SS — TRR ESE ET GEE ES LTT TAIT IE SINT TIS

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether a party waives its right to challenge an in-

consistent jury verdict by failing to raise an objection

before the jury is discharged.

(i)

TABLE OF CONTENTS

Page

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Neen ciacceincsbesainscsvins<ssncxsesn<assansrarsnnnense 1

CONSTITUTIONAL PROVISION AND RULE IN-

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REASONS FOR GRANTING THE PETITION ........... 5

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(iii)

iv

TABLE OF AUTHORITIES

CASES Page

Air-Sea Forwarders, Inc. v. Air Asia Co., 880 F.2d

176 (9th Cir. 1989), cert. denied, No. 89-885

Fs I i eas 6

Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines,

ig I I I ID viii tes cnt enccnccescsnrnaersnsernce 7

Bonin v. Tour West, Inc., 896 F.2d 1260 (10th

I a ebeaebeeaemionaoxen 5,9, 11

Bourque v. Diamond M. Drilling Co., 623 F.2d 351

I I I eck cin a 7

Consolidated Aluminum Corp. v. Braun, 447 So. 2d

391 (Fla. Dist. Ct. App. 1984) ...............000000000..... 8

Diamond Shamrock Corp. v. Zinke & Trumbo,

Ltd., 791 F.2d 1416 (10th Cir.), cert. denied,

A RR a eI 6

Downs v. Gulf & Western Manufacturing Co., 677

=. oe, Gon Ge. Bees, BGs .............................. 8, 10,11

Gallick v. Baltimore & Ohio R. R., 372 U.S. 108

SERENE 2 a eS eR OR a 7

Golub v. J.W. Gant & Associates, 863 F.2d 1516

EE TB atn Cer 6

Griffin v. Matherne, 471 F.2d 911 (5th Cir. 1973). 6-7

Itel Capital Corp. v. Cups Coal Co., 707 F.2d 1253

aR ARTs CMe Rae beer comer eee . 6,10

Ladnier v. Murray, 769 F. 2d 195 (4th Cir. 1985)... 6,7

Malley-Duff & Associates v. Crown Life Insurance

Co., 734 F.2d 133 (8d Cir.), cert. denied, 469

a 7 caancebaaendanainetinaes 6, 11

Mercer v. Long Manufacturing N.C., Inc., 671 F.2d

946 (5th Cir. 1982) 6, 7, 9, 10, 11

Minpeco, S.A. v. Hunt, 718 F. Supp. 168 (S.D.N.Y.

at ELS Arce SP Sen eet DS eae ai Ree AI OE 11

Pierce v. Southern Pacific Transportation Co., 823

fe 8 ff bs Seen ern 5-6, 7.

Rivera v. La Porte, 896 F.2d 691 (2d Cir. 1990) .... 6

Schaafsma v. Morin Vermont Corp., 802 F.2d 629

ea eee AR a a Mis a ie 7-8

Skillin v. Kimball, 643 F.2d 19 (1st Cir. 1981) _...... 6

Solimene v. B. Grauel & Co., 399 Mass. 799, 507

I ahaeemabainlts 8

= Vv

TABLE OF AUTHORITIES—Continued

Page

Stancill v. McKenzie Tank Lines, Inc., 497 F.2d

ER LS A a 10

United States v. Simon, 839 F.2d 1461 (11th Cir.),

cert. denied, 487 U.S. 1223 (1988) ....................... 9

CONSTITUTION

5 fy aE aaa nee aE ®

RULES

Federal Rule of Civil Procedure 49 (a) ................... passim

Federal Rule of Civil Procedure 49(b) —.................. passim

I I i shecsnsenenstntentuannenuncsse 8

OTHER AUTHORITIES

Brown, Federal Special Verdicts: The Doubt Elim-

inator, 44 F.R.D. 338 (1968) ................................. 10, 11

5A J. Moore & J. Lucas, Moore’s Federal Practice

a scuahuabennensinhin 8, 11

Sunderland, Verdicts, General and Special, 29 Yale

Se aiaieiniaunisaiin 11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No.

THE Toro COMPANY,

Petitioner

V.

WHIPPLE VAN NESS JONES, JR., and

MARYANN CASSEAUX JONES, HIS WIFE

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The Toro Company ' petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Eleventh Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App., infra, la-

3a) is unreported. The district court did not issue an

opinion.

JURISDICTION

The judgment of the court of appeals was entered on

May 24, 1990 (App., infra, 4a-5a). On August 13, 1990,

Justice Kennedy extended the time for filing a petition

for a writ of certiorari to and including October 9, 1990,

The jurisdiction of this Court is invoked under 28 U.S.C.

§$ 1254(1).

1 Pursuant to Rule 29.1 of the Rules of this Court, Toro states

that it has no parent corporation and no subsidiary corporation

other than wholly owned subsidiaries.

2

CONSTITUTIONAL PROVISION AND

RULE INVOLVED

The Seventh Amendment to the United States Consti-

tution provides:

In Suits at common law, where the value in contro-

versy shall exceed twenty dollars, the right of trial

by jury shall be preserved, and no fact tried by a

jury, shall be otherwise reexamined in any Court of

the United States, than according to the rules of the

common law.

Rule 49 of the Federal Rules of Civil Procedure pro-

vides:

(a)

(b)

Special Verdicts. The court may require a jury

to return only a special verdict in the form of a

special written finding upon each issue of fact.

In tha. event the court may submit to the jury

written questions susceptible of categorical or

other brief answer or may subniit written forms

of the several] special findings which might prop-

erly be made under the pleadings and evidence;

or it may use such other method of submitting

the issues and requiring the written findings

thereon as it deems most appropriate. The court

shall give to the jury such explanation and in-

struction concerning the matter thus suvymitted

as may be necessary to enable the jury to make

its findings upon each issue. If in so doing the

court omits any issue of fact raised by the plead-

ings or by the evidence, each party waives the

right to a trial by jury of the issue so omitted

unless before the jury retires the party demands

its submission to the jury. As to an issue omitted

without such demand the court may make a find-

ing; or, if it fails to do so, it shall be deemed to

have made a finding in accord with the judg-

ment on the special verdict.

General Verdict Accompanied by Answer to

interregatories. The court may submit to the

jury, together with appropriate forms for a gen-

8

eral verdict, written interrogatories upon one or

more issues of fact the decision of which is neces-

sary to a verdict. The court shall give such ex-

planation or instruction as may be necessary to

enable the jury both to make answers to the in-

terrogatories and to render a general verdict,

and the court shall direct the jury both to make

written answers and to render a general verdict.

When the general verdict and the answers are

harmonious, the appropriate judgment upon the

verdict and answers shall be entered pursuant to

Rule 58. When the answers are consistent with

each other but one or more is inconsistent with

the general verdict, judgment may be entered

pursuant to Rule 58 in accordance with the

answers, notwithstanding the general verdict, or

the court may return the jury for further con-

sideration of its answers and verdict or may

order a new trial. When the answers are incon-

sistent with each other and one or more is like-

wise inconsistent with the general verdict, judg-

ment shall not be entered, but the court shall

return the jury for further consideration of its

answers and verdict or shall order a new trial.

STATEMENT

This case arises out of a fire that occurred at the home

of the respondents, north of Tallahassee, Florida, on Feb-

ruary 14, 1987. On that date, after respondent Van

Jones had completed mowing a portion of his property

with his Toro lawn mower and was refueling the ma-

chine, “‘a fire somehow started around the mower’s en-

gine.” App., infra, 2a. As a result of the fire, Mr. Jones

sustained second and third degree burns over 37 percent

of his body.

The Joneses filed suit against both Toro and Mulvaney’s,

Inc., the seller of the lawn mower, in Florida state court.

After Mulvaney’s was dismissed from the lawsuit with-

out prejudice, Toro removed the case to the United States

4

District Court for the Northern District of Florida on the

basis of diversity jurisdiction.

In their complaint, the Joneses alleged both strict lia-

bility and negligence on the part of Toro. Following a

week-lone trial, the case was submitted to the jury by

way of special verdicts pursuant to Fed. R. Civ. P. 49(a).

Although the jury found that there was no design defect

in the mower, it nevertheless concluded that Toro had

been negligent. App., infra, 6a. The jury thus responded

to the relevant special verdicts as follows:

1. Did The Toro Company place the lawnmower on

the market with a defect which was a legal cause

of damage to Van Jones?

Yes No X

Wes there negligence on the part of The Toro

Company which was a legal cause of damage to

Van Jones?

Yes X No

Id. The jury also found Mr. Jones 15 percent compara-

tively negiigent. As a result, the district court entered a

verdict against Toro in the total amount of $1,026,800.°

bo

Toro filed timely post-trial motions seeking a new trial

or, in the alternative, a remittitur. Among other things,

Toro argued that the jury’s verdict was fatally incon-

sistent because, unless Toro’s product was defective, there

was no basis in the record for a finding of negligence

on its part. The district court denied Toro’s post-trial

motions withovt opinion on August 4, 1989.

The Eleventh Circuit affirmed. The court of appeals

rejected Toro’s claim of inconsistency of the verdict on

the ground that Toro had waived that objection by failing

to raise it before the jury was discharged:

2 The jury had concluded that Mr. Jones had sustained damages

in the amount of $1,058,000 and that Mrs. Jones had been damaged

to the extent of $150,000.

5

The Eleventh Circuit follows the rule that a failure

to challenge the consistency of a 49(a) verdict be-

fore the jury is excused constitutes waiver of a later

challenge. See Golub v. J.W. Gant & Assocs., 863

(2d 1516, 1521 n.4 (ith Cir. 1989); ITEL Capital

Corp. v. Cups Coal Co., Inc., 707 F.2d 12538, 1261

(llth Cir. 1983). Because Toro did not raise its ob-

jection in the district court before the jury was ex-

cused, Toro’s objection to the consistency of the ver-

dict is waived on appeal.

App., infra, 2a.

REASONS FOR GRANTING THE PETITION

The decision below squarely conflicts with the rule in

the majority of the circuits that a party may challenge

inconsistent special verdicts rendered pursuant to Rule

49(a)\, Fed. R. Civ. P., without having objected to the

inconsistency of the verdict before the jury was dis-

charged. Resolution of this question is essential to the

uniform and effective application of Rule 49. In addition,

imposition of a strict “waiver rule,” precluding review

of inconsistent verdicts, seriously implicates the constitu-

tional right to a jury trial. Finally, the courts below

failed to recognize the clear distinction between Rule

49(a} and 49(b) and, in so doing, undermined the utility

of special verdicts in resolving complex disputes.

1. There is a clear conflict among the courts of appeals

regarding the question presented by this case. The United

States Courts of Appeals for the Third, Fourth, Fifth,

Ninth and Tenth Circuits have all correctly held that

Rule 49(a) does not require a party to object to incon-

sistent special verdicts before the jury is discharged on

pain of forfeiting its right to reconciliation or, if recon-

ciliation is impossible, to a new trial. Bonin v. Tour

West, Inc., 896 F.2d 1260, 1263 (10th Cir. 1990) ; Pierce

v. Southern Pac. Transp. Co., 823 F.2d 1366, 1370 (9th

6

Cir. 1987) ;° Ladnier v. Murray, 769 F.2d 195, 198 n.3

(4th Cir. 1985) ; Malley-Duff & Assocs., Inc. v. Crown Life

Ins. Co., 734 F.2d 133, 144-45 (3d Cir.), cert. denied, 469

U.S. 1072 (1984); Mercer v. Long Mfg. N.C., Inc., 671

F.2d 946, 947-48 (5th Cir. 1982).

On the other hand, the Eleventh Circuit has summarily

held in the case at bar, relying on Golub v. J.W. Gant

& Assocs., 863 F.2d 1516, 1520 n.4 (11th Cir. 1989), and

Itel Capital Corp. v. Cups Coal Co., 707 F.2d 1253,

1261 (11th Cir. 1983), that a strict “waiver rule” ap-

plies. Although the Eleventh Circuit acknowledges the

contradictory precedent on this issue, see Golub v. J.W.

Gant & Assocs., 863 F.2d at 1520 n.4, it continues to

follow the rule that “all challenges to the consistency of

special verdicts must be raised before the jury is ex-

cused.” Jd. (citing Itel Capital Corp. v. Cups Coal Co.,

707 F.2d at 1261). The First Circuit also applied the

“waiver rule” in Skillin v. Kimball, 643 F.2d 19, 19-20

(Ist Cir. 1981).* Other courts also have acknowledged

the split. See, e.g., Rivera v. La Porte, 896 F.2d 691,

695 n.1 (2d Cir. 1990).

2. The significance of the question presented by this

petition is magnified because application of the “waiver

rule” impinges on the constitutional right to a jury trial.

As the Fifth Circuit explained in Mercer v. Long Mfg.

N.C., Inc., 671 F.2d at 948 n.1 (quoting Griffin v. Ma-

*In Air-Sea Forwarders, Inc. v. Air Asia Co., 880 F.2d 176,

182-83 n.6 (9th Cir. 1989), cert. denied, No. 89-885 (Jan. 22, 1990),

the Ninth Circuit noted that an aspect of the Pierce decision not

relevant to the issue presented here was inconsistent with subse-

quent Supreme Court precedent and rejected Pierce to that extent.

*It is unclear from the court’s opinion in Skillin, however,

whether the submission in that case was pursuant to Rule 49(a)

or Rule 49(b). See Diamond Shamrock Corp. v. Zinke & Trumbo,

Ltd., 791 F.2d 1416, 1430 n.6 (10th Cir.) (McKay, J., concurring

in part and dissenting in part), cert. denied, 479 U.S. 1007 (1986).

The significance of the distinction between Rule 49(a) and 49(b)

is discussed at pages 10-11, infra.

7

therne, 471 F.2d 911, 915 (5th Cir. 1973) (citations

omitted) ) :

The legal error resulting from the entry of a judgment

based on inconsistent special interrogatories is one

which undermines the validity and integrity of the

judgment and may, in fact, run afoul of the Seventh

Amendment by allowing the District Court to usurp

the jury’s function. The Seventh Amendment cre-

ates a delicate balance.

[I|f there is a view of the case which makes the

jury’s answers consistent, the court must adopt

that view and enter judgment accordingly ....

If on review of the District Court’s judgment

we find that there is no view of the case which

makes the jury’s answers consistent and that

the inconsistency is such that the special verdict

will support neither the judgment entered below

nor any other judgment, then the judgment must

be reversed and the cause remanded for trial

anew.

See also Ladnier v. Murray, 769 F.2d at 198 n.3 (quot-

ing Mercer v. Long Mfg. N.C., Inc., 671 F.2d at 948 n.1).

The right of a party to seek reconciliation of an incon-

sistent jury verdict or, if reconciliation is not possible, a

new trial, is firmly grounded in the Seventh Amendment

right to a jury trial. “The right to a jury trial guaran-

teed by the Seventh Amendment requires us ‘to reconcile

apparently conflicting answers if at all possible and thus

validate the verdict.’ If, after careful consideration, the

answers cannot be reconciled, a new trial must be or-

dered.” Bourque v. Diamond M. Drilling Co., 623 F.2d

351, 353 (5th Cir. 1980) (citations omitted). See also

Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 119

(1962): Atlantic & Gulf Stevedores, Inc. v. Ellerman

Lines, Lid., 369 U.S. 355, 364 (1962); Pierce v. South-

ern Pac. Transp. Co., 823 F.2d at 1370; cf. Schaafsma v.

Morin Vermont Corp., 802 F.2d 629, 635 (2d Cir. 1986)

(“liln fairness to trial courts and in order to preserve

parties’ Seventh Amendment riyhts, appellate courts

‘struggle’ to find a way of reconciling seemingly incon-

8

sistent interrogatory answers and verdicts”) (emphasis

added) (discussing Rule 49(b) ).

Under Rule 49 (a), the trial court is expected to “‘ ‘trans-

late’ the jury’s findings on controlling fact issues into a

judgment.” Downs v. Gulf & Western Mfg. Co., 677 F.

Supp. 661, 668-69 (D. Mass. 1987); see 5A J. Moore &

J. Lucas, Moore’s Federal Practice § 49.02 at 49-9 (2d

ed. 1990) (emphasis added) (‘In the special verdict the

jury reports back to the court on issues of fact which are

then translated into a judgment by the court’s application

of the law. The procedure leaves to the trial judge the

responsibility of applying appropriate legal principles to

the facts found by the jury’). If the jury’s fact findings

are inconsistent, the trial court cannot perform its task

unless it usurps the jury’s fact-finding function. Cf.

Solimene v. B. Grauel & Co., 399 Mass. 790, 800-01, 507

N.E.2d 662, 669 (1987) (“[i]f the answers cannot be

harmonized with the evidence and the instructions, and

. . . the jurors have been discharged and cannot be rein-

structed, a new trial is required because it is the jurors’

constitutional responsibility to resolve the facts’) (inter-

preting Mass. R. Civ. P. 49(a) consistently with con-

struction placed on federal counterpart because Massa-

chusetts rules are patterned after the federal rules) .°

5 As noted above, the inconsistency in the jury’s verdict arises

from its finding, on the one hand, of no defect in the product on

which to base strict liability, and, on the other hand, its finding

of negligence. A verdict based on this inconsistency cannot stand.

See, e.g., Consolidated Aluminum Corp. v. Braun, 447 So.2d 391, 392

(Fla. Dist. Ct. App. 1984) (“[h|jow could Consolidated have been

negligent in design and manufacture of a product which contains

no defect?”). Respondents have contended that this inconsistency |

may be reconciled, if it is assumed that the jury found Toro negli-

gent for failure to provide adequate warni.igs. The record, however,

contains no evidence that Toro was negligent in providing warnings

or that, if different warnings had been provided, they would have

prevented the injury to Mr. Jones. See Downs v. Gulf & Western

Vfg. Co., 677 F. Supp. at 667 (“{allthough these or other scenarios

may in fact approximate the jury’s thinking, the court is not

able to accept defendant’s contentions. First of all, they are far

9

Although, to be sure, in certain circumstances, the con-

stitutional right to a jury’s verdict may be waived, at

some point efficiency must vield to the right to a con-

sistent verdict. See generally United States v. Simon,

839 F.2d 1461, 1472 (11th Cir.) (“[o]f course, we can-

not elevate considerations of judicial economy to the point

where they interfere with the appellants’ constitutional

rights”), cert. denied, 487 U.S. 1223 (1988). Here, the

record of the proceedings discloses no evidence that peti-

tioner deliberately waived its right to object to incon-

sistency of the jury’s verdict. The district court did not

itself note the inconsistency of the jury’s findings and,

accordingly, did not offer to submit the case to the jury

for further deliberations. Under ideal circumstances,

petitioner would have recognized the inconsistency im-

mediately and requested resubmission before the jury

was dismissed. The desirability of such a request, how-

ever, does not warrant imposition of the harsh penalty of

waiver for its lack. Mercer v. Long Mfg. N.C., Inc., 671

F.2d at 947 (“[w]hile there are many practices which

we recommend parties follow, extolling the virtues of a

precedure is not equivalent to mandating that it be fol-

lowed with the dire consequence of waiver for failure to

adopt the practice’’).

more resourceful, and subtle, than the theories or evidence pre-

sented at trial. Scant evidence or argument was directed to the

adequacy of warnings, and what little there was failed to make

the ‘fine distinctions’ between theories and degrees of fault sug-

gested now by defendant”). Respondents also have suggested

that the jury may have erroneously but reasonably believed that

different standards obtain for determining the existence of a

product defect under a strict liability theory as opposed to neg-

ligence. To the contrary, it cannot reasonably be presumed that

such an abstruse distinction, even if it existed in the law, was

derived by a jury of laypersons from the verdict form before them

or the trial court’s instructions. Cf. Bonin v. Tour West, Inc.,

896 F.2d at 1263 (reversing attempted reconciliation where the

language of questions submitted to the jury was “too similar’ to

hold that the jury distinguished between negligence that caused

the accident and negligence that caused the injuries).

10

3. The “waiver rule” not only implicates constitutional

rights, but also thwarts the proper functioning of Rule

49(a), which has been described as “a handy, workable,

reasonably simple, over-ignored tool . . . remarkably ef-

fective in fact-resolution and the matching of such reso-

lution against known or changing, or contradictory legal

principles.” Brown, Federal Special Verdicts: The Doubt

Eliminator, 44 F.R.D. 338 (1968).

The courts below erroneously failed to distinguish be-

tween the requirements of Rule 49\a) and 49(b).®° As

discussed below, the procedures set forth in the two sub-

sections are entirely different. See Downs v. Gulf &

Western Mfg. Co., 677 F. Supp. at 668 (“[i]t is helpful

at the start to distinguish between Rule 49(a) and Rule

49(b) because they govern different sorts of special ver-

dicts and may give rise to different legal results’’).

Rule 49(b) offers, so far as I can see, nothing but

trouble because it seeks to meld a general verdict

and special answers with the high likelihood of con-

flict which extinguishes both. Rule 49(a), on the

other hand, if used with skill and resourcefulness

melds the general charge (not verdict) with the

special answers to specific controlling issues of fact

or legal fact.

Brown, 44 F.R.D. at 339-40 (emphasis in original). ‘As

a result, [under Rule 49(a)] there could be no inconsis-

tency with a general verdict such that the court, in Rule

49(b)’s express words, ‘shall return the jury for further

consideration of its answers [and verdict] . . ..—a com-

mand absent entirely from Rule 49(a).” Downs v. Gulf

& Western Mfg. Co., Inc., 677 F. Supp. at 669. In-

6 The Eleventh Circuit in Jtel, 707 F.2d at 1261, arrived at its

erroneous conclusion with regard to Rule 49(a) by applying the

Fifth Circuit’s reasoning in Stancill v. McKenzie Tank Lines, Inc.,

497 F.2d 529, 534-35 (5th Cir. 1974), which arose under Rule 49(b).

Ironically, the Fifth Circuit, on which the IJtel court expressly

relied, has long since held that there is no waiver of the right to

object to inconsistent verdicts under Rule 49(a). See Mercer v.

Long Mfg. N.C., Inc., 671 F.2d at 947-49.

1]

deed, it is precisely because of the absence from Rule

49(a) of any comparable provision for resubmission to

the jury that the majority of the courts of appeals that

have considered the issue have held, as discussed above,

that a party may object tc inconsistencies in a verdict

post-trial. See Bonin v. Tour West, Inc., 896 F.2d at

1262-63; Malley-Duff & Assocs., Inc. v. Crown Life ins.

Co., 734 F.2d at 145; Mercer v. Long Mfg., 671 F.2d at

948 and n.1. See also Downs v. Gulf & Western Mfg. Co.,

Inc., 667 F. Supp. at 669-70.7

The instant case demonstrates the vice in applying the

strict ‘‘waiver rule.” Since the factual basis for the ver-

dict is unclear, it is impossible to determine whether the

verdict is legally supportable. The jury’s findings, as well

as the district court’s application of law, are insulated

from meaningful review. These defects subvert the pur-

pose of Rule 49(a)—to enable “the public, the parties

and the court to see what the jury really has done,” 5A

Moore’s Federal Practice { 49.02 at 49-5 to 49-6 (quoting

Sunderland, Verdicts, General and Special, 29 Yale L.J.

253, 259 (1920))—and undermine the rule’s utility in

complex litigation. See Downs v. Gulf & Western Mfg.

Co., 677 F. Supp. at 669 (citing Brown, supra, 44 F.R.D.

at 344-45 (Rule 49(a) special verdicts suited for product

liability suits) ); see generally 5A Moore’s Federal Prac-

tice § 49.02 at 49-6 to 49-7 & n.6. Review by this Court

is warranted for these reasons as well.

7 Conversely, the courts have held that the doctrine of waiver

does apply under Rule 49(b). See, e.g., Minpeco, S.A. v. Hunt,

718 F. Supp. 168, 181 n.17 (S.D.N.Y. 1989).

In addition, Rule 49(a) expressly provides for a waiver of the

right to a jury trial on the particular “issue of fact raised by the

pleadings or by the evidence” if the party fails to demand its sub-

mission to the jury before the jury retires. The fact that the

drafters of Rule 49(a) expressly provided therein for one sort of

waiver undercuts the notion that a waiver of another type, not

expressly provided for, nevertheless should be implied.

12

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

BARBARA E. ETKIND *

SANDRA LORD

Ross, DIXON & MASBACK

555 Thirteenth Street, N.W.

Suite 1300 East

Washington, D.C. 20004-1109

(202) 662-2000

JAMES E. OLDS

RONALD D. ALLEY

JAMES E. OLDs, LTD.

10800 Lyndale Avenue South

Minneapolis, Minnesota 55420

(612) 881-1601

October 1990 * Counsel of Record

APPENDICES

la

APPENDIX A

) IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 89-3764

Non-Argument Calendar

SO te Ne

D. C. Docket No. TCA 88-40169

WHIPPLE VAN NESS JONES, JR.,

MARYANN CASSEAUX JONES, his wife,

Plaintiffs-Appellees,

versus

THE ToRO COMPANY,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Florida

(May 24, 1990)

Before FAY, EDMONDSON and COX, Circuit Judges.

PER CURIAM:

This is a products liability action brought in federal

i court under diversity jurisdiction. The Toro Company

(“Toro”), defendant below, appeals the district court’s

denial of its motion for a new trial. The jury awarded

plaintiffs Van and Maryann Jones damages for injuries

2a

suffered as a result of Van’s being burned; Van was re-

fueling his Toro lawn mower when a fire somehow started

around the mower’s engine. The jury found that Toro

was not strictly liable, specifically finding no design de-

fect in the mower. The jury found, however, that Toro

was negligent.

Toro argues that this verdict was inconsistent because

there was no evidence in the record to support a finding

of negligence absent a design defect. Because the case

also presents a question about certain warnings that

ought to have been given by Toro, we doubt that the ver-

dict was inconsistent; but we need not decide that mat-

ter. The jury issued the special verdict in the form of

answers to questions presented by the court pursuant to

Federal Rule of Civil Procedure 49(a). The Eleventh

Circuit follows the rule that failure to challenge the con-

sistency of a 49(a) verdict before the jury is excused

constitutes waiver of a later challenge. See Golub v. J.W.

Gant & Assocs., 863 F.2d 1516, 1521 n.4 (11ti Cir.

1989); ITEL Capital Corp. v. Cups Coal Co., Inc., 707

F.2d 1253, 1261 (11th Cir. 1983). Because Toro did not

raise its objection in the district court before the jury

was excused, Toro’s objection to the consistency of the

verdict is waived on appeal.

Toro also appeals the denial of its motion for a new

trial on the ground that the district court orally gave the

jury confusing instructions. The jury instructions taken

as a whole appear clear enough, but we need not decide

the question in the most technical way. Pursuant to Fed-

eral Rule of Civil Procedure 51, an objection to a jury

instruction must be made before the jury retires. See

McClow v. Warrior & Gulf Navigation Co., 842 F.2d

1250, 1253 (11th Cir. 1988). Toro did not object to the

court’s oral instructions and, in the absence of such an

objection, we will reverse only where we find plain error.

Id. Toro complains that the district judge told the jury

that it should determine “whether the Toro Company was

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negligent in designing the manufacturer of the lawn

mower in a negligent condition.” The written instruc-

tions, which Toro concedes were accurate and which were

available to the jury during deliberations, said the issue

was whether Toro “was negligent in designing or manu-

facturing the mower in an unsafe condition.” ROA 3-

99,9. We find no error in the judge’s oral misstatement

““‘so fundamental as to result in a miscarriage of jus-

tice.’”’ Id. (citation omitted).

AFFIRMED.

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APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 89-3764

Non-Argument Calendar

D.C. Docket No. TCA 88-40169

WHIPPLE VAN NESS JONES, JR.,

MARYANN CASSEAUX JONES, his wife,

Plaintiffs-A ppellees,

versus

THE TORO COMPANY,

Defendant-A ppellant.

Appeal from the United States District Court

for the Northern District of Florida

Before FAY, EDMONDSON and COX, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the

Northern District of Florida, and was taken under sub-

mission by the Court upon the record and briefs on file,

pursuant to Circuit Rule 34-3;

ON CONSIDERATION WHEREOF, it is now hereby

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be and the same is

hereby AFFIRMED;

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IT IS FURTHER ORDERED THAT defendant-appel-

lant pay to plaintiffs-appellees, the costs on appeal to be

taxed by the Clerk of this Court.

Entered: May 24, 1990

For the Court: MIGUEL J. CoRTEZ

Clerk

By: /s/ David Maland

Deputy Clerk

Issued as Mandate: Jun 20, 1990

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APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

Case No. TCA 88-40169

WHIPPLE VAN NESS JONES, JR.

and MARYANN JONES, his wife,

Plaintiffs,

VS.

THE TORO COMPANY,

Defendant.

VERDICT

WE, THE JURY, RETURN THE FOLLOWING VER-

DICT:

1. Did The Toro Company place the lawnmower on

the market with a defect which was a legal cause of dam-

age to Van Jones?

Yes No X

Answer question 2.

2. Was there negligence on the part of The Toro Com-

pany which was a legal cause of damage to Van Jones?

Yes X No

If your answers to both questions 1 and 2 were No,

your verdict is for the Defendant The Toro Company and

you should proceed no further but to date and sign this

verdict form and return it to the courtroom. If your

answer to either question 1 or 2 is Yes, please answer

question 3.

Ta

3. Was there negligence on the part of Van Jones

which was a legal cause of his damages?

Yes X No

If your answer to question 3 is Yes, answer question 4.

If your answer to question 3 is No, skip question 4 and

answer question 5.

4. State the percentage of any negligence which was a

legal cause of damage to Van Jones, that you charge to:

Defendant The Toro Company 85%

Plaintiff Van Jones 15%

Total must be 100%

Please answer question 5.

5. What is the total amount (100%) of any damages

sustained by each Plaintiff, caused by the incident in

question.

Total damages of Van Jones $1,058,000

Total damages of Maryann Jones $ 150,000

In determining the total amount of damages, do not make

any reduction because of the negligence, if any, of Van

Jones. If you have found him negligent in any degree,

the court in entering judgment will reduce plaintiff’s total

amount of damages (100%) by the percentage of negli-

gence which you found is chargeable to Jones.

SO SAY WE ALL THIS day of —————,, 1989.

Foreman or Forewoman