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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 998

## Text

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No. ———— | JOSEPH F. BPANIOL, JR,

te.., cmpreeoe .

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-
eae caleas catanavers<cocsssssnnannsnavorssicotressnaces | 2
Neen ee cscs scscnnaneevacacecesisnsesansnsstenee 3
REASONS FOR GRANTING THE PETITION ........... 5
EEN LEE EET 12
Tee a. snssnunnanvanenamsonsannnce la
Neen ee ec savcnnssconcenevansecansiinnn- nce 4a

Neen cs ova-nanassnsesstesscsssanesuasnacea 6a

(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

3a

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;

5a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2947%3A1. Public record. Not legal advice.