Bittner v. American Honda Motor Co., Inc.

Wisconsin Court of Appeals · Torts

TortsProducts liabilityComparative negligenceJury verdictsJuror misconductDamagesEvidencefive-sixths rule

Facts

Bittner was injured in 1988 when his three-wheeled Honda ATV overturned on a mowed path near his home, and no witness saw the accident. He presented expert testimony that the ATV was dynamically unstable, defective, and negligently designed, and that the accident occurred when the ATV encountered a mound and depression along the path. Honda cross-examined the plaintiff's Consumer Product Safety Commission witness with evidence criticizing unadjusted injury statistics and presented expert Roger McCarthy to explain comparative risk analysis. During trial, one juror made an unauthorized visit to the accident site and later mentioned the visit to some jurors.

Issue

Whether the trial court erred in accepting the verdict despite dissents on different special-verdict questions, denying a new trial for juror misconduct, admitting comparative-risk expert testimony, upholding the jury's negligence apportionment and damage award, and refusing a new trial in the interest of justice. More specifically, the court considered how the five-sixths rule applies when some dissents support the ultimate winner's verdict 'only more so.'

Rule

When multiple verdict questions are required to resolve a claim, the same five-sixths of jurors must agree on all essential questions; however, a dissent that supports the verdict for the prevailing party 'only more so' is disregarded because it is not essential to a complete verdict. Juror misconduct, including an unauthorized view of the accident scene, warrants relief only if it probably prejudiced a hypothetical average jury. Expert testimony is admissible under § 907.02 when specialized knowledge will assist the jury in understanding evidence or determining a fact in issue, and negligence apportionment will be upheld if supported by any credible evidence.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a Wisconsin products-liability trial in Milwaukee, 12 jurors answer a special verdict. They find North Ridge Tools causally negligent and also find Elena Torres causally negligent; two jurors dissent from the finding that North Ridge Tools was negligent, and two different jurors dissent from the finding that Elena was negligent. All 12 jurors agree on apportionment: 45% to North Ridge Tools and 55% to Elena.

Should the trial court accept the verdict over Elena's objection that the same five-sixths did not agree on all essential questions?

Explanation. If more than one question must be answered to reach a verdict on the same claim, the same five-sixths must agree on all essential questions. Where some jurors dissent from defendant negligence and different jurors dissent from plaintiff negligence, those votes are inconsistent with their participation in comparative apportionment and must be excluded. Here, unlike the 'only more so' situation, the dissents are on opposite sides of the negligence findings, so the verdict fails if fewer than the required same five-sixths remain on the essential questions. (Derived from Bittner v. American Honda Motor Co., Inc. (n.d.).)