Article by Julia Sarabia, Law Clerk
Defense litigators can use special interrogatories in jury verdicts to prevent apportionment of more than 60% liability where there are issues of vicarious liability. The Pennsylvania “Fair Share Act” has been applied to hold employers liable for the entire verdict where they are apportioned not less than 60% of the total liability. There is a risk of awards being inflated due to parties being judgment-proof while then applying vicarious liability to increase the overall apportionment of liability assigned to employers. The use of special interrogatories can provide detailed apportionment of liability that would prevent the molding of the verdict, thus saving the client from paying the entirety of the judgment while the failure to provide special interrogatories is not grounds for appeal due to the “general verdict rule.” Fair Share Act. See 42 Pa. C.S.A. § 7102(a.1)(3)(iii) (“A defendant’s liability in any of the following actions shall be joint and several, and the court shall enter a joint and several judgment in favor of the plaintiff and against the defendant for the total dollar amount awarded as damages… [w]here the defendant has been held liable for not less than 60% of the total liability apportioned to all parties,”).
In Spencer v. Johnson, 2021 PA Super 48, 249 A.3d 529 (2021) (where an employer-provided an employee with a vehicle and the employee’s husband negligently injured a pedestrian using the vehicle), the jury allocated liability as follows: driver, Cleveland (36%), employee, Tina (19%), and employer, PJB (45%). The employer, PJB was held vicariously liable for Tina’s actions and was found to be over the 60% threshold of the Fair Share Act.
Despite the contention that the jury was free to conclude that Tina was acting as an employee/agent, and also that she had consented to Cleveland driving, the jury did not make any finding to those reasons. The verdict slip had only two questions regarding Tina: “Was Defendant Tina Gainer Johnson negligent?” and “Was Defendant Tina Gainer Johnson’s negligence a factual cause of harm to Plaintiff Keith Spencer?” (Id. at 551). There were no specific queries addressing whether Tina was acting as PJB’s agent at the time of the incident, or whether she had authorized Cleveland to use the vehicle. Spencer himself admitted in his Motion to Mold the Verdict, “Whether a person acted in the court and scope of employment is ordinarily a question for the jury.” As [Spencer] did not put those specific questions to the jury, the jury did not answer them, and it is not clear from the verdict slip whether they found [Tina] directly liable, directly and vicariously liable, or only vicariously liable.” (Id.)
The lack of special interrogatories leads the Superior Court to conclude that any ambiguity in the verdict is to be constructed in Spencer’s favor as the verdict winner without the ability to appeal the case solely due to the failure to provide special interrogatories. In the Pennsylvania Supreme Court’s decision in Halper v. Jewish Family & Children’s Service, 600 Pa 145, 963 A.2d 1282 (2009), the jury returned a general verdict finding that the defendant was negligent but the jury was not asked the difference between the two theories of negligence. (Spencer at 553). The court adopted and applied the “general verdict rule,” which provides that “when a jury returns a general verdict involving two or more issues and its verdict is supported as to at least one issue, the verdict will not be reversed on appeal.” (Halper at 1289). The Court further stated that it adopted and applied the rule because it would not shift the burden to the plaintiffs due to the defendant’s failure to request a special verdict slip. See id.
Although the defense counsel in Spencer did not request a new trial, the same principles in Halper apply to the jury instruction and the verdict slip. In an attempt to prevent joint and several liability, as applicable, defense counsel should provide special interrogatories to the jury as to what standard of negligence they decide each party, the scope of employment, and any other specialized definitions that may be conflated by the jury which would affect apportionment of negligence. Some examples include:
- What is the dollar amount of your verdict?
- Past medical expenses
- Past lost wages
- Past pain and suffering
- Future pain and suffering
- Future medical expenses
- Was the defendant employee working within the scope of their employment?
- Is the employer responsible for the actions of the employee beyond the amount of negligence they are apportioned?
A focus on the case’s standard for liability could produce a favorable verdict that would reduce employer liability below the 60% threshold.