Avoiding Pitfalls of Special Interrogatories - Maron Marvel
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Avoiding Pitfalls of Special Interrogatories

May 8, 2024

Donald R. Kinsley


The use of special interrogatories given to juries to render verdicts has been said to be “admittedly fraught with many pitfalls in the potential conflicts between the general verdict and the interrogatories,”[i] and is “nothing but trouble because it seeks to meld a general verdict and special answers with the high likelihood of conflict which extinguishes both.”[ii] Nonetheless, special interrogatories are used regularly in federal and state courts within the discretion of the court.  However, guidance on how courts should exercise that discretion is limited.  This article explores some of the factors federal and state courts have considered in exercising discretion to avoid the pitfalls of special interrogatories and sets forth the rules that govern the courts’ use of special interrogatories across the states.

For federal law cases, Fed. Rule 49(b) sets forth that “[t]he court must give the instructions and explanations necessary to enable the jury to render a general verdict and answer the questions in writing … . “[iii]  Special interrogatories are often used to test the general verdict.  Abernathy v. S. Pac. Co., 426 F.2d 512, 514 (5th Cir. 1970). Proposed special interrogatories that merely state the converse of a special interrogatory already submitted to the jury or that restate, elaborate, or confirm the jury’s decision on controlling issues are unnecessary and were correctly denied.[iv]

The timeliness of an objection to a verdict that is inconsistent with answers to special interrogatories is also critical in obtaining a new trial.  Some circuits impose an obligation on the district courts to address inconsistent verdicts, obviating the need for a party to object; [v] however, at least the Sixth Circuit requires a party to object to an inconsistent verdict before the district court releases the jury or forever hold its peace.[vi]

Even if special interrogatories that may not be necessary to rendering a general verdict are submitted to the jury, such an error has been determined to be harmless when no prejudice results.[vii]

Some of the factors cited in the discretionary use of the specific finding from a special interrogatory include: does it add to a logical and reasonable understanding of the issue;[viii]  and is it a determination of a factual issue essential to the judgment.[ix] Also, like in federal courts, the purpose of special interrogatories in state courts is to test the general verdict against the jury’s determination as to one or more specific issues of ultimate fact.  Goranowski v. Ne. Illinois Reg’l Commuter R.R. Corp., 2013 IL App (1st) 121050, 991 N.E.2d 837.

Rejection of requests for special interrogatories have been upheld when they are ambiguous, confusing, redundant, or otherwise legally objectionable;[x] or they would not control the general verdict.[xi]  Courts properly reject proposed interrogatories that do not address “determinative” issues.[xii]

In Ohio, special interrogatories are used specifically to test the general verdict of a jury in cases involving two issues, where there are two causes of action or two defenses, thereby raising separate and distinct issues, called the two-issue rule.[xiii]

Recently, in several decisions, new trials have been ordered because the jury’s answers to special interrogatories were inconsistent with the general verdict.

  • Brown v. Kozak, 2024-Ohio-670 (Feb. 21, 2024) (The appellate court held: “These findings are logically inconsistent with each other. Upon recognizing these inconsistent answers, the trial court should have either returned the jury for further consideration of its answers and verdict or ordered a new trial.”);
  • Osman v. First Priority Mgmt., 308 A.3d 1233, 1240 (D.C. Feb. 8, 2024) (“We conclude that trial court’s reconciliation of the jury’s interrogatory answers was neither ‘a reasonably possible’ nor a ‘logical and probable’ basis for reconciling the jury’s answers.); and
  • Kulhanek v. Casper, 2023 IL App (1st) 221454 (Dec. 20, 2023) (“[T]he parties forfeited consideration of any claims regarding inconsistencies between the jury’s special answers and the general verdict. Apparently, the trial court did not notice the inconsistency while the jury was empaneled, and plaintiffs first raised the issue in a posttrial motion, which they filed 15 days after the jury rendered its verdict. As a result, the trial court did not submit the issue to the jury for its further consideration.” The appellate court affirmed the trial court’s granting of a new trial.).

Most states have statutes or court rules patterned closely on the Federal Rules of Civil Procedure.[xiv]  Other states have other statutes, rules, and common law governing verdicts and the use of special interrogatories, and the authority in those states include:

  • California, Civ. Proc. Code § 625 –  “In all cases the court may direct the jury to find a special verdict in writing, upon all, or any of the issues, and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon.”
  • Connecticut – The trial court has power “to submit proper interrogatories to the jurv… .” Ocasio v. Verdura Constr., LLC, 215 Conn. App. 139, 152, 281 A.3d 1205, 1213 (2022).
  • Florida – “The use of a special interrogatory verdict form is within the sound discretion of the trial court and its decision should not be disturbed on appeal absent prejudicial error.” Int’l All. of Theatrical Stage Emps. & Moving Picture Technicians, Artists & Allied Crafts of U.S., its Territories, & Canada Loc. 500 v. Int’l All. of Theatrical Stage Emps. & Moving Picture Mach. Operators Holding Co., 902 So. 2d 959, 964 (Fla. Dist. Ct. App. 2005).
  • Georgia – Ga. Code Ann. § 9-11-49. “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 that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of several special findings which might properly 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. … .”
  • Illinois – 735 Ill. Comp. Stat. Ann. 5/2-1108 – “Unless the nature of the case requires otherwise, the jury shall render a general verdict. Within the discretion of the court, the jury may be asked to find specially upon any material question or questions of fact submitted to the jury in writing. Any party may request special interrogatories. … .”
  • Indiana – “Special verdicts and interrogatories to the jury are abolished” in Indiana. Ind. Trial Rule 49. Sawlani v. Mills, 830 N.E.2d 932, 949 (Ind. Ct. App. 2005).
  • Iowa – Iowa R. Civ. P. 1.934 – “The jury in any case in which it renders a general verdict may be required by the court, and must be so required on the request of any party to the action, to find specially upon any particular questions of fact, to be stated to it in writing, which questions of fact shall be submitted to the attorneys of the adverse party before argument to the jury is commenced. The instructions shall be such as will enable the jury to answer the interrogatories and return the verdict. If both are harmonious, the court shall order the appropriate judgment. If the answers are consistent with each other, but any is inconsistent with the general verdict, the court may order judgment appropriate to the answers notwithstanding the verdict, or a new trial, or send the jury back for further deliberation. If the answers are inconsistent with each other, and any is inconsistent with the verdict, the court shall not order judgment, but either send the jury back or order a new trial.” Berghammer v. Smith, 185 N.W.2d 226, 233–34 (Iowa 1971).
  • Louisiana – La. Code Civ. Proc. Ann. art. 1813 – “The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict.”
  • Maryland – Md. Rules 2-522 – “The court may require a jury to return a verdict in the form of written findings upon specific issues.”
  • Massachusetts – Mass. R. Civ. P. 49 – “The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict.”
  • Michigan – Mich. Ct. R. 2.515 – “The court may submit to the jury: (1) written questions that may be answered categorically and briefly … .”
  • Missouri – Mo. Sup. Ct. R. 71.01 – “The verdict of a jury is either general or special. A general verdict is one by which the jury pronounces generally upon all or any of the issues, either in favor of the plaintiff or defendant, and includes a verdict wherein the jury returns a finding of the plaintiff’s total damages and assesses percentages of fault. A special verdict is one by which the jury finds the facts only, leaving the judgment to the court.” Sup. Ct. R. 71.03 – “In all other cases, if at any time during the progress of any cause, it shall, in the opinion of the court, become necessary to determine any fact in controversy by the verdict of a jury, the court may direct an issue or issues to be made.”
  • Nebraska – Neb. Rev. Stat. Ann. § 25-1121 – “[T]he jury … in their discretion, may render a general or special verdict, … if they render a general verdict, to find upon particular questions of fact to be stated in writing, and may direct a written finding thereon.”
  • New Hampshire – N.H. Rev. Stat. Ann. § 507:7-e – “[T]he damages attributable to each party shall be determined by general verdict, unless the parties agree otherwise, or due to the presence of multiple parties or complex issues the court finds the use of special questions necessary to the determination. In any event, the questions submitted to the jury shall be clear, concise, and as few in number as practicable, and shall not prejudice the rights of any party to a fair trial.”  Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 813, 395 A.2d 843, 850 (1978): “In any complicated or multiple count negligence or strict liability cases, trial judges have the inherent power to use special questions and verdicts to guide the jury and to aid in post-verdict review.”
  • North Carolina – N.C. Gen. Stat. Ann. 1A-1, 49 – “The judge may require a jury to return either a general or a special verdict and in all cases may instruct the jury, if it renders a general verdict, to find upon particular questions of fact, to be stated in writing, … .”
  • Oklahoma – Okla. Stat. Ann. tit. 12, § 588 – “In all cases the jury shall render a general verdict, and the court may in any case at the request of the parties thereto, or either of them, in addition to the general verdict, direct the jury to find upon particular questions of fact, to be stated in writing by the party or parties requesting the same.”
  • Pennsylvania – Pa.R.C.P. No. 2257 – “Upon the court’s own motion or the request of any party, the jury, or the court, if the action is tried without a jury, shall return, in addition to a general verdict or finding, such specific findings as will determine the issues among all parties. Questions submitted to the jury for special findings shall be prepared or approved by the court and shall be in writing.”
  • South Dakota – S.D. Codified Laws § 15-6-49(b) – “The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict.”
  • Tennessee – Tenn. R. Civ. P. 49.02 – “The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict.”
  • Texas – Tex. R. Civ. P. 277 – “In all jury cases the court shall, whenever feasible, submit the cause upon broad-form questions.”
  • Virginia – Va. Code Ann. § 8.01-377 –:”[T]he court may direct the jury to find the facts, and, after such finding, if it considers the variance such as could not have prejudiced the opposite party, shall give judgment according to the right of the case.” Interrogatories, or special interrogatories, are specific questions requiring findings of fact instead of, or ancillary to, a general verdict. These also are rarely, if ever, used in Virginia trials.” Va. Prac. Trial Handbook § 39:5.
  • Wisconsin – Stat. Ann. § 805.12 – “Unless it orders otherwise, the court shall direct the jury to return a special verdict. The verdict shall be prepared by the court in the form of written questions relating only to material issues of ultimate fact and admitting a direct answer. The jury shall answer in writing. In cases founded upon negligence, the court need not submit separately any particular respect in which the party was allegedly negligent, The court may also direct the jury to find upon particular questions of fact.”  “Use of a general verdict … is not per se improper.”  In Int. of A.E., 163 Wis. 2d 270, 275, 471 N.W.2d 519, 521 (Ct. App. 1991).

Drafting special interrogatories with care is critical to avoiding an inconsistent verdict, a key pitfall of concern for both special interrogatories and verdicts.

[i] Weymouth v. Colorado Interstate Gas Co., 367 F.2d 84, 95 (5th Cir. 1966).

[ii] Brown, Federal Special Verdicts: The Doubt Eliminator, 1967, 44 F.R.D. 338, 339–340.

[iii] Fed. R. Civ. P. 49(b).

[iv] Truitt v. Travelers Ins. Co., 175 F. Supp. 67, 71–72 (S.D. Tex. 1959), aff’d, 280 F.2d 784 (5th Cir. 1960).

[v] Schaafsma v. Morin Vt. Corp., 802 F.2d 629, 634-35 (2d Cir. 1986); Brunner v. Mar. Overseas Corp. 779 F.2d 296, 297-98 (5th Cir. 1986).

[vi] Innovation Ventures, LLC v. N2G Distrib., Inc., 763 F.3d 524, 538 (6th Cir. 2014) (general verdict with special interrogatories); Radvansky v. City of Olmsted Falls, 496 F.3d 609, 619 (6th Cir. 2007) (special verdict).  In Umfress v. City of Memphis, Tennessee, No. 20-6115, 2021 WL 2828023, (6th Cir. July 7, 2021), the defendant failed to timely object to the inconsistent verdict and forfeited the argument.

[vii] Ribeiro v. United Fruit Co., 284 F.2d 317, 321 (2d Cir. 1960).

[viii] Betz v. Erie Ins. Exch., 2008 PA Super 221, ¶¶ 29-31, 957 A.2d 1244, 1262 (2008).

[ix] Makila Land Co., LLC v. Heirs or Assigns of Apaa (k), 146 Haw. 600, 616, 463 P.3d 1257, 1273 (Ct. App. 2020), as corrected (Apr. 17, 2020), as amended (Aug. 25, 2020); Noel v. Jones, 177 Ill. App. 3d 773, 783, 532 N.E.2d 1050, 1056 (1988).  In Illinois, “the supreme court has held that a proper special interrogatory consists of a single, direct question (Illinois Steel Co. v. Mann, 197 Ill. 186, 189, 64 N.E. 328, 330 (1902)), and is “one which, if found, must be controlling” of the general verdict (Chicago City Ry. Co. v. Olis, 192 Ill. 514, 518, 61 N.E. 459, 460 (1901)).”  Snyder v. Curran Twp., 281 Ill. App. 3d 56, 59, 666 N.E.2d 818, 821 (1996).  “However, a special interrogatory that is repetitive, misleading, confusing, or ambiguous is not in proper form. Snyder, 281 Ill.App.3d at 60–61, 217 Ill.Dec. 149, 666 N.E.2d at 821–22. Where the trial court finds that a special interrogatory was not properly given, or that the jury’s answer to the special interrogatory was contrary to the manifest weight of the evidence, the trial court may order a new trial. Borries, 37 Ill.2d at 265–66, 226 N.E.2d at 18–19 (no authority to enter judgment in accordance with general verdict).”  Blakey v. Gilbane Bldg. Corp., 303 Ill. App. 3d 872, 882, 708 N.E.2d 1187, 1194 (1999).

[x] Hally v. Greater Cleveland Reg. Transit Auth., 199 N.E.3d 13 (Ohio Ct. App. 8th Dist. Cuyahoga County 2022).

[xi] Shaheed v. Chicago Transit Auth., 137 Ill. App. 3d 352, 362, 484 N.E.2d 542, 550 (1985);
Dunn v. Higgins, 14 Ohio St. 2d 239, 246, 237 N.E.2d 386, 392 (1968); Neeley v. Stratton, 185 Mich. 409, 412, 151 N.W. 1045, 1046 (1915); and Roske v. Ilykanyics, 232 Minn. 383, 390, 45 N.W.2d 769, 774 (1951).

[xii] Phillips v. Dayton Power & Light Co., 111 Ohio App. 3d 433, 441, 676 N.E.2d 565, 570 (1996):

“An interrogatory may be indeterminate because it is phrased in the disjunctive. Generally, great care should be taken to avoid combining issues disjunctively in an interrogatory because a “yes” or “no” answer may be construed as referring to either issue. It is proper, however, to phrase an interrogatory disjunctively in certain cases where there is no risk of a nonresponsive answer. In other words, where a “yes” answer to either question alone is enough to alone support a verdict based upon it. In a negligence case, for example, an interrogatory may validly ask whether the defendant knew or in the exercise of ordinary care ought to have known of a danger. Such disjunctive wording is proper because a “yes” answer to either question alone is enough to support a verdict finding negligence.”

[xiii] Hampel v. Food Ingredients Specialties, Inc., 2000-Ohio-128, 89 Ohio St. 3d 169, 185, 729 N.E.2d 726, 739.  See H.E. Culbertson Co. v. Warden, 123 Ohio St. 297, 303, 175 N.E. 205, 207 (1931):

“This rule as generally applied is that, where there are two causes of action, or two defenses, thereby raising separate and distinct issues, and a general verdict has been returned, and the mental processes of the jury have not been tested by special interrogatories to indicate which of the issues was resolved in favor of the successful party, it will be presumed that all issues were so determined; and that, where a single determinative issue has been tried free from error, error in presenting another issue will be disregarded.”

[xiv] Alabama, Ala. R. Civ. P. 49; Arkansas, Ark. R. Civ. P. 49; Alaska, Alaska R. Civ. P. 49; Arizona, Ariz. R. Civ. P. 49; Colorado, C.R.C.P. 49; Delaware, Del. Super. Ct. Civ. R. 49; District of Columbia, D.C. Super. Ct. R. Civ. P. 49; Hawai’i, Haw. R. Civ. P. 49; Idaho, I.R.C.P. 49; Kansas, Kan. Stat. Ann. § 60-249; Kentucky, Ky. R. Civ. P. 49.02; Maine, Me. R. Civ. P. 49; Minnesota, Minn. R. Civ. P. 49.01; Mississippi, M.R.C.P. 49; Montana, M. R. Civ. P. 49; Nevada, NV ST J CTS RCP JCRCP 49; New Jersey, N.J. Ct. R. R. 4:39-2; New Mexico, NMRA, Rule 1-049; New York, N.Y. C.P.L.R. 4111; North Dakota, N.D. R. Civ. P. 49; Ohio, Ohio Civ. R. 49; Oregon – Or. R. Civ. P. 61; Rhode Island, Super. R. Civ. P. 49; South Carolina, SCRCP 49; Utah, Utah R. Civ. P. 49; Vermont, Vt. R. Civ. P. 49; Washington, Wash. Super. Ct. Civ. R. 49; West Virginia, W. Va. R. Civ. P. 49, amended by 2024 West Virginia Court Order 0001 (C.O. 0001) revision to take effect Jan. 1, 2025; and Wyoming, Wyo. R. Civ. P. 49.