The Eighth District released an interesting decision last week in Link v. FirstEnergy Corp., 2014-Ohio-5432, in part holding that both plaintiff and the defendant waived jury inconsistencies within the verdict by failing to raise the issue before the panel was discharged. It is not an entirely novel issue, but the case includes good analysis on the issue.
Civ.R. 49 provides that jury inconsistencies in entering judgment can be remedied by the court (1) entering judgment consistent with the answers notwithstanding the verdict, (2) returning the matter to the jury for further consideration, or (3) ordering a new trial. Relying on Civ.R. 49 and the Ohio Supreme Court's determination that the best choice when dealing with jury inconsistencies is to send the jury back for further deliberations, the Eighth District concluded that by failing to address the issue until the only remedy was a new trial, the parties negated two of the three options, and therefore, waived the inconsistency by eliminating the best options. In part, the waiver policy prevents jury forum shopping. Interestingly, the Ohio Supreme Court case cited actually was similar, the jury inconsistencies were discovered months after the judgment. Nevertheless, the Ohio Supreme Court allowed the party the option of choosing between remaining two remedies, enter a judgment as a matter of law or remand for new trial. Shaffer v. Maier, 68 Ohio St.3d 416, 421, 627 N .E.2d 986 (1994). There was no discussion of waiver. Other districts apply the same waiver rule, so the Eighth District is not alone. Ohio Vestibular & Balance Ctrs., Inc. v. Wheeler, 2013-Ohio-4417, 999 N.E.2d 241, ¶ 36 (6th Dist.); Arrow Machine Co., Ltd. v. Array Connector Corp., 197 Ohio App.3d 598, 2011-Ohio-6513, 968 N.E.2d 515, ¶ 54 (11th Dist.); Napierala v. Szczublewski, 6th Dist. Lucas No. L–02–1025, 2002-Ohio-7109, ¶ 19; Romp v. Haig, 110 Ohio App.3d 643, 647, 675 N.E.2d 10 (1st Dist.1995). If there is the possibility that jury inconsistencies could derail the final judgment, the important practice pointer is to raise the issue before the jury is discharged. In light of majority position that jury inconsistencies are waived if not raised before the jury is discharged, practically speaking, there is only one remedy available. When would a court ever grant any other relief if the jury could easily be sent for further deliberations to resolve the inconsistency in the verdict?
Finally, and without going into detail, the Eighth District's decision is important for a second reason, the trial court's decision to not send the punitive damages claim to the jury was reversed and the case remanded for a new trial. Although fairly fact specific, the case involved a motorcycle collision with a utility pole placed too close to the right of way, the second such accident on that particular stretch of highway and well-after the utility had notice of the issue, reversals such as that are rare and good to keep on hand if the issue ever arises.
