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Court of Appeal, Second District, Division 4, California.

Evelyne Elizabeth RESCH, Plaintiff and Appellant, v. VOLKSWAGEN OF AMERICA, INC.;  Volkswagenwerk Aktiengesellschaft;  and Sanucci, Inc., Defendants and Respondents.

Civ. 68682.

Decided: November 18, 1983

Lewis, D'Amato, Brisbois & Bisgaard, Roy M. Brisbois and Linda Hulse, Los Angeles, for plaintiff and appellant. Herzeld & Rubin, Martin S. Friedlander and Allan M. Rosenthal, Los Angeles, for defendants and respondents.


Evelyne Resch (plaintiff) appeals from that portion of the Judgment on Special Verdict “entered on May 21, 1982 in favor of defendants VOLKSWAGEN OF AMERICA, INC., VOLKSWAGENWERK AKTIENGESELLSCHAFT and SANUCCI, INC. and against Plaintiff, EVELYNE RESCH.”   The pertinent part of the judgment, however, names only defendant Volkswagen of America, Inc. (V.W.)  While the parties to this appeal in their briefs refer to the judgment as exonerating Volkswagenwerk Aktiengesellschaft and Sanucci, Inc., the record on appeal does not bear this out.   Accordingly, we consider the judgment as having exonerated V.W. only and do not recognize Volkswagen Aktiengesellschaft and Sanucci, Inc. as parties to this appeal.


Plaintiff brought a personal injury action against V.W. and others 1 for damages she sustained in an automobile collision that she alleged occurred when a negligently driven vehicle struck her own Volkswagen.   As to V.W., plaintiff proceeded on a theory of strict liability.   She alleged that defects in it contributed to her injuries.   The matter was submitted to the jury by way of a special verdict.2  (Code Civ.Proc., § 625.)

The special verdict returned by the jury in relevant part reads:

“We the jury in the above entitled case, find the following Special Verdict on the issues submitted to us:


“Issue No. 3.   Was there a design defect in the 1967 Volkswagen automobile?

“Answer ‘Yes' or ‘No’.

“Answer:  No

“Also answer Issue No. 4.

“Issue No. 4.   Was there a manufacturing defect in the 1967 Volkswagen automobile?

“Answer ‘Yes' or ‘No’.

“Answer:  Yes

“If you have answered either Issue No. 3 or Issue No. 4 ‘Yes', answer the next issue.

“Issue No. 5.   Was the defect a substantial factor in bringing about the plaintiff's injuries?

“Answer ‘Yes' or ‘No’.

“Answer:  No


A poll of the jury revealed that all 12 jurors found that there was no design defect in the Volkswagen driven by plaintiff at the time of the accident.   Nine out of 12 jurors found that the Volkswagen had a manufacturing defect, and 10 out of 12 jurors found that the defect was not a substantial factor in causing plaintiff's injuries.

The poll disclosed the following voting pattern:

With regard to special verdict interrogatories 4 and 5, only seven jurors (i.e., jurors 2, 3, 5, 6, 9, 10 and 12) found both that there was a manufacturing defect in the car driven by plaintiff and that the defect was not a cause of plaintiff's injuries.

Plaintiff moved for a mistrial claiming that the verdict was internally inconsistent because there were not nine identical votes on the special verdict issues presented to the jury.   This motion, as well as plaintiff's subsequent motion for a new trial, was denied.

Judgment on Special Verdict was entered on May 21, 1982, in favor of V.W., and this appeal followed.


Plaintiff's sole contention on appeal is that the verdict for V.W. was invalid because it did not represent the verdict of nine jurors voting identically on the issues of manufacturing defect and causation.3


In Collin v. Connecticut Valley Arms, Inc. (1982) 137 Cal.App.3d 815, 187 Cal.Rptr. 306 (petition for hearing denied January 27, 1983) this court was presented with a similar set of facts and asked to resolve a similar issue.4  Collin, who was severely injured when a shotgun he was shooting exploded, brought a personal injury action for damages against Connecticut Valley Arms, Inc. (CVA), the manufacturer of the shotgun, and others.   The case was submitted to the jury by way of a special verdict.

By a vote of 11 to 1, the jury found that there was no defect and thus found that CVA was not strictly liable.   On the issues of CVA's negligence and causation, 10 out of 12 jurors found that CVA was negligent, but 9 out of 12 jurors found that CVA's negligence was not a proximate cause of Collin's injuries.   Only 7 jurors, however, voted in an identical pattern on the issues of negligence and causation (i.e., “yes-no” respectively).   The voting pattern of the Collin jury in relevant part was as follows:

Judgment was entered against plaintiff Collin in favor of defendant CVA, and Collin appealed.   He contended that no verdict had been reached since nine identical jurors did not agree on the negligence and causation answers as required by BAJI Instruction No. 15.51,5 which the trial court gave to the juries in the Collin case and in the case before us.  (In the case before us, the trial judge used the word “presiding officer” instead of “foreman,” and the word “courtroom” instead of “room,” omitting the words “you shall.”)

Relying on Juarez v. Superior Court (1982) 31 Cal.3d 759, 183 Cal.Rptr. 852, 647 P.2d 128, and United Farm Workers of America v. Superior Court (1980) 111 Cal.App.3d 1009, 169 Cal.Rptr. 94, this court agreed with Collin's contention and concluded “that no verdict was reached here because the same nine jurors did not agree on the questions of negligence and proximate cause.”  (Collin v. Connecticut Valley Arms, Inc., supra, 137 Cal.App.3d at p. 819, 187 Cal.Rptr. 306.)   Having so concluded, we reversed the judgment and remanded the case.

Unlike Collin or the case at bench, Juarez and United Farm Workers were comparative negligence cases.   As we noted in Phelps v. Superior Court (1982) 136 Cal.App.3d 802, 805, 808, 186 Cal.Rptr. 626, Juarez announced an exception to the general rule of Earl v. Times-Mirror Co. (1921) 185 Cal. 165, 182–186, 196 P. 57, a precomparative negligence case, that in a nonbifurcated trial nine identical jurors had to agree on all elements necessary to the ultimate verdict.   That exception was stated by our Supreme Court as follows:  “[I]f nine identical jurors agree that a party is negligent and that such negligence is the proximate cause of the other party's injuries, special verdicts apportioning damages are valid so long as they command the votes of any nine jurors.”  (Juarez v. Superior Court, supra, 31 Cal.3d at p. 768, 183 Cal.Rptr. 852, 647 P.2d 128;  first emphasis added.)

The Juarez court also referred with approval to the United Farm Workers case wherein the Court of Appeal held “that to find liability, the same nine jurors who find negligence on the part of a party must also find that negligence to be a proximate cause of the injury [citation], but, it is not required that the nine identical jurors find both plaintiff and defendant negligent.   Jurors not concurring in a finding agreed to by three-fourths of the jury are not told to discontinue participating, drop out of negotiations, leave the room, not listen, or refrain from speaking during discussions.”  (United Farm Workers of America v. Superior Court, supra, 111 Cal.App.3d at p. 1019, 169 Cal.Rptr. 94;  emphasis added.)

 The holdings in Juarez and United Farm Workers contain a general principle applicable in all personal injury cases wherein a special verdict is utilized and only three-fourths of the jury need concur to reach a verdict.  (Cal.Const., art. I, § 16;  Code Civ.Proc., § 618.) 6  To return a verdict in favor of a party who has the burden of proving liability at least nine identical jurors must answer each of the questions addressed to the jury in the special verdict in such a manner that indicates that those identical nine have found the existence of all of the elements necessary to establish liability.   Whether, after Juarez, the same nine jurors who find liability must also agree on the amount of damages in a nonbifurcated noncomparative negligence case as required by Earl is a question we need not, and do not decide.   Accordingly, we omit any discussion of damages and discuss only the negligence or defect and causation elements necessary for a verdict of liability.

V.W. asks us to reject our reasoning in Collin.   It contends that we “misinterpreted prior case law holding that in order to establish liability, the same nine jurors must concur in special verdicts to support a judgment in favor of the plaintiff.”   It urges that:  “These cases do not require the same result in the context of a defense verdict, and to blindly apply the language of prior case holdings without regard to the differing burdens of proof was error.   While rational consistency may require the concurrence of nine identical jurors in order to hold a party liable, the same principles clearly do not apply where a defendant bears no burden of proof on the dispositive issue and the jury finds in the defendant's favor because the plaintiff has failed to establish all the elements of his cause of action.”

 If nine jurors find negligence or defect, and a different combination of nine jurors find causation, Earl and Juarez require us to conclude that a plaintiff asserting a defendant's liability has failed to prove it.   Obedient to Earl, Juarez, Collin, article I, section 16 of the California Constitution, and Code of Civil Procedure section 618, we also hold that at least nine identical jurors must vote in the consistent voting pattern in order for their answers to constitute a special verdict and thereby establish the nonliability of a defendant.

The determination of which party has the burden of proof as to certain issues is of vital importance in the jury's determination of those issues.   Once they have been determined, however, which party has the burden of proof is no longer of any moment for the purpose of determining whether the jury has reached a verdict.   The only question then remaining is whether the answers to the questions posed amount to a rationally consistent vote of nine identical jurors on the questions of negligence or defect and causation.   If they do, they result in a special verdict, otherwise, as here, they do not.

 In the case at bench as only seven jurors answered identically to the necessary element or issue questions, we conclude that the jury did not reach the single requisite special verdict complete as to the liability issues.   We therefore conclude that the trial court therefore erroneously denied plaintiff's motion for a mistrial.

There is some appeal to the proposition that since ten jurors voted that there was no causation, and since causation is one of the elements requisite to a finding of liability, it logically follows that the special verdict reached here logically required the entry of a judgment for the defendant.

The answer to that proposition is that given by Justice Oliver Wendell Holmes, Jr., in The Common Law (1881) that “The life of the law has not been logic:  it has been experience.”   Earl, Juarez, Collin, article I, section 16 of the California Constitution, and section 618 of the Code of Civil Procedure, however, compel the result we reach here.   If that law is to be changed, it is for the Legislature to do so, not this court.

The judgment is reversed and the matter is remanded for retrial only on the issues of damages and whether there was both a manufacturing defect and causation.

I concur.

In my view it is most logical to conclude that no verdict was reached in this case because only seven jurors agreed on the twin concepts that while there was a manufacturing defect, this defect was not a substantial factor in bringing about the injuries to plaintiff.

It is true that ten jurors answered “No” to the question “Was the manufacturing defect a substantial factor in bringing about plaintiff's injuries?”   But this is not a case in which defendant had conceded that there was a manufacturing defect and left to the jury only the question of whether the defect was a substantial factor in bringing about the injury.

Defendant chose to have the jury decide both the question of whether there was a manufacturing defect and the question of whether the defect was a substantial factor in bringing about the injury.   As a consequence, the same nine members of the jury must agree on the two issues presented before there can be a verdict for defendant.  (See Collin v. Connecticut Valley Arms (1982) 137 Cal.App.3d 815, 187 Cal.Rptr. 306.)


1.   Judy Renee Shipps and Ronald Shipps were also named as defendants, but are not parties to this appeal.   The jury returned a special verdict in favor of plaintiff against defendant Judy Renee Shipps, finding that she was negligent, and that her negligence was a legal cause of plaintiff's injuries.

2.   Code of Civil Procedure section 624 provides in pertinent part:  “[A] special verdict is that by which the jury find the facts only, leaving the judgment to the Court.   The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them;  and those conclusions of fact must be so presented as that nothing shall remain to the Court but to draw from them conclusions of law.”

3.   We reject as meritless V.W.'s contention that plaintiff waived any objection to the verdict by her failure to request a specific jury instruction that nine or more jurors had to vote identically on the issues of defect and causation to return a verdict for defendants and by her failure to object to the instruction given that in order to return a verdict for plaintiff the same nine jurors would have to concur as to each issue necessary to establish liability.  (On this latter point, see Code Civ.Proc., § 647.)

4.   We also reject as meritless, V.W.'s contention that Collin is distinguishable and, therefore, inapplicable.   We find no meaningful distinction between Collin and the present case.   Nor do we consider the Supreme Court's denial of Collin's petition for a hearing to be a positive approval of the Collin decision.  (See People v. Triggs (1973) 8 Cal.3d 884, 890–891, 106 Cal.Rptr. 408, 506 P.2d 232, disapproved in part on other grounds in People v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. 4, 150 Cal.Rptr. 910, 587 P.2d 706.)

5.   At those times BAJI Instruction No. 15.51 was entitled “CONCLUDING INSTRUCTION—SPECIAL VERDICT” and in pertinent part provided:  “As soon as 9 or more identical jurors have agreed upon each answer required by such directions on the special verdict form, so that each of those 9 or more may be able to state truthfully that every answer is his or hers, you shall have such verdict signed and dated by your foreman and you shall return with it to this room.”

6.   Article I, section 16 of the California Constitution in pertinent part provides that “[t]rial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict․”Code of Civil Procedure section 618 provides:  “When the jury, or three-fourths of them, have agreed upon a verdict, they must be conducted into court and the verdict rendered by their foreman․”

McCLOSKY, Associate Justice.

KINGSLEY, Acting P.J., concurs.

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