Governments and businesses know – or at least they should – that there’s a difference between being vicariously liable and being directly negligent. Jurors may not, however, so how carefully should the distinction be explained come time for crafting jury questions? Perhaps not much – according to a new opinion of the Court of Special Appeals, provided the jury is otherwise instructed properly by the trial court and counsel, blurring the line between vicarious liability and negligence in a jury question can be excusable.
In Jordan v. Torain, Ct. Spec. App., Sept. Term 2014, No. 1320 (July 23, 2015), David Jordan drove his car into the back of a trash truck, operated by City employee Robert Torain, as it turned into a nearby alley; Jordan claimed (and Torain denied) that the truck cut across his lane. Jordan sued on claims that Torain was negligent, the City was vicariously liable for that negligence, and the City had negligently entrusted Torain with the vehicle. Torain and a worker on the back of the truck sued as well, alleging negligence against Jordan. The two cases were later consolidated.
After the negligent entrustment claim was tossed for lack of evidence, the court posed this question to the jury: “Do you find, by a preponderance of the evidence that the Defendant, Robert Torain and the Defendant, Mayor and City Council, were negligent in the motor vehicle accident on July 28, 2011?” Jordan objected that the question required the jury to find that both Torain and the City were negligent, and the claim only required that the jury find that Torain was negligent. The court overruled the objection and moved forward with the question as written.
In closing argument, Jordan tried to clarify the question for the jury, telling them that Torain was an agent for the City and it could not have been directly negligent for the accident. The jury was then additionally instructed by the court that if Torain was negligent, the City was vicariously liable for that negligence. After deliberation, the jury found that Jordan wasn’t negligent and that Torain and the City weren’t negligent either.
Jordan appealed, asking – among other things – whether the circuit court erred in drafting a jury question asking whether both Torain and the City were negligent. Instead, Jordan contended, the jury should have been asked to determine Torain’s negligence first and then whether the City was vicariously liable. That the jury found no negligence by any party, he posited, was evidence that it must have been confused by the question.
Reviewing the decision under an abuse-of-discretion standard with a requirement of prejudice or harm (i.e., the error probably affected the verdict), the Court of Special Appeals noted that Md. Rule 2-522(b)(2)(A) permits a trial court leeway in crafting verdict forms; it “may use any method of submitting the issues … as it deems appropriate” and should “instruct the jury as may be necessary to enable it to make its findings upon each issue.” The Court also established that if Torain was negligent, the City would have to be vicariously liable under the doctrine of respondeat superior; there was no other way for the City to have liability for the accident. In fact, the trial judge had specifically instructed the jury that Torain was acting within the scope of his employment with the City at the time of the accident and that, if he was negligent, the City had to be responsible for that negligence.
As such, the Court held, regardless of the actual wording of the question, it didn’t really ask the jury to determine whether both Torain and the City were negligent – rather, it required the jury to decide what the appellant wanted it to: whether Torain was negligent and whether the City was responsible for that negligence. Given the instruction to the jury that the City would have to be responsible for Torain’s negligence, the Court held that the Circuit Court didn’t abuse its discretion by phrasing the jury question in terms of both parties’ negligence. Further, the jury’s failure to find either motorist negligent wasn’t evidence of confusion and prejudice, because the jury could have found both Jordan and Torain equally negligent – that is, each 50 percent responsible – which wouldn’t satisfy the preponderance-of-evidence threshold for a verdict in favor of either party.
In dissent, Judge Meredith wasn’t so ready to dispense with formalities. The question of whether both Torain and the City were negligent was a “yes” or “no” question to which – because the City didn’t directly commit any act of negligence – only one answer was appropriate: “no.” This question, he said, was “fatally flawed” and “the equivalent of directing a verdict in favor of the defendants.”
To Judge Meredith, it was a real problem that the jury was never asked whether just Torain was negligent – and Jordan’s claims entitled him to have the jury reach a finding on that specific question. There was no guarantee, he argued, that the jury would have answered a question about Torain’s possible negligence the same way it answered a compound, improperly phrased question about both Torain’s and the City’s possible negligence. Given that Jordan’s counsel pointed out the error and the trial judge refused to correct it, Judge Meredith would have held that the Circuit Court abused its discretion and a new trial was needed. So, despite the dissent’s criticism, does the majority holding in Jordan permit conflating direct negligence and vicarious liability in all future Maryland respondeat superior cases?
Probably not. The Court of Special Appeals chose not to report the opinion, meaning it likely disapproved of the question on some level but didn’t think a new trial was necessary – given that the jury received other instructions on vicarious liability, the Court may have just assumed that the jury weighed the negligence of Torain independently and understood that the City’s liability was dependent on that finding. Of course, Jordan offered the Court a chance to set forth a reported opinion making clear that trial judges have an obligation to ensure their jury questions don’t carelessly mesh the concepts of negligence and vicarious liability, and the Court opted not to do that. Best practices, therefore, are for counsel to meticulously review the wording of such questions, raise the appropriate objections, and, if necessary, fully explain any ambiguities to the jury in closing argument.
To discuss this case, or any other civil litigation matters, please contact Chris Mincher at cmincher@silvermanthompson.com or any of Silverman Thompson’s business litigators – Bill Sinclair, Ramsay Whitworth, Steve Grygiel, Ned Parent, or Sima Fried – at (410) 385-2225.