(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/personal injury case and its proceedings.)
LEGAL STANDARD FOR MOTION
C.C.P. section 657 provides, in part: The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:
1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.
2. Misconduct of the jury.
3. Insufficiency of the evidence to justify the verdict or other decision.
4. Error in law, occurring at the trial and excepted to by the party making the application.
A. Ignoring the Court’s Limiting Instruction as to the Import of Officer Smith’s Determination of Chance’s Violation of the Vehicle Code was Misconduct of the Jury, as Was their Refusal to Deliberate the Foundational Facts of Officer Smith’s Opinion (C.C.P. section 657(2))
Following Officer Smith’s testimony opining Chance was in violation of the vehicle code by her failure to yield right of way to oncoming traffic outside a crosswalk (CVC 219548(a)) aka jaywalking ) the court gave the jury a limiting instruction as follows: The officer’s determination that Ms. Chance violated the vehicle code does not mean that she’s at fault. He is not saying who is at fault for the accident, so that everyone is aware of that. (Reporter’s Transcript ( RT ) of Smith’s Testimony, April 28, 2008, 31:5-8.) According to the declarations of Jurors Mike Brown and Alice Greene, the jury disregarded that instruction instead treating Smith’s opinion as a finding of fault inculpating Chance of the accident. Compounding that misconduct, the jury then refused to deliberate the evidence that contradicted Smith’s opinion despite exhortations of the jury foreman to do so. In Bormann v. Chevron USA, Inc. (1997) 56 Cal.App.4th 260, 65 Cal.Rptr.2d 321, the cour: explained that the jury must deliberate collectively. In that case, prior to deliberations, one juror wrote out a statement of her opinions and read it to the other jurors. The Court explained that this was permissible only if that juror was willing to continue with deliberations as required by C.C.P. section 611. The trial court accurately explained to the jury that A position on paper does not add or detract from anything, except that you may not simply say, Here. Read this, I have nothing else to say,’ because, if you do that, you are not deliberating. Id. at 262.
These facts are similar to the instant case where, after selecting the jury foreperson, the jury took an initial vote on the first question of the special verdict without deliberating applicable evidence and law. Mike Brown’s declaration describes how the other jurors, after selecting him as foreperson immediately focused on police officer Smith’s opinion of Chance’s conduct. When Brown protested that they must first examine the evidence concerning the bus driver’s conduct, the other jurors refused to deliberate that evidence. They also refused to examine the basis for Smith’s opinion. (See Part 3 of 13.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.