Defendant Entitled to Jury Findings on its Empty Chair Theory

Vollaro v. Lispi, No. B242544 (D2d4 Feb. 26, 2014)

The court of appeal reverses a plaintiff verdict in a car accident case because the trial court erroneously refused to include interrogatories on comparative negligence in the special verdict form. Questions on comparative fault could have provided a basis for apportioning of non-economic damages to an allegedly negligent third party who was not joined in the suit. By failing to join or sue that party, plaintiff bore the risk that the apportioned damages would not be recovered. Further, although the defendant’s testimony was the only evidence that supported the negligence of the third party, that was a sufficient to provide a factual basis to require querying the jury on the issue. And defendant’s submission of a special verdict form to the court, which was rejected, was sufficient to preserve the issue for appeal. Finally, as is all too typical, the court then goes on to address a number of interesting evidentiary issues in a part of the opinion it declines to publish.

Reversed and remanded.