Concept
Duty to Harmonize
Consistency of written answers with the general verdict
Duty to Harmonize
A verdict that looks inconsistent is not necessarily inconsistent, and the court must learn which kind it has before it reaches for any remedy under Rule 49(b). The Supreme Court fixed that order of operations in Gallick v. Baltimore & Ohio R.R. Co.: before a court sets a verdict aside for inconsistency, it must “harmonize the answers, if it is possible under a fair reading of them.”1 Gallick involved a special verdict, but the duty reaches the written answers that accompany a general verdict as well. The court must try to reconcile those answers with the verdict by viewing the case in the light most favorable to their consistency.2 Harmonizing is therefore the gate every Rule 49(b) problem passes through. If a fair reading succeeds, there is no inconsistency and the rule's remedies never come into play. If it fails, the court's options depend on the kind of verdict and the nature of the inconsistency.3
The duty rests on the division of labor between jury and judge. The jury decides questions of fact, and the judge decides issues of law.4 A judge who hunts through the answers for a conflict and discards the verdict whenever one turns up replaces the jury's reading of its own findings with the judge's. The district court in USFL v. NFL made the constitutional point by quoting the Supreme Court: where a view of the case makes the answers consistent, “they must be resolved that way,” because “a search for one possible view of the case which will make the jury's finding inconsistent results in a collision with the Seventh Amendment.”5 A verdict that survives a fair reading also spares the parties a second trial.
Gallick shows the duty at work. The plaintiff lost a leg to complications from an insect bite suffered while working beside a stagnant pool on the defendant's property. The jury found the defendant negligent in letting the water accumulate, found that the water attracted insects, and found that the negligence proximately caused the injury. Yet it also found that the defendant had no reason to foresee a “mishap or injury” from the water.6 The Court read that last answer to mean only that, although an insect bite was foreseeable, nobody had reason to anticipate a mishap or injury from such a bite. A defendant need not foresee the particular consequences of a negligent act, so once a threshold tort against the person exists, the damages that flow from it are recoverable. On that reading every answer could be true at once, and the verdict stood.7
The dissenters in Gallick called the majority's reconciliation a “Procrustean exercise” and said that, by reconciling “irretrievably conflicting findings,” the Court had “invaded the province of the jury.” They would have ordered a new trial.8 Each side thus invoked the jury's role, the majority by preserving the verdict and the dissent by refusing to rewrite it, so the line between fair and forced harmonizing is itself contestable. The duty permits only a reading the jury's words can bear. It gives the court no license to supply a meaning the jury never expressed.
USFL shows the duty under a different pressure. The USFL, seeking a new trial, pointed to many answers that looked contradictory when an answer on one claim was set beside an answer on another. After reviewing the record, the court found no conflict so irreconcilable that Rule 49(b), Rule 59, or any other authority required a new trial, and it observed that the USFL's “argument by juxtaposition exalts semantics over substance.”9 A conflict that appears only when answers on different issues are pulled out of context and compared word for word is usually no conflict at all. The court's task is to read each answer in light of the claim it was meant to resolve.
The duty stops where no reading lets every statement stand. In an automobile case, the jury returned a general verdict of $500,000 for the plaintiff and also specifically found the plaintiff contributorily negligent, a finding that barred recovery under the governing substantive law. No fair reading could reconcile a recovery with a finding the substantive law makes fatal to it, so the court entered judgment for the defendant on the specific answer.10 The conflict came from what the law made of the answers, not from the words alone.
Turyna shows harmonizing failing for a different reason. That verdict was not a special verdict, which calls for a written finding on each issue of fact.11 The form asked only who won and how much, the two questions a general verdict puts. The jury's answers could not be squared with each other: it named Martam the winner on Count II yet found that Martam had to pay Turyna punitive damages, and, read another way, it named Martam the winner the first time it was asked about Count II and Turyna the second.12 Martam suggested that the court should simply have disregarded the answer on punitive damages. The court could not tell which part of the verdict should control, because giving primacy to the liability answer would do as much violence to the jury's findings as giving primacy to the damages answer. If the verdict is a general verdict, it is fatally inconsistent.13
What separates those two cases from Gallick is one question: does some reading make all of the jury's statements true together? In Gallick one did. In the automobile case and in Turyna none did. Every reading made at least one statement false, so any judgment would choose among the jury's statements, and the judge rather than the jury would become the decider.
The first step does the real work. A court that skips it treats a reconcilable verdict as defective and discards a decision the jury actually made. Each branch after it carries its own remedies and reasons, which the sections that follow develop.