“Damage” vs “Damages”: Using the Incorrect Form Can Damage Your Case

From the Desk of Joshua Hayward:

Often, when a jury determines that a defendant is negligent, they will award monetary damages to the plaintiff. In this case, the jury found that the defendant was negligent but awarded the plaintiff no damages. Plaintiff argued that this inconsistency was due to confusing phrasing in the jury instructions and verdict forms which turned a plaintiff verdict into a defense verdict.

Claims Pointer:

In this case, the Oregon Court of Appeals reviewed the trial court’s decision to resubmit the entire verdict form to the jury for reconsideration instead of only resubmitting one portion of the verdict form. The Court determined that resubmitting the entire verdict form was proper as it ensure that the jury was not forced to submit an unintended verdict.

McCoy v Popma, 318 Or App 600 (2022).

Facts:

The Defendant was driving a van that collided with Plaintiff’s vehicle in a parking lot. Plaintiff alleged that the collision caused personal injuries and sued the Defendant. Defendant admitted some liability but also argued that the Plaintiff shared fault.

While discussing proposed jury instructions and proposed verdict forms there was some concern about confusing the jury. The first question on the verdict form asked “1. Was the Defendant’s negligence a cause of damages to the Plaintiff?” and the last question was “4. What are Plaintiff’s damages?”. The jury initially returned a verdict finding that the Defendant’s negligence was a cause of damages to the Plaintiff but awarded zero damages to the Plaintiff.

The trial court determined that the verdict was inconsistent and instructed the jury to continue deliberating. Plaintiff then moved for a mistrial on the ground that the jury was not following the Court’s instructions. The Judge denied the motion. After reconsidering the verdict form, the jury returned a verdict for the Defendant, this time answering ‘no’ to the first question. Plaintiff moved for a new trial based on jury misconduct, irregularity in the proceeding, and incorrect reinstruction by the trial court. That motion was also denied. Plaintiff appealed contending that the trial court erred by resubmitting the entire verdict form to the jury rather than instructing the jury to only provide a monetary value to the amount of Plaintiff’s damages.

Law:

The Court noted that in tort law, there is a conceptual difference between the terms “damage”, or harm, and “damages”. Damage in the singular refers to “loss, injury or harm resulting from an act or omission.” Sager v. McClenden, 296 Or 33, 37, 672 P2d 697 (1983).While damages in the plural means “a compensation in money for a loss of damage.” Black Law’s Dictionary, 351 (5^th ed 1979).

Analysis:

The Court of Appeals determined that the confusion must have arisen, at least in part, from intermingling the concepts “damage” and “damages” in the jury instructions and verdict form. The Court decided that had the first question on the verdict form been phrased in terms of causation of “harm” or “injury” or “damage”, Plaintiff would have a stronger argument. But the question was not phrased that way. Instead, it asked whether Defendant’s negligence was a “cause of damages” to Plaintiff. Looking at the totality of the circumstances and the jury instructions that the parties recognized could potentially create confusion, the Court of Appeals held that the trial court correctly found that the first verdict was internally inconsistent. The Court stated that it would be improper for the trial court to accept a partial verdict and send the jury back to deliberate on only one of the issues, because this could lead to an unintentionally incorrect verdict.

The Big Picture:

When discussing jury instructions and verdict forms it is important to ensure that they are phrased clearly and will not lead to a confused jury entering an inconsistent verdict. The terms “damage” and “damages” should be thoroughly explained and not used interchangeably.