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Civil Litigation FlashPoints November 2008

Special Interrogations in Defamation and Wrongful Death Cases: How They Can Make or Break Your Case

In a complicated case, special interrogatories can be used as an effective tool to clarify a jury’s findings on the ultimate issue in a case. The scope interrogatories is limited because they require a jury to decide only those questions of fact that control the general verdict. When properly used, special interrogatory can make or break your case. The use of special interrogatories is governed by §2-1108 of the Code of Civil Procedure, which provides in pertinent part: 

The jury may be required by the court, and must be required on the request of any party, to find specially upon any material question or questions of fact submitted to the jury in writing. Special interrogatories shall be tendered, objected to, ruled upon and submitted to the jury as in the case of instructions. Submitting  or refusing to submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of law. When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may enter judgment accordingly. 735 ILCS 5/2–1108.

The Illinois Supreme Court has noted that special interrogatories guard the integrity of a general verdict by testing that verdict against the jury’s determination as to one or more specific issues of ultimate fact. Simmons v. Garces, 198 Ill.2d 541, 763 N.E.2d 720, 730, 261 Ill.Dec. 471 (2002). Indeed, a party can succeed in changing the outcome of a trial by testing the actual basis for the general verdict with properly focused special interrogatories.

The Illinois Appellate Court, First District, recently dealt with two cases involving special interrogatories. See Ahmed v. Pickwick Place Owners’ Ass’n, No. 1-07-2047, 2008 Ill.App. LEXIS 958 (1st Dist. Sept. 30, 2008); Knight v. Chicago Tribune Co., No. 01-06-0957, 2008 Ill.App. LEXIS 898 (1st Dist. Sept. 10, 2008). Ahmed involved a claim for the wrongful death of a young girl while Knight involved a claim for defamation against a newspaper and one of its journalists. In both cases, the defendant asked the jury to answer a special interrogatory. In each case, the answer was the deciding factor in the defendant’s victory.

In Ahmed, the appellate court affirmed the trial court’s entry of a judgment notwithstanding the verdict. The facts of the case are heartbreaking. On July 12, 2001, seven-year-old Gul Ahmed was riding her bicycle on a sidewalk located behind the apartment buildings at the Pickwick Place Apartments in Schaumburg, Illinois. She was accompanied by her mother and five-year-old sister. As Gul attempted to turn her bicycle on a sidewalk circling a retention pond, she lost control of her bicycle and fell down a grassy embankment into the pond. Gul’s mother could not swim, and she screamed for help has Gul struggled in the water. By the time help arrived, Gul drowned in the pond. The administrator of Gul’s estate filed suit against the property owners’ association and the property manager of Pickwick Place. The plaintiff alleged that the defendants negligently maintained the retention pond and that Gul drowned after becoming entangled with a rusted bicycle that previously had been discarded in the pond.

During the instruction conference, the defendants tendered a special interrogatory on proximate cause as to whether Gul was trapped or tangled on the discarded bicycle, preventing her from exiting the water. The plaintiff objected to the instruction because it did not include all of the ways in which the bicycle could have harmed Gul. The defendants presented an alternate interrogatory asking whether Gul was trapped, tangled, or attached in any manner on the rusted bicycle which prevented her from exiting the water. The court resolved the issue by putting forth its own special interrogatory: “Did the rusted bicycle proximately cause Gul Ahmed’s death?” There was no objection to this version of the special interrogatory from either party.

During jury deliberations, the jury inquired if it could answer “no” to the special interrogatory yet still find for the plaintiff. The court responded to the question without objection from the parties that the jury should resolve the general verdict first and then answer the special interrogatory. The jury returned a general verdict for the plaintiff, but answered the special interrogatory in the negative. The trial court found the general verdict to be irreconcilable with the answer to the special interrogatory and entered judgment notwithstanding the verdict in favor of the defendants.

On appeal, the plaintiff argued that a judgment should have been entered on the general verdict in favor of the plaintiff because it was not inconsistent with the special interrogatory. The appellate court concluded that the jury’s special finding was “absolutely irreconcilable” with the general verdict. It reasoned that the plaintiff’s theory at trial was that the defendants’ negligence in failing to remove the rusted bicycle from the pond caused Gul’s drowning death by allowing her to become connected in some way to the bicycle and unable to free herself. If, as the jury found, the rusted bicycle did not cause or contribute to cause her death, then the necessary link between the defendants’ alleged negligence and Gul’s injuries was missing and there could be no liability. As a result, the answer to the special interrogatory trumped the general verdict which necessitated a judgment in the defendants’ favor.

Knight involves a claim for defamation against journalist Maurice Possley and his employer, the Chicago Tribune. The appellate court affirmed the trial court’s entry of judgment on a jury verdict in favor of the defendants. Although the jurors found factual inaccuracies in an article written by Possley, the answers to special interrogatories required a judgment for the defendants.

The facts in this case are convoluted because they involve several underlying criminal proceedings and trials. Plaintiff Thomas Knight was an assistant state’s attorney who prosecuted Alejandro Hernandez, Steven Buckley, and Rolando Cruz for the murder of a young girl named Janine Nicarico. When detectives arrived at the crime scene, they observed that someone had kicked open the front door of the Nicarico home, and that the person had kicked hard enough to leave an impression of his boot. Cruz was arrest, charged, and prosecuted for the murder of Janine Nicarico. Eventually, Cruz was acquitted of the murder charges. Knight, on the other hand, was later charged with obstruction of justice in relation to his involvement in that murder prosecution. Knight won an acquittal on the obstruction charges and sued Maurice Possley and the Chicago Tribune, accusing them of publishing falsehoods in an article about the prosecution against Knight.

Knight’s defamation suit focused on a January 12, 1999 Chicago Tribune article entitled “Prosecution on Trial” by Maurice Possley and Ken Armstrong. The article stated that John Gorajczyk, a shoe print examiner in the sheriff’s police crime lab, testified at a grand jury regarding an encounter he had with Knight prior to the Cruz murder trial. Apparently, Gorajczyk had compared the boots of Steven Buckley, Cruz’s codefendant, to the boot imprint on the Nicarico door and concluded they didn’t match. Gorajczyk did not write any report about his findings. Notably Possley’s article stated: “Gorajczyk told the DuPage grand jury that Knight told him to keep his mouth shut about his conclusion and not to tell anyone that there was no written report.” 2008 Ill.App. LEXIS 898 at ** 6 – 7. This statement was false because Gorajczyk didn’t testified before the DuPage grand jury, and, at trial, Possley admitted that he knew Gorajczyk didn’t testified before the grand jury that indicted Knight.

The defamation claim centered on the newspaper’s false report that Gorajczyk testified that Knight told Gorajczyk to “keep his mouth shut about his conclusion” that Buckley’s boot did not dent the Nicarico’s front door. Knight claimed that the false statement was defamatory because it implied that he had obstructed justice. In defense, Possley explained that at the time he and others were editing the article — which occurred months after he first read the transcripts and while he was under the pressure of a looming deadline for printing the article — he forgot that an investigator named Kirby, not Gorajczyk, testified to the grand jury about the encounter that Gorajczyk had with Knight. Possley and the other editors also testified during the trial that, at the time of publication, they did not entertain any serious doubts about the truth of any of the statements in the article. 

The court asked the jury to answer the following special interrogatories: 

Do you find by clear and convincing evidence that the complained of statement was published with actual malice by the Chicago Tribune Company and Maurice Possley? 

Do you find that the following complained of statement was defamatory of Thomas Knight? “Gorajczyk told the DuPage grand jury that Knight told him to keep his mouth shut about his conclusion and not to tell anyone that there was no written report.” 2008 Ill.App. LEXIS 898 at ** 15 – 16. 

The jury returned a verdict in favor of the defendants. In answering the special interrogatories, the jury found that the defendants did not defame Knight and that Knight failed to prove by clear and convincing evidence that the defendants acted with actual malice.

On appeal, Knight argued that the trial court committed several errors, including the fact that it admitted evidence of prior negative publicity about Knight’s prosecution and that the negative publicity evidence so thoroughly prejudiced him that the jury could not weigh the evidence of malice impartially. Knight argued that this evidentiary error demanded a new trial because of all of the evidence showing Possley’s malice, including (1) Possley was a veteran reporter who knew that he read only the grand jury transcript of Kirby’s testimony; (2) Possley didn’t contact Gorajczyk to verify the report of what Knight said to Gorajczyk; (3) Possley didn’t ask Knight about what Knight said to Gorajczyk; and (4) Possley rephrased Kirby’s testimony that Knight said “not to discuss” the matter, and wrote instead that Knight told Gorajczyk to “keep his mouth shut.”

The court held that any error in admitting evidence of prior negative publicity made no difference in the result of the trial. This evidence only affected Knight’s credibility, not the credibility of Possley or the other defendants. Despite all the evidence of Possley’s conduct, the jury nevertheless found by special interrogatory that Knight failed to prove, by clear and convincing evidence, that Possley acted with actual malice. This was a “dispositive finding” which required judgment in favor of the defendants.

Practitioner’s Note:
Defense counsel should always consider using special interrogatories when defending a case before a jury. As noted above, a properly worded special interrogatory can wipe out a general verdict or be used to render irrelevant potentially erroneous evidentiary rulings.