When a civil case is tried to a jury the "5/6 verdict rule" applies. The rule is set forth in 805.09(2). It reads as follows:
VERDICT: A verdict agreed to by five-sixths of the jurors shall be the verdict of the jury. If more than one question must be answered to arrive at a verdict on the same claim, the same five sixths of the jurors must agree on all the questions.
The rule makes it clear that the interrelationship between the questions on each claim is what is critical. There must be consistency in the answers to each question on a particular claim. The rule does not require that the same five-sixths of the jurors must agree on all the questions on the verdict. They must agree on all the questions necessary to arrive at a verdict on the claim at issue. An examination of case law gives us guidance in the application of the rule.
Five-Sixths Rule -- Black Letter Law
The black letter principles of the five-sixths rule were set forth by the Wisconsin Supreme Court in Giese v. Montgomery Ward, Inc., 111 Wis.2d 392 (1983). The court indicated that the five-sixths rule does not require that the same ten jurors must agree on every question. Rather, the rule requires that the same ten jurors must agree on all questions necessary to support a judgment on a particular claim. see Scipior v. Shea, 252 Wis. 185 (1948). The review is done on a claim by claim basis rather than as a whole. see Krueger v. Winters, 37 Wis.2d 204 (1967). Dissents which are important to one claim may be immaterial to another claim. see Scipior, supra. The rule applies the same whether the assessment of the rule is as to the plaintiff or the defendant. see Augustin v. Milwaukee Electric Railway & Transport Co., 259 Wis.625 (!951). Where there are not the same 10 jurors agreeing on liability and damages there is a five sixths rule violation and a new trial as to damages is warranted. see City of West Allis v. WEPCO, 248 Wis.2d 10 (Ct. App. 2001.
Case Law Examples of How to Apply the Five-Sixths Rule
In Augustin, the jury determined that the defendant was not negligent, with two dissenting jurors. The jury also determined that the plaintiff was not contributorily negligent with respect to three or four theories of liability presented, with two different jurors dissenting on one of the theories. On appeal the Court held that since ten of the jurors found no negligence by the defendant that defendant was entitled to a judgment of dismissal since that finding was dispositive as to the defendant.
In Will v. Chicago, Milwaukee & St. Paul Railway Co., 191 Wis. 247 (1926), the jury, with one dissenter, determined that the defendant was not negligent but also determined, with two dissenters, that the plaintiff was contributorily negligent. The trial court found a five-sixths rule violation and ordered a new trial. On appeal, the Court reversed the trial court holding that the absence of negligence on the part of the defendant was dispositive because it was a complete verdict for the defendant.
In Nommensen v. Amreican Continental Ins., 239 Wis.2d 129 (Ct. App. 2000), ten jurors (#1-10) found no negligence on the defendant on the negligence question. Two jurors (#11-12) dissented. On the cause question, ten jurors (#3-12) found no cause. Two jurors (#1-2) dissented. On appeal, the plaintiff contended that since the two jurors that dissented from the negligence finding were not the same two jurors who dissented from the finding of no causation that there was a violation of the five-sixths rule. The court of Appeals held that there was no violation because the jury's finding of no causation, standing alone, resolved the issue. Juror #11-12, in their dissent to the negligence question, found that there was negligence and in finding no cause together with eight other jurors who found no negligence met the five-sixths rule.
When applying the Five-Sixths Rule, it is of the utmost importance that the analysis of the integrity of the verdict look toward what is essential to complete the verdict with respect to the claim at issue.