## Facts

- A 12-year-old student, Jennifer Schabe, was struck by a school bus while running across a driveway on school property and sustained injuries.
- Plaintiffs sued the school district and related school defendants for negligent supervision and control of student and vehicle traffic, and sued the bus company and driver for negligent operation.
- Plaintiffs settled before trial with the bus company and driver; the settled tortfeasor’s fault still had to be determined for apportionment and setoff purposes.
- Trial was bifurcated into separate liability and damages phases before a six-person jury using a special verdict with interrogatories.
- The court instructed that five jurors had to agree on each interrogatory, that the same five need not agree on every answer, and later stated that once five agreed, dissenters were “bound” by that answer for later questions.
- The jury found the district negligent (unanimously), found proximate cause and comparative fault by 5–1 votes, apportioned fault 59% to the district and 41% to the student, and awarded $750,000 in damages unanimously.
- During the damages phase, the court told the jury the plaintiff would receive 59% of any award based on the prior apportionment.

## Issues

1. In a civil case with a six-person jury and a special verdict, must each non-unanimous interrogatory answer be reached by the same five jurors, or may any five jurors concur on each separate answer?
2. May a court instruct that jurors who dissent from an interrogatory answer are “bound” by the majority’s answer when considering subsequent interrogatories?
3. Did informing the jury during the damages phase that plaintiff would receive 59% of any award improperly affect the damages verdict?

## Decision

- The court held that CPLR 4113(a) permits special-verdict interrogatory answers by any five of six jurors; it rejected an “identical five” requirement.
- The court held the trial judge erred by instructing that dissenting jurors were bound by earlier majority answers when deciding later interrogatories.
- The court reversed and ordered a new trial on liability only, leaving the damages verdict intact.

## Legal Principles

- In a six-person civil jury, a valid verdict may be reached by five jurors, and a special verdict does not require the same five jurors to agree on each interrogatory answer.
- Jurors must remain free to deliberate independently throughout the special-verdict process; a court may not direct dissenting jurors to treat earlier majority answers as binding for later questions.
- When instructional error infects liability determinations but damages are otherwise supportable and separable, an appellate court may order a new trial limited to liability while affirming the damages award.

## Conclusion

The court ruled that special-verdict interrogatories in a six-person civil case may be decided by any five jurors, but it ordered a new trial on liability because the judge’s instruction that dissenters were bound by earlier answers improperly constrained jury deliberations; the damages award was affirmed.


Schabe v. Hampton Bays Union Free Sch. Dist., 103 A.D.2d 418, 480 N.Y.S.2d 328 (N.Y. App. Div. 2d Dep’t 1984)