Opinion
B190308
8-29-2007
HAROLD HAPPE et al., Plaintiffs and Appellants, v. GUARD SYSTEMS, INC., Defendant and Respondent.
Agnew & Brusavich, Bruce M. Brusavich, Tobin D. Ellis; Esner, Chang & Ellis, Stuart B. Esner and Andrew N. Chang for Plaintiffs and Appellants. Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson; Kern & Gonzales, Renee J. Kern and Gaetano Verrastro for Defendant and Respondent.
NOT TO BE PUBLISHED
In this wrongful death action, a security guard at a public parking structure saw a male stranger standing outside the structure several times over the course of a day. That evening, the guard saw the stranger in the passenger seat of a car exiting the structure. The guard recognized the woman driving the car, as she worked in the adjacent building, but the guard did not attempt to stop her, ask her any questions, or contact the police. The womans body was found a few hours later. The stranger was apprehended and convicted of her murder.
The womans parents brought this action against the security company, alleging that the guards negligence had caused their daughters death. The case was tried to a jury, which returned a verdict in plaintiffs favor, awarding $82,320 in damages. The jury also found that the security company was 2 percent at fault, and the murderer was 98 percent at fault.
Plaintiffs filed a motion for a new trial, arguing that the damages were inadequate, and the jury should have allocated more fault to the security company. The motion was denied.
On appeal, plaintiffs contend that the trial court made instructional and evidentiary errors, the verdict was tainted by juror misconduct, the damages were inadequate, and the jury rendered a compromise verdict. We conclude that any errors were harmless, there was no juror misconduct, the award was not inadequate as a matter of law, and the verdict was not the result of an improper compromise. We therefore affirm.
I
BACKGROUND
The following information is taken from the evidence presented at the trial of this matter, which commenced on October 24, 2005.
Wilshire Plaza is located at 3303 Wilshire Boulevard in Los Angeles, on the corner of Wilshire and Berendo Street. The plaza includes an office building and an adjacent parking structure. Defendant Guard Systems, Inc. (GSI), provides security services for the plaza, with responsibility for safeguarding the people there, protecting the property, calling the police in the event of a potentially life-threatening situation, and preventing vagrants and transients from being on the premises. At the direction of the plaza management company, GSI assigned one security guard to patrol the parking structure from 1:00 p.m. to 9:00 p.m., Monday through Friday.
Many people use the parking structure, including patrons of a bank on the first floor of the plaza building. The structure, which consists of five and one-half floors, also services a nearby restaurant, train station, and two apartment buildings. Roberta Happe, the decedent, worked inside the plaza at the Frank D. Lanterman Regional Center. The center provides services to people with developmental disabilities such as mental retardation, epilepsy, and Down Syndrome. Roberta regularly used the parking structure.
Gabe Melendrez was one of the GSI guards assigned to the parking structure. As part of his routine, Melendrez conducted an hourly patrol. He would walk up and down the interior ramps of the parking structure in the same manner as the vehicles would travel — in a "corkscrew" fashion — and would check the stairwells, public access ways, and the common area near the building. Sometimes Melendrez took the elevator in one direction or the other.
On the afternoon of February 22, 2001, while conducting his rounds, Melendrez saw Jason Thompson three times in the area outside the parking structure — during Melendrezs 2:00 p.m., 3:00 p.m., and 4:00 p.m. patrols. Melendrez did not see Thompson during his 5:00 p.m. patrol. Thompson first caught Melendrezs attention because he was wearing a "bright blue bomber jacket" with the words "Los Angeles" written on it. At the time, Thompson was walking down Berendo Street and used a "pickup" line on a woman approaching from the opposite direction; she laughed and continued on her way. Melendrez had not seen Thompson before February 22, 2001.
Melendrez was not the only person to see Thompson in the area that day. Several of Robertas coworkers saw him too. Julio Vicente took a break around 3:00 p.m. He saw Thompson crossing the street and described him to the jury as an African-American with an Afro, about 5 feet 10 inches, weighing 250 pounds, and wearing jeans, tennis shoes, a Los Angeles Dodgers jacket, and glasses. Thompson "kept looking everywhere." He had a pick in his hair that, to Vicente, resembled a "weapon." Thompson looked at Vicente and nodded. Vicente told another employee, Edwin Stewart, that Thompson appeared to be "up to no good." But Vicente did not inform anyone else of Thompsons presence.
Stewart saw Thompson twice that day, first around 1:00 p.m. and later, with Vicente, at 3:00 p.m. The second time, Thompson gestured to some women that he wanted to talk to them. The women "picked up a little speed" and entered the building. Stewart did not report Thompsons behavior to anyone.
Another colleague, Migdalia Sanchez, left work at approximately 4:30 p.m. and took the elevator to the fourth floor of the parking structure. Using the vehicle ramp, she walked down to the third floor, where her car was parked. Upon realizing she had forgotten her glasses, Sanchez returned to the elevators. On her way, she saw Thompson. After retrieving her glasses, Sanchez went back to her car and walked by Thompson again. Both times he was on a cell phone. Sanchez saw nothing suspicious about Thompson and did not feel threatened by him. She described his appearance in the same way as Vicente.
Carmen Lorigo went home around 5:15 p.m. or 5:30 p.m. She saw Thompson on the second or third floor elevator lobby of the parking structure. He was on a cell phone, talking and laughing loudly. Lorigo did not notice anything unusual about Thompson and did not believe he posed a threat.
Similarly, Schella Radford exited the elevator on the third floor of the parking structure between 5:15 p.m. and 5:20 p.m. She described Thompson as "perhaps in his twenties, early to mid-twenties." Radford did not observe any unusual behavior by Thompson or feel threatened by him.
Between 6:05 p.m. and 6:15 p.m., Melendrez saw Roberta as she was getting into the first floor elevator of the parking structure. Roberta saw him, smiled, and said, "Hi." She was alone. About five minutes later, Melendrez saw Roberta as she was driving out of the structure. She was not smiling, nor was she alone. Thompson was in the passenger seat. Melendrez had not seen them together before and thought Thompson was Robertas boyfriend or an acquaintance. Melendrez did not attempt to stop the car or ask Roberta any questions. Nor did he call the police, take any notes on what he observed, or fill out an incident report. It was not unusual for Melendrez to see a person several times on a given day and eventually see him or her leave the premises with someone who had parked in the structure.
At around 8:15 p.m., the Culver City Police Department found a body in the city park which was later identified as that of Roberta Happe.
The next day, February 23, 2001, Melendrez talked to Jacquelin Ashman, the director of human resources at the Lanterman Regional Center. According to Ashman, Melendrez said he had seen Thompson in the elevator lobby at 4:30 p.m. the day before, and Roberta had looked "terrified" as she drove out of the parking structure.
Michael Conzachi, a detective with the Culver City Police Department, testified that, during his investigation of the murder, Melendrez had said he was standing within a few feet of Robertas car when she exited the parking structure, close enough to see Thompson "half [heartedly] wave at him as they drove by." Melendrez also reported he had to take a few steps back to let the car pass, and he was standing on the passenger side of the car. Conzachi was convinced that Melendrez got a good look at Thompson.
The jury was informed that Thompson was eventually caught and pleaded guilty to Robertas murder, and he had been sentenced to life in prison without the possibility of parole.
During the presentation of evidence on damages, plaintiffs and three other witnesses testified to the effect that plaintiffs had a significant, close, and loving relationship with their daughter, Roberta. She was 23 at the time of her death.
The trial court instructed the jury, using several standard instructions on causation, including multiple causes (CACI No. 431), superseding cause (CACI No. 433), and apportionment of fault between joint tortfeasors (CACI No. 406).
The case was submitted to the jury on November 7, 2005. During deliberations, the jury sent a question to the trial court about causation and later sent a note indicating it had reached an impasse on the same subject. The trial court responded to both notes, and the deliberations continued.
On November 10, 2005, the jury returned a special verdict, finding: (a) GSI was negligent (by a vote of 11 to 1); (b) GSIs negligence was a substantial factor in causing harm to plaintiffs (9 to 3); (c) plaintiffs total damages were $82,320, consisting of $10,000 in past noneconomic loss, $50,000 in future noneconomic loss, and $22,320 in future economic loss (9 to 3); and (d) GSI was 2 percent responsible for plaintiffs damages, with Thompson responsible for the rest (10 to 1).
Before trial, plaintiffs had received $125,000 in settlement funds from another source. In light of the prior settlement and the verdict, the trial court entered judgment against GSI in the amount of $1,200.
Plaintiffs filed a motion for a new trial, arguing that the damages award was inadequate, and GSI was more than 2 percent at fault. GSI filed opposition. The trial court denied the motion. Plaintiffs appealed.
II
DISCUSSION
"It is the duty of the appellant to present an adequate record to the court from which prejudicial error is shown. . . . Also, the appellant must present argument and authorities on each point to which error is asserted, or else the issue is waived." (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865, citation omitted.) We review a trial courts rulings on jury instructions and evidentiary matters for an abuse of discretion. (See Jiagbogu v. Mercedes-Benz USA (2004) 118 Cal.App.4th 1235, 1245 [jury instructions]; Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1078 [evidence].) "The burden of demonstrating error rests on the appellant." (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)
Absent prejudice, an instructional or evidentiary error is not grounds for reversal. (See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Evid. Code, § 354; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574; Taylor v. Varga (1995) 37 Cal.App.4th 750, 759, fn. 9.) To establish prejudice, an appellant must show a reasonable probability that, in the absence of the error, he or she would have obtained a more favorable result. (See Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570, 574.)
Because "[t]here is no duty on this court to search the record for evidence which will serve to overturn the judgment" (Belli v. Curtis Pub. Co. (1972) 25 Cal.App.3d 384, 394, fn. 5), we disregard any factual contentions not supported by correct, page-specific citations to the record (see Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856).
A. Instructional Error
At GSIs request and over plaintiffs objection, the trial court instructed the jury on superseding causation, stating: "[GSI] claims that it is not . . . responsible for [plaintiffs] harm because of the later criminal conduct of Jason Thompson. [¶] [GSI] is not responsible for [plaintiffs] harm if [GSI] proves both of the following: One, that the criminal conduct of Jason Thompson happened after the conduct of [GSI]. And two, that [GSI] did not know and could not have reasonably foreseen that another person would be likely to take advantage of a situation created by [GSIs] conduct to commit this type of act." (See CACI No. 433.)
As case law makes clear, "the defense of `superseding cause[] . . . absolves [the original] tortfeasor, even though his conduct was a substantial contributing factor, when an independent event [subsequently] intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible." (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 573, fn. 9.)
"The [causation] analysis . . . examine[s] the applicability of the rule that an original act of negligence is not a proximate cause when the injury directly results from the intervening act of another, which act is not to be reasonably anticipated by the first party as likely to occur and follow through from his own act. . . . Foremost among these intervening superseding forces which negate the original act of negligence is the criminal act of another party.
"The common law rule that an intervening criminal act is, by its very nature, a superseding cause has lost its universal application and its dogmatic rigidity. . . . California has adopted the modern view embodied in section 448 of the Restatement Second of Torts: `The act of a third person[, here, Thompson,] in committing an intentional tort or crime is a superseding cause of harm to another[, Roberta,] resulting therefrom, although [Melendrezs] negligent conduct created a situation which afforded an opportunity to [Thompson] to commit such a tort or crime, unless [Melendrez] at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person[, Thompson,] might avail himself of the opportunity to commit such a tort or crime. Present California decisions establish that a criminal act will be deemed a superseding cause unless it involves a particular and foreseeable hazard inflicted upon a member of a foreseeable class." (Kane v. Hartford Accident & Indemnity Co. (1979) 98 Cal.App.3d 350, 359-360, citation omitted.)
Assuming for the sake of discussion that the trial court erred in giving the instruction on superseding causation, the error was harmless. The jury made a special finding, by a unanimous vote, that Thompsons criminal conduct occurred before Melendrezs negligent conduct. Thus, the jury had little trouble rejecting one of the factual predicates of GSIs superseding cause defense. Significantly, the jury went on to find that GSI was partially responsible for plaintiffs damages — a finding completely at odds with a superseding cause.
Plaintiffs contend that the alleged error in giving the superseding cause instruction "shamed" the jury into assigning too little fault to GSI. Because we cannot assume that the jury failed to follow the law as given by the trial court, including the instructions on multiple causation and apportionment of fault, we disagree. (See People v. Cahan (1956) 141 Cal.App.2d 891, 904.) And we see no prejudice from the jurys difficulty in resolving causation issues, its sending notes to the trial court, or its nonunanimous votes on some questions. The jury was doing its best to decide rather complex questions. "Causation, both legal and factual, presents a difficult conceptual problem for jurors — and for trial judges and appellate judges, too, for that matter." (Fish v. Los Angeles Dodgers Baseball Club (1976) 56 Cal.App.3d 620, 641.)
B. Exclusion of Thompsons Photographs
After abducting Roberta, Thompson made her drive to the Washington Mutual Bank at 4401 Crenshaw Boulevard. There, the automated teller machine (ATM) captured video footage of him. The police, in turn, used the video to produce "still shots" of Thompson that appeared in a "wanted" poster. Plaintiffs sought to introduce the photographs at trial, but, according to them, the trial court excluded the photos as unduly prejudicial under Evidence Code section 352 and concluded that Thompsons demeanor and facial appearance at the bank were not similar to what Melendrez had seen at the plaza. This challenge fails for several reasons.
That statute provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . ."
First, plaintiffs do not cite the pages of the record where the trial court mentioned section 352 of the Evidence Code, explained its ruling, or, for that matter, excluded the evidence. Rather, plaintiffs record references indicate that the trial court did not rule on any objection at all but encouraged the parties to resolve the matter through a joint stipulation. Accordingly, there is no ruling for us to review. (See Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856.)
Second, plaintiffs maintained in the trial court that the photos were necessary to identify Thompson as the man who was "loitering" at the plaza and riding in Robertas car on the day of the murder. But none of the witnesses had any trouble describing or identifying Thompson as the man they saw that day. Thus, the failure to admit the photos, even if an error, was not prejudicial.
Third, plaintiffs argue on appeal that the photos would have convinced the jury that Melendrez could not have honestly believed that Thompson was Robertas boyfriend "or otherwise belonged on the premises." We have reviewed the photos and conclude that the trial court could have reasonably decided otherwise.
Fourth, the trial court could have properly determined that the photos did not accurately depict Thompson as he looked at the plaza. The trial court noted that, in the bank photos, Thompson was wearing a stocking cap. At the plaza, he had no head covering. Plaintiffs do not point to any evidence to the contrary. Further, the bank photos showed Thompson at night, shrouded in darkness. At the plaza, Thompson was seen during daylight hours.
Plaintiffs also contend that the photos showed Thompson to be a "suspicious" person. But the photos do not show him engaged in any activity. They consist of close-ups of his head and upper body. And, on a related subject, plaintiffs complain that the trial court did not allow their witnesses to say whether Thompson looked suspicious. In contrast, defense witnesses were permitted to testify he did not look suspicious. But plaintiffs counsel did not object to this type of testimony, while defense counsel did. The trial court sustained defense counsels objections as calling for speculation. Assuming the trial court erred in excluding this evidence of suspiciousness, we see no prejudice. Both sides put on considerable evidence of Thompsons appearance and activities. The jury could therefore decide, based on that evidence, whether Thompson was suspicious. Consequently, the excluded evidence would not have made any difference in the verdict.
C. Juror Misconduct
"`In ruling on a request for a new trial based on jury misconduct, the trial court must undertake a three-step inquiry. . . . First, it must determine whether the affidavits supporting the motion are admissible. . . . If the evidence is admissible, the trial court must determine whether the facts establish misconduct. . . . Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial. . . . A trial court has broad discretion in ruling on each of these issues, and its rulings will not be disturbed absent a clear abuse of discretion. . . . [¶] . . . [¶]
"`[J]ury misconduct is not reversible per se. Although jury misconduct does give rise to a presumption of prejudice, the presumption may be rebutted by the prosecution on the basis of the entire record. . . . In deciding whether misconduct was prejudicial, the trial court must determine whether there exists a substantial likelihood that some extrinsic material or information improperly influenced the vote of one or more jurors. This is an objective standard. ". . . `In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror. . . .". . . ." (Sierra View Local Health Care Dist. v. Sierra View Medical Plaza Associates (2005) 126 Cal.App.4th 478, 484, citations omitted.)
Here, as part of the voir dire process, prospective jurors completed a questionnaire. Juror No. 8 indicated in her answers that she thought damage awards in lawsuits were often too low, she did not support legislative efforts to limit the amount of damages a jury could award, and she did not have any negative thoughts or feelings about wrongful death actions brought by the parents of a deceased child.
In moving for a new trial, plaintiffs submitted a declaration from a different juror, who stated that during deliberations, Juror No. 8 said: (1) she opposed awarding any money to plaintiffs; (2) she was not going to give plaintiffs anything; (3) an award of damages would not bring Roberta back; and (4) Mr. Happe had a good job and did not need any money. According to the declaration, a second juror had made comments similar to Juror No. 8s.
In response, on the day the new trial motion was heard, GSI filed and hand-served a declaration from Juror No. 8, who stated (1) she had not given false or misleading answers on the juror questionnaire, and (2) she did not state during deliberations that a monetary award would not bring Roberta back or that Mr. Happe had a good job and did not need any money. GSIs attorney orally explained that he had worked diligently to obtain the declaration after receiving plaintiffs motion papers. In addition, the record showed that the two jurors who supposedly made the questionable comments had voted in favor of the $82,320 damages award. The trial court concluded that there was no juror misconduct, relying in part on Juror No. 8s declaration.
We cannot say the trial court erred. It was within the province of the trial court to resolve the conflicting evidence presented by the jurors declarations, and we must defer to its implied resolution of those conflicts in GSIs favor. (See Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 108, 109; Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 806.) The trial court was permitted to disbelieve the declaration submitted by plaintiffs in its entirety. (See Rodriguez v. Superior Court (1978) 87 Cal.App.3d 822, 831; Nelson v. Black (1954) 43 Cal.2d 612, 613.)
Plaintiffs counter that the trial court could not consider Juror No. 8s declaration because it was filed too late. Under section 659a of the Code of Civil Procedure, declarations in opposition to a motion for new trial must be served and filed within 10 days after service of the moving parties declarations. The trial court may extend the 10-day period for an additional 20 days — to a total of 30 — upon a showing of good cause established by affidavit.
Juror No. 8s declaration was served and filed 28 days after plaintiffs filed their papers, two days before the absolute deadline. GSIs attorney said at the motion hearing that he had been diligent in attempting to reach the juror. It is true, however, that GSI did not establish good cause for an extension by an affidavit or declaration. But plaintiffs do not contend they objected to Juror No. 8s declaration on any basis. That failure constituted a waiver of the procedural defect. (See Jurcoane v. Superior Court (2001) 93 Cal.App.4th 886, 890, fn. 3; People v. Mayfield (1997) 14 Cal.4th 668, 798; Zavala v. Board of Trustees (1993) 16 Cal.App.4th 1755, 1761.) Although a trial court has no authority to permit a filing beyond the 30-day period, which is jurisdictional (see Erikson v. Weiner (1996) 48 Cal.App.4th 1663, 1671-1673), a failure to comply with the initial 10-day deadline, which is not jurisdictional, can be waived by lack of a timely objection (id. at p. 1673).
D. Admissibility of Melendrezs Prior Testimony
On January 29 and January 30, 2002, Melendrez testified at the preliminary hearing in Thompsons criminal case (People v. Thompson (Super. Ct. L.A. County, 2001, No. SA041354-01).
At the trial in this action, plaintiffs sought to read portions of that testimony into the record. The trial court ruled that some, but not all, of the designated testimony could be used. In particular, the court excluded any prior testimony that was not inconsistent with what Melendrez said in this case.
On appeal, plaintiffs assert in their opening brief that the trial courts ruling prevented them from introducing "key" evidence that "went to the issue of negligence and causation, including the allocation of fault between GSI and Thompson." Yet plaintiffs briefs, with one exception, do not describe the excluded evidence or explain how its exclusion supposedly prejudiced their case. The one example they give — that Melendrez recognized Thompson in the ATM photo — could not have affected the verdict given Melendrezs trial testimony that he had seen — and obviously recognized — Thompson several times on the day of the murder.
In short, absent a more thorough explanation of this issue and its purported effect, we deem the argument waived. (See Kurinij v. Hanna & Morton, supra, 55 Cal.App.4th at p. 865; Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 237.)
E. Adequacy of Damages
"The appellate courts follow the rule that the determination of the element of damages to be awarded as compensation for personal injuries is a matter within the province of the jury and will not be disturbed unless an abuse of discretion clearly appears . . . , or the award is found to be inadequate on a fair consideration of the evidence . . . or the facts before the appellate court suggest passion, prejudice or corruption on the part of the jury, or where the evidence demonstrates that the award is insufficient as a matter of law. . . . But, `this rule [of appellate review] is not universal and . . . in [some] cases . . . the appellate court may use common sense and the long line of authorities which hold that inadequate damages may be such as to shock the conscience and to require a reappraisal." (Haskins v. Holmes (1967) 252 Cal.App.2d 580, 584-585.)
"[T]he question as to the amount of damages is a question of fact. In the first instance, it is for the jury to fix the amount of damages, and, secondly, for the trial judge, on a motion for a new trial, to pass on the question of adequacy. Whether the contention is that the damages fixed by the jury are too high or too low, the determination of that question rests largely in the discretion of the trial judge. The appellate court has neither seen nor heard the witnesses, and has no power to pass upon their credibility." (Wood v. Alves Service Transportation, Inc. (1961) 191 Cal.App.2d 723, 733.)
"The common law in its wisdom has left . . . inherently subjective decisions regarding damages with the jury as the trier of fact to apply its collective experience, common sense, and diverse backgrounds. As a further safeguard, the trial judge has considerable discretion to review excessive or inadequate damage awards in conjunction with a motion for new trial. (The court denied a new trial below.) We do not question the discretionary determinations of jury and judge, so long as they fall within a reasonable range permitted by the evidence." (Abbott v. Taz Express (1998) 67 Cal.App.4th 853, 857.)
Here, plaintiffs briefs describe the relationship between plaintiffs and Roberta as "significant, close and loving" — a description GSI does not challenge. The jury awarded $60,000 in noneconomic damages for the loss of Robertas "love, companionship, comfort, care, assistance, protection, affection, society, [and] moral support." (CACI No. 3921.) Given the deference we must accord to the jury and the trial court, we cannot say the damages award is inadequate as a matter of law.
Plaintiffs reliance on Smith v. Moffat (1977) 73 Cal.App.3d 86 is misplaced. Smith was a wrongful death action by a minor, who was one and one-half years old at the time his 20-year-old mother died. The uncontradicted expert testimony established that the mother would have provided the plaintiff with $168,000 in economic benefits before he reached the age of majority. The jury awarded $5,000. The Court of Appeal concluded that the award was inadequate in light of the undisputed evidence of economic loss. In the present case, plaintiffs focus on the amount awarded for noneconomic loss, making Smith largely irrelevant.
F. Compromise Verdict
"When the issue of liability is sharply contested, and the jury awards inadequate damages, the only reasonable conclusion is the jury compromised the issue of liability, and a new trial is required. . . . A divided verdict provides further indicia there was a compromise." (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1346, italics added.) But, as we have already discussed, the jury did not award inadequate damages. (See pt. E, ante.) And plaintiffs do not contend that a close verdict alone requires a new trial.
In sum, plaintiffs have not shown that the jurys apportionment of fault was the result of trial court error or juror misconduct.
III
DISPOSITION
The judgment is affirmed.
We Concur:
ROTHSCHILD, J.
JACKSON, J.