Keener v. Jeld-Wen, Inc.
Filed April 2, 2008, Fourth District, Division One,
Cite as 2008 SOS 1989

Motion for New Trial of Jury Polling Error in Torts Case Granted

E. Scott Keener died when his motorcycle collided with a truck driven by Hector Solis on behalf of Solis’s employer, Jeld-Wen, Inc.

The surviving Keener family sued Jeld-Wen and Solis (defendants) in a wrongful death action for “negligence, negligence per se, and negligent entrustment of a vehicle”.

The case went to trial and resulted in a damage award against the defendants.

During appeal, the court of appeal found that, among other things, Jeld-Wen, as an employer, had made a binding pretrial admission that Solis, its employee, was acting in the course and scope of his employment at the time of the accident.

The effect of this admission led the court to conclude that the employer can be held for vicarious liability under the doctrine of “respondeat superior”. However, the negligent entrustment theory was excessive and could not be separately pursued at trial by plaintiffs. The case was remanded to resolve the entrustment theory issue.

On remand, the trial court granted summary adjudication on the negligent entrustment theory, as directed.

During retrial, the jury rendered a 16-question special verdict, in nine parts. The jury found the following:

• that both Solis and Keener were negligent


• that their negligence was each a substantial factor in causing the death


• damages were awarded to the three plaintiffs separately


• that Solis was 80 percent responsible for the death, and Keener was 20 percent responsible

However, Jeld-Wen moved to invalidate the verdict after finding out that of the 192 potential questions in the verdict to the jurors, two were inadvertently omitted, one of which concerned the apportionment of fault.

However, the court dismissed the motion, finding that the claims have been waived and denied the motion for new trial.

Likewise, the Keeners opposed the new trial motion. Their opposition included four juror declarations that contradicted those submitted by Jeld-Wen on several topics.

In ruling, the Fourth District Court of Appeal reversed, holding that the trial court abused its discretion in denying a new trial based on the alleged polling error.

The court reversed the trial court’s judgment with directions to implement the existing special verdict as to certain questions, while allowing further appropriate proceedings on apportionment of liability only.

Further, the appeals court found that the trial court erred under California Evidence Code Section 1150(a), which allows evidence as “to statements or conduct that may have improperly influenced verdict but prohibits evidence as to effect”. The court also found errors in instances where it accepted juror declarations to inquire into and resolve results of decision-making process, and make credibility determination that foreperson could not have effectively voted contrary to verdict at any relevant time.

Further, the court held that the defect in verdict was not waived by defense counsel’s lack of objection where it was result of an unexpected change in juror’s vote in a proceeding. However, the new trial on remand was limited to sole issue of apportionment where question as to sufficiency of votes for verdict was only reversible error.

The Fourth Appellate District therefore reversed the judgment with the following directions:

• that an incomplete comparative fault verdict mandated retrial on apportionment of liability “where a juror changed his vote unexpectedly and without notice during a post-verdict oral poll conducted ‘sua sponte’ by the trial court”


• that the error was not waived where the unexpected change in the juror’s answer went unnoticed during confusing proceedings and the trial court discharged the jury before counsel could discern the issue and take further action


• that a new trial be granted to resolve the negligent entrustment issue and the polling error