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Don’t Let The Two Issue Rule Send Your Appeal Down the Drain

Appellate & Trial Support   |   January 4, 2016
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There are several preservation pitfalls to be mindful of when drafting a verdict form. One such issue is whether and how to avoid the "two-issue rule." As commonly found in most jurisdictions, the two-issue rule states that "[i]f two or more theories relating to a single claim for damages have been submitted to a jury for resolution on a general verdict form, an error affecting only one of the issues will not invalidate the verdict." Padovano, Philip J., Florida Appellate Practice § 19:12 (2016 ed.). To obtain relief, the appellant must show error as to all theories tried.

The case that follows is an example of a situation in which the two-issue rule affected the outcome of an appeal.

In Marriott International v. Perez-Melendez, 855 So. 2d 624 (Fla. 5th DCA 2003), the plaintiff booked a room at defendant Marriott’s hotel and convention center for an on-site conference.. Upon arrival, she was informed that there were no rooms available and that she would have to stay at a nearby Marriott property, approximately three-fourths of a mile away. After checking into her room at the alternative hotel, the plaintiff stepped into a exposed drain inlet while traveling back to the convention center hotel and broke her ankle.

The plaintiff filed a one-count complaint against Marriott, asserting four separate theories of liability, including negligent failure to provide reasonable transportation between the hotels and various premise liability theories. Marriott filed motions for directed verdict, alleging that plaintiff failed to make a prima facie case of negligence, which were denied. The jury was instructed on each theory of liability, but the verdict form, submitted to the jury without objection, simply requested the jury to determine whether Marriott was negligent and, if so, the amount of damages. The jury returned a verdict in plaintiff’s favor and Marriott appealed.

Florida’s Fifth District Court of Appeal agreed with Marriott that, as a matter of law, the hotel did not owe a duty to the plaintiff to provide her reasonable transportation because it was not reasonably foreseeable that she would injure herself on the drain inlet. Nonetheless, the court affirmed the jury’s verdict because it was impossible to determine on which theory the jury predicated liability. As such, under the two issue rule, since Marriott could not establish that a directed verdict was appropriate for each theory alleged, plaintiff’s verdict must stand.

Preservation Issue:

  • The Two-Issue Rule

Tip: The two-issue rule is not universally recognized and, accordingly, the very first issue to consider when drafting a verdict form is the jurisdiction’s law with respect to this rule including the various permutations for trial court and appellate review.

For example, in the Eleventh Circuit, where a jury returns a general verdict an appellant is entitled to a JNOV only when it shows that the appellee failed to make out a case under both theories tried. See Maiz v. Virani, 253 F.3d 641, 672 (11th Cir. 2001). Thus, with regard to the JNOV motion, the “two-issue” rule applies.

However, the Eleventh Circuit does not follow the two-issue rule in reviewing a motion for new trial.  See id. at 672. In such instances, the appellant need only show that the evidence is insufficient to support either one of the theories tried to prevail on its motion for a new trial. That is, where two or more claims are submitted to the jury in a single interrogatory, a new trial may be required if either of the claims was erroneously submitted, as there is no way to be sure that the jury's verdict was not predicated solely on the invalid claim. See id.; see also Richards v. Michelin Tire Corp., 21 F.3d 1048 (11th Cir.1994).

Beyond that, the real strategy decision requires a balancing of the pros and cons of having multiple liability questions on the verdict form.  For example, a defendant may decide that it would rather have less liability questions on the verdict form even though a general verdict form would waive a potential argument that it is entitled to judgment on a particular theory.  As is true with some (perhaps most) preservation issues, this issues ultimately becomes a judgment-call for the trial team.


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