dissenting.
You know how, when times are slow and good material is hard to come by, some third-rate stand-up comics and other undistinguished commentators resort to crummy “jokes” the butt of which are lawyers and judges? The punch line, usually delivered with feigned exasperation and obvious derision, runs along the lines of “Only a lawyer (or judge) could think like that!” Take warning: the conceptual incoherence of the theory underlying today’s decision will fuel that kind of stuff.
Now just think about what happened here. Juror Number Two decided that neither plaintiff nor defendant was negligent. Then, despite the fact that she had already determined that there was no liability, Juror Number Two went on to apportion the liability that as far as she was concerned did not exist. Why she voted on that issue we cannot know, except that the trial court told the jurors they could “vote inconsistently.” Although doubtless suffering from a certain schizophrenia, a sense of never-never land, she did as she was told.
The Court sanctions that process, calmly reassuring us that the mental gyrations called for in that task are “no greater than or different from that expected of jurors in many other settings,” ante at 632, including the liability/damage determination: “[A] juror disbelieving that liability is established is deemed capable of accepting as fact that liability is established and then determining damages.” Ante at 630. Well, the latter observation is accurate, of course, because unlike the “liability-apportionment of liability” issues, the “liability-dam*635ages” issues are entirely separate, distinct, unconnected, unrelated, independent. But on the issue presented here — the liability/apportionment question — I would side with those courts, see ante at 627, that have disapproved of the irreconcilable inconsistency explicit in a juror’s addressing apportionment after having conscientiously concluded that there is nothing to apportion.
In this case, however, the verdict can stand. Juror Number Two’s result was a “no cause for action” because of the absence of any negligence, and four other jurors likewise voted for a “no cause,” albeit on a different theory: plaintiff’s comparative fault was greater than defendant’s. A five-sixths verdict of “no cause” need not be achieved on precisely the same theory of non-liability as long as the jurors get to the same place. And any inadequacy in the trial court’s charge, as found by this Court, ante at 632-633, on a juror’s right to vote inconsistently is of no moment as I view the case: no instruction on “inconsistency” should have been given here, but the fact that Juror Number Two followed such an instruction after having concluded that there was no liability could inure only to plaintiff’s benefit.
Although I disagree entirely with the reasoning of the court below, I would nevertheless affirm.
For reversal and remand — Chief Justice WILENTZ and Justices POLLOCK, O’HERN, GARIBALDI and STEIN — 6.
For affirmance — Justice CLIFFORD — 1.