was done by the jury in this case this was a wrongful death action involving a vibrant charismatic thirteen year old boy who tragically died in a drowning accident at defendant's hotel the  evidence in the case and i don't think it would be disputed by the defendant is that marcus smith had a loving relationship with both his mother and his father even though the two had separated they lived within a block or two of each other he was constantly either at her house his house actively engaged in activities with them all the time sporting activities watching basketball being one but yes i don't think anybody would  one that the death of this young man was a tragedy number two that his parents both loved him and had relationships with them that were cherished relationships  reading the briefs reading the cases that were cited we've all seen cases the almost every case that's ever tried people are disappointed on one side or the other with how a jury assesses damages i don't see any cases in which a damage assessment of two hundred thousand dollars plus for an injury of this  was found by a reviewing court to be so woefully inadequate as to require another trial can you enlighten me on that but i think you're honest correct that there is no case that deals with that number specifically but i think with the cases and anything approaching that number would be helped by the a fifty thousand dollar one i understand i think in this case the reason why we are process by putting in the wrong instruction and about contributory negligence for beneficiaries absolutely that the i think in this case both parties it was a mutual state by the court both parties i was the one who tendered the instructions so yes i think even putting that aside i believe the stumbling block that the jury had is that in this case there were two potentially culpable the fifth parties the first was the hotel and the primary theory against the hotel was the clerk who was watching the tragedy unfold on the monitor and didn't do anything he only acted when he saw people jumping into the pool with clothes on and he was concerned about the filters can clog the other part it would be the four siblings who are at this gathering the older brothers and sister of marcus you represented them effectively along with the administrators right that is correct however there was claims against them of comparative fault and i believe based on the question that was sent back by the jury in the middle of there to win why didn't they have different counsel i mean if there's if you have the the administrator the man in the dad who split mom and dad and then the potentially culpable kids you know  is there some kind of an inherent conflict there well we potentially i mean that what we represented i mean did we defended or presented this story and defended their conduct i'm not sure that different counsel would have made any difference the problem in this case is that under the law under the wrongful death act the jury is barred from making line item damages awards teach beneficiary the trial judge is given that authority under the statute we did offer instructions or a verdict form that would have done that was rejected however we would there's no basis to bring that issue before the court because the statutes very clear in the case was very clear that that's not  unless agreed to by both sides which it wasn't in this case so that the jury had looked at the situation where they were going to potentially reward people who were at the party and in their minds  defined comparative fault against each of those and that they were questioning a question came out and said it is a decision based on the negligence of soling marcus or should we take into account the guardian's responsibility so i think that demonstrates that there was a conflict in that jury room between those who thought the hospital was liable and those who thought that the siblings were liable there's there's a conflict between the people who are are potentially allowed to recover there's a there's a conflict because you have some of the siblings who arguably weren't paying attention to the little guy and then you have the parents who had nothing to do with it there's your catholic well if if the jury had properly followed the instruction as it said out paragraph the first is that they were to determine number one was river north hotel liable the answer that question affirms that yes the next step then is for that jury to have determine what are the total damages for the us a society that they should find in this case then finally and only finally after reaching that step that they then apportion the fault among the defendant and the four people against if they did that the right way it appears to me i think that they would be affidavits from any of the jurors that would substantiate your argument we don't but i believe under the case law that that would not be evidence that would be permitted by this court because i believe the case was pretty clear that you can't impeach a jury's verdict by affidavit it can only show outside influences that might have affected but you can't show the process so i but i think that the court can look at the issues in the case what the jurors head to determine and how they reached their decision and it seems to us the plaintiff that the jury convoluted their deliberations that they came up w have to respectfully disagree around her and the reason is that whether or not there were accounts separate the counsel for the children you would not have changed the way the ins the jury would have been instructed they still would have had the same  hold them potentially liable and the court instructed the jury that anybody who is contributory negligence at this point in time can every cover is a matter of law and you have the instruction that was given that says that the parents conduct is not an issue in this case then the jury isn't going to be misled at all they're going to be left right down the path of compensating those who are entitled and potentially saying no to those who are potentially culpable for their comparative negligence you're coming from well if if the well it was a error i believe made by all the parties that we failed to recognise or recall or research the fact that there had been a change in the law in one hundred ninety seven and  verdict well they were of the standard instructions on defining what law society was there or it was also the instructions given about at least with marcus that he would have to be found more than fifty percent be barred and that and the similar instruction improperly going in and saying the same thing about the four beneficiaries so that there i don't think there was any other instruction that dealt specifically with the problem that that occurred in this case but i think even putting aside the let's go to that let's go to the number here you're talking two hundred thousand is helplessly inadequate as a matter of adequate well the if we can look across the board never look at jury verdicts i mean they do go across different lines and i think that case law regarding determining opinion he would have awarded nutra a new trial because the numbers did not reflect it was not supported by the evidence and i think that some are situations here that you have to look at the case that specifically and in this case the relationship that existed between marcus and his parents was extremely strong it was a remarkable relationship and i think that under the circumstances that the award of two hundred thousand dollars is inadequate in terms facts in the defendant's the ample lease brief and page three it says anthony smith was scheduled to go to jail on natural drug rehabilitation program so we decided to throw a party at this hotel was in fact heard by the jury yes i think indirectly yes ed and i think the instruction i mean there is case law that shows that that indicates that stands for the proposition that if a mistake in instruction given regardless of how the er the i mean that that was it would have been as part of the verdict form giving the instructions as to the process if they were to go first o'toole in the verdict form that the first thing they were to do is to determine back to i guess repeating what i said before it is that i believe that there was the way the instructions worth the time is that there was the conflict between what appears to be a segment of the jury who wanted to award damages and finding of liability in another segment who did not want to reward the siblings who were present your your theory based on the speculation that the jury ignored the part of the structure they just refer it's speculation i think that there are factors it looked at that can lead to that conclusion i mean there are other cases where a courts have found that critics have been the result of compromise and they've ordered new trials but you don't have the jury questions hear gardens as they put in quotes i mean not we we can all interpret that question as as we wish but i think a fair interpretation of it is that that suggests that there was this conflict between those who wanted to find against defendant and or damages and those who thought the guardians were the responsible party and there shouldn't be any i mean and i think that you have to look at three things that wasn't just the case that they were considering be consistent with that interpretation would be but i think it had you have the court needs to look at the broader picture and has to look also at the evidence in this case i think that the hotels behavior through it clerk was a green just and that he sat watching a monitor for fifteen minutes watching these kids swimming alone and didn't do anything and that the only time he acted was when he saw people jumping in the pool with their clothes and he was concerned and remains exactly and i believe that was the conflict in the room that day there was people there were jurors who did not want to reward those people who were there and whom they thought were good morning honors i plan to keep my arguments here short this morning you're obviously well read of the briefs well first of the facts in the life of stablish we surprise people ok well let me  in light of your comment let me ask you one of the first facts that you talk about in your brief is what i mentioned before with mr one glove and that is that you put in the brief to this court that the party was set up because a guy was going to go to jail and then drug rehab if the jury didn't hear why do we need where you need to put it is so prominently in your brief i mean just think it's need these people are bad people or something no oh it puts the party in perspective but it also there is one fact one injury with the party in perspective the purpose of the party if it was to celebrate sake more sure wouldn't have any impact on the facts of this case it seems to me is just a smear well it also puts in perspective why the jury was instructed not to construe that anthony smith didn't have any contact with marcus met for two years and it explains why he didn't have any contact with the germans instructed about that and they were instructed to consider that in their word of the q neary injuries but no he did spleens no it was he didn't have any kind take with him because he wasn't jail not because he was going to jail that it was not going to jail is on his was in the party because he expected to be going to prison that's correct ok so if he'd been in prison and hadn't had any contact with them that's not the same thing so why is this mention exactly you are not to consider the fact of any contributory negligence in a riving at the total amount of damages the law preserved proof is presumed that they followed that they were told to determine the damages in the verdict form they did and then they distributed the negligence if the jury wanted to manipulate the damages they could have said we don't want anthony smith to recover any money he's the one who threw this party we don't we don't think he mean he knew there was a swimming pool potentially he was there with his children we need to change these numbers so he gets no money they could've determined that he was more than fifty percent negligent they were instructed if they find somebody more than fifty percent negligent that person will not recover they didn't do that thing i can't understand is how do you hear you know both firms are strictly well versed in this area of law both firms and trying these cases for decades bad instruction and you went along with it but they have a temper but i think it could be constructive no way that it benefited the defense well i don't think there's any basis of the in the record to say that again it doesn't look like manipulated and i agree with you there i think it's hard to discern either way because there's you know you're one of the speculating here where well when they had a question they asked it right right and they were instructed to follow these two instructions regarding negligence position that the plaintiff did receive a fair trial and it's time to put this case to rest and now sixteen years later it's time to put thirteen year old marcus in it to rest we ask that you affirm the trial court's decision all the time and no one thought to say oh wait a minute that's not the right instruction we can do better than anything that's the wrong one and i am just having a hard time dealing with that well i don't think you need to get to that because again it's  issue the law is that you don't reach that issue when it's tendered by the plaintiff and if you do there's no prejudice tendered a group of instructions first everybody missed it i think there's the concept of certainly in the criminal aspect where if there's clear that the case should be retried and i think that is a an ideal that i