Circus Circus Miss., Inc. v. Cushing, 2011–CA–00961–COA.

• Citation: 108 So.3d 980
• Decision Date: 07 March 2013
• Docket Number: No. 2011–CA–00961–COA.,2011–CA–00961–COA.
• Parties: CIRCUS CIRCUS MISSISSIPPI, INC. d/b/a Gold Strike Casino Resort, Appellant v. Fendley Joy CUSHING, Appellee.
• Court: Court of Appeals of Mississippi

108 So.3d 980

CIRCUS CIRCUS MISSISSIPPI, INC. d/b/a Gold Strike Casino Resort, Appellant

v.Fendley Joy CUSHING, Appellee.

No. 2011–CA–00961–COA.

Court of Appeals of Mississippi.

Sept. 11, 2012.

Rehearing Denied Dec. 11, 2012.

Certiorari Denied March 7, 2013.

Scott Burnham Hollis, Courtney Leyes Tomlinson, Olive Branch, attorneys for appellant.

Christopher Ethan Kittell, attorney for appellee.

Before IRVING, P.J., RUSSELL and FAIR, JJ.

RUSSELL, J., for the Court:

¶ 1. Gold Strike Casino Resort (Gold Strike) appeals the Tunica County Circuit Court's order denying its motion for a new trial or, in the alternative, a remittitur. Gold Strike asserts that a new trial should have been granted because two jurors failed to respond to certain voir dire questions. In the alternative, Gold Strike argues that the circuit court erred in failing to grant a remittitur. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 1, 2007, Fendley Cushing and her family visited the Gold Strike Casino. During their visit, Cushing slipped and fell on some water on the floor of a buffet room, breaking her right elbow. As a result of her fall, Cushing incurred medical expenses of $6,708 and lost wages of $6,926.07, for a total of $13,634.07 in actual damages. On July 21, 2009, Cushing filed suit against Gold Strike on premises-liability theories. On March 14 and 15, 2011, a trial was held, and the jury returned a $250,000 verdict for Cushing.

¶ 3. After the trial, on March 25, 2011, Gold Strike filed a motion for a new trial, or in the alternative, a remittitur. Gold Strike argued that: (1) a new trial was warranted because two jurors failed to disclose that they had previously worked for Gold Strike; and (2) a remittitur was warranted because the jury's verdict was the product of the jury's bias, prejudice, and passion.

¶ 4. Gold Strike filed a motion for a new trial after learning jurors were its former employees and had failed to disclose this fact during voir dire. Thus, Gold Strike argued that these two jurors would have been disqualified from the jury because had they disclosed such information, the circuit court would have struck them from the jury just as it struck all other Gold Strike employees for cause.

¶ 5. The employment records obtained by Gold Strike after the trial revealed that Juror 4 was a former Gold Strike security officer, employed by Gold Strike from February 20, 2006, to October 4, 2006. Juror 4 worked in the same department as witnesses Ray Trudeau ¹ and Mary Young,² who were both security officers at Gold Strike at the time of Cushing's fall. Juror 4's personnel records indicated that she resigned in order to work elsewhere with her husband.

¶ 6. The employment records of Juror 11 revealed that he was a former bus boy at Gold Strike's Atrium Café, which is located near the buffet where Cushing fell. Juror 11 was employed by Gold Strike from February 20, 2003, to September 19, 2006, in the same department as the former buffet manager and Gold Strike witness, Harold Wolfe.³ According to Juror 11's personnel file, he arrived late for his shift on January 6, 2006. Upon arrival, Juror 11 attempted to unilaterally change the Atrium Cafe's floor plan to avoid working with, and busing tables for, a particular waitress. Juror 11's supervisor confronted him about being late to work and told him that he was not authorized to change waitresses. Juror 11 ultimately walked out on his shift and was placed on suspension without pay pending an investigation. While on suspension, Juror 11 resigned. According to his resignation letter, he “dot [sic] like work in the resturat [sic].”

¶ 7. Then, in May 2011, Gold Strike suspected that Juror 11 was related to a decedent (decedent) who was the subject of a wrongful-death suit filed against Gold Strike shortly after the trial of this case. On May 9, 2011, a hearing was held on Gold Strike's motion for a new trial. At this hearing, Gold Strike informed the circuit court that it had been served with the complaint in a wrongful-death suit on May 2, 2011, and that it suspected Juror 11 had not disclosed a familial relationship with the wrongful-death decedent. At the hearing, the circuit court granted Gold Strike fifteen days to investigate this alleged relationship.

¶ 8. On May 18, 2011, Gold Strike filed an addendum confirming that Juror 11 and the decedent were first cousins. Gold Strike discovered that the decedent was an employee of a custodial-housekeeping vendor called FSS,⁴ but she was working inside the Gold Strike hotel on the day she died. Gold Strike attached to the addendum an affidavit, which was completed by Juror 11's relative. The relative attested that: (1) Juror 11's aunt was the representative for the wrongful-death beneficiaries of the decedent and the administratrix for the estate of the decedent; and (2) Juror 11 and the decedent were first cousins. Gold Strike also attached the wrongful-death complaint to its addendum. According to the allegations in the wrongful-death complaint filed against Gold Strike and FSS, the decedent “was intentionally, willfully, or wantonly prevented from leaving work to seek medical care by employees of Gold Strike and/or FSS, and as a result, suffered injuries and ultimately died” on May 28, 2010.

¶ 9. Based on the post-trial discovery of the two jurors' former employment with Gold Strike, and Juror 11's familial relationship with the decedent, Gold Strike argued a new trial should have been granted because the two jurors failed to disclose such information during voir dire. On June 23, 2011, the circuit court entered an order denying Gold Strike's motion for a new trial or, in the alternative, a remittitur. Gold Strike appealed.

DISCUSSION

I. Whether the circuit court should have granted a new trial due to jury members' failure to respond to certain questions during voir dire.

¶ 10. Mississippi Rule of Civil Procedure 59(a) states that “[a] new trial may be granted to all or any of the parties and on all or part of the issues ... in an action in which there has been a trial by jury ... for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of Mississippi[.]” Our supreme court has set forth the following test to determine whether a juror's failure to respond to voir dire questioning warrants a new trial:

The failure of a juror to respond to a relevant, direct, and unambiguous question leaves the examining attorney uninformed and unable to ask any follow-up questions to elicit the necessary facts to intelligently reach a decision to exercisea peremptory challenge or to challenge a juror for cause. Therefore, we hold that where ... a prospective juror in a criminal case [⁵] fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion for [a] new trial, determine whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited. If the trial court's determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror's failure to respond. If prejudice reasonably could be inferred, then a new trial should be ordered. It is, of course, a judicial question as to whether a jury is fair and impartial[,] and the court's judgment will not be disturbed unless it appears clearly that it is wrong.

Odom v. State, 355 So.2d 1381, 1383 (Miss.1978).

¶ 11. In Odom, counsel for the defendant asked the prospective jurors during voir dire whether any of them had a close relative who was involved in law enforcement. Id. at 1382. A juror failed to respond to this question, but evidence later established that the juror's brother was one of the police officers who was involved in the investigation of the crime with which the defendant was charged. Id. The same juror also failed to respond to the inquiry of whether there was any reason why any member of the panel could not render a fair and impartial verdict. Id. Counsel for the defendant argued that if the juror had responded to either of these questions, he would have used a peremptory challenge against the juror. Id. He also argued that the juror's “lack of candor made it impossible for him to intelligently exercise his peremptory challenge[,] all in violation of Mississippi Code Annotated section 13–5–69[.]” Id.⁶ Applying the above test, the Odom court reversed the judgment and sentence and remanded the case for a new trial. Id. at 1383.

¶ 12. In Burroughs v. State, 767 So.2d 246, 250 (¶ 16) (Miss.Ct.App.2000), several questions were asked during voir dire regarding whether any prospective juror knew any of the witnesses. The circuit court called the names of all of the witnesses and asked the following:

[I]s there anything about your knowledge of or your acquaintance with either of the parties in this case or [the] witnesses or the attorneys[,] whether it's a matter of like or one of dislike or whether it arises from friendship, personal association, business association, fraternal association[,] or otherwise[,] that will make it difficult or embarrassing for you to serve as a juror in this case?

Id. at 250–51 (¶ 16). The State also asked whether any of the jurors knew any of the witnesses. Id. at 251 (¶ 16). One juror failed to respond to these questions. Id. at (¶ 17). After the trial, the defendant's counsel learned that the juror had previously employed two of the assault victims, whom the defendant was charged with assaulting. Id. This Court noted that “a juror is ‘disqualified’ within the meaning of [Mississippi Code Annotated section 13–5–67 (Rev.2002) ] where on voir dire examination he or she...