AIKG, LLC v. Marshall, A19A0322

• Court: United States Court of Appeals (Georgia)
• Citation: 829 S.E.2d 608,350 Ga.App. 413
• Docket Number: A19A0322
• Parties: AIKG, LLC v. MARSHALL.
• Decision Date: 12 June 2019

350 Ga.App. 413
829 S.E.2d 608

AIKG, LLC
v.
MARSHALL.

A19A0322

Court of Appeals of Georgia.

June 12, 2019

Matthew Alan Nanninga, Barbara Anne Marschalk, Robert Peter Marcovitch, Atlanta, Robert Anthony Quinn, Stockbridge, for Appellant.

John David Hadden, Lloyd W. Hoffspiegel Hoffspiege, Alexander S. Hoffspiegel, Atlanta, Mark David Link, Tucker, Ashley Tee Ellerbe-Dawkins, for Appellee.

Miller, Presiding Judge.

829 S.E.2d 609

350 Ga.App. 413

In this civil action, Tanisha Marshall sued AIKG, LLC, alleging negligence in the operation of its indoor go-kart facility where Marshall sustained serious bodily injuries from a crash while operating a go-kart. Following a jury verdict and judgment in

350 Ga.App. 414

Marshall’s favor, AIKG, LLC appeals. In its sole enumeration of error,¹ AIKG argues that the trial court erred in granting Marshall’s Batson² challenge to the use of its peremptory strikes. For the reasons that follow, we affirm.

The record shows that Marshall filed a complaint against AIKG after sustaining injuries from a crash while operating a go-kart at AIKG’s facility, and the case proceeded to trial. During voir dire, Marshall raised a Batson challenge regarding AIKG’s use of its peremptory strikes. Marshall argued that of the twenty-five members of the jury pool, fifteen were Caucasian and ten were African-American, and of the ten African-American prospective jurors, only three of those jurors were selected. The trial court noted that all of the strikes used by AIKG were against African-Americans, and directed AIKG to respond to Marshall’s Batson challenge.

AIKG began its response by noting that it had not used all of its peremptory strikes and had one strike remaining. AIKG then provided explanations for each of its strikes. As to the first strike, AIKG’s counsel explained,

So my first strike was Number 11. This was a retired gentlemen and in my experience I typically do not like retirees, no matter what their background is. I find that they, I don’t know if it’s from daytime television or what, but in my experience retirees have not been particularly good defense jurors.

As to the second strike, AIKG’s counsel said,

Number 13, ... we didn’t learn that much information from [Juror 13]. The only note that I have written down about [Juror 13] was that she commented during [Mr.] Hoffspiegel’s voir dire that when people drive too fast, it can lead to great injuries or death.

Mr. Hoffspiegel, as I saw a preview of his case yesterday, during opening statements, the case that we mistried is going to be spending a great deal of time, I think, in this case discussing speed, which is why I noted that, and which is why I struck Juror Number 13.

350 Ga.App. 415

As to the third strike, AIKG’s counsel explained,

Juror Number 14, ... -- Oh, she’s also -- She didn’t have -- [Juror 13] and [Juror 14] were the two ladies that were seated side by side and neither one of them offered us much information to glean about them despite Mr. Hoffspiegel’s fairly extensive voir dire and the only thing that I wrote down with her is that she had a pretty visceral reaction to one of the questions during Mr. Hoffspiegel’s examination, which was that she was very, very, very adamant about seatbelt usage and seemed to indicate that she thought that seatbelts would basically prevent any sort of injury.

Regarding the fourth strike, AIKG’s counsel stated,

Number 17 was a juror that I actually followed up on because he said something during Mr. Hoffspiegel’s questioning that caused me a little bit of concern and that was that, if you don’t follow the rules, people get hurt, and again having access to having heard Mr. Hoffspiegel’s opening statement yesterday, and frankly his voir dire both days, I know that this is going to be a safety rule case and he’s going to

829 S.E.2d 610

allege there were multiple violations of safety rules.

As to the fifth strike, AIKG’s counsel elaborated,

Let’s see, the last juror that I struck, [Juror 23]. Again we didn’t learn a lot about [Juror 23], but the one thing that I wrote down about [Juror 23] was that, businesses should make sure that people cannot get hurt, and that is a direct quote from her during the voir dire process. That’s why I chose to strike [Juror 23] and that’s the end of my strikes for the jury. As to the strike of a juror on the alternate panel, AIKG’s counsel explained,

So with the alternate knowing that we basically had those three jurors to choose from, I looked at that and compared the jurors against one another and, frankly, the fact that I had the opportunity to have a younger male, who I thought might frankly understand go karting a little bit better than an older lady, that’s why I wanted to use my strike on her to hopefully get the younger guy.

350 Ga.App. 416

After AIKG’s counsel gave the reasons for the strikes, the trial court initially ruled that AIKG improperly exercised all of its peremptory strikes with the exception of its fourth strike against Juror 17. Specifically, as to the first strike, the trial court stated, "[t]he retiree, I do not find that to be a race-neutral reason for striking someone because they are retired. So I will put that juror back in the pool." The trial court continued,

As it relates to Juror Number 13 and 14, ... both being [African]-American women, where defense attorney has stated, did not offer much information on either, but the first one the reason being that the juror commented, that great injuries and death when you drive too fast [sic]. And the other juror the reason given was they made a comment as it relates to Plaintiff’s question about seatbelts and them saving people. I do not find either of those reasons to be race-neutral. Seatbelts, jurors, appears to be pretexts for Jurors 12, 13 and for the retiree juror, that was Juror Number 11.

Regarding Jurors 23 and 30, the trial court stated,

Juror Number 23, defense asserted, not a lot about [Juror 23] either -- businesses should make sure that the place is safe for their people and I find that is not a race-neutral reason, since not much information was gathered and it appears to be that any comment or any statement that these jurors made was given as a pretext for a reason to strike them since not that much dialog was taken from them.

...

Juror Number 30, ... reason indicated that -- Juror Number 30 indicated that the reason the juror was taken because there were the alternate choices, there were younger jurors and they may know more about race cars and go karts. And I guess, if I looked at the other jurors, who may have been selected, I guess in looking at the ages of the jurors, this juror was born in 1987. And the juror that was struck was born in 1960. And so if I look at Juror Number 7, ... who was a white female, she was born in 1957. If I looked at another Juror Number 9, ... he was born in 1959. So when looking at those two jurors, who have aged, they’re varying ages on there, but I find that is not a race-neutral reason considering that there are other jurors who are as old or older, so seat the juror.

350 Ga.App. 417

The trial court took a brief recess after its initial ruling on Marshall’s Batson challenge.³ After...