Burdick v. Little Switzerland Realty, Inc., CA 08-1445 (Ark. App. 9/2/2009)

• Decision Date: 02 September 2009
• Docket Number: CA 08-1445
• Parties: Linda BURDICK Appellant, v. LITTLE SWITZERLAND REALTY, INC., Butch Atkinson, and Nancy Atkinson Appellees.
• Court: Arkansas Court of Appeals

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Linda BURDICK Appellant, v. LITTLE SWITZERLAND REALTY, INC., Butch Atkinson, and Nancy Atkinson Appellees.

CA 08-1445

Court of Appeals of Arkansas, Division IV

Opinion Delivered September 2, 2009.

Appeal from the Pulaski County Circuit Court, First Division, [No. CV2005-9029], Honorable Marion A. Humphrey, Judge.

Affirmed.

JOHN B. ROBBINS, Judge

Appellant Linda Burdick brought a lawsuit against appellees Little Switzerland Realty, Inc., and its owners Butch and Nancy Atkinson, alleging negligent maintenance on the grounds of Little Switzerland that resulted in Ms. Burdick falling down a hill and sustaining injuries. A jury trial was held, and during jury voir dire Ms. Burdick moved to strike three prospective jurors, Ms. Abbott, Ms. Fox, and Mr. Churchill, for cause. The trial court denied Ms. Burdick's request, and Ms. Burdick used all three of her allotted peremptory strikes to remove the objectionable jurors. At the conclusion of the jury trial, the jury returned a verdict in favor of the appellees, with eleven jurors signing the verdict form. The trial court subsequently entered a judgment dismissing appellant's claim with prejudice, and Ms. Burdick has timely appealed.

On appeal, Ms. Burdick raises one point. She argues that the trial court erred in denying her motion to strike the three prospective jurors for cause because the jurors were unable to state during voir dire that they would follow the trial court's instructions. We affirm.

The representations of the prospective jurors at issue in this case can be summarized as follows:

PROSPECTIVE JUROR MS. ABBOTT: If I hear from the witnesses and the evidentiary depositions and if I hear by a preponderance of the evidence that there is convincing force and it is more probably true and accurate that this defendant failed to use ordinary care, I can render a judgment in favor of Linda Burdick. I am married to a claims adjuster so, I hear a lot. He works with Safeco. If I hear the evidence that leads me to believe that the defendants in this hotel called Little Switzerland failed to exercise ordinary care, I could probably render a verdict and find them liable for the damages suffered as a result. I would probably begin my deliberations with a little bit of bias in favor of the defendant. I hope I would be able to set that aside in the event that I am chosen and make my decision based upon the evidence that I hear from that chair. I'm not completely certain. . . . If I'm fairly well convinced that they failed to exercise ordinary care, I would not feel uncomfortable having to explain my verdict with my husband.

PROSPECTIVE JUROR MS. FOX: I work for Farm Bureau. I would probably be biased on the defendant. I would hope that if the evidence presented to me convinces me that the defendants in this case failed to exercise ordinary care that I would be able to render a verdict in favor of the plaintiff, Linda Burdick. I feel like I could make a decision based on the evidence. If I'm fairly well convinced that they failed to exercise ordinary care, I would not feel uncomfortable having to explain my verdict when I met with the people I work with.

PROSPECTIVE JUROR MR. CHURCHILL: I'm fairly uncomfortable with the idea that if a defendant fails to exercise ordinary care and a plaintiff is hurt as a result, that Ms. Burdick ought to be able to get money damages as a result. If you prove in fact Little Switzerland did fail to exercise ordinary care, I would be able to set aside my feelings of uncomfortableness and render a verdict in favor of Ms. Burdick.. . . I think I can fairly and honestly evaluate the evidence before me today, but I'm in the construction business. So, I will probably see the other side. I am comfortable with the idea of exercising ordinary care to make sure that people are not hurt in the places where my company is working.

Ms. Burdick now argues that the three questionable prospective jurors should have been struck for cause pursuant to her request because they were unable to state with any certainty that they would be able to set aside their impartiality and decide the case based on the facts presented. Ms. Burdick cites Moran v. Clarke, 443 F.3d 646 (8th Cir. 2006), where the appeals court held that appellants must clear...