Harrison v. Woodley Square Apartments, Ltd.
Decision Date | 24 September 1982 |
Citation | 421 So.2d 101 |
Parties | Charles HARRISON v. WOODLEY SQUARE APARTMENTS, LTD., et al. 81-111. |
Court | Alabama Supreme Court |
Calvin M. Whitesell and Roger S. Morrow, Montgomery, for appellant.
Mark W. Lee and W.J. McDaniel of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellees.
This case arises from an adverse judgment against the plaintiff in a personal injury action involving an accident at an apartment complex's swimming pool. The appellant seeks to reverse the judgment on four issues: (1) that the prejudicial nature of defense counsel's remarks during closing argument, regarding the plaintiff's medical history, constituted reversible error; (2) that the defendant improperly made comments regarding the failure of a witness to testify; (3) that photographs the defendant offered were improperly admitted into evidence and (4) the photographs the plaintiff offered into evidence were improperly excluded.
The accident occurred at Woodley Square Apartments in Montgomery. The plaintiff, Charles Harrison, went to the apartment complex with some friends on the night of June 23, 1979. Mark Cannon, a resident at Woodley Square, invited Harrison and the others to the apartment complex. After arriving, the group decided to sit beside one of the complex's pools. The plaintiff decided to dive into the pool after asking Cannon if he could go swimming. When Harrison went into the pool, he mistakenly dove into the shallow end and suffered serious injury when he struck his head on the bottom of the pool. At trial, Harrison asserted that the defendant, Woodley Square Apartments, maintained inadequate lighting and insufficient depth markings around the swimming pool. The jury rendered a verdict in favor of the defendant and Harrison appealed.
During closing argument, the defendant referred to the plaintiff's medical history. The defendant incorrectly stated that on one occasion Harrison had been hospitalized for an overdose of "librium, codeine, cocaine, aspirin and Scotch combination." The plaintiff failed to object at that point in the defendant's argument. When the plaintiff incorrectly believed that the defendant had made another reference to cocaine an objection was made. The trial court acknowledged that an improper reference to cocaine had been made during defense counsel's argument, and in the jury's presence the following took place:
This Court clearly stated the rule regarding improper argument in Estis Trucking Co. v. Hammond, 387 So.2d 768 (Ala.1980). When an objection to improper argument is sustained and the trial court admonishes the jury:
Id. at 772. It is evident from the record that the trial court's ruling was not "unjust and plainly erroneous." Judge Hooper's instructions to the jury sufficiently erased any prejudicial effect the defendant's comments may have had, thereby nullifying any potential grounds for reversible error.
The second issue raised on appeal also focuses on the defendant's closing argument. A comment was made about Mark Cannon and his failure to testify at trial. The plaintiff objected on the grounds that any reference to a witness's failure to testify, when that witness is equally available to both parties, is improper. This Court recognized that general rule in City of Birmingham v. Levens, 241 Ala. 47, 52, 200 So. 888 (1941); C. Gamble McElroy's Alabama Evidence, § 191.01 (3d ed. 1977). Other decisions have defined when a witness is "equally available" or "equally accessible." 1
The fact that either party can subpoena a potential witness does not make that witness automatically "equally accessible." Donaldson v. Buck, 333 So.2d 786, 788 (Ala.1976). Cases exist where a potential witness favors one party over another. In Donaldson, the potential witness had filed his own suit against one of the parties. The potential witness was correctly not classified as "equally accessible." Id. at 789.
The Donaldson reasoning was recently applied in a decision involving a medical malpractice suit. In Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So.2d 254 (Ala.1982), the potential witness was a physician whose testimony would clearly be favorable to the defendants. This Court refused to find that the potential witness was "equally available." Justice Beatty wrote, Id. at 260.
Mark Cannon and the plaintiff were obviously friends in the present case. Cannon invited Harrison to come by the apartment complex. It is easy to infer that Cannon's testimony would favor the plaintiff. As we ruled in Otts, the trial court is in the best position to weigh a witness's "equal availability." Id. Thus, the trial...
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...cases exist where a potential witness favors one party over another and the witness is not "equally accessible." Harrison v. Woodley Square Apartments, 421 So.2d 101 (Ala.1982). Mr. Newton, in his closing argument, referred only to the failure of Johnny Allen to testify. Allen was the manag......
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...evidence offered or to be offered.' " Lewis v. State, 465 So.2d 1185, 1188 (Ala.Crim.App.1984); (quoting Harrison v. Woodley Square Apartments, 421 So.2d 101, 103-04 (Ala.1982)). See, C. Gamble, McElroy's Alabama Evidence, § 123.03(1) (4th ed. 1991). This photograph, taken in 1992 in an air......
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