Hood v. McElroy, 1091075

CourtSupreme Court of Alabama
Writing for the CourtPER CURIAM
PartiesJo Ann Hood v. Elizabeth McElroy, as personal representative of the estate of Austin Taylor Terry, deceased
Decision Date30 September 2011
Docket Number1091075

Jo Ann Hood
Elizabeth McElroy, as personal representative of the estate of Austin Taylor Terry, deceased



Filed: September 30, 2011

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Jefferson Circuit Court, Bessemer Division


The defendant, Jo Ann Hood, appeals from the trial court's order granting a motion for a new trial filed by the plaintiff, Elizabeth McElroy, as personal representative of

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the estate of Austin Taylor Terry, deceased ("the estate"). We reverse and remand.

I. Factual Background and Procedural History

On September 6, 2002, the mother of Austin Taylor Terry, who was then 12 months old, admitted him to the Children's Hospital of Alabama. A social worker at the hospital notified the Jefferson County Department of Human Resources ("DHR") that Terry had suffered "suspicious non-accidental injuries," designated the case as one that required an "immediate" response, and reported to Yvonne Summerlin, a service supervisor at DHR, that she suspected child abuse and neglect and that Terry should not be allowed to return home with his mother until DHR could conduct an investigation. Terry's father, who was divorced from Terry's mother, also contacted DHR after he learned of his son's hospitalization. He spoke with Tammie Godfrey, an after-hours on-call DHR service worker, who met with Terry's father and mother at the hospital and learned that Chris Wesson, the mother's boyfriend, had been in the house with Terry on September 6. Godfrey recommended that Terry not be allowed to return home when he

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was discharged from the hospital and submitted her findings to DHR in a report.

On Monday, September 9, Summerlin, who had not seen Godfrey's report, assigned Hood to investigate Terry's suspected abuse and informed Children's Hospital that Terry could go home with his mother when he was discharged. On September 10, Hood visited Terry and his mother at their house. Wesson was there at the time of Hood's visit. Hood interviewed Terry's mother and Wesson and also telephoned Martha Musso, Terry's great-grandmother. Based on her initial investigation, Hood determined that it was safe to leave Terry in his mother's care. On November 3, 2002, Terry died from brain injuries caused by blows to his head inflicted by Wesson.

Both of Terry's parents filed separate wrongful-death actions. Terry's father was substituted as the plaintiff in the mother's action and his separate action was dismissed. Doris Williford, the Jefferson County administrator, was later substituted as the plaintiff in her capacity as the personal representative of the estate. The wrongful-death action named as defendants Wesson, Children's Hospital, Hood, and other DHR

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social workers. Williford served as the plaintiff in this case until her death on December 9, 2009. On December 17, 2009, the Jefferson Probate Court appointed Elizabeth McElroy as the new county administrator. On May 14, 2010, counsel for the estate filed in the trial court a motion to substitute McElroy as its personal representative. On May 17, 2010, the trial court entered an order substituting Elizabeth McElroy, as the personal representative of the estate, as the plaintiff in this case. The claims against all the defendants except Wesson and Hood were disposed of before trial. See Ex parte Children's Hosp. of Alabama, 931 So. 2d 1 (Ala. 2005), and Ex parte Summerlin, 26 So. 3d 1178 (Ala. 2009), for additional factual background.

The estate proceeded to trial against Wesson, who is currently serving a 20-year prison sentence for manslaughter as a result of Terry's death, and Hood. The jury returned a verdict in favor of the estate and awarded $25,000 in damages against Wesson and Hood. The estate filed a motion for a new trial, arguing that the jury considered extraneous prejudicial information in its deliberations, that the jury's award represented an improper apportionment of damages among

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tortfeasors, that the jury entered an improper quotient verdict, that the damages award was inadequate, that a juror's failure to respond to a voir dire question prevented the estate from using its jury strikes effectively because it would have used a peremptory strike to remove the juror had the juror answered the question, and that the cumulative effect of all the grounds for a new trial were such that the ends of justice would be served by granting the estate a new trial. After Hood filed her opposition to the estate's postjudgment motion and the trial court held a hearing, the trial court granted the motion on the ground that the estate was probably prejudiced in its right to a fair and impartial trial as a result of the juror's failure to respond to the voir dire question. Hood appealed.

II. Standard of Review

In reviewing a trial court's order granting a motion for a new trial based on a juror's failure to answer a question truthfully during voir dire, this Court must ascertain whether the trial court exceeded its discretion in granting the motion.

"'The proper inquiry on a motion for a new trial based on improper or nonexistent

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responses to voir dire questions is whether the response, or the lack of response, resulted in probable prejudice to the movant. Freeman v. Hall, 286 Ala. 161, 238 So. 2d 330 (1970). Not every failure of a prospective juror to respond correctly to a voir dire question will entitle the losing party to a new trial. Wallace v. Campbell, 475 So. 2d 521 (Ala. 1985).
"'The determination of whether the complaining party was prejudiced by a juror's failure to answer voir dire questions is a matter within the discretion of the trial court and will not be reversed unless the court has abused its discretion. Freeman, supra.'
"Union Mortgage Co. v. Barlow, 595 So. 2d 1335, 1342 (Ala. 1992). Questions of law and the application of the law to the facts presented are to be reviewed de novo. Allstate Ins. Co. v. Skelton, 675 So. 2d 377, 379 (Ala. 1996)."

Holly v. Huntsville Hosp., 925 So. 2d 160, 162-63 (Ala. 2005).

III. Analysis

As the estate began its voir dire examination of the jury, the following colloquy occurred between counsel for the estate and the venire:

"[COUNSEL]: Now, what I want to tell you where you will understand my questions to you is that the DHR is the Department of Human Resources, which is an agency of the State of Alabama. Does everybody know what DHR is? Anybody not know what DHR is? And does everybody realize that the DHR's responsibility to every citizen in the State of Alabama, Jefferson County, is to protect children from abuse? Everybody

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know that? That their responsibility through policies, procedures, customs, practices is to protect our children from abuse. We all understand that; is that correct?
"And what the case is about is that in this case we have charged Jo Ann Hood Langford, who at that time--you have to keep focused on the name Jo Ann Hood because that is what is going to be in the record, but Jo Ann Hood Langford had the responsibility for the DHR to protect, investigate, and determine the appropriate measures to protect this 14-month-old baby from being beaten to death. Okay.
"Now, there were policies and procedures in place to have protected this baby, and our allegations are had she done her job, that 14-[month-]old baby would now be about six years old and not dead. Now, I want to tell you, those are allegations. Okay. But I tell you that because that's why I'm going to ask you some questions that are sensitive, and the first question I want to ask everybody [is] how many of you have children? Hold your hands up. Anybody does not have children? Okay. How many of you have grandchildren? How many of you have ever been defendants in a lawsuit? Had somebody sue you for personal injuries? And I'm not talking about a case like this. It could have been a car wreck. Yes? And I'm sorry, let me explain something. If y'all don't mind when I ask you questions, if you would stand up and say your name because the court reporter needs to get it, and I'm not holding my piece of paper that says where you are sitting.
"THE JUROR [D.O.]: The description or what do you need beyond that?
"[COUNSEL]: I just need to ask you were you the defendant in the case?

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"THE JUROR: Well, my company. I'm in the trucking business, and my company was.
"[COUNSEL]: [Juror D.O.], being in the trucking business, and I imagine that you have to protect yourself from liability, and you have to have things in place to protect yourself from liability, and from time to time you have been sued, correct, or somebody has made a claim against you?
"THE JUROR: Yes, sir.
"[COUNSEL]: And what I want to ask you about is that business that you are in, and the experiences that you have had and the litigations that you have had to go through, does that make you feel like you would lean toward one side or the other, that you would lean toward the defendants because of maybe your own frustration with being in litigation?
"THE JUROR: Well, I would hope not. I would hope not because I guess I have only been to trial one time, and

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