Jimmy Day Plumbing & Heating, Inc. v. Smith

• Decision Date: 09 March 2007
• Docket Number: 1051115.
• Citation: 964 So.2d 1
• Parties: JIMMY DAY PLUMBING & HEATING, INC. v. Brian SMITH.
• Court: Alabama Supreme Court

964 So.2d 1

JIMMY DAY PLUMBING & HEATING, INC. v. Brian SMITH.

1051115.

Supreme Court of Alabama.

March 9, 2007.

Christopher J. Zulanas and Michael J. Douglas of Friedman, Leak, Dazzio, Zulanas & Bowling, P.C., Birmingham; and Robert G. Boliek, Jr., Birmingham, for appellant.

Frank H. Hawthorne, Jr., and Randy Myers of Hawthorne & Myers, LLC, Montgomery, for appellee.

Robert A. Huffaker and T. Grant Sexton, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amici curiae American Institute of Architects (Montgomery Chapter), Associated General Contractors, and Associated Builders and Contractors, in support of the appellant.

WOODALL, Justice.

Jimmy Day Plumbing & Heating, Inc. ("Day"), appeals from a judgment for Brian Smith in Smith's personal-injury action against Day. We affirm.

This case arises from a motor-vehicle accident that occurred on April 18, 2003. On that date, Smith, who was then 21 years old, was operating a motorcycle on a public road. Alan Nelson, who was driving a pickup truck in the line and scope of his employment with Day, entered that roadway from a driveway and failed to yield the right-of-way to Smith's motorcycle as it approached the driveway. Nelson claimed that as he approached the roadway from the driveway his vision was obscured by a tree and that Smith was traveling at a high rate of speed. As the result of Nelson's failure to yield the right-of-way, the motorcycle and the truck collided, causing Smith to suffer serious and permanent injuries.

Smith sued Day in the Montgomery Circuit Court. In March 2006, a jury returned a verdict for Smith, awarding him compensatory damages of $1.5 million. Day filed postjudgment motions, which the trial court denied, and Day appealed. On appeal, Day contends that it is entitled to a new trial, or, in the alternative, a substantial remittitur. We disagree.

I.

First, Day alleges that a juror's "failure to disclose his prior similar lawsuit resulted in probable prejudice to [it], requiring a new trial." Day's brief, at 18. The juror Day refers to is T.C. Before voir dire examination, T.C. completed a juror questionnaire, indicating in response to one of the questions that he had never sued anyone. During voir dire, the prospective jurors were asked whether any of them had ever filed a lawsuit, and T.C. remained silent. T.C. served on the jury that returned the verdict for Smith.

After the verdict was returned, Day filed a motion for a new trial based, in pertinent part, on T.C.'s failure to disclose the fact that he had filed a lawsuit. Attached to the motion was a copy of a complaint filed by T.C. in the Montgomery Circuit Court on November 18, 1997. In the complaint, T.C. sought damages for injuries allegedly resulting from an accident that occurred on July 31, 1997. According to the complaint, T.C. "was riding a bicycle ... when he was struck by a vehicle driven by the [defendant]." Also attached to the motion for a new trial was a copy of the jury verdict returned in T.C.'s case on July 16, 2001, awarding T.C. damages in the amount of $2,800.

Included with Day's motion for a new trial was a copy of the traffic-accident report regarding the accident in which T.C. had been involved on July 31, 1997. According to the report, T.C.'s bicycle was struck by an automobile as the driver of the automobile pulled away from a stop sign and approached the edge of the intersecting highway. The report indicates that both T.C., who appears to have been traveling on a sidewalk, and the automobile, which had not yet entered the intersection, were traveling at approximately two miles per hour. Further, the report shows that T.C.'s bicycle was not disabled and that T.C. suffered no visible injury. However, according to the report, T.C. complained of pain and was taken to a hospital in a private vehicle.

The trial court denied Day's motion for a new trial. Unless we conclude that the trial court exceeded the broad scope of its discretion in denying Day's motion, we must affirm.

"`While we agree ... that a juror's silence during voir dire could be a basis for granting a new trial, we must stress that the initial decision on this issue is within the trial court's sound discretion. Hayes v. Boykin, 271 Ala. 588, 126 So.2d 91 (1960). Further, the trial court's decision on this matter will not be disturbed on appeal unless the appellant establishes that the decision was arbitrarily entered into or was clearly erroneous.'

"Carter v. Henderson, 598 So.2d 1350, 1354 (Ala.1992).

"`The proper inquiry on a motion for a new trial based on improper or nonexistent 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)."

Holly v. Huntsville Hosp., 925 So.2d 160, 162 (Ala.2005). Our review is limited, because "[t]he trial court is in the best position to determine whether there was probable prejudice as a result of a juror's failure to respond to questions during voir dire." Land & Assocs., Inc. v. Simmons, 562 So.2d 140, 149 (Ala.1989).

In determining whether a juror's silence resulted in probable prejudice to the movant, the trial court is entitled to consider a broad range of factors.

"Although the factors upon which the trial court's determination of prejudice is made must necessarily vary from case to case, some of the factors which other courts have considered pertinent are: temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror's inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about."

Freeman v. Hall, 286 Ala. 161, 167, 238 So.2d 330, 336 (1970). As Day correctly notes, "[t]he Freeman factors have never been presented as either an exclusive or mandatory list." Day's brief, at 23.

In the context of a juror's failure to disclose requested information, "a material fact [is] `"one which an attorney[,] acting as a reasonably competent attorney, would consider important in making the decision whether or not to excuse a prospective juror."'" Conference America, Inc. v. Telecommunications Coop. Network, Inc., 885 So.2d 772, 777 (Ala.2003)(quoting Gold Kist v. Brown, 495 So.2d 540, 545 (Ala.1986)). In considering the materiality of a fact, the court may consider "the obvious tendency of the true facts to bias the juror," as well as "direct testimony of trial counsel that the true facts would have prompted a challenge against the juror." Ex parte Dobyne, 805 So.2d 763, 773 (Ala.2001).

Day argues that "what is perhaps the most crucial Freeman factor—materiality—was established without doubt." Day's brief, at 20. We disagree.

According to Day, "the existence of [T.C.'s] prior lawsuit establishes an `obvious tendency of the true facts to bias the juror.'" This is so, according to Day, because T.C.'s "lawsuit . . . involved facts that were strikingly similar to the instant case." Day's brief, at 22 (emphasis added). However, the trial court, acting within its discretion, could have concluded that Day had not offered convincing evidence in support of these allegations.

It is true that T.C., like Smith, was struck by a vehicle that was entering a roadway from a side street. Day argues that "[the officer's accident-report diagram] also shows that the car in [T.C.'s] case would have emerged from the intersecting street from behind a vision obstruction—a hedgerow—at the time it collided with [T.C.'s] bicycle, just as it [was] alleged here that a tree also had obscured [Nelson's] vision." Day's brief, at 22. However, this argument is purely speculative. Although the diagram of T.C.'s accident reveals the presence of a hedgerow, its dimensions are not indicated, and there is no factual basis for a reasonable inference that the hedgerow actually, or even allegedly, obstructed the view of the operator of the vehicle that struck T.C.'s bicycle.

Day also argues:

"No reasonable lawyer would have allowed [T.C.] to sit as a juror hearing an automobile accident case involving an intersection collision with a motorcycle when [T.C.] previously had been the plaintiff in an automobile accident case involving an intersection collision with a bicycle—especially in view of the fact that the jury in [T.C.'s] case was not particularly generous, allowing for only $2,800 in damages. Given these facts, any reasonable lawyer would have had to regard juror [T.C.] as particularly susceptible to an exaggerated sympathy for plaintiff Brian Smith's case, not to mention outright bias. Indeed, any reasonable lawyer would have had to consider whether [T.C.] suffered from some hidden resentment resulting from the limited award he received, a resentment that would incline him to `right the wrong' by making sure that Smith obtained a more generous recovery in the instant case."

Day's brief, at 22-23. The trial court, acting within its discretion, could have concluded that arguments such as these are rankly speculative and overlook substantial differences between T.C.'s accident and Smith's accident.

As previously stated, the accident report indicated that T.C. suffered no visible injury as a result of the accident. Day offered no evidence concerning T.C.'s injuries and the damages he sought; therefore, there is no factual basis for Day's allegation that "the jury in [T.C.'s] case was not particularly...