Rasmussen v. Sharapata, 930642-CA

• Decision Date: 04 May 1995
• Docket Number: No. 930642-CA,930642-CA
• Citation: 895 P.2d 391
• Parties: Colleen Stock RASMUSSEN, Plaintiff and Appellant, v. John Alan SHARAPATA, Defendant and Appellee.
• Court: Utah Court of Appeals

Page 391

895 P.2d 391

Colleen Stock RASMUSSEN, Plaintiff and Appellant, v. John Alan SHARAPATA, Defendant and Appellee.

No. 930642-CA.

Court of Appeals of Utah.

May 4, 1995.

Kevin J. Sutterfield and Phillip E. Lowry, Provo, for appellant.

Jeffery C. Peatross and David N. Mortensen, Provo, for appellee.

Before BILLINGS, JACKSON and WILKINS, JJ.

JACKSON, Judge:

Colleen Stock Rasmussen appeals from a jury verdict rejecting her personal injury claim against John Alan Sharapata. She also appeals the trial court's denial of her motions for judgment notwithstanding the verdict and for a new trial under Utah Rules of Civil Procedure 50 and 59 respectively. We affirm.

BACKGROUND

After dark on March 7, 1990, Rasmussen was riding her bicycle eastbound down a sloping street, when she saw a car driven by Sharapata move westbound into the left-turn lane in front of her. Rasmussen's bicycle was equipped with reflectors but did not have a headlamp as required by law. Sharapata turned left, proceeding toward a parking lot entrance on the south side of the street. As he entered the parking lot, Rasmussen struck his car. Rasmussen was injured in the accident and brought a negligence action against Sharapata, claiming he should have seen and avoided her.

At trial, the jury found that--although Sharapata was negligent--he was not the proximate cause of Rasmussen's injuries. On appeal, Rasmussen argues a variety of trial court errors prejudicially tainted the proceedings and wrongly resulted in a verdict against her.

ISSUES

We consider two issues raised by Rasmussen: (1) Should the trial court have granted Rasmussen's motion for a mistrial, based on a juror's delayed response to a voir dire question; and, (2) is the jury's "inconsistent" special verdict grounds for reversal? ¹

ANALYSIS

I. Delayed Voir Dire Response

Rasmussen argues the trial court should have granted her motion for a mistrial based on Juror Branscomb's delayed response to a voir dire question. At the beginning of the trial, Rasmussen submitted a list of questions to probe prospective jurors' attitudes about tort reform. In its voir dire of the jury panel, the court asked Rasmussen's questions, including Question 14: "What have you read in magazines or newspaper articles or other literature about tort reform or about a After impanelment, but before evidence was presented, the jurors were excused for lunch. During the lunch break, Branscomb remembered he had read a negative article in the Reader's Digest about the rising number of lawsuits and he notified the trial judge. Branscomb was invited, along with counsel for both Rasmussen and Sharapata, into the judge's chambers where the judge questioned Branscomb about the article and Branscomb's ability to be impartial. The judge also allowed counsel to question Branscomb. The transcript of the questioning reads:

                lawsuit crisis?"   Juror Branscomb did not indicate he had read tort reform literature and was eventually included as a jury member
                

The court: Previously I've indicated to the attorneys that you had called the clerk's office during the lunch break to advise them of your having recalled reading an article. Why don't you go ahead and recount for us what it is you've read and what your recollection is of what you read.

The juror: I just remember an article, I think, in the Reader's Digest in the last eighteen months, roughly. It seems like it was on ... the number of lawsuits. And it was a major--there was a major increase of lawsuits in the last few years. It was, of course, on the negative side of the number. That's about the gist of what I remember. As soon as I thought of that I called back on my car phone and I said I didn't think of that. And you asked something almost to that statement, anything of an article we might have seen. And I thought I better be calling you and letting you know. That's about all I remember.

The court: As a result of what you've read do you feel that it would have an influence upon your determinations in this case?

The juror: Oh, I don't think so. I don't remember enough of it to really give you any exacts about it. Obviously, it makes you stop and think a little bit, because that's what the article was about. But I don't think so.

The court: Do you feel that despite the fact that this article was couched in the negative, as you've indicated, adverse to lawsuits, that that means therefore that all lawsuits are barred?

The juror: No.

The court: And you in fact--I recall your indicating there was a collection matter, but you've used the court system yourself as a plaintiff?

The juror: Un-huh (indicating affirmative).

The court: Do you feel like you could disregard the article that you've read and try this case based solely upon the facts and evidence presented?

The juror: I feel I could.

The court: And that if the plaintiff is entitled to a verdict, that you could award her a fair verdict?

The juror: Yes.

The court: Any other questions you would like me to ask?

Mr. Peatross [Sharapata's counsel]: Only that if the juror feels the reverse of that is, of course, true, that he could be fair to both parties.

The court: If the evidence doesn't warrant finding a verdict for the plaintiff, do you feel you could find for the defendant?

The juror: Yes. My mother has had two car accidents in the last two years and she's back in North Carolina. I gave her the advice if the insurance company would not take care of her suitably for her car damage--two people were in it and her--and her medical damage, that she should seek counsel and go to court if necessary.

....

Mr. Sutterfield [Rasmussen's counsel]: Have you read any other articles than the Reader's Digest?

The juror: No.

Mr. Sutterfield: Do you have any personal views on the subject?

The juror: Umm, I--not that I can--I'm kind of in between. I mean I look at each situation on it's [sic] own merits.

After these exchanges, Sutterfield declared "the process has been tainted" and moved for Rasmussen asserts a mistrial should have been granted because she was denied the impartial, unbiased jury to which she is entitled by Utah law. See Utah Const. art. I, § 10; International Harvester Credit Corp. v. Pioneer Tractor & Implement, Inc., 626 P.2d 418, 421 (Utah 1981). Specifically, she contends (1) the trial court improperly conducted the post-impanelment questioning of Branscomb and (2) had Branscomb responded affirmatively to the tort reform question in the original voir dire, she would have used a peremptory challenge to strike him from the jury. "We will not overturn the trial court's decision to grant or deny a motion for a mistrial absent an abuse of discretion." State v. Swain, 835 P.2d 1009, 1010 (Utah App.1992); see also Watkins & Faber v. Whiteley, 592 P.2d 613, 616 (Utah 1979).

a mistrial based on the juror's responses. The trial court denied the motion and Branscomb served as a juror throughout the trial.

A. Post-impanelment questioning

Rasmussen argues the trial court improperly conducted the post-impanelment questioning of Branscomb by (1) asking "leading questions" to "rehabilitate" Branscomb, instead of to expose bias, and (2) not allowing Rasmussen to "formulate and ask questions that could reveal bias on Mr. Branscomb's part."

The law on voir dire of jury panels is instructive in helping us assess whether post-impanelment questioning of a juror was proper. The scope of such questioning "is a matter within the sound discretion of the trial court, and its rulings with respect thereto will not be disturbed on appeal absent a demonstrated abuse of discretion." Hornsby v. Corporation of the Presiding Bishop, 758 P.2d 929, 932 (Utah App.), cert. denied, 773 P.2d 45 (Utah 1988); see also Jenkins v. Parrish, 627 P.2d 533, 536 (Utah 1981) ("Due consideration should be given to the trial judge's somewhat advantaged position in determining which persons would be fair and impartial jurors...."); State v. Brooks, 868 P.2d 818, 822 (Utah App.) ("[O]nly the trial court knows when it is satisfied that a prospective juror is impartial."), cert. granted, 883 P.2d 1359 (Utah 1994). The abuse of discretion standard requires we find error "only when the record clearly indicates that the decision [regarding the scope of questioning] was unreasonable." State v. Saunders, 893 P.2d 584, 587 (Utah App.1995).

Voir dire of a jury panel serves two purposes: "1) to allow counsel to uncover biases of individual jurors sufficient to support a for-cause challenge and 2) to gather information enabling counsel to intelligently use peremptory challenges." Barrett v. Peterson, 868 P.2d 96, 98 (Utah App.1993). However, post-impanelment questioning of jurors serves only the first purpose. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984). We therefore address whether the post-impanelment questioning in this case exposed bias in Branscomb sufficient to dismiss him for cause.

Utah Rule of Civil Procedure 47(f)(6) allows for-cause challenges on the ground "[t]hat a state of mind exists on the part of the juror with reference to the cause, or to either party, which will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging." Thus, the trial court was required to elicit from Branscomb responses revealing whether his state of mind would lead him "to favor one party over another," Brooks, 868 P.2d at 825. Further, "[o]nly strong and deep impressions or opinions ... serve as a basis for removal for cause." State v. Young, 853 P.2d 327, 343 (Utah 1993).

The Utah Supreme Court guides our analysis:

In reviewing the trial court's decision to remove a juror for cause, this court should look at the whole voir dire exchange with the juror. If the juror's answers as a whole convey the impression of bias, then removal for cause is necessary. However, if the answers as a whole indicate that the juror is willing to listen and...