Roberts v. Csx Transp., Inc., Record No. 090194.

CourtSupreme Court of Virginia
Citation688 S.E.2d 178,279 Va. 111
Docket NumberRecord No. 090194.
Decision Date15 January 2010

Philip S. Marstiller, Jr., Richmond, (William P. Hanson, Emroch & Kilduff, on briefs), for appellant.

E. Duncan Getchell, Jr. (Erin M. Sine, C. Stephen Setliff, Georgia S. Hamilton, McGuireWoods, Setliff & Holland, on brief), for appellee.

Present: All the Justices.


This appeal arises out of an action brought under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60 (2006 & Supp. I 2007), in which Scott Allen Roberts alleged that he suffered personal injury while working for CSX Transportation, Inc. (CSX). Following a two-day trial, a jury found that although Roberts sustained $280,000 in damages, he was ninety-five percent at fault for his injuries, and CSX was five percent at fault. In accordance with the jury verdict, the circuit court entered judgment in favor of Roberts in the amount of $14,000.00, plus interest and costs. Because the circuit court failed to strike for cause a potential juror who was a stockholder in CSX and thereby forced Roberts to use a peremptory challenge to remove that juror from the jury panel, we will reverse the circuit court's judgment.


Although Roberts prevailed at trial, he appeals from the circuit court's judgment, presenting two assignments of error both of which deal exclusively with objections raised during voir dire of the venire. The details of the evidence adduced at trial are not pertinent to the dispositive issue before us; therefore, we will recite only those facts relevant to that issue.

During the circuit court's voir dire of the venire regarding matters that might reveal a prospective juror's prejudice or bias, a potential juror, identified as Donald Kemp, stated that he had been a shareholder of CSX for "[p]robably 30 years." The court asked Kemp whether "being a stockholder with the corporation [would] have a bearing on [his] ability to be fair and impartial" and whether he "actively participate[d] in annual meetings." As to both questions, Kemp responded, "No."

Roberts moved that Kemp "be stricken for cause" because of his status as a long-time shareholder of CSX. CSX, however, urged the circuit court not to strike Kemp for cause, arguing that "he answered ... fairly quick[ly] and fairly candidly" that he could be fair and impartial. The circuit court overruled Roberts' motion, finding that Kemp "did answer very adamantly that he had no problems with being able to listen to facts and make a fair and impartial decision." Roberts later used one of his peremptory strikes to remove Kemp from the jury panel.

After trial, Roberts moved for a new trial on the ground, inter alia, that "the trial court's failure to strike juror Donald Kemp for cause ... is per se reversible error." The circuit court denied the motion and entered judgment in accordance with the jury verdict. This appeal ensued. In the dispositive assignment of error, Roberts claims that the circuit court "erred by failing to strike prospective juror, Donald Kemp, for cause as a 30-year stockholder in defendant CSX."


On appellate review, this Court gives deference to a trial court's decision whether to exclude a potential juror for cause. Green v. Commonwealth, 262 Va. 105, 115, 546 S.E.2d 446, 451 (2001). We defer "`[b]ecause the trial judge has the opportunity, which we lack, to observe and evaluate the apparent sincerity, conscientiousness, intelligence, and demeanor of prospective jurors first hand,'" Juniper v. Commonwealth, 271 Va. 362, 400, 626 S.E.2d 383 408 (2006) (citation omitted), and "`to determine whether a prospective juror's responses during voir dire indicate that the juror would be prevented from or impaired in performing the duties of a juror,'" Townsend v. Commonwealth, 270 Va. 325, 329, 619 S.E.2d 71, 73 (2005) (citation omitted). Thus, "a trial court's denial of a motion to strike a juror for cause `will not be disturbed on appeal unless there has been manifest error amounting to an abuse of discretion.'" Id. at 329-30, 619 S.E.2d at 73 (quoting Barrett v. Commonwealth, 262 Va. 823, 826, 553 S.E.2d 731, 732 (2001)); accord Cantrell v. Crews, 259 Va. 47, 50, 523 S.E.2d 502, 504 (2000).

"Parties to litigation are entitled to a fair and impartial trial by a jury of persons who `stand indifferent in the cause.' `The right to a fair and impartial trial in a civil case is as fundamental as it is in a criminal case.'" Cantrell, 259 Va. at 50, 523 S.E.2d at 503 (quoting Temple v. Moses, 175 Va. 320, 336, 8 S.E.2d 262, 268 (1940)) (internal citation omitted). To safeguard jury impartiality, the General Assembly has provided that "if it shall appear to the court that the juror does not stand indifferent in the cause, another shall be drawn or called and placed in his stead for the trial of that case." Code § 8.01-358. Thus, "[i]t is the duty of the trial court, through the legal machinery provided for that purpose, to procure an impartial jury to try every case." Salina v. Commonwealth, 217 Va. 92, 93, 225 S.E.2d 199, 200 (1976) (citing Slade v. Commonwealth, 155 Va. 1099, 1106, 156 S.E. 388, 391 (1931)).

A trial court must excuse for cause a potential juror who "`has any interest in the cause, or is related to either party, or has expressed or formed any opinion, or is sensible of any bias or prejudice'" regarding the action. Spangler v. Ashwell, 116 Va. 992, 996-97, 83 S.E. 930, 931 (1914) (citation omitted). Although this Court generally disfavors per se rules of juror disqualification "by reason of [the juror's] status alone," we have nevertheless established "limited categories" of per se disqualification. Townsend, 270 Va. at 331, 619 S.E.2d at 74 (citing examples of per se disqualification). One such category establishes "[t]hat a stockholder in a company which is party to a lawsuit is incompetent to sit as a juror" because such a person "could [not] be said to stand indifferent in the cause." Salina, 217 Va. at 93-94, 225 S.E.2d at 200-201; see Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976) (explaining Salina); accord Gladhill v. General Motors Corp., 743 F.2d 1049, 1050 (4th Cir.1984) ("`That a stockholder in a company which is party to a lawsuit is incompetent to sit as a juror is so well settled as to be black letter law.'") (quoting Chestnut v. Ford Motor Co., 445 F.2d 967, 971 (4th Cir. 1971)); Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 1122 (10th Cir.1995) (a trial court must presume bias when a prospective juror is a stockholder in a corporation that is a party to the action). And, it is immaterial whether a juror, who directly owns stock in a company that is a party to the lawsuit, is called to sit in a civil or criminal case; the per se disqualification remains.

In the criminal context, it is well-settled that a trial court commits "prejudicial error" if it "force[s] a defendant to use peremptory strikes to exclude a venire[person] from the jury panel if that person is not free from exception." Townsend, 270 Va. at 329, 619 S.E.2d at 73; accord Justus v. Commonwealth, 220 Va. 971, 975, 266 S.E.2d 87, 90 (1980); Breeden, 217 Va. at 300, 227 S.E.2d at 737; Dowdy v. Commonwealth, 50 Va. (9 Gratt.) 727, 737 (1852). We explained in Breeden that a defendant's use of a peremptory strike to remove a juror who is not free from exception was not harmless error because a defendant "has a right to an impartial jury drawn from `a panel [of twenty] free from exceptions.'" 217 Va. at 300, 227 S.E.2d at 736-37 (quoting former Code § 8-208.19 (Cum. Supp. 1976), now Code § 8.01-357). Today, we hold that it is likewise prejudicial error in the civil context when a trial court forces a party to use a peremptory strike afforded under Code § 8.01-359 to remove a venireperson who is not "free from exception" and should have been struck for cause. See Reff-Conlin's Inc. v. Fireman's Fund Ins. Co., 309 Mont. 142, 45 P.3d 863, 866-67 (2002) (prejudice as a matter of law results when a party is forced to use a peremptory challenge to remove a prospective juror who should have been excused for cause); Kusek v. Burlington N. R.R. Co., 4 Neb.App. 924, 552 N.W.2d 778, 783-84 (1996) (finding prejudicial error when a trial court refused to strike an ineligible venireperson, thereby forcing the challenging party to exercise a peremptory strike to remove the juror). But see Bethea v. Springhill Mem'l Hosp., 833 So.2d 1, 4-7 (Ala.2002) (applying a harmless error analysis to determine whether the failure to strike a venireperson for cause was erroneous when the challenged venireperson was peremptorily struck); State v. Hickman, 205 Ariz. 192, 68 P.3d 418, 419, 424 (2003) (same). The statutory right to have an impartial jury drawn from a "panel free from exceptions," Code § 8.01-357, is no less fundamental in a civil case than in a criminal case. See Cantrell, 259 Va. at 50, 523 S.E.2d at 503. In either instance, "a litigant is denied an opportunity to act on his or her intuitions and subjective feelings about venirepersons by having to prematurely exhaust his or her peremptory challenges to rid the panel of those who should have been struck as ineligible for implied bias." Kusek, 552 N.W.2d at 783-84.

Prospective juror Kemp directly owned stock in defendant CSX, thus rendering him not "indifferent in the cause" as a matter of law. See Salina, 217 Va. at 94, 225 S.E.2d at 201. That he sincerely maintained he could faithfully and impartially perform his duties as a juror is without import. A venireperson who cannot stand indifferent in the cause must be stricken despite any insistence as to impartiality, for "however willing [the juror might] be to trust himself, the law will not trust him." Armistead v. Commonwealth, 38 Va. (11 Leigh) 657, 695 (1841) (citing Osiander v. Commonwealth, 30 Va. (3 Leigh) 780 (1831)); accord Barrett, 262...

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