Walker v. Asbestos Abatement Services, Inc.
Decision Date | 18 March 1994 |
Citation | 639 So.2d 513 |
Parties | William Terry WALKER II and Donna Walker v. ASBESTOS ABATEMENT SERVICES, INC. 1921866. |
Court | Alabama Supreme Court |
Thomas W. Bowron II and Maury Weiner of Jones, Bowron & Selden, P.C., Birmingham, for appellants.
J. Russell Gibson III and Sandra C. Guin of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.
While William Terry Walker II was driving on a public highway in Tuscaloosa County, his motor vehicle collided with an air compressor that had been used in construction on that highway by Asbestos Abatement Services, Inc. ("AAS"). AAS was a subcontractor involved in the construction. Walker and his wife, Donna Walker, sued AAS, alleging that AAS had negligently or wantonly left the air compressor in the middle of the road. AAS, however, argued that the compressor was on the shoulder of the road, that it was clearly marked by barricades, and that Walker was driving on the shoulder when he hit the compressor. The jury returned a verdict in favor of AAS on all claims, and the trial court entered a judgment on that verdict. The trial court denied the Walkers' motion for a new trial. The Walkers appeal.
The dispositive issue on appeal is whether remarks made by AAS's counsel in closing argument were so prejudicial as to warrant reversal for a new trial. The remarks of which the Walkers complain were as follows:
The Walkers' counsel did not request a curative instruction and did not move for a mistrial.
The Walkers contend that defense counsel's reference to "your grandchild or your child," as to which the trial court sustained the objection, was an attempt to put the jurors in the place of the defendant and that the jurors were prejudiced by the remarks.
We first note that, where a party objects to improper argument and the trial court sustains the objection, in order to later appeal on the basis of the improper argument it is necessary that the party request a curative instruction from the trial court. Calvert & Marsh Coal Co. v. Pass, 393 So.2d 955 (Ala.1980). By seeking no curative instruction from the trial court after the court has sustained his objection to closing argument, a party indicates satisfaction with the ruling; that party cannot later complain of the trial court's failure to do what it was not asked to do. CSX Transportation, Inc. v. Day, 613 So.2d 883 (Ala.1993). However, this Court has recognized an exception "where the argument is so...
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