West v. National R.R. Passenger Corp.

• Decision Date: 23 June 2004
• Docket Number: No. 2003-CA-1707.,2003-CA-1707.
• Citation: 879 So.2d 327
• Parties: Barbara WEST v. NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a Amtrak.
• Court: Louisiana Supreme Court

879 So.2d 327

Barbara WEST v. NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a Amtrak.

No. 2003-CA-1707.

Court of Appeal of Louisiana, Fourth Circuit.

June 23, 2004.

Appeal from the Civil District Court, Orleans Parish, No. 99-14106, C. Hunter King, J.

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James R. Dugan II, David L. Browne Dugan & Browne, A PLC, Metairie, LA, for Plaintiff/Appellant.

Dow Michael Edwards, Timothy F. Daniels, Lemle & Kelleher, L.L.P., New Orleans, LA, for Defendant/Appellee.

(Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR., Judge LEON A. CANNIZZARO JR.).

JAMES F. McKAY III, Judge.

The plaintiff, Barbara West, appeals the trial court's judgment finding that the plaintiff failed to establish that the defendant, National Railroad Passenger Corporation, d/b/a Amtrak was negligent.

The instant suit was filed alleging that Amtrak was negligent and caused an unreasonably dangerous working condition, which resulted in the plaintiff's injury. The alleged injury occurred while she was employed at the Union Passenger Terminal in New Orleans with Amtrak.¹ The plaintiff asserts that the injury occurred during the course and within the scope of her employment as a coach cleaner. She was turning passenger seat No.17/18² in car No.34019, when it suddenly shifted and broke off of its pedestal before it reached its locked position. This caused the seat to rock back and forth causing her body to twist and resulting in injuries to her neck and shoulders.

After a trial on the merits the jury returned a verdict in favor of Amtrak finding that the evidence did not support a finding of negligence against Amtrak. The trial court rendered judgment in accordance with the jury verdict. The plaintiff's post verdict motion for new trial was denied.

In the plaintiff's first assignment of error, she argues that there was a trial procedural error that occurred during jury deliberations, specifically, the trial court's failure to return the jury to the courtroom as dictated by La. C.C.P. art. 1796³. In conjunction with this issue, the plaintiff argues that the trial court failed to properly clarify the jury's question concerning the definition of negligence, thereby affecting the outcome of the jury verdict. The plaintiff asserts that during the course of deliberation the jury sent a hand written note to the trial court with a question concerning the definition of negligence. At that point the trial court summoned the parties to the courtroom and read the jury's note into the record. The jury question was "may we please have the definition of negligence?." The trial court addressed this question as follows:

THE COURT:

My statement is going to be—I'm not going to give them a page, I'm just going to tell them to re-read the closing instructions. I'm not going to say re-read, because they haven't read it yet.

MR. SADIN [Ms. West's trial counsel]:

They don't have the instructions yet?

THE COURT:

They do.

THE CLERK:

Yes.

THE COURT:

Where is the one they had?

THE CLERK:

I gave it to Stan [the trial court's crier].

THE CLERK:

The ones you told us to update, I gave him a copy.

THE COURT:

And where is the one that you had? I want it. Go get it.

THE CLERK:

Okay.

THE COURT:

Go get it and say, Stan, where is the one that the Judge gave you? Put it in my hand so I can bring it back upstairs, so there will be no misunderstanding or confusion.

Hold on so I can give you this. And I'll date it and sign it. All right. Just bring back up that document.

That's it.

The plaintiff argues that it is unknown what actual communication transpired between the court crier or clerk and the jurors when he was delivering the document. The plaintiff also argues that the precise document given to the jury during their deliberations is indiscernible from the record. Furthermore, the court's closing instructions were not transcribed by the court reporter and are not found anywhere in the record although there is a reference to the instructions having been given. Finally, the plaintiff argues that the trial court failed to return the jurors to the courtroom for re-instruction which runs contrary to the mandates of La. C.C. P. art. 1796(A).

Conversely, the defendant argues that the trial court conducted an in depth and thorough jury charge conference, where the parties accepted the proposed closing instructions without objection.⁴ Prior to sending the jury to the deliberation room the trial court instructed the jury as follows:

All right. You have already something to write with and something to write on. If you have any questions, you don't talk to Mr. Jolly. You write it down and you knock on the door, he'll be sitting right outside. You pass the note to Mr. Jolly and then he will bring it to the Judge, and then I will, along with the lawyers attempt to answer any questions, if any.

...

This is the jury interrogatories which I'm going to send with you. This is the closing instruction which I'm going to send with you. Mr. Jolly give that to the jury—not right now—when they are going into the deliberation room.

The defendant further asserts that the trial court informed the parties that he would write a note to the jury advising them to read the closing instructions, and that the trial court signed and dated that note in the presence of both parties. The defendant also maintains that there were no objections by either side concerning this procedure. The defendant contends that the trial court's response which was, "Just bring back up that document. That's it." specifically indicates that there was to be no verbal communication with the jury.

The result was that the jury continued to deliberate for less than an hour and returned a unanimous verdict finding that Amtrak was not negligent.

No objections to the above described proceedings were made by either party. The right to attack on appeal an allegedly improper instruction given after that case has been submitted to the jury must be preserved by an objection made at the time the supplemental instruction is given. Berrera v. Hyundai Motor America Corp., 92-2108, (La.App. 4 Cir.1993), 620 So.2d 890, 893. The plaintiff, in the instant matter, did not object to the trial court's decision to refrain from giving additional instructions to the jury, nor did she raise the alleged ex parte communication at the time of the communication with the jury or even at the hearing on the motion for new trial. In fact the plaintiff only raises this issue on appeal with this Court. In Berrera, this Court stated:

The policy considerations underlying these rules are obvious. As the court stated in Renz,⁵ "Counsel may not permit or acquiesce in an easily corrected procedural error and then, after an adverse verdict, urge such error for the first as a ground for setting aside a jury verdict reached by the expensive and cumbersome method of a jury trial."

Id.

In the absence of any record or objection concerning the procedural irregularity, no error, if there was any, was preserved on the record for appeal. Furthermore, although La. C.C.P. art. 1796 explicitly says that the jury shall be returned to the courtroom that statement is specifically to address an additional instruction issue. We are not convinced that this particular instance involves an additional instruction but merely a clarification of instructions already given to the jurors without objection. Nevertheless, we find that without the plaintiff's objection being lodged into the record it may not be reviewed on appeal. Therefore, plaintiff's argument is without merit.

In plaintiff's second assignment of error, she asserts that the trial court improperly denied her motion for a new trial based on the misconduct of an official of the court and further that the jury verdict was contrary to the law and evidence presented at trial.

Specifically, the plaintiff argues that the trial court clerk's ex parte communications with the jury, as per the trial court's order, constitutes grounds for a new trial. We disagree based on the jurisprudence cited above in Berrera and note the plaintiff's failure to timely object to the trial procedure.

In specific reference to the plaintiff's motion for a new trial, La. C.C.P. art.1973 provides that "[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law." La. C.C.P. art.1972 (3) provides that: "A new trial shall be granted, upon contradictory motion of any party in the following cases: (3) When the jury was bribed or has behaved improperly so that impartial justice has not been done." Though the grant or denial of a motion for a new trial rests within the discretion of the trial judge, the reviewing court must still evaluate the trial court's decision under an abuse of discretion standard of review. Uriegas v. Gainsco, 94-1400 (La. App. 3 Cir. 9/13/95), 663 So.2d 162, 170. Improper behavior by a juror or jury is not defined; therefore, the facts and circumstances of each particular case must be reviewed to determine whether said behavior was improper, and the trial courts as well as the reviewing courts must not overlook the behavior as being insignificant. Id.; cf. Zatarain v. WDSU-Television, Inc., 95-2600 (La.App. 4 Cir. 4/24/96), 673 So.2d 1181. A new trial is mandated only upon a showing of jury misconduct which is of such a grievous nature as to preclude the impartial administration of justice. Bossier v. DeSoto General Hosp., 442 So.2d 485, 493 (La.App. 2d Cir.1983). Otherwise, the granting of a new trial is left to the sound discretion of the trial court. Id. Not every instance of jury misconduct necessitates the granting of a new trial. Gormley v. Grand Lodge of State of La., 503 So.2d 181, 186 (La.App. 4 Cir.1987). The burden falls upon the one who is moving for a mistrial to prove that the level of the behavior was of such a grievous nature as to preclude the impartial administration of justice. Brown v. Hudson, 96-2087 (...