Summary
In O'Hair, a Kentucky regulation adopted the code expressly for the purpose of establishing a building safety standard, rather than, as one might analogize to the case at bar, a guide to qualifying building permit inspectors.
Summary of this case from Dortch v. FowlerOpinion
No. 2004-CA-002481-MR.
August 18, 2006.
Appeal from Powell Circuit Court Honorable Beth Lewis Maze, Special Judge, Action No. 00-CI-00200.
David R. Marshall, Lexington, Kentucky, Brief for Appellant.
R. Craig Reinhardt, Katherine J. Hornback Lexington, Kentucky, Brief for Appellee.
OPINION
This is an appeal from a judgment pursuant to a jury verdict in a wrongful death case finding that the owner of a funeral home was not liable for the decedent's fall down the stairs of the funeral home. Regarding appellant's claim that the trial court erroneously failed to strike three potential jurors for cause, we adjudge that, while the court erred in failing to strike two of the potential jurors, said error was harmless since peremptory strikes were used to excuse the jurors, thus, they did not serve on the jury. The third juror was properly allowed to serve on the jury. We reject appellant's arguments that causation was to be presumed because it was a negligence per se case and there was no other evidence of the cause of the fall other than the code violations. And, finally, we believe the trial court properly allowed in evidence that the decedent's wife was continuing to receive income from certain rental properties. Accordingly, we affirm.
On May 22, 2000, Jerry O'Hair and his father, Taylor O'Hair, went to Wells Funeral Home to pay their respects to a deceased friend. As Jerry O'Hair was leading his father to the room where the visitation was, Jerry stated, "This way Daddy." Jerry then opened the door that swung out over an unlit stairwell leading to a basement smoking/coffee lounge. According to the testimony of Taylor, who was the sole witness, Jerry thereupon stepped into the unlit stairwell, which had no landing, and fell down the stairs. Jerry sustained a traumatic brain injury in the fall and died the next day.
On August 7, 2000, Jerry's wife, Maxine O'Hair, executrix of Jerry's estate, brought a wrongful death action against Carl Wells, the owner of Wells Funeral Home, alleging negligence per se and premises liability. Initially, summary judgment was entered in favor of Maxine. However, that order was vacated and the judge on the case, Larry Miller, thereafter recused because counsel for Wells had been the judge's campaign treasurer. The case was then assigned to Special Judge Beth Lewis Maze. The motions for summary judgment were then re-submitted before Judge Maze, and summary judgment was granted in favor of Wells. On a motion to alter, amend or vacate, the judge subsequently vacated the ruling when both parties agreed that the basis of the court's ruling, that the door to the stairwell swung inward, was incorrect. On August 2, 2002, the court again granted summary judgment for Wells, based on the finding that Jerry's own negligence, "proceeding into darkness," was the sole cause of the fall. Maxine appealed the judgment to this Court.
On October 3, 2003, this Court rendered an opinion reversing and remanding. The Court adjudged that the safety code violations constituted negligence per se and remanded the case for a jury determination on causation. The relevant portion of this Court's opinion is as follows:
We have examined the record and find that the record establishes a sufficient issue of material fact to defeat the motion for summary judgment. The condition of the funeral home, whether in violation of any safety codes or not, is such that a jury could find negligence by Wells which was a substantial factor in causing Jerry's death.
In addition, the Life Safety Code incorporated by reference into 815 KAR 10:060(9), although couched in terms of fire safety, applies with equal force to non-fire situations, dicta inRogers v. Redmond, Ky.App., 727 S.W.2d 874 (1987), notwithstanding. Wells has not cross-appealed from the finding of the trial court that the door constituted a violation of the applicable codes. The regulations/codes were promulgated to prevent the type incident that happened here, as well as to protect fire evacuees and persons ascending sets of stairs. The violation is therefore negligence per se, and the jury should be allowed to determine if that negligence was a substantial factor in causing Jerry's death. The jury may also, of course, consider Jerry's conduct and its effect, if any upon the accident.
On remand, the case was submitted to a jury to determine if any of the safety code violations were a substantial factor in causing Jerry's fall. By a verdict of 10 out of 12 jurors, the jury found that the violations of the Life Safety Code with respect to the absence of a landing at the top of the stairwell and the absence of rails on both sides of the stairwell were not a substantial factor in causing Jerry's injuries. By unanimous verdict, the jury found that Wells did not fail in its duty to keep the area in which Jerry fell in a reasonably safe condition in accordance with the Life Safety Code. From the judgment entered in favor of Wells, Maxine now appeals.
Maxine's first argument is that the trial court erred in failing to strike three prospective jurors for cause. Maxine used peremptory challenges to strike two of the jurors, and the third served on the jury.
The first prospective juror Maxine wanted to strike was Wilson Hampton, who ultimately served on the jury. Maxine alleged Hampton was biased because he was friends with Carl Wells and had done business with Wells. Hampton stated during voir dire that he was friends with Wells and had bought headstones from him, including one for his wife in 2001. Hampton stated, however, that he was not a close friend of Wells and did not socialize with Wells. When asked if he thought he could be fair and impartial and make a decision on the case based solely on the evidence and the law, Hampton replied, "Well, I think I could, yeah, I think so." When the court pressed Hampton on whether he would rule just on the facts and the law, Hampton responded that he would.
Whether or not a juror should be stricken for cause is within the sound discretion of the trial court, and an appellate court will not reverse the trial court's decision absent an abuse of that discretion. Maxie v. Commonwealth, 82 S.W.3d 860 (Ky. 2002). Once a close relationship, either familial, financial, or situational, with any of the parties is established, the court should sustain a challenge for cause regardless of protestations of lack of bias. Ward v. Commonwealth, 695 S.W.2d 404 (Ky. 1985). However, a prospective juror is not automatically disqualified merely because he is acquainted with one of the parties. Maxie, 82 S.W.3d at 862. So long as reasonable grounds exist to believe the juror can render a fair and impartial verdict based solely on the evidence, the juror is qualified to sit on a case. Id. Juror bias "does not encompass a mere social acquaintanceship in the absence of other indicia of a relationship so close as to indicate the probability of partiality." Sholler v. Commonwealth, 969 S.W.2d 706, 709 (Ky. 1998). In Sanders v. Commonwealth, 801 S.W.2d 665, 670 (Ky. 1990), cert. denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76 (1991), it was held that a casual business relationship between the prospective juror and one of the victims did not compel a presumption of bias.
In the instant case, it was established that Hampton was not a close friend of Wells and that he had only a casual business relationship with him, buying headstones from him on occasion. We do not believe the trial court abused its discretion in not striking Hampton for cause.
The next juror challenged by Maxine was Russell Strange. Maxine used a peremptory strike to excuse Strange. When asked on voir dire if he was a close personal friend of Carl Wells, Strange responded that he was. Strange stated that he has known Wells since 1961 and likes him very much. He explained that they were in the Lions Club together and they would see each other once or twice a month. He also stated that he had been to Wells' house two times and that his wife had worked for Wells hanging wallpaper in his house around 15 years ago. Finally, Strange stated that Wells had provided funeral services for his family, most recently four or five years ago. Strange assured the court, however, that he could be fair and impartial in the case and that he would not let his friendship with Wells affect his consideration of the evidence.
With Strange's admission that he is a close personal friend of Wells, that they are in a social club together and that he likes Wells very much, we believe the trial court abused its discretion in failing to strike Strange for cause. Given the fact that Strange considered Wells a close personal friend, bias must be implied, despite Strange's contention that he could be impartial.See Ward, 695 S.W.2d 404.
The last juror challenged by Maxine was Kenneth Hall. A peremptory challenge was used by Maxine to strike Hall when the trial court would not strike him for cause. Hall stated on voir dire that he had been up and down the stairs at Wells Funeral Home lots of times, most recently a year ago. When asked if he had successfully navigated the stairs, Hall responded, "I have been able to travel them up and down without getting hurt — yes." When asked if he had formed an opinion about the safety of the stairs, Hall answered, "Well, you know, I have — I figured they were safe. I never had no problems getting up and down them." Hall stated, however, that he would decide the case solely on the evidence and would disregard outside knowledge of the case. Hall also admitted that he had heard "ordinary talk" about the case, had read the article in the newspaper about the case, had known Wells for 20 years, and had done business with Wells when he buried his mother 7 years ago.
It is not required that jurors be totally ignorant of facts and issues in a case in order to satisfy the requirement of a fair trial by impartial jury. Jacobs v. Commonwealth, 870 S.W.2d 412 (Ky. 1994). However, where jurors demonstrate considerable knowledge of the facts of the case such that they have formed an opinion about the main issue in the case, they must be excused for cause. Marsch v. Commonwealth, 743 S.W.2d 830 (Ky. 1987). Kenneth Hall had been up and down the stairs in question in this case lots of times and admitted that he had formed the opinion that they were safe. Because Hall's personal knowledge of the facts of the case went to the ultimate issue in the case — whether the defendant failed in his duty to keep the stairs in a reasonably safe condition — and he had formed an opinion on this ultimate issue, we believe it was error for the court to fail to strike Hall for cause in this case.
The next question is whether it was reversible error for the court to fail to strike two jurors who should have been stricken for cause and on whom appellant was forced to use two of her peremptory challenges. The record reveals that Maxine used all three of her peremptory challenges. CR 47.03. It has been the law in civil cases in Kentucky (as in criminal cases) that the erroneous denial of a challenge for cause is prejudicial and requires reversal if the party challenging the juror used a peremptory challenge to excuse the juror and exhausted all of his or her peremptory challenges in the process. Bowman ex rel. Bowman v. Perkins, 135 S.W.3d 399, 402 (Ky. 2004); Conner v. Denney, 521 S.W.2d 514 (Ky. 1975); see also Commonwealth, Dept. of Highways v. Ginsburg, 516 S.W.2d 868 (Ky. 1974). However, our Supreme Court has recently changed the law in criminal cases, holding that such erroneous denial of challenges for cause are harmless unless the challenged juror actually sat on the jury hearing the case. Morgan v. Commonwealth, 189 S.W.3d 99 (Ky. 2006) (overruling Thomas v. Commonwealth, 864 S.W.2d 252 (Ky. 1993)). As to whether this new rule applies in civil cases as well, Justice Cooper's dissent in Morgan indicates that it would, and we see no reason that it would not apply in civil cases. Morgan, 189 S.W.3d at 139. Accordingly, since neither Strange nor Hall served on the jury in the present case, the denial of the challenges for cause was harmless error.
Maxine also argues that because this was a negligence per se case, causation is presumed and, thus, it was error for the trial court to submit the question of causation to the jury. Maxine cites to Blue Grass Restaurant Co. v. Franklin, 424 S.W.2d 594 (Ky. 1968) and Greyhound Terminal of Louisville v. Thomas, 307 Ky. 44, 209 S.W.2d 478 (1947), which indeed do hold that the violation of the statute or ordinance must be considered the proximate cause of the injury in a negligence per se case if the injury complained of is one which the statute or ordinance was intended to prevent. While those cases have not been specifically overruled, our appellate courts have more recently required causation to be proven in negligence per se cases. Hargis v. Baize, 168 S.W.3d 36, 46 (Ky. 2005); Stivers v. Ellington, 140 S.W.3d 599, 601 (Ky.App. 2004).
[T]he mere violation of a statute does not necessarily create liability unless the statute was specifically intended to prevent the type of occurrence which has taken place. Not all statutory violations result in liability for that violation. The violation must be a substantial factor in causing the injury and the violation must be one intended to prevent the specific type of occurrence before liability can attach.
Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky. 1999).
Also, in the instant case, the previous Court of Appeals opinion required that the case be remanded for a trial on the issue of whether the code violation was a substantial factor in causing Jerry O'Hair's death. Presumably (the briefs from the first appeal are not in the record on this appeal), that is exactly what Maxine sought in the first appeal. And that decision was never appealed by Maxine. Therefore, it stands as the law of the case. Hogan v. Long, 922 S.W.2d 368, 370 (Ky. 1995).
Maxine next contends that there was no other evidence of the cause of the fall other than the code violations. In reviewing the evidence adduced at trial, we cannot agree. First, Wells presented evidence that Jerry O'Hair had certain medical problems that could have been the cause of the fall or a substantial factor in causing the fall, namely, vertigo and the aftereffects of a stroke he suffered in 1996 — a frozen left shoulder and a disabled right arm. There was also evidence that Jerry may have failed to exercise reasonable care for his own safety. It was undisputed that when Jerry entered the doorway going downstairs, it was unlit and dark. Further, there was evidence that Jerry entered the doorway leading downstairs with the mistaken belief that he was entering the viewing room on the upper floor.
Maxine's remaining argument is that the trial court erred in allowing Wells to present evidence that she still received the rent for rental property owned by Jerry after Jerry's death. Prior to trial, both parties filed motions in limine related to this issue. Wells filed a motion to preclude Maxine from presenting evidence of rental property income relative to her claim of loss of power to earn money. Maxine's motion in limine sought an order prohibiting Wells from presenting evidence of her wealth or poverty. The court ruled that Wells could not generally present evidence of Maxine's wealth or poverty. The court allowed Maxine to present evidence of the income from the rental property, but would not allow Wells to present evidence of the value of said rental property.
During cross-examination of Maxine, Wells' counsel asked Maxine if she continued to receive the rents on the rental properties after Jerry's death. Maxine's counsel objected on grounds that it was evidence of her inheritance which was evidence of her wealth. The court overruled the objection, reasoning that the jury was entitled to hear the whole story — if the jury was entitled to hear about the rental income, they were entitled to know that Maxine still received the rental income after Jerry's death. A trial court has considerable discretion regarding the admissibility of evidence, and such determination will not be disturbed absent a clear showing of an abuse of that discretion.Estep v. Commonwealth, 957 S.W.2d 191, 194 (Ky. 1997). We believe the trial court properly allowed in the evidence, as it would have been misleading to allow the jury to learn about the rental income relative to the loss of potential earnings claim, and then not be informed that Maxine still receives the rental income after Jerry's death.
For the reasons stated above, the judgment of the Powell Circuit Court is affirmed.
ALL CONCUR.