Bradford v. Winn Dixie of Louisiana, Inc.

648 So. 2d 464, 94 La.App. 4 Cir. 0667, 1994 La. App. LEXIS 3588, 1994 WL 717934
CourtLouisiana Court of Appeal
DecidedDecember 28, 1994
DocketNo. 94-CA-0667
StatusPublished
Cited by2 cases

This text of 648 So. 2d 464 (Bradford v. Winn Dixie of Louisiana, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bradford v. Winn Dixie of Louisiana, Inc., 648 So. 2d 464, 94 La.App. 4 Cir. 0667, 1994 La. App. LEXIS 3588, 1994 WL 717934 (La. Ct. App. 1994).

Opinion

11ARMSTRONG, Judge.

This is an appeal from a judgment for the plaintiff in a personal injury case. The plaintiff, Mary Ellen Bradford, was in a Winn Dixie supermarket. A shoplifter was trying to escape from the store with stolen cigarettes. Ms. Bradford alleges that a Winn Dixie manager, who was chasing the shoplifter, rah into her very hard, knocking her off her feet and into the air, causing her to suffer a serious back injury. She sued Winn Dixie for negligence. The jury found liability and determined the damages to be $350,000. Winn Dixie appeals as to alleged procedural irregularities in the trial, as to liability and as to the quantum of damages. Finding no reversible error, we affirm.

Winn Dixie’s first argument concerns the voir dire during jury selection. Winn Dixie argues that, during the questioning of one prospective juror, the plaintiffs counsel went beyond the proper bounds of voir dire and had the prospective juror, in effect, “testify” in a way that prejudiced Winn Dixie. Winn Dixie moved for a mistrial based upon the alleged prejudice during the voir dire, and the trial court denied Winn Dixie’s mistrial motion. Winn Dixie applied to this court for supervisory writs but the application was denied with the notation that, if Winn Dixie lost at trial, then Winn Dixie could raise the issue again by way^of a motion for new trial. After trial, Winn Dixie did move for a new trial, based upon the alleged prejudice in the voir dire, and the trial court denied Winn Dixie’s new trial motion. On appeal, Winn Dixie argues that it is entitled to a new trial because of the alleged prejudice during the voir dire.

There is no transcript of the voir dire because no court reporter was present to record it. The trial court specifically found, in a written opinion, that Winn Dixie had not requested that the voir dire be on the record. In the absence of either a transcript of the proceedings at issue or a narrative of the facts agreed to by the parties, there is nothing for appellate review and the trial court’s ruling is presumed correct. Cooke v. Allstate Ins. Co., 93-1057 (La.App. 4th Cir. 4/14/94), 635 So.2d 1330; Tayco Construction Co. v. La Cuisine Restaurant, Inc., 593 So.2d 954, 955 (La.App. 4th Cir.1992). However, because this court’s denial of Winn Dixie’s writ application stated that a record could be made for appellate review in connection with a Winn Dixie motion for new trial, because Winn Dixie attempted to so make a record in connection with its motion for a new trial, and because the briefs of the parties do not disagree as to the substance of what transpired during the voir dire, we will consider this issue.

The plaintiffs counsel, through general questions directed to the jury pool as a whole, identified a prospective juror who had worked for Winn Dixie fifteen years previously. Plaintiffs counsel asked the prospective juror whether he had seen any incidents with shoplifters while employed at Winn Dixie, what he had done, and whether his actions were pursuant to a Winn Dixie policy. The prospective juror’s responses were that he had seen shoplifters fleeing the store while he was working at the check-out counter, that he had tried to trip shoplifters as they ran by, and that such tripping was not Winn Dixie policy but that he had done it because he was “young and dumb” at the time. There were some objections by Winn Dixie’s counsel, and the trial court directed plaintiffs counsel to rephrase a question and then cut off the line of questioning.

Winn Dixie argues that it was prejudiced because the prospective juror’s answers “planted the idea” in the minds of all members of the jury pool that Winn Dixie encouraged its employees to trip shoplifters. We see no substantial prejudice. First, the prospective | furor’s answers regarded tripping shoplifters whereas the present case involves the possible danger to customers presented by store employees running through the store chasing fleeing shoplifters. The two activities, tripping and chasing, are dissimilar generally and in the specific respect that tripping shoplifters does not appear to present any danger to customers whereas running through the store chasing shoplifters does present at lease some risk to customers. Second, the prospective juror stated that [467]*467tripping shoplifters was not Winn Dixie policy. This rebuts the notion that Winn Dixie “encouraged” its employees to trip shoplifters. Indeed, the prospective juror said that he had tripped shoplifters only because he was “young and dumb” at the time. Lastly, the trial court instructed the jury on the record on at least two occasions, once near the beginning of the trial and once near the end of the trial, that only what they heard from the witness stand could be considered as evidence.

Winn Dixie concedes that “mistrials are properly granted when there is a fundamental failure in the proceedings and it is impossible to reach a proper judgment because of this irregularity. Searle v. Travelers Ins. Co., Inc., 557 So.2d 321 (La.App. 4th Cir. 1990); Spencer v. Children’s Hospital, 432 So.2d 823 (La.1983).” The voir dire incident in the present case certainly does not constitute a “fundamental failure” and certainly did not make it impossible to reach a proper judgment.

Upon learning that there was a former employee of Winn Dixie among the pool of prospective jurors, it was reasonable for the plaintiff’s counsel to question that prospective juror as to relevant experiences as a Winn Dixie employee that might affect the prospective juror’s decision as a juror in this case. However, jury voir dire is not a vehicle to present facts or arguments to the jury pool from which the jury will be selected. Morgan v. Liberty Mutual Ins. Co., 323 So.2d 855, 859 (La.App. 4th Cir.1975), app. dismissed, 325 So.2d 282 (La.1976). The trial court must necessarily exercise its discretion in drawing the line between proper and improper jury voir dire questions. Trahan v. Odell Vinson Oil Field Contractors, Inc., 295 So.2d 224, 227 (La.App. 3rd Cir.1974). There was no abuse of that discretion in the present case.

Winn Dixie argues that the trial court did not employ proper procedures in handling Winn Dixie’s mistrial motion. That mistrial motion was made at the conclusion of jury Uselection. Winn Dixie was allowed to make and argue its mistrial motion at a bench conference out of the hearing of the jury. Thus, Winn Dixie was given a full opportunity to state the specific reasons for its mistrial motion. As the voir dire incident occurred in open court, and was observed by the trial judge, there was no reason to present additional evidence in support of the mistrial motion. (Winn Dixie does not assert that it needed to present any evidence at that time.) The trial court orally denied the mistrial motion and, two days later, in response to Winn Dixie’s writ application, signed a written opinion recounting the relevant facts and sequence of events and giving reasons for denial of the mistrial motion. (We note that, in the absence of either a transcript or a narrative of facts agreed to by the parties, the trial court’s narrative of facts in its opinion is conclusive. La.Code Civ.Proc. art. 2131.)

The only shortcoming that we can see in the proceedings as to the mistrial motion is that, like the voir dire itself, they were not on the record as no court reporter was present. However, Winn Dixie did not request that the mistrial motion proceedings be on the record. Thus, because this error, if it was one, was. not preserved below, it cannot be raised on appeal.

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Bluebook (online)
648 So. 2d 464, 94 La.App. 4 Cir. 0667, 1994 La. App. LEXIS 3588, 1994 WL 717934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradford-v-winn-dixie-of-louisiana-inc-lactapp-1994.