Editorial
Front Page - Friday, September 11, 2009
Summaries
Jack Nelson & Jones
Burdick v. Little Switzerland Realty, Inc., 2009 Ark. App. 553, Sept. 2, 2009.
This appeal comes from the Pulaski County Circuit Court, Honorable Marion A. Humphrey presiding.
Linda Burdick filed a lawsuit against Little Switzerland Realty for injuries she sustained on Little Switzerland’s property, alleging negligent maintenance. During jury voir dire, three of the potential jurors expressed concern that they would not be able to impartially decide the case. Two of those stated they “hoped” that they could set aside their biases to follow the trial court’s instructions, and the third stated he felt uncomfortable awarding damages to Ms. Burdick. In response to their statements of bias, Ms. Burdick moved to strike these three of prospective jurors for cause. The trial court denied her motion and Ms. Burdick used all three of her peremptory strikes to remove them. The trial court asked if the seated jury was satisfactory, and both parties indicated that it was. Ms. Burdick made no further objections about the jury.
The jury ultimately returned a verdict in favor of Little Switzerland. The trial court entered a judgment dismissing Ms. Burdick’s claim with prejudice, and Ms. Burdick appealed. On appeal, Ms. Burdick argued that the trial court erred in denying her motion to strike for cause. She argued that she was prejudiced because she had to use all of her peremptory strikes to remove them, which denied her the ability to remove any other jurors.
The Arkansas Court of Appeals did not decide the issue of whether the trial court actually erred in refusing to strike the three jurors for cause because the Court held Ms. Burdick failed to demonstrate any actual prejudice. The Court explained that harmless error—error unaccompanied by prejudice—is not a ground for reversal.
Case law states that the mere necessity of using a peremptory challenge does not establish actual prejudice, and no prejudice can be demonstrated where the prospective juror was not actually seated on the jury. In order to preserve an objection to a juror, Arkansas law requires the party to have exhausted his or her peremptory challenges and demonstrate that he or she was forced to accept the juror who should have been excused for cause. An appellant must show that one of the jurors actually seated should have been excused for cause. The Court stated that it would not consider arguments concerning jurors either accepted by a party while he or she had peremptory challenges remaining, or those jurors not accepted but excused by peremptory challenges.
Because Ms. Burdick removed all three allegedly biased jurors using her peremptory challenges and had stated no continuing objections to the seated jury, she could not demonstrate any actual prejudice. The Court of Appeals held that any possible error was harmless, and, thus, the Court would not reverse.
Share
|