Summary
In Kelley v. Wegman's Food Mkts, Inc., 2003 U.S. Dist. LEXIS 8066, at *13 (E.D. Pa. May 15, 2003), aff'd, 98 F. App'x 102 (3d Cir. 2004), the court found that "a judge generally acts within his or her discretion in denying a motion for a jury view when there is sufficient evidence describing the scene in the form of testimony, diagrams, or photographs."
Summary of this case from St. Paul Fire Marine Insurance Co. v. Nolen GroupOpinion
CIVIL ACTION NO. 02-1377
May 15, 2003.
MEMORANDUM AND ORDER
Presently before this Court is the Motion for New Trial filed by the Defendant, Wegman's Food Markets, Inc. ("Wegman's"). For the reasons that follow, the Motion is denied.
I. BACKGROUND
The Plaintiff, Fay Kelley ("Kelley"), filed this action against Wegman's after she was assaulted in front of the Wegman's store in Allentown, Pennsylvania on the evening of February 13, 2002. The trial of this matter commenced on January 13, 2003 and concluded on January 17, 2003 at which time the jury returned a verdict in favor of Kelley. Wegman's filed its Motion for a New Trial on February 26, 2003 claiming that the Court had erred by striking two potential jurors for cause, by denying Wegman's Motion for Jury View, and by excluding testimony about the use of security guards at other stores and banks.
II. STANDARD
Under the Federal Rules of Civil Procedure, the trial court has "considerable discretion in determining whether to grant a new trial."Goodwin v. Seven-Up Bottling Co. of Phila., No. 96-2301, 1998 WL 438488, at *3 (E.D.Pa. July 31, 1998) (citing Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993)). When evaluating a motion for a new trial on the basis of trial error, the Court must first determine whether an error was made in the course of trial, and then must determine "whether that error was so prejudicial that refusal to grant a new trial would be inconsistent with substantial justice." Farra v. Stanley-Bostitch, Inc., 838 F. Supp. 1021, 1026 (E.D.Pa. 1993), aff'd, 31 F.3d 1171 (3d Cir. 1994). "Absent a showing of `substantial' injustice or `prejudicial' error, a new trial is not warranted and it is the court's duty to respect a plausible jury verdict." Goodwin, 1998 WL 438488, at *3 (citing Videon Chevrolet, Inc. v. Gen. Motors Corp., No. 91-4202, 1994 WL 1888931, at *2 (E.D.Pa. May 16, 1994), aff'd, 46 F.3d 1120 (3d Cir. 1994)).
III. DISCUSSION
To begin, I must express my surprise at the verdict rendered by the jury because I believe that the evidence of negligence was rather thin. However, it is not necessary that I share the jurors' views nor is it necessary that they share mine. In its Motion, Wegman's raises three arguments for why it believes there should be a new trial. Specifically, Wegman's argues that: (1) the Court erred when it struck two prospective jurors for cause who shopped at the Wegman's store in Allentown; (2) the Court erred when it denied Wegman's Motion for Jury View; and (3) the Court erred when it excluded testimony from an Allentown police officer concerning whether other stores and banks in the west end of Allentown used security guards. A new trial is not warranted on any of these three grounds because Wegman's has failed to show substantial injustice or prejudicial error arising from these rulings. Goodwin, 1998 WL 438488, at *3.
I note that Wegman's initially asserted in its Motion for a New Trial that the verdict was against the weight of the evidence. However, Wegman's subsequently withdrew that assertion.
A. The Court Did Not Abuse Its Discretion When It Struck the Two Potential Jurors for Cause
During jury selection, one prospective juror stated that he was familiar with the Wegman's store and that he shopped there regularly. A second juror stated that he was also familiar with the store and that he shopped there approximately once per month. Kelley's counsel then argued that both potential jurors should be struck for cause. Wegman's counsel disagreed. This matter was discussed with the court in chambers where Kelley's counsel moved to strike the two potential jurors for cause because they were regular customers of the Wegman's store. I granted the Motion. Because the proceeding was held in chambers it was not recorded. No party requested that the objection and ruling be placed on the record. Had they done so, I would have gone into the courtroom with counsel and placed the objection and the ruling on the record at sidebar.
Wegman's now claims that my decision to grant the Motion to strike the two prospective jurors was in error because the prospective jurors were not asked whether they would be impartial nor was it determined whether they were biased. I struck the two potential jurors for cause because I felt that it would help create an impartial jury. See Press-Enter. Co. v. Super. Ct. of California, 464 U.S. 501, 511 n. 9 (1984) (noting that the voir dire process is designed to "ensure a fair impartial jury, not a favorable one"). The two potential jurors were regular customers of the store and were familiar with the store and its grounds. I was concerned that if these two individuals did sit on the jury, they might convey their first hand knowledge of the store to the other jurors. I feared that once the other jurors were contaminated by this knowledge, they would not be able to follow my instruction that they "must decide this case based on the evidence that [they have] seen and heard in this courtroom and not upon anything [they] may have heard outside of the courtroom." (N.T. 1/16/05, p. 170). I was concerned that, despite my instruction to the contrary, the two jurors with personal knowledge of the premises in question would feel compelled to impart that knowledge to their fellow jurors during deliberations.
A decision regarding striking jurors for cause is reviewed by the appellate court for abuse of discretion. Kirk v. Raymark Indust., Inc., 61 F.3d 147, 153 (3d Cir. 1995). Furthermore, a judge has "substantial discretion in excusing a potential juror for cause." Fritz v. Consol. Rail Corp., No. 90-7530, 1992 WL 96285, at *2 (E.D.Pa. April 23, 1992) (citing United States v. Calabrese, 942 F.2d 218, 227 (3d Cir. 1991)). Here, I felt, for the reasons set forth above, that striking these two jurors would promote the empaneling of a impartial jury, which was my ultimate goal. See Com. v. Black, 376 A.2d 627, 632 (Pa. 1977) (upholding a dismissal where the trial judge dismissed a juror as a precautionary measure to insure an impartial trial, free of outside influences).
However, even if I erred in striking these two potential jurors, the error was harmless. "The Supreme Court has stated that a litigant is entitled only to a fair trial and not a perfect trial." Fritz, 1992 WL 96285, at *2. There is no allegation that the jury which was empaneled was partial. However, Wegman's offers two reasons for why, if striking the potential jurors was in error, it was reversible error. First Wegman argues that the decision to strike the potential jurors is reversible under United States v. Salamone, 800 F.2d 1216 (3d Cir. 1986). Second, Wegman's argues that because I struck the two potential jurors, it was as if Kelley received five preemptive strikes while Wegman's only received three preemptive strikes. Therefore, Wegman's argues that its statutory right to three preemptive strikes was impaired in some way.
In United States v. Salamone, the trial court struck seven jurors for cause based solely upon their affiliation with the National Rifle Association ("NRA"). The Third Circuit held that "[a]bsent the requisite nexus — that the challenged affiliation will `prevent or substantially impair' a juror's impartiality — no juror may be excluded for cause on the basis of his or her membership in an organization that adheres to a particular view." Salamone, 800 F.2d at 1226. The Third Circuit further stated that "we think that such a `manifest abuse' [of discretion] is evident on this record, and on this basis alone Salamone is entitled to a new trial. The government, however, citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), properly notes that not every error, even constitutional error, requires automatic reversal of a judgment of conviction." Id. at 1227. The Third Circuit then noted that:
were we faced with the inadequate questioning of a single excluded juror we might apply a different standard for determining the prejudicial effect of the erroneous exclusion. However, where such a "manifest abuse of discretion" results in the wholesale exclusion of a particular group, we do not deem it necessary for the defendant to affirmatively demonstrate the existence of actual prejudice in the resulting jury panel. Under such circumstances, prejudice may be presumed."Id. Lastly, the Third Circuit discussed that the error was not harmless error because of the magnitude of the abuse of discretion arising from the exclusion of "seven prospective jurors solely on the basis of their affiliation — no matter how attenuated — with the NRA." Id. at 1227-28.
In this case, two prospective jurors were struck, not because they belonged to a certain group, but because they were regular shoppers at, and very familiar with, the Wegman's store. I felt that a jury with no such personal knowledge of the store would be more impartial. InSalamone, the Third Circuit recognized that they would apply a different standard under different circumstances. Id. at 1227. Here, if the two potential jurors were struck in error, the error was harmless because the decision was not based on affiliation with a group and there is no argument that the jury was not impartial.
I also note that this case is not one where the potential jurors were struck merely because they were acquaintances of the defendant. Here, the two potential jurors were regular shoppers at Wegman's. See Calabrese, 942 F.2d at 224 (stating that "merely knowing one of the defendants does not, standing alone, constitute a sufficient showing of bias requiring excusal for cause").
Wegman's also argues that its statutory right to three peremptory strikes was violated. See 28 U.S.C. § 1870 (stating that "in civil cases, each party shall be entitled to three peremptory challenges"). Specifically, Wegman's argues that because I struck the two potential jurors allegedly in error, it was as if Kelley received five preemptive strikes while it only received three preemptive strikes. Wegman's correctly notes that:
compelling a party to use any number of its statutorily-mandated peremptory challenges to strike a juror who should have been removed for cause is tantamount to giving the party less than its full allotment of peremptory challenges. Because 28 U.S.C. § 1870 requires that each party shall be entitled to three peremptory challenges, "a denial or impairment" of that statutory right occurs whenever a party exercises a peremptory challenge to strike a prospective juror who should have been removed for cause.Kirk, 61 F.3d at 157. Moreover, the denial or impairment of the right to three peremptory challenges is reversible error per se. Id. at 160. Wegman's argues that "[s]ince a denial or impairment of the statutory right to three peremptory strikes occurs whenever a party exercises a peremptory challenge to strike a juror who should have been removed for cause, it follows that a denial or impairment also occurs whenever a party is erroneously given a strike for cause." (Mot. for New Trial, p. 8). Wegman's does not cite any case law for this proposition and I believe it is in error. The Supreme Court has stated that:
"Because peremptory challenges are a creature of statute and are not required by the Constitution, it is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise. As such, the `right' to peremptory challenges is `denied or impaired' only if the defendant does not receive that which state law provides."Id. at 160 (quoting Ross v. Oklahoma, 487 U.S. 81, 89 (1988)). Here, Wegman's has the right to three peremptory challenges and it received three peremptory challenges. Therefore no violation of its statutory rights has occurred and the case should not be reversed on this ground.
In light of Kirk, when in doubt, it behooves a district judge to err on the side of caution and strike potential jurors for cause. Otherwise, a district judge commits reversible error whenever a party is forced to use one of its peremptory strikes to strike a juror who should have been struck for cause. If I were to follow Wegman's argument, it would be equally dangerous to err on the side of caution and strike a questionable juror, who in hindsight, should not have been struck. Accepting this argument would create a catch-22 situation where a district court judge would be reversed whether he or she did or did not strike a potential juror and it turned out that, in hindsight, the decision was incorrect. As mentioned earlier, "a litigant is entitled only to a fair trial and not a perfect trial." Fritz, 1992 WL 96285, at *2.
B. The Court Did Not Abuse Its Discretion When It Denied Wegman's Motion for Jury View
On December 12, 2002, Wegman's filed a Motion for Jury View of the premises of the Wegman's store in Allentown. I denied the Motion on January 13, 2003, but I permitted Wegman's, over Kelley's objection, to introduce into evidence many photographs of both the interior and exterior of the Wegman's store and surrounding area. (N.T. 1/13/03, p. 4). I felt that a jury view would be time consuming, difficult to control, and I did not think it was necessary in order for the jury to fully appreciate the case, especially in light of the numerous photographs and reports, and the relevant testimony I allowed into evidence.
The decision to permit a jury view is committed to the sound discretion of the district court. U.S. v. Pettiford, 962 F.2d 74, 76 (1st Cir. 1992). A judge generally acts within his or her discretion in denying a motion for a jury view when there is sufficient evidence describing the scene in the form of testimony, diagrams, or photographs. U.S. v. Crochiere, 129 F.3d 233, 236 (1st Cir. 1997). Furthermore, the judge "may consider such factors as the orderliness of the trial, whether the jury would be confused or misled, whether it would be time-consuming or logistically difficult, and whether cross-examination had been permitted regarding the details of the scene." Id. In light of the ample photographs and testimony that were admitted into evidence, and in light of my finding that a jury view in Allentown would be time consuming and difficult to control, I was well within my discretion to deny the Motion for Jury View.
C. The Court Did Not Abuse Its Discretion When It Excluded Testimony Concerning the Use of Security Guards at Other Stores
During the trial, Kelley contended that Wegman's should have posted security guards outside of its store and that its failure to do so constituted negligence which was a substantial factor in bringing about her harm. Wegman's sought to elicit from Allentown Police Officer Mark Thomas ("Officer Thomas") evidence that stores and banks in the west end of Allentown do not use security guards. Kelley objected to the admission of this evidence and I sustained the objection. The trial judge has broad latitude in ruling on questions of admissibility of evidence. U.S. v. Rockwell, 781 F.2d 985, 987 n. 3 (3d Cir. 1986).
Only relevant evidence is admissible. F.R.E. 402. However, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." F.R.E. 403. This "balancing inquiry is, at its core, an essentially discretionary one that gives the trial court significant latitude to exclude evidence." Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 156 (3d Cir. 2002). Furthermore, before an evidentiary ruling may be reversed for an abuse of discretion, it must be shown that "the district court's action was `arbitrary, fanciful or clearly unreasonable.' [The Third Circuit] will not disturb a trial court's exercise of discretion unless `no reasonable person would adopt the district court's view.'" Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002) (internal citations omitted).
In this case, Wegman's wished to ask Officer Thomas: (1) whether stores in the west end of Allentown have security guards; and (2) whether banks in the area use security guards. (N.T. 1/16/03, p. 20). Wegman's wished to elicit this testimony to combat the allegation of negligence and to show that a reasonably prudent person in Wegman's position would not have had security guards. Part of my instruction to the jury included the statement that a possessor of land, like Wegman's may "know or have reason to know from past experiences that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of a visitor" and that it "owes a duty to take reasonable measures to protect its customers from criminal acts that would reasonably be anticipated." (N.T. 1/16/03, p. 174-75). Wegman's wished to show that a reasonable person in Wegman's position would not have employed security guards because other stores and banks did not employ security guards.
I felt that Officer Thomas' testimony concerning whether he knew if other banks and stores in Allentown had security guards offered very little probative value. Simply because Officer Thomas was not aware of security measures, did not mean there were no such measures. Furthermore, Officer Thomas' knowledge was limited to Allentown and thus he was unaware of prior crimes or security practices at stores and shopping centers in South Whitehall Township, which are situated about one mile away from Wegman's. Therefore, because Officer Thomas' knowledge was limited to what he observed and heard about in Allentown, I felt that his opinion would be incomplete, overly prejudicial to Kelley, and misleading for the jury. The issue was whether Wegman's conduct was reasonable, given its own past experience, which included a similar armed robbery two years prior and knowledge of various violent crimes at nearby stores and shopping centers in South Whitehall Township. I felt that Officer Thomas' testimony would serve to confuse this issue. Therefore, I was within my discretion to exclude the testimony.
IV. CONCLUSION
Wegman's has failed to show the necessary substantial injustice or prejudicial error inherent in the three challenged rulings. Goodwin, 1998 WL 438488, at *3. Therefore, because I was within my discretion in making each of the three rulings, a new trial is not warranted and Wegman's Motion for a New Trial must be denied.
An appropriate Order follows.
ORDER
AND NOW, this 15th day of May, 2003, upon consideration of Defendant's Motion for a New Trial (Doc. No. 44), and any Responses and Replies thereto, it is hereby ORDERED that the Motion is DENIED.