Alabama Supreme Court 1970553.
HOLMES, Retired Appellate Judge.
Shoney's, Inc. (restaurant), appeals from a judgment based on a jury verdict in favor of Albert Lee Pasley. This case is before this court pursuant to § 12-2-7(6), Ala.Code 1975.
Albert Lee Pasley filed a complaint against the restaurant, seeking compensatory and punitive damages for the restaurant's alleged
The complaint alleged the following: Pasley entered the restaurant on October 25, 1994; he ordered a meal and requested a glass of water with his meal. An employee of the restaurant served Pasley a glass of bleach. After drinking a portion of the bleach, Pasley immediately began to experience a burning sensation in his mouth, his throat, and his esophagus. Pasley requested to use the restaurant's telephone to call the poison control center. The employees, however, refused to let Pasley use the telephone. Pasley stated that as a result of his drinking the bleach, he suffered injuries to his mouth, his throat, his esophagus, and other internal organs; that his preexisting medical conditions became aggravated and exacerbated; and that he suffered anxiety, fear, and mental anguish.
The case proceeded to trial in February 1997. The jury returned a verdict in favor of Pasley and awarded him compensatory damages in the amount of $75,000. The trial court entered a judgment based on that verdict. Thereafter, the restaurant filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. The trial court, following a hearing, denied that motion.
The restaurant appeals, asserting four grounds for reversal.
I. Batson Challenge
The restaurant initially contends that the trial court committed reversible error in not sustaining its Batson challenges of the following jurors: number 3 (Herbert Alexander), number 24 (John C. Calhoun), and number 169 (Susan White).
In Johnson v. City of Decatur, 686 So.2d 314, 315-16 (Ala.Civ.App.1996), this court stated the following well-settled law regarding a Batson challenge:
Our review of the record reveals the following: Pasley, the plaintiff, is white. During the jury selection process, Pasley exercised his peremptory challenges to strike eleven whites from the jury panel. The restaurant made a reverse-Batson objection to six of the eleven strikes. At the trial court's request, Pasley's attorney gave race-neutral reasons for the strikes. After hearing the stated reasons, the trial court sustained the restaurant's objections of two of the strikes. We would note that the jury ultimately consisted of six blacks and six whites.
As stated previously, the restaurant contends that the trial court should have sustained its Batson challenges of the following jurors: number 3 (Herbert Alexander), number 24 (John C. Calhoun), and number 169 (Susan White).
Pasley's attorney gave the following explanations for the strikes: He struck juror number 3 (Alexander) because an attorney who planned to assist in representing Pasley had sued Alexander's brother. He struck juror number 24 (Calhoun) because a friend, who is an attorney, stated that Calhoun was very conservative. The court also
Clearly, the above-stated reasons appear to be valid, race-neutral reasons. The restaurant, having the ultimate burden of persuasion, failed to offer any convincing evidence that the reasons were not bona-fide, race-neutral reasons. Thus, we defer to the trial court's ruling, given the fact that the trial court was in a better position to judge the credibility of the race-neutral explanations.
II. Punitive Damages
The restaurant next contends that the trial court committed reversible error in charging the jury on punitive damages because, it says, there was a lack of evidence regarding wanton or willful misconduct. In McDougle v. Shaddrix, 534 So.2d 228, 231 (Ala.1988), our supreme court stated the following:
After carefully reviewing the testimony in this case, we conclude that there was evidence from which the jury could have concluded that the restaurant's conduct was wanton. The evidence reveals that an employee, while in the food service area, poured bleach into a container and placed the container on the counter next to the coffee machine and the tea machine. Thereafter, another employee actually served Pasley a glass of the bleach from the container. The restaurant apparently authorized the use of the bleach to sanitize dishes when, in fact, the label stated not to transfer "this product" to food or beverage containers.
The area director for the restaurant testified that he disapproved of the way the employees cleaned on the night of Pasley's accident. The director testified that the proper location for cleaning the coffee and the tea containers was in the back kitchen in a three-compartment sink, not in the food service area. The director also stated that it was not proper to "soak" the containers with bleach. Clearly, the jury could have inferred that the above-stated actions constituted more than simple negligence. In any event, we find it interesting to note that the jury, in the instant case, did not award any punitive damages. In fact, the verdict form showed that the jury awarded "Compensatory Damages [in the amount of] $75,000" and "Punitive Damages [in the amount of] -0-." Based on this fact alone, we find no reversible error.
III. Excessive Verdict
The restaurant next contends that the trial court should have granted its motion for a new trial because, it says, the verdict was excessive. In the instant case, Pasley claimed damages for loss of earnings, medical expenses, aggravation of a preexisting medical condition, physical pain and suffering, and mental anguish. The jury awarded him $75,000 in compensatory damages.
The trial court, in instructing the jury on compensatory damages, stated the following regarding physical pain and mental anguish:
IV. Impeachment of Pasley
The restaurant finally contends that the trial court committed reversible error in not allowing it to impeach Pasley on a collateral issue. On cross-examination, the restaurant's attorney asked Pasley the following questions:
Pasley's attorney made an objection. After hearing arguments from both parties, the trial court sustained Pasley's objection, holding that the testimony involved a collateral issue. The restaurant contends, however, that impeachment testimony is always material.
In State v. Howington, 268 Ala. 574, 575, 109 So.2d 676, 677 (1959), our supreme court stated the following:
Furthermore, in Noble v. State, 253 Ala. 519, 521-22, 45 So.2d 857, 859 (1950) (emphasis in original), our supreme court stated the following:
Clearly, whether Pasley had been arrested was not a material issue. In other words, the outcome of this case did not hinge on whether Pasley had been arrested for harassment or harassing communications. In any event, we would note that the jury heard the bulk of the testimony regarding Pasley's arrest, due to Pasley's late objection. Thus, any error, if there was error, would appear to be harmless. See Rule 45, Ala. R.App. P.
Last, we note that jury verdicts are presumed correct, and that presumption is strengthened by the trial court's denial of a post-judgment motion for a new trial. Brown v. Lawrence, 632 So.2d 462 (Ala.1994).
Based on the foregoing, we conclude that the judgment based on the jury verdict is due to be affirmed.
The foregoing opinion was prepared by Retired Appellate Judge Richard L. Holmes while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975.
THOMPSON, J., concurs in the result.