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PONDER v. BEVERLY HEALTH CARE CTR. WEST3/15/1996
June W. Ponder, as administratrix of the estate of Ruth Hawkins, deceased, filed a wrongful death complaint against Beverly Health Care Center West (nursing home).
The complaint alleged the following: Ruth Hawkins, a resident of the nursing home, was left unattended on a day when the nursing home negligently and/or wantonly permitted an exit door to remain unsecured and opened. Hawkins exited the unsecured and open door in her wheelchair, fell down a flight of stairs, and struck her head. As a proximate result of this accident, Hawkins died.
The case proceeded to a jury trial. The jury returned a $35,000 verdict in favor of Ponder.
Ponder filed a motion for a new trial, alleging the following: Extraneous material, which had not been admitted into evidence, was submitted to the jury for consideration during its deliberations and was considered by the jury in arriving at its verdict of $35,000. Ponder attached a copy of the affidavit of one of the jurors, wherein the juror stated that the extraneous material influenced his decision. The juror's affidavit stated the following, in pertinent part:
"Then the jurors in favor of lower amounts expressed their opinion that no laws, and no written rules, had been violated by the nursing home. A yellow book that was sent to the jury room with us was used to emphasize this by some of the jurors. They argued that this book, and one other blue book that was still in the courtroom, showed that no laws or rules had been violated by the nursing home. I remember one or more jurors reading through the book and using it to back up their argument. . . .
". . . .
"The jury continued to discuss the information contained in the yellow book (the book the bailiff took back and said was not supposed to be in the jury room). Some jurors argued that they believed [that] since no laws had been broken, as shown by the information in the yellow book, there should not be a large verdict rendered. This influenced my decision, and I was persuaded by the information in the yellow book to change my vote and vote for reducing the ultimate verdict amount."
This "yellow book" contained the federal OBRA regulations regarding nursing homes. The "yellow book" had been marked as an exhibit during the course of the trial, but was not introduced or admitted into evidence.
The nursing home filed a response to Ponder's motion for a new trial, as well as the affidavits of four of the jurors. These affidavits indicated that these jurors were not influenced by, nor did they rely on, the extraneous material.
After a hearing, the trial court denied Ponder's motion for a new trial. This appeal followed.
The dispositive issue on appeal is whether the trial court committed reversible error when it determined that the extraneous material was harmless error and denied Ponder's motion for a new trial.
The nursing home argues that the fact that the "yellow book" was mistakenly sent into the jury room when it had not been introduced into evidence was, at most, harmless error. The nursing home maintains that the testimony during the trial concerning the "yellow book" was clear and unequivocal and that the "yellow book" did not convey any information that was not emphatically conveyed to the jury during the trial. The nursing home relies upon Jolly v. State, 405 So.2d 76 (Ala. Crim. App. 1981), to support this argument.
We do not find Jolly to be controlling in this case. Initially, we note that Jolly is a criminal case. However, more importantly, there is no indication in Jolly that the decision of any member of the jury was influenced by the extraneous material.
Page 1 2 3 Alabama Personal Injury Attorneys
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