ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
DANIEL E. MOORE ANGELA L. FREEL
Jeffersonville, Indiana JAMES STOLTZ
Rudolph, Fine, Porter & Johnson
COURT OF APPEALS OF INDIANA
DEBRA E. HALL and MICHAEL HALL, )
vs. ) No. 82A04-0110-CV-433
EASTLAND MALL; THE EQUITIBLE LIFE )
INSURANCE SOCIETY OF THE UNITED )
STATES; THE EQUITIBLE LIFE INSURANCE )
SOCIETY OF THE UNITED STATES d/b/a )
EASTLAND MALL; GENERAL GROWTH )
PROPERTIES; and GENERAL GROWTH )
PROPERTIES d/b/a EASTLAND MALL, )
APPEAL FROM THE VANDERBURGH SUPRIOR COURT
The Honorable Douglas Knight, Judge
Cause No. 82D03-9812-CP-4250
June 4, 2002
OPINION- FOR PUBLICATION
Appellants-plaintiffs Debra E. Hall and Michael Hall (the Halls) appeal a jury verdict
entered in favor of the appellees-plaintiffs Eastland Mall, the Equitable Life Assurance Society
of the United States (Life Assurance), et al. (collectively, Eastland Mall), claiming that
the verdict was contrary to law and that juror misconduct occurred. Concluding
that the alleged juror misconduct did not prejudice the Halls and noting that
the verdict was supported by the evidence and not contrary to law, we
On January 25, 1997, the Halls, Debras two daughters, Kaylen and Kristin, and
some friends, traveled to Evansville from their Clark County residence to attend a
basketball tournament over the weekend. Kristin and one of the other girls,
who went with the Halls, were being recruited by the womens basketball team
at the University of Evansville. Prior to the games, Debra and the
other women went to Eastland Mall to shop. They arrived between 3:00
p.m. and 4:00 p.m. and parked in Eastland Malls lot. Neither Debra
nor anyone else in her party noticed any snow or ice in the
lots driving aisle.
At approximately 7:00 p.m., Debra exited the mall through the Lazarus Department Store
doors and began walking up the main parking aisle until she began to
cut between vehicles as she made her way toward her van. Kaylen
started to walk about one step in front of Debra. At one
point, Debra slipped on something slick and wet causing her to fall forward
and land on her right foot. She immediately surmised that her ankle
was broken. One of Debras friends, a registered nurse, examined the injury
and secured the ankle with a belt.
None of the other women observed Debra slip or begin to fall, and
she did not see what caused the fall. Thereafter, it was determined
that Debra probably fell on a patch of black ice. Tr. p.
261, 640-42. While some precipitation occurred on January 24, only a trace
amount fell on the day of Debras injury. Appellants App. p. 246-50.
A report prepared by Eastland Mall security personnel indicated that Debra fell on
the northeast lot approximately fifteen vehicle spaces from one of the mall entrances.
A security officer who investigated the incident speculated that the substance upon
which Debra slipped might have been the result of a spilled drink.
Tr. p. 264. The specific spot where Debra fell was at the rear
of an empty parking space where a car tire or bumper would be
if a vehicle had been parked in that space. When the security
officer arrived, Debras leg had already been splinted with the belt. She
was then transported to the hospital in her van.
The emergency room physician observed that Debra had sustained a severe fracture and
he fitted her ankle with a plaster cast. Debra underwent several surgeries
and as a result of the incident, the Halls filed an amended complaint
against Eastland Mall on January 25, 1999. They asserted that Eastland Mall
had failed to maintain its parking lot in a safe condition at the
time of Debras fall. They also alleged that Eastland Mall was liable
for damages to compensate for the injuries that Debra sustained in the fall.
Specifically, the Halls alleged that Debra sustained substantial medical expenses, lost a
significant amount of time from work and experienced ongoing pain and suffering.
Michael also requested damages for loss of consortium.
A jury trial commenced on June 11, 2001, and at one point during
voir dire, counsel for the Halls reported to the judge at a side
bar conference that one of the potential jurors appeared to have fallen asleep
during questioning. Eastland Malls counsel responded by pointing out to the court
and counsel that one of the other prospective jurors also appeared to have
nodded off during voir dire. The judge questioned the jurors about their
ability to stay awake during the course of the trial, but the Halls
counsel did not strike the prospective juror that they assumed had been sleeping.
Tr. p. 193.
During the selection of an alternate juror, possible bias among members of the
panel was discovered. Tr. p. 199-200. Specifically, it was determined that one
of the potential jurors had shared his thoughts about litigation with the other
two alternate juror panel members. Thus, that juror and another alternate juror
panel member were struck for cause following a motion made by the Halls
counsel. The Halls counsel then used a peremptory challenge to strike a
third panel member.
On the morning of June 12, the trial courts bailiff reported that Bennett,
one of the jurors had wham[med] her jury booklet down on a table
the day before and inquired as to whether it made a difference
if Ive already made up my mind? Appellants App. p. 340.
The parties stipulated to Bennetts removal and the alternate juror was made a
member of the regular jury.
The judge then initiated steps to investigate Bennetts impact on the remaining jurors
and solicited ideas from the parties counsel as to how to proceed with
questioning the other jurors about Bennetts remarks and conduct. Appellants App. p.
342. The Halls counsel proposed the jurors be individually interviewed and that
they be asked about the comment Bennett had made as well as the
impact of the statements that had been made during voir dire.
The trial judge then interviewed Bennett privately in his chambers. Thereafter, the
jurors were then called into court where the judge questioned them individually, outside
the presence of the other members to determine what impact, if any, Bennetts
conduct had made upon them. Tr. p. 346-58. Counsel for the
Halls propounded questions to only one of the other jurors. Thereafter, the
attorneys for both parties acknowledged that the trial should resume. Tr. p.
359. Neither side made any additional record in regards to the jury
selection process. Appellees App. p. 21.
When the trial commenced, the evidence established that Eastland Malls maintenance office is
staffed twenty-four hours a day. Tr. p. 272. Personnel from Eastland
Mall sweep the lot each morning, beginning at 4:30 a.m. Tr. p.
280. Specifically, it was acknowledged that the lot is cleaned with a
sweeper truck and a handheld blower. In the event of snow and
ice, Eastland Mall would typically notify a snow removal company for plowing and
The evidence further established that the parking lot was patrolled by safety officers.
Tr. p. 271. The officers checked the premises for public
safety concerns and to insure the property was protected from criminal activity.
Tr. p. 270. It was Eastland Malls policy to have the
safety officers report any problems that could not be immediately resolved to other
Eastland Mall representatives. Tr. p. 270.
On June 13, 2001, two days after the trial commenced, the Halls moved
for a judgment on the evidence with respect to Eastland Malls defense of
incurred risk. That motion was granted, final instructions were argued and the
cause was ultimately submitted to the jury. In the end, the jury
returned a verdict in favor of Eastland Mall.
Thereafter, on June 25, 2001, the Halls filed affidavits with the trial court
where they alleged that three jurors slept at various times during the trial.
The Halls acknowledged in the affidavits that they were aware of these
alleged incidents during the course of the trial, but their counsel and the
court were not so informed. The Halls admitted that they waited until after
the trial to inform their counsel of the events. Also on that
day, the Halls filed a Motion to Correct Errors, Motion For New Trial
and Motion for Judgment on Evidence. Appellants App. p. 116. They
asserted that juror outbursts and the alleged sleeping incidents that occurred at the
trial prejudiced them and deprived them of fairness and substantial justice. It
was also pointed out that one of the jurors termed the Halls claim
as ridiculous during the trial, Appellants App. p. 200, and that the judge
had to awaken one of the jurors during the presentation of the evidence.
Appellants App. p. 257. In addition to these errors, the Halls
alleged that the verdict for Eastland Mall could not stand because it presumed
a one hundred percent fault against Debra, in the face of an absent
evidentiary record. Appellants App. p. 140. Thus, the Halls contended that
their motion for judgment on the evidence should have been granted and that
the verdict was contrary to law. The trial court denied the motion
to correct error and the Halls now appeal.
DISCUSSION AND DECISION
II. Incidents Involving Jurors
Before addressing the merits of the Halls claims involving alleged juror misconduct
and inattentiveness in this case, we note the importance of a jury trial
in our judicial system. Specifically, Ind. Const. art. 1, § 20 provides
that In all civil cases, the right of trial by jury shall remain
inviolate. In discussing the significance of the jury in our judicial system,
one commentator has stated:
No idea was more central to our Bill of Rightsindeed, to Americas distinctive
regime of government of the people, by the people, and for the peoplethan
the idea of the jury. Yet no idea today has suffered more
abusefrom benign neglect to malignant hostility to cynical manipulation and strategic perversionthan the
idea of the jury.
Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles 161 (Yale
Univ. Press 1997). It is apparent that for over two centuries, lawyers
have had strong incentives to aggrandize their own roles in litigation at the
expense of the jury. Id. at 164. As a consequence,
our system at times, has failed to welcome jurors and impress upon
them, the vital role they hold in this nations legal structure. de
Tocqueville articulates the great importance of the jury to our society as a
To regard the jury simply as a judicial institution would be taking a
very narrow view of the matter, for great though its influence on the
outcome of lawsuits is, its influences on the fate of society itself is
much greater still. The jury is therefore above all a political institution,
and it is from that point of view that it must always be
judged. . . . [The jury] should be regarded as a free
school which is always open and in which each juror learns his rights.
. . . I do not know whether a jury is useful to
the litigants, but I am sure it is very good for those who
have to decide the case. I regard it as one of the
most effective means of popular education at societys disposal.
Alexis de Tocqueville, Democracy in America 275 (Mayer ed. 1969). Unfortunately, as
Amar observes, citizens tend to shirk their duty to serve on
a jury because those who do serve are too often treated shabbily in
a process run byand for the convenience ofrepeat-player regulars. Amar, supra, at
The frustration and inappropriate conduct sometimes manifested by jurors during voir dire and
trial proceedings may be attributable to factors other than the jurors themselves.
Indeed, Amar has gone so far as to claim that the current state
of affairs betrays the jury and the people, and that lawyers, judges, and
law professors must bear much of the blame. Id. at 163.
He goes on to observe that:
[T]he individual juror bears all of the costthe hassle, the inconvenience, the forgone
wagesof jury service. Jury service is not just a right but a
duty; predictably few of us have militantly insisted that we perform this duty.
. . .
. . . .
When academics have publicly weighed in on jury debates in this century,
it has too often been on the wrong sidetrivializing the jury, mocking it,
coming up with new theories for whittling away its power.
Id. at 165-66.
The Halls first maintain that improper juror misconduct entitled them to a new
trial. Specifically, they allege that some of the jury members slept through
portions of the examination of some of the witnesses and the jury instructions.
Thus, the Halls claim that those incidents require a reversal.
We initially observe that trial judges are left to use their discretion when
determining whether alleged juror misconduct has prejudiced the trial process. Fleener v.
Orkin Exterminating Co., 560 N.E.2d 1257, 1259 (Ind. Ct. App. 1990). We
will not find juror misconduct until the complaining party proves to the court
that the juror was actually inattentive and that such inattentiveness resulted in actual
prejudice to the complaining party. Id. Alleged juror misconduct
will not result in a new trial when the complaining party is aware
of the conduct before the verdict is returned and no objection was made
until after the verdict is entered. Great Atl. & Pac. Tea Co.
v. Custin, 13 N.E.2d 542, 547 (Ind. 1938). A contemporaneous objection is
required. Weaver v. State, 702 N.E.2d 750, 753 (Ind. Ct. App. 1998).
Such a rule prevents a party from taking the chance on a
verdict in his favor and then later asserting misconduct of the juror in
an attempt to avoid the effect of the jury verdict. See Monarch
Buick Co. v. Kennedy, 209 N.E.2d 922, 925 (Ind. Ct. App. 1965); see
also New v. Jackson, 95 N.E. 328, 332 (Ind. Ct. App. 1911).
Very recently, our supreme court clarified this rule and observed: when a complaining
party is entitled to seek a new trial, a claim of error arising
from denial of a challenge for cause is waived unless the appellant used
any remaining peremptory challenges to remove the challenged juror or jurors. Merritt
v. Evansville-Vanderburgh Sch. Corp., No. 82S01-0102-CV-98, slip op. at 4 (Ind. April 5,
2002). This long-standing rule is also widely recognized in other states.
Slip op. at 5.
Here, the Halls failed to lodge a contemporaneous objection to the jurors alleged
misconduct. Thus, they have waived the issue. See Weaver, 702 N.E.2d
at 753. Moreover, the Halls merely pointed out that some of the
jury members had closed their eyes on occasion and have not shown how
such alleged inattentiveness resulted in any prejudice to them. Thus, there was
B. Alleged Outbursts
The Halls also maintain that the verdict must be set aside because of
certain outbursts that were made by the jurors during voir dire and at
trial. Appellants Br. at 21-22. They contend that those incidents
amounted to personal bias and prejudice against them such that the verdict may
In addressing this contention, we note that once the jury has been sworn,
the parties waive any objection regarding jury bias due to conduct or acts
that occur during voir dire. Hise v. State, 452 N.E.2d 913, 914
(Ind. 1983). Moreover, revelations made by jury members during the trial that
are addressed by the court at that time with no objection by counsel
are also waived. Short v. State, 443 N.E.2d 298, 306 (Ind. 1982).
Here, the Halls concede that they had the right to repeatedly object or
seek a mistrial under these circumstances. Appellants Br. at 22. Rather,
they remained silent and hoped that all of these peculiarities could be cured.
Appellants Br. at 22. Inasmuch as the Halls did not
raise these issues in a timely fashion, they are waived on appeal.
Waiver notwithstanding, the Halls simply speculate that the jurors had not read the
final instructions and could have considered some improper element in deciding the merits
of the Halls claim. Appellants Br. at 23. In support of
their claim that the jurors were biased, the Halls point to one of
the jurors comments that there were too many personal injury lawsuits being brought
these days. Tr. p. 199-201. Counsel for the Halls was afforded
the opportunity to question the potential juror and he was ultimately struck from
the panel for cause, along with another juror who overheard the conversation.
Tr. p. 201-02, 208. Following juror Bennetts outburst where she whammed a
notebook down on a table and indicated that she had already made up
her mind about the case, the record demonstrates that each of the jurors
were individually interviewed by the trial judge and by counsel. Tr. p.
The record also demonstrates that the trial judge conducted an in camera interview
of Bennett regarding her conduct and the remarks she made in the presence
of the other jurors. Rather than objecting or moving for a mistrial,
counsel for the Halls agreed that the case should proceed. Tr. p.
358-59. At no time did the Halls counsel make a request to
be present during the interview or to have it conducted on the record
so as to preserve the issues for appeal. In light of these
circumstances, the Halls may not be heard to complain at this juncture.
Thus, the Halls may not succeed upon their claim that the verdict should
be set aside because of juror misconduct.
Perhaps in response to instances like those that occurred at this trial, along
with the observations that the commentators quoted above have made, it is noteworthy
that our supreme court recently ordered the statewide adoption of Indiana Jury Rules
that will become effective January 1, 2003. These new rules provide explicit
guidance and directives to our trial judges and legal counsel so that the
jurors might become better educated in the various aspects of our legal system
generally, as well as the specific case for which they sit. The
rules set forth specific standards for qualifications that must be satisfied before a
juror becomes eligible to serve,
See footnote and information regarding compensation, proper attire, meals,See footnote confidentiality
and privacy policies with respect to juror questionnaires is to be provided to
the jurors.See footnote Guidelines with respect to peremptory challenges and those for cause
have been established.See footnote The trial judge is also required to introduce the
panel to the case, describe the standards of conduct that the jurors should
follow, the relevant standard and burdens of proof and the anticipated course of
the proceedings.See footnote The rules also permit the parties to present brief statements
of the facts of the case and issues with the judges consent to
facilitate the jury panels understanding of the case.See footnote The trial court may
also authorize the use of juror trial books containing the instructions, information regarding
the anticipated trial schedule, witness lists and copies of exhibits admitted for trial.See footnote
Additionally, when the trial judge delivers the preliminary instructions, the jurors must be
informed that they are permitted to take notes during the trial and they
may seek to ask questions of witnesses by submitting the proposed inquiries in
writing.See footnote Jurors are also to be given copies of the written
instructions before they are read to them, and they are permitted to retain
those instructions during deliberations.See footnote If the case has reached an impasse, the
new rules permit the trial judge, in the presence of counsel, to question
the jurors and determine whether and how the court and counsel can assist
them in their deliberative process.See footnote
Hopefully, these new rules will aid in educating the jurors and will promote
a better understanding of their vital role within our legal system. Additionally,
Hoosier jurors may very well be provided with an opportunity to reconnect with
their fellow citizens and their government. Moreover, the application of the rules
may communicate to jurors that their time is valued.
The jury rules may also ward off those instances of inattention and frustration
that often occur in a jury trial setting. Put another way, the
recent overhaul of the manner in which juries receive information and are treated
by counsel and the courts alike, may prevent some incidents from occurring like
those at this trial.
II. Verdict as Contrary to Law and Judgment On the Evidence
The Halls next claim that the verdict for Eastland Mall was against the
weight of the evidence and contrary to law. Thus, they contend that
the trial courts denial of their motion to correct error, because there was
an alleged lack of evidence to support the verdict, amounted to an abuse
In addressing this issue, we initially observe that the Halls are appealing from
a negative judgment. Thus, we will not reverse the trial courts judgment
unless it is contrary to law.
Commr, Dept of Envtl. Mgmt v.
RLG, Inc., 755 N.E.2d 556, 559 (Ind. 2001). We will consider the
evidence in the light most favorable to the appellee and will reverse the
judgment only if the evidence leads to but one conclusion and the trial
court reached an opposite conclusion. Id. Additionally, in considering whether the
trial court erred in denying the Halls motion for a judgment on the
evidence, we turn to the provisions of Ind. Trial Rule 50(A):
[w]here all or some of the issues in a case tried before a
jury or an advisory jury are not supported by sufficient evidence or a
verdict thereon is clearly erroneous as contrary to the evidence because the evidence
is insufficient to support it, the court shall withdraw such issues from the
jury and enter judgment thereon or shall enter judgment thereon notwithstanding a verdict.
The mere allegation of a fall is insufficient to establish negligence, and negligence
cannot be inferred from the mere fact of a fall. Wright Corp. v.
Quack, 526 N.E.2d 216, 218 (Ind. Ct. App. 1988), trans. denied. Additionally,
to recover upon a negligence claim, a plaintiff must prove that the defendant
owed the plaintiff a duty of care that the defendant breached, proximately causing
the injury. Deuitch v. Fleming, 746 N.E.2d 993, 998 (Ind. Ct. App.
2001). Absent factual evidence, negligence cannot be supported by an inferred chain
of events. Wright, 526 N.E.2d at 218.
In addressing the Halls claims, the evidence presented at trial in a light
most favorable to the verdict demonstrated that no one could specifically recall that
it had rained or snowed on the day of the incident. Appellants
App. p. 481, 639. There was no evidence that the drainage
was inadequate on the day of the incident. Appellants App. p. 272,
396. It was further established that Eastland Mall had a twenty-four-hour maintenance
crew on duty and mall personnel swept the lot on a daily basis.
Moreover, Eastland Mall maintained a contract for the removal of snow and
ice. Appellants App. p. 272, 394-95. At the time of Debras
fall, Eastland Mall security was patrolling the parking lot. Appellants App. p.
271. Personnel at Eastland Mall acknowledged that the lighting in the parking
lot was adequate, Appellants App. p. 276, and it was established that Debra
had no difficulty walking into the mall. Appellants App. p. 639.
The other witnesses had no problems walking to and from the mall and
it had neither rained nor snowed while they were inside. Appellants App.
The substance that Debra had presumably fallen on was identified as black ice;
a substance that was extremely difficult to see. Appellants App. p. 234,
261, 640. Neither Debra nor anyone else in her party observed what
she had slipped on prior to her fall. Appellants App. p. 640.
Several witnesses testified that, after the incident occurred, they almost had to
get on their hands and knees to notice the black ice. Appellants
App. p. 234, 261, 640.
In light of this evidence, the evidence failed to demonstrate that Eastland Mall
breached any duty to Debra that was the proximate cause of her injuries.
While we are sympathetic to the Halls plight, it was reasonable for
the jury to have concluded that Debra fell and injured herself, through no
fault of Eastland Mall. Thus, we decline to disturb the verdict.
SULLIVAN, J., and DARDEN, J., concur.
Ind. Jury Rule 5.
Footnote: J. R. 4.
Footnote: J. R. 10.
Footnote: J.R. 17, 18.
Footnote: J.R. 14.
Footnote: J.R. 12.
Footnote: J.R. 23.
Footnote: J.R. 20.
Footnote: J.R. 26.
Footnote: J.R. 28.