holding that a plaintiff was not prejudiced during jury selection when a trial court 16 erred in refusing to excuse a juror for cause who stated he might not be impartial, but 17 the plaintiff did not use all of her peremptory challenges
How later courts described this case
- holding that a plaintiff was not prejudiced during jury selection when a trial court 16 erred in refusing to excuse a juror for cause who stated he might not be impartial, but 17 the plaintiff did not use all of her peremptory challenges
- stating that 7 the appellate court reviews “jury instructions de novo to determine whether they 8 correctly state the law” (internal quotation marks and citation omitted)
- stating that the appellate court reviews “jury instructions de novo to determine whether they correctly state the law” (internal quotation marks and citation omitted)
- finding no abuse of discretion where the 2 plaintiff failed to meet his burden of showing “how the statements [made during 3 closing argument] caused an improper judgment” or, in other words, caused 4 prejudice
Written by the judges who cited it.
The opinion
BOSSON, Justice (concurring in part and dissenting in part).
{28} I concur with the first two portions of the Court’s opinion. I also agree that, having been requested to do so, the trial court should have given the “slip and fall” instruction, UJI 13-1318 NMRA, along with the standard instruction for a city’s duty to use ordinary care to maintain its streets and alleys. See UJI 13-1317 NMRA. I also agree that UJI 13-1318 would have added two things in Plaintiffs favor: the City’s duty of reasonable care whether or not the defect is open and obvious, and the City’s duty of reasonable inspection to become aware of unknown risks. Why then, this dissent?
{29} I cannot agree to reverse and remand for a new trial because Plaintiff has not demonstrated that she suffered any prejudice from the lack of these specific instructions. This was not a trial in which the City argued that the raised water meter was so obvious that it had no duty of care. This was not a trial in which the City argued that it had no way of knowing that the raised water meter presented an unreasonable risk of harm. The City argued that the water meter posed no risk at all. The City’s primary defense was that Plaintiff never tripped over the water meter, but instead broke her ankle when she had to step from the back of the building into an alley off a large drop because proper stairs had not been installed by the building owner. Apparently the jury was convinced.
{30} In other words, the two key advantages UJI 13-1318 affords a plaintiff over UJI 13-1317 do not appear to have been at issue in this trial. Instead the City argued other points in its defense and ultimately the jury agreed. Thus, it looks like we are providing Plaintiff with a new trial because of trial error which caused her no prejudice. In effect, Plaintiff gets a free pass. Litigants are entitled to fair trials, not perfect trials. Having received a fair trial and lost, Plaintiff is not entitled to more. I think the Court of Appeals got it exactly right and would affirm on this issue as well.
I CONCUR: PAMELA B. MINZNER, Justice.