Torts (Premises Liability): O’HAIR V. WELLS (COA 8/18/2006)

TORTS:  Premises liability (fall down stairs at funeral home)
DATE RENDERED:  8/18/2006

Trial judge’s denial of plaintiff’s motion to strike jurors is harmless error when peremptory strikes are used and causation is not to be presumed in premises liability case even if neglence per se.

This is an appeal from a judgment pursuant to a jury verdict in a wrongful death case finding that the owner of a funeral home was not liable for the decedent’s fall down the stairs of the funeral home. Regarding appellant’s claim that the trial court erroneously failed to strike three potential jurors for cause, COA held that trial court’s error was harmless when it failed to strike two of the potential jurors since peremptory strikes were used to excuse the jurors, thus, they did not serve on the jury. The third juror was properly allowed to serve on the jury.  COA rejected  appellant’s arguments that causation was to be presumed because it was a negligence per se case and there was no other evidence of the cause of the fall other than the code violations. The trial court properly allowed in evidence that the decedent’s wife was continuing to receive income from certain rental properties.

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