STUART, Justice.
Rebecca B. McDonald ("McDonald"), as administrator of the estate of Jeremy Wayne McDonald ("Jeremy") her deceased son, sued Kubota Manufacturing of America Corporation ("KMA"), Kubota Corporation ("KC"), and Kubota Tractor Corporation ("KTC") (these defendants are hereinafter referred to collectively as "the Kubota defendants"), asserting various claims after her son died as a result of injuries sustained when a Kubota ZD18 zero-turn lawnmower ("the ZD18 mower") he was operating rolled over, pinning him underneath it. Following a three-week trial, the jury returned a verdict in favor of the Kubota defendants, and the trial court entered a judgment on that verdict. McDonald's subsequent motion for a new trial was denied by the trial court, and McDonald now appeals, arguing that she is entitled to a new trial based on juror misconduct and errors the trial court made when instructing the jury. We affirm.
On June 19, 2009, Jeremy, a laborer for the Town of Thorsby, began working at approximately 5:00 a.m., spraying for mosquitoes for approximately two hours before returning to the public-works shop at approximately 7:00 a.m. for further instructions from his supervisor, Terry Jackson. Jackson instructed him to finish mowing the lawn at the fire department and then to mow the grass at the girls' softball field. Jackson was initially with Jeremy at the fire department, but he left at approximately 8:15 a.m. to travel to another location where a worker was having equipment problems. When Jackson left, Jeremy had the ZD18 mower he was using loaded onto a trailer and was preparing to leave for the softball field, which is approximately two blocks away.
At trial, Jackson testified that there was a heavy dew on the grass that morning and that he instructed Jeremy to mow the flat softball field before mowing the areas surrounding the field in order to allow the surrounding areas, which bordered sloping areas that had to be mowed either with push mowers or using power trimmers, additional time to dry. However, it appears that Jeremy first began mowing one of the areas surrounding the field. Although there were no witnesses to the accident, Jeremy apparently lost control of the ZD18 mower when he got too close to a slope, causing the ZD18 mower to lose traction and start sliding down the slope before hitting a small ditch or hole, where the 1,170-pound ZD18 mower rolled over on top of Jeremy, pinning him to the ground. At approximately 9:30 a.m., Jackson was returning to the area and was traveling past the softball field when a neighbor waved him down and told him a lawnmower was overturned near the field. Jackson and the neighbor then went to the lawnmower and discovered Jeremy underneath it; however, by that time Jeremy was deceased.
The ZD18 mower Jeremy was using at the time of the accident was designed in Japan by KC, manufactured by KMA at its Georgia plant, and distributed in the United States by KTC, a California-based corporation. At the time the ZD18 mower was first brought to market in 2001, it did not include any type of seatbelt or roll-over
The ZD18 mower in the instant case was purchased by the Town of Thorsby in May 2002 from Clanton Tractor & Equipment, Inc. ("CTE"); it did not come retrofitted with the ROPS and seatbelt kit. A KTC representative testified that service bulletins and other communications regarding the ROPS- and seatbelt-retrofit kits for ZD18s were sent to CTE both through e-mail and United States mail in February, March, and April 2002, and again annually at least through 2009; however, CTE's president could not recall ever receiving the information. The Town of Thorsby took the ZD18 to CTE for maintenance at least annually after its purchase but was never advised that a ROPS- and seatbelt-retrofit kit was available.
On June 7, 2010, McDonald sued KMA and CTE, asserting claims of breach of warranty, defective design under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), negligence, and wantonness. KC and KTC were subsequently added as defendants. On February 22, 2012, McDonald entered into a pro tanto settlement with CTE, and CTE was dismissed from the case. On March 6, 2012, the case against the Kubota defendants proceeded to trial. Following the close of McDonald's case, the trial court granted the Kubota defendants' motion for a judgment as a matter of law on McDonald's breach-of-warranty claim. The remaining claims were thereafter submitted to the jury, and, on March 22, 2012, the jury returned a verdict in favor of the Kubota defendants on all counts; the trial court thereafter entered judgment on that verdict in favor of the Kubota defendants. On May 4, 2012, McDonald moved for a new trial, alleging, among other things, that a juror had failed to give truthful responses during voir dire and that the trial court had failed to properly charge the jury. The Kubota defendants opposed the motion, and, following a hearing, the trial court denied the motion on July 15, 2012. On August 21, 2012, McDonald filed her notice of appeal.
McDonald argues that the trial court erred by denying her motion for a new trial. In McBride v. Sheppard, 624 So.2d 1069, 1070-71 (Ala.1993), this Court stated:
Thus, we review the decision of the trial court to determine whether it exceeded its discretion in denying McDonald's motion for a new trial.
McDonald's first argument is that the trial court exceeded its discretion in denying her motion for a new trial based on juror misconduct because, McDonald
595 So.2d at 1342-43. Applying these principles from Barlow to the facts of the instant case, it is apparent that the trial court did not exceed its discretion by failing to grant McDonald a new trial on the basis of juror misconduct.
With regard to McDonald's assertion that J.L. failed to disclose that he knew the witness Terry Jackson, there is no evidence indicating that J.L., in fact, knew Terry Jackson. McDonald's asserted factual basis for this claim is that Terry Jackson's brother, Ricky Jackson, is married to J.L.'s niece and that J.L. was struck from a jury venire in a 1995 criminal case because the defendant was Ricky Jackson's sister. However, none of this establishes that J.L. knew the witness Terry Jackson, though he apparently knew two other Jackson siblings.
McDonald next argues that she was entitled to a new trial because J.L. failed to disclose that he had a contract to perform grass and brush-cutting services for the City of Calera. McDonald states that this information was material because of the similarities between the work J.L.
At the outset of the voir dire proceedings, potential jurors were asked to stand and to state their name, their spouse's name, and the type of work they and their spouse do. Individual responses were not placed in the record; however, a subsequent exchange indicates that J.L. stated at that time that he was retired from working in the timber industry. When the venire was asked if anybody had a "business relationship with any Kubota entity," J.L. responded affirmatively, and the following exchange took place with McDonald's counsel:
Subsequently, counsel for McDonald questioned other members of the venire who also indicated that they had some sort of relationship with a Kubota entity, including S.P., whose dad used a Kubota tractor in his lawn-care company; D.S., who was retired from Bush Hog, Inc., and who had worked with Kubota lawn mowers in that capacity; C.M., who owned a Kubota tractor and had financed a Kubota utility vehicle; and C.S., whose husband was a diesel mechanic and worked on Kubota equipment
One additional member of the venire then identified himself as owning a Kubota tractor. After questioning him, counsel for McDonald asked one more time: "Anyone else here work with tractors or equipment? I think I've got everybody's name." No additional responses were elicited, and counsel moved on to other topics.
At the hearing on McDonald's motion for a new trial, J.L. was called to testify, and he stated that he worked part-time approximately 15 hours a week under a contract with the City of Calera pulling a mower with his tractor. He further stated that, although he had been awarded the contract in the weeks before the trial, he did not begin working under the contract until after the trial and that he had previously done some similar work for Calera on a noncontract, as needed, basis. He also stated that he had never performed similar work for any other municipality and that he had not intentionally withheld any information during voir dire.
Based on this record, the trial court would have been justified in concluding that J.L. was honest and forthcoming during voir dire. Notably, J.L. was the first member of the venire to identify himself as owning Kubota equipment, and he thereafter answered all of counsel's questions concerning the type of Kubota equipment he owned, i.e., agricultural tractors. Counsel did not specifically ask him if he ever used his Kubota tractors for commercial purposes. Moreover, counsel's later question to the venire as a whole, asking if "anyone else" was in a business involving frequent contact with a tractor or mower did not clearly call for a response from J.L. because he had already identified himself as owning Kubota tractors. In Davis v. State, 51 Ala.App. 200, 283 So.2d 650 (Ala. Crim.App.1973), the Court of Criminal Appeals reviewed a trial court's decision denying a motion for a new trial because a juror allegedly had failed to disclose that his father worked in law enforcement. After reviewing the record, the court affirmed the trial court's judgment, stating:
51 Ala.App. at 202, 283 So.2d at 652 (final emphasis added). See also Boudreaux v. Pettaway, 108 So.3d 486, 495 (Ala.2012) ("Given the phrasing of the voir dire questions posed by defense counsel, the absence of any demonstration of willfulness on the part of allegedly untruthful jurors, the lack of materiality of the alleged undisclosed matters, and the limited scope of our review, we are unable to hold that the trial court exceeded its discretion in concluding both that the cause of the failures to respond was misunderstanding of the
McDonald also argues that she is entitled to a new trial based on the trial court's failure to give the jury certain instructions she requested, while giving the jury instructions requested by the Kubota defendants, which McDonald argues were not supported by the evidence. Specifically, the trial court rejected McDonald's proposed jury instructions concerning combined and concurring negligence and gave instructions proposed by the Kubota defendants regarding their affirmative defense of assumption of the risk, while rejecting McDonald's proposed instructions on that issue. The Kubota defendants argue not only that the trial court correctly instructed the jury, but also that McDonald waived any arguments to the contrary by failing to make sufficiently specific objections at trial.
We first consider whether McDonald's arguments that the jury was improperly charged are properly before us. In Henriksen v. Roth, 12 So.3d 652, 660-61 (Ala.2008), we considered a similar argument:
Thus, in Henriksen, we held that counsel's objection to "[t]he reading of the Roth defendants' jury charge number 17 on emergency" was not "specific enough to preserve any alleged error for review on appeal." 12 So.3d at 660-61.
In the instant case, the trial court charged the jury and then asked whether "the plaintiff [was] satisfied with the court's instructions." Counsel for McDonald replied: "Your Honor, the plaintiff takes exception to the court not giving the plaintiff's charge number 43, number 44, number 45, number 47, 48, 49, 50, 51, 52, 53, and 54. Otherwise, we're satisfied." McDonald argues that the spirit of Rule 51, Ala. R. Civ. P., was complied with by her objection, inasmuch as she had previously stated specific objections regarding the jury instructions in the charge conference conducted by the trial court before the jury instructions were given. Accordingly, she argues, "there is no real disagreement that the trial court was presented with [her] reasons and arguments." (McDonald's brief, p. 58 n. 19.) The Kubota defendants emphasize that the charge conference was not transcribed and was not made a part of the record.
These are essentially the same facts as in Henriksen, in which we noted that, during the off-the-record charge conference, "Henriksen's counsel apparently made specific objections to the trial court's refusal to read Henriksen's requested
Following a three-week trial, the jury returned a verdict in favor of the Kubota defendants on the AEMLD, negligence, and wantonness claims asserted against them by McDonald following her son Jeremy's death in an accident involving a Kubota ZD18 mower. The trial court entered judgment accordingly and denied McDonald's subsequent motion seeking a new trial on grounds of juror misconduct and the giving of improper jury instructions. For the reasons stated above, the trial court did not exceed its discretion in denying that motion for a new trial; its judgment is hereby affirmed.
AFFIRMED.
MOORE, C.J., and PARKER and WISE, JJ., concur.
SHAW, J., concurs in the result.