MICHELLE M. SMITH, APPELLANT
KARTIKA HOPPER, APPELLEE
APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT. NO. CV-12-1079. HONORABLE J. MICHAEL FITZHUGH, JUDGE.
Stephen M. Sharum; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.
Robertson, Beasley & Ford, PLLC, by: John R. Beasley, for appellee.
RHONDA K. WOOD, Associate Justice. DANIELSON, BAKER, and HART, JJ., dissent. KAREN R. BAKER, Justice, dissenting.
RHONDA K. WOOD, Associate Justice
This is an appeal from the grant of a new trial. Appellant, plaintiff below, sued for negligence; after a trial, the jury
awarded damages. Appellee, defendant below, filed a motion for a new trial, complaining that plaintiff's counsel had misrepresented certain facts to the jury during closing argument. We hold that the circuit court acted within its discretion when it granted appellee a new trial; accordingly, we affirm.
This case arose from a pedestrian collision. Kartika Hopper was driving her car, turned at an intersection, and suddenly collided with Michelle Smith in a crosswalk. Smith sued Hopper for negligence. The central factual dispute at the jury trial was whether the traffic signal read " Walk" or " Don't Walk" when Smith entered the crosswalk. A police officer testified that Smith had told him, right after the accident, that the traffic signal read " Don't Walk." On the other hand, a paramedic testified that she could not recall police officers speaking with Smith at the accident scene, and Smith herself testified that the sign read " Walk."
Because the police officer's testimony was the crux of Hopper's case, Smith's counsel tried to call his credibility into question. Specifically, during rebuttal closing arguments, Smith's counsel made the following statements about the police officer's written accident report:
And [the police officer], in my humble opinion, was written up for this.
. . . .
The report was just a disaster. We feel like that [the police officer] got reprimanded for that and that's why he said what he said.
Once Smith's counsel ended his rebuttal closing argument, the circuit court asked the attorneys to approach the bench, and the following colloquy took place:
Court: Was there ever any testimony or any evidence at all in this trial about this officer being written up and reprimanded?
Smith's counsel: No, that is my subjective belief.
Hopper's counsel: We would request a limiting instruction.
Court: Yes, I am going to tell them to disregard that argument.
. . . .
I am going to tell them that there has been ...