Jessop v. Hardman

2014 UT App 28
_________________________________________________________
THE UTAH COURT OF APPEALS
SHAWN JESSOP,
Plaintiff and Appellant,
v.
SHELDON HARDMAN,
Defendant and Appellee.
Opinion
No. 20120224-CA
Filed January 30, 2014
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 070905613
Darwin L. Overson, Attorney for Appellant
Scott W. Christensen and Jeremy M. Seeley,
Attorneys for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES GREGORY K. ORME and JAMES Z. DAVIS concurred.
VOROS, Judge:
¶1 This appeal arises from an accident in which an eight-
month-old child, Casey Jessop, pulled a hot iron down onto himself
while in the home of his father’s friend. The child’s mother sued the
friend, but the jury found that he was not at fault. The child’s
mother appeals, contending that the verdict was unsupported by
the evidence and was coerced. We affirm.
BACKGROUND
¶2 Justin Jessop (Father) had been living in his friend Sheldon
Hardman’s home for several months. Father frequently brought his

Jessop v. Hardman
1. Sometimes Father put his children in the bedroom occupied by
Father and sometimes in the bedroom occupied by Hardman’s
daughter, depending on whether Father’s children were spending
the night and whether Hardman’s teenage children were sleeping
there.
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three-year-old son and his twin eight-month-old sons (one of
whom was Casey) with him to the home. He did so on July 14,
2004. Around 3:00 p.m., Hardman was ironing shirts in the
bedroom used by Hardman’s daughter. He used an older iron that1
had neither an indicator light nor an automatic shutoff feature.
When the phone rang, Hardman left the room and closed the door
behind him but left the iron plugged in.
¶3 Father arrived with the children around 7:30 p.m. About an
hour later, he placed the twins in the bedroom used by Hardman’s
daughter. He left them sleeping and unbuckled in their car seats on
the floor near the ironing board. He then went downstairs to bathe
his older son. Sometime thereafter, Hardman heard crying and
then screaming coming from the bedroom. He went to the
bedroom and saw that the hot iron had fallen onto Casey’s arm.
Casey suffered severe injuries.
¶4 Casey’s mother, Shawn Jessop (Mother), sued Hardman
individually and on Casey’s behalf, alleging negligence. After a
four-day trial, the jury returned a verdict of no fault on Hardman’s
part. Mother’s counsel moved for a new trial, alleging insufficient
evidence to support the verdict and “irregularit[ies] in the
proceedings” as reported by one of the jurors. The trial court
denied the motion, and Mother appeals.
ISSUES AND STANDARDS OF REVIEW
¶5 Mother first contends that the trial court abused its
discretion in denying her motion for new trial based on
insufficiency of the evidence. “The trial court’s denial of a motion

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20120224-CA 3 2014 UT App 28
for a new trial will be reversed only if ‘the evidence to support the
verdict was completely lacking or was so slight and unconvincing
as to make the verdict plainly unreasonable and unjust.’” Mann v.
Fredrickson, 2006 UT App 475, ¶ 8, 153 P.3d 768 (quoting Nelson v.
Trujillo, 657 P.2d 730, 732 (Utah 1982)).
¶6 Mother next contends that the trial court abused its
discretion in denying her motion, because the jury was “coerced.”
She argues that “several jurors felt time constrained to reach a
verdict—any verdict.” “In reviewing the judge’s ultimate decision
to grant or deny a new trial, we will reverse only if there is no
reasonable basis for the decision.” Crookston v. Fire Ins. Exch., 817
P.2d 789, 805 (Utah 1991).
¶7 Finally, Mother contends that the trial court improperly
struck portions of a juror’s declaration under rule 606(b) of the
Utah Rules of Evidence. “We review a district court’s decision to
strike affidavits under an abuse of discretion standard.” Cabaness
v. Thomas, 2010 UT 23, ¶ 50, 232 P.3d 486; see also Munafo v.
Metropolitan Transp. Auth., 381 F.3d 99, 107–08 (2d Cir. 2004)
(reviewing for an abuse of discretion a ruling that juror affidavits
were inadmissible under Rule 606(b) of the Federal Rules of
Evidence).
ANALYSIS
I. Motion for New Trial
¶8 Mother contends that the trial court abused its discretion in
denying her motion for new trial based on insufficiency of the
evidence. She argues that the trial court’s denial of her motion for
new trial was “an abuse of discretion because the verdict of no fault
[on behalf of Hardman] was against the clear weight of the
evidence, was patently unreasonable, and [was] manifestly
[unjust].” She maintains that a “review of the evidence presented

Jessop v. Hardman
2. Mother also contends that the trial court applied an incorrect
standard of law when it denied her motion for new trial. However,
the challenged statement was actually spoken by defense counsel.
Thus, even if the passage articulated the wrong standard—which
is not at all clear—we could conclude from it only that defense
counsel, not the court, was confused.
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at trial in a light most favorable to the verdict shows that a new
trial should have been granted.”2
¶9 A new trial may be granted when the evidence is insufficient
to justify the verdict. Utah R. Civ. P. 59(a)(6). However, a trial court
“cannot grant a new trial if there is sufficient evidence to support
a verdict for either party and the judge merely disagrees with the
judgment of the jury.” Crookston, 817 P.2d at 799 n.9. “The power
of a trial judge to order a new trial is to be used in those rare cases
when a jury verdict is manifestly against the weight of the
evidence.” Braithwaite v. West Valley City, 921 P.2d 997, 1001 (Utah
1996) (citation and internal quotation marks omitted).
¶10 “A motion for a new trial invokes the sound discretion of the
trial court, and appellate review of its ruling is quite limited.” ASC
Utah, Inc. v. Wolf Mountain Resorts, LC, 2013 UT 24, ¶ 21, 309 P.3d
201 (citations and internal quotation marks omitted). “A party
claiming that the evidence does not support a jury’s verdict carries
a heavy burden. The evidence is considered in the light most
supportive of the verdict, and we will not substitute our judgment
for that of the jury where the verdict is supported by substantial
and competent evidence.” Von Hake v. Thomas, 705 P.2d 766, 769
(Utah 1985) (citation omitted). “The trial court’s denial of a motion
for a new trial will be reversed only if ‘the evidence to support the
verdict was completely lacking or was so slight and unconvincing
as to make the verdict plainly unreasonable and unjust.’” Mann v.
Fredrickson, 2006 UT App 475, ¶ 8, 153 P.3d 768 (quoting Nelson v.
Trujillo, 657 P.2d 730, 732 (Utah 1982)).
¶11 Here, the record does not establish that the jury’s verdict
was “plainly unreasonable and unjust.” Hardman was interrupted

Jessop v. Hardman
20120224-CA 5 2014 UT App 28
while ironing in his daughter’s bedroom. He left the room and
closed the door. Some four hours later, Father arrived and put the
twins in one of the two available bedrooms; Hardman did not
know which. Father set the twins down next to the ironing board.
The twins were asleep in their car seats and Father unbuckled
them. Father acknowledged that an ordinarily observant person
walking into the bedroom could have seen the iron, the ironing
board, and the cord; that the iron was in a position where it could
fall on Casey; that Father didn’t notice it because he probably
wasn’t paying attention; and that the iron would have been
dangerous even if it had not been hot. Finally, Father did not ask
Hardman to watch the children—in fact he acknowledged that he
himself was responsible for their care.
¶12 The trial court instructed the jury that “[i]f an unsafe
condition on the property is so obvious that a person could
reasonably be expected to observe it, then Sheldon Hardman does
not have to warn others about the dangerous condition.” The trial
court further instructed the jury that to succeed in her claim,
Mother was required to prove that Hardman “knew or had reason
to know that [Father] would not discover [that] the iron had been
left on and unattended in [the daughter’s bedroom] or realize its
danger” and that Father “did not discover the iron had been left on
and unattended in bedroom number one or did not realize its
danger.”
¶13 Bearing in mind the limited scope of our review of a trial
court’s denial of a motion for new trial, and viewing the evidence
in the light most supportive of the verdict, we cannot say that the
evidence here was “completely lacking or was so slight and
unconvincing as to make the verdict plainly unreasonable and
unjust.” See Mann, 2006 UT App 475, ¶ 8 (citation and internal
quotation marks omitted).
II. Coerced Verdict
¶14 Mother next contends that the jury’s verdict was “coerced
because several jurors felt time constrained to reach a verdict—any

Jessop v. Hardman
3. The Allen instruction takes its name from Allen v. United States,
164 U.S. 492 (1896). “In that case, the United States Supreme Court
approved the use of supplemental jury instructions to help a
deadlocked jury reach a unanimous verdict. This type of jury
instruction is also referred to as a ‘dynamite’ instruction,
‘verdict-urging’ instruction, or ‘hammer’ instruction.” State v.
Ginter, 2013 UT App 92, ¶ 4 n.2, 300 P.3d 1278 (citations omitted).
20120224-CA 6 2014 UT App 28
verdict.” Specifically, Mother argues that the bailiff’s refusal to
allow two jurors to make phone calls to change evening
arrangements had a coercive effect. Based on this premise, Mother
filed a motion for new trial, which the trial court denied. As
explained above, see supra ¶¶ 9–10, “[i]n reviewing the judge’s
ultimate decision to grant or deny a new trial,” this court “will
reverse only if there is no reasonable basis for the decision.”
Crookston v. Fire Ins. Exch., 817 P.2d 789, 805 (Utah 1991).
¶15 Mother infers coercion from the circumstances of the jury’s
deliberations; no Allen-type instruction was given. Throughout the3
trial, the court had told the jury that trial would “generally” run
until 5:00 p.m., that on “Thursday [they’d] be done,” and that trial
would be “done by 5” on that day. The trial court anticipated that
argument would end by noon on that Thursday and that the case
would be submitted to the jury early in the afternoon. However,
the case was in fact not submitted to the jury until 4:16 p.m. on that
day. Just before deliberations began, the bailiff asked the jurors to
turn over their phones. Two jurors asked if they could make phone
calls to let others know that the trial was running later than they
expected. Specifically, one juror explained that she was scheduled
to pick up her daughter from the babysitter at 5:30 p.m. and needed
to make other arrangements. Another apparently needed to cancel
plans for that evening. The bailiff denied both requests, and the
jury began deliberations.
¶16 The court instructed the jury, “The bailiff cannot answer
questions, but if you have questions, you may place them in
writing and [the judge] will respond to your questions after

Jessop v. Hardman
20120224-CA 7 2014 UT App 28
discussing [them] with counsel.” And in fact the jury sent out two
different questions to the judge, one at 5:29 p.m. and one at 5:59
p.m., to which he responded in writing. At approximately 6:20
p.m., the jury returned a verdict of “no fault” on the issue of
Hardman’s negligence.
¶17 Mother later moved for a new trial under rule 59(a)(1) of the
Utah Rules of Civil Procedure. That rule authorizes a trial court to
grant a new trial based on“[i]rregularity in the proceedings of the
court, jury or adverse party, or any order of the court, or abuse of
discretion by which either party was prevented from having a fair
trial.” Utah R. Civ. P. 59(a)(1). The trial court denied the motion.
¶18 While acknowledging that no Allen instruction was given,
Mother nevertheless relies on cases involving Allen instructions or
other circumstances unlike those presented here. For example, in
Lucas v. American Manufacturing Co., the trial judge told jurors that
due to an approaching hurricane they “must reach a verdict within
fifteen minutes or return at a later date.” 630 F.2d 291, 293 (5th Cir.
1980). And in Witco Chemical Corp. v. Peachtree Doors, Inc., after a
seven-week trial, the judge excused the jurors indefinitely, only to
recall them six weeks later. 787 F.2d 1545, 1548–49 (Fed. Cir. 1986).
These cases offer little useful guidance.
¶19 In response, Hardman relies on two Utah cases. The first is
Clayton v. Ford Motor Co., 2009 UT App 154, 214 P.3d 865. In that
case, “the jurors began deliberations mid-afternoon on a Friday; the
trial court told the jurors they would not be able to use their
phones during sequestration; the jurors did not break for lunch; the
jurors were allowed back into the courtroom to examine the
evidence for only five to seven minutes; and the jurors deliberated
for only six hours.” Id. ¶ 40. The plaintiffs argued that “the jury
was not given an adequate opportunity to deliberate: it was rushed
and hungry and thus coerced.” Id. This court did not agree that the
jurors were coerced. Id. ¶ 41. We noted that the trial court has wide
latitude in controlling its docket, that the jurors expressed no

Jessop v. Hardman
4. Mother’s counsel stated in the motion hearing that he (counsel)
did not speak with the two jurors in question after trial, as “they
left immediately.”
20120224-CA 8 2014 UT App 28
concerns about being rushed, that they had several breaks during
the day, and that they chose not to break for lunch. Id.
¶20 The second case Hardman cites is State v. Boyd, 2001 UT 30,
25 P.3d 985. There, the jury began deliberating after 5:00 p.m. and
returned its verdict five or six hours later. Id. ¶ 47. The defendant
argued that the trial court’s failure to advise the jury that they
could adjourn and return the next day to continue deliberating was
tantamount to coercing the verdict. Id. The Utah Supreme Court
readily concluded that the verdict was not coerced. The jury “never
reported any difficulties in reaching a verdict, nor did it express a
desire to halt deliberations for the evening.” Id. ¶ 49.
¶21 We likewise conclude that the trial court did not abuse its
discretion in denying Mother’s motion for new trial based on jury
coercion. This case is comparable to Clayton and Boyd. The trial
judge did not give an Allen instruction, impose time limits on the
jury, or otherwise urge the jurors to deliberate quickly. Indeed, no
act of the trial judge is even at issue here. Moreover, the jurors
knew how to communicate with the judge and in fact did so twice
during deliberations, yet they never expressed concern over the
timing of their deliberations. They deliberated for two hours. The
judge stated that he met with all the jurors afterward and none
mentioned a time constraint. We see no abuse of discretion here.4
III. Juror’s Declaration
¶22 Finally, Mother contends that the trial court improperly
struck portions of a juror’s declaration. She asserts that the struck
allegations fell within an exception to the general rule excluding
juror testimony. “We review a district court’s decision to strike
affidavits under an abuse of discretion standard.” Cabaness v.
Thomas, 2010 UT 23, ¶ 50, 232 P.3d 486.

Jessop v. Hardman
20120224-CA 9 2014 UT App 28
¶23 In support of her motion for new trial, Mother submitted a
declaration of one of the trial jurors. Paragraph 4 of the
declaration—not at issue on appeal—described the bailiff’s actions
in not permitting the jurors to make outside calls before beginning
deliberations at 4:30 p.m. on the last day of trial:
When the bailiff escorted the jury to the deliberation
room, the bailiff asked the jurors to turn over their
cell phones. Several jurors asked that they be
permitted to call and let others know that they would
be later than they had anticipated. One juror
indicated that she needed to make arrangements for
her daughter to be taken care of for that evening.
Another juror indicated that she had made
arrangements for that night and needed to cancel
those arrangements. The bailiff said that that would
not be allowed and took all of the jurors’ telephones
and would not give us access to any other means of
calling to inform anyone that we would be later than
had been anticipated.
In addition, paragraph 6 of the declaration—at issue on
appeal—described the declarant’s opinion of the effect of the
bailiff’s actions on jury deliberations:
Shortly after 6:00 p.m., the jury returned a verdict in
favor of the defendant after the two jurors mentioned
above changed their vote. Those two jurors appeared
to me to be anxious due to their not being able to
contact others outside the deliberation room to make
arrangements for deliberations running later than
had been anticipated. I believe the time constraints
that were placed on the jury played a significant role
in the jury reaching the verdict that it did.
¶24 Hardman moved to strike the declaration under rule 606(b)
of the Utah Rules of Evidence. The court granted the motion as to
paragraph 6. Mother appeals that ruling.

Jessop v. Hardman
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¶25 Rule 606(b)(1) of the Utah Rules of Evidence prohibits
“virtually all inquiries into the jury deliberation process,” State v.
Santana-Ruiz, 2007 UT 59, ¶ 33, 167 P.3d 1038:
During an inquiry into the validity of a verdict or
indictment, a juror may not testify about any
statement made or incident that occurred during the
jury’s deliberations; the effect of anything on that
juror’s or another juror’s vote; or any juror’s mental
processes concerning the verdict or indictment. The
court may not receive a juror’s affidavit or evidence
of a juror’s statement on these matters.
Utah R. Evid. 606(b)(1). Like rules governing other evidentiary
privileges such as the attorney–client privilege or the
priest–penitent privilege, “this rule ‘denies the court access to what
may be relevant information . . . that might, for example, justify a
motion for a new trial.’” State v. Maestas, 2012 UT 46, ¶ 113, 299
P.3d 892 (omission in original) (quoting United States v. Benally, 546
F.3d 1230, 1234 (10th Cir. 2008)). But “it also ensures that ‘jurors
[may] express themselves candidly and vigorously as they discuss
the evidence presented in court.’” Id. (alteration in original)
(quoting Benally, 546 F.3d at 1234).
¶26 As the United States Court of Appeals for the Tenth Circuit
has explained, this rule
insulates the deliberations of the jury from
subsequent second-guessing by the judiciary. Jury
decision-making is designed to be a black box: the
inputs (evidence and argument) are carefully
regulated by law and the output (the verdict) is
publicly announced, but the inner workings and
deliberation of the jury are deliberately insulated
from subsequent review.

Jessop v. Hardman
20120224-CA 11 2014 UT App 28
Benally, 546 F.3d at 1233 (discussing the federal analog to Utah Rule
606(b)(1)). This approach “may seem to offend the search for
perfect justice.” Id. But “[i]f what went on in the jury room were
judicially reviewable for reasonableness or fairness, trials would no
longer truly be by jury, as the Constitution commands. Final
authority would be exercised by whomever is empowered to
decide whether the jury’s decision was reasonable enough, or
based on proper considerations.” Id.
¶27 The prohibition on peering into the black box of jury
deliberations does not extend, however, to extraneous prejudicial
information or outside influence:
A juror may testify about whether:
(A) extraneous prejudicial information was
improperly brought to the jury’s attention; or
(B) an outside influence was improperly
brought to bear on any juror.
Utah R. Evid. 606(b)(2). In State v. Maestas, our supreme court
explained what types of juror misconduct qualify as extraneous
prejudicial information:
Typically, extraneous prejudicial information
cover[s] misconduct such as jurors reading news
reports about the case, jurors communicating with
third parties, bribes, and jury tampering. It includes
the jury’s consideration of evidence not admitted in
court, and instances where a juror conduct[ed] his
own investigation and [brought] the results into the
jury room.
2012 UT 46, ¶ 114 (alterations in original) (citations and internal
quotation marks omitted). “But extraneous prejudicial information
does not include evidence of discussions among jurors . . . .” Id.
(citation and internal quotation marks omitted).

Jessop v. Hardman
5. Mother also makes a three-sentence argument that the trial court
abused its discretion by not holding an evidentiary hearing “on
allegations of irregularities in the proceedings,” which we
understand to mean the allegations in the juror’s declaration. In
support of her argument, Mother cites a non-Utah case involving
a factual dispute over whether a juror was sleeping during
trial—the judge stated that “there was no juror asleep during this
trial” but the juror himself stated that he had been asleep during
trial. See United States v. Barrett, 703 F.2d 1076, 1082–83 (9th Cir.
1983). However, Mother identifies no similar factual dispute in the
present case. Accordingly, even were we to apply Barrett here,
Mother has not shown that the trial court abused its discretion.
20120224-CA 12 2014 UT App 28
¶28 Mother relies principally on Justice Durham’s opinion in
State v. Thomas, 830 P.2d 243 (Utah 1992) (Durham, J., with two
justices concurring in the result). The “unusual facts of [that] case”
splintered the court, and the portion of the opinion on which
Mother relies represented the reasoning of only one justice. See id.
at 248. Moreover, the issue focused on a juror who falsely
answered a question on voir dire. Id. at 244. The passage of the
opinion on which Mother relies unsuccessfully urged the court to
extend the doctrine announced by the United States Supreme
Court in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.
548 (1984). See Thomas, 830 P.2d at 248 (Durham, J., with two
justices concurring in the result) (“I would extend the second prong
of the McDonough test to require a showing that a correct response
would have provided either a valid basis for a challenge for cause
or that the nondisclosure itself prevented the juror from serving as
a fair, impartial factfinder.”). Consequently, Maestas, not Thomas,
controls here.
¶29 We conclude that the trial court’s rulings were well within
its discretion. The court refused to strike paragraph 4 of the
declaration, which describes actions of the bailiff and other facts
outside the jury’s deliberations. But the court struck paragraph 6,
which describes the deliberations themselves and one juror’s
opinion of other jurors’ mental states and voting motivations.5

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20120224-CA 13 2014 UT App 28
CONCLUSION
¶30 Mother has not shown that the trial court erred in denying
her motion for new trial, because the evidence, when viewed in the
light most supportive of the verdict, was not “‘completely lacking
or . . . so slight and unconvincing as to make the verdict plainly
unreasonable and unjust.’” See Mann v. Fredrickson, 2006 UT App
475, ¶ 8, 153 P.3d 768 (quoting Nelson v. Trujillo, 657 P.2d 730, 732
(Utah 1982)). The trial court did not abuse its discretion by denying
Mother’s motion for new trial after determining that the jury had
not been coerced. And the trial court did not abuse its discretion
when it allowed objective portions of the juror’s declaration but
struck the juror’s subjective impression of other jurors’ feelings and
motivations.
¶31 Affirmed.