Payne v. Gowdy, et al.
| Docket Number: | 2010-CA-01929-COA Linked Case(s): 2010-CA-01929-COA ; 2010-CT-01929-SCT ; 2010-CT-01929-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 07-17-2012 Opinion Author: Griffis, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Admission of evidence - Exclusion of expert testimony - M.R.E. 702 - Admission of expert testimony - Peremptory instruction - Weight of evidence Judge(s) Concurring: Lee, C.J., Barnes, Ishee, Carlton, Maxwell and Fair, JJ. Non Participating Judge(s): Roberts, J. Dissenting Author : Irving, P.J. Dissent Joined By : Russell, J. Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 08-19-2010 Appealed from: Lauderdale County Circuit Court Judge: Lester F. Williamson, Jr. Disposition: JURY VERDICT FOR DEFENDANTS/APPELLEES Case Number: 09-CV-007W |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Ronald Payne and Thomas Payne, Individually and on Behalf of The Wrongful Death Beneficiaries of Marie Payne, Deceased |
ROCKY WILKINS
HENRY PALMER |
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| Appellee: | Cleveland Gowdy, Individually and as an Employee of Schneider National Carriers, Inc., and Schneider National Carriers, Inc. | DAVID C. DUNBAR JUSTIN S. CLUCK MORTON W. SMITH |
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| Topic: | Wrongful death - Admission of evidence - Exclusion of expert testimony - M.R.E. 702 - Admission of expert testimony - Peremptory instruction - Weight of evidence |
| Summary of the Facts: | Marie Payne was seventy-eight years old when she walked out of Jeff Anderson Regional Medical Center on the third floor of the parking garage. She did not make it to her car but was struck by a truck driven by Cleveland Gowdy and died as a result. Ronald and Thomas Payne, Marie’s adult sons, filed a wrongful death action against Cleveland. The complaint asserted claims for negligence, negligence per se, and negligent/intentional infliction of emotional distress. The complaint was amended to include Schneider National Carriers, Inc. as a defendant. The Paynes asserted that Cleveland was acting in the course and scope of his employment at the time of the accident, and Schneider was vicariously liable for Cleveland’s negligence. Cleveland was employed by Schneider as an over-the-road truck driver. He was at the parking garage on his way to a “recertification physical” as required by the United States Department of Transportation regulations. The jury returned a verdict in favor of Cleveland. The Paynes appeal. |
| Summary of Opinion Analysis: | Issue 1: Admission of evidence The Paynes argue that the circuit court erred when it allowed evidence of an unrelated prior fall by Marie that occurred four months before the incident involved in this case. The Paynes argue that Cleveland made several attempts to introduce evidence of Marie’s prior falls to show that she was a fall risk or had a tendency or predisposition to fall. The circuit court refused to allow the evidence to be admitted for that purpose. Cleveland then argued that the evidence was offered to impeach the testimony of the Paynes, the wrongful death beneficiaries. They testified that they were a close-knit family, but they admitted that they were not aware that Marie had fallen a few months earlier and broken her shoulder. The circuit court ruled that Marie’s earlier fall was admissible only to impeach the testimony of the wrongful death beneficiaries and only if the beneficiaries said Marie had not fallen before the incident. The circuit court’s decision was not an abuse of discretion. The testimony of Marie’s doctor made it clear that there was no link between Marie’s earlier fall and the incident that is the subject of this litigation. Issue 2: Exclusion of expert testimony The Paynes argue that it was error for the circuit court not to allow their accident-reconstruction expert to testify about the body movements of Marie when she was struck by Cleveland’s truck. M.R.E. 702 requires that the trial court be the gatekeeper in evaluating the admissibility of expert testimony. Cleveland claimed that the expert’s proposed testimony about the movement of a human body when it is struck by a vehicle was not disclosed in his expert report. Cleveland argued that the expert admitted, when he was questioned about his expert report, that this information was not disclosed. As a result, the circuit court did not allow the expert to testify as to this opinion because it was not disclosed in the report. The circuit court was within its discretion to limit the expert’s testimony to the information that was previously disclosed. Issue 3: Admission of expert testimony The Paynes argue that it was error for the circuit court to allow Dr. Joey Parker to testify as an accident-reconstruction expert and to offer conclusions as to the position and body movement of Marie. The Paynes argue that Dr. Parker testified that he did not perform a complete accident reconstruction and was not taking a position as to what happened that day. Instead, Dr. Parker only conducted a “visibility analysis.” At trial, the Paynes did not object to the testimony on the grounds that Parker was unqualified to give this opinion or that the opinion was not properly disclosed. The Paynes only objected to the leading form of the question, not to the substance of the question. Since the Paynes failed to make a contemporaneous objection and bring this matter to the circuit court’s attention, the issue is waived on appeal. Issue 4: Jury instructions The Paynes argue that the circuit court committed error when it denied two jury instructions. At the close of the evidence, the Paynes moved for a directed verdict and submitted a proposed peremptory instruction. A trial court should submit an issue to the jury only if the evidence creates a question of fact concerning which reasonable jurors could disagree. At trial, the parties presented conflicting testimony as to what Cleveland saw or should have seen. Based upon the evidence from Cleveland and his expert, the jury could have found that Cleveland was not negligent. Thus, the circuit court should not have granted a peremptory instruction as to liability. The general rule is, where there is a conflict in the evidence, the question of negligence is for the determination of the jury. A person who is backing a vehicle is not negligent per se as long as he uses reasonable care, reasonable precautions, and proper observations by looking to the left, right, and looking back. The Paynes also argue that the circuit court committed error when it refused to give one of their jury instructions on the duty of care. Defense counsel’s objection as to the instruction was that the second paragraph of the instruction was peremptory in nature. As already discussed, a peremptory instruction was not proper. The jury instructions given in this case fairly announce the law of the case and create no injustice. The circuit court’s instructions would have adequately supported a jury verdict in favor of the Paynes. Hence, the circuit court did not abuse its discretion when it denied the instruction. The Paynes’ contention that they were entitled to have the jury instructed on Cleveland’s duty to see what he could have seen was fairly covered in other instructions. Issue 5: Weight of evidence The Paynes argue that the circuit court erred when it denied their motion for a directed verdict, a peremptory instruction and a motion for JNOV or new trial. The Paynes argue that the jury ignored the fact that Marie had to be visible at some point before she wound up under the truck. They argue that the real issue is whether or not Cleveland should have seen Marie. Thus, they contend that should Cleveland be allowed to escape liability in this situation, other defendants will try to avoid responsibility in the future by simply claiming that they did not see the person before they ran over them. The question presented in this case is not whether Cleveland caused Marie’s death. He did. Instead, the question before the jury was whether Cleveland was negligent in operating his vehicle that caused Marie’s injuries and death. Cleveland testified that, before putting his truck into reverse, he came to a full and complete stop. He turned his head and looked to the left, turned his head and looked to the right, and then turned his head back to the left and looked again. He looked behind him before he backed up, and he did not see Marie. Considering this evidence, the inferences in favor of Cleveland, and the jury’s verdict, there was sufficient evidence to support the jury’s verdict. |
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