Busby v. Anderson
| Docket Number: | 2003-CA-02699-COA Linked Case(s): 2003-CA-02699-COA ; 2003-CT-02699-SCT ; 2003-CT-02699-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-28-2006 Opinion Author: ROBERTS, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Personal injury - Timeliness of appeal - M.R.A.P. 4(a)(d) - M.R.A.P. 4(g) - Sufficiency of evidence Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, GRIFFIS, BARNES AND ISHEE, JJ. Dissenting Author : IRVING, J. Dissent Joined By : CHANDLER, J. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 04-18-2000 Appealed from: WASHINGTON COUNTY CIRCUIT COURT Judge: Margaret Carey-McCray Disposition: JURY VERDICT IN FAVOR OF THE DEFENDANT Case Number: 94-13,088(H)(W) |
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| Note: | This judgment was reversed and the appeal dismissed by the Supreme Court on 4/3/2008. The SCT opinion may be viewed at: http://www.mssc.state.ms.us/Images/Opinions/CO46960.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | MARILYN BUSBY |
CHARLES CAMERON AUERSWALD
RICHARD L. KIMMEL |
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| Appellee: | PATRICIA ANDERSON, EXECUTRIX OF THE ESTATE OF WILLIAM BURNLEY, DECEASED | TARA STRICKLAND CLIFFORD ROY A. SMITH |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Timeliness of appeal - M.R.A.P. 4(a)(d) - M.R.A.P. 4(g) - Sufficiency of evidence |
| Summary of the Facts: | Marilyn Busby sued William Burnley incident to a single vehicle car accident. The jury returned a verdict for William. Busby appeals. |
| Summary of Opinion Analysis: | Issue 1: Timeliness of appeal William claims that Marilyn’s appeal is untimely. The circuit court overruled Marilyn’s posttrial motions on August 13, 2003. Once the circuit court overruled her posttrial motions, Marilyn had thirty days to file her notice of appeal pursuant to M.R.A.P. 4(a)(d). Marilyn filed her notice of appeal on October 20, 2003. Marilyn filed a motion for extension of time to file her notice of appeal which was still pending when she filed her notice of appeal with the appellate court. The appellate court notified the circuit court that it had not resolved Marilyn’s motion for extension of time to appeal. The circuit court then granted Marilyn’s motion for extension of time. M.R.A.P. 4(g) allows a trial court to grant an aggrieved litigant an extension of thirty days to file a notice of appeal if the litigant files a timely motion for extension of time and shows good cause. Consequently, Marilyn’s notice of appeal is timely. Issue 2: Sufficiency of evidence Marilyn accused William of negligence in operating his vehicle. A prima facie case of negligence involves duty or standard of care, breach of that duty or standard, proximate causation, and damages or injury. A driver has the duty to take notice of an obvious danger and to take reasonable steps to avoid an accident or injury to persons or property after he has knowledge of the danger. Marilyn claimed that William breached his duty to her when he fell asleep and lost control of his car. William claimed that it was Marilyn’s fault that he lost control of his car because she failed to accept his offer to drive. Marilyn testified that she offered to drive but William refused. Precedent indicates that a passenger may incur comparative negligence when they are aware of a danger involving a driver’s continued operation of a vehicle, yet do nothing to mitigate their risk. The jury in this case returned a verdict for William and attributed one hundred percent of the negligence to Marilyn. The evidence in this case is insufficient to support the jury’s verdict. There is no legal requirement that Marilyn was obligated to take the wheel of William’s car. No reasonable or fair-minded juror could find that, because Marilyn refused to drive William’s car, Marilyn was the sole proximate cause of her injuries. To conclude such is to completely ignore William’s own behavior in refusing to stop his car when he knew he was too ill or sleepy to drive. Whether Marilyn’s damages were solely caused by William’s negligence or were caused by the combined negligence of William and Marilyn is a proper issue for jury resolution. The proper approach would have been to instruct the jury that William was negligent as a matter of law and then allow the jury to consider and determine by proper instructions whether William was solely negligent or whether Marilyn was comparatively negligent. The jury should have never been allowed to consider that William was not negligent, because the uncontradicted proof showed that he was negligent. |
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