City of Newton v. Lofton


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Docket Number: 2001-CA-01919-COA

Court of Appeals: Opinion Link
Opinion Date: 03-25-2003
Opinion Author: Thomas, J.
Holding: Affirmed

Additional Case Information: Topic: Personal injury - Legal standard - Comparative negligence - Section 11-46-9(1) (v) & (w) - Contributory negligence - Damages
Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Lee, Irving, Myers and Chandler, JJ.
Non Participating Judge(s): Griffis, J.
Procedural History: Jury Trial
Nature of the Case: Negligence

Trial Court: Date of Trial Judgment: 09-26-2001
Appealed from: Newton County Circuit Court
Judge: Vernon Cotten
Disposition: JUDGMENT FOR THE APPELLEE IN THE AMOUNT OF $155,054.25
Case Number: 00-CV-0061

  Party Name: Attorney Name:  
Appellant: City of Newton




JAY R. MCLEMORE DIANE V. PRADAT



 

Appellee: Bernice Lofton P. SHAWN HARRIS P. SHAWN HARRIS  

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Topic: Personal injury - Legal standard - Comparative negligence - Section 11-46-9(1) (v) & (w) - Contributory negligence - Damages

Summary of the Facts: Bernice Lofton sustained a compound fracture to her leg and incurred medical expenses totaling $18,135 while attempting to step up onto the curb near the gymnasium of Newton Middle School in Newton, Mississippi, a municipal corporation. The City of Newton was found 95% negligent by failing to warn and protect Lofton, and Lofton was awarded $155,054.25, which was nine times her medical expenses minus five percent, her percentage of contributory negligence. The City appeals.

Summary of Opinion Analysis: Issue 1: Legal standard The City argues that the court misapplied the law to the facts of this case erroneously determining that the City of Newton was not immune from liability under section 11-46-9(1)(v) and (1)(w). Section 11-46-9(1) (v) and (w) is used to determine liability exemptions of governmental entities and its employees acting within the scope of their duties. The court in this case considered the application of a pure comparative negligence standard or the open and obvious standard codified under subdivision (v) of section 11-46-9(1) and found that because the condition was not obvious and was not readily apparent to Lofton, the City of Newton does not receive immunity protection under the statute. The so called "open and obvious" defense is no longer an absolute bar to recovery and the comparative negligence doctrine now applies. Therefore, the court applied the correct legal standard, and its findings will not be disturbed. Issue 2: Contributory negligence The City argues that even if it was not entitled to immunity, the court erred in its allocation of only 5% comparative negligence to Lofton. Where there is substantial evidence in the record to support the court’s findings, they will not be disturbed. Here, the judge heard testimony from both sides and his finding that both parties were negligent is supported by substantial evidence. Issue 3: Damages The City argues that the court erred in awarding Lofton damages nine times the amount of her medical expenses. In determining the amount of damages, the court should consider the amount of physical injury, mental and physical pain, present and future pain and disability, temporary and permanent disability, medical expenses, loss of wages and wage earning capacity, sex, age, and health of the injured. Here, the court set out in detail the reasons for the award, and the award is not an abuse of discretion.


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