Vaughn v. Ambrosino
| Docket Number: | 2002-CT-00927-SCT Linked Case(s): 2002-CA-00927-COA ; 2002-CT-00927-SCT ; 2002-CT-00927-SCT ; 2002-CA-00927-COA |
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| Supreme Court: | Opinion Link Opinion Date: 10-14-2004 Opinion Author: Dickinson, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Invitee - Open and obvious defense Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., and Easley, J. Non Participating Judge(s): Diaz and Graves, JJ. Concurs in Result Only: Carlson and Randolph, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY Writ of Certiorari: Granted Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 02-19-2002 Appealed from: MADISON COUNTY CIRCUIT COURT Judge: Samac Richardson Disposition: Jury verdict for the Appellees. Case Number: CI 2000-139 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Rece Vaughn |
JAMES L. POWELL
RICHARD A. COURTNEY
MATTHEW IVAN HETZEL |
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| Appellee: | Richard Ambrosino and Ellen Ambrosino | JAMES WILLIAM MANUEL MARGARET OERTLING CUPPLES STEPHEN L. THOMAS DANIELLE DAIGLE IRELAND |
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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 - Invitee - Open and obvious defense |
| Summary of the Facts: | Rece Vaughn, the former live-in housekeeper of Richard and Ellen Ambrosino, filed suit against the Ambrosinos claiming their dog ran into a ladder, causing Vaughn to fall and sustain serious injuries. The jury returned a verdict for the Ambrosinios. Vaughn appealed, and the Court of Appeals affirmed. The Supreme Court granted Vaughn’s petition for writ of certiorari. |
| Summary of Opinion Analysis: | Vaughn argues that jury instructions given by the court were flawed because they prevented recovery unless the jury found that she was an invitee and that the alleged dangerous condition was not open and obvious. Vaughn attempts to classify this case as a master/servant matter rather than a premises liability case involving an invitee, because she fears if she is classified as an invitee, she will not be allowed to recover damages caused by open and obvious dangers. In Tharp v. Bunge Corp., 641 So. 2d 20 (Miss 1994), the open and obvious defense was abolished. Tharp applies to a claim of a dangerous condition, not a claim that the defendant failed to warn of a dangerous condition. A thing warned of is either already known to the plaintiff, or it’s not. If it’s already known to the plaintiff, then the warning serves no purpose. If it is not already known to the plaintiff, then the thing warned of was not open and obvious in the first instance. Thus, an invitee may not recover for failure to warn of an open and obvious danger. The third element of the jury instruction at issue prevents recovery for “a dangerous condition which was not readily apparent upon the defendants’ property.” That is to say, if the jury believed the dangerous condition was “readily apparent,” or open and obvious, then the third element of the instruction, standing alone, prevented a verdict for the plaintiff. This was an incorrect and improper instruction. If the jury found that the defendants were negligent in creating a dangerous condition which was open and obvious, the instruction, standing alone, prevented the jury from applying the comparative negligence standard required by Tharp. However, the flaw in the instruction does not constitute reversible error when considering the instructions as a whole. Additional instructions clearly, correctly and adequately defined “negligence” and instructed the jury that, should they find negligence on the part of the defendants, they should return a verdict for the plaintiff. They further instructed the jury with clarity that, should they find negligence on the part of both plaintiff and defendants, they should still return a verdict for the plaintiff, applying a proper comparative negligence reduction. Since the jury instructions, as a whole, properly instructed the jury and since the facts could support a verdict for the Ambrosinos, the judgment is affirmed. |
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