Boyd Tunica, Inc. v. Premier Transp. Serv.


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Docket Number: 2008-CA-01089-COA

Court of Appeals: Opinion Link
Opinion Date: 03-09-2010
Opinion Author: Irving, J.
Holding: Affirmed

Additional Case Information: Topic: Personal injury - Viability of appeal - M.R.A.P. 3(c) - Jury instructions - Motion for new trial
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Barnes, Ishee and Roberts, JJ.
Non Participating Judge(s): Carlton, J.
Concurs in Result Only: Griffis and Maxwell, JJ. Without separate written opinion.
Procedural History: Jury Trial
Nature of the Case: CIVIL - PERSONAL INJURY

Trial Court: Date of Trial Judgment: 05-08-2008
Appealed from: TUNICA COUNTY CIRCUIT COURT
Judge: Al Smith
Disposition: JURY FOUND BOYD TUNICA, INC. LIABLE FOR ONE-HUNDRED PERCENT OF DAMAGES SUFFERED BY PLAINTIFF
Case Number: 2005-0264

Note: Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down.

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: BOYD TUNICA, INC. D/B/A SAM’S TOWN HOTEL AND GAMBLING HALL




ROBERT A. MILLER, KYLE VERNON MILLER



 
  • Appellant #1 Reply Brief

  • Appellee: PREMIER TRANSPORTATION SERVICES, INC. JOHN D. RICHARDSON  
    Appellee #2:  
    Appellee #3:  
  • Appellee #3 Brief

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    Topic: Personal injury - Viability of appeal - M.R.A.P. 3(c) - Jury instructions - Motion for new trial

    Summary of the Facts: Ruth Latting sustained injuries while riding as a passenger on a shuttle bus owned by Premier Transportation Services, Inc. that was involved in a near-collision with a pickup truck owned by Boyd Tunica, Inc. and operated by one of its employees. Latting filed suit against Boyd Tunica and after a trial, a jury awarded Ruth $250,000 in damages, after assessing one-hundred percent of the fault against Boyd Tunica. Boyd Tunica appeals.

    Summary of Opinion Analysis: Issue 1: Viability of appeal Eighteen days after the final brief was filed in this appeal, the trial court entered an order, pursuant to a settlement agreement between Ruth and Boyd Tunica, substituting Boyd Tunica for Ruth. Boyd Tunica filed a document in the appellate court, entitled “Motion for Partial Voluntary Dismissal.” In the motion, Boyd Tunica asked that Ruth’s appeal be dismissed and that Boyd Tunica be substituted in her place. The Court granted Boyd Tunica’s motion. The trial court’s order is null and void because the trial court’s jurisdiction ended when the notice of appeal was filed. Inasmuch as Boyd Tunica’s appeal, according to its own notice, was against Ruth only, the effect of the substitution is to make Boyd Tunica both the appellant and the appellee. Even if Boyd Tunica’s appeal is successful, Ruth, on remand, cannot pursue any claim against Premier because she did not file a cross-appeal against Premier. Likewise, Boyd Tunica, independent of the assignment from Ruth, cannot pursue any claim against Premier because Boyd Tunica appealed against Ruth only. Although Premier entered its appearance in this appeal and filed a brief, this action did not make it a party to this appeal, since it was not made a party pursuant to M.R.A.P. 3(c). The appeal will be addressed on its merits, even though it is questionable as to whether this appeal is viable. Issue 2: Jury instructions Boyd Tunica argues that the trial court erred in refusing two of its proposed jury instructions, because they were necessary in order to properly instruct the jury as to the heightened standard of care that Premier, as a common carrier, owed to Ruth. A party is entitled to have the jury instructed regarding a genuine issue of material fact so long as there is credible evidence in the record which would support the instruction. With regard to one of the instructions, the record is insufficient to enable the Court to properly review the instruction in question. With regard to the second instruction, it stated that “under the law of the State of Mississippi, a carrier of passenger[s] for hire is required to exercise the highest degree of care and diligence for the safety of its passengers.” That is a correct statement of the law. However, the balance of the instruction is confusing, as it would have allowed the jury to find that Premier negligently operated the shuttle bus, even though there is no evidence in this record that the driver negligently operated the shuttle bus. There is evidence that the driver drove the shuttle bus with the knowledge that Ruth was not wearing a seat belt. However, that is not the same thing as negligently operating the shuttle bus. Further, the instruction would have invaded the province of the jury by peremptorily instructing the jury that Premier, by operating the shuttle bus while Ruth was not wearing a seat belt, failed to exercise the highest degree of care and diligence for her safety. Finally, and most importantly, the instruction would have shifted total liability for Ruth’s injuries to Premier, notwithstanding the fact that Boyd Tunica’s driver’s action of pulling out in front of the shuttle bus was the sole proximate cause of the abrupt stop that the shuttle driver was forced to make. Boyd Tunica also argues that the trial court erred in granting an instruction, because it prohibited the jury from taking into consideration the heightened duty of care that Premier owed to Ruth. There is no evidence in the record that Premier failed in any way to provide the highest standard of care to Ruth, unless operating the shuttle bus without making sure that she had fastened her seat belt can be considered such failure. There is also no evidence that the shuttle driver operated the shuttle bus in a negligent manner. There is no reason why Premier should be punished for insisting that its passengers wear seat belts, even though they are not required by law to do so. Therefore, the trial court did not err in giving the instruction. Issue 3: Motion for new trial Boyd Tunica argues that the trial judge erred in failing to grant its motion for a new trial because it concentrated its defense on Premier’s failure to enforce its internal safety regulations. It is puzzling how Boyd Tunica can assert that it concentrated its defense on Premier’s alleged violation of its internal regulations “in reliance on the circuit court’s ruling before the commencement of trial” when the trial judge clearly asserted that his ruling was tentative in nature. Furthermore, Boyd Tunica has failed to proffer what it would have done differently had it known what the trial judge’s final ruling would be.


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