Lopez v. McClellan
| Docket Number: | 2008-CA-01857-COA Linked Case(s): 2008-CA-01857-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-27-2010 Opinion Author: Griffis, J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Personal injury - Notice of summary judgment hearing - M.R.C.P. 56 - URCCC 4.03(2) - Expert testimony - M.R.E. 702 - Section 85-5-7 Judge(s) Concurring: King, C.J., Lee, P.J., Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Concur in Part, Concur in Result 1: Barnes, J. Concurs in Result Only: Myers, P.J., and Irving, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 10-16-2008 Appealed from: Harrison County Circuit Court Judge: Jerry O. Terry, Sr. Disposition: GRANTED SUMMARY JUDGMENT TO MCCLELLANS Case Number: A2402-2005-31 |
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| 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: | Lora Lopez, a Minor and through her Guardian, Leslie Zhe, and Jaclyn Hughes, a Minor, by and through her Parents and Guardians, Henry and Vanessa Hughes |
SHANNON ADELE LADNER, RUSSELL S. GILL |
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| Appellee: | Robert D. McClellan, a Minor, by and through his Father Robert McClellan, Jointly and Severally | DONALD C. DORNAN, JR., KELLY PENDERGRASS DEES | ||
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| Topic: | Personal injury - Notice of summary judgment hearing - M.R.C.P. 56 - URCCC 4.03(2) - Expert testimony - M.R.E. 702 - Section 85-5-7 |
| Summary of the Facts: | Lora Lopez as a passenger in a 2000 GMC Sonoma pickup truck driven by her friend, Jaclyn Hughes. Robert McClellan was traveling immediately behind Lopez’s vehicle, in the same direction. At the same time, a 1996 Jeep Grand Cherokee driven by Linda Nesline was traveling the opposite direction. As the vehicles converged, Nesline’s vehicle crossed the centerline into the westbound lane of traffic and struck Lopez’s vehicle head-on. Almost immediately thereafter, McClellan’s vehicle then struck Lopez’s vehicle from behind. Lopez filed a lawsuit naming Nesline and McClellan as defendants. Lopez alleged that McClellan negligently allowed his vehicle to collide with the vehicle occupied by Lopez. The complaint further alleged that as a result of McClellan’s negligence, Lopez sustained injuries and damages. Prior to trial, Lopez settled her claim against Nesline, and Nesline was dismissed from the lawsuit. The trial court granted summary judgment in favor of McClellan. Lopez appeals. |
| Summary of Opinion Analysis: | Issue 1: Notice of summary judgment hearing Lopez argues that the court erred in granting a sua sponte motion for summary judgment. There is absolutely no legal authority or case-law precedent for a trial court to grant a sua sponte motion for summary judgment under M.R.C.P. 56. While this is a fundamental error, Lopez’s counsel waived any objection to the error by failing to object to this error before the trial court and apparently consenting to the trial court’s action. The rules provide a procedure to have a case decided prior to trial. If McClellan’s counsel thought a summary judgment was appropriate to terminate the case prior to trial on the merits, McClellan was required under Rule 56 to file a written a motion for summary judgment along with the motion to exclude the expert witness. Had they done so, McClellan’s attorneys would have also been required to submit an itemization of facts relied upon and not genuinely disputed to comply with the specific requirement of URCCC 4.03(2). A written motion for summary judgment and written itemization of facts are necessary for the trial court’s initial review and the appellate court’s review. Here, there is neither. The facts used in this opinion come from the motion to strike, the exhibits attached, and argument of counsel. This case comes on appeal absent an acceptable factual record. However, Lopez’s counsel waived any error on this issue when he had an opportunity to object and did not; and he made the statement on the record, immediately after the trial judge concluded that “I’ll call it summary judgment,” that “[w]e agree with that, Your Honor. And for the record purposes, we’re not contesting that it’s a summary judgment type of motion.” Issue 2: Expert testimony Lopez argues that the trial court erred when it determined that her expert’s testimony should be excluded based on M.R.E. 702. The expert testified that his opinion was based on his knowledge, skill, experience, training, and education as an orthopedic surgeon. The question then centers on the witness’s ability to distinguish the injuries that occurred when Lopez was involved in two instantaneous collisions. The expert’s testimony opined that both the frontal and rear-end impacts were significant and contributed to Lopez’s injuries, and he cannot tell which bruise occurred or which bone was broken as a result of the frontal or the rear-end collision. This testimony does not make his opinion inadmissible or unreliable simply because he acknowledges that his medical knowledge and training does not allow him the ability to stop time and that he did not have the opportunity to observe Lopez during the period of time between the two impacts. Indeed, his testimony was sufficient to establish the element of proximate cause and was admissible for the jury to consider in the apportionment of damages. The jury would not be required to accept the expert’s testimony to apportion damages but may take his testimony into consideration along with any other evidence. McClellan, as the driver of the second car to hit the vehicle in which Lopez was riding, is responsible only for the amount of Lopez’s damages that were based on his fault allocated by the jury in accord with section 85-5-7. Said differently, Mississippi’s law of negligence limits Lopez’s recovery of damages from McClellan based on the apportionment of his fault under this statute. The record shows that the accident in issue here was the result of “two nearly concurrent impacts.” The expert’s testimony was that it was “impossible” for him to separate which collision caused the injuries to Lopez. This evidence is sufficient to establish the element of proximate cause. Thus, the trial court committed reversible error in granting summary judgment. |
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