Manning v. Gruich
| Docket Number: | 2009-CA-00933-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-26-2010 Opinion Author: King, C.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Personal injury - M.R.E. 407 - Subsequent remedial measures - Impeachment - Feasibility of precautionary measures - Exclusion of photographs Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Roberts and Carlton, JJ. Concurs in Result Only: Maxwell, J., concurs in result only without separate written opinion. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 03-02-2009 Appealed from: Harrison County Circuit Court Judge: Lawrence P. Bourgeois, Jr. Disposition: JURY VERDICT IN FAVOR OF DEFENDANTS Case Number: A2402-04-00010 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Sarah Manning |
ROBERT W. SMITH |
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| Appellee: | Frank Gruich, Jr. d/b/a Gruich Pharmacy Shoppe and Estate of Frank Gruich, Sr. | BRETT K. WILLIAMS, THOMAS L. MUSSELMAN, JOSHUA WESLEY DANOS | ||
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 - M.R.E. 407 - Subsequent remedial measures - Impeachment - Feasibility of precautionary measures - Exclusion of photographs |
| Summary of the Facts: | Sarah Manning sued Frank Gruich Jr., Gruich Pharmacy Shoppe, and the Estate of Frank Gruich Sr. to recover for an injury she sustained by falling at the pharmacy. The jury returned a verdict in favor of Gruich. Manning appeals. |
| Summary of Opinion Analysis: | Issue 1: Impeachment Manning argues that when asked about changes to the carpet in front of the pharmacy, Gruich testified falsely in his answer to interrogatories and in his deposition. Thus, Manning argues that she should have been allowed to impeach Gruich during the trial. Manning propounded requests for interrogatories to Gruich in 2004. In the interrogatories, Manning asked Gruich to provide dates and descriptions of any changes made to the building and/or sidewalk. Gruich responded that a handicap ramp had been installed ten years ago. Gruich alleges that at the time of his response, he did not know that Manning was complaining about the carpet. During the deposition, Gruich was asked whether any changes had been made to the building since 1994. He responded that a handicap ramp was installed. Manning’s counsel inquired whether any other changes had been made to the outside of the building, and Gruich responded that four posts were installed in front of the windows. Then, Manning’s counsel specifically asked: “Have you made any changes to the green carpet since April of 2003?” Gruich responded that the lip of the carpet was removed in the summer of 2003. Gruich admitted in his deposition that the carpet had been altered. Manning was not allowed to question Gruich about the subsequent remedial measures. However, the record does not show that Gruich gave any false testimony related to this matter during the trial. Thus, the impeachment exception to M.R.E. 407 does not apply in this case. Issue 2: Feasibility of precautionary measures Manning’s theory of the case was that there should have been a color transition between the curb and the carpet, making it easier to gauge the height of the curb. Manning argues that a set of photographs taken approximately three months after the incident and showing changes that had been made to the carpet was necessary to show the effectiveness of such a warning. Gruich argues that this exclusion only applies if the defendant disputes the feasibility of precautionary measures. Rule 407 provides that evidence of subsequent remedial measures does not require exclusion when offered to show the feasability of precautionary measures, if controverted. During the trial, Gruich testified that he always thought that the carpet was safe. However, at no time did Gruich controvert the feasibility of precautionary measures. Because Gruich did not dispute whether precautionary measures could be taken and Manning was allowed to question Gruich about her theory of the case, this exception to Rule 407 does not apply. Manning also argues that the set of photographs was necessary to show the condition of the carpet at the time of her fall. However, this set of photographs does not accurately depict the condition of the carpet at the time of Manning’s fall. Instead, these photographs depict a subsequent remedial measure, which the trial court properly excluded. |
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