Robinson Property Group, Limited Partnership v. McCalman
| Docket Number: | 2009-CA-00570-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 01-13-2011 Opinion Author: Dickinson, J. Holding: Affirmed in part, reversed and rendered in part. |
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| Additional Case Information: |
Topic: Wrongful death - Dram Shop Act - Section 67-3-73(4) - Joint and several liability - Section 85-5-7(2) - Comparative negligence - Admission of evidence - M.R.A.P. 28(a)(6) Judge(s) Concurring: Waller, C.J., Carlson, P.J., Randolph, Lamar, Kitchens, Chandler and Pierce, JJ. Concurs in Result Only: Graves, P.J. Procedural History: Jury Trial Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 03-19-2009 Appealed from: Tunica County Circuit Court Judge: Albert B. Smith, III Disposition: The jury - having been instructed to consider the negligence of the two defendants and the driver of the plaintiffs’ automobile, Harris - returned a verdict of $700,000 for the McCalman survivors, and $400,000 for the Holmes survivors, and allocated fault as follows: Dean, fifty percent; the casino, forty-five percent; and Harris, five percent. The court reduced each award by five percent to account for Harris’s negligence; entered a judgment of $665,000 for McCalman and $380,000 for Holmes; and specified that the defendants were jointly and severally liable, meaning both plaintiffs could pursue collection of the entire amount of their respective judgments from the casino. Case Number: 2002-0471 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Robinson Property Group, Limited Partnership d/b/a Horseshoe Casino and Hotel |
DAWN DAVIS CARSON, ROBERT LEWIS MOORE |
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| Appellee: | Olivia McCalman, as Personal Representative and as Guardian of Kevin Andrew McCalman, Kenneth Anthony McCalman, the Wrongful Death Beneficiaries of Sarah McCalman, Deceased, and Geraldine Holmes, Individually and on Behalf of the Wrongful Death Beneficiaries of Michael Leroy Holmes, Deceased | DANA J. SWAN, RALPH EDWIN CHAPMAN, C. KENT HANEY | ||
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| Topic: | Wrongful death - Dram Shop Act - Section 67-3-73(4) - Joint and several liability - Section 85-5-7(2) - Comparative negligence - Admission of evidence - M.R.A.P. 28(a)(6) |
| Summary of the Facts: | During a sixteen-hour period while at the Horseshoe Casino, Rodney Dean gambled and drank free Corona beer – at least “two or three” beers per hour, or perhaps more, according to his testimony – served to him by casino employees. After leaving the casino to return to work, he ran a stop sign and a red light and then slammed into another car, killing its driver, Synithia Harris (who also had been drinking), and its two passengers, Sarah McCalman and Michael Holmes. Dean’s blood-alcohol level was 0.16 at 10:00 p.m., and 0.13 at 1:00 a.m. An autopsy on Harris showed that her blood alcohol content was 0.08. Members of the families of McCalman and Holmes filed a wrongful death suit against the casino and Dean – but not Harris. The circuit court entered a default judgment against Dean, the casino filed an answer, and the matter proceeded to trial. Dean, who appeared at trial to testify, admitted that he was intoxicated the evening of the accident. The jury – having been instructed to consider the negligence of the two defendants and the driver of the plaintiffs’ automobile, Harris – returned a verdict of $700,000 for the McCalman survivors, and $400,000 for the Holmes survivors, and allocated fault as follows: Dean, fifty percent; the casino, forty-five percent; and Harris, five percent. The court reduced each award by five percent to account for Harris’s negligence; entered a judgment of $665,000 for McCalman and $380,000 for Holmes; and specified that the defendants were jointly and severally liable, meaning both plaintiffs could pursue collection of the entire amount of their respective judgments from the casino. The casino appeals. |
| Summary of Opinion Analysis: | Issue 1: Dram Shop Act The Dram Shop Act provides immunity from liability of persons who lawfully furnished or sold intoxicating beverages to one causing damage. However, section 67-3-73(4) provides that the limitation of liability provided by this section shall not apply to any holder of an alcoholic beverage, beer or light wine permit, or any agent or employee of such holder when it is shown that the person making a purchase of an alcoholic beverage was at the time of such purchase visibly intoxicated. The issue in this case is whether the plaintiffs produced sufficient evidence for a reasonable jury to conclude that Dean was “visibly intoxicated” when the casino served him alcohol. The casino points to trial evidence that it had trained personnel who would have detected Dean’s intoxication, had it been visible, and that its expert witness testified – based on his analysis of police and medical reports – that Dean had not been “intoxicated,” “over the legal limit,” “under the influence,” or “over [0].1,” all indicating Dean was not visibly intoxicated while in the casino. Dean testified that the casino did a brisk business on the Friday evening of the accident, implying that the casino’s staff could not have monitored its many customers and evaluated whether each of them was visibly intoxicated. And Dr. Steven Hayne, a forensic pathologist, testified that, at the time Dean left the Casino, his BAC would have been 0.18, basing this conclusion on the 0.13 value from the 1:00 a.m. blood test, and the known rates at which the human body rids itself of alcohol. This issue presents a classic battle of qualified experts – a battle that was decided by the jury which believed and accepted the testimony of the plaintiffs’ expert, Dr. Hayne. The jury’s role will not be usurped, especially in light of the substantial circumstantial evidence: Dean had spent sixteen hours in the casino, drinking with no food; immediately after he left the casino, Dean was seen driving at reckless speeds approaching 100 miles an hour, and running a red light and stop sign. Issue 2: Joint and several liability Section 85-5-7(2), in existence at the time the cause of action accrued, not only allowed, but actually required – as indicated by the word “shall” – joint and several liability where, as in this case, “damages [are] caused by two (2) or more persons.” But subsection 2’s joint and several liability was limited to fifty percent of “recoverable damages.” In this case, the plaintiffs’ recoverable damages do not include the five percent of the damages attributable to Harris, who was not a defendant, but do include the ninety-five percent of those attributable to the negligence of the two defendants, the casino and Dean. From there, the math is simple: Total damages = $1,100,000, reduced by 5% = $1,045,000 (recoverable damages), and 50% of “recoverable damages” = 50% x $1,045,000 = $522,500. So the casino may be held jointly and severally liable for $522,500, limited to $332,500 of the $665,000 awarded to McCalman, and to $190,000 of the $380,000 awarded to Holmes. The jury, as trier of fact, followed subsection 7 of the statute and apportioned fault to each tortfeasor. It found the casino forty-five percent at fault. Nonetheless, under subsection 2 of the statute, the casino is jointly and severally liable “to the extent necessary for the person suffering injury, death, or loss to recover fifty percent (50%) of his recoverable damages.” So the casino and Dean are jointly and severally liable for up to $332,500 of the $665,000 awarded to the McCalman plaintiffs and for up to $190,000 of the Holmes plaintiffs’ $380,000. Issue 3: Comparative negligence The casino requested the trial court to instruct the jury on the comparative negligence of the two deceased passengers for allowing themselves to be driven by an intoxicated driver. The court refused to grant the instruction for lack of evidence to support it. The record contains scant evidence concerning the alleged impairment of the driver of the car in which the victims rode, and none at all that would justify a factual finding that the decedents knew or should have known that their driver was impaired. The casino does not direct the Court to any such evidence. Under the circumstances, the judge did not abuse his discretion in refusing the instruction. Issue 4: Admission of evidence The casino cites no authority in support of its final argument. Pursuant to M.R.A.P. 28(a)(6), the Court need not consider it. |
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