Martin v. B&B Concrete Co., Inc.
| Docket Number: | 2010-CA-00145-COA Linked Case(s): 2010-CA-00145-COA ; 2010-CT-00145-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-12-2011 Opinion Author: Myers, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Wrongful death - Jury instructions - Negligence per se - Section 63-3-505 - Weight of evidence - Designation of expert - URCCC 4.04(A) Judge(s) Concurring: Griffis, P.J., Ishee, Roberts and Carlton, JJ. Non Participating Judge(s): Barnes and Maxwell, JJ. Concur in Part, Dissent in Part 1: Lee, C.J. With Separate Written Opinion Concur in Part, Dissent in Part Joined By 1: Irving, P.J. Procedural History: Jury Trial Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 10-05-2009 Appealed from: Lafayette County Circuit Court Judge: Andrew K. Howorth Disposition: Jury Verdict Judgment for Defendant Case Number: L07-223 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Schenille Martin, on Behalf of the Wrongful Death Heirs of Floyd L. Martin, Deceased |
JOSEPH E. ROBERTS JR., GRADY F. TOLLISON JR., ROBERT DALLAS SCHULTZE |
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| Appellee: | B&B Concrete Company, Inc. | WILTON V. BYARS III, JOSEPH LUKE BENEDICT | ||
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: | Wrongful death - Jury instructions - Negligence per se - Section 63-3-505 - Weight of evidence - Designation of expert - URCCC 4.04(A) |
| Summary of the Facts: | Floyd Martin was killed in a two-vehicle automobile accident. His widow, Schenille Martin, brought a wrongful death suit against B&B Concrete Company, Inc., the owner of the other vehicle and the employer of its driver. The jury returned a verdict for the defendant, and Martin appeals. |
| Summary of Opinion Analysis: | Issue 1: Jury instructions Martin argues that the trial court erred in giving or refusing several jury instructions. Martin challenges the trial court’s refusal of two instructions. However, the instructions are not included in the record and are therefore not properly before the court. Martin also challenges the trial court’s refusal of three peremptory instructions. In his testimony, Logan, the driver of the concrete truck, stated that he had been driving between forty and fifty-five miles per hour before approaching the intersection but did not reduce that speed further as he neared the intersection. Martin argues that this was negligent per se, an admitted and uncontested violation of section 63-3-505. The interpretation Martin advances – that speed must be reduced regardless of prior speed – would lead to irrational results and may be unworkable in practice. Under her reading, Logan would have been negligent as a matter of law for proceeding through the intersection while traveling between ten and twenty-five miles per hour below the posted speed limit, but if he had slowed only slightly from the maximum posted speed, he would not have been negligent. Another consequence of her proposed interpretation would be that a driver approaching a series of intersections would be required to reduce his speed for each individually, but if he were to reduce his speed once and maintain that lower speed, he would be driving negligently as a matter of law, no matter how much he had reduced his speed. That is not a rational result. Martin argues that one instruction, which instructed the jury that Floyd would have been negligent if he had stopped his vehicle within the intersection, was misleading because it did not also instruct the jury that Logan also had a duty to take reasonable precaution to avoid the collision, even if Floyd had negligently stopped in the intersection. Martin also argues that another instruction, which instructed the jury on Floyd’s duties to stop at the intersection and yield the right of way, failed to advise the jury of Logan’s duty to avoid a collision even if Floyd had failed to yield before entering the intersection. These arguments are without merit, as Logan’s duty to avoid a collision notwithstanding Martin’s negligence was outlined in other instructions given by the trial court. Considering all of the instructions given by the trial court, the jury was properly instructed on Logan’s duty. Issue 2: Weight of evidence Martin argues that the jury’s verdict in favor of B&B Concrete is against the overwhelming weight of the evidence. This issue is largely a rehashing of Martin’s prior arguments for peremptory instructions. The questions of whether Logan kept a reasonable lookout and exercised reasonable care to avoid the collision – and whether any failure to do so was a proximate cause of the accident – were properly left to the jury. Issue 3: Expert testimony Martin argues that the trial court erred in allowing B&B Concrete to supplement the designation of its accident reconstruction expert. The supplementation was made approximately three and one-half weeks before the trial date. B&B Concrete responds that the supplementation was required to address Martin’s own late designation of her expert and a change in Martin’s theory of the case. While it is true that B&B Concrete’s supplemental designation was filed outside the sixty-day deadline, URCCC 4.04(A) allows designations to be made closer to trial under “special circumstances.” Under the circumstances in this case, there was no abuse of discretion in the trial court’s allowing the expert to testify. |
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