Dooley, et al. v. Byrd, et al.
| Docket Number: | 2009-CA-01830-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 06-16-2011 Opinion Author: Waller, C.J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Wrongful death - Joinder - Section 11-7-13 - Separate representation - M.R.E. 611 - Negligence per se instruction - Section 63-7-71 - Peremptory instruction - Commercial driver’s license - Driver’s responsibility to turn safely - Alternate theory of case - M.R.A.P. 28 - Factual considerations Judge(s) Concurring: Carlson and Dickinson, P.JJ., Randolph, Lamar, Chandler and Pierce, JJ. Non Participating Judge(s): Kitchens and King, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 06-22-2009 Appealed from: Rankin County Circuit Court Judge: Samac Richardson Disposition: The jury returned a unanimous defense verdict. Case Number: 2003-235R |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Leah Fulton Dooley; Kathryn Marie Fulton, a Minor, By and Through Her Mother and Next Friend, Leah Fulton Dooley; Peyton Dooley, a Minor, By and Through His Mother and Next Friend, Leah Fulton Dooley; and all heirs-at-law of Jonathan Wayne Dooley, a Minor, Deceased; Dewey Dooley; and Kaitlyn Dooley, By and Through Her Mother and Next Friend, Keri Patrick |
WILLIAM W. FULGHAM
DON H. EVANS
JAMES W. SMITH, JR.
ERIN S. RODGERS |
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| Appellee: | Cedric Byrd and Independent Roofing Systems, Inc. | JAMES D. HOLLAND ANDREW J. STUBBS GEORGE MARTIN STREET, JR. | ||
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 - Joinder - Section 11-7-13 - Separate representation - M.R.E. 611 - Negligence per se instruction - Section 63-7-71 - Peremptory instruction - Commercial driver’s license - Driver’s responsibility to turn safely - Alternate theory of case - M.R.A.P. 28 - Factual considerations |
| Summary of the Facts: | Cedric Byrd, an employee of Independent Roofing Systems, Inc., attempted to drive his truck and trailer into the driveway of a house located on Highway 468 in Rankin County. Byrd misjudged the turn. As a result, he left part of his trailer on the road for a short period of time. The Chevy Malibu in which Jonathan Dooley traveled with his mother collided with the trailer. Jonathan died instantly. Leah Dooley, Jonathan’s mother, filed a wrongful-death action against Byrd and Independent Roofing on behalf of Jonathan’s wrongful-death heirs. The jury returned a unanimous defense verdict. The heirs appeal. |
| Summary of Opinion Analysis: | Issue 1: Joinder Leah argues that the trial court erred in granting Dewey’s motion for joinder. The attorney who represented Leah (mother), Kathryn (half-sister), and Peyton (brother) filed this suit on behalf of all of Jonathan’s wrongful-death heirs. Approximately one and a half years later, another attorney filed a Motion for Joinder and Separate Representation on behalf of Dewey (father) and Kaitlyn (half-sister). Leah argues that she and the other heirs were prejudiced, because the jury heard the negative and inflammatory assertions she outlined in her response to Dewey’s motion for joinder. Leah also argues that the expert hired by Dewey, presented a “joinder issue problem,” because he testified that Leah had held some responsibility for the accident. Pursuant to section 11-7-13, all wrongful-death claims must be litigated in one suit. Here, the trial court properly granted Dewey’s joinder motion. The remaining “joinder issue problems” argued by Leah also lack merit. Although Leah objects to the expert’s participation to argue against joinder, she relied on his opinion throughout her briefs to support her other arguments. Issue 2: Separate representation Dewey argues that the trial court denied his right to examine key witnesses and to present his theory of the case. The court determined that both sets of plaintiffs would have an opportunity to participate. The trial court reminded the attorneys that, under the wrongful death statute, the attorney who had first filed the suit owed a duty to all the wrongful-death heirs. The trial judge stated that, before trial, Leah, Dewey, and their attorneys should have decided their theories of liability and discussed who would ask questions to prove those theories. Further, the trial judge reasoned that allowing multiple attorneys to question every witness would confuse the jury. Thus, for the rest of the proceedings, the court instructed Leah and Dewey to cooperate and to work together in presenting their cases on liability. Each wrongful-death beneficiary has a right to participate fully in all aspects of the trial. Each beneficiary has the right to prove her individual claim for certain damages. Here, as in any other case that involves multiple plaintiffs, Dewey had a right to question all the witnesses. The defendants cross-examined Leah on the negative information about Dewey and Kaitlyn in Leah’s response to the joinder motion, but Dewey had no opportunity to address the validity of that information. Further, Dewey was denied the right to question Leah, Byrd, and Keys — the only witnesses who were present when the accident occurred. The alleged jury confusion or prejudice from different trial strategies must yield to each wrongful-death beneficiary’s right to participate fully in the litigation with her chosen counsel. The trial court committed reversible error in denying Dewey’s right to question all the witnesses. The trial court maintains discretion to control the mode and order of testimony as authorized under M.R.E. 611. But Rule 611 does not authorize the trial court to deny completely a party’s right to question a witness. Issue 3: Jury instructions Leah and Dewey argue that the trial court improperly refused several proposed instructions that addressed negligence per se, traffic-safety rules, and an alternate theory of the case. The trial court may refuse an instruction that incorrectly states the law, that addresses a theory covered in other instructions, or that lacks a foundation in evidence. The denial of an instruction does not warrant reversal unless the appellant demonstrates that the instructions, taken as a whole, do not fairly present the applicable law. In negligence-per-se actions, the party must prove the following: that the party belongs to the class of people the statute intends to protect, that the party suffered the type injuries the statute was designed to avoid, and that the offender’s violation of the statute proximately caused the party’s injuries. When the statute applies, the court may instruct the jury that the defendant is negligent for violating the statute, but the jury must find that the violation caused or contributed to the party’s injury. Leah and Dewey contend that the trial court improperly denied P-36 and P-44B, which they maintain were based on section 63-7-71. P-36 contains inconsistent and incorrect statements of the law regarding section 63-7-71. Under P-36, a finding of negligence could very well hinge solely upon whether or not Byrd had received training on the flags on a truck. The instruction, therefore, was inconsistent, an improper statement of the law, and, arguably, peremptory. At trial, Byrd and Keys estimated that the trailer had protruded into the road for three to five minutes before the accident happened. Keys thought that the truck had contained warning devices, but both Byrd and Keys acknowledged that no cones, flags, or other warning devices had been placed in the road. Because Byrd had stopped for only a short period of time before resuming his turn, he did not see the need to place any warning devices in the road. P-44B is improper because it was peremptory and would have held the defendants liable without allowing the jury to consider the reasonable-promptness standard. In other words, reasonable minds could have differed as to whether Byrd should have placed warning devices in the three-to-five minutes that his trailer was on the road. Leah and Dewey argue that the trial court improperly denied P-44A, which would have held the defendants negligent as a matter of law because Byrd lacked a commercial driver’s license. Leah and Dewey refer to different commercial driver’s license statutes to support their positions. However, the cited commercial driver’s license statutes do not apply. Leah and Dewey failed to show that the Legislature had enacted sections 63-1-74, 63-1-77, or 63-1-82 to address the type of harm that occurred in this case. Most importantly, the plaintiffs failed to prove a connection between the injury and Byrd’s lack of a particular license. Leah and Dewey argue that the court should have granted P-40, which addressed a driver’s responsibility to execute safe turns from the roadway. However, Leah and Dewey requested, and the trial court granted, another instruction that covered a driver’s responsibility to turn safely. Thus, the trial court properly refused P-40, as it would have been cumulative. Dewey argues that the trial court improperly denied P-21, which imposed liability if Byrd negligently had allowed his vehicle to “stop in a lane of travel on the highway when it was possible or reasonably practicable for him to steer his vehicle down the driveway and out of the highway . . . .” Dewey argues that refusing the instruction prohibited the jury from hearing this alternate theory of the case. Neither the transcript nor the record shows where the court refused P-21. Thus, pursuant to M.R.A.P. 28, the Court has no duty to address his contention. Dewey argues that the trial court erred in granting the “instruction regarding the car safety seat . . . .”, because it authorized the jury to consider that Jonathan had gotten out of his car seat for “other purposes under Mississippi law . . . .” In fact, the trial court granted the plaintiffs’ requested car-safety-seat instruction, P-20A. Because Dewey is mistaken about the instruction the jury received, his claim lacks merit. Leah and Dewey challenge the trial court’s grant of jury instruction numbers 10 and 11, which prohibited the jury from apportioning fault for the dark shadows along the roadway or the alleged narrow and steep condition of Smith’s driveway. Issues regarding shadows or the driveway are factual considerations that should have been available to the jury. Because jury instructions numbers 10 and 11 improperly removed fact issues from the jury’s consideration, the trial court erred in granting both instructions. |
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