International Paper Co. v. Townsend
| Docket Number: | 2003-CA-02774-COA Linked Case(s): 2003-CA-02774-COA ; 2003-CT-02774-SCT ; 2003-CA-02774-COA ; 2003-CA-02774-COA |
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| Court of Appeals: |
Opinion Date: 02-07-2006 Opinion Author: Barnes, J. Holding: The judgment of the Circuit Court of Sharkey County is reversed and rendered. |
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| Additional Case Information: |
Topic: Personal injury - Duty owed to independent contractor - Expert witness - M.R.E. 702 - Admission of misdemeanor convictions - M.R.E. 609 - Apportionment of fault Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Chandler, Griffis, Ishee and Roberts, JJ. Dissenting Author : Irving, J. |
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| Trial Court: |
Date of Trial Judgment: 06-12-2003 Appealed from: Sharkey County Circuit Court Judge: Frank G. Vollor Case Number: 01-079 |
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| Party Name: | Attorney Name: | |||
| Appellant: | International Paper Company |
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| Appellee: | James Alvin Townsend |
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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 - Duty owed to independent contractor - Expert witness - M.R.E. 702 - Admission of misdemeanor convictions - M.R.E. 609 - Apportionment of fault |
| Summary of the Facts: | James Townsend was hauling logs from a tract of land near Rolling Fork to a woodyard owned by International Paper Company in Natchez. Townsend was working for his son’s company, Kenneth Townsend Logging. Townsend Logging had orally contracted to haul logs for Cain Logging, which was in charge of cutting the timber on the Rolling Fork tract. When he arrived at the loading area at the IP woodyard, a log fell from the trailer, struck Townsend in the chest, and rolled across his pelvis. Although he received prompt medical attention, Townsend’s injuries were extensive, including a fractured leg and pelvis, and a urethral tear. Townsend filed suit against IP and Cain Logging. At the close of trial, IP moved for judgment as a matter of law. This motion was denied, and the jury returned a verdict for Townsend in the amount of $2 million. The jury apportioned forty-eight percent of the fault to IP, forty-two percent to Cain Logging, and ten percent to Townsend. IP and Cain Logging filed an appeal. Cain Logging settled with Townsend and is no longer a party to the appeal. |
| Summary of Opinion Analysis: | Issue 1: JNOV IP argues that it is entitled to judgment as a matter of law because Townsend took a shotgun approach and merely presented the jury with varying inconsistent theories of IP’s liability, thereby allowing the jury to speculate as to IP’s liability for Townsend’s injuries. Specifically, Townsend was allowed to present three theories of IP’s liability to the jury. The duty of a premises owner owed to an independent contractor is that the premises owner must furnish a reasonably safe place to work or give warning of danger. The owner of the premises does not have a duty to protect an independent contractor against risks arising from or intimately connected with the work. However, there is an exception where the owner maintains substantial de jure or de facto control over the work to be performed. In determining whether an owner maintains control over the work of an independent contractor, what is critical is whether the project owner maintains any right of control for the performance of that aspect of the work giving rise to the injury. In this case, there is insufficient evidence to support a conclusion that IP exercised control over Townsend’s activities so as to create a duty. IP exercised no control over that aspect of the work which gave rise to the injury. According to the undisputed facts admitted at trial, IP played absolutely no part in the loading of the logs. Although IP would have eventually played a part in unloading the logs from Townsend’s trailer, IP’s job in unloading the logs did not arise until Townsend had assured himself of the safety of the load and then released the binders holding the logs in place. The facts undisputably establish that IP did not exert de facto control over the aspects of the work that gave rise to Townsend’s injury. The dangerous condition which caused Townsend’s injury existed on his truck, not on the IP premises. As to the theory of potholes causing Townsend’s load to be unsafe as he alleged at trial, insufficient evidence was presented at trial upon which a jury could find that the potholes more probably than not were the proximate cause of Townsend’s injuries. No evidence introduced at trial brought the possibility of Townsend’s load shifting on the IP road into the realm of probability. The final theory upon which Townsend alleges liability on the part of IP is the failure to provide an unbinding rack on the woodyard premises. The testimony introduced at trial regarding the use of unbinding racks was too speculative to allow a jury to find that IP maintained unsafe premises by not providing an unbinding rack. Although Townsend and his expert both emphatically stated that an unbinding rack would have caught the log that injured Townsend, neither was able to explain the basis of that belief. Even assuming that Townsend created a jury question as to whether an unbinding rack would have prevented his injury, he was unable to establish that IP owed him a duty to provide an unbinding rack. Issue 2: Expert witness IP argues that Townsend’s expert was not a proper expert witness, both because he was untimely designated and because he was unqualified. While Johnson’s designation fifty-nine days prior to trial in and of itself did not prejudice the defendants, the confused circumstances that ensued following the tardy designation did unfairly tilt the playing field, and the trial court judge abused his discretion by failing to grant a continuance of the trial. The record shows that the defendants were taken by surprise by Townsend’s last-minute designation of Johnson. The defendants were then further prejudiced by Townsend’s delay in providing the M.R.C.P. 26(b)(4) interrogatory response which added a new theory of liability against IP; and by a letter from Townsend’s counsel stating that the expert would not be available for deposition until May 15; and then by the fact that the expert, in the belated 26(b)(4) response, proposed to testify about a new theory of liability. Whether or not Townsend’s counsel actually intended to obtain unfair advantage over the defendants by designating Johnson at such a late date; the untimely designation, belated submission of 26(b)(4) interrogatory responses, last-minute deposition, and the addition of a third theory of liability as to IP some weeks after the initial designation, had the effect of working a severe prejudice on the company. IP also argues that Johnson was unqualified to testify as an expert witness and that, in any case, the company was not allowed to properly voir dire Johnson at trial. Neither party has addressed the issue of which version of M.R.E. 702 should apply. IP has quoted only the current Rule 702, which was not effective at the time of this trial. Townsend cites the old Rule 702, but also refers to the new rule and the Daubert test. Even before the amendment to Rule 702, however, the Mississippi Supreme Court recognized that the trial judge serves as a gatekeeper in ruling on the admissibility of expert testimony. The trial judge, as the gatekeeper, is required to examine the reliability of expert testimony. Here, the trial court abused its discretion in finding that the witness was qualified as an expert for two reasons: first, the trial judge did not allow voir dire of the witness which would have gone directly to the issue of his qualifications under the Frye standard; second, testimony adduced at trial following the expert’s acceptance by the trial court showed that he clearly was not qualified to testify in his purported field of knowledge. In addition, the foundational facts on which the expert based his testimony are insufficient as a matter of law, and the facts he relied upon did not establish a reasonably accurate basis for his conclusions. IP also argues that court erred by allowing the expert to testify as an expert on safety opining that IP was unsafe in its practice while simultaneously precluding IP from cross-examining the expert on his own personal record of safety (misdemeanor convictions for lack of safety) directly relating to his alleged area of expertise. The trial court erred in excluding these misdemeanor convictions pursuant to M.R.E. 609. IP correctly points out that the misdemeanors in question go to the qualifications of Johnson as a safety expert, and not to his credibility. Issue 3: Apportionment of fault IP argues that the court erred by failing to allow a proposed jury instruction which would have allowed the jury to apportion fault not only between Cain Logging and IP, but among TDC Logging and Kenneth Townsend Logging as well. The jury instructions as to apportionment did not prejudice IP. The jury was clearly instructed to hold Cain Logging liable for all of the acts involved in loading Townsend’s truck; these acts would have included those of TDC Logging. Thus, the jury’s apportionment of fault already incorporated an apportionment of fault as to the aspect of loading. Allowing an apportionment as between Cain Logging and TDC Logging would have only affected the allocation of the forty-two percent of liability apportioned to Cain, not the forty-eight percent apportioned to IP. Further, insufficient facts were presented at trial to make out a prima facie case of negligence against Kenneth Townsend. |
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