Fred's Stores of Tennessee, Inc. v. Pratt


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Docket Number: 2010-CA-00481-COA

Court of Appeals: Opinion Link
Opinion Date: 07-19-2011
Opinion Author: Ishee, J.
Holding: AFFIRMED IN PART, REVERSED AND REMANDED IN PART

Additional Case Information: Topic: Personal injury - Sufficiency of evidence - Premises liability - Medical records - M.R.E. 401 - Deposition testimony - M.R.C.P. 32(a)(1) - Closing argument
Judge(s) Concurring: Lee, C.J., Irving, P.J., Myers and Russell, JJ.
Concur in Part, Concur in Result 1: Maxwell, J., concurs in part and in the result with separate written opinion joined by Griffis, P.J., Barnes and Roberts, JJ., and joined in part by Russell, J.
Concur in Part, Concur in Result Joined By 1: Maxwell, J., concurs in part and in the result with separate written opinion joined by Griffis, P.J., Barnes and Roberts, JJ., and joined in part by Russell, J.
Procedural History: Jury Trial
Nature of the Case: CIVIL - PERSONAL INJURY

Trial Court: Date of Trial Judgment: 12-21-2009
Appealed from: Leflore County Circuit Court
Judge: Betty W. Sanders
Disposition: VERDICT FOR THE PLAINTIFF
Case Number: 2004-0092-CICI

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Fred's Stores of Tennessee, Inc.




RICHARD D. UNDERWOOD



 
  • Appellant #1 Brief

  • Appellee: Jesse Pratt CHARLES JONES SWAYZE III  

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    Topic: Personal injury - Sufficiency of evidence - Premises liability - Medical records - M.R.E. 401 - Deposition testimony - M.R.C.P. 32(a)(1) - Closing argument

    Summary of the Facts: Fred’s Discount Stores of Tennessee, Inc. was found liable for negligence after one of its patrons, Jesse Pratt, was injured after slipping on a plastic grocery sack on the floor near a checkout stand. The jury awarded Pratt $25,000 for her injuries. Fred’s appeals.

    Summary of Opinion Analysis: Issue 1: Sufficiency of evidence Fred’s argues that it was entitled to a directed verdict because Pratt failed to present evidence that Fred’s was negligent. Fred’s claims that Pratt did not prove that an employee of Fred’s caused any plastic bags to be on the floor, or the plastic bags were on the floor for a sufficient amount of time for any employee to have known about it or to have constructive knowledge that the bags were on the ground. Pratt testified that she slipped on a plastic shopping bag in the checkout aisle. A witness testified that he witnessed Pratt’s fall, which he testified was a result of the Fred’s plastic shopping bag being in the aisle. Dr. Moses, Pratt’s treating physician, testified that the injuries Pratt suffered were directly related to Pratt’s fall. Fred’s did not provide evidence to rebut any of the testimony. Fred’s own representative admitted in her testimony that the plastic shopping bag in the aisle was a dangerous condition. She also admitted that the plastic shopping bags are only handled by Fred’s employees and should not be on the floor of the store. Based on the testimony and evidence presented at trial, a reasonable jury could conclude that the plastic shopping bag on the floor in the checkout aisle was present due to Fred’s negligence. Fred’s argues that it is also entitled to a JNOV or a new trial because there was no proof that Fred’s caused a plastic bag to be on the floor. In order to prevail in this premises-liability case, Pratt must have shown one that a negligent act by Fred’s caused her injuries, or Fred’s possessed actual knowledge of the dangerous condition yet failed to warn of it, or a dangerous condition existed for such a length of time that Fred’s should have known of the existence of the dangerous condition so that constructive knowledge of the condition could be imputed to Fred’s. There was sufficient evidence from which the jury could draw reasonable inferences to support the verdict. Issue 2: Medical records Fred’s argues that it is entitled to a new trial because the trial court deprived it of the opportunity to submit evidence to show that Pratt suffered from a preexisting condition to her left knee. Fred’s asserts that the medical records were relevant to show that Pratt’s preexisting condition may have accounted for some or all of her alleged pain. M.R.E. 401 favors the admissibility of evidence if the evidence has any probative value. Although the court did not allow these medical records to be admitted into evidence, the jury was aware of Pratt’s preexisting conditions in her left knee. However, the medical records were relevant to determine the issue of damages; therefore, the circuit court abused its discretion by not allowing the medical records into evidence. Issue 3: Deposition testimony Fred’s argues that the circuit court erred by not allowing it to introduce portions of Pratt’s deposition to the jury. According to M.R.C.P. 32(a)(1), any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a deponent as a witness, or for any other purpose permitted by the Mississippi Rules of Evidence. The circuit court properly permitted Fred’s to use the deposition testimony to contradict or impeach Pratt during cross-examination, which is consistent with Rule 32(a)(1). Yet Fred’s failed to avail itself of this opportunity. Instead, without giving any explanation of the deposition’s relevance or its probative value, Fred’s waited to introduce the deposition until after Pratt had left the stand and rested her case-in-chief. While Rule 32(a)(1) of the rules of civil procedure does not expressly prohibit the introduction of a deposition if the person is a live witness at trial, in this instance, admitting the deposition without any clarification of its relevance would be improper. Issue 4: Closing argument Fred’s argues that a mistrial should have been granted when Pratt’s attorney, in his closing argument, commented on Fred’s failure to call a medical doctor to rebut Pratt’s medical records after she fell. An improper comment on failure to call a witness does not require reversal unless the natural and probable effect of the improper argument creates an unjust prejudice against the opposing party resulting in a decision influenced by the prejudice so created. Here, the trial court instructed the jury to disregard the statements made about Fred’s failure to call a witness to rebut Dr. Moses’s testimony, stating that those statements were “inappropriate.” The attorney’s comments were cured by the circuit court’s instruction, and as such, constitute harmless error which does not warrant reversal.


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