Rhoda v. Weathers


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Docket Number: 2010-CA-00797-COA
Linked Case(s): 2010-CA-00797-COA ; 2010-CT-00797-SCT ; 2010-CT-00797-SCT ; 2010-CT-00797-SCT

Court of Appeals: Opinion Link
Opinion Date: 08-09-2011
Opinion Author: Myers, J.
Holding: Affirmed in part, reversed and remanded in part

Additional Case Information: Topic: Personal injury - Police accident report - M.R.E. 803(6) & (8) - Expert accident reconstructionist - Comparative fault instruction - Evidentiary rulings - M.R.A.P. 28(a)(3) & (6) - Sanctions - M.R.C.P. 37(c) - M.R.C.P. 36(a) - Failure to admit to admissibility of medical records
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Carlton and Russell, JJ.
Non Participating Judge(s): Maxwell, J.
Nature of the Case: CIVIL - PERSONAL INJURY

Trial Court: Date of Trial Judgment: 04-27-2010
Appealed from: DeSoto County Circuit Court
Judge: Robert P. Chamberlin
Disposition: JURY VERDICT FOR DEFENDANT
Case Number: CV2009-0136CD

Note: The Supreme Court affirmed in part and reversed in part on March 8, 2012 at http://courts.ms.gov/Images/Opinions/CO75956.pdf .

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Marvin Rhoda




BENJAMIN LOUIS TAYLOR



 

Appellee: Edith W. Weathers DAWN DAVIS CARSON  

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Topic: Personal injury - Police accident report - M.R.E. 803(6) & (8) - Expert accident reconstructionist - Comparative fault instruction - Evidentiary rulings - M.R.A.P. 28(a)(3) & (6) - Sanctions - M.R.C.P. 37(c) - M.R.C.P. 36(a) - Failure to admit to admissibility of medical records

Summary of the Facts: Marvin Rhoda and Edith Weathers were involved in a two-vehicle collision. Rhoda brought suit against Weathers, alleging she had negligently caused the accident and his resulting injuries. The jury returned a verdict for Weathers. Rhoda appealed to circuit court, which affirmed the trial court’s judgment. Rhoda appeals.

Summary of Opinion Analysis: Issue 1: Police accident report Rhoda sought to introduce into evidence an accident report prepared by Officer Brian Keller of the Southaven Police Department. The report was a “Mississippi Uniform Crash Report,” essentially a form completed by the officer responding to the accident which contained a brief and somewhat contradictory narrative describing the collision. The accident report had checkboxes for “contributing circumstances” attributable to each driver. For Rhoda, “no apparent improper driving” was checked, while Weathers was indicated to have “failed to yield the right-of-way.” Rhoda argues that the accident report should have been admitted under M.R.E. 803(6) and 803(8) and that it is substantive evidence that Weathers caused the accident by entering the intersection without yielding the right-of-way to him. Rule 803(8)(C) provides an exception for factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. Rule 803(6), often called the business records exception to the rule against hearsay, provides that records kept in the “course of a regularly conducted business activity” are admissible unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. A conclusion in a police report may be admitted if based on a factual investigation and it satisfies the Rule’s trustworthiness requirement. Thus, the critical issue under either subsection of Rule 803 is whether the accident report is trustworthy. To analyze trustworthiness, the Mississippi Supreme Court has endorsed the following four considerations: (1) the timeliness of the investigation; (2) the investigator’s skill or experience; (3) whether a hearing was held; and (4) possible bias when reports are prepared with a view to possible litigation. The first, third, and fourth factors are not at issue in this case. The only relevant concern is the officer’s skill and experience or, more precisely, their application to the investigation in this case. There was no question that Officer Keller had significant experience; by the time of the subject accident, he estimated he had responded to “thousands” of accidents. He likewise had training in some aspects of accident reconstruction. But Officer Keller acknowledged that he did not reconstruct this accident, and neither Keller nor the report itself explained what was actually done to investigate the accident. By all indications the investigation was cursory, and the only thing that the accident report establishes Officer Keller did was consider conflicting accounts of who was at fault. This amounted to little more than a credibility determination. Under these circumstances, the trial court did not abuse its discretion in excluding the conclusions in the report as unreliable. Issue 2: Expert accident reconstructionist Rhoda argues that the trial court erred in not allowing Officer Keller to testify as an expert accident reconstructionist. This issue is without merit because Officer Keller testified that he did not perform a reconstruction of this accident. Issue 3: Comparative fault instruction Rhoda argues that the trial court erred in giving a comparative fault instruction to the jury, as he asserts that there was no evidence he negligently contributed to his injuries. There was testimony that Rhoda lost control of his vehicle after striking a puddle in the road, while traveling at approximately forty miles per hour. The puddle was described as presenting an open and visible danger. Mississippi law places a duty upon drivers to keep a reasonable lookout and take reasonably proper steps to avoid an accident or injury to persons and property after having knowledge of a danger. Thus, the evidence was sufficient to warrant a comparative fault instruction. Issue 4: Evidentiary rulings With regard to these issues, Rhoda’s brief fails to comply with M.R.A.P. 28(a)(3) which requires that each issue presented to the Court on appeal shall be “separately numbered” and “distinctly identified.” Failure to comply with the Rule 28 amounts to an abandonment of these issues on appeal. Additionally, Rhoda fails to provide authority and argument to support these new contentions as required by M.R.A.P. 28(a)(6). The one supported contention, although some authority is cited, is also procedurally barred under Rule 28(a)(6). This issue is simply not developed in Rhoda’s brief. To begin with, the brief does not cite the record to show where the trial court actually ruled that Rhoda could not impeach Stanford. Rule 28(a)(6) requires arguments of error be supported by citation to the record. A reviewing court is not obligated to scour the record to substantiate an appellant’s unsupported assertions as to what occurred at the trial. Rhoda’s argument on this issue amounts to little more than an announcement of a position. There is no analysis of the question presented, and while two Mississippi cases are mentioned in a string citation, they give no apparent support to the sentences that precede them. Specific pages or paragraphs in the decisions are not cited. Rhoda makes no effort to explain how the authorities support his position. Rule 28 does not simply require a party to mention authority; the authority must be used to develop the argument in a meaningful way. Issue 5: Sanctions Rhoda argues that the trial court erred in not awarding sanctions under M.R.C.P. 37(c). Rhoda contends that Weathers failed to admit “certain facts” in his Rule 36 requests for admission. Although Rhoda’s argument in his brief is not specific, from the record it is clear he is referring to requests for Weathers to admit the genuineness and admissibility of his medical records. Discovery matters are entrusted to the discretion of the trial court, but Rule 37(c) states that it “shall” order sanctions unless one of four specific findings is made. The admissions sought were clearly not held objectionable under Rule 36(a) or of no substantial importance; and there is no reasonable ground to believe that Weathers might prevail on the matter or other good reason for the failure to admit. Thus, the trial court abused its discretion in denying sanctions for Weathers’s failure to admit to the admissibility of Rhoda’s medical records.


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