Whittley v. City of Meridian

Decision Date10 August 1988
Docket NumberNo. 57850,57850
Citation530 So.2d 1341
CourtMississippi Supreme Court
PartiesMaranda Ann WHITTLEY, A Minor, et al. v. CITY OF MERIDIAN, Bill Gordon, d/b/a Bill Gordon Enterprises.

Roy Pitts, Meridian, for appellants.

Harvey B. Ray, Ray & Cobb, J.L. Prichard, Deen, Cameron, Prichard, Young, Kittrell & Loeb, Meridian, for appellees.

Before DAN M. LEE, P.J., and SULLIVAN and ZUCCARO, JJ.

ZUCCARO, Justice, for the Court:

PROCEDURAL HISTORY

Maranda Ann Whittley, a minor, by Diane Whittley Walters, her mother, filed a complaint against The City of Meridian, Taylor Properties, Ltd., Bill Gordon, doing business as Bill Gordon Enterprises, (hereinafter Gordon) Payson Casters and Leach Company for personal injuries sustained by Maranda when a refuse bin fell on top of her.

In the Circuit Court of Lauderdale County, The Leach Company, the manufacturer of the garbage trucks used by the City of Meridian was dismissed via summary judgment. Taylor Properties, Ltd., owner of the apartment complex where the refuse bin causing the injury was situated and the owner of the refuse bin itself, settled with the appellant for $2,519,276.00 to be paid over a period of time via structured settlement plus an additional $2,706.00 for each month the appellant shall live beyond December 15, 2013. Payson Casters, Inc., maker of the wheels on the refuse bin, settled with appellant for $25,000.00. During the actual trial of the case, after all parties had rested, Gordon, the manufacturer and seller of the refuse bin, was granted a directed verdict and dismissed. The jury returned a verdict in favor of the City of Meridian. From this verdict, the appellant appeals the dismissal of Bill Gordon and the verdict in favor of the City of Meridian, assigning as errors the following:

I. THE TRIAL COURT ERRED BY GRANTING THE CITY OF MERIDIAN'S MOTION IN LIMINE WHICH EXCLUDED ALL EVIDENCE OF NOTICE ON BEHALF OF THE CITY FROM THE CONSUMER PRODUCT SAFETY COMMISSION THAT THE TYPE OF REFUSE BIN IN QUESTION WAS DANGEROUS.

II. THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION FOR A NEW TRIAL OR IN THE ALTERNATIVE, JUDGMENT NOTWITHSTANDING THE VERDICT.

III. THE TRIAL COURT ERRED IN GRANTING INSTRUCTION NUMBERS D-1-131A AND D-1-SA.

IV. THE TRIAL COURT ERRED IN GRANTING A PEREMPTORY INSTRUCTION FOR BILL GORDON, D/B/A BILL GORDON ENTERPRISES.

We reverse and remand for a new trial based upon assignments of error I, III and IV. Therefore, we do not address assignment II.

STATEMENT OF FACTS

On June 1, 1981, a side-slanted refuse bin fell on Maranda, a four year old, while she and a friend were playing on or near it. Maranda suffered broken ribs, a broken collar bone, a broken neck and a severed spinal cord. Maranda is now a quadriplegic.

The refuse bin, owned by Taylor Properties, Ltd. and situated at the Marion Park Apartment complex, was designed to enable the garbage trucks used by the City of Meridian to pick up the bin, empty it into the truck and replace the bin on the ground.

DID THE TRIAL COURT ERR IN GRANTING THE CITY OF MERIDIAN'S
MOTION IN LIMINE?

During discovery the appellants ascertained that the City of Meridian had received a letter and a federal publication from the Consumer Product Safety Commission of which the city engineer was aware, concerning the potential dangers of refuse bins similar to the one in the case sub judice. Anticipating appellant would introduce evidence relating to the letter to show that the City of Meridian had notice of the instability of the refuse bin, the City made a motion in limine, which was granted by the trial court, to exclude such evidence.

Counsel for the plaintiff called Garrett, the city engineer in charge of sanitation, as an adverse witness. Since the court granted the City of Meridian's motion in limine excluding all evidence pertaining to the letter from the Consumer Product Safety Commission, the court allowed counsel for plaintiff to question Garrett in reference to said letter in the absence of the jury to allow plaintiff to make its record. During this testimony in the absence of the jury, Garrett admitted having received and having read the letter and publication from the Consumer Product Safety Commission wherein it was brought to the city's attention that the refuse bins were a potential threat to the safety of young children.

Harvey B. Ray, counsel for Bill Gordon, an appellee herein, cross-examined Garrett. During the cross-examination, in the presence of the jury, the witness testified that he had never received any information that the garbage bins were unstable or dangerous.

Counsel for Maranda Ann Whittley asked permission of the judge to seek to impeach Garrett's testimony using the letter from the Consumer Product Safety Commission. The court denied the request.

The appellant should have been allowed to impeach the witness' testimony to show that the city had notice of the potential danger of the refuse bins. We find that this letter was admissible under the Mississippi Rules of Evidence. There was no basis for the court's exclusion of the letter. Furthermore, the trial court made no findings of fact or conclusions of law setting forth its reasons for granting the motion in limine. The letter did not constitute hearsay because the appellant offered the letter simply to show notice of the danger of the refuse bin on behalf of the city, not to argue the truth of the content of the letter.

We further find that exclusion of the letter allowed the defense to project a false premise to the jury since the witness Garrett denied having notice of any potential danger stemming from use of the refuse bin in question and since the trial court refused to allow counsel for appellant to use the letter to impeach Garrett's testimony.

The trial court again erred in disallowing appellant to "pierce the shield" of the order in limine to impeach Garrett's testimony by introduction of the letter.

The primary purpose of a pre-trial motion in limine is to exclude from trial evidence highly prejudicial to the movant, not to exclude irrelevant evidence. Proper v. Mowry, 90 N.M. 710, 568 P.2d 236 (1977). If a pre-trial motion in limine is granted, the court will order opposing counsel to make no reference to the evidence at trial within the hearing of the jury. This eliminates the danger that the evidence will be introduced under the guise of a question propounded to a witness. It also eliminates the necessity of having to rely upon curative measures to safeguard the parties against the prejudicial impact that a submission of improper evidence may have upon the jury.

Once a pretrial motion to exclude by virtue of an order in limine has been granted, the moving party has a binding court order instructing opposing counsel to make no reference to the excluded evidence within the hearing of the jury. Davis, The Motion in Limine--A Neglected Trial Technique, S. Washburn L.J. 232 (1966). The trial court has an obligation to enforce this order. See Burdick v. York Oil, 364 S.W.2d 766, 770 (Tex.Civ.App.1963). It is the trial court's responsibility to assume the initiative in compelling compliance with its order. Burdick at 770. Therefore, if the order is violated, the moving party should not be required to voice an objection in the presence of the jury. An objection will merely serve to call the jury's attention to the improperly submitted evidence. Bradbeer v. Scott, 193 Cal.App.2d 575, 14 Cal.Rptr. 458, 459 (1961); Department of Public Works & Buildings v. Sun Oil Co., 66 Ill.App.3d 64, 22 Ill.Dec. 826, 383 N.E.2d 634 (1978); McClintock v. Travelers Ins. Co., 393 S.W.2d 421, 423-424 (Tex.Civ.App.1965); State v. Smith, 189 Wash. 422, 429, 65 P.2d 1075, 1078 (1937).

Before granting a motion in limine, courts must be certain that such action will not unduly restrict opposing party's presentation of its case. Reidelberger v. Highland Body Shop, Inc., 83 Ill.2d 545, 48 Ill.Dec. 237, 416 N.E.2d 268 (1981). The appellant was unduly restricted in the presentation of its case by the granting of the motion in limine in that the appellant was not able to show that the City had notice of the potential danger of the refuse bin.

The Kansas Supreme Court, in State v. Quick, 226 Kan. 308, 311, 597 P.2d 1108 (1979) held that a motion in limine "should be granted only when the trial court finds two factors are present: (1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury. State v. Massey, 242 Kan. 252, 747 P.2d 802, 810 (1987). We adopt the test set forth by the Kansas court in Quick. Based upon that test, it is apparent that the granting of order in limine was erroneous.

In McCay v. Jones, 354 So.2d 1095 (Miss.1978) the appellee was granted a motion in limine excluding the appellants from calling certain doctors. The basis for the motion in limine was that the plaintiff did not want to have to object on the grounds of privilege in front of the jury. The appellants argued that in granting the appellee's order in limine the trial court effectively precluded them from rebutting the statutory presumption under Miss.Code Ann. Sec. 41-9-119 1 that medical expenses covered by the bills were necessary and reasonable, thereby raising prima facie evidence to an irrebuttable presumption.

We held that precluding the defendants from examining the physicians within the narrow scope of rebutting the reasonableness of the expenses amounted to a violation of due process. Similarly, in the case sub judice the trial court in refusing to allow the appellant to impeach Garrett (with the letter) violated Whittley's right to due process.

The appellant's right to due process was violated when the lower court refused to allow the attorney for appellant to impeach Garrett's testimony denying notice with the letter from the Consumer Products Safety C...

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