Dawson v. Townsend & Sons, Inc., 98-CA-00479-COA.

• Decision Date: 08 June 1999
• Docket Number: No. 98-CA-00479-COA.,98-CA-00479-COA.
• Citation: 735 So.2d 1131
• Court: Mississippi Court of Appeals
• Parties: James Michael DAWSON, Appellant, v. TOWNSEND & SONS, INC., Appellees.

735 So.2d 1131

James Michael DAWSON, Appellant, v. TOWNSEND & SONS, INC., Appellees.

No. 98-CA-00479-COA.

Court of Appeals of Mississippi.

June 8, 1999.

Charles T. Yoste, Starkville, Attorney for Appellant.

James D. Holland, Ridgeland, Andrew W. Eversberg, Ridgeland, Attorneys for Appellees.

BEFORE SOUTHWICK, P.J., LEE, AND THOMAS, JJ.

SOUTHWICK, P.J., for the Court:

¶ 1. The plaintiff brought suit for injuries sustained when he was purposefully stabbed by a fellow patron at the defendant's grocery store. A Lowndes County Circuit Court jury found that the other patron, who was not made a defendant, was solely responsible for the damages. On appeal the plaintiff argues that the jury should not have been instructed to allocate responsibility between the wilful acts of the other patron and the allegedly negligent acts of the store owner. We agree that this was error. However, we also find that the error did not impact the jury's determination that the store owner had no negligence at all. The evidence supports the jury's verdict and we affirm.

FACTS

¶ 2. James Dawson was shopping for a birthday card in the Sunflower Food Store on Military Road in Columbus, Mississippi, on September 14, 1993, when he was attacked by John Williams. There is no suggestion that Dawson did anything to provoke the attack. After injuring Dawson, Williams left the store in unrushed fashion and displayed what appeared to be rather odd mannerisms. He was arrested by police and at the time of the trial was in the Mississippi State Hospital.

¶ 3. Williams had been a regular customer at the store, shopping there a few times a week. Described as quiet, he displayed no violent tendencies though his mannerisms made at least one employee nervous. There was testimony that Dawson's wife had received a call from the store's assistant manager after the attack indicating the store had been concerned about Williams behavior and was "afraid something like this was going to happen." The assistant manager denied saying this, though she did admit calling Mrs. Dawson to inquire about Mr. Dawson's condition.

¶ 4. The attack left a long deep scar across the left side of Dawson's face for which several corrective surgeries were performed. He testified to losing some 200 hours of work, though not all as a result of the attack, and suffering significant emotional distress. He also suffered physical pain, not only from the attack but from several of the subsequent surgeries.

¶ 5. Dawson brought suit against the owner of the store, Townsend and Sons, Inc., for failing to protect him from the attack. John Williams was not made a party to the litigation.

DISCUSSION

I. Jury's consideration of absent intentional tortfeasor

¶ 6. The appellant Dawson alleges error in the trial court's granting instructions that required that the jury consider Williams as at least partly responsible for the plaintiff's injuries. The jury after deliberations found Williams to be totally responsible. Dawson argues that Williams could not in this suit be considered at all.

¶ 7. We divide the issues regarding the jury's consideration of the knife-wielding John Williams into two parts: 1) may a portion of responsibility be assigned to a person who is not a defendant in the case; 2) may responsibility be allocated between intentional and negligent participants in the events that caused injury? Since trial, the supreme court has answered one of those questions. The second is presented to us as the first state appellate court to consider the matter.

a. Assigning responsibility to an absent tortfeasor.

¶ 8. The center of attention here is the meaning of Mississippi's statute on contribution among joint tortfeasors, Mississippi Code section 85-5-7. The text of the statute is reproduced in appendix III to this opinion. One significant ambiguity is whether responsibility for injuries can be allocated only to the parties in the suit. If someone who contributed to the injury is not a party, as the person wielding the knife in this case is not, then the plaintiff argues that one hundred percent of the responsibility must be assigned to those who are included. The statute at times refers to "party":

(7) In actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault.

Miss.Code Ann. § 85-5-7(7) (Rev.1991). Another section refers to "persons" and "tortfeasors":

(3) Except as otherwise provided in subsections (2) and (6) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a joint tort-feasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault.

Miss.Code Ann. § 85-5-7(3) (Rev.1991).

¶ 9. A rule that only parties in the suit could be allocated fault would be less onerous a concept if a defendant itself could add other defendants. There is, though, no right for a defendant to implead another unless the proposed new party has "derivative liability." M.R.C.P. 14 cmt. This means that a plaintiff could select which of several tortfeasors to sue, based on considerations other than degree of culpability, and the defendants could not bring the other tortfeasors into the litigation. If the statute did not permit missing participants in the injury to have an allocation of responsibility made to them, a fairly minor contributor factually could become the sole party at fault legally.

¶ 10. Since the date of trial the supreme court has resolved this troubling question. Estate of Hunter v. General Motors Corp., 729 So.2d 1264(¶ 32) (Miss.1999). The court concluded that participants in an event who for some reason are not joined in the litigation, so-called "phantom defendants," can nonetheless have their portion of fault assigned to them. A jury may not be instructed to consider only the parties actually sued, else the defendants who are present have been unfairly denied the benefits of our system of comparative fault. Id. For example, a claimant could settle with one defendant in order to go after a "deep pocket" defendant. Id. "There is no indication that the legislature intended to reserve for plaintiffs the sole and exclusive right to make allegations of fault before a jury and to deprive defendants of the opportunity to persuade a jury that fault for a given accident lies elsewhere." Id. at (¶ 34). We need not further restate the analysis.

¶ 11. We turn to whether the instructions here presented the issue correctly.

¶ 12. Instruction D-13 stated that the assailant, John Williams, "was a proximate cause of the Plaintiff's injury" and instructed the jury to determine whether Townsend was also a proximate cause. Instruction D-15 required the jury to hold for the defendant if it found that Williams was the sole proximate cause of Dawson's damages. Jury instruction D-19 required the jury to determine Williams and Townsend's percentages of fault.

¶ 13. Since Estate of Hunter requires that "phantom defendants" have their contribution to an injury considered, we find no error in these instructions so long as John Williams was the sort of phantom that the statute recognizes. To answer that question, we turn to Dawson's remaining issue.

b. Consideration of intentional and negligent tortfeasors' responsibility in same suit

¶ 14. The meaning of the 1989 statute that changed contribution among joint tortfeasors has been the subject of confusion and controversy since its passage. H. Wesley Williams, Comment, 1989 Tort "Reform" in Mississippi: Modification of Joint and Several Liability and the Adoption of Comparative Contribution, 13 Miss. C.L.REV. 133 (1992); Cheri D. Green & Michael K. Graves, Allocation of Fault: Joint Tortfeasors in Court and the Ones Who Should Be, 63 MISS. L.J. 647 (1994). Part of the reason for such uncertainty is that the language of the statute appears to have no definite parentage. The statute arrived on the legal scene without being derived from any document with an understood meaning, such as the Uniform Contribution Among Tortfeasors Act. 12 UNIFORM ACTS ANNOTATED 185 (1996).¹

¶ 15. We start by looking at the purpose of the statute and only then examine precise words. More metaphorically, we could say that it is instructive to look at the forest before examining trees. Out of eight subsections, only one directly discusses allocating responsibility among tortfeasors: "the trier of fact shall determine the percentage of fault for each party alleged to be at fault." Miss.Code Ann. § 85-5-7(7). The remainder addresses other issues, principally limits on joint liability for damage awards and the right of contribution.

¶ 16. As a brief preliminary, we define the two parts of a key phrase. "Joint liability" means that two or more parties together have an obligation. BLACK'S LAW DICTIONARY 838 (6th ed.1990). "Several liability" is an independent obligation of a party that permits suit without the joinder of other obligors. Id. at 1374. Therefore "joint and several liability" is an obligation on each person, whether sued alone or with others, to pay an entire award. Id. at 837.

¶ 17. We leave the broad view of the forest in order to examine the trees. The first of two relevant sections defines "fault" to include "negligence, malpractice, strict liability, absolute liability or failure to warn. `Fault' shall not include any tort which results from an act or omission committed with a specific wrongful intent." Miss.Code Ann. § 85-5-7(1) (Rev.1991). The next important section has already been quoted, but the specific relevant language is "[e]xcept as otherwise provided in subsections (2) and (6) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a joint tort-feasor shall be liable only for the amount of damages allocated...