Byrd v. Matthews, 07-CA-58754

• Decision Date: 28 November 1990
• Docket Number: No. 07-CA-58754,07-CA-58754
• Parties: Patricia W. BYRD v. Bobby Glen MATTHEWS and Allstate Insurance Co.
• Court: Mississippi Supreme Court

Page 258

571 So.2d 258

Patricia W. BYRD v. Bobby Glen MATTHEWS and Allstate Insurance Co.

No. 07-CA-58754.

Supreme Court of Mississippi.

Nov. 28, 1990.

Claude W. Milstead, Jack R. Davis, Jackson, for appellant.

Mildred M. Morris, Steen Reynolds Dalehite & Currie, Jimmie B. Reynolds, Jr., Steen Reynolds Firm, Jackson, John C. McLaurin, McLaurin & McLaurin, Brandon, for appellee.

EN BANC.

PRATHER, Justice, for the Court:

I. INTRODUCTION

A.

This case involves the issue of whether the assumption-of-risk doctrine, a defense available in a personal-injury action, is also available in a spouse's loss-of-consortium action. This Court concludes that permitting its availability would be consistent with established Mississippi case law. In reaching this conclusion, this Court is cognizant of the seemingly-unquestionable viability of the assumption-of-risk doctrine in actions involving a "sports" injury and the questionable viability of the doctrine in actions involving a non-"sports" injury. Compare G. SCHUBERT, R. SMITH & J. TRENTADUE, SPORTS LAW Sec. 7.4(A)(9), at 230 (1986) (contending that the doctrine is "firmly rooted in sports law"), with Harold v. Rolling "J" Ranch, 266 Cal.Rptr. 734, 218 Cal.App.3d 36, 218 Cal.App.3d 841A (1990) (noting that some states have "decided to retain" the doctrine, while others have either "placed significant limitations" on the doctrine or have altogether abolished it or allowed it to be subsumed by another doctrine such as comparative negligence).

Accordingly, this opinion should be construed as potentially applying only to actions involving the assumption-of-risk doctrine and a "sports" injury. One day, the "right" case or cases will require ultimate disposition of whether the doctrine itself should remain partially or wholly viable and available under all, some, or no circumstance(s).

B.

On April 28, 1984, driver Joe T. Byrd ("Joe") lost control of his car and "spun out" during a race at Jackson International Speedway. At that point, driver Bobby Glen Matthews struck Joe's car and, as a consequence, Joe incurred injuries. Joe subsequently filed a personal-injury action in Rankin County Circuit Court against Matthews and Allstate Insurance (Joe's uninsured motorist carrier). Presiding Judge Alfred Nichols ultimately directed a verdict in the defendants' favor after concluding that Joe's signing of a Release-and-Waiver-of-Liability-and-Indemnity agreement, as well as the assumption-of-risk doctrine constituted a complete defense. Joe did not appeal; the judgment is final.

Subsequent to the dismissal, Joe's wife, Patricia, filed an action against Matthews and Allstate for loss of consortium. This action was also dismissed via directed verdict. Judge Robert L. Goza based his decision on Patricia's failure to "establish facts upon which [Joe] could recover." Goza explained that Patricia "failed ... because the risk to which [Joe] was exposed was a foreseeable risk[, a]nd willing participants in a hazardous activity ... assume the ordinary and foreseeable risk incident to that activity." Judge Goza did not base his decision on Joe's signing of the Release-and-Waiver-of-Liability-and-Indemnity agreement. In reaching his decision, the judge premised: "Although the release itself ... is not a bar per se of Mrs. Byrd's claim, nevertheless Mrs. Byrd must establish facts upon which Mr. Byrd could recover, absent the release." Restated, Judge Goza concluded that the assumption-of-risk doctrine--applicable in Joe's negligence action--constituted a defense applicable in Patricia's consortium action.

Patricia appealed and presented numerous issues, only one of which is reached: "Whether an affirmative defense available in a personal-injury action is available in the other family member's action for loss of consortium?"

II. ANALYSIS

In the early consortium case of Palmer v. Clarksdale Hosp., this Court opined:

Of course, the burden is on the [spouse in the consortium action] to prove that the alleged tort-feasor is guilty of negligence which directly contributed to [his or her] loss and damage, and the contributory negligence of [his or her injured] spouse would be a defense.

213 Miss. 611, 621, 57 So.2d 476, 480 (1952) (emphasis added) (citing numerous authorities). In a more recent case, a unanimous Court opined that consortium actions "are derivative actions subject to all defenses that would have been available against the injured persons." Choctaw v. Wichner, 521 So.2d 878, 881 (Miss.1988) (emphasis added) (citing numerous authorities which hold that a spouse's right to consortium damages is derivative "and that it was only logical that since the [spouse's] ... action was derivative he [or she] could have no better standing in court than [the other spouse] had"). In keeping with the dictates of Palmer and Choctaw, this Court holds that the assumption-of-risk defense available against Joe in his personal-injury action was properly deemed available against Patricia in her derivative consortium action. ¹ Accord 21 A.L.R.3d 469, 471 ("[Almost a]ll cases from American jurisdictions are unanimous in holding that ... the action for collateral damages is derivative in nature and dependent upon the right of the injured spouse to recover, and is therefore subject to the same defenses that are available in the [personal-injury] action.").

The preceding analysis is consistent with Sec. 48 of the Restatement (Second) of Judgments, which recommends:

(1) When a loss resulting from injury to a person may be recovered by either the injured person or another person [e.g., for loss of consortium]:

(a) A judgment for or against the injured party has preclusive effects on any such other person's claim for the loss to the same extent as upon the injured person.

(b) A judgment for or against any such other person precludes recovery by or on behalf of the injured person of any loss that could have been recovered in the first action.

(2) When a person with a family relationship to one suffering personal injury has a claim for loss to himself resulting from the injury, the determination of issues in an action by the injured person to recover for his injuries is preclusive against the family member, unless the judgment was based on a defense that is unavailable against the family member in the second action.

"Comment a " to Sec. 48 of the Restatement explains, that by declaring that the "supplemental" (consortium) claim "should stand or fall with the injured person's claim," its recommendation promotes "consistency and fairness" and prevents dual recovery and repetitive adjudications. See also RESTATEMENT (SECOND) OF JUDGMENTS Sec. 48 Reporter's Note, at 32-33 (1982). Notably, the Comment concedes that its solution is "second-best" and that the matter is "better dealt with by rules of compulsory joinder." ²

III. CONCLUSION

This Court, until otherwise convinced, reaffirms long-established Mississippi case law by holding that a defense available against a plaintiff in his or her personal-injury action (in this case, assumption of risk) is available against the spouse's derivative consortium action. The circuit court, therefore, properly directed a verdict in favor of the defendants.

AFFIRMED.

ROY NOBLE LEE, C.J., DAN M. LEE, P.J., and ROBERTSON, ANDERSON, PITTMAN and BLASS, JJ., concur.

HAWKINS, P.J., and SULLIVAN, J., dissent.

SULLIVAN, Justice, dissenting:

Today's decision has a threefold effect: it (1) denies Byrd her day in court; (2) gives a spouse a unilateral right to act as the agent of the other spouse and foreclose the other spouse's constitutional and statutory right to seek redress for a personal injury; and (3) absolves a negligent party from liability although they have exercised a degree of care inferior to that required by law. Due to the far reaching effects and the inequity of our majority's opinion, I respectfully dissent.

The trial court could have found that Byrd's claim is barred because she, herself, assumed the risk or could have allowed a jury to award Byrd $0 damages applying the doctrine of comparative negligence for her injured spouse's acts. ¹ However, the trial judge did not find that Byrd, the plaintiff, assumed the risk; i.e., had actual knowledge of the danger to her husband, understood and appreciated the risk from the danger, and voluntarily exposed herself to the risk that a negligent driver would injure her husband causing her loss of consortium. Rather, the circuit judge barred her action because he found that Byrd did not establish facts upon which her husband could recover because Mr. Byrd, who is not a party in this action, had assumed the risk of his injuries by participating in the speedway event, a hazardous activity.

Our Constitution gives every person the right to seek redress for personal injury:

All courts shall be open; and every person for an injury done him in his ... person ... shall have a remedy by due course of law, and right and justice shall be administered without sale, denial or delay.

Miss. Const. Art. 3, Sec. 24 (Emphasis added). This constitutional guarantee of a day in court is equally applicable to loss of consortium actions. See Miss.Code Ann. Sec. 93-3-1 (1972). By allowing Mr. Byrd's assumption of the risk to bar his wife's claim, Byrd has been denied the right to seek redress for her injury. The consequence of this decision, however, reaches beyond denial of one's constitutional guarantee to use the courts--the majority has allowed one marital partner to act as the other spouse's agent by permitting the one to enter into an agreement to which the other spouse is not a party and which extinguishes a claim personal to the other.

When no consent has been given, a spouse is not the agent of his marital partner--meaning one spouse cannot bind the other to an agreement or contract to which he or she is not a party merely due to the marital relationship. Siskind v. Norris, 152 A.D.2d 196, 548 N.Y.S.2d 160, 162 (1989) (cites...