Cheeks v. AutoZone, Inc.
| Citation | 154 So.3d 817 |
| Decision Date | 25 September 2014 |
| Docket Number | No. 2013–CA–00401–SCT.,2013–CA–00401–SCT. |
| Parties | Kenyatta Donta CHEEKS, v. AUTOZONE, INC., AutoZone Mississippi, Inc., AutoZone Stores, Inc. and AutoZone Mississippi Properties, Inc. |
| Court | United States State Supreme Court of Mississippi |
Joe N. Tatum, attorney for appellant.
Keith D. Obert, William F. Brown, Madison, attorneys for appellees.
EN BANC.
¶ 1. Kenyatta Cheeks was entering an AutoZone store when he was struck by a vehicle driven by Jason Johnson. The jury returned a verdict for Cheeks in the amount of $2,580,000, finding that AutoZone was forty-five percent at fault and Johnson was fifty-five percent at fault. The trial court entered judgment in the sum of $1,161,000, with interest at the rate of five percent per annum from the date of judgment until the amount is paid in full. Later, the trial court granted AutoZone's motion for judgment notwithstanding the verdict (JNOV). Cheeks appeals. We reverse the JNOV and remand the case to the Hinds County Circuit Court for entry of judgment consistent with this opinion.
¶ 2. On Saturday evening, May 1, 2010, Cheeks and Cleveland Dortch drove to an AutoZone store located at 1401 Ellis Avenue, Jackson, Mississippi, to purchase auto parts.1 Cheeks parked at a nonstorefront side of the store, where there was no raised sidewalk or protective bollards.2
¶ 3. The store provides parking facing two sides of the building. The store has an angled glass entranceway connecting the storefront with a masonry wall. The east, mostly glass wall served as the storefront. Vehicles parking on the north side primarily faced a solid wall with no glass. The storefront wall had bollards in a raised sidewalk that were erected in conjunction with the original construction of the store.3 No bollards protected the entranceway connected to the north wall.4
¶ 4. As Cheeks opened an entrance door, he heard a warning. Cheeks turned to see a car “feet away,” bearing down on him. Before Cheeks could make it behind a bollard, he was struck by a car driven by Jason Johnson. Cheeks sustained significant injuries.
¶ 5. Cheeks filed suit against AutoZone5 and Johnson. During discovery, AutoZone identified the bollards as a “safety measure” in response to an interrogatory, which was read to the jury. The interrogatory is as follows:
¶ 6. On the morning of the trial, the parties agreed to dismiss Jason Johnson from the lawsuit with prejudice. Cheeks testified that, on May 1, 2010, he had worked on two or three cars at his shop. Later, Dortch came by to visit. The two went to Harbor Freight Tools (“Harbor”) to pick up a car jack. After leaving Harbor, Cheeks decided to stop at AutoZone to purchase parts for autos to be worked on Monday. Cheeks pulled into the AutoZone and parked, facing the wall on the north side. Cheeks testified that it was “kind of drizzling [,] raining” as they pulled into AutoZone. Cheeks was familiar with the layout of the store, as he had frequented it many times. He was aware that bollards protected the storefront, but not the other sides. Cheeks testified that “I figured that AutoZone had put enough bollards in place to stop a car from getting onto the sidewalk.” As Cheeks walked up the handicap ramp at the northeastern store entrance, he heard Dortch yell “Shorty, watch out.” When Cheeks turned around, he saw a vehicle bearing down on him. Cheeks testified he had less than two seconds to react. A store video captured Cheeks turning around and attempting to seek refuge behind a bollard on the eastern side. No bollard protected the northeastern entryway. He testified, “my instinct kicked in to run back towards the front of the store towards the orange pole [bollard].” Cheeks testified, “I relied on the pole.”
¶ 7. AutoZone employees (Mack Dillard, Ashley Burton, Eric White, and Millard O'Banner) testified that they occasionally allowed customers to drive up the handicap ramp leading to the entranceway, to get under a canopy extending above the northeastern entrance.6 Eric White was one of the three employees on duty at the time of the accident. He testified that he and another employee were outside changing wiper blades on separate vehicles and on opposite sides of the store at the time of the accident. White testified that Johnson never spoke to him about wiper blades or pulling under the canopy. O'Banner, the manager on duty at the time, testified that he was not asked to let anyone under the canopy that evening.
¶ 8. James Johnson, the driver and former defendant, and Louis Morris testified by deposition.7 Johnson testified that he drove from a nearby parking lot to AutoZone to have new windshield wiper blades installed onto his vehicle. He entered the AutoZone lot, where an AutoZone employee instructed him to drive his vehicle underneath the canopy that extended over the entrance. He was pulling his vehicle underneath the canopy when he suffered a seizure. He lost control of his vehicle and crashed into the entranceway. Following the accident and arrival of emergency personnel, Johnson regained consciousness. Johnson was arrested for driving with a suspended license.
¶ 9. Louis Morris witnessed the accident. Morris testified that he saw Johnson's car leave an adjoining parking lot and enter the AutoZone parking area. Morris stated that Johnson's car slightly paused as it entered the AutoZone parking area and then accelerated into the AutoZone entranceway. Morris saw no AutoZone employees standing outside the building.
¶ 10. In addition to presenting damage experts, Cheeks offered Dr. David Clement as a liability expert. Clement opined that when people see bollards, they interpret them as a safety feature. He also testified that Cheeks would not have had sufficient time to make any other decision than what he did. Clement read AutoZone's response to Interrogatory No. 14 to the jury.
¶ 11. Cheeks also presented David Daubert as an expert in the field of traffic and transportation engineering. Daubert testified that, once you place bollards in one area, you have to do it in all areas of the entranceway, because persons have an expectation of safety when they see bollards. Daubert further opined that AutoZone breached pedestrian safety principles by having a ramp that leads into a gap wide enough for cars to drive through. He opined that the car was traveling ten-to-eleven miles per hour when it struck Cheeks.8 He concluded that a bollard would have stopped the car, preventing it from reaching Cheeks. He also offered testimony and photographs that other AutoZones, both local and out of state, have bollards protecting the entire entranceway.9
¶ 12. George Callow, an AutoZone architect, offered the following testimony. Bollards were not designed to protect pedestrians. Instead, the bollards were installed in response to rampant “crash and grab” thefts.10 A secondary purpose of the bollards was to prevent cars from accidentally bumping into the glass, which caused about $2,000 a week in damage to AutoZone stores. He was unaware of any pedestrian ever having been struck or killed on any AutoZone sidewalk. The AutoZone store was not in violation of any federal, state, or municipal laws or regulations. He acknowledged that there was a “straight unimpeded shot through through the [entrance] gap” from the parking area.
¶ 13. After the court denied AutoZone's motion for directed verdict, AutoZone called Anthony Beal, a passenger in Johnson's car. Beal and Johnson were riding around when Johnson received a call that somebody was selling CDs and DVDs in Johnson's “spot” at a nearby Sav–A–Lot. Johnson decided to confront the individual. Johnson drove into the Sav–A–Lot parking area and had an argument with the unidentified CD seller. After the argument, Johnson angrily sped off in the direction of the AutoZone. Beal was concerned at how fast Johnson was driving and turned to look at him. When Beal looked at Johnson, he saw Johnson leaning sideways with his head rolling back, “like he was in seizure mode.” Beal tried to grab the wheel. He was thrown forward in his seat, hitting his head on the roof of the car, when the car struck a curb separating the Sav–A–Lot and AutoZone parking areas. He blacked out. When Beal awoke, he was inside the AutoZone store. Johnson never mentioned anything about wiper blades or needing to make a purchase at AutoZone. He never observed Johnson speaking to an AutoZone employee.
¶ 14. Rodney Daniels, Jackson Police Department, was the responding officer. Daniels testified that Johnson informed him that “his accelerator to his vehicle had gotten stuck,” and that was the cause of the accident, and that Johnson never mentioned wiper blades, AutoZone employees, or seizures.
¶ 15. AutoZone also presented testimony from Christopher Grubbs, an expert in civil engineering and parking-lot design, and Jeffrey Gross, an expert in architecture, building codes, and applications of the Americans with Disabilities Act. They testified that the store was reasonably designed and in substantial compliance with all codes. Gross further testified that placing a bollard in the entrance gap, while technically still complying with...
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