Dillon v. Greenbriar Digging Service, Ltd.
| Citation | 919 So.2d 172 |
| Decision Date | 07 June 2005 |
| Docket Number | No. 2004-CA-00397-COA.,2004-CA-00397-COA. |
| Parties | Fred DILLON, Appellant v. GREENBRIAR DIGGING SERVICE, LTD. PS, Appellee. |
| Court | Mississippi Court of Appeals |
Jack G. Price, McComb, attorney for appellant.
Donald Alan Windham, Richard F. Yarborough, Jackson, attorneys for appellee.
EN BANC.
CHANDLER, J., for the Court.
¶ 1. Fred Dillon filed a complaint against Greenbriar Digging alleging negligence when one of Dillon's horses was found dead near a trench dug by Greenbriar. Dillon filed suit against Greenbriar when it refused to compensate Dillon for the value of his horse. After a trial, the jury entered a verdict in favor of Greenbriar. The Walthall County Circuit Court denied Dillon's request for a judgment notwithstanding the verdict. Dillon appeals, raising the following issues, which we quote verbatim from his brief:
I. THE TRIAL COURT ERRED IN ALLOWING VICTOR PLOATTSKI TO TESTIFY ABOUT A DAILY PROGRESS SHEET OF WHICH HE HAD NO PERSONAL KNOWLEDGE:
II. THE VERDICT OF THE JURY IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND CONTRARY TO THE LAW
III. THE VERDICT OF THE JURY IS CONTRARY TO THE PHYSICAL FACTS AND THE EVIDENCE PRESENTED IN THE CASE
IV. IN CONSIDERING ALL OF THE EVIDENCE PRESENTED IN THIS ACTION IN THE LIGHT AND WITH ALL REASONABLE INFERENCES FAVORABLE TO GREENBRIAR, THE EVIDENCE AND INFERENCES ARE STILL SO STRONGLY AND OVERWHELMING IN FAVOR OF FRED DILLON THAT REASONABLE MEN, UNAFFECTED BY BIAS, PASSION AND PREJUDICE, COULD ONLY ARRIVE AT A VERDICT IN FAVOR OF THE PLAINTIFF, FRED DILLON
V. THE JURY INSTRUCTION MARKED D-5 SHOULD NEVER HAVE BEEN ADMITTED INTO COURT PROCEEDINGS
¶ 2. Finding no error, we affirm.
FACTS
¶ 3. Lexie Water Association upgraded its water system for its customers residing in Walthall County. It contracted with Greenbriar Digging Services, Ltd. to dig the trenches. Fred Dillon agreed to give the Lexie Water Association and its contractors an easement to lay pipe across his property. The trench across Dillon's property was dug in late November of 2001, with the normal procedure of leaving a berm of dirt along the top of the trench to take account of any dirt settling over time and returning to recover the berm in the passage of time. Dillon owned several horses, and he was warned to keep his livestock away from the trench during this period.
¶ 4. In March of 2002, Dillon found one of his horses dead. The horse was found in a boggy area near the location of the trench. When Dillon discovered the horse, the carcass had a strong odor and showed signs of significant decay, demonstrating that it had been in the trench for many days. Lexie made arrangements to bury the horse. Dillon contacted Greenbriar about the incident, and Greenbriar denied all liability. Dillon sued Greenbriar, alleging that its negligence in digging the trench resulted in the death of his horse. The jury returned a verdict in favor of Greenbriar. The circuit court judge denied Dillon's motion for judgment notwithstanding the verdict.
I. WHETHER THE TRIAL COURT ERRED IN ALLOWING VICTOR PLOATTSKI TO TESTIFY ABOUT A DAILY PROGRESS SHEET OF WHICH HE HAD NO PERSONAL KNOWLEDGE
¶ 5. As part of its defense, Greenbriar introduced an inspection report that was prepared by Lexie. Lexie's inspection reports are prepared daily by the inspector on duty. The report addresses the activities performed that day and the inspector's impressions of them.
¶ 6. Victor Ploattski was an inspector for Lexie. He testified as to Lexie's inspection report that the company prepared after performing its work on Dillon's property. The report was admitted into evidence over the objection of Dillon's counsel. Dillon claims that the inspection report was hearsay because Ploattski was not the inspector on the job the day Lexie performed the work on Dillon's property.
¶ 7. Ploattski was testifying as to records of a regularly conducted business activity. The report is therefore admissible under the business records exception to the hearsay rule. M.R.E. 803(6) defines a record of a regularly conducted business activity in the following way:
A memorandum, report, record or data compilation, in any form, or acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or self-authenticated pursuant to Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
¶ 8. The foundational requirements for admitting evidence under the business records exception are: 1) the statement is in written or recorded form; 2) the record concerns acts, events, conditions, opinions or diagnoses; 3) the record was made at or near the time of the matter recorded; 4) the source of the information had personal knowledge of the matter; 5) the record was kept in the course of regular business activity; and 6) it was the regular practice of the business activity to make the record. Flowers v. State, 773 So.2d 309, 322(¶ 72) (Miss.2000).
¶ 9. In establishing the foundational requirements to establish the reliability of the inspection report, the following questioning occurred:
Q (By Greenbriar's Counsel): And you served as an inspector on this particular job.
A (By Victor Ploattski): Yes, sir.
¶ 10. Greenbriar's counsel established all the foundational requirements necessary to admit the inspection report under the business records exception to the hearsay rule. The inspection report was one that was kept daily on the same form prepared by the inspector that was working that day. Ploattski was competent to testify about the inspection report because he worked for Lexie as an inspector and regularly kept similar records on the same form. In Flowers, the supreme court held that a person who is familiar with the contents, terms, and meaning of a form is competent to give testimony regarding the foundational requirements of the business record exception. Id. at 332-33(¶ 77). The circuit court judge was within his discretion in admitting the inspection report.
II. WHETHER THE VERDICT OF THE JURY IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND CONTRARY TO THE LAW
III. WHETHER THE VERDICT OF THE JURY IS CONTRARY TO THE PHYSICAL FACTS AND THE EVIDENCE PRESENTED IN THE CASE
IV. WHETHER, IN CONSIDERING ALL OF THE EVIDENCE PRESENTED IN THIS ACTION IN THE LIGHT AND WITH ALL REASONABLE INFERENCES FAVORABLE TO GREENBRIAR, THE EVIDENCE AND INFERENCES ARE STILL SO STRONGLY AND OVERWHELMING IN FAVOR OF FRED DILLON THAT REASONABLE MEN, UNAFFECTED BY BIAS, PASSION AND PREJUDICE, COULD ONLY ARRIVE AT A VERDICT IN FAVOR OF THE PLAINTIFF, FRED DILLON
¶ 11. Dillon's suit against Greenbriar alleged that Greenbriar was negligent in failing to fully fill in the trench. "To prevail on a claim for negligence, the plaintiff must establish by a preponderance of the evidence each of the elements of negligence: duty, breach, causation and injury." Lovett v. Bradford, 676 So.2d 893, 896 (Miss.1996). Negligence is defined as "failure to exercise reasonable care under the circumstances." Smith v. City of West Point, 475 So.2d 816, 818 (Miss.1985) () (citing Cole v. Delchamps, Inc., 246 Miss. 846, 852, 152 So.2d 911, 913 (1963)).
¶ 12. To succeed in a negligence claim, the plaintiff must prove both causation and proximate cause. This requirement means that a defendant is not liable "for damages which are remote or collateral, or which result from a remote, improbable or extraordinary occurrence, although such occurrence is within the range of possibilities flowing from Defendant's negligent act." Ware v. State, 790 So.2d 201, 214(¶ 48) (Miss.Ct.App.2001).
¶ 13. When reviewing the denial of a judgment notwithstanding the verdict, this Court will "consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence." Sperry-New Holland v. Prestage, 617 So.2d 248, 252 (Miss.1993). "[I]f there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required." McMillan v. King, 557 So.2d 519, 522 (Miss.1990). This Court must affirm the...
To continue reading
Request your trial
-
Utz v. Running & Rolling Trucking, Inc.
...person acted as a reasonable and prudent person would have under the same or similar circumstances. In Dillon v. Greenbriar Digging Service, Ltd., 919 So.2d 172, 178 (Miss.Ct.App. 2005), the Court of Appeals upheld similar language in a jury instruction. Like the instruction in Dillon, jury......
- Comer v. Murphy Oil USA, Inc., Cause No. 1:11CV220–LG–RHW.
-
King v. Gale, 2013–CA–00271–COA.
...rule. See M.R.E. 803(6). We agree with King that there was no hearsay issue with the sketch and plat. See Dillon v. Greenbriar Digging Serv., Ltd., 919 So.2d 172, 175–76 (¶¶ 8–10) (Miss.Ct.App.2005) (affirming the admission of an inspection report, which had been prepared by a different ins......
- McDaniel v. Ferrell