Dupree v. Plantation Pointe, LP

• Decision Date: 09 December 2004
• Docket Number: No. 2002-CT-00556-SCT.,2002-CT-00556-SCT.
• Citation: 892 So.2d 228
• Parties: Shelia DUPREE, Individually, and as Conservator of the Person and Estate of Annie Sanders v. PLANTATION POINTE, L.P. d/b/a The Windsor Place.
• Court: Mississippi Supreme Court

892 So.2d 228

Shelia DUPREE, Individually, and as Conservator of the Person and Estate of Annie Sanders v. PLANTATION POINTE, L.P. d/b/a The Windsor Place.

No. 2002-CT-00556-SCT.

Supreme Court of Mississippi.

December 9, 2004.

Rehearing Denied February 10, 2005.

Tylvester Otis Goss, Jackson, Constance Slaughter Harvey, Forest, attorneys for appellant.

James P. Streetman, III, Brian Douglas Mayo, Wade G. Manor, Ridgeland, attorneys for appellee.

EN BANC.

ON WRIT OF CERTIORARI

RANDOLPH, Justice, for the Court.

¶ 1. Shelia Dupree sued Plantation Pointe, L.P. d/b/a The Windsor Place (Windsor Place), individually and on the behalf of her mother, Annie Sanders, after Sanders was sexually assaulted at Windsor Place nursing home, a business of Plantation Pointe. The trial court granted a directed verdict on Dupree's individual claim for mental and emotional damages. A jury verdict was returned in favor of Windsor Place on the remaining claims, and the trial court entered judgment for Windsor Place. After denial of the Dupree's motion for a judgment notwithstanding the verdict and motion for new trial, Dupree appealed.

¶ 2. Dupree raised three issues before the Court of Appeals:

I. The Trial Court Erred in Denying the Motion for Judgment Notwithstanding the Verdict and in the Alternate Motion for a New Trial;

II. The Trial Court Failed to Properly Instruct the Jury; and

III. The Court Erred in Excluding Testimony Concerning Mental and Emotional Damages and by Granting a Directed Verdict on the Issue.

¶ 3. A divided Court of Appeals affirmed in part, reversed in part and remanded in part the circuit court's judgment. Dupree v. Plantation Pointe, L.P., 881 So.2d 832 (Miss.Ct.App.2003). The Court of Appeals affirmed the trial court's dismissal of Dupree's claim for mental and emotional damages. However, the Court of Appeals found that the trial court abused its discretion in denying Dupree's motion for a new trial on the remaining issues and reversed and remanded for a new trial on the remaining issues. The Court of Appeals declined to address the issue regarding jury instructions.

¶ 4. Windsor Place filed for certiorari claiming that the Court of Appeals erred in reversing and remanding the case for a new trial. As will be discussed, this Court reverses that decision by the Court of Appeals and reinstates and affirms the judgment based on the verdict and affirms the trial court's decision to deny the motion for new trial.

FACTS

¶ 5. Facts derived from the Court of Appeals opinion include:

¶ 2. Annie Sanders, a seventy-six-year-old female, was a resident of Windsor Place. Plantation Pointe, the defendant in the instant case, does business as Windsor Place. Uncontradicted testimony showed that Sanders was totally dependant and bedridden. She was unable to take care of or defend herself or communicate. She entered Windsor Place as a resident on November 15, 1999.

¶ 3. On December 2, 1999, Otis Duff, a seventy-eight-year-old male, who was another Windsor Place resident was discovered in Sanders' room. Duff was on top of Sanders with his pants down and penis exposed. Duff had spread Sanders' legs apart and was moving his hips in a rocking motion. Duff had [Sanders' arms pinned down].

¶ 4. Duff had been admitted to Windsor Place on July 30, 1999. Duff was over six feet tall and weighed at least 170 pounds. During the early part of his stay at the Windsor Place, he had been temporarily moved to another facility due to his behavior. That facility was more secure and able to handle Duff. Sherry Davis, the nursing administrator for Windsor Place, testified that reports from Windsor Place showed Duff to be verbally and physically abusive to staff. Duff would try to kick and bite staff members. He had at one point threatened to kill [...] staff members.

¶ 5. Duff also tried to kiss some staff members and made crude references to sex and sexual activities on numerous occasions, including walking through the halls naked. On November 29, 1999, Duff made one such comment to a Windsor Place office worker [....] Duff ended this remark by grabbing his penis and shaking it at her. Duff later made another similar comment to a dietary staff member.

¶ 6. Duff was also known to have gone into other residents' rooms and wander the premises on numerous occasions. On November 18, 1999, Duff was found in another resident's room wearing only a shirt. Davis admitted that one could assume that if Duff would hurt the staff he would hurt residents.

¶ 7. Davis' testimony is quite confusing. At one point she was asked:

Q. My question was would you agree with me that the Windsor Place at least failed Ms. Sanders as it relates to this particular policy to provide safeguard against any kind of harsh or abusive treatment?

A. I don't think that she received treatment, nor do I think that she was sexually abused at this point.

¶ 8. Later Davis admitted that sexual abuse was not tolerated at Windsor Place and the nursing home failed to protect Sanders from a sexual assault.

¶ 9. Davis testified that Windsor Place gave residents documents concerning dignity, respect, and safety. Upon reading the following mission statement for Windsor Place, Davis admitted that the nursing home violated the statement as it related to Sanders:

The facility is dedicated to offering to the public the finest in nursing and rehabilitation for the aged and convalescent. The Windsor Place also provides activities involving pets, children, plants and volunteers to promote emotional and physical well-being.

¶ 10. And upon reading the following resident abuse policy for Windsor Place, Davis admitted that the nursing home violated the policy [...] as it related to Sanders:

It is the policy of this facility to report all incidents of resident abuse to appropriate State and federal officials or agencies: 1. Resident abuse, whether physical or mental, will not be tolerated. Resident abuse is reported to authorities governing our facility.

¶ 11. Dee DaCosta, a charge nurse at the Windsor Place who was working at the time of the attack, testified that Sanders was attacked by Duff. She also testified that she had reported the attack anonymously to the Attorney General's Office.

¶ 12. Debbie Porter and Kimberly Thompson, both certified nursing assistants working at the Windsor Place at the time of the attack, testified that they were told to clean Sanders after the attack. This was the nursing home policy for when residents had to be transported to a hospital. Both also testified as to the abusive nature of Duff. Thompson testified as to Duff's sexual advances made to staff.

¶ 13. Crystal Harris, a certified nursing assistant working at the Windsor Place at the time of the attack, testified as to the abusive nature of Duff, including sexual advances toward employees and residents.

¶ 14. Sandra Stewart, a licensed practical nurse at the Windsor Place who was working at the time of the attack, testified that she was the one who discovered Duff in Sanders' room. She also testified that Duff was known to have been combative toward staff.

¶ 15. Expert testimony was also presented. One of the plaintiff's experts testified as to the inappropriate measures the nursing home took in regard to Duff. Another expert testified as to Sanders' mental and emotional state, although he was unable to give precise damages because of her already diminished capacity.

¶ 16. Dupree filed suit in the Circuit Court of Lauderdale County on March 13, 2000. The claim filed on her mother's behalf alleged that Windsor Place had represented that quality care would be provided, specifically that no sexual abuse would occur. Dupree also claimed that she suffered mental and emotional distress when she learned of the assault.

¶ 17. Prior to trial, Plantation Pointe filed a motion in limine to exclude the testimony of mental and emotional distress of Dupree. The trial court granted the motion. The case was tried February 5 through February 7, 2002. At the conclusion of the plaintiff's case in chief, Plantation Pointe moved for a directed verdict on the issue of Dupree's mental and emotional damages. The motion was granted. At the conclusion of the trial, the judge refused to grant a jury instruction offered by the plaintiff that would allow the jury to consider mental and emotional damages of Dupree. The jury returned a verdict, ten to two, in favor of Plantation Pointe. The plaintiff filed a motion for a judgment notwithstanding the verdict or in the alternate a new trial. The motion was denied. The plaintiff perfected the appeal.

Dupree, 881 So.2d at 833-35.

DISCUSSION

I. J.N.O.V. and new trial.

¶ 6. Following the verdict, Dupree moved for JNOV or in the alternative a new trial. Because the Court of Appeals reversed the trial court based on its decision to deny a new trial, this opinion focuses on the motion for a new trial as opposed to the denial of JNOV.

¶ 7. Motions for a new trial are made pursuant to Rule 59. Trial courts have authority to grant a new trial, where, in the exercise of their sound discretion, they regard such a verdict as being contrary to the substantial weight of the evidence. C & C Trucking Co. v. Smith, 612 So.2d 1092, 1099 (Miss.1992). A denial of a request for new trial will be reversed only when such denial amounts to a abuse of that judge's discretion. Maxwell v. Ill. Cent. Gulf R.R., 513 So.2d 901, 908 (Miss.1987). This Court "should give substantial weight, deference and respect to the decision of the trial judge in matters such as this." C & C Trucking Co., 612 So.2d at 1099.

¶ 8. In finding that the trial court abused its discretion in denying the motion for a new trial, the Court of Appeals stated:

¶ 20 It is apparent that the trial judge abused his discretion when he failed to grant a new trial. The testimony is uncontradicted. Sanders was a resident at the Windsor place. She was unable to care for or protect herself.

¶ 21 Duff was also a resident at the Windsor Place. He

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