Dupree v. Plantation Pointe, LP

• Decision Date: 09 September 2003
• Docket Number: No. 2002-CA-00556-COA.,2002-CA-00556-COA.
• Citation: 881 So.2d 832
• Parties: Shelia DUPREE, Individually, and as Conservator of the Person and Estate of Annie Sanders, Appellant, v. PLANTATION POINTE, L.P., d/b/a, The Windsor Place, Appellee.
• Court: Mississippi Court of Appeals

881 So.2d 832

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

No. 2002-CA-00556-COA.

Court of Appeals of Mississippi.

September 9, 2003.

Rehearing Denied November 25, 2003.

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

James P. Streetman, Wade G. Manor, Jackson, attorneys for appellee.

EN BANC.

MYERS, J., for the Court.

¶ 1. Shelia Dupree sued Plantation Pointe, L.P. 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 judge granted a directed verdict on the issue of mental and emotional damages of Dupree. A jury verdict was returned in favor of Plantation Pointe on the other claims. After denial of the plaintiff's motion for a judgment notwithstanding the verdict and motion for new trial, Dupree perfected her appeal asserting:

1. THE TRIAL COURT ERRED IN DENYING THE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND IN THE ALTERNATE MOTION FOR A NEW TRIAL;

2. THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY; AND

3. THE COURT ERRED IN EXCLUDING TESTIMONY CONCERNING MENTAL AND EMOTIONAL DAMAGES AND BY GRANTING A DIRECTED VERDICT ON THE ISSUE.

STATEMENT OF FACTS

¶ 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 pinned Sanders' arms down to prevent any possible resistance.

¶ 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 the staff members.

¶ 5. Duff also tried to kiss some staff members and made crude references to sex on numerous occasions, including walking through the halls naked. On November 29, 1999, Duff made one such comment to a Windsor Place office worker that she should "come back later so [they could] f* * * because [he] love[s] big women." Duff ended this remark by grabbing his penis and shaking it at her. Duff later made another similar comment to a dietary staff member. This time it was: "Come on in and let's go to bed. It's up and I'm ready to f* * *. Are you ready?"

¶ 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 of not tolerating abuse 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.

LEGAL ANALYSIS

¶ 18. The statute states as follows:

A motion for j.n.o.v. is the equivalent of challenging the sufficiency of the evidence to support the jury's verdict. A jury verdict can only be set aside when it is based on legally insufficient evidence or it is against the substantial weight of the evidence. Furthermore, we review "the evidence as a whole, taken in the light most favorable to the verdict" and will reverse only if "no reasonable, hypothetical juror could have found as the jury found."

Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611, 615-16 (¶ 13) (Miss.2001) (citations omitted).

¶ 19. The motion for a new trial should only be employed in those rare cases when there would be injustice either in allowing the verdict to stand or in granting a JNOV. C & C Trucking Co. v. Smith, 612 So.2d 1092, 1099 (Miss.1992). Mississippi Rules of Civil Procedure 59 authorizes a trial judge to set aside a jury verdict and to grant a new trial as justice requires. A new trial may be granted "when the verdict is against the overwhelming weight of the evidence, or when the jury has been confused by faulty jury instructions, or when the jury has departed from its oath and its verdict is a result of bias, passion, and prejudice." Bobby Kitchens, Inc. v. Miss. Ins. Guar. Ass'n, 560 So.2d 129, 132 (Miss.1989); Griffin v. Fletcher, 362 So.2d 594, 596 (Miss.1978). A trial judge's denial of a request for a new trial will only be reversed when such a denial amounts to an abuse of the trial judge's discretion. Bobby Kitchens, Inc.,560 So.2d at 132; Maxwell v. Ill. Cent. Gulf R.R., 513 So.2d 901, 908 (Miss.1987). We give substantial weight, deference, and respect to the decision of the trial judge. C. & C. Trucking Co.,612 So.2d at 1099.

¶ 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 was known to wander into other resident's rooms. He was known to be abusive, both with physical violence and crude sexual displays and comments. Uncontradicted testimony from current and former employees of the Windsor Place substantiate this.

¶ 22. Duff sexually assaulted Sanders in her room at the...