Entergy Mississippi, Inc. v. Bolden

• Decision Date: 25 September 2003
• Docket Number: No. 2002-CA-00265-SCT.,2002-CA-00265-SCT.
• Citation: 854 So.2d 1051
• Parties: ENTERGY MISSISSIPPI, INC. v. Brenda BOLDEN.
• Court: Mississippi Supreme Court

854 So.2d 1051

ENTERGY MISSISSIPPI, INC. v. Brenda BOLDEN.

No. 2002-CA-00265-SCT.

Supreme Court of Mississippi.

September 25, 2003.

James Lawton Robertson, Jackson, Laura G. McKinley, Attorneys for Appellant.

Richard Benz, Jr., Attorney for Appellee.

EN BANC.

SMITH, Presiding Justice, for the Court:

¶ 1. Brenda A. Bolden ("Bolden") brought suit against Entergy Mississippi, Inc. ("Entergy") on April 1, 1998, in the Circuit Court of Sunflower County. The first trial ended in a mistrial. Thereafter, in the second trial a jury awarded Bolden $532,000 on November 14, 2001, and judgment was entered accordingly. The trial court denied Entergy's motion for judgment notwithstanding the verdict, or for a new trial or remittitur. Aggrieved, Entergy appeals to this Court.

FACTS

¶ 2. This case arose out of a motor vehicle accident in Sunflower County on July 1, 1997. Bolden was traveling north on B.B. King Road, and W.L. Strawbridge ("Strawbridge"), an Entergy employee, was traveling south on B.B. King Road. Strawbridge made a left turn in front of Bolden onto Lynbar Street when Bolden struck his Entergy truck. There was no testimony by Strawbridge at the trial. A corporate representative was sent by Entergy. There was disputed testimony whether Bolden was speeding. In her deposition she said she was traveling 35 miles per hour, and at trial she stated that she was going 20 miles per hour. However, the accident report stated that she was traveling 20 miles per hour. The speed limit was 25 miles per hour. There is no evidence that Strawbridge used his turn signal to indicate to Bolden that he was making a left turn. By all accounts the day was bright and clear, and there was nothing to obstruct Bolden's view. As the Entergy truck was turning left, Bolden's Ford struck it. ¶ 3. Bolden sustained injuries to the left side of her body including her knee, shoulder and ankle. She underwent surgery on July 22, 1997, to repair her left knee. Dr. J.O. Manning said she had a prior basketball injury to that knee in 1983. Ankle surgery was performed on August 14, 2000, by Dr. George Wood, II.

¶ 4. Due to her injuries Bolden was unable to go back to her job as a security officer and had lost wages of $9,600. Her total medical expenses were $31,686.06. Dr. Paul Williams assigned a 15% impairment to the left knee and 10% impairment to the left ankle. Dr. Manning testified that he felt that Dr. Williams's impairment ratings were low. Dr. Williams recommended in June of 1998 that Bolden go back to work. He further stated that she was more at risk to develop arthritis.

¶ 5. Entergy raises the following issues on appeal:

I. WHETHER THE LOWER COURT ERRED IN INSTRUCTING THE JURY THAT STRAWBRIDGE "AS A MATTER OF LAW WAS NEGLIGENT AND THEREFORE ENTERGY MISSISSIPPI, THROUGH THE ACTIONS OF W.L. STRAWBRIDGE WAS NEGLIGENT."

II. WHETHER THE LOWER COURT ERRED IN NOT INSTRUCTING THE JURY CONCERNING A SPECIAL HAZARD.

III. WHETHER THE LOWER COURT ERRED IN REFUSING TO ISSUE A CONTRIBUTORY NEGLIGENCE INSTRUCTION.

IV. WHETHER THE LOWER COURT ERRED IN FAILING TO GRANT ENTERGY A REMITTITUR, OR, IN THE ALTERNATIVE, A NEW TRIAL ON THE ISSUE OF DAMAGES.

V. WHETHER BOLDEN'S CLOSING ARGUMENT WAS PROPER.

STANDARD OF REVIEW

¶ 6. There are several standards of review that must be used in analyzing the issues in this appeal. First, when reviewing jury instructions on appeal, we must read them as a whole. Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954, 968 (Miss.1999). While a party is entitled to have jury instructions submitted that represent his or her theory of the case, an instruction that "incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence" need not be submitted to the jury. Humphrey v. State, 759 So.2d 368, 380 (Miss.2000). This Court will not find reversible error where the instructions actually given, when read together as a whole, "fairly announce the law of the case and create no injustice." Coleman v. State, 697 So.2d 777, 782 (Miss.1997) (citing Collins v. State, 691 So.2d 918, 922 (Miss.1997)). Moreover, the standard of review of jury verdicts is as follows:

Once the jury has returned a verdict in a civil case, we are not at liberty to direct that judgment be entered contrary to that verdict short of a conclusion on our part that, given the evidence as a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found.

Id. (citing Bell v. City of Bay St. Louis, 467 So.2d 657, 660 (Miss.1985)).

¶ 7. The standard of review for whether a peremptory instruction should be granted is the same as the standard for a directed verdict. Herrington v. Spell, 692 So.2d 93, 97 (Miss.1997). The standard of review in cases where a directed verdict has been granted is as follows: "[t]his Court conducts a de novo review of motions for directed verdict....If the Court finds that the evidence favorable to the non-moving party and the reasonable inferences drawn therefrom present a question for the jury, the motion should not be granted." Pace v. Fin. Sec. Life of Miss., 608 So.2d 1135, 1138 (Miss.1992) (citation omitted). Additionally, this Court has held that "[a] trial court should submit an issue to the jury only if the evidence creates a question of fact concerning which reasonable jurors could disagree." Vu v. Clayton, 765 So.2d 1253, 1254 (Miss.2000) (quoting Vines v. Windham, 606 So.2d 128, 131 (Miss.1992)).

DISCUSSION

I. WHETHER THE LOWER COURT ERRED IN INSTRUCTING THE JURY THAT STRAWBRIDGE "AS A MATTER OF LAW WAS NEGLIGENT AND THEREFORE ENTERGY MISSISSIPPI, THROUGH THE ACTIONS OF W.L. STRAWBRIDGE WAS NEGLIGENT."

¶ 8. A directed verdict was granted in favor of Bolden on the issue of the negligence of the Entergy driver. Based on the standard of review discussed herein, the trial court determined that the evidence was so overwhelmingly in favor of Bolden on this issue that Entergy was negligent, and a peremptory instruction was granted. When reviewing requests for peremptory instructions, we consider the evidence in the light most favorable to the non-moving party, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence. Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997). Our rules and case law allow for questions to be removed from the jury's consideration when there exists no factual question for it to resolve. M.R.C.P. 50(a) & cmt. See also Mayor & Bd. of Aldermen of the City of Vicksburg v. Young, 616 So.2d 883, 886-87 (Miss. 1992)

; Hasson v. Hale, 555 So.2d 1014, 1016 (Miss.1990); Bryant v. Alpha Entertainment Corp., 508 So.2d 1094, 1096-97 (Miss.1987).

¶ 9. Bolden submits that a reasonable jury could not have found that Entergy was not negligent based upon the actions of its agent. Herrington v. Spell, 692 So.2d at 97. We agree. No reasonable juror could have concluded from the evidence presented that Strawbridge was not negligent. Unrebutted testimony established that Strawbridge was negligent in crossing in front of Bolden at the intersection where the collision occurred. No contrary evidence was placed in the record to make this a fact question for the jury.

¶ 10. An accident description in Entergy's accident adjuster's report stated, "Entergy driver made a left turn in front of other vehicle that had the right-of-way. We failed to yield right-of-way." The motor vehicle report from the Indianola Police Department stated, "(Entergy) driver stated that he didn't see (Bolden) and cut across in front of (Bolden) causing the collision." Both of these reports were admitted into evidence. Strawbridge's supervisor even testified that he agreed with the Entergy adjuster's report concerning Strawbridge's negligence.

¶ 11. The jury instructions left room for the jury to determine the proximate cause of the accident and apportion damages with respect to the amount of fault due to each party's negligence. The trial court did not err in instructing the jury that Strawbridge was negligent as a matter of law and that, therefore, Entergy was negligent through Strawbridge's actions.

II. WHETHER THE LOWER COURT ERRED IN NOT INSTRUCTING THE JURY CONCERNING

A SPECIAL HAZARD.

¶ 12. At trial, Entergy requested that the court submit Instruction D-3 to the jury. This instruction stated that the "driver or operator of any motor vehicle is under a duty to decrease the speed of their vehicle [sic] when approaching and crossing an intersection, or when a special hazard exists with respect to pedestrians or other traffic." The court refused Instruction D-3. However, the trial court accepted Entergy's Instruction D-2, which stated that "[t]he operator of a motor vehicle has... a duty to reduce their speed [sic] when approaching an intersection." In its brief, Entergy states that two important elements exist in Instruction D-3 which are absent from Instruction D-2 and all other instructions submitted to the jury: (1) a motorist has the duty to reduce her speed when a special hazard exists; and (2) a motorist's duty to decrease speed when faced with a special hazard is a function of statute and failure to comply with the statute is negligence as a matter of law.

¶ 13. In support of its proposed instruction, Entergy cites Miss.Code Ann. § 63-3-505. This section of the Mississippi Code sets out the duty of a motorist with regard to special hazards:

[T]he driver or operator of any motor vehicle must decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic....

Miss.Code Ann. § 63-3-505 (Rev.1996) (emphasis added). We have had numerous opportunities to interpret this statute, but only one of our decisions focuses on the existence of a "special...