Jones v. Panola County, 96-CA-00762-SCT.

• Decision Date: 14 May 1998
• Docket Number: No. 96-CA-00762-SCT.,96-CA-00762-SCT.
• Citation: 725 So.2d 774
• Parties: Randy E. JONES v. PANOLA COUNTY, Mississippi.
• Court: Mississippi Supreme Court

725 So.2d 774

Randy E. JONES v. PANOLA COUNTY, Mississippi.

No. 96-CA-00762-SCT.

Supreme Court of Mississippi.

May 14, 1998.

Rehearing Denied August 6, 1998.

John B. Gillis, Luckett Law Firm, Clarksdale, Attorney for Appellant.

Benjamin E. Griffith, Daniel J. Griffith, Griffith & Griffith, Cleveland, Attorney for Appellee.

Before PRATHER, C.J., and SMITH and WALLER, JJ.

PRATHER, Chief Justice, for the Court:

STATEMENT OF THE FACTS AND CASE

¶ 1. Randy E. Jones ("Jones") was injured on September 21, 1993 when his pickup truck collided with a gravel pile located on Sardis Landfill Road in Panola County, Mississippi. The gravel pile had been built by the Panola County road department as a barrier to an out-of-service bridge located on the road. The county had placed "Bridge Out" and "Road Closed" traffic warning signs on the road, but the signs had been knocked down at the time of the accident. Jones suffered fractures, lacerations, and contusions to his face as a result of the accident, and his injuries required surgery at a hospital in Memphis.

¶ 2. Jones' medical expenses totaled $122,919.82, and he also suffered property damages, lost wages, and partial impairment as a result of the accident. Jones filed suit against Panola County on September 6, 1994, alleging negligence on the part of the County. A jury trial was held on March 11, 1996 through March 13, 1996, and the jury returned a verdict for Panola County after less than 30 minutes of deliberation. On July 8, 1996, Jones filed an appeal to this Court.

ISSUES

I. Whether the trial court erred in denying Jones' motion for new trial on grounds that the trial court committed reversible error by denying Jones' motion in limine concerning seat belt use evidence and in allowing evidence of Jones' nonuse of a safety belt at the time of the accident to be presented at trial.

¶ 3. Jones argues that the trial court committed reversible error in denying his motion in limine to prohibit the admission at trial of evidence that he was not wearing a seat belt at the time of the accident. Jones filed this motion on March 11, 1996, citing Miss.Code Ann. § 63-2-3 (1996), which provides that:

This chapter shall not be construed to create a duty, standard of care, right or liability between the operator and passenger of any passenger motor vehicle which is not recognized under the laws of the State of Mississippi as such laws exist on the date of passage of this chapter or as such laws may at any time thereafter be constituted by statute or court decision. Failure to provide and use a seat belt restraint device or system shall not be considered contributory or comparative negligence, nor shall the violation be entered on the driving record of any individual.

Panola County's sole arguments in response to Jones' objections are procedural. The County argues that:

Jones failed to make a contemporaneous objection to the County's question on cross-examination concerning seatbelt use, and if he genuinely thought he was prejudiced by such testimony, he failed to make the required Motion for a Mistrial. In any event, any claimed error arising from such limited cross-examination of Jones on the legitimate inquiry of whether or not he was wearing a seatbelt did not result in a miscarriage of justice. Jones waived any claimed error in this regard.

The County's argument has been squarely rejected by this Court in recent decisions. In Kettle v. State, 641 So.2d 746, 748 (Miss. 1994), this Court held that the filing of a motion in limine regarding the introduction of evidence properly preserved the issue for appeal and that a contemporaneous objection was not necessary. See also Lacy v. State, 700 So.2d 602, 606 (Miss.1997). It is thus clear that Jones was not required to make a contemporaneous objection in order to preserve this issue for appeal, nor was he required to make a motion for mistrial, given that his motion in limine on this issue had already been rejected by the trial judge. ¶ 4. With regard to the substantive merits of Jones' objection, the County makes no arguments in opposition to Jones' claim that the introduction of the seat belt use evidence was contrary to statute. This Court recently held in Roberts v. Grafe Auto Co., 701 So.2d 1093 (Miss.1997) that:

Clearly the statute [§ 63-2-3] directs that evidence of the non-use of a seat belt shall not be presented to the jury. Although, defense counsel did not repeatedly argue this point, the question was asked and answered, thereby tainting the jury's mind that Roberts contributed to her injuries by not wearing a seat belt.... On remand, no statement, argument or evidence is to be presented to the jury regarding the non-use of the seat belt.

Id. at 1100. Roberts clearly indicates that the trial court committed error in admitting the evidence of seat belt non-usage in the present case. This Court concludes that this error constitutes reversible error in the present case, given that, as in Roberts, the jury was tainted by evidence of seat-belt non-usage which was admitted in contravention of statute.

II. Whether the trial court erred in denying Jones' motion for new trial on the grounds that the trial court committed reversible error in granting jury instruction 14 (jury instruction D-2) in the absence of credible evidence on the issue of superseding cause, and where the evidence was undisputed that it was foreseeable that theft, displacement, and vandalism of road warning signs in Panola County, Mississippi was reasonably foreseeable inasmuch as the county road plan, a document offered and received in evidence at trial, explicitly contemplated and planned for said occurrences.

¶ 5. Jones argues that the trial court committed reversible error in submitting instruction 14 to the jury on the issue of superseding cause. Instruction 14 reads as follows:

The Court instructs the jury that a superseding cause is an independent and unforeseen act by a third person which follows the Defendant's negligence and which is a substantial factor in causing the Plaintiff's injuries. A superseding cause becomes the proximate cause for the Plaintiff's injuries and the Defendant's negligence is a remote cause for which he is not liable. Thus, if you find from the preponderance of the evidence in this case that the Defendant was negligent in failing to discharge its duty to maintain its roads, streets and highways in a reasonably safe condition or in failing to discharge its duty to warn motorists using its roads, streets, and highways of dangerous conditions on said roads, streets, and highways of which Defendant had either actual or constructive knowledge, or in failing to discharge its duty to maintain its roads, streets, and highways in a reasonably safe condition for use by Plaintiff Jones and other motorists, but that an independent and unforeseeable act by a third person in removing the "Road Closed" sign and/or the "Bridge Out" sign followed the defendant's negligent acts, if any, and was a substantial factor in causing the Plaintiff's injuries, then the Defendant is not liable for the injuries proximately resulting from the superseding cause, and your verdict shall be for the Defendant.

¶ 6. Jones argues that:

Instruction 14 should not have been given to the jury since there was no credible evidence presented that an `independent and unforeseeable' act of a third person resulted in the removal of the Road Closed sign or Bridge Out Sign on Sardis Landfill Road prior to the accident. Jones submits that, since instruction 14 is directed at alleged acts of vandalism, the instruction is not warranted since the proof at trial showed that vandalism was foreseeable.

Jones notes that Sam Dodd, the Road Manager at the time of the accident, testified that he was aware of signs being knocked down, and he also notes that the Panola County Road Plan acknowledged the possibility of vandalism and required the replacement of stolen or destroyed signs.

¶ 7. In the view of this Court, the issue of vandalism of signs is best considered by the jury in the context of the duty owed by the County rather than in the context of a superseding cause instruction. It is undisputed that the vandalism of signs is a foreseeable occurrence, and this Court accordingly agrees with Jones that no reasonable jury could conclude that the vandalism of a sign was unforeseeable. At the same time, however, the County should not be expected to respond instantaneously to repair any acts of vandalism which might arise, even though such acts are foreseeable.

¶ 8. Stated differently, the County should not be held liable for accidents which result from vandalism which it could not have been reasonably expected to repair by time of the accident. This Court accordingly directs that the trial court on remand not issue a superseding cause instruction, but the court should properly permit the jury to consider the circumstances of any acts of vandalism in determining whether the County breached its duty of care in the present case. This Court does not hold that the granting of the superseding cause instruction alone constitutes reversible error, but given that this Court has elected to reverse and remand on the first point of error, we take the opportunity to instruct the trial court in this regard.

III. Whether the trial court erred in denying Jones' motion for new trial on the grounds that the trial court committed reversible error in granting a defense motion in limine and entering an interlocutory order in limine which proscribed Jones from offering in evidence portions of the Manual on Uniform Traffic Control Devices (MUTCD) as proof of the applicable standard of care concerning the placement of warning signs and barricades on public roads.

¶ 9. Jones argues that the trial court committed reversible error in granting a...