Miss. State Fed'n of Colored Women's Club Hous. For the Elderly In Clinton Inc. D/B/A Fed'n Tower v. In the Interest of L.R.

• Decision Date: 16 December 2010
• Docket Number: No. 2009–CA–00508–SCT.,2009–CA–00508–SCT.
• Citation: 62 So.3d 351
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI STATE FEDERATION OF COLORED WOMEN'S CLUB HOUSING FOR the ELDERLY IN CLINTON, INC. d/b/a Federation Tower and Southland Management Corporationv.In the Interest of L.R., a minor child by and through her mother and next friend, and her mother, Individually.

62 So.3d 351

MISSISSIPPI STATE FEDERATION OF COLORED WOMEN'S CLUB HOUSING FOR the ELDERLY IN CLINTON, INC. d/b/a Federation Tower and Southland Management Corporation

v.In the Interest of L.R., a minor child by and through her mother and next friend, and her mother, Individually.

No. 2009–CA–00508–SCT.

Supreme Court of Mississippi.

Dec. 16, 2010.

Michael Wayne Baxter, Andy Lowry, Walker Reece Gibson, Ridgeland, attorneys for appellant.James Ashley Ogden, James W. Smith, Jr., Jackson, attorneys for appellees.EN BANC.RANDOLPH, Justice, for the Court:

¶ 1. In this premises-liability case, the jury was presented with starkly conflicting stories about the facts surrounding the rape of L.R., an eleven-year-old girl, at Federation Tower, an apartment building where her father lived. As a result of the rape, L.R. was impregnated by Tony Kelly and gave birth to a normal, healthy child. L.R.'s father and mother brought suit, individually and on behalf of L.R., against the building owner, Mississippi State Federation of Colored Women's Club Housing for the Elderly in Clinton, Inc. d/b/a Federation Tower; and the apartment management company, Southern Management Corporation (collectively “Federation”). A jury established L.R.'s total damages to be $200,000. The jury separately allocated fault: forty percent to Federation and sixty percent to her father. The trial court entered final judgment against Federation for $80,000 on June 20, 2008. Following post-trial motions, by order dated October 31, 2008, the trial court assessed fault entirely to Federation and ordered additur of $800,000 to the $200,000 total damages assessed by the jury, contingent upon acceptance. Judgment was then entered against Federation for $1,000,000. Neither party agreed to the additur. Federation appealed, asking this Court to reinstate the jury verdict. L.R. cross-appealed, seeking a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2. In the summer of 2000, L.R. often visited her father at Federation. She also helped the apartment manager, Gladys Miller, by doing office work and delivering notes to tenants throughout the building. Miller testified that she watched over L.R. and other children who visited the complex. Once school started in the fall of 2000, L.R. discontinued assisting Miller. L.R. then visited her father only on weekends when the office was closed and Miller was not present. During the week, L.R. lived in Jackson with her mother. Federation housed elderly and disabled persons, but it was not a nursing home. Kelly and L.R. testified that they first met when he was walking near the apartment complex. Kelly further testified that he had relatives and friends, including Reverend Ambrose Brown, whom he visited at Federation. The first sexual encounter occurred in September 2000. The jury heard and saw L.R.'s version of the events. She stated that she was returning from another apartment where her father had sent her on an errand, and that Kelly grabbed her, pulled her into a stairwell, and forcibly raped her. She further related that the apartment's night manager, James Gray, saw this event, but walked by them, ignoring her calls for help. L.R. testified that afterwards, Kelly threatened to harm her father if she told anyone. She stated that she had sex with Kelly on six other occasions, with Kelly forcing himself on her each time when she was alone in or near the stairwell. She said that the last of these events occurred in February 2001. By this time, L.R. was twelve years old.

¶ 3. In contrast, Kelly testified that L.R. let him into the building through a back door. He testified that “[he] didn't force her to have sex with [him],” “never once held her down and forced her to have sex ...,” and “about ... four or five times we done had sex in her daddy's [apartment].” Kelly disputed the claim that Gray or anyone else had witnessed them having sex. Kelly testified that L.R. would call him and tell him when to visit her. Derrick Mounger, Kelly's friend and coworker, testified that a girl, who never identified herself, called him many times in 2000 and 2001, looking for Kelly. At least one call was from a phone at Federation.

¶ 4. Gray denied that he had witnessed a rape. However, he did observe on one occasion L.R. coming out of a stairwell and putting on her clothes. He testified:

I was doing my night round. I was going up the stairs. And all of a sudden I heard somebody running, and I speeded up.... So when I got to the top of the stairs and got right down the hall, she was standing there putting one of her things up on her shoulder and reaching and grabbing the other one to hook it.

He said that he thought that something of a sexual nature had occurred and that he then told L.R.'s father and Miller what he had seen. Miller testified that she had no knowledge of these incidents prior to the institution of this suit. She said, “I wish I had have. I might have done something about it.” She also testified that at the time of the incidents, a resident told her that she had seen L.R. in the stairwell with a man. Miller said this was what prompted her to tell L.R.'s father to keep L.R. in the apartment.

¶ 5. Other testimony was presented regarding the relationship between L.R. and Kelly. Rev. Brown, who lived on the same floor as L.R.'s father, said that Kelly visited him in his apartment and that, on one occasion in December 2000, L.R. had been there with them. Rev. Brown testified that, when L.R.'s father saw the three of them together on the couch in Rev. Brown's apartment, her father told L.R. to leave.

¶ 6. Linda Morris, another of L.R.'s father's neighbors, testified that L.R. confided to her that L.R. was in love and had kissed a man outside the door of her apartment. Morris further testified that once, when L.R. was in Morris's apartment on the phone talking to someone, she said to Morris, “This is he. You want to talk?” Later, when Morris thought L.R. was watching television, L.R. left the apartment and returned saying, “He said he loved me. He kissed me.” When admonished by Morris for allowing someone in her apartment, L.R. replied, “He didn't come in. He was outside the door.” Morris said L.R. never told her that anyone had raped her. Morris stated, “She would tell me, ‘I'm practically raising myself,’ meaning her mama wasn't there for her.” Morris said that L.R. “was lonesome. The child was lacking in love.” Morris also said that L.R. associated with another young girl, going from floor to floor in the building, and that L.R. had said, “There's a cute boy out there. He like me.” Morris said that the apartment manager had told L.R.'s father that if he could not keep L.R. in his apartment, she should not be there. She recalled one occasion in which L.R.'s father had gone to sleep and then had to go out and look for L.R. Morris stated that there were other children at the apartment, but that their parents or grandparents “kept them in the apartment.” Morris concluded that L.R.'s father was not “watching out for her like he should have been” and that it could have been prevented, but for the fault of L.R.'s parents.

¶ 7. In March 2001, L.R. told her mother that she was pregnant and that Kelly was the father. Using a phone number L.R. furnished, L.R.'s mother and older sister called Mounger, obtained Kelly's full name, and reported him to the police. Kelly was later convicted of the crime of statutory rape ¹ and served seven years in prison.

¶ 8. In the months following the discovery of her pregnancy, L.R. received counseling at the Child Advocacy Center (“CAC”). As a part of this counseling, L.R. wrote a “Letter to the Perpetrator” in which she stated that she had believed that Kelly had loved and cared for her. She wrote, “I want to tell you that sometimes I love you & other times I don't.”

¶ 9. L.R.'s parents, on her behalf, brought suit against Federation, and also brought individual claims for their separate emotional distress.² Initially, the trial court granted Federation's motion for summary judgment, but the Court of Appeals reversed and remanded. See Minor Child ex rel. John Doe v. Miss. State Fed'n of Colored Women's Club Hous. for the Elderly in Clinton, Inc., 941 So.2d 820, 831 (Miss.Ct.App.2006).

¶ 10. Upon remand, both sides presented motions in limine. L.R. moved to exclude reference to sexual molestation she experienced at ages five and eight. She argued that this would violate Mississippi Rule of Evidence 412. Federation countered that Rule 412 applies only in criminal cases and that L.R.'s psychological expert had downplayed the molestation events in his report, and had concluded that all of L.R.'s psychological problems had resulted from her encounters with Kelly. The trial court denied L.R.'s motion, stating that Rule 412 was inapplicable and that the evidence would be admitted, as it was relevant to damages. L.R. also moved to exclude evidence of consent, as she had been a minor. L.R. argued that, because minors are considered by criminal statute to be incapable of consent, Federation could not use evidence of consent in a civil case. The trial court also denied that motion, stating that “the issue of statutory rape... is not pertinent ....” as it did not affect the duty owed to L.R. by the landowner. L.R. further moved to exclude reference to a sexual encounter she had years later. Federation argued that this later consensual sex with a boy was relevant to damages and for impeachment, as L.R. had claimed that the encounters at Federation had left her unable to have relationships with males. The trial court granted L.R.'s motion.

¶ 11. Federation moved pretrial to exclude testimony from L.R.'s economic expert, Dr. Glenda Glover, on the cost of raising L.R.'s child. As no Mississippi caselaw existed on this subject, the parties relied on cases from other jurisdictions. Federation asserted that the majority rule is that a mother can recover for the expense of giving birth, inter alia, but not...