Munn v. Algee, DC87-124-S-O.

• Decision Date: 08 February 1990
• Docket Number: No. DC87-124-S-O.,DC87-124-S-O.
• Citation: 730 F. Supp. 21
• Parties: Ray James MUNN, Individually, and Ray James Munn, Administrator of the Estate of Elaine Munn, Deceased, on Behalf of the Heirs and Wrongful Death Beneficiaries of Elaine Munn, Deceased, Plaintiff, Southern Health Plan, Inc., d/b/a IPA Apple Plan, Intervening Plaintiff, v. Trudy E. ALGEE, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

730 F. Supp. 21

Ray James MUNN, Individually, and Ray James Munn, Administrator of the Estate of Elaine Munn, Deceased, on Behalf of the Heirs and Wrongful Death Beneficiaries of Elaine Munn, Deceased, Plaintiff Southern Health Plan, Inc., d/b/a IPA Apple Plan, Intervening Plaintiff, v. Trudy E. ALGEE, Defendant.

No. DC87-124-S-O.

United States District Court, N.D. Mississippi, Delta Division.

February 8, 1990.

Phil Zerilla, Jr., Memphis, Tenn., for plaintiff.

John I. Houseal, Jr., Memphis, Tenn., for intervening plaintiff.

Gary K. Smith, Memphis, Tenn., for defendant.

OPINION

SENTER, Chief Judge.

This action was brought to recover for the wrongful death of the plaintiff's wife as well as the plaintiff's own personal injuries. The matter was tried to a jury which returned a verdict for the plaintiff in the amount of $20,411.67 as compensation for the medical bills incurred by his wife and for the suffering she endured prior to her death. The jury further found that the death of plaintiff's decedent was 100 percent attributable to her refusal of a blood transfusion and therefore awarded no damages for wrongful death. The jury also awarded the plaintiff $241.44 for medical expenses incurred in the treatment of his own personal injuries, but awarded nothing for pain and suffering. The case is now before the court for consideration of the plaintiff's motion for a new trial. The plaintiff raises ten separate grounds in support of his motion for new trial.¹

Factual Background

The basic facts of this case were never disputed by the parties. The plaintiff's decedent was seriously injured when the car in which she was riding was struck by a vehicle driven by the defendant. The cause of the accident was the defendant's negligent attempt to pass a tractor-trailer rig in very dense fog. The plaintiff was also injured in the accident. The plaintiff's decedent was taken to the emergency room at a regional trauma center where she died during surgery after refusing to accept a blood transfusion. One of the reasons for refusing blood transfusions was the Jehovah's Witness religion beliefs of plaintiff and his wife. The only questions which necessitated trial were whether death was avoidable, whether the refusal of blood was unreasonable, and the amount of damages.

Analysis of Plaintiff's Points of Error

An earlier opinion which addressed many of the legal problems presented by this most unusual case was published sub nom. Munn v. Southern Health Plan, 719 F.Supp. 525 (N.D.Miss.1989). However, following entry of that opinion, the court reconsidered certain portions of it and altered its holding as to recovery of damages in a case where the doctrine of avoidable consequences applied and the arguably avoidable consequence was death. One of the points of error raised by the plaintiff concerns the instructions which the court gave to the jury on what damages were recoverable. The court will address this argument first because it presents the best opportunity to set forth the substance of the court's amendment of the earlier opinion.

The plaintiff contends that the court erred by not instructing the jury that the plaintiff could recover for losses which his wife would have sustained had she taken the transfusion and lived. In its earlier opinion, this court had ruled that such damages were not recoverable if the jury found that Mrs. Munn could have avoided her death by accepting the transfusion and that the refusal to accept the transfusion was unreasonable under the circumstances. The reasoning was that if the death was an avoidable consequence of the defendant's negligence, then the defendant was not liable to pay damages under the wrongful death statute and recovery under the survival statute was limited to those damages which accrued prior to the death of the decedent. Id. at 530-32.

As the day of trial approached, the court became increasingly concerned that this approach was unfair. There can be little doubt that in cases such as this, the original act of negligence continues to operate as a cause in fact of the death of the decedent. Of course, cause in fact is not synonymous with legal or proximate cause. In the earlier published opinion, the court noted that the doctrine of avoidable consequences which was to be applied in this case "focuses only on the measurement of damages" and is not concerned with questions of proximate cause. Id. at 527. However, the court later declined to decide whether the "failure to take reasonable steps to avoid the consequences of an injury acts as an intervening cause so that the defendant's original act of negligence may no longer be viewed as the proximate cause of the avoidable injury, even though it is clearly an actual, contributing cause." Id. at 531 n. 3. There is a split of authority among the commentators on this point. At first blush, this appears to be an argument that only an academician could love. There seems to be no practical difference between the assertion that the plaintiff's avoidable injuries were not proximately caused by the defendant's negligence and the statement that the plaintiff cannot recover from the defendant for any losses which the plaintiff could reasonably have avoided, even though the losses were proximately caused by the defendant's negligence. Either way you view the problem, the plaintiff's right to recover, and therefore the defendant's liability, is limited to those damages which may be attributed to injuries which were not avoidable. However, in this case the distinction could make a difference.

The Mississippi Supreme Court recognizes that there may be more than one proximate cause of an injury. Monroe County Electric Power Ass'n v. Pace, 461 So.2d 739, 746 (Miss.1984). A defendant's negligence need only proximately contribute to the injury in order for the defendant to be held liable. The same rule applies in wrongful death cases. Berryhill v. Nichols, 171 Miss. 769, 158 So. 470 (1935) (negligence complained of must be at least directly contributing cause of death). Thus, if the unreasonable failure to accept medical treatment which leads to an avoidable death is not viewed as a superseding² cause of the death, the original act of negligence is a proximate cause of the death and some amount of damages should be recoverable under the wrongful death statute.

Whether proof of an avoidable consequences defense goes to the question of legal causation or merely to the question of what damages are recoverable is an issue which the Mississippi Supreme Court has never addressed. However, that court has defined the concept of superseding cause.

Where an act of negligence is a substantial factor in bringing about an injury, it does not cease to be a legal and proximate cause thereof because of the intervention of a subsequent act of negligence of another which contributed to the injury, if the prior act of negligence is still operating, and the injury inflicted is not different in kind from that which would have resulted from the prior act.

Solomon v. Continental Baking Co., 172 Miss. 388, 160 So. 732, 733 (1935). Under this definition, it is clear that the injured party's unreasonable conduct in an avoidable consequence case is not a superseding cause of the ultimate injury. There can be no doubt that the defendant's prior act of negligence is still operating in such a case. In fact, the defendant's argument in a case such as this is that although the additional injury occurred as a natural consequence of her negligent act, she should not be required to pay damages for that injury which the plaintiff could have avoided.

It might be argued in this case that death is an injury different in kind from the physical injury which would have resulted from the defendant's negligent act. However, the focus should be on whether the harm which did result was of a different kind from that which was likely to result from the defendant's conduct. See Restatement (Second) of Torts, § 451(b) (1965). The death of persons in cars traveling in the opposite direction was one of the likely consequences of the defendant's attempt to pass in dense fog which made that attempt an act of negligence.³ Perhaps more important in this determination is the fact that the notion of superseding cause applies only when the intervening act or event is the act of a third person or a natural force. Restatement (Second) of Torts, §§ 440 et seq. (1965); Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42 (1940). Other principles, such as contributory negligence, assumption of the risk, and the doctrine of avoidable consequences, apply when the intervening act is an act of the tort victim.

Following the logic of the above reasoning, the court refused to give a superseding cause instruction to the jury. In further reliance on its conclusion that the principle of superseding cause did not apply in this case, the court instructed the jury that even if it found that Mrs. Munn's death was avoidable and that her refusal of the blood transfusion was unreasonable, it could still award the plaintiff wrongful death damages, if it further found that the defendant's negligence was a contributing cause of Mrs. Munn's death.⁴

Once the initial hurdle of determining that the plaintiff may sue under the wrongful death statute is cleared, the difficult task of determining what damages are recoverable must be resolved. In its initial opinion, the court rejected the plaintiff's argument that he should be allowed to recover for those injuries which Mrs. Munn would have suffered even if she had taken the transfusion and lived. The court's refusal to so instruct the jury is now assigned as error. The court is still of the opinion that the allowance of such damages would be improper. Several of the elements of damage sought by the plaintiff were never actually suffered by the deceased. These include the pain and suffering which the plaintiff would have experienced had she survived and the medical...