Payne v. Gowdy, 2010-CA-01929-COA

CourtCourt of Appeals of Mississippi
PartiesRONALD PAYNE AND THOMAS PAYNE, INDIVIDUALLY AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF MARIE PAYNE, DECEASED APPELLANTS v. CLEVELAND GOWDY, INDIVIDUALLY AND AS AN EMPLOYEE OF SCHNEIDER NATIONAL CARRIERS, INC., AND SCHNEIDER NATIONAL CARRIERS, INC. APPELLEES
Docket NumberNO. 2010-CA-01929-COA,2010-CA-01929-COA
Decision Date17 July 2012

RONALD PAYNE AND THOMAS PAYNE, INDIVIDUALLY AND ON BEHALF
OF THE WRONGFUL DEATH BENEFICIARIES OF MARIE PAYNE, DECEASED APPELLANTS
v.
CLEVELAND GOWDY, INDIVIDUALLY AND AS AN EMPLOYEE
OF SCHNEIDER NATIONAL CARRIERS, INC.,
AND SCHNEIDER NATIONAL CARRIERS, INC.
APPELLEES

NO. 2010-CA-01929-COA

COURT OF APPEALS OF THE STATE OF MISSISSIPPI

DATED: July 17, 2012


DATE OF JUDGMENT: 08/19/2010
TRIAL JUDGE: HON. LESTER F. WILLIAMSON JR.
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: ROCKY WILKINS
HENRY PALMER
ATTORNEYS FOR APPELLEES: DAVID C. DUNBAR
JUSTIN S. CLUCK
MORTON W. SMITH
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
TRIAL COURT DISPOSITION: JURY VERDICT FOR
DEFENDANTS/APPELLEES
DISPOSITION: AFFIRMED: 07/17/2012
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

GRIFFIS, P.J., FOR THE COURT:

¶1. This case involves a wrongful-death action against Cleveland Gowdy and Schneider National Carriers, Inc. for the death of Marie Payne. Her wrongful-death beneficiaries, Ronald and Thomas Payne, appeal a jury verdict that found Cleveland not negligent in

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Marie's death. The Paynes argue that it was reversible error for the circuit court to: (1) allow evidence of Marie's prior fall in May 2008, (2) limit the testimony of their accident reconstructionist, (3) allow testimony of the defendants' accident reconstructionist, (4) fail to grant their motion for a directed verdict, or a peremptory instruction, and refuse jury instruction P-14, and (5) deny their motion for a JNOV or a new trial. We find no error and affirm.

FACTS

¶2. On September 5, 2008, Marie was seventy-eight years old. At approximately 9:00 a.m. that morning, Marie walked out of Jeff Anderson Regional Medical Center on the third floor of the parking garage.1 She was walking to her car. She did not make it to her car. Instead, she suffered a tragic and painful death.

¶3. The following is an accurate depiction of the parking garage offered by the Paynes' expert, Tim Corbitt. This picture will be used throughout this opinion to describe the events that occurred.

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¶4. The elevator is at top of this picture, which depicts the south end and the southwest corner of the parking garage. The bottom of this picture depicts the north end. The right side of this picture depicts the west end. The left of this picture depicts the interior of the parking garage, and there are additional rows for vehicles to park and travel. The parking garage provides for one lane of traffic that travels in one direction, from the bottom of the picture to the top. At the top of the picture, traffic must turn to the left to continue to additional

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parking or to exit the garage. The parking spaces are angled so that vehicles may park on either the left or the right. There is no designated walkway for pedestrians.

¶5. When Marie exited the hospital and entered the parking garage, she crossed the lane of traffic, which turned to the left, and was walking in a northerly direction behind the cars parked on the left side (her right) of this picture. She was walking toward her car, a white Ford Taurus, that was parked on the right side of this picture (the west side of the parking garage). Her car is depicted as one of the cars on the bottom-right side of the picture.

¶6. Cleveland was driving his Chevrolet Silverado pickup truck on the third floor of the parking garage. He was traveling in the opposite direction of Marie. Cleveland rounded the corner shown at the bottom of the picture and was driving in a southerly direction (toward the top of the picture). Cleveland's truck struck and killed Marie.

¶7. On January 20, 2009, Ronald and Thomas, Marie's adult sons, filed a wrongful death action in the Lauderdale County Circuit Court against Cleveland. The complaint asserted claims for negligence, negligence per se, and negligent/intentional infliction of emotional distress.

¶8. The complaint was amended to include Schneider National Carriers, Inc. as a defendant. The Paynes asserted that Cleveland was acting in the course and scope of his employment at the time of the accident, and Schneider was vicariously liable for Cleveland's negligence. Cleveland was employed by Schneider as an over-the-road truck driver. He was at the parking garage on September 5, 2008, on his way to a "recertification physical" as required by the United States Department of Transportation regulations. According to the form of the verdict, the jury did not reach the issue of whether Schneider was negligent.

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Instead, the jury's deliberation ended when it found Cleveland was not negligent.

¶9. At trial, the jury was presented with the events that surrounded Marie's tragic death. No eyewitness saw Cleveland's truck hit and run over Marie. The issue presented to the jury was not whether Cleveland caused Marie's injuries and death. He did. Instead, the jury considered and decided whether Cleveland breached the duty owed to Marie, i.e. whether he was negligent in backing up his truck at the time he hit and ran over Marie.

¶10. The Paynes presented evidence that Marie walked past the driver's side of Cleveland's truck. She would have been on Cleveland's left, and his truck would have been on her left.

¶11. Diane Gowdy, Cleveland's wife, was with him that morning and was riding as a passenger. Diane testified that she alerted her husband to an open parking spot that he had just passed on his left.

¶12. Cleveland testified that as he passed a vacant parking spot, he stopped his truck and attempted to back up to park in the vacant space. Cleveland testified that, before putting his truck into reverse, he came to a full and complete stop. He turned his head and looked to the left, turned his head and looked to the right, and then turned his head back to the left and looked again. Before he placed his pickup into reverse, Cleveland placed his arm across the seat, in front of the rear-view window, and looked back through the glass while he was backing up. Cleveland testified that he was looking through the back glass the entire time he was backing up. Diane was in the truck with him, and she too was looking behind as they were backing up.

¶13. Cleveland testified that, while backing up, he did not even push the accelerator. The pickup just gently rolled back. He backed up about three or four feet before he felt a bump.

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The bump occurred when Cleveland rolled over Marie's body. Cleveland got out of the truck and found Marie lying underneath his pickup. Cleveland testified that at no time did he ever see Marie behind his pickup.

¶14. Darreal Thompson, a Meridian police officer, testified about the layout of the parking garage. He said that the parking garage has one lane of traffic with spaces for cars to park on the left and right sides. He identified a photograph that showed a clear view from the area of impact to the far end of the parking garage. Officer Thompson testified that he was the first person on the scene and arrived just a few seconds after Marie was run over.

¶15. After immediately calling for emergency assistance, Officer Thompson testified that he spoke to both Cleveland and Diane. Officer Thompson testified that both admitted that, while driving forward, they saw Marie walking in the parking garage. Officer Thompson stated that Cleveland admitted that Marie walked by him on the driver's side of his truck just before he started backing up. He testified:

Q. Where did [Cleveland] say he saw [Marie] walking?
A. He said he saw her walk past his truck.
Q. In the parking garage?
A. Yes, sir.
Q. And did [Cleveland] say at what point in time he saw her walking in the parking garage?
A. When he was moving forward.

¶16. Officer Thompson then testified that he got down on his knees to talk to Marie. Her body was underneath the truck, and she was located between the front and rear tires. Her

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head and body were completely under the truck, and her feet were slightly sticking out from under the left (or driver's) side.

¶17. Mike Mitchell, the Security Director at Anderson Hospital, arrived at the scene within minutes of the incident. Mitchell testified that traffic is one-way in the parking garage, and that there is not a designated area for pedestrians to walk. Mitchell confirmed Officer Thompson's testimony that Cleveland admitted that he saw Marie just before backing up. Mitchell also reviewed the video surveillance footage for the parking garage and determined that Marie exited the elevators at the south end of the parking garage and walked along the left side of the parking lane towards the area of impact.

¶18. Tim Corbitt was allowed to testify as an expert witness in accident reconstruction. Corbitt testified that he reconstructed the incident and prepared several to-scale diagrams. (One of the diagrams Corbitt prepared is the picture that is included in this opinion above.) Corbitt explained that Marie exited the elevators at the southern end of the parking garage (the top of the picture), walked on the side of the parking lane facing traffic for over 100 feet, passed by the left (or driver's side) of Cleveland's truck, and then walked behind Cleveland's truck and across the open traffic lane to get to her white Ford Taurus. When Cleveland backed up, the truck's rear bumper struck Marie's leg first, and then she was knocked down to the ground. Corbitt testified...

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