Thompson v. Lee County School Dist.

• Decision Date: 19 April 2005
• Docket Number: No. 2003-CA-02395-COA.,2003-CA-02395-COA.
• Citation: 925 So.2d 121
• Parties: Joseph THOMPSON, by and through His Mother and Next Friend, Nancy THOMPSON, Appellant, v. LEE COUNTY SCHOOL DISTRICT, Appellee.
• Court: Mississippi Court of Appeals

925 So.2d 121

Joseph THOMPSON, by and through His Mother and Next Friend, Nancy THOMPSON, Appellant, v. LEE COUNTY SCHOOL DISTRICT, Appellee.

No. 2003-CA-02395-COA.

Court of Appeals of Mississippi.

April 19, 2005.

Rehearing Denied July 26, 2005.

J. Mark Shelton, Jana Dawson, Tupelo, attorneys for appellant.

William C. Murphree, Gary L. Carnathan, Tupelo, attorneys for appellee.

Before BRIDGES, P.J., IRVING and MYERS, JJ.

MYERS, J., for the Court:

¶ 1. On December 3, 1999, Joseph Thompson filed his complaint against George Gregory and the Lee County School District ("Lee County"), alleging that he suffered personal injuries as a result of the negligence of George Gregory in operating a Lee County school bus. On October 9, 2003, after a trial on the merits, the court dismissed George Gregory from the suit, but found Lee County liable to Thompson for the sum of $200,000. However, the court found Thompson to be fifty percent contributorily negligent, thus reducing the total damage award to $100,000.

¶ 2. Aggrieved by the assignment of contributory negligence and by the amount of damages awarded, Thompson now appeals, raising the following two issues:

I. DID THE TRIAL COURT ERR IN FINDING THOMPSON TO BE FIFTY PERCENT CONTRIBUTORILY NEGLIGENT?

II. DID THE TRIAL COURT ERR IN DETERMINING THE AMOUNT OF DAMAGES?

¶ 3. Finding error in the assignment of contributory negligence, we reverse and render on that issue, and further, finding error in the amount of the damage award, we reverse and remand for a new trial on the issue of damages.

FACTS

¶ 4. On December 4, 1998, Thompson was driving his red truck in the northbound lane of Romie Hill Road, a two-lane road in Shannon, Mississippi. As Thompson approached the intersection of Romie Hill Road and County Road 300, the school bus driven by Gregory pulled out in front of Thompson, causing a collision between the two vehicles. Fortunately, the bus was empty of children at the time. There were no stop signs or stop lights to halt or slow traffic proceeding north or southbound on Romie Hill Road; thus, Thompson was proceeding with the right of way and without any traffic signal requiring him to slow down or stop. There were stop signs on each of the eastbound and westbound sides of County Road 300; thus, the school bus had to proceed through a stop sign in order to enter Romie Hill Road. Whether Gregory came to a complete stop at this stop sign before entering Romie Hill Road became one of the contested factual issues in the case, but there was no dispute about the fact that Thompson faced no road sign, traffic light, or other warning signal as he approached the intersection of Romie Hill Road and County Road 300.

¶ 5. Gregory suffered only minor injuries from the collision, but Thompson suffered numerous injuries, including severe head trauma. Thompson was taken to the emergency room at North Mississippi Medical Center where he remained in a coma for three days. Thompson remained hospitalized until December 31, 1998, incurring roughly $50,000 in medical bills from his extended stay at the hospital.

¶ 6. Experts at trial testified that while Thompson has made a virtually full physical recovery, he suffers from permanent cognitive defects as a result of the head injuries caused by the accident. Among these permanent cognitive defects are the following: loss of language skill, mild dysnomia, reduced motor functioning and coordination, abnormally reduced attentional skills, mental slowness and inefficiency in learning, and visual perceptual difficulties.

LEGAL ANALYSIS

I. DID THE TRIAL COURT ERR IN FINDING THOMPSON TO BE FIFTY PERCENT CONTRIBUTORILY NEGLIGENT?

¶ 7. Thompson argues that there was no credible evidence to support the trial court's finding that he was fifty percent contributorily negligent. In support of this argument, Thompson points to various facts, which we will discuss more fully below.

¶ 8. Lee County argues that the trial court's findings were not manifestly wrong or clearly erroneous and that this Court should leave those findings untouched.

STANDARD OF REVIEW

¶ 9. The first thing to note is that the case sub judice falls under the Mississippi Tort Claims Act ("MTCA"), and cases brought under the MTCA are tried by a judge, sitting without a jury. Mississippi Dept. of Public Safety v. Durn, 861 So.2d 990, 994(¶ 7) (Miss.2003) (citing Miss.Code Ann. § 11-46-13 (Rev.2002)). In cases, such as the present case, where a circuit court judge sits without a jury, we have held that our standard of review is the same standard that we apply to decisions of a chancellor. Davis v. Latch, 873 So.2d 1059, 1061(¶ 6) (Miss.Ct.App.2004). That means that we will not disturb the circuit court judge's findings "unless they are manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Id. (citing City of Jackson v. Perry, 764 So.2d 373, 376(¶ 9) (Miss.2000)). A circuit court judge's findings, therefore, "are safe on appeal where they are supported by substantial, credible and reasonable evidence." Id. (quoting Maldonado v. Kelly, 768 So.2d 906, 907(¶ 4) (Miss.2000)). We have held further in this regard that:

This Court recognizes that the trial judge, sitting in a bench trial as the trier of fact, has the sole authority for determining the credibility of the witnesses. Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss.1987); Hall v. State ex rel. Waller, 247 Miss. 896, 903, 157 So.2d 781, 784 (1963). Where there is conflicting evidence, this Court must give great deference to the trial judge's findings. McElhaney v. City of Horn Lake, 501 So.2d 401, 403 (Miss.1987).

City of Jackson v. Lipsey, 834 So.2d 687, 691(¶ 14) (Miss.2003). Thus, our standard of review is deferential, and in conducting our review, we must determine whether the trial judge's findings were clearly erroneous or unsupported by "substantial, credible and reasonable evidence." Davis, 873 So.2d at 1061(¶ 6).

DISCUSSION

¶ 10. In a recent case, this Court held that the assignment of contributory negligence turned upon the "factual underpinnings" of that case. City of Newton v. Lofton, 840 So.2d 833, 837(¶ 14) (Miss.Ct. App.2003). We find the same to be the case here. The assignment of contributory negligence in the case sub judice was based entirely upon certain inferences drawn by the trial judge from facts in the case; thus, we will examine these inferences in light of the evidence in the record. In finding that Thompson was contributorily negligent, the trial judge said the following:

Based on the only testimony concerning what parts of the vehicles came into contact, it seems apparent to me that the bus was hit by the automobile apparently in a fairly head-on circumstance, that is, the car was traveling straight in a northerly direction, striking the bus behind or in the vicinity behind the passenger door located on the right-hand side of the bus somewhat behind the driver's seat, knocking the driver with apparent substantial force from his seat into the doorway breaking glass out, which indicates to me substantial impact, which as it applies to this case would indicate to me that the plaintiff, Joey Thompson, was traveling at an increased rate.

I do not know, but there is testimony or an indication that the speed limit there was 45 miles an hour. I do not know whether the speed exceeded 45, but it was a substantial impact, and, no doubt, caused pretty substantial injury to the vehicles, as well as to both of the drivers.

The front of the bus itself was based on the drawing which is a part of the police report in this case which is probably conservative, by the way, because it would appear to me that in all likelihood the bus was at least as indicated in that drawing and possibly slightly more for the impact to have been in the northbound lane of traffic. In any event, all of these things considered, the Court is certainly of the opinion that the . . . plaintiff in this case, Joseph Thompson, was contributorily negligent in causing the accident.

(emphasis added).

¶ 11. Not only do the trial judge's own words belie the extremely tenuous evidentiary base upon which the court attempted to ground this ruling, but the evidence and testimony in the record further demonstrate that the conclusions of the trial judge, as quoted above, are clearly erroneous.

¶ 12. For instance, there was no reason supported by credible evidence for the judge to conclude that, because Gregory was thrown from his seat, Thompson must have been going in excess of forty-five miles per hour. There was no expert or other testimony as to the speed Thompson was traveling and there was no credible evidence in the record to suggest that Thompson was speeding; therefore, this inference is unreasonable, as it finds no evidentiary support in the record. Further, given how relatively minor Gregory's injuries were (the record shows that he suffered some cuts to his elbow and head for which he was treated and released, and the officer who responded to the accident noted that Gregory appeared "banged up," but not seriously injured), it is equally, if not more likely, using the trial court's reasoning, that Thompson was not going above the posted speed limit. There was nothing in the record to suggest that it would take more force than a forty-five mile per hour impact to knock Gregory from his seat and break the glass of one of the windows. This conclusion was purely conjectural and unsupported by any substantial, credible evidence.

¶ 13. Moreover, we find in the record no justification for the conclusion that the drawing from the police report was "probably conservative" and should, therefore, have been taken to indicate something more than the drawing actually indicated. The "drawing" in the police report is a bare diagram, designed merely to show the general position and direction of the vehicles at the time of the impact. This drawing is not a "realistic" depiction of the accident, and...