Whitehead v. Food Max of Mississippi, Inc.

• Decision Date: 16 December 1998
• Docket Number: No. 97-60574,97-60574
• Citation: 163 F.3d 265
• Parties: Bennie WHITEHEAD; Susan Whitehead, individually and as Mother and adult next friend of Amy Whitehead, a minor, Plaintiffs-Appellees, v. FOOD MAX OF MISSISSIPPI, INC.; et al., Defendants, Kmart Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 265

163 F.3d 265

Bennie WHITEHEAD; Susan Whitehead, individually and as Mother and adult next friend of Amy Whitehead, a minor, Plaintiffs-Appellees, v. FOOD MAX OF MISSISSIPPI, INC.; et al., Defendants Kmart Corporation, Defendant-Appellant.

No. 97-60574.

United States Court of Appeals, Fifth Circuit.

Dec. 16, 1998.

Paul S. Minor, Minor & Associates, Biloxi, MS, Ross R. Barnett, Jr., Julius Tayloe Simmons, Jr., Barnett Law Firm, Jackson, MS, Stephen Blake Simpson, Gulfport, MS, for Plaintiffs-Appellees.

Don Keller Haycraft, Khristina DeLuna Miller, Liskow & Lewis, New Orleans, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Mississippi.

Before JOLLY, BARKSDALE and BENAVIDES, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

A jury having found that Kmart's failure to provide adequate security for its parking lot was a cause of the abduction of Mrs. Whitehead and her daughter, and ensuing heinous criminal acts, the principal issue presented in Kmart's appeal from the judgment in this Mississippi diversity action, by which Kmart seeks a new trial, is whether, because of the Whiteheads' closing argument, the jury was influenced by passion and prejudice in awarding damages of $3.4 million. Concluding that the jury was so influenced, we must REVERSE and REMAND for a new trial on damages; we AFFIRM as to liability.

I.

Mrs. Susan Whitehead and her then twelve-year-old daughter, Amy Whitehead, were abducted at knife-point from Kmart's parking lot at Beasley Road in Jackson, Mississippi, at approximately 8:30 p.m. on 18 October 1992. The two teenage assailants, Shanta Jones and James Seaton, forced the Whiteheads into Mrs. Whitehead's vehicle. After robbing Mrs. Whitehead of the money in her purse (totaling four dollars), the assailants drove the Whiteheads to an ATM machine and had Mrs. Whitehead make a withdrawal. Seaton and Jones then drove the Whiteheads to a remote location where, outside the vehicle, they took turns sodomizing and raping Mrs. Whitehead; while one did so, the other kept Amy Whitehead in the vehicle. This minimal summary does not even begin to describe, capture, or convey the indignity, terror, and horror inflicted upon the Whiteheads.

Approximately one week later, Seaton and Jones were arrested; each pleaded guilty to abduction, robbery, and rape. They are serving 125 year sentences in state prison.

At the end of July 1992, approximately three months before the abominable acts committed against Susan and Amy Whitehead, Kmart terminated the contract for security on its large parking lot. It contracted with a new security provider; but, that service did not begin until two days after the abductions. This Mississippi diversity action is premised on the claim that Kmart's failure to provide adequate security for its parking lot was a cause of injuries to Mr. and Mrs. Whitehead and their daughter.

At trial, the Whiteheads' security expert criticized Kmart's lack of policies regarding parking lot security and opined that the lack of uniformed, armed security guards on the night of the abduction created an unsafe environment. Another of the Whiteheads' experts opined that Seaton and Jones were "power reassurance rapists", who probably chose Kmart because of its lack of security in its parking lot, and who would probably have been deterred by the presence of a uniformed security guard.

Kmart's local loss prevention manager testified regarding the measures his personnel took in the absence of the security guards, which primarily involved an unwritten requirement that a loss prevention employee, carrying a two-way radio, patrol the several acre parking lot twice an hour for five to ten minutes.

A jury found for the Whiteheads. It awarded Susan Whitehead $196,000 for past and future medical expenses and $1.5 million for past and future pain and suffering; Amy Whitehead, $100,000 for future medical expenses and $1.2 million for past and future pain and suffering; and Bennie Whitehead, $500,000 for loss of consortium.

Post-verdict, Kmart did not seek judgment as a matter of law. Instead, it moved only for a new trial or, alternatively, a remittitur. The motion was denied.

II.

As it did at trial, Kmart acknowledges readily that the crimes committed against Susan and Amy Whitehead are terrible. On the other hand, it notes, correctly, that, notwithstanding how vile the crimes were, the jury could not be improperly influenced by emotion.

Seeking only a new trial, not that we reverse and render, Kmart presents three issues: (1) whether there was a lack of evidence for the jury finding Kmart had a duty to provide private security for the parking lot (and, in conjunction, whether the jury was instructed erroneously and whether the district court committed plain error in admitting testimony); (2) whether the jury awards are excessive, including that they are a result of passion and prejudice; and (3) whether the district court properly applied Mississippi's statute allocating fault among joint tortfeasors. Of course, this being a diversity action we apply state substantive law. E.g., Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996).

A.

The plaintiff in a Mississippi negligence action has the burden of proving: "a) the duty owed him by the [defendant]; b) a breach of that duty; c) damages; and d) a causal connection between the breach and the damages, such that the breach is the proximate cause of his injuries". Crain v. Cleveland Lodge, 641 So.2d 1186, 1189 (Miss.1994) (emphasis in original). Asserting that there was a lack of evidence on which the jury could find Kmart had a duty to provide private security, Kmart advances three bases in support: (1) that there was no evidence showing the requisite "atmosphere of violence"; (2) that the jury was misled by an instruction regarding Kmart's duty; and (3) that unobjected-to testimony prevented a fair trial.

1.

As noted, following entry of judgment, Kmart moved only for a new trial, expressly pursuant to FED. R. CIV. P. 59. It did not also move for judgment as a matter of law, pursuant to FED. R. CIV. P. 50.

Concerning the lack of evidence claim, "[a] trial court should not grant a new trial on evidentiary grounds unless the verdict is against the great weight of the evidence". Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir.1998) (quoting Dotson v. Clark Equip. Co., 805 F.2d 1225, 1227 (5th Cir.1986)). The district court has "sound discretion" to grant or deny new trial motions; we will affirm absent "a clear showing that this discretion has been abused". Pryor, 138 F.3d at 1026; see also Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1046 (5th Cir.1998); Bernard v. IBP, Inc., 154 F.3d 259, 264 (5th Cir.1998).

It goes without saying that review of the denial of a new trial motion is more limited than when one is granted. Pryor, 138 F.3d at 1026. The denial will be affirmed unless, on appeal, the party that was the movant in district court makes a "clear showing" of " 'an absolute absence of evidence to support the jury's verdict,' thus indicating that the trial court had abused its discretion in refusing to find the jury's verdict 'contrary to the great weight of the evidence' ". Hidden Oaks, 138 F.3d at 1049 (quoting Dawsey v. Olin Corp., 782 F.2d 1254, 1261 (5th Cir.1986)) (emphasis added). ¹

a.

In the face of the Whiteheads noting this quite narrow standard of review for the denial of a new trial motion, Kmart in its reply brief urges us belatedly to treat its new trial motion as also seeking judgment as a matter of law. Under that standard of review, we determine whether "there is no legally sufficient evidentiary basis for a reasonable jury to find for" the nonmovant. FED. R. CIV. P. 50(a). Obviously, Kmart's chances would be much improved under this standard; it is far easier to satisfy than the above-discussed requisite showing of "an absolute absence of evidence to support the jury's verdict". Hidden Oaks, 138 F.3d at 1049 (emphasis added). ² Simply put, Kmart is trying to mix the proverbial "apples and oranges".

For starters, Kmart's attempt to switch the standard of review comes far too late. As noted, it was not urged until its reply brief (in a footnote no less). Generally, we do not address points presented for the first time in a reply brief. See Northwinds Abatement, Inc. v. Employers Ins., 69 F.3d 1304, 1308 n. 3 (5th Cir.1995); Conkling v. Turner, 18 F.3d 1285, 1299 (5th Cir.1994); Unida v. Levi Strauss & Co., 986 F.2d 970, 976 n. 4 (5th Cir.1993); Blumberg v. HCA Management Co., Inc., 848 F.2d 642, 646 (5th Cir.1988); Knighten v. Commissioner of Internal Revenue, 702 F.2d 59, 60 n. 1 (5th Cir.1983).

In any event, although here, Kmart belatedly urged the standard of review for judgment as a matter of law, it did not concomitantly seek a judgment in its favor. Instead, throughout its opening and reply briefs, it sought only a new trial. It was not until oral argument, in response to questioning about this anomaly, that Kmart finally asked that we reverse and render. Needless to say, we do not generally consider points raised for the first time at oral argument. See United States v. Ulloa, 94 F.3d 949, 952 (5th Cir.1996), cert. denied, 520 U.S. 1157, 117 S.Ct. 1338, 137 L.Ed.2d 497 (1997); Zuccarello v. Exxon Corp., 756 F.2d 402, 407-08 (5th Cir.1985) ("[W]hen an appellant raises an issue for the first time at oral argument, the Court ordinarily will not consider it; failure to satisfy the requirements of Rule 28 constitutes a waiver of the issue"); FED. R.APP. P. 28. Obviously, a party is bound by, or limited to, the relief it seeks on appeal. FED. R.APP. P. 28(a)(7) (appellant's brief must contain "[a] short conclusion stating the precise relief sought"); see Johnson v. New York, N.H. & H.R. Co., 344 U.S. 48, 54, 73 S.Ct. 125, 97 L.Ed. 77 (1952) (holding that failure to move for judgment after...