Donald Koger v. Austin Adcock
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-01187-COA
DONALD KOGER
APPELLANT
v.
AUSTIN ADCOCK
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
10/26/2007
HON. WINSTON L. KIDD
HINDS COUNTY CIRCUIT COURT
DON H. EVANS
HARRY MERRITT MCCUMBER
CHRISTIE EVANS OGDEN
CHRISTOPHER ROYCE SHAW
LAURA LOUISE HILL
CIVIL - PERSONAL INJURY
JURY VERDICT FOR THE DEFENDANT
REVERSED AND REMANDED - 01/12/2010
BEFORE LEE, P.J., CARLTON AND MAXWELL, JJ.
CARLTON, J., FOR THE COURT:
¶1.
On January 27, 2004, Donald Koger filed a complaint in the Hinds County Circuit
Court against Austin Adcock, alleging negligence and gross negligence stemming from a
June 3, 2002, automobile accident. After a two-day trial, the jury returned a verdict in favor
of Adcock. The trial court denied Koger’s post-trial motions, and he perfected the instant
appeal.
FACTS
¶2.
On the morning of June 3, 2002, Koger was driving his car north on Terry Road in
Jackson, Mississippi. Koger’s wife, Patricia Koger (Patricia), rode in the front passenger
seat. At the intersection of Terry Road and Highway 80, Koger’s vehicle collided with a
truck driven by Adcock. The collision caused Adcock’s truck to flip, but neither Adcock nor
his passenger, Brad Blackwell, suffered any injuries as a result of the accident. According
to Koger and another witness, Adcock caused the accident by proceeding through the
intersection despite having the red light.
¶3.
Officer Melvin Bender, a patrolman for the Jackson Police Department, testified at
the trial that police dispatchers sent him to the scene of the accident. Officer Bender
interviewed the parties and other witnesses to the accident and wrote the accident report.
According to Officer Bender, Adcock stated that he had attempted to stop at the intersection,
but his car would not stop. Adcock told Officer Bender that his brakes had failed. Officer
Bender testified that Brenda McCabe, who had witnessed the accident and remained at the
scene, stated that she saw Adcock’s brake lights flash, as if he had pumped his brakes before
proceeding into the intersection. Officer Bender testified that both McCabe and Adcock
stated that Adcock’s traffic signal was red when Adcock entered the intersection. Officer
Bender stated in his testimony that, based on the statements of Adcock and McCabe, he
possessed no doubt that Adcock ran the red light.
¶4.
Koger called Adcock as an adverse witness. Adcock testified at trial that as he
approached the intersection of Highway 80 and Terry Road, the traffic light turned from
green to yellow.
Adcock stated that he approached the intersection traveling at
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approximately 40 miles per hour. He applied his brakes, but they failed to slow down his
truck. He testified that he then downshifted to second gear in another attempt to reduce his
speed and stop his truck. Adcock testified that the last time he saw the traffic light, he saw
a yellow light. Further, Adcock denied noticing any problems with his brakes at any point
prior to the accident. Lastly, Adcock testified that he first saw Koger’s vehicle when Koger’s
vehicle hit his truck. However, Adcock admitted, during his testimony, that he had stated
in his deposition that upon entering the intersection, he swerved to the right in an effort to
avoid the collision with Koger.
¶5.
Koger next called McCabe, who witnessed the accident. McCabe testified that she
was traveling west on Highway 80, behind Adcock’s truck, just before the accident occurred.
McCabe saw the traffic light turn yellow. She testified that Adcock seemed to be trying to
stop his truck. Adcock failed to stop his truck, and the light turned red before he entered the
intersection. McCabe testified that cars occupied the left-hand turn lane, so she could not see
Koger’s vehicle until it collided with Adcock’s truck. Further, McCabe testified that she
checked on Adcock and his passenger and Koger and his wife after the accident. She asked
Koger if he or his wife had suffered any injuries, and Koger indicated that they had not.
¶6.
Koger called Adcock’s father, Eugene Adcock (Eugene), as an adverse witness.
Eugene testified that Adcock and his passenger, Blackwell, left Eugene’s office in Pearl to
perform some work for his business in the McDowell Road area of Jackson. Shortly after
the men left, Eugene received a call that they were involved in an accident. Eugene drove
to the accident site. Eugene testified that he received no complaints before the accident
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regarding the truck’s brakes needing repair. He testified that Adcock told him the brakes
seemed “spongy” when he applied them just before the accident. Eugene checked the brakes
at some point after the accident. He testified that they seemed “spongy,” but they probably
would have stopped the car. Further, Eugene testified that he spoke with Koger and Koger’s
wife at the scene of the accident, and Koger indicated to him that they had not received any
injuries as a result of the accident. According to Eugene, Koger told him that his back hurt,
but it was not because of the accident.
¶7.
Koger called Adcock’s passenger, Blackwell, to testify. Blackwell testified that he
fell asleep in the truck as soon as they left Eugene’s office. He woke up when Adcock
screamed, “They’re going to hit us!” He testified that he remembered Adcock swerving to
the right just before the collision.
¶8.
Patricia occupied the front passenger seat of Koger’s vehicle at the time of the
collision. Patricia testified that she and Koger stopped at the intersection of Terry Road and
Highway 80 when the traffic signal was red. The traffic signal turned green, and Koger
proceeded into the intersection. Patricia looked up and saw Adcock’s truck headed toward
their car, traveling at approximately 40 to 45 miles per hour. Koger stepped on his brakes,
but he could not avoid the collision. Patricia testified that immediately after the accident,
Koger told her his back “hurt, it burned, it was stinging.” Patricia testified that Koger
declined treatment by medical personnel at the scene of the accident because of his concern
for her. Patricia had recently undergone back surgery and, as a result, wore a heavy brace.
Koger was driving her to a follow-up appointment with her physician when the accident
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occurred.
¶9.
Koger testified that as he and Patricia approached the intersection of Terry Road and
Highway 80, the traffic signal turned red. He stopped the car and waited for the signal to
turn green. When the signal turned green, Koger glanced to his left and right and noticed that
cars had stopped in the Highway 80 turn lanes. Those vehicles prevented Koger from being
able to see all lanes of traffic on Highway 80. After checking for on-coming traffic, Koger
proceeded through the intersection. Koger testified that as he accelerated through the
intersection, he saw some movement “out of the corner of [his] eye.” When he looked up,
he saw Adcock’s truck moving toward the intersection. Koger testified that he could tell by
the truck’s speed that Adcock would not be able to stop before the intersection. Koger
applied his brakes and braced himself for the collision.
¶10.
Koger testified that he estimated Adcock’s speed just before the collision to be
approximately 40 to 45 miles per hour. Koger estimated his own speed at approximately 10
to 15 miles per hour. Koger testified that after the impact, he immediately felt a “burning
pain” in his back. Koger testified that following the collision, his primary concern was for
Patricia’s welfare because of her recent back surgery. When Patricia asked Koger how he
felt after the accident, he told her about the pain in his back. Koger chose not to ride in the
ambulance for medical treatment following the collision because, as he asserts, he was
focused on Patricia’s well-being. Rather than proceed to Patricia’s appointment, Koger and
Patricia returned home and called Patricia’s doctor to schedule an appointment for the
following day. Koger spent the rest of the day, June 3, trying to “rest [his] back.” However,
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Koger was unable to rest because of his back pain. After taking Patricia to her appointment,
Koger sought treatment for his back pain from his physician, Dr. Hale Byrd. Koger avers
that he never sought treatment for back pain prior to the accident. However, according to
Eugene’s testimony, Koger complained of back pain at the scene of the accident and admitted
that the pain originated from a source other than the accident.
¶11.
Dr. Byrd ordered an MRI. The results of that test prompted Dr. Byrd to refer Koger
to a neurosurgeon, Dr. Winston Capel, who prescribed physical therapy for Koger. When
the physical therapy proved ineffective in relieving Koger’s pain, Dr. Capel referred Koger
to Dr. Jeffrey Summers. Dr. Summers prescribed several months of steroid injections. Dr.
Capel diagnosed Koger with degenerative disc disease.
¶12.
According to Adcock, Koger suffers from degenerative disc disease which Adcock
contends existed prior to the accident. Adcock bases this position on Eugene’s testimony that
Koger told Eugene at the scene of the accident that Koger’s back hurt, not because of the
accident, but because of a preexisting back condition. Further, Adcock points to Koger’s
own admission that he was denied entry into the military at age 22, presumably because of
a back condition.1 Koger made the following statement in his testimony: “My understanding
was that it was something to do with my back[,] but they wouldn’t tell me what it was. And
it didn’t bother me[.] [S]o being 22 years old I just didn’t worry about it.” Koger reiterated
that he never suffered any back pain in his life prior to the accident with Adcock.
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Koger was 62 years old at the time of trial.
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¶13.
After deliberations, the jury returned a verdict in favor of Adcock, which simply
stated: “We, the Jury, find for the Defendant!” Koger filed a post-trial motion entitled:
“Plaintiff’s Motion for Judgment Notwithstanding the Verdict or, in the Alternative, New
Trial or, in the Alternative, Additur,” which the trial court denied. Koger contends that the
trial court erred in denying his post-trial motions. Second, Koger argues that the trial court
erred in denying his request for a peremptory instruction. Lastly, Koger argues that the trial
court improperly instructed the jury regarding liability and preexisting injuries.
¶14.
Finding error in the instructions given to the jury, we reverse this case and remand it
for a new trial. Because our ruling on this assignment of error disposes of Koger’s remaining
assignments of error, the remaining assignments of error do not merit further discussion.
DISCUSSION
Whether the trial court improperly instructed the jury regarding liability
and preexisting conditions.
¶15.
Koger argues that jury instruction number 16 was extremely misleading, a
misstatement of the law, and a misstatement of the facts. Koger argues that the jury
instruction, as given, caused him extreme prejudice and may also have been the reason the
jury found in favor of Adcock.
¶16.
When reviewing challenges to jury instructions, this Court will affirm the trial court’s
ruling “where the instructions actually given, when read together as a whole, fairly announce
the law of the case and create no injustice.” Lepine v. State, 10 So. 3d 927, 944 (¶49) (Miss.
Ct. App. 2009) (quoting Ford v. State, 975 So. 2d 859, 864 (¶11) (Miss. 2008)).
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¶17.
The jury instruction originally proffered by the defense stated the following:
A pre-existing condition is a condition that may have caused or contributed to
the injury claimed by Donald Koger, but is also a condition from which
Donald Koger suffered before his motor vehicle accident with Austin Adcock.
Therefore, Austin Adcock is not responsible for the injuries of Donald Koger
which are the sole proximate result of his pre-existing conditions. If you find
that Donald Koger suffered from pre-existing conditions such as neck pain,
back pain, shoulder pain, or numbness in his hands or legs before the accident
that occurred on June 3, 2002, you should consider those pre-existing
conditions when reaching your verdict. You should consider whether those
pre-existing conditions were unrelated to Donald Koger’s present injuries,
whether those pre-existing conditions contributed to his present injuries, or
whether those pre-existing conditions were the sole proximate cause of his
injuries and adjust your verdict as you see fit based on the causal relation, if
any, between the Plaintiff’s pre-existing condition and his present complaints.
¶18.
Despite Adcock’s assertions to the contrary, Koger’s attorney, Don Evans, made a
timely objection to the proffered jury instruction. The following exchange took place while
the parties and the trial court worked to finalize the jury instructions:
THE COURT: So, D-4, any objections?
MR. EVANS: I have an objection. There’s no evidence of any prior injury.
There’s no evidence of any prior pain and it comes down in here about four
lines down it says, if you find that Donald Koger suffers from preexisting
conditions such as neck pain – that’s never even come up – back pain, shoulder
pain or numbness in his hands. That’s never even come up. We’ve had back
pain and we had leg pain. And this is misleading.
[DEFENSE COUNSEL]: If it pleases the court I will be more than happy to
alter the instructions and limit it to the first two sentences.
THE COURT: Okay.
MR. EVANS: And it’s misleading. It looks like it’s saying if you find he had
a preexisting condition, maybe even the degenerative disc disease, that he
wouldn’t be liable for it, for this injury.
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[DEFENSE COUNSEL]: Well, as a matter of law, he’s not liable for the
preexisting injury. And if the jury finds that this accident did not aggravate or
exacerbate then the jury has to return a verdict for my client. And I think that
instruction is clear.
THE COURT: Okay. D-5 is the same as the court’s instruction. Will be
refused. I believe D-6 was already given in the plaintiff[’s] instructions. D-6
is refused. D-7, any objections.
....
THE COURT: Okay. I’m going to go and look at these again and I will send
them back in as to how I modified them and I’ll state on the record when I
return which ones I’ve granted and refused.
¶19.
After a break, the trial judge stated for the record the jury instructions he chose to
grant or refuse. The trial judge made the following statement:
THE COURT: As to the instructions that were given, I went over some of
them earlier, but let me go back through them again. . . . D-4 was given with
modification. The court determined that this was not a case to submit to the
jury to consider apportionment of fault.
With respect to D-4 that was submitted dealing with the preexisting
condition the court determined that that instruction should be modified where
the defendant will be allowed to make that argument to the jury regarding
whether or not there were any preexisting conditions. So the first two
sentences were given. D-4 was modified. All right. Let’s bring the jury in.
¶20.
As reflected in the record transcript, after the defense counsel suggested the
modification of the instruction to include only the first two sentences, Evans reiterated his
objection, stating: “And it’s misleading.”
Mr. Evans reiterated his objection to the
modification as misleading, thereby indicating that he did not acquiesce in the modification
and found the modified instruction still to be misleading. Although Evans did not renew his
objection to the modification of instruction D-4 after the trial judge made his rulings on the
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jury instructions and objections thereto, his previous objection suffices to preserve the issue
for our review.
¶21.
With the trial court’s modification, the jury instruction actually given to the jury read
as follows:
A pre-existing condition is a condition that may have caused or contributed to
the injury claimed by Donald Koger, but is also a condition from which
Donald Koger suffered before his motor vehicle accident with Austin Adcock.
Therefore, Austin Adcock is not responsible for the injuries of Donald Koger
which are the sole proximate result of his pre-existing conditions.
¶22.
The instruction provides a misleading and incorrect statement of the law as to the
responsibility of aggravation of preexisting conditions caused by or contributed to by the
negligence of another. We agree that the law provides that Koger is not entitled to damages
for any injuries which existed at the time of the accident with Adcock. Winston v. Cannon,
430 So. 2d 413, 416 (Miss. 1983). However, if Adcock’s negligence caused any aggravation
of any preexisting injury to Koger, Adcock bears the responsibility for the portion of the
injury or the aggravation of the injury that he caused; and the jury may be instructed to
consider the aggravation of the injury. Id. See also Harkins v. Paschall, 348 So. 2d 1019,
1021-22 (Miss. 1977).
Moreover, where the jury cannot apportion the damages, the
defendant may be liable for the whole amount of damages. This Court previously stated that
“[o]ne who injures another suffering from a preexisting condition is liable for the entire
damage when no apportionment can be made between the preexisting condition and the
damage caused by the defendant.” Doe ex rel. Doe v. N. Panola Sch. Dist., 906 So. 2d 57,
61 (¶12) (Miss. Ct. App. 2004) (quoting Brake v. Speed, 605 So. 2d 28, 33-34 (Miss. 1992)).
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¶23.
Jury instruction 16 misleads the jury on this point. The instruction implies that,
because Koger suffered from degenerative disc disease before the accident occurred, Adcock
could not be held liable for any condition caused by the degenerative disc disease. The
language of the instruction essentially eliminates any jury question regarding the aggravation
of any preexisting injury or condition or the extent of any preexisting injury to Koger.
Further, although the instruction correctly informs the jury that Adcock cannot be held liable
for Koger’s preexisting injuries, the instruction fails to instruct the jury as to Adcock’s
responsibility for any aggravation of Koger’s preexisting degenerative disc disease caused
by or contributed to by Adcock’s negligence.
¶24.
Moreover, this Court examines jury instructions as a whole, making sure the
instructions given fairly announce the law of the case and create no injustice. Lepine, 10 So.
3d at 944 (¶49). Examining the instructions as a whole, we find no other instruction which
clarifies or explains the law regarding Koger’s preexisting condition. Other instructions
given to the jury explain proximate cause, but they still fail to address the issue of Koger’s
preexisting condition. Jury instruction 10 instructed the jury as follows regarding proximate
cause:
The Court instructs the jury that an element, or test, of proximate cause is that
an ordinarily prudent person should reasonably have foreseen that some injury
might probably occur as a result of his or her negligence. It is not necessary
to foresee the particular injury, the particular manner of the injury, or the
extent of the injury.
¶25.
Jury instruction 11 states the following:
This Court instructs the jury that if you find from the preponderance of the
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evidence that the Defendant, Austin Adcock, could have avoided the collision
in question by the exercise of reasonable care on his part or by taking such
measures, if any, as an ordinarily prudent person, in his position, would have
taken under similar circumstances which it was his duty then and there to do
so; and if you further find from the preponderance of the evidence in this
regard that the Defendant, Austin Adcock, failed to use reasonable care at the
time and place in question, and that such failure, if any, on his part was the
proximate contributing cause of the accident and injuries to the Plaintiff,
Donald Koger, then in such case, your verdict should be in favor of the
Plaintiff, Donald Koger.
(Emphasis added).
¶26.
Despite its attempts to instruct the jury regarding proximate cause, the trial court
failed to properly instruct the jury regarding the proximate cause of any aggravation of
Koger’s asserted preexisting condition. Koger testified that despite his physician’s testimony
that he possessed degenerative disc disease, Koger had never experienced any back pain or
sought medical treatment for back problems prior to the accident with Adcock. The jury
should have been instructed as to Adcock’s responsibility if his negligence contributed to an
aggravation of Koger’s asserted preexisting condition.
¶27.
Finding reversible error in the jury instructions that were given, we reverse this case
and remand for a new trial consistent with this opinion. Koger’s remaining assignments of
error are therefore moot.
¶28. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS
AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN PART AND IN THE
RESULT.
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